Exhibit 10.2





Exhibit 10.2




PLACEMENT AGENCY AGREEMENT




February 25, 2010




Leerink Swann LLC

One Federal Street, 37th Floor

Boston, Massachusetts 02110




Ladies and Gentlemen:



Amicus Therapeutics, Inc., a Delaware corporation (the “Company”), appoints Leerink Swann LLC
(the “Placement Agent”) to act as placement agent pursuant to the terms and conditions of this
Placement Agency Agreement (the “Agreement”) for the proposed sale to certain investors
(collectively, the “Investors”) of up to an aggregate of 4,946,524 units (the “Units”), with each
Unit consisting of (i) one share of Common Stock (each, a “Share” and collectively, the “Shares”),
$.01 par value per share (the “Common Stock”), of the Company and (ii) one warrant to purchase
0.375 of a share of Common Stock (each, a “Warrant” and collectively, the “Warrants”) (such
proposed sale, the “Offering”) pursuant to the terms and conditions of Subscription Agreements by
and between the Company and such Investors in the form of Exhibit A (the “Subscription
Agreements”). The shares of Common Stock issuable upon exercise of the Warrants are referred to
herein as the “Warrant Shares.” Units will not be issued or certificated. The Common Stock and the
Warrants are immediately separable and will be issued separately. The terms and conditions of the
Warrants are set forth in the form of Exhibit B attached hereto. The Units are further
described in the Prospectus that is referred to below.



The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Securities Act”),
with the Securities and Exchange Commission (the “Commission”) a registration statement under the
Securities Act on Form S-3 (File No. 333-158405) originally dated April 3, 2009, as amended (the
“registration statement”). The registration statement has been declared by the Commission to be
effective under the Securities Act. In connection with the Offering, the Company will file with the
Commission pursuant to Rule 424(b) under the Securities Act a final prospectus supplement to the
Basic Prospectus (as defined below), describing the Units and the offering thereof, in such form as
has been provided to or discussed with, and reasonably approved by, the Placement Agent.


 


 









 





The term “Registration Statement” as used in this Agreement means the registration statement,
at the time it became effective and as supplemented or amended prior to the execution of this
Agreement, including (i) all financial schedules and exhibits thereto and (ii) all documents
incorporated by reference or deemed to be incorporated by reference therein. The term “Basic
Prospectus” as used in this Agreement means the basic prospectus dated as of May 27, 2009 that is
part of the registration statement for use in connection with the offer and sale of the Units
pursuant to this Agreement. The term “Prospectus Supplement” as used in this Agreement means
the final prospectus supplement dated as of February 25, 2010 specifically relating to the Units
which will be filed with the Commission pursuant to Rule 424(b) under the Securities Act after the
Execution Time (as defined below) and on or before 8:30 a.m., New York time, on the first business
day following execution of this Agreement (or such other time as the parties may agree). The term
“Prospectus” as used in this Agreement means the Basic Prospectus together with the Prospectus
Supplement except that if such Basic Prospectus is amended or supplemented on or prior to the date
of the Prospectus Supplement, the term “Prospectus” shall refer to the Basic Prospectus as so
amended or supplemented and as supplemented by the Prospectus Supplement. Any reference herein to
the registration statement, the Registration Statement, the Basic Prospectus, any Prospectus
Supplement or the Prospectus shall be deemed to refer to and include (i) the documents incorporated
by reference therein as of the date of the Prospectus pursuant to Form S-3 (the “Incorporated
Documents”) and (ii) the copy of the Registration Statement, the Basic Prospectus, the Prospectus
Supplement, the Prospectus or the Incorporated Documents filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”). Any reference herein to the
terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the “Exchange Act”) after the effective date of the Registration Statement, or the
date of the Prospectus, as the case may be, deemed to be incorporated therein by reference pursuant
to the rules and regulations under the Exchange Act. As used herein, “business day” shall mean a
day on which the Global Market of The NASDAQ Stock Market LLC (“NASDAQ”) is open for trading.



The term “Disclosure Package” shall mean (i) the Prospectus as of the date and time that this
Agreement is executed and delivered by the parties hereto (the “Execution Time”), (ii) the issuer
free writing prospectuses as defined in Rule 433 of the Securities Act (each, an “Issuer Free
Writing Prospectus”), if any, identified in Exhibit C and (iii) any other free writing
prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of
the Disclosure Package.



Concurrently with the execution and delivery of this Agreement, the Company, the Placement
Agent and JPMorgan Chase Bank, N.A. (the “Escrow Agent”) shall enter into an escrow agreement (the
“Escrow Agreement”), pursuant to which an escrow account (the “Escrow Account”) will be established
for the benefit of the Company and the Investors.




The Company hereby confirms its agreement with the Placement Agent as follows:



1. Agreement to Act as Placement Agent; Placement of Units. Upon the basis of the
representations and warranties of the Company, the Company engages the Placement Agent to act as
its exclusive placement agent in connection with the offer and sale by the Company of the Units to
the Investors. As compensation for services rendered, at the time of purchase (as defined in
Section 2) the Company shall pay to the Placement Agent, by Federal Funds wire transfer to
an account or accounts designated by the Placement Agent, an aggregate amount equal to 5.7% of the
gross proceeds received by the Company in respect of the sale of the Units. The Units are being
sold at a price of $3.74 per Unit. The Placement Agent may retain other brokers or dealers
to act as subagents on their behalf in connection with the offering and sale of the Units;
provided that the Company will only be obligated to pay the Placement Agent for services rendered
hereunder. Until the earlier of the termination of this Agreement or the time of purchase, the
Company shall not, without the prior written consent of the Placement Agent, solicit or accept
offers to purchase Units otherwise than through the Placement Agent.


 


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The Placement Agent agrees, as agent of the Company, to use its best efforts to solicit offers
to purchase Units from the Company on the terms and subject to the conditions set forth in the
Disclosure Package. The Placement Agent shall use commercially reasonable efforts to assist the
Company in obtaining performance by each Investor whose offer to purchase Units has been solicited
by the Placement Agent and accepted by the Company, but the Placement Agent shall not, except as
otherwise provided in this Agreement, be obligated to disclose the identity of any potential
purchaser or have any liability to the Company in the event any such purchase is not consummated
for any reason. This Agreement shall not give rise to any commitment by the Placement Agent or any
of its affiliates to underwrite or purchase any of the Units. The Placement Agent shall have no
authority to bind the Company in respect of the sale of any Units, and in soliciting purchases of
Units, the Placement Agent shall act solely as the Company’s agent and not as principal.
Notwithstanding the foregoing and except as otherwise provided herein, it is understood and agreed
that the Placement Agent (or its affiliates) may, solely at its discretion and without any
obligation to do so, purchase Units as principals; provided, however, the Placement Agent shall not
receive any compensation from the Company for such purchases.



Subject to the provisions of this Section 1, offers for the purchase of Units may be
solicited by the Placement Agent as agent for the Company at such times and in such amounts as the
Placement Agent deems advisable. The Placement Agent shall communicate to the Company each
reasonable offer or indication of interest received by it to purchase Units. The Company shall
have the sole right to accept offers to purchase the Units and may reject any such offer in whole
or in part.



2. Payment and Delivery. Subject to the terms and conditions hereof, payment of the purchase
price for, and delivery of certificates for, the Units shall be made at the office of Dechert LLP,
Cira Centre, 2929 Arch Street, Philadelphia, Pennsylvania 19104-2808 (or at such other place as
shall be agreed upon by the Placement Agent and the Company), at 10:00 A.M., New York City time, on
March 2, 2010 (unless another time shall be agreed to by the Placement Agent and the Company). The
Units are being sold to the Investors at a price of $3.74 per Unit. Subject to the terms and
conditions hereof, payment of the purchase price for the Units shall be made to the Company by
Federal Funds wire transfer, against delivery of electronic certificates for the Common Stock
included in the Units, through the facilities of The Depository Trust Company (“DTC”), to such
persons, and shall be registered in the name or names of the Investors and shall be in such
denominations, as are requested at least two days prior to the date of closing by written notice to
the Company. The executed Warrant included in the Units purchased by the Investor shall be
delivered in accordance with the terms thereof. Payment of the purchase price for the Units shall
be made by the Investors pursuant to the terms of the Subscription Agreements. The time at which
such delivery is to be made is hereinafter sometimes called “the time of purchase.” Electronic
transfer of the Units shall be made at the time of purchase.


 


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No Units which the Company has agreed to sell pursuant to this Agreement and the Subscription
Agreements shall be deemed to have been purchased and paid for, or sold by the Company, until such
Units shall have been delivered to the Investor thereof against payment by such Investor. If the
Company shall default in its obligations to deliver the Units to an Investor whose offer it has
accepted, the Company shall indemnify and hold the Placement Agent harmless against any loss,
claim, damage or expense arising from or as a result of such default by the Company in accordance
with the procedures set forth in Section 9(c).



Prior to the Closing (as defined below), each Investor shall deposit into the Escrow Account
or, with the prior consent of the Company and the Placement Agent, make alternative arrangements
for the payment directly to the Company of, an amount equal to the product of (i) the number of
Units such Investor has agreed to purchase and (ii) the purchase price per Unit as set forth in the
Subscription Agreements (the “Purchase Amount”). The aggregate of such Purchase Amounts deposited
with the Escrow Agent is herein referred to as the “Escrow Funds.” On the Closing Date (as defined
below), upon satisfaction or waiver of all of the conditions to Closing and pursuant to the terms
of this Agreement and the Subscription Agreements, (i) the Escrow Agent will disburse the Escrow
Funds to the Company and the Placement Agent as provided in this Agreement and the Escrow
Agreement, (ii) the Company shall cause the Common Stock to be delivered to the Investors who have
deposited their Purchase Amounts with the Escrow Agent, (iii) the Company shall cause to be
delivered to the Investor a Warrant to purchase a number of whole Warrant Shares and (iv) the
Company and any Investor who has made, with the consent of the Company and the Placement Agent,
alternative arrangements for the payment directly to the Company of the applicable Purchase Price,
shall consummate the transactions contemplated hereby in accordance with such alternative
arrangements.



Deliveries of the documents described in Section 7 with respect to the purchase of the
Units (the “Closing”) shall be made at the office of Dechert LLP, Cira Centre, 2929 Arch Street,
Philadelphia, Pennsylvania 19104-2808 (or at such other place as shall be agreed upon by the
Placement Agent and the Company) at 9:00 A.M., New York City time, on the date of the closing of
the purchase of the Units (the “Closing Date”).



3. Representations and Warranties of the Placement Agent. The Placement Agent represents and
warrants to and agrees with the Company that it has not distributed and will not, without the
Company’s consent, distribute, prior to the time of purchase, any Issuer Free Writing Prospectus as
defined in Rule 433 of the Securities Act other than the Issuer Free Writing Prospectuses listed on
Exhibit C.


 


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4. Representations and Warranties of the Company. The Company represents and warrants to and
agrees with the Placement Agent that:




(a) the Registration Statement has been declared effective under the Securities Act; no
stop order of the Commission preventing or suspending the use of the Basic Prospectus, the
Prospectus Supplement or the Prospectus or the effectiveness of the Registration Statement
has been issued and no proceedings for such purpose have been instituted or, to the
Company’s knowledge, are threatened by the Commission; the Company was eligible to use Form
S-3 on the date the Registration Statement was filed
and on every date on which there was a fundamental change (as referenced in Item 512 of
Regulation S-K) in the information set forth in the Registration Statement; no fundamental
change to the information set forth in the Registration Statement has occurred since the
date of the filing of the Company’s annual report on Form 10-K for the year ended December
31, 2008 except as contained in reports filed with or furnished to the Commission pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement or is contained in the Prospectus Supplement; such Registration
Statement at the date of this Agreement meets, and the offering of the Units complies with,
the requirements of Rule 415 under the Securities Act. The Registration Statement complied
when it became effective, complies and will comply, at the time of purchase, and the Basic
Prospectus, the Prospectus Supplement and the Prospectus complied as of their respective
dates, comply and will comply at the time of purchase in all material respects with the
requirements of the Securities Act (including said Rule 415); any statutes, regulations,
contracts or other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement have been and
will be so described or filed; the conditions to the use of Form S-3 have been satisfied;
and the Registration Statement (taking into account the documents incorporated by reference
therein) did not at the time of effectiveness, does not and will not at the time of purchase
contain an untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading, and the Basic
Prospectus, the Prospectus Supplement and the Prospectus (taking into account the documents
incorporated by reference therein) did not as of their respective dates, do not and will not
at the time of purchase contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and the documents
incorporated by reference in the Basic Prospectus, the Prospectus Supplement, the
Registration Statement and the Prospectus, at the time they became effective or were filed
with the Commission, complied in all material respects with the requirements of the Exchange
Act and did not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;




(b) the Disclosure Package (taking into account the documents incorporated by reference
therein) does not and at the time of purchase will not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;




(c) each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the time of purchase, as defined herein, did not, does not and will not
contain any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement (except in such case where newer information is
intended to update, replace or supersede the conflicted prior information and notice has
been or will promptly be given as specified in the immediately following sentence). If at
any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an
event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the
Registration Statement, the Company has promptly notified or will promptly notify the
Placement Agent and has promptly amended or will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict;


 


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(d) as of the Execution Time (with such date being used as the determination date for
purposes of this clause), the Company is not an Ineligible Issuer (as defined in Rule 405 of
the Securities Act);




(e) the Company has not distributed and will not distribute, prior to the time of
purchase, any offering material in connection with the offering and sale of the Units other
than the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the
Placement Agent (which consent shall not be unreasonably withheld) or listed in Exhibit
C or the Registration Statement;




(f) as of the date of this Agreement, the Company has an authorized and outstanding
capitalization as set forth or incorporated by reference in each of the Disclosure Package
and the Prospectus and, as of the time of purchase, the Company shall have an authorized and
outstanding capitalization as set forth in each of the Disclosure Package and the Prospectus
(subject, in each case, to the issuance of shares of Common Stock upon conversion of
existing convertible securities, the exercise of existing stock options disclosed as
outstanding in each of the Disclosure Package and the Prospectus and the grant of options
under existing stock option plans described in each of the Disclosure Package and the
Prospectus); all of the issued and outstanding shares of capital stock, including the Common
Stock, of the Company have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all federal and state securities laws
and were not issued in violation of any preemptive right, resale right, right of first
refusal or similar right;




(g) except as described in each of the Disclosure Package and the Prospectus, with
respect to the stock options (the “Stock Options”) granted pursuant to the stock-based
compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) each
Stock Option designated by the Company at the time of grant as an “incentive stock option”
under Section 422 of the Internal Revenue code of 1986, as amended (the “Code”) so
qualifies, (ii) each grant of a Stock Option was duly authorized no later than the date on
which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by
all necessary corporate action, including, as applicable, approval by the board of directors
of the Company (or a duly constituted and authorized committee thereof) and any required
stockholder approval by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and delivered by each party
thereto, (iii) each such grant was made in accordance with the terms of the Company Stock
Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements,
including the rules of NASDAQ, (iv) the per share exercise price of each Stock Option was
equal to or greater than the fair market value of a share of Common Stock on the applicable
Grant Date and (v) each such grant was accounted for in accordance with GAAP (as defined
below) in the financial statements of the Company and disclosed in the Company’s filings
with the Commission
in accordance with the Exchange Act and all other applicable laws; there is no and has
been no policy of the Company of granting Stock Options prior to, and the Company does not
otherwise coordinate the grant of Stock Options with, the release or other public
announcements of material information regarding the Company or its subsidiaries or their
results of operations;


 


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(h) the Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with the requisite corporate power
and authority to own, lease and operate its properties and conduct its business as described
or incorporated by reference in each of the Disclosure Package and the Prospectus;




(i) each subsidiary of the Company (collectively, the “Subsidiaries”) has been duly
organized and is validly existing and is in good standing under the laws of its jurisdiction
of organization, with the requisite power and authority to own, lease and operate its
properties and conduct its business as described or incorporated by reference in each of the
Disclosure Package and the Prospectus, and all of the issued shares of each Subsidiary have
been duly and validly authorized and issued, are fully paid and are non-assessable and are
owned directly or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims except (i) for liens and encumbrances specifically referenced in the
financial statements of the Company, (ii) as described in each of the Disclosure Package and
the Prospectus or (iii) as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect (as defined below);




(j) each of the Company and its Subsidiaries is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would not, individually or in the
aggregate, have or reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or in the earnings, prospects, business or operations of
the Company (a “Material Adverse Effect”);




(k) complete and correct copies of the certificate of incorporation and the bylaws, of
the Company and its Subsidiaries and all amendments thereto have been made available to the
Placement Agent, and no changes therein will be made prior to the time of purchase;




(l) the shares of Common Stock to be issued and sold by the Company to the Investors
under the Subscription Agreements and the Warrant Shares have been duly authorized and, when
issued and paid for in accordance with the terms of this Agreement, the Subscription
Agreement and the Warrant, will be validly issued, fully paid and non-assessable and free of
any violation of statutory or contractual preemptive rights, resale rights, rights of first
refusal or similar rights;




(m) the capital stock of the Company, including the Shares and the Warrant Shares,
conforms in all material respects to the description thereof contained in each of the
Disclosure Package and the Prospectus;


 


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(n) the Company has the full right, power and authority to enter into this Agreement,
each of the Subscription Agreements and the Escrow Agreement, and to perform and to
discharge its obligations hereunder and thereunder; and each of this Agreement, each of the
Subscription Agreements and the Escrow Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms, except (i) as limited by laws of general
application relating to bankruptcy, insolvency and the relief of debtors; (ii) as limited by
rules of law governing specific performance, injunctive relief or other equitable remedies
and by general principles of equity; and (iii) to the extent any indemnification provisions
contained therein may further be limited by applicable laws and principles of public policy;




(o) neither the Company nor its Subsidiaries is in breach or violation of or in default
under (nor has any event occurred which with notice, lapse of time or both would result in
any breach or violation of, constitute a default under or give the holder of any
indebtedness (or a person acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness under) its (i)
certificate of incorporation or bylaws or similar organizational documents of the
Subsidiaries, or (ii) any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company is a party or by which it or any of its properties may be
bound or affected, except, in the case of clause (ii) above, where such breach, violation or
default would not, individually or in the aggregate, have a Material Adverse Effect, and the
execution, delivery and performance of this Agreement, and the consummation of the
transactions contemplated hereby will not conflict with, result in any breach or violation
of or constitute a default under (nor constitute any event which with notice, lapse of time
or both would result in any breach or violation of or constitute a default under or give the
holder of any indebtedness (or a person acting on such holder’s behalf) the right to require
the repurchase, redemption or repayment of all or a part of such indebtedness under) (x) the
certificate of incorporation or bylaws of the Company or similar organizational documents of
the Subsidiaries, (y) any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, license, lease, contract or other agreement or instrument
to which the Company or any Subsidiary is a party or by which any of them or any of its
properties may be bound or affected, or (z) any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or any
Subsidiary, except, in the case of clauses (y) and (z) above, where such breach, violation
or default, would not, individually or in the aggregate, have a Material Adverse Effect;


 


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(p) no approval, authorization, consent or order of or filing with any federal, state,
local or foreign governmental or regulatory commission, board, body, authority or agency or
of or with NASDAQ, or approval of the stockholders of the Company, is required in connection
with the sale by the Company of the Units or the consummation by the Company of the
transactions contemplated hereby other than (i) filings or applications with NASDAQ, (ii)
filings with the Commission in relation to the registration of the Offering under the
Securities Act and the offer and sale of the Units (iii) any necessary qualification under
the securities or blue sky laws of the various
jurisdictions in which the Units are being offered under the terms of this Agreement or
under the rules and regulations of the Financial Industry Regulatory Authority (“FINRA”) and
(iv) such notices or filings that would not individually or in the aggregate have a Material
Adverse Effect;




(q) except as set forth in the Disclosure Package and the Prospectus, (i) no person has
the right, contractual or otherwise, to cause the Company to issue or sell to it any shares
of Common Stock or shares of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale rights, rights of first refusal or
other rights to purchase any shares of Common Stock or shares of any other capital stock or
other securities of the Company, and (iii) except as provided herein, no person has the
right to act as an underwriter, placement agent or financial advisor to the Company in
connection with the offer and sale of the Units, in the case of each of the foregoing
clauses (i), (ii) and (iii), whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Units as contemplated thereby or otherwise and
except, in each case, for such rights as have been duly and validly satisfied or waived;
except as disclosed in each of the Disclosure Package and the Prospectus, no person has the
right, contractual or otherwise, to cause the Company to register under the Securities Act
any shares of Common Stock or shares of any other capital stock or other securities of the
Company, or to include any such shares or interests in the Registration Statement or the
offering contemplated thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Units as contemplated thereby or otherwise other
than such rights as have been duly and validly satisfied or waived;




(r) each of the Company and its Subsidiaries has all licenses, authorizations, consents
and approvals and has made all filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all authorizations, consents and approvals from
other persons, necessary in order to conduct its business as described in each of the
Disclosure Package and the Prospectus except where such failure to do so would not,
individually or in the aggregate, have a Material Adverse Effect; neither the Company nor
its Subsidiaries is in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such license, authorization,
consent or approval or any federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Company or its Subsidiaries, except where such
violation, default, revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect;


 


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(s) the preclinical and clinical trials conducted by or on behalf of the Company that
are described in the Disclosure Package and the Prospectus were and, if still pending, are
being conducted in all material respects in accordance with procedures and controls pursuant
to accepted professional scientific standards and all applicable local, state and federal
and foreign laws, rules, regulations and published guidance, including, but not limited to,
the Federal Food, Drug and Cosmetic Act and implementing regulations at 21 C.F.R. Parts 50,
54, 56, 58 and 312; the Company has orally, to the Placement Agent or to counsel to the
Placement Agent, fairly summarized in all material respects the substance of all of its
material communications with representatives of the U.S. Food and Drug Administration or any
foreign, state or local governmental body
exercising comparable authority and has no knowledge of any pending communication from
the U.S. Food and Drug Administration or any foreign, state or local governmental body
exercising comparable authority that would cause the Company to materially revise in an
adverse way its strategy for seeking marketing approval from the U.S. Food and Drug
Administration or any foreign, state or local governmental body exercising comparable
authority for any of the Company’s products under development as described in the Disclosure
Package; the descriptions of the results of such studies, tests and trials contained in the
Disclosure Package and the Prospectus are accurate and complete in all material respects;
other than as described in the Disclosure Package, the Company is not aware of any studies,
tests or trials the results of which reasonably call into question the clinical trial
results described or referred to in the Prospectus when viewed in the context in which such
results are described and the clinical state of development; and other than as described in
the Disclosure Package, the Company has not received any written notices or correspondence
from the U.S. Food and Drug Administration or any foreign, state or local governmental body
exercising comparable authority requiring the termination or suspension of any preclinical
or clinical trials conducted by or on behalf of the Company;




(t) all legal or governmental proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents of a character required
to be described under the Securities Act in each of the Disclosure Package and the
Prospectus or to be filed as an exhibit to the Registration Statement have been so described
or filed as required;




(u) except as disclosed in each of the Disclosure Package and the Prospectus, there are
no actions, suits, claims, investigations or proceedings pending or, to the Company’s
knowledge, threatened to which the Company or any of its Subsidiaries or any of their
directors or officers is or would be a party or of which any of its properties is or would
be subject at law or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency, except any such
action, suit, claim, investigation or proceeding which would not, if determined adversely to
the Company, result in a judgment, decree or order having, individually or in the aggregate,
a Material Adverse Effect or prevent consummation of the transactions contemplated hereby;




(v) Ernst & Young LLP, whose report on the financial statements of the Company is filed
with the Commission as part of the Registration Statement and the Prospectus, is an
independent registered public accounting firm as required by the Securities Act. Except as
pre-approved in accordance with the requirements set forth in Section 10A of the Exchange
Act, Ernst & Young LLP have not been engaged by the Company to perform any “prohibited
activities” (as defined in Section 10A of the Exchange Act);


 


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(w) the audited financial statements included or incorporated by reference in the
Registration Statement and included or incorporated by reference in the Disclosure Package
and the Prospectus, together with the related notes and schedules, present fairly in all
material respects the consolidated financial position of the Company as of the dates
indicated and the results of operations and cash flows of the Company for the periods
specified subject, in the case of unaudited interim statements, to normal, year-end
audit adjustments and have been prepared in compliance with the requirements of the
Securities Act and in conformity with, generally accepted accounting principles in the
United States as applied by the Company on a consistent basis during the periods involved
(“GAAP”), except (i) as may be otherwise specified in such financial statements or the notes
thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements; the other financial data of the Company
set forth in the Registration Statement, the Disclosure Package and the Prospectus are
accurately presented and prepared on a basis consistent with the financial statements and
books and records of the Company; there are no financial statements (historical or pro
forma) that are required by the Securities Act to be included in the Registration Statement,
the Disclosure Package and the Prospectus that are not included as required by the
Securities Act; and the Company does not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not disclosed in the
Registration Statement, the Disclosure Package or the Prospectus;




(x) subsequent to the respective dates as of which information is given or incorporated
by reference in the Disclosure Package, there has not been (i) any material adverse change,
or any development that could reasonably be expected to result in a prospective material
adverse change, in the condition, financial or otherwise, or in the earnings, business,
prospects or operations, whether or not arising from transactions in the ordinary course of
business, of the Company, (ii) any transaction which is material to the Company, except
obligations incurred in the ordinary course of business consistent with past practice, (iii)
any obligation, direct or contingent (including any off-balance sheet obligations), incurred
by the Company, which is material to the Company, except obligations incurred in the
ordinary course of business consistent with past practice, (iv) any material change in the
capital stock of the Company or (v) any dividend or distribution of any kind declared, paid
or made on the capital stock of the Company;




(y) the Company is not an “investment company” or an entity “controlled” by an
“investment company,” as such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”), nor is the Company a “passive foreign investment
company” or a “controlled foreign corporation” as such terms are defined in the Internal
Revenue Code;




(z) except as described in each of the Disclosure Package and the Prospectus, the
Company and its Subsidiaries have good and marketable title to all material property (real
and personal) described in the Disclosure Package and the Prospectus as being owned by each
of them, free and clear of all liens, claims, security interests or other encumbrances, or
subject only to liens, claims, security interests or other encumbrances (i) specifically
referenced in the financial statements of the Company; (ii) that are disclosed in the
Disclosure Package or the Prospectus, or (iii) that do not individually or in the aggregate
materially affect the value of such property or materially interfere with the use made of
such property by the Company and its Subsidiaries; and all the property described in the
Disclosure Package and the Prospectus as being held under lease by the
Company is held thereby under valid, subsisting and enforceable leases except as would
not reasonably be expected to result in a Material Adverse Effect;


 


11









 






(aa) except as described in the Disclosure Package and the Prospectus, the Company and
its Subsidiaries own, or has obtained valid and enforceable licenses for, or other rights to
use, the inventions, patent applications, patents, trademarks (both registered and
unregistered), tradenames, copyrights, trade secrets and other proprietary information
(collectively, “Intellectual Property”) described in the Disclosure Package and the
Prospectus as being owned or licensed by it, except where such failure to do so would not,
individually or in the aggregate, have a Material Adverse Effect; to the Company’s knowledge
and except as described in the Disclosure Package and the Prospectus, the Company and its
Subsidiaries own, or has obtained valid and enforceable licenses for, or other rights to
use, all Intellectual Property used in, or necessary for the conduct of, its business as
described in the Disclosure Package and the Prospectus except as would not reasonably be
expected to result in a Material Adverse Effect; to the Company’s knowledge, there is no
pending or threatened action, suit, proceeding or claim by others that the Company or any of
its Subsidiaries infringes or otherwise violates any Intellectual Property rights of others,
except as could not reasonably be expected to have a Material Adverse Effect, and the
Company is unaware of any facts which could form a reasonable basis for any such claim; and
none of the technology employed by the Company or any of its Subsidiaries has been obtained
or is being used by the Company or any of its Subsidiaries in violation of any contractual
obligation binding on the Company or any of its Subsidiaries or, to the Company’s knowledge,
upon any of its officers, directors or employees except as would not reasonably be expected
to result in a Material Adverse Effect;




(bb) to the Company’s knowledge, there are no third parties who have rights to any
Intellectual Property described in the Disclosure Package or the Prospectus as owned or
exclusively licensed by the Company (“Exclusive Intellectual Property”), except as could not
reasonably be expected to have a Material Adverse Effect or except for licenses granted in
writing by the Company or its Subsidiaries to any third-parties; there is no pending or, to
the Company’s knowledge, threatened action, suit, proceeding or claim by others challenging
the Company’s ownership or rights in or to any Exclusive Intellectual Property, and the
Company is unaware of any facts which could form a reasonable basis for any such claim
except as would not reasonably be expected to have a Material Adverse Effect; there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any Exclusive Intellectual Property, and the
Company is unaware of any facts which could form a reasonable basis for any such claim
except as could not reasonably be expected to have a Material Adverse Effect;




(cc) to the Company’s knowledge, there is no patent that contains claims that interfere
with the issued or pending claims of any of the Company’s Intellectual Property except as
would not reasonably be expected to have a Material Adverse Effect; and to the Company’s
knowledge, there is no prior art material to any patent or patent application of the
Exclusive Intellectual Property that has not been disclosed to the U.S. Patent and
Trademark Office, except as would not reasonably be expected to have a Material Adverse
Effect;


 


12









 






(dd) the Company is not engaged in any unfair labor practice; except for matters which
would not, individually or in the aggregate, have a Material Adverse Effect, (i) there is
(A) no unfair labor practice complaint pending or, to the Company’s knowledge, threatened
against the Company or any Subsidiary before the National Labor Relations Board, and no
grievance or arbitration proceeding arising out of or under collective bargaining agreements
is pending or, to the Company’s knowledge, threatened, (B) no strike, labor dispute,
slowdown or stoppage pending or, to the Company’s knowledge, threatened against the Company
or any Subsidiary and (C) no union representation dispute currently existing concerning the
employees of the Company, and (ii) to the Company’s knowledge, (A) no union organizing
activities are currently taking place concerning the employees of the Company or any
Subsidiary and (B) there has been no violation of any federal, state, local or foreign law
relating to discrimination in the hiring, promotion or pay of employees, any applicable wage
or hour laws or any provision of the Employee Retirement Income Security Act of 1974
(“ERISA”) or the rules and regulations promulgated thereunder concerning the employees of
the Company or any Subsidiary;




(ee) the Company and its Subsidiaries and its properties, assets and operations are in
compliance with, and hold all permits, authorizations and approvals required to conduct its
business under, Environmental Laws (as defined below), except to the extent that failure to
so comply or to hold such permits, authorizations or approvals would not, individually or in
the aggregate, have a Material Adverse Effect; there are no past, present or, to the
Company’s knowledge, reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that could reasonably be expected to give
rise to any material costs or liabilities to the Company or any Subsidiary under, or to
interfere with or prevent compliance by the Company with, Environmental Laws, except as
would not, individually or in the aggregate, have a Material Adverse Effect; the Company (i)
is not the subject of any investigation, (ii) has not received any notice or claim, (iii) is
not a party to or affected by any pending or threatened action, suit or proceeding, (iv) is
not bound by any judgment, decree or order or (v) has not entered into any agreement, in
each case relating to any alleged violation of any Environmental Law or any actual or
alleged release or threatened release or cleanup at any location of any Hazardous Materials
(as defined below) and in each case except as would not, individually or in the aggregate,
have a Material Adverse Effect (as used herein, “Environmental Law” means any federal,
state, local or foreign law, statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding requirement, or common law
related to the protection of the environment, including ambient air, surface water,
groundwater or land, or Hazardous Materials, or emissions, discharges or releases of
Hazardous Materials into the environment, or otherwise relates to the handling of Hazardous
Materials or the investigation, clean-up or other remediation, in each case, that are
applicable to the business as conducted by the Company on the Execution Date, and “Hazardous
Materials” means any “hazardous substance,” “hazardous waste,” “pollutant,” “contaminant” or
“toxic substance” (as defined or regulated by any Environmental Law)
and also includes petroleum and petroleum products, polychlorinated biphenyls or
asbestos);


 


13









 






(ff) the Company (i) has timely filed all necessary federal, state, local and foreign
tax returns, and all such returns were true, complete and correct, (ii) has paid all
federal, state, local and foreign taxes, assessments, governmental or other charges due and
payable for which it is liable, including, without limitation, all sales and use taxes and
all taxes which the Company is obligated to withhold from amounts owing to employees,
creditors and third parties, and (iii) does not have any tax deficiency or claims
outstanding or assessed or, to its knowledge, proposed against any of them, except those, in
each of the cases described in clauses (i), (ii) and (iii) of this paragraph (ff),
that would not, singularly or in the aggregate, reasonably be expected to have a Material
Adverse Effect; the Company has not engaged in any transaction which to the Company’s
knowledge a corporate tax shelter or could be characterized as such by the Internal Revenue
Service or any other taxing authority; the accruals and reserves on the books and records of
the Company in respect of tax liabilities for any taxable period not yet finally determined
are adequate to meet any assessments and related liabilities for any such period, and since
December 31, 2008, the Company has not incurred any liability for taxes other than in the
ordinary course;




(gg) the Company and each of its Subsidiaries maintain insurance covering its
properties, operations, personnel and businesses as the Company or such Subsidiary deems
appropriate; such insurance insures against such losses and risks to an extent which is
adequate and customary for the business and the locations in which the Company or such
Subsidiary is engaged; all such insurance is fully in force on the date hereof and the
Company or such Subsidiary has no reason to believe that such insurance will not be fully in
force at the time of purchase; the Company has not received any notice and has no reason to
believe that it will not be able (i) to renew its existing insurance coverage as and when
such policies expire or (ii) to obtain comparable coverage from similar institutions as may
be necessary or appropriate to conduct its business as now conducted and at a cost that
would not result in a Material Adverse Effect; the Company has not been denied any insurance
coverage that it has sought or for which it has applied;




(hh) except as otherwise disclosed in the Disclosure Package, the Company maintains (i)
effective internal control over financial reporting as defined in Rule 13a-15 under the
Exchange Act, as amended, and (ii) a system of internal accounting controls sufficient to
provide reasonable assurance that (A) transactions are executed in accordance with
management’s general or specific authorizations; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (C) access to assets is
permitted only in accordance with management’s general or specific authorization; and (D)
the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences;


 


14









 






(ii) except as disclosed in the Disclosure Package and Prospectus, since the end of the
Company’s most recent audited fiscal year, there has been (i) no material weakness in design
or operation of the Company’s internal control over financial reporting (whether or not
remediated) which are not reasonably likely to adversely affect the Company’s ability to
record, process, summarize and report financial information and (ii) no change in the
Company’s internal control over financial reporting that has materially adversely affected,
or is reasonably likely to materially adversely affect, the Company’s internal control over
financial reporting;




(jj) the Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act); the principal
executive officers (or their equivalents) and principal financial officers (or their
equivalents) of the Company have made all certifications required by the Sarbanes-Oxley Act
of 2002 and any related rules and regulations promulgated by the Commission (the
“Sarbanes-Oxley Act”), and the statements contained in any such certification are complete
and correct; and the Company is otherwise in compliance in all material respects with all
applicable provisions of the Sarbanes-Oxley Act that are effective;




(kk) neither the Company nor any of its Subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment;




(ll) the operations of the Company and its Subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened;




(mm) none of the Company, any of its Subsidiaries or, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will
not, directly or indirectly, use the proceeds of the offering of the Units hereunder, or
lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC;


 


15









 






(nn) neither the Company nor any Subsidiary nor, to the Company’s knowledge, any of its
directors, officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Units;




(oo) the minute books of the Company have been made available to the Placement Agent
and counsel for the Placement Agent, and such books (i) contain a complete and accurate
summary of all meetings and actions of the board of directors (including each board
committee) and stockholders of the Company (or analogous governing bodies and interest
holders, as applicable), since October 12, 2006 through February 12, 2010, and (ii)
accurately in all material respects reflect all transactions referred to in such minutes;




(pp) there is no franchise, lease, contract, agreement or document required by the
Securities Act to be described in the Disclosure Package and in the Prospectus or to be
filed as an exhibit to the Registration Statement or a document incorporated by reference
therein which is not described or filed therein as required; and all descriptions of any
such franchises, leases, contracts, agreements or documents contained in the Disclosure
Package and in the Prospectus are accurate descriptions of such documents in all material
respects, which descriptions are sufficiently comprehensive to fulfill the Company’s
obligations under applicable law with respect to thereto; other than as described in the
Disclosure Package, no such franchise, lease, contract or agreement has been suspended or
terminated for convenience or default by the Company or any of the other parties thereto,
and the Company has not received notice nor does the Company have any other knowledge of any
such pending or threatened suspension, termination or non-renewal, except for such pending
or threatened suspensions, terminations or non-renewals that would not reasonably be
expected to, singularly or in the aggregate, have a Material Adverse Effect;




(qq) no relationship, direct or indirect, exists between or among the Company on the
one hand, and the directors, officers, stockholders, customers or suppliers of the Company
or any of its affiliates on the other hand, which is required under the rules and
regulations of the Securities Act or the Exchange Act to be described in the Disclosure
Package and the Prospectus and which is not so described;




(rr) no person or entity has the right to require registration of shares of Common
Stock or other securities of the Company because of the filing or effectiveness of the
Registration Statement or the sale of the Units, except for persons and entities who have
expressly waived such right in writing or who have been given timely and proper written
notice and have failed to exercise such right within the time or times required under the
terms and conditions of such right. Except as described in the Disclosure Package, there are
no persons with registration rights or similar rights to have any securities registered by
the Company under the Securities Act;


 


16









 






(ss) the Company does not own any “margin securities” as that term is defined in
Regulation U of the Board of Governors of the Federal Reserve System (the “Federal Reserve
Board”), and none of the proceeds of the sale of the Units will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security, for the purpose
of reducing or retiring any indebtedness which was originally incurred to purchase or carry
any margin security or for any other purpose which might cause any of the Units to be
considered a “purpose credit” within the meanings of Regulation T, U or X of the Federal
Reserve Board;




(tt) except for payments contemplated by this Agreement, the Registration Statement,
the Disclosure Package or the Prospectus, the Company is not a party to any contract,
agreement or understanding with any person that would give rise to a valid claim against the
Company or the Placement Agent for a brokerage commission, finder’s fee or like payment in
connection with the offering and sale of the Units;




(uu) no forward-looking statement (within the meaning of Section 27A of the Securities
Act and Section 21E of the Exchange Act) contained in either the Disclosure Package or the
Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith;




(vv) the Company is subject to and in compliance in all material respects with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act. The Common Stock
is registered pursuant to Section 12(b) of the Exchange Act and is listed on NASDAQ, and the
Company has taken no action designed to, or reasonably likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or delisting the
Common Stock from NASDAQ, nor has the Company received any notification that the Commission
or NASDAQ is contemplating terminating such registration or listing; no consent, approval,
authorization or order of, or filing, notification or registration with, NASDAQ is required
for the listing and trading of the shares of Common Stock on NASDAQ, except for (i) a
Notification: Listing of Additional Shares and (ii) a Notification: Change in the Number of
Shares Outstanding;




(ww) the Company is in compliance in all material respects with all corporate
governance requirements set forth in the rules promulgated by NASDAQ applicable to the
Company;




(xx) there are no transactions, arrangements or other relationships between and/or
among the Company, any of its affiliates (as such term is defined in Rule 405 of the
Securities Act) and any unconsolidated entity, including, but not limited to, any structured
finance, special purpose or limited purpose entity that would reasonably be expected to
materially affect the Company’s liquidity or the availability of or requirements for its
capital resources required to be described in the Disclosure Package and the Prospectus
which have not been described as required;




(yy) there are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees or indebtedness by the Company to
or for the benefit of any of the officers or directors of the Company, or
any of their respective family members, except as disclosed in the Registration
Statement, the Disclosure Package and the Prospectus;


 


17









 






(zz) the statistical and market related data included in the Registration Statement,
the Disclosure Package and the Prospectus are based on or derived from sources that the
Company believes to be reliable and accurate, and such data agree with the sources from
which they are derived;




(aaa) to the Company’s knowledge, neither the Company nor any of its affiliates (within
the meaning of NASD Conduct Rule 2720(b)(1)(a)) directly or indirectly controls, is
controlled by, or is under common control with, or is an associated person (within the
meaning of Article I, Section 1(ee) of the By-laws of the NASD) of, any member firm of
FINRA; and




(bbb) no approval of the stockholders of the Company under the rules and regulations of
NASDAQ is required for the Company to issue and deliver to the Investors the Units.



In addition, any certificate signed by any officer of the Company and delivered to the
Placement Agent or counsel for the Placement Agent in connection with the closing of the sale of
the Units shall be deemed to be a representation and warranty by the Company, as to the matters
covered thereby, to the Placement Agent.




5. Certain Covenants of the Company. The Company hereby agrees:




(a) to prepare the Prospectus Supplement containing information previously omitted at
the time of effectiveness of the Registration Statement in reliance on rules 430A, 430B and
430C of the Securities Act and to file such Prospectus Supplement pursuant to Rule 424(b) of
the Securities Act not later than the second (2nd) business day following the
execution and delivery of this Agreement or, if applicable, such earlier time as may be
required by Rule 430A of the Securities Act; to notify the Placement Agent promptly of the
Company’s intention to file or prepare any supplement or amendment to the Registration
Statement or to the Prospectus and to provide a draft of any such amendment or supplement to
the Registration Statement, the Disclosure Package or to the Prospectus to the Placement
Agent within an amount of time that is reasonably practical to review under the
circumstances and prior to filing; to advise the Placement Agent, promptly after it receives
notice thereof, of the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Disclosure Package or the Prospectus or any
amended Prospectus has been filed and to furnish the Placement Agent copies thereof; to file
promptly all material required to be filed by the Company with the Commission pursuant to
Rule 433(d) or 163(b)(2) of the Securities Act, as the case may be; to file within the time
periods prescribed by the Exchange Act, including any extension thereof, all reports and any
definitive proxy or information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) of the Securities Act) is required in
connection with the
sale of the Units; to advise the Placement Agent, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Basic Prospectus, any Issuer Free Writing Prospectus or the
Prospectus, of the suspension of the qualification of the Units for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the Registration
Statement, the Disclosure Package or the Prospectus or for additional information; and, in
the event of the issuance of any stop order or of any order preventing or suspending the use
of any Basic Prospectus, any Issuer Free Writing Prospectus or the Prospectus or suspending
any such qualification, and promptly to use its best efforts to obtain the withdrawal of
such order;


 


18









 






(b) that it has not made, and will not make, any offer relating to the Units that would
constitute a “free writing prospectus” as defined in Rule 405 of the Securities Act unless
the prior written consent of the Placement Agent has been received (which consent shall not
be unreasonably delayed, withheld or conditioned) (each, a “Permitted Free Writing
Prospectus”); provided that the prior written consent of the Placement Agent hereto shall be
deemed to have been given in respect of the Issuer Free Writing Prospectus included in
Exhibit C. The Company represents that it has treated and agrees that it will treat
each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, comply with the
requirements of Rules 164 and 433 of the Securities Act applicable to any Issuer Free
Writing Prospectus, including the requirements relating to timely filing with the
Commission, legending and record keeping and will not take any action that would result in
the Placement Agent or the Company being required to file with the Commission pursuant to
Rule 433(d) of the Securities Act a free writing prospectus prepared by or on behalf of the
Placement Agent that the Placement Agent otherwise would not have been required to file
thereunder; the Placement Agent agrees that, unless it obtains the prior consent of the
Company, it will not make any offer relating to the Units that would constitute a “free
writing prospectus” as defined in Rule 405 of the Securities Act other than a free writing
prospectus that contains no “issuer information” as defined in Rule 433(h)(2) under the
Securities Act that was not included in the Prospectus (including through incorporation by
reference);




(c) if at any time when a Prospectus relating to the Units is required to be delivered
under the Securities Act, any event occurs or condition exists as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, or the
Registration Statement, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein
not misleading, or if for any other reason it is necessary at any time to amend or
supplement any Registration Statement or the Prospectus to comply with the Securities Act or
the Exchange Act, the Company will promptly notify the Placement Agent, and upon the
Placement Agent’s request, the Company will promptly prepare and file with the Commission,
at the Company’s expense, an amendment to the Registration Statement or an amendment or
supplement to the Prospectus that corrects such statement or omission or effects such
compliance and will deliver to the Placement
Agent, without charge, such number of copies thereof as the Placement Agent may
reasonably request. The Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Placement Agent;


 


19









 






(d) if the Disclosure Package is being used to solicit offers to buy the Units at a
time when the Prospectus is not yet available to prospective purchasers and any event shall
occur as a result of which, in the judgment of the Company or in the opinion of the
Placement Agent, it becomes necessary to amend or supplement the Disclosure Package in order
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or to make the statements therein not conflict with the information
contained or incorporated by reference in the Registration Statement then on file and not
superseded or modified, or if it is necessary at any time to amend or supplement the
Disclosure Package to comply with any law, the Company promptly will either (i) prepare,
file with the Commission (if required) and furnish to the Placement Agent and any dealers an
appropriate amendment or supplement to the Disclosure Package or (ii) prepare and file with
the Commission an appropriate filing under the Exchange Act which shall be incorporated by
reference in the Disclosure Package so that the Disclosure Package as so amended or
supplemented will not, in the light of the circumstances under which they were made, be
misleading or conflict with the Registration Statement then on file, or so that the
Disclosure Package will comply with law;




(e) if at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or will conflict with the information contained in the Registration
Statement or Prospectus, including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof and not superseded or modified or included
or would include an untrue statement of a material fact or omitted or would omit to state a
material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading, the
Company has promptly notified or will promptly notify the Placement Agent (and the Placement
Agent agrees to cease any such use promptly upon such notification) so that any use of the
Issuer Free Writing Prospectus may cease until it is amended or supplemented and has
promptly amended or will promptly amend or supplement, at its own expense, such Issuer Free
Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The
foregoing sentence does not apply to statements in or omissions from any Issuer Free Writing
Prospectus in reliance upon, and in conformity with, written information furnished to the
Company by the Placements Agent specifically for inclusion therein, which information the
parties hereto agree is limited to the Placement Agent’s Information (as defined in
Section 18);




(f) to the extent not available on EDGAR, furnish promptly to the Placement Agent and
to counsel for the Placement Agent a signed copy of the Registration Statement as originally
filed with the Commission, and of each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;


 


20









 






(g) to the extent not available on EDGAR, to deliver promptly to the Placement Agent in
New York City such number of the following documents as the Placement Agent shall reasonably
request: (i) conformed copies of the Registration Statement as originally filed with the
Commission (in each case excluding exhibits), (ii) the Basic Prospectus (iii) any Issuer
Free Writing Prospectus, (iv) the Prospectus (the delivery of the documents referred to in
clauses (i), (ii), (iii) and (iv) of this paragraph (g) to be made not later than 10:00
A.M., New York time, on the business day following the execution and delivery of this
Agreement), (v) conformed copies of any amendment to the Registration Statement (excluding
exhibits), (vi) any amendment or supplement to the Disclosure Package or the Prospectus (the
delivery of the documents referred to in clauses (v) and (vi) of this paragraph (g) to be
made not later than 10:00 A.M., New York City time, on the business day following the date
of such amendment or supplement) and (vii) any document incorporated by reference in the
Disclosure Package or the Prospectus (excluding exhibits thereto) (the delivery of the
documents referred to in clause (vi) of this paragraph (g) to be made not later than 10:00
A.M., New York City time, on the business day following the date of such document);




(h) to make available to its stockholders as soon as practicable, but in any event not
later than eighteen (18) months after the effective date of each Registration Statement (as
defined in Rule 158(c) of the Securities Act), an earnings statement of the Company (which
need not be audited) complying with Section 11(a) of the Securities Act (including, at the
option of the Company, Rule 158 of the Securities Act);




(i) to take promptly from time to time such actions as the Placement Agent may
reasonably request to qualify the Units for offering and sale under the securities or Blue
Sky laws of such jurisdictions (domestic or foreign) as the Placement Agent may designate
and to continue such qualifications in effect, and to comply with such laws, for so long as
required to permit the offer and sale of the Units in such jurisdictions; provided that the
Company shall not be obligated to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to file a general consent to service of process in any
jurisdiction;




(j) whether or not the transactions contemplated by this Agreement are consummated or
this Agreement is terminated, to reimburse the Placement Agent promptly upon request for all
reasonable out-of-pocket expenses (including, without limitation, reasonable fees,
disbursements and other charges of legal counsel and other experts) and to pay all of the
Company’s costs, expenses, fees and taxes in connection with (i) this Agreement and any of
the transactions contemplated hereby, (ii) the preparation and filing of the Registration
Statement, the Basic Prospectus, each Prospectus Supplement, the Prospectus, any electronic
road show and any amendments or supplements thereto and each Issuer Free Writing Prospectus,
and the printing and furnishing of copies of each thereof to the Placement Agent and the
Investors (including costs of mailing and shipment), (iii) the producing, word processing
and/or printing of this Agreement and the reproduction and/or printing and furnishing of
copies of each thereof to the Placement Agent and the Investors, (iv) the qualification of
the Units for offering and sale under state or foreign laws and the determination of their
eligibility for investment under state or foreign law as aforesaid (including the reasonable
legal fees
and filing fees and other disbursements of counsel for the Placement Agent) and the
printing and furnishing of copies of any blue sky surveys or legal investment surveys to the
Placement Agent and to dealers, (v) the fees and disbursements of any transfer agent or
registrar for the Units, (vi) the fees and expenses incurred in connection with securing any
required review by FINRA of the terms of the sale of the Units and any filings made with
FINRA; and (vii) all other costs and expenses incident to the offering of the Units or the
performance of the obligations of the Company under this Agreement (including, without
limitation, the fees and expenses of the Company’s counsel and the Company’s independent
accountants and the travel and other reasonable, documented expenses incurred by Company
personnel in connection with any “road show” including, without limitation, any expenses
advanced by the Placement Agent on the Company’s behalf);


 


21









 






(k) not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, any Common Stock or securities convertible into or exchangeable or exercisable
for Common Stock or other rights to purchase Common Stock or any other securities of the
Company that are substantially similar to Common Stock, or file or cause to be declared
effective a registration statement under the Securities Act (except for registration
statements on Form S-8) relating to the offer and sale of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock or other rights
to purchase Common Stock or any other securities of the Company that are substantially
similar to Common Stock for a period of 90 days after the date hereof (the “Lock-Up
Period”), without the prior written consent of the Placement Agent, except for (i) the
Company’s sale of the Units, Shares and Warrants as contemplated hereunder, (ii) issuances
of Common Stock upon the exercise of options, convertible securities disclosed as
outstanding or as may be required to be issued pursuant to agreements or other documents
described in each of the Disclosure Package and the Prospectus, and (iii) the issuance of
stock options to employees, directors and other service providers not exercisable during the
Lock-Up Period pursuant to stock option and employee plans described in each of the
Disclosure Package and the Prospectus; if (i) the Company issues an earnings release or
material news, or a material event relating to the Company occurs, during the last 17 days
of the Lock-Up Period, or (ii) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period beginning on the
last day of the Lock-Up Period, the restrictions imposed by this agreement shall continue to
apply until the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event, unless the Placement Agent
waives, in writing, such extension; the Company shall provide notice to the Placement Agent
of any event that would result in an extension of the Lock-Up Period to the Placement Agent;




(l) to (i) on or before 8:30 a.m., New York time, on the first business day following
execution of this Agreement (or at such other time as the parties may agree), (A) issue a
press release reasonably acceptable to the Placement Agent disclosing all material terms of
the transactions contemplated hereby, and (B) file the Prospectus Supplement with the
Commission pursuant to 424(b) under the Securities Act, and (ii) on the first business day
following execution of this Agreement, to file a Current Report on Form 8-K with the
Commission (the “8-K Filing”) describing the terms of the
transactions contemplated by this Agreement and including this Agreement as an exhibit
to the 8-K Filing, in the form required by the Exchange Act;


 


22









 






(m) to the extent not available on EDGAR (or any successor system), upon request,
during the period of five (5) years from the date hereof, to deliver to the Placement Agent,
(i) as soon as they are available, copies of all reports or other communications furnished
to stockholders, and (ii) as soon as they are available, copies of any reports and financial
statements furnished or filed with the Commission or any national securities exchange or
automatic quotation system on which the Units are listed or quoted;




(n) to supply the Placement Agent with copies of all correspondence to and from, and
all documents issued to and by, the Commission in connection with (i) the registration of
the Units under the Securities Act, (ii) the Registration Statement, (iii) the Prospectus or
(iv) any amendment or supplement thereto or document incorporated by reference therein, in
each case where such correspondence and documents are related to the Units or the Offering;




(o) prior to the time of purchase, not to issue any press release or other
communication directly or indirectly or hold any press conference with respect to the
Company, its condition, financial or otherwise, or earnings, business affairs or business
prospects (except for routine oral communications regarding the Company’s business in the
ordinary course of its business and consistent with the past practices of the Company and of
which the Placement Agent are notified), without the prior written consent of the Placement
Agent (which consent shall not be unreasonably delayed, withheld or conditioned), unless in
the judgment of the Company, and after notification to the Placement Agent, such press
release or communication is required by law;




(p) until the Placement Agent shall have notified the Company of the completion of the
offering of the Units, that the Company will not, and will cause its affiliated purchasers
(as defined in Regulation M under the Exchange Act) not to, either alone or with one or more
other persons, bid for or purchase, for any account in which it or any of its affiliated
purchasers has a beneficial interest, any Units, or attempt to induce any person to purchase
any Units; and not to, and to cause its affiliated purchasers not to, make bids or purchase
for the purpose of creating actual, or apparent, active trading in or of raising the price
of the Units;




(q) to apply the net proceeds from the sale of the Units as set forth in the
Registration Statement, the Disclosure Package and the Prospectus under the heading “Use of
Proceeds”;




(r) to use commercially reasonable efforts to list the Shares and the Warrant Shares on
NASDAQ;




(s) to use commercially reasonable efforts to assist the Placement Agent and its
counsel with any filings with FINRA and obtaining clearance from FINRA as to the amount of
compensation allowable or payable to the Placement Agent;


 


23









 






(t) unless this Agreement is terminated in accordance with its terms, to use
commercially reasonable efforts to do and perform all things required to be done or
performed under this Agreement by the Company prior to the time of purchase and to satisfy
all conditions precedent to the delivery of the Units;




(u) to maintain a transfer agent and, if necessary under the jurisdiction of
incorporation of the Company, a registrar for the Common Stock; and




(v) if, at the time this Agreement is executed and delivered, it is necessary for a
post-effective amendment to the Registration Statement to be declared effective before the
Offering may commence, the Company will endeavor to cause such post-effective amendment to
become effective as soon as possible and will advise the Placement Agent promptly and, if
requested by the Placement Agent, will confirm such advice in writing, when such
post-effective amendment has become effective.



6. Reimbursement of Placement Agent’s Expenses. Notwithstanding anything to the contrary in
this Agreement, if (a) this Agreement shall have been terminated pursuant to Section 8, (b)
the Company shall fail to tender the Units for delivery to the Investors for any reason not
permitted under this Agreement, (c) the Investors shall decline to purchase the Units for any
reason permitted under this Agreement or (d) the sale of the Units is not consummated because any
condition to the obligations of the Investors or the Placement Agent set forth herein is not
satisfied or because of the refusal, inability or failure on the part of the Company to perform any
agreement herein or to satisfy any condition or to comply with the provisions hereof, then in
addition to the payment of amounts in accordance with Section 5(j), the Company shall
reimburse the Placement Agent for all of its actual out-of-pocket expenses incurred in connection
with the transactions contemplated by this Agreement, including the reasonable fees and
disbursements of its counsel, and upon demand the Company shall pay the full amount thereof to the
Placement Agent.



7. Conditions of Placement Agent’s and Investors’ Obligations. The obligations of the
Placement Agent and the Investors hereunder and the Investors under the Subscription Agreements are
subject to the accuracy of the representations and warranties on the part of the Company on the
date hereof and at the time of purchase, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:




(a) The Company shall furnish to the Placement Agent at the time of purchase an opinion
of Pepper Hamilton LLP, counsel for the Company, addressed to the Placement Agent and dated
the time of purchase, in form and substance reasonably satisfactory to Dechert LLP, counsel
for the Placement Agent, in the form set forth in Exhibit D;




(b) The Placement Agent shall have received at the time of purchase an opinion of Baker
Botts LLP, intellectual property counsel for the Company, and an opinion of Hoffman & Baron,
LLP, intellectual property counsel for the Company, in each case addressed to the Placement
Agent and dated the time of purchase, in form and
substance reasonably satisfactory to Dechert LLP, counsel for the Placement Agent, in
the forms set forth in Exhibit E-1 and Exhibit E-2, respectively;


 


24









 






(c) The Placement Agent shall have received from Ernst & Young LLP a letter dated the
date of this Agreement, the time of purchase and on the effective date of any post-effective
amendment to any Registration Statement, addressed to the Placement Agent in the forms
heretofore approved by the Placement Agent (i) confirming that they are an independent
registered accounting firm with respect to the Company within the meaning of the Securities
Act and PCAOB and (ii) stating the conclusions and findings of such firm, of the type
ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the
financial statements and certain financial information contained or incorporated by
reference in the Registration Statement, the Disclosure Package and the Prospectus;




(d) On or prior to the date hereof, the Company shall have furnished to the Placement
Agent an agreement in the form of Exhibit F hereto from each director and executive
officer and certain stockholders of the Company, and such agreement shall be in full force
and effect at the time of purchase;




(e) The Placement Agent shall have received at the time of purchase an opinion of
Dechert LLP, counsel for the Placement Agent, dated the time of purchase, in form and
substance reasonably acceptable to the Placement Agent;




(f) Prior to the time of purchase, no prospectus or amendment or supplement to the
Registration Statement or the Prospectus, including documents to be incorporated by
reference therein, shall have been filed to which the Placement Agent reasonably objects in
writing;




(g) The Prospectus Supplement shall have been filed with the Commission pursuant to
Rule 424(b) under the Securities Act on or before 8:30 A.M. New York City time on the first
business day following execution of this Agreement (or such other time as the parties may
agree);




(h) No stop order suspending the effectiveness of the Registration Statement or any
part thereof, preventing or suspending the use of any Basic Prospectus, the Prospectus or
any Permitted Free Writing Prospectus or any part thereof shall have been issued and no
proceedings for that purpose or pursuant to Section 8A under the Securities Act shall have
been initiated or threatened by the Commission, and all requests for additional information
on the part of the Commission (to be included or incorporated by reference in the
Registration Statement or the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Placement Agent; each Issuer Free Writing Prospectus, if any,
and the Prospectus shall have been filed with the Commission within the applicable time
period prescribed for such filing by, and in compliance with, the Securities Act and
Section 5(a); and FINRA shall have raised no objection to the fairness and
reasonableness of the terms of this Agreement or the transactions contemplated hereby;


 


25









 






(i) The Placement Agent shall not have discovered and disclosed to the Company on or
prior to the time of purchase that the Registration Statement or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of counsel for the
Placement Agent, is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary to make the
statements therein not misleading, or that the Disclosure Package, any Issuer Free Writing
Prospectus or the Prospectus or any amendment or supplement thereto contains an untrue
statement of fact which, in the opinion of such counsel, is material or omits to state any
fact which, in the opinion of such counsel, is material and is necessary in order to make
the statements, in the light of the circumstances in which they were made, not misleading;




(j) All corporate proceedings and other legal matters incident to the authorization,
form and validity of each of this Agreement, the Subscription Agreements, the Escrow
Agreement, the Units, the Registration Statement, the Disclosure Package, each Issuer Free
Writing Prospectus, if any, and the Prospectus and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Placement Agent, and the Company shall have furnished
to such counsel all documents and information that they may reasonably request to enable
them to pass upon such matters;




(k) The Company shall have furnished to the Placement Agent a certificate, dated the
time of purchase, of its President or a Vice President and its chief financial officer
stating (i) that such officers have carefully examined the Registration Statement, the
Disclosure Package, any Permitted Free Writing Prospectus and the Prospectus and, in their
opinion, the Registration Statement and each amendment thereto, at the date of this
Agreement and as of the time of purchase did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Disclosure Package, as of the date
hereof and as of the time or purchase, any Permitted Free Writing Prospectus as of its date
and as of the time of purchase, the Prospectus and each amendment or supplement thereto, as
of the respective date thereof and as of the time of purchase, did not include any untrue
statement of a material fact and did not omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances in which they were made, not
misleading, (ii) that since the date of the Prospectus Supplement, no event has occurred
which should have been set forth in a supplement or amendment to the Registration Statement,
the Disclosure Package or the Prospectus, (iii) that to their knowledge as of the time of
purchase, the representations and warranties of the Company in this Agreement are true and
correct in all material respects, except that any such representation or warranty shall be
true and correct in all respects where such representation or warranty is qualified with
respect to materiality, and the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to the time of
purchase, (iv) that there has not been, subsequent to the date of the most recent unaudited
financial statements included or incorporated by reference in the Disclosure Package, any
Material Adverse Effect, except as set forth in the Prospectus, and (v) the amount of the
Company’s cash and cash equivalents as of January 31, 2010;


 


26









 






(l) Since the date of the latest unaudited financial statements included in the
Disclosure Package or incorporated by reference in the Disclosure Package as of the date
hereof, (i) the Company shall not have sustained any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise than as set
forth in the Disclosure Package, and (ii) there shall not have been any change in the
capital stock or long-term debt of the Company, or any change, or any development involving
a prospective change, in or affecting the business, general affairs, management, financial
position, stockholders’ equity or results of operations of the Company, otherwise than as
set forth in the Disclosure Package, the effect of which, in any such case described in
clause (i) or (ii) of this paragraph (l), is, in the judgment of the Placement Agent, so
material and adverse as to make it impracticable or inadvisable to proceed with the sale or
delivery of the Units on the terms and in the manner contemplated in the Disclosure Package;




(m) No action shall have been taken and no law, statute, rule, regulation or order
shall have been enacted, adopted or issued by any governmental agency or body which would
prevent the issuance or sale of the Units or materially and adversely affect the business or
operations of the Company; and no injunction, restraining order or order of any other nature
by any federal or state court of competent jurisdiction shall have been issued which would
prevent the issuance or sale of the Units or materially and adversely affect the business or
operations of the Company.




(n) Subsequent to the execution and delivery of this Agreement there shall not have
occurred any of the following: (i) trading in securities generally on the New York Stock
Exchange, NASDAQ or the NYSE Amex Equities or in the over-the-counter market, or trading in
any securities of the Company on any exchange or in the over-the-counter market, shall have
been suspended or materially limited, or minimum or maximum prices or maximum range for
prices shall have been established on any such exchange or such market by the Commission, by
such exchange or market or by any other regulatory body or governmental authority having
jurisdiction, (ii) trading of any securities issued or guaranteed by the Company shall have
been suspended on any exchange or in any over-the-counter market; (iii) a banking moratorium
shall have been declared by Federal or state authorities or a material disruption has
occurred in commercial banking or securities settlement or clearance services in the United
States, or (iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside the United
States, that, in the judgment of the Placement Agent, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Units on
the terms and in the manner contemplated by this Agreement, the Disclosure Package and the
Prospectus;




(o) The Company shall have filed a Notification: Listing of Additional Shares with
NASDAQ and shall have received no objection thereto from the NASDAQ;




(p) The Company shall have entered into Subscription Agreements with each of the
Investors and such agreements shall be in full force and effect;


 


27









 






(q) The Company shall have entered into the Escrow Agreement and such agreement shall
be in full force and effect;




(r) The Placement Agent shall have received clearance from FINRA as to the amount of
compensation allowable or payable to the Placement Agent as described in the Prospectus;




(s) The Company shall have furnished to the Placement Agent such other documents and
certificates as the Placement Agent may reasonably request.



8. Effective Date of Agreement; Termination. This Agreement shall become effective when the
parties hereto have executed and delivered this Agreement. The obligations of the Placement Agent
hereunder and under the Subscription Agreements may be terminated by the Placement Agent, in its
absolute discretion by notice given to the Company prior to delivery of and payment for the Units
if, prior to that time, any of the events described in Sections 7(l), 7(m) or 7(n) have
occurred or if the Investors shall decline to purchase the Units for any reason permitted under the
Subscription Agreements;



If the Placement Agent elects to terminate this Agreement as provided in this Section
8, the Company shall be notified promptly in writing.



If the sale of the Units, as contemplated by this Agreement, is not carried out for any reason
permitted under this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not be under any
obligation or liability under this Agreement (except to the extent provided in Sections 6 and
9), and the Placement Agent shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9).




9. Indemnification and Contribution.




(a) The Company agrees (i) to indemnify, defend and hold harmless the Placement Agent,
its affiliates, and each of its and their respective partners, directors, officers, members,
representatives, employees and agents, and each person, if any, who controls any Placement
Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, and the successors and assigns of all of the foregoing persons (collectively, the
“Placement Agent Indemnified Parties,” and each a “Placement Agent Indemnified Party”), from
and against any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which the Placement Agent or any such person may incur under the Securities
Act, the Exchange Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim (or actions in respect thereof as contemplated below) arises out of or is
based (A) in whole or in part upon any inaccuracy in the representations and warranties of
the Company contained herein, (B) in whole or in part upon any failure of the Company to
perform its obligations hereunder or under law, (C) upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (taking into
account the documents incorporated by reference therein), or any amendment thereto,
including any information deemed to be a part thereof pursuant to Rule 430A, Rule 430B or



 


28









 






Rule 430C under the Securities Act, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements therein not
misleading, (D) upon any untrue statement or alleged untrue statement of a material fact
contained in the Disclosure Package, any Issuer Free Writing Prospectus, the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (E) in whole or in part upon
any act or failure to act or alleged act or failure to act by the Placement Agent in
reliance upon clause (A), (B), (C) or (D) above, and in connection with or relating in any
manner to the Units or the offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or based upon any
matter covered by clause (A), (B), (C) or (D) above; provided that the Company shall not be
liable under this clause (E) to the extent that a court of competent jurisdiction shall have
determined by a final judgment that such loss, claim, damage, liability or action resulted
from any such acts or failures to act undertaken or omitted to be taken by the Placement
Agent through its bad faith or willful misconduct; and (ii) to reimburse any Placement Agent
Indemnified Party for any and all expenses (including the fees and disbursements of counsel
chosen by the Placement Agent) as such expenses are reasonably incurred by such Placement
Agent Indemnified Party in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or action; provided, however,
that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability
or expense to the extent, but only to the extent, arising out of or based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by the Placement Agent
expressly for use in the Registration Statement, any Issuer Free Writing Prospectus, or the
Prospectus (or any amendment or supplement thereto) which information the parties agree is
limited solely to the Placement Agent’s Information as set forth in Section 18. The
indemnity agreement set forth in this Section 9(a) shall be in addition to any
liabilities that the Company may otherwise have.




(b) The Placement Agent agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signed the Registration Statement, and each person, if
any, who controls the Company within the meaning of the Securities Act or the Exchange Act,
against any loss, claim, damage, liability or expense, as incurred, to which the Company, or
any such director, officer or controlling person may become subject, insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based upon any untrue or alleged untrue statement of a material fact
contained in the Registration Statement, the Disclosure Package, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto) (taking into account
the documents incorporated by reference therein), or arises out of or is based upon the
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the extent, and
only to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration


 


29









 






Statement, the Disclosure Package, any Issuer
Free Writing Prospectus or the Prospectus  (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the Company by the Placement
Agent expressly for use therein; and to reimburse the Company, or any such director, officer
or controlling person for any legal and other expense reasonably incurred by the Company, or
any such director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage, liability, expense
or action. The Company hereby acknowledges that the only information that the Placement
Agent has furnished to the Company expressly for use in the Registration Statement, the
Disclosure Package, any Issuer Free Writing Prospectus or the Prospectus (or any amendment
or supplement thereto) is the Placement Agent’s Information as set forth in Section
18. Notwithstanding the provisions of this Section 9(b), in no event shall any
indemnity by the Placement Agent under this Section 9(b) exceed the total
compensation received by the Placement Agent in accordance with Section 1.




(c) Promptly after receipt by an indemnified party under this Section 9 of
notice of the commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 9, notify the
indemnifying party in writing of the commencement thereof; but the failure to so notify the
indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses and (ii) will
not, in any event, relieve the indemnifying party from any liability other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any such
action is brought against any indemnified party and such indemnified party seeks or intends
to seek indemnity from an indemnifying party, the indemnifying party will be entitled to
participate in, and, to the extent that it shall elect, jointly with all other indemnifying
parties similarly notified, by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel satisfactory to such indemnified party; provided, however, if the
defendants in any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may arise between
the positions of the indemnifying party and the indemnified party in conducting the defense
of any such action or that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this Section 9
for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless (x) the indemnified party shall have employed
separate counsel in accordance with the proviso to the preceding sentence (it being
understood, however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (other than local counsel), reasonably approved by the
indemnifying party, representing the indemnified parties who are parties to such action) or
(y) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and expenses of
counsel shall be at the expense of the indemnifying party.


 


30









 






(d) The indemnifying party under this Section 9 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by Section 9(c),
the indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement, compromise or
consent (x) includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such action, suit or proceeding and (y) does not
include a statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.




(e) If the indemnification provided for in this Section 9 is unavailable or
insufficient to hold harmless an indemnified party under Section 9(a) or 9(b), then
each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to
the amount paid or payable by such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand and the Placement
Agent on the other from the offering of the Units or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Placement Agent on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Placement Agent on the
other with respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Units purchased under this Agreement (before
deducting expenses) and the Subscription Agreement received by the Company bears to the
total compensation received by the Placement Agent with respect to the Units purchased under
this Agreement and the Subscription Agreements. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one 

 


31









 






hand or the Placement Agent on the
 other, the
intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or
omission, provided that the parties agree that the only information supplied by the
Placement Agent is the Placement Agent’s Information as set forth in Section 18.
The Company and the Placement Agent agree that it would not be just and equitable if
contributions pursuant to this Section 9(e) were to be determined by pro rata
allocation or by any other method of allocation which does not take into account the
equitable considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 9(e) shall be deemed to include, for purposes of
this Section 9(e), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9(e), the Placement Agent shall not
be required to contribute any amount in excess of the total compensation received by the
Placement Agent in accordance with Section 1 less the amount of any damages which
the Placement Agent has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.



10. Relationship of Parties. The Company acknowledges and agrees that: (i) the placement of
the Units pursuant to this Agreement, including the determination of commissions, is an arms-length
commercial transaction between the Company, on the one hand, and the Placement Agent, on the other
hand, and the Company is capable of evaluating and understanding and understands and accepts the
terms, risks and conditions of the transactions contemplated by the Agreement; (ii) in connection
with each transaction contemplated hereby and the process leading to such transaction the Placement
Agent is and has been acting solely as a principal and is not the financial advisor or fiduciary of
the Company, or its affiliates, stockholders, creditors or employees or any other party; (iii) the
Placement Agent has not assumed nor will it assume an advisory or fiduciary responsibility in favor
of the Company with respect to any of the transactions contemplated hereby or the process leading
thereto (irrespective of whether the Placement Agent or its affiliates have advised or are
currently advising the Company on other matters) and the Placement Agent has no obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the Placement Agent and its affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Company and that the Placement
Agent has no obligation to disclose any such interests by virtue of any advisory or fiduciary
relationship; and (v) the Placement Agent has not provided any legal, accounting, regulatory or tax
advice with respect to the offering contemplated hereby and the Company has consulted its own
legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.



This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company, on the one hand, and the Placement Agent, on the other, with respect to the
subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by
law, any claims that the Company may have against the Placement Agent with respect to any breach or
alleged breach of fiduciary duty.


 


32









 





11. Notices. Except as otherwise herein provided, all statements, requests, notices and
agreements shall be in writing or by telegram and, if to the Placement Agent, shall be sufficient
in all respects if delivered or sent to Leerink Swann LLC, One Federal Street, 37th Floor Boston,
Massachusetts 02110, Attention: Tim Gerhold with copies to Dechert LLP, 2929 Arch Street,
Philadelphia, Pennsylvania 19104, Attention: James A. Lebovitz; if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of the Company at 6
Cedar Brook Drive, Cranbury, New Jersey 08512, Attention: Chief Executive Officer, with copies to
Pepper Hamilton LLP, 3000 Two Logan Square, Eighteenth and Arch Streets, Philadelphia, Pennsylvania
19103-2799, Attention: Barry M. Abelson.



12. Governing Law; Construction. This Agreement and any claim, counterclaim or dispute of any
kind or nature whatsoever arising out of or in any way relating to this Agreement (“Claim”),
directly or indirectly, shall be governed by, and construed in accordance with, the laws of the
State of New York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.



13. Submission to Jurisdiction. No Claim may be commenced, prosecuted or continued in any
court other than the courts of the State of New York located in the City and County of New York or
in the United States District Court for the Southern District of New York, which courts shall have
jurisdiction over the adjudication of such matters, and the Company and the Placement Agent consent
to the jurisdiction of such courts and personal service with respect thereto. Each of the
Placement Agent and the Company (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in any way arising out
of or relating to this Agreement. The Company and the Placement Agent agree that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company and the Placement Agent and may be enforced in any other courts to the
jurisdiction of which the Company or the Placement Agent is or may be subject, by suit upon such
judgment.



14. Parties at Interest. The Agreement herein set forth has been and is made solely for the
benefit of the Placement Agent and the Company and to the extent provided in Section 9 any
person or entity entitled to indemnification thereunder, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. This Agreement shall also inure
to the benefit of the Investors and each of their successors and assigns, which shall be third
party beneficiaries hereof. No other person, partnership, association or corporation (including a
purchaser, as such purchaser, from the Placement Agent) shall acquire or have any right under or by
virtue of this Agreement.



15. Counterparts. This Agreement may be signed by the parties in one or more counterparts,
which together shall constitute one and the same agreement among the parties. In the event that any
signature is delivered by facsimile transmission, such signature shall create a valid and binding
obligation of the party executing (or on whose behalf such signature is executed) with the same
force and effect as if such facsimile signature were the original thereof.


 


33









 





16. Successors and Assigns. This Agreement shall be binding upon the Placement Agent and the
Company and their respective successors and assigns and any successor or assign of the Company’s
and the Placement Agent’s respective businesses and/or assets.



17. Survival of Indemnities, Representations, Warranties, etc. The respective indemnities,
covenants, agreements, representations, warranties and other statements of the Company and the
Placement Agent, as set forth in this Agreement or made by them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any investigation made by or on
behalf of the Placement Agent, the Company, the Investors or any person controlling any of them and
shall survive delivery of and payment for the Units. Notwithstanding any termination of this
Agreement, the indemnity and contribution agreements contained in Section 9 and the
covenants, representations, warranties set forth in this Agreement shall not terminate and shall
remain in full force and effect at all times.



18. Placement Agent’s Information. The parties hereto acknowledge and agree that, for all
purposes of this Agreement, the information that the Placement Agent has furnished to the Company
expressly for use in the Registration Statement, the Disclosure Package, any Issuer Free Writing
Prospectus or the Prospectus (or any amendment or supplement thereto) consist solely of the
statements concerning the Placement Agent contained in the first paragraph and the statements
regarding stabilization in the tenth paragraph under the heading “Plan of Distribution” in the
Prospectus Supplement (collectively, the “Placement Agent’s Information”).



19. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph,
clause or provision of this Agreement shall not affect the validity or enforceability of any other
section, paragraph, clause or provision hereof. If any section, paragraph, clause or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.



20. General. In this Agreement, the masculine, feminine and neuter genders and the singular
and the plural include one another. The section headings in this Agreement are for the convenience
of the parties only and will not affect the construction or interpretation of this Agreement. This
Agreement may be amended or modified, and the observance of any term of this Agreement may be
waived, only by a writing signed by the Company and the Placement Agent. Unless otherwise
modified, references to “Articles,” “Exhibits” or “Sections” shall be to Articles, Exhibits or
Sections of or to this Agreement.


 


34









 





If the foregoing correctly sets forth the understanding between the Company and the Placement
Agent, please so indicate in the space provided below for that purpose, whereupon this agreement
and your acceptance shall constitute a binding agreement between the Company and the Placement
Agent.



	 	 	 	 	 
	Very truly yours,	 	 
	 
	 	 	 	 
	AMICUS THERAPEUTICS, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Matthew R. Patterson
 

Name: Matthew R. Patterson
	 	 
	 

	 	Title: COO	 	 
	 
	 	 	 	 
	Accepted and agreed to as of the date first above written,	 	 
	 
	 	 	 	 
	LEERINK SWANN LLC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Tony Gibney
 

Name: Tony Gibney
	 	 
	 

	 	Title: Managing Director	 	 





 


1









 





Exhibit A




Form of 




Subscription Agreement




February 25, 2010





Amicus Therapeutics, Inc.




6 Cedar Brook Drive




Cranbury, NJ 08512



Ladies and Gentlemen:




The undersigned (the “Investor”), hereby confirms and agrees with you as follows:



1. This Subscription Agreement (the “Agreement”) is made as of the date hereof between Amicus
Therapeutics, Inc., a Delaware corporation (the “Company”), and the Investor.



2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of 4,946,524 units (the “Units”), with each Unit consisting of (i) one share (each, a “Share” and
collectively, the “Shares”) of its common stock, par value $0.01 per share (the “Common Stock”),
and (ii) one warrant (each, a “Warrant” and collectively, the “Warrants”) to purchase 0.375 of a
share of Common Stock (and the fractional amount being the “Warrant Ratio”), in the form attached
hereto as Exhibit A, for a purchase price of $3.74 per Unit (the “Purchase Price”). Units
will not be issued or certificated. The Shares and Warrants are immediately separable and will be
issued separately. The shares of Common Stock issuable upon exercise of the Warrants are referred
to herein as the “Warrant Shares” and, together with the Units, the Shares and the Warrants, are
referred to herein as the “Securities.” All capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to such terms in the Placement Agency Agreement dated as of the
date hereof by and between Leerink Swann LLC (the “Placement Agent”) and the Company (the
“Placement Agency Agreement”).



3. The offering and sale of the Units and the Warrant Shares (the “Offering”) are being made
pursuant to (i) an effective Registration Statement on Form S-3 (Registration No. 333-158405) (the
“Registration Statement”) filed by the Company with the Securities and Exchange Commission (the
“SEC”) and declared effective on May 27, 2009, which includes the base prospectus (the “Base
Prospectus”), (ii) if applicable, certain “free writing prospectuses” (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended), that have been or will be provided to the
Investor on or prior to the date hereof (each, a “Delivered Free Writing Prospectus”) and (iii) a
final prospectus supplement (the “Prospectus Supplement” and together with the Base Prospectus, the
“Prospectus”) containing certain supplemental information regarding the Units and terms of the
Offering that will be filed with the SEC and provided to the Investor along with the Company’s
counterpart to this Agreement or made available to the Investor by the filing by the Company of an
electronic version thereof with the SEC. The Registration Statement, the documents incorporated by
reference therein and all Delivered Free Writing Prospectuses are referred to herein collectively
as the “Disclosure Package.”


 


A-1









 





4. The Company and the Investor agree that the Investor will purchase from the Company, and
the Company will issue and sell to the Investor, the number of Units set forth below for the
aggregate purchase price set forth below, pursuant to and subject to the Terms and Conditions for
Purchase of Units attached hereto as Annex I, which are incorporated herein by reference as
if fully set forth herein. Unless otherwise requested by the Investor no later than one (1)
business day after the execution of this
Agreement by the Investor and agreed to by the Company, the Shares included in the Units
purchased by the Investor will be delivered by electronic book-entry at The Depository Trust
Company (“DTC”), registered in the Investor’s name and address as set forth below and will be
released by American Stock Transfer and Trust Company, the Company’s transfer agent (the “Transfer
Agent”), to the Investor at the Closing (as defined in the Terms and Conditions for Purchase of
Units). The executed Warrant included in the Units purchased by the Investor shall be delivered in
accordance with the terms thereof. The Investor acknowledges that the Offering is not being
underwritten by the Placement Agent and that there is no minimum offering amount. The Investor
understands and agrees that the Company, in its sole discretion, reserves the right to accept or
reject this subscription for Units, in whole or in part.



5. The Investor represents that, except as set forth below, (a) it has had no position, office
or other material relationship within the past three (3) years with the Company or persons known to
it to be affiliates of the Company, (b) it is not, and as of the Closing will not be, a member of
the Financial Industry Regulatory Authority or an Associated Person (as such term is defined under
the National Association of Securities Dealers Membership and Registration Rules Section 1011), and
(c) neither the Investor nor any group of Investors (as identified in a public filing made with the
SEC) of which the Investor is a part in connection with the Offering of the Units, acquired, or
obtained the right to acquire, 20% or more of the Common Stock (or securities convertible into or
exercisable for Common Stock) or the voting power of the Company on a post-transaction basis.



Exceptions:



(If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)




6. The Investor confirms that it has had full access to all filings made by the Company with
the SEC, including those portions of the Disclosure Package filed with the SEC, and that it was
able to read, review, download and print each such filing prior to or in connection with the
receipt of this Agreement along with the Delivered Free Writing Prospectus(es) and the Company’s
counterpart to this Agreement. On or promptly following the date hereof, the Company will file the
Prospectus Supplement with the SEC containing certain supplemental information regarding the
Company and the Offering.



[Remainder of page intentionally left blank. Signature pages follow.]




 


A-2









 







	 	 	 	 	 
	Number of Units:
	 	 	                    	 
	 
	 	 	 	 
	Purchase Price Per Unit:
	 	$	                    	 
	 
	 	 	 	 
	Aggregate Purchase Price:
	 	$	                    	 






Please confirm that the foregoing correctly sets forth the agreement between us by signing in the
space provided below for that purpose.



Dated as of February 25, 2010




	 	 	 	 	 
	Investor	 	 
	 
	 	 	 	 
	 	 	 
	 
	 	 	 	 
	Name of Investor	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 





 


A-3









 





	 	 	 	 	 
	Agreed to and accepted as of February 25, 2010:	 	 
	 
	 	 	 	 
	Amicus Therapeutics, Inc. 	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 







 


A-4











 




Annex I




Terms and Conditions for Purchase of Units





A. Closings and Delivery of the Units and Funds.



1. Closing. The completion of the purchase and sale of the Units (the “Closing”) will occur at
a place and time (the “Closing Date”) to be specified by the Company and the Placement Agent, and
of which the Investor will be notified in advance by the Placement Agent. At the Closing, (a) the
Company will cause the Transfer Agent to deliver to the Investor the number of Shares set forth on
the signature page hereto registered in the name of the Investor or, if so indicated on the
Investor Questionnaire attached hereto as Exhibit B, in the name of a nominee designated by
the Investor, (b) the Company shall cause to be delivered to the Investor a Warrant to purchase a
number of whole Warrant Shares determined by multiplying the number of Shares set forth on the
signature page by the Warrant Ratio and rounding down to the nearest whole number and (c) the
aggregate purchase price for the Units being purchased by the Investor will be delivered by or on
behalf of the Investor to the Company.



2. Other Investors. The Company proposes to enter into substantially this same form of
Subscription Agreement with certain other investors (the “Other Investors”) and expects to complete
sales of Units to them.



3. Placement Agent Fee. The Investor acknowledges that the Company intends to pay the
Placement Agent a fee in respect of the sale of Units to the Investor.



4. Conditions to the Investor’s Obligations. The Investor’s obligation to purchase the Units
will be subject to the accuracy of the representations and warranties made by the Company and the
fulfillment of those undertakings of the Company to be fulfilled prior to the Closing Date,
including without limitation, those contained in the Placement Agency Agreement, and the condition
that the Placement Agent shall not have: (a) terminated the Placement Agency Agreement pursuant to
the terms thereof or (b) determined that the conditions to the closing in the Placement Agency
Agreement have not been satisfied. The Investor’s obligations are expressly not conditioned on the
purchase by any or all of the Other Investors of the Units that they have agreed to purchase from
the Company. The Investor understands and agrees that, in the event the Placement Agent in its
sole discretion determines that the conditions to closing in the Placement Agency Agreement have
not been satisfied or if the Placement Agency Agreement may be terminated for any other reason
permitted by the Placement Agency Agreement, then the Placement Agent may, but shall not be
obligated to, terminate the Placement Agency Agreement, which shall have the effect of terminating
this Agreement pursuant to Section I below.



5. Delivery of Funds. No later than one (1) business day after the execution of this
Agreement by the Investor and the Company, the Investor shall remit by wire transfer the amount
of funds equal to the aggregate purchase price for the Units being purchased by the Investor to the
following account designated by the Company and the Placement Agent pursuant to the terms of that
certain Escrow Agreement (the “Escrow Agreement”) dated as of February 25, 2010, by and among the
Company, the Placement Agent and JPMorgan Chase Bank, N.A. (the “Escrow Agent”), unless the Company
and the Investor agree to an alternative arrangement for such payment:



	 	 	 	 	 	 	 
	 

	 	JPMorgan Chase Bank, N.A.	 	 	 	 
	 

	 	ABA Routing Number:
	 	 	021 000 021	 
	 

	 	Account Number:
	 	 	865364558	 
	 

	 	Account Name:
	 	 	JPM as EA for Amicus/Leerink







 


A-5









 





The Company agrees to indemnify and hold the Escrow Agent and the Placement Agent harmless from and
against any and all liabilities, obligations, damages, losses, encumbrances, costs, expenses and
claims (including, without limitation, court costs and reasonable attorneys fees) (“Losses”)
arising under this Section A(5) or otherwise with respect to the funds held in escrow
pursuant hereto or arising under the Escrow Agreement, unless it is finally determined that such
Losses resulted directly from the willful misconduct or gross negligence of the Escrow Agent or the
Placement Agent, respectively. Anything in this Agreement to the contrary notwithstanding, in no
event shall the Escrow Agent or the Placement Agent be liable for any special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited to lost profits),
even if the Escrow Agent or the Placement Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action. Each of the Escrow Agent and the Placement Agent shall
be a third party beneficiary with respect to the covenants and agreements of the Investor contained
in this Section A(5).



6. Delivery of Shares. No later than one (1) business day after the execution of this
Agreement by the Investor and the Company, the Investor shall direct its prime broker at which
the account or accounts to be credited with the Shares being purchased by the Investor are
maintained, which prime broker shall be a DTC participant, to set up a Deposit/Withdrawal at
Custodian (“DWAC”) instructing the Transfer Agent to credit such account or accounts with the
Shares by means of an electronic book-entry delivery. Such DWAC shall indicate the settlement date
for the deposit of the Shares, which date shall be provided to the Investor by the Placement Agent.
Unless the Company and the Investor agree to an alternative arrangement for payment of the Purchase
Price for the Shares, upon receipt by the Company of the funds held in escrow pursuant to
Section A(5) above, the Company shall direct the Transfer Agent to credit the Investor’s
account or accounts with the Shares at the Closing pursuant to the information contained in such
DWAC.



7. Notice to Investors. IT IS THE INVESTOR’S RESPONSIBILITY TO (a) MAKE THE NECESSARY WIRE
TRANSFER OR CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (b) ARRANGE FOR SETTLEMENT BY
WAY OF DWAC IN A TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR
THE UNITS OR DOES NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY
NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.




B. Representations, Warranties and Covenants of the Company.



1. The Company represents and warrants to the Investor that: (a) the Company has the full
right, power and authority to enter into this Agreement and the Warrants and to perform and to
discharge its obligations hereunder and thereunder; (b) this Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid and binding obligation of the
Company enforceable in accordance with its terms; and (c) the Warrants have been duly authorized
and, when executed and delivered by the Company, will constitute a valid and binding obligation of
the Company enforceable in accordance with its terms, except, in the case of each of clauses (b)
and (c), (x) as limited by laws of general application relating to bankruptcy, insolvency and the
relief of debtors; (y) as limited by rules of law governing specific performance, injunctive relief
or other equitable remedies and by general principles of equity; and (z) to the extent any
indemnification provisions contained therein may further be limited by applicable laws and
principles of public policy.


 


A-6









 





2. The Company represents and warrants to, and covenants with, the Investor that the shares of
Common Stock and the Warrants to be issued and sold by the Company to the Investor under this
Agreement and the Warrant Shares have been duly authorized and, when issued and paid for in
accordance with the terms of this Agreement and the applicable Warrants, such shares of Common
Stock and the Warrants will be validly issued, fully paid and non-assessable and free of any
violation of statutory or contractual preemptive rights, resale rights, rights of first refusal or
similar rights.



3. The Company represents and warrants to the Investor that no approval, authorization,
consent or order of the stockholders of the Company is required under the applicable rules of
NASDAQ or otherwise in connection with the sale by the Company of the Units, the Warrant Shares or
the consummation by the Company of the transactions contemplated hereby.



4. The Placement Agency Agreement contains certain representations, warranties, covenants and
agreements of the Company that may be relied upon by the Investor, which shall be a third party
beneficiary thereof.




C. Representations, Warranties and Covenants of the Investor.



1. The Investor represents and warrants to, and covenants with, the Company that: (a) the
Investor is knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to, investments in securities presenting an investment decision like that
involved in the purchase of the Units, including investments in securities issued by the Company
and investments in comparable companies, and has requested, received, reviewed and considered all
information it deemed relevant in making an informed decision to purchase the Units, (b) the
Investor has answered all questions on the Signature Page and the Investor Questionnaire for use in
preparation of the Prospectus Supplement and the answers thereto are true and correct as of the
date hereof and will be true and correct as of the Closing Date and (c) the Investor, in connection
with its decision to purchase the number of Units set forth on the Signature Page, has reviewed the
Disclosure Package and is relying only upon the Disclosure Package and the representations and
warranties of the Company contained herein.



2. The Investor acknowledges, represents and agrees that no action has been or will be taken
in any jurisdiction outside the United States by the Company or the Placement Agent that would
permit an offering of the Units, or possession or distribution of offering materials in connection
with the issue of the Securities in any jurisdiction outside the United States where action for
that purpose is required. Each Investor outside the United States will comply with all applicable
laws and regulations in each foreign jurisdiction in which it purchases, offers, sells or delivers
Securities or has in its possession or distributes any offering material, in all cases at its own
expense. The Placement Agent is not authorized to make and has not made any representation or use
of any information in connection with the issue, placement, purchase and sale of the Units, except
as set forth or incorporated by reference in the Disclosure Package.



3. The Investor further represents and warrants to, and covenants with, the Company that: (a)
the Investor has full right, power, authority and capacity to enter into this Agreement and to
consummate the transactions contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement and (b) this Agreement constitutes a valid
and binding obligation of the Investor enforceable against the Investor in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights
generally and except as enforceability may be subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at law).


 


A-7









 





4. The Investor understands that nothing in this Agreement, the Prospectus or any other
materials in the Disclosure Package or otherwise presented to the Investor in connection with the
purchase and sale of the Units constitutes legal, tax or investment advice. The Investor has
consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Units.



5. The Investor represents, warrants and agrees that, since the earlier to occur of (a) the
date on which the Placement Agent first contacted the Investor about the Offering and (b) the date
of this Agreement, it has not engaged in any transactions in the securities of the Company in
violation of securities laws (including, without limitation, any short sales involving the
Company’s securities). The Investor covenants that it will not engage in any transactions in the
securities of the Company (including short sales) prior to the time that the transactions
contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use any
of the Securities acquired pursuant to this Agreement to cover any short position in the Common
Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “short
sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Securities Exchange Act of 1934 (the “Exchange Act”), whether or not
against the box, and all types of direct and indirect stock pledges, forward sales contracts,
options, puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h)
under the Exchange Act) and similar arrangements (including on a total return basis), and sales and
other transactions through non-US broker dealers or foreign regulated brokers.



6. Notwithstanding any investigation made by any party to this Agreement or by the Placement
Agent, all covenants, agreements, representations and warranties made by the Investor herein will
survive the execution of this Agreement, the delivery to the Investor of the Units being purchased
and the payment therefor. The Placement Agent shall be a third party beneficiary with respect to
covenants, agreements, representations and warranties of the Investor contained in this Section
C.



D. Changes. This Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.



E. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.



F. Severability. In case any provision contained in this Agreement should be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.



G. Governing Law. This Agreement will be governed by, and construed in accordance with, the
internal laws of the State of New York, without giving effect to the principles of conflicts of law
that would require the application of the laws of any other jurisdiction.



H. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each party
hereto and delivered (including by fax or electronically) to the other parties.



I. Termination. In the event that the Placement Agency Agreement is terminated by the
Placement Agent pursuant to the terms thereof, this Agreement shall terminate without any further
action on the part of the parties hereto.


 


A-8









 





Exhibit A




Form of Warrant to Purchase Common Stock

[to be attached]




 


A-9









 







Exhibit B




Amicus Therapeutics, Inc. 




Investor Questionnaire




Pursuant to Section A(1) of Annex I to the Agreement, please provide us with the
following information:




	1.	 	The exact name under which your Shares and Warrants are to be registered. You may
use a nominee if appropriate:
	 
	2.	 	The relationship between the Investor and the registered holder listed in response
to Question 1 above (if not the same person):
	 
	3.	 	The mailing address of the registered holder listed in response to Question 1 above:
	 
	4.	 	The Social Security Number or Tax Identification Number of the registered holder
listed in response to Question 1 above:
	 
	5.	 	Name of DTC Participant (your prime broker at which the account or accounts to be
credited with the Shares are maintained); please include the name and telephone
number of the contact person at your prime broker:




 


A-10









 





	6.	 	DTC Participant Number:
	 
	7.	 	Name of Account at DTC Participant being credited with the Shares:
	 
	8.	 	Account Number at DTC Participant being credited with the Shares:






 


A-11









 







Exhibit B




Form of Warrant to Purchase Common Stock




AMICUS THERAPEUTICS, INC.




WARRANT TO PURCHASE COMMON STOCK




To Purchase                                          Shares of Common Stock




Warrant No.:                     




Date of Issuance: March __, 2010




VOID AFTER March __, 2014




THIS CERTIFIES THAT, for value received,                     , or permitted registered assigns
(the “Holder”), is entitled, subject to the terms set forth below, to subscribe for and purchase at
the Exercise Price (defined below) from Amicus Therapeutics, Inc., a Delaware corporation (the
“Company”), up to                      shares of Common Stock, par value $.01 per share (the “Common Stock”),
of the Company. This warrant is one of a series of warrants issued by the Company as of the date
hereof (individually a “Warrant”; collectively, “Company Warrants”) pursuant to those certain
subscription agreements between the Company and each of the investors, each dated as of February
25, 2010 (each, a “Subscription Agreement”) and pursuant to a registration statement under the
Securities Act on Form S-3 (File No. 333-158405) (the “registration statement”), filed with the
United States Securities and Exchange Commission (the “Commission”) and declared effective on May
27, 2009.



1. DEFINITIONS. Capitalized terms used herein but not otherwise defined herein shall
have their respective meanings as set forth in the Subscription Agreement. As used herein, the
following terms shall have the following respective meanings:




(A) “Eligible Market” means any of the New York Stock Exchange, the American Stock
Exchange, The NASDAQ Global Market, The NASDAQ Global Select Market or The NASDAQ Capital
Market.




(B) “Exercise Period” shall mean the period commencing six (6) months after the date
hereof and ending four (4) years from the date hereof, unless sooner terminated as provided
below.




(C) “Exercise Price” shall mean $4.43 per share, subject to adjustment pursuant to
Section 4 below.




(D) “Trading Day” shall mean (a) any day on which the Common Stock is listed or quoted
and traded on its primary Trading Market, (b) if the Common Stock is not then listed or quoted
and traded on any Eligible Market, then a day on which trading occurs on the OTC Bulletin
Board (or any successor thereto), or (c) if trading does not occur on the OTC Bulletin Board
(or any successor thereto), any business day.


 


B-1 









 






(E) “Trading Market” shall mean the OTC Bulletin Board or any other Eligible Market, or
any national securities exchange, market or trading or quotation facility on which the Common
Stock is then listed or quoted.




(F) “Warrant Shares” shall mean the shares of the Common Stock issuable upon exercise of
this Warrant.



2. EXERCISE OF WARRANT. The rights represented by this Warrant may be exercised in
whole or in part at any time during the Exercise Period, by delivery of the following to the
Company at its address set forth on the signature page hereto (or at such other address as it may
designate by notice in writing to the Holder):




(A) an executed written notice, in the form attached hereto as Exhibit A (the
“Exercise Notice”); and




(B) payment of the Exercise Price either (i) in cash or by check or (ii) provided that
the conditions set forth in Section 2.1 are satisfied, pursuant to Section 2.1
below.



The Holder shall not be required to deliver the original Warrant in order to effect an
exercise hereunder. Execution and delivery of the Notice of Exercise shall have the same effect as
cancellation of the original Warrant and issuance of a new Warrant evidencing the right to purchase
the remaining number of Warrant Shares, if any.



Certificates for shares purchased hereunder shall be transmitted by the transfer agent of the
Company to the Holder by crediting the account of the Holder’s prime broker with the Depository
Trust Company (“DTC”) through its Deposit Withdrawal Agent Commission system if the Company’s
transfer agent is a participant in such system, and otherwise by physical delivery to the address
specified by the Holder in the Exercise Notice, in each case within three (3) business days from
the delivery to the Company of the Exercise Notice and payment of the aggregate Exercise Price as
set forth above. This Warrant shall be deemed to have been exercised on the date the Exercise Price
is received by the Company.



The person in whose name any certificate or certificates for Warrant Shares are to be issued
upon exercise of this Warrant shall be deemed to have become the holder of record of such shares on
the date on which payment of the Exercise Price was made, irrespective of the date such Warrant
Shares are credited to the DTC account of the Holder’s prime broker or the date of delivery of the
certificate or certificates evidencing such Warrant Shares, as the case may be, except that, if the
date of such payment is a date when the stock transfer books of the Company are closed, such person
shall be deemed to have become the holder of such shares at the opening of business on the next
succeeding date on which the stock transfer books are open.


 


B-2 









 





Subject to Section 2.6 and the final sentence of this paragraph and to the extent permitted by
law, the Company’s obligations to issue and deliver Warrant Shares in accordance with the terms
hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to
enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any
judgment against any person or entity or any action to enforce the same, or any setoff,
counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder
or any other person or entity of any obligation to the Company or any violation or alleged
violation of law by the Holder or any other person or entity, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to the Holder in connection
with the issuance of Warrant Shares. The Holder shall have the right to pursue any remedies
available to it hereunder, at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to timely deliver
Warrant Shares upon exercise of this Warrant as required pursuant to the terms hereof.




2.1. NET EXERCISE. If during the Exercise Period (a) a registration statement
covering the Warrant Shares that are the subject of the Exercise Notice (the “Unavailable
Warrant Shares”), or an exemption from registration, is not available for the issuance and
resale of such Unavailable Warrant Shares, the Holder may, in its sole discretion or (b) the
Fair Market Value (as defined below) of one share of the Common Stock is greater than the
Exercise Price (at the date of calculation as set forth below), in lieu of exercising this
Warrant by payment of cash or by check, the Holder may effect a “net exercise” of this Warrant
in lieu of making the cash payment otherwise contemplated to be made to the Company upon such
exercise in payment of the Exercise Price, in which event, if so effected, the Holder shall
receive Warrant Shares equal to the value (as determined below) of this Warrant (or the
portion thereof being canceled) by delivery of the properly endorsed Notice of Exercise at the
principal office of the Company, in which event the Company shall issue to the Holder a number
of shares of the Common Stock computed using the following formula (a “Net Exercise”):



	 	 	 	 	 	 	 	 	 
	 

	 	X
	 	=
	 	Y(A-B)	 	 
	 

	 	 	 	 	 	A	 	 
	 
	 	 	 	 	 	 	 	 






	 	 	 	 	 
	Where X

	 	=
	 	the number of Warrant Shares to be issued to the Holder.
	 
	 	 	 	 
	Y

	 	=
	 	the number of Warrant Shares with respect to which this
Warrant is being exercised (which shall include both the
number of Warrant Shares issued to the Holder and the number
of Warrant Shares subject to the portion of the Warrant
being cancelled in payment of the Exercise Price).
	 
	 	 	 	 
	A

	 	=
	 	the Fair Market Value (as defined below) of one share of the
Common Stock (at the date of such calculation).
	 
	 	 	 	 
	B

	 	=
	 	Exercise Price (as adjusted to the date of such calculation).





 


B-3 









 






For purposes of this Warrant, the “Fair Market Value” of one share of the Common Stock shall
mean (i) the average of the closing sales prices for the shares of the Common Stock on The
NASDAQ Global Market or other Eligible Market where the Common Stock is listed or traded as
reported by Bloomberg Financial Markets (or a comparable reporting service of national
reputation selected by the Company and reasonably acceptable to the Holder if Bloomberg
Financial Markets is not then reporting sales prices of such security)
(collectively, “Bloomberg”) for the ten (10) consecutive trading days immediately prior to the
date of the exercise of the Warrant, or (ii) if an Eligible Market is not the principal
Trading Market for the shares of the Common Stock, the average of the reported sales prices
reported by Bloomberg on the principal Trading Market for the Common Stock during the same
period, or, if there is no sales price for such period, the last sales price reported by
Bloomberg for such period, or (iii) if neither of the foregoing applies, the last sales price
of such security in the over-the-counter market on the pink sheets for such security as
reported by Bloomberg, or if no sales price is so reported for such security, the last bid
price of such security as reported by Bloomberg, or (iv) if fair market value cannot be
calculated as of such date on any of the foregoing bases, the fair market value shall be as
determined by the Board of Directors of the Company in the exercise of its good faith
judgment.




2.2. ISSUANCE OF NEW WARRANTS. Upon any partial exercise of this Warrant, the
Company, at its expense, will forthwith and, in any event within five (5) business days, issue
and deliver to the Holder a new warrant or warrants of like tenor, registered in the name of
the Holder, exercisable, in the aggregate, for the balance of the number of shares of the
Common Stock remaining available for purchase under this Warrant.




2.3. PAYMENT OF TAXES AND EXPENSES. The Company shall pay any recording, filing,
stamp or similar tax which may be payable in respect of any transfer involved in the issuance
of, and the preparation and delivery of certificates (if applicable) representing, (i) any
Warrant Shares purchased upon exercise of this Warrant and/or (ii) new or replacement warrants
in the Holder’s name or the name of any transferee of all or any portion of this Warrant;
provided, however, that the Company shall not be required to pay any tax which may be payable
in respect of any transfer involved in the issuance, delivery or registration of any
certificates for Warrant Shares or Warrants in a name other than that of the Holder. The
Holder shall be responsible for all other tax liability that may arise as a result of holding
or transferring this Warrant or receiving Warrant Shares upon exercise hereof.




2.4. RULE 144. For purposes of Rule 144 promulgated under the Securities Act, as
in effect on the date hereof, it is intended that the Warrant Shares issued in a Net Exercise
shall be deemed to have been acquired by the Holder, and the holding period for the Warrant
Shares shall be deemed to have commenced, on the date this Warrant was originally issued
pursuant to the applicable Subscription Agreement.




2.5. DISPUTES. In the case of a dispute as to the determination of the Exercise
Price or the arithmetic calculation of the Warrant Shares, the Company shall promptly issue to
the Holder the number of Warrant Shares that are not disputed.




2.6. EXERCISE LIMITATIONS; HOLDER’S RESTRICTIONS. A Holder, other than an
Excluded Holder, shall not have the right to exercise any portion of this Warrant, pursuant to
Section 2 or otherwise, to the extent that after giving effect to such issuance after
exercise, such Holder (together with such Holder’s affiliates), as set forth on the applicable
Notice of Exercise, would beneficially own in excess of 9.9% of the number of shares of the
Common Stock outstanding immediately after giving effect to such issuance.


 


B-4 









 






For purposes of this Section 2.6, the number of shares of the Common Stock
beneficially owned by such Holder and its affiliates shall include the number of shares of the
Common Stock issuable upon exercise of this Warrant with respect to which the determination of
such sentence is being made, but shall exclude the number of shares of the Common Stock which
would be issuable upon (A) exercise of the remaining, nonexercised portion of this Warrant
beneficially owned by such Holder or any of its affiliates and (B) exercise or conversion of
the unexercised or nonconverted portion of any other securities of the Company (including,
without limitation, any other shares of the Common Stock or Warrants) subject to a limitation
on conversion or exercise analogous to the limitation contained herein beneficially owned by
such Holder or any of its affiliates. Except as set forth in the preceding sentence, for
purposes of this Section 2.6, beneficial ownership shall be calculated in accordance
with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), it
being acknowledged by a Holder that the Company is not representing to such Holder that such
calculation is in compliance with Section 13(d) of the Exchange Act and such Holder is solely
responsible for any schedules required to be filed in accordance therewith. To the extent that
the limitation contained in this Section 2.6 applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by such Holder) and of
which a portion of this Warrant is exercisable shall be in the sole discretion of a Holder,
and the submission of a Notice of Exercise shall be deemed to be each Holder’s determination
of whether this Warrant is exercisable (in relation to other securities owned by such Holder)
and of which portion of this Warrant is exercisable, in each case subject to such aggregate
percentage limitation, and the Company shall have no obligation to verify or confirm the
accuracy of such determination. For purposes of this Section 2.6, in determining the
number of outstanding shares of the Common Stock, a Holder may rely on the number of
outstanding shares of the Common Stock as reflected in (x) the Company’s most recent Form 10-Q
or Form 10-K, as the case may be, (y) a more recent public announcement by the Company or
(z) any other notice by the Company or the Company’s transfer agent setting forth the number
of shares of the Common Stock outstanding. Upon the written or oral request of a Holder, the
Company shall within two Trading Days confirm orally and in writing to such Holder the number
of shares of the Common Stock then outstanding. In any case, the number of outstanding shares
of the Common Stock shall be determined after giving effect to the conversion or exercise of
securities of the Company, including this Warrant, by such Holder or its affiliates since the
date as of which such number of outstanding shares of the Common Stock was reported. The
provisions of this Section 2.6 may be waived by such Holder, at the election of such
Holder, upon not less than 61 days’ prior notice to the Company, and the provisions of this
Section 2.6 shall continue to apply until such 61st day (or such later
date, as determined by such Holder, as may be specified in such notice of waiver). For
purposes of this Section 2.6, an “Excluded Holder” shall mean a Holder (together with
such Holder’s affiliates) that beneficially owned in excess of 9.9% of the number of shares of
the Common Stock outstanding on the date this Warrant was issued to such Holder; provided,
however, that if thereafter such Holder (together with such Holder’s affiliates) shall
beneficially own 9.9% or a percentage less than 9.9% of the number of shares of the Common
Stock outstanding, then such Holder shall cease to be an “Excluded Holder” hereunder.


 


B-5 









 





3. COVENANTS OF THE COMPANY.




3.1. COVENANTS AS TO WARRANT SHARES. The Company covenants and agrees that all
Warrant Shares that may be issued upon the exercise of the rights represented by this Warrant
will, upon issuance, be validly issued and outstanding, fully paid and nonassessable, and free
from all taxes, liens and charges with respect to the issuance thereof. The Company further
covenants and agrees that the Company will at all times during the Exercise Period have
authorized and reserved, free from preemptive rights, a sufficient number of shares of the
Common Stock to provide for the exercise of the rights represented by this Warrant. If at any
time during the Exercise Period the number of authorized but unissued shares of the Common
Stock shall not be sufficient to permit exercise of this Warrant, the Company will use its
commercially reasonable efforts to take such corporate action in compliance with applicable
law as may, in the opinion of its counsel, be necessary to increase its authorized but
unissued shares of the Common Stock to such number of shares as shall be sufficient for such
purposes. The Company further covenants and agrees to use its commercially reasonable efforts
to keep the Warrant Shares authorized for listing on at least one Eligible Market and to
maintain an effective registration statement with the SEC with respect to the offer or sale of
the Warrant Shares.




3.2. NOTICES OF RECORD DATE AND CERTAIN OTHER EVENTS. In the event of any taking
by the Company of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or other
distribution, the Company shall mail to the Holder, at least fifteen (15) days prior to the
date on which any such record is to be taken for the purpose of such dividend or distribution,
a notice specifying such date. In the event of any voluntary dissolution, liquidation or
winding up of the Company, the Company shall mail to the Holder, at least fifteen (15) days
prior to the date of the occurrence of any such event, a notice specifying such date. In the
event the Company authorizes or approves, enters into any agreement contemplating, or solicits
stockholder approval for any Fundamental Transaction, as defined in Section 6 herein,
the Company shall mail to the Holder, at least fifteen (15) days prior to the date of the
occurrence of such event, a notice specifying such date. Notwithstanding the foregoing, the
failure to deliver such notice or any defect therein shall not affect the validity of the
corporate action required to be described in such notice.



4. ADJUSTMENT OF EXERCISE PRICE AND SHARES. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set
forth in this Section 4.




(A) If the Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on the Common Stock or otherwise makes a distribution on any class of capital stock
that is payable in shares of the Common Stock, (ii) subdivides outstanding shares of the
Common Stock into a larger number of shares, or (iii) combines outstanding shares of the
Common Stock into a smaller number of shares, then in each such case the Exercise Price shall
be multiplied by a fraction of which the numerator shall be the number of shares of the Common
Stock outstanding immediately before such event and of which the denominator shall be the
number of shares of the Common Stock outstanding immediately after such event and the number
of Warrant Shares issuable upon exercise of this Warrant shall be proportionately adjusted.
Any adjustment made pursuant to clause (i) of this paragraph shall become effective
immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any adjustment
pursuant to clause (ii) or (iii) of this paragraph shall become effective immediately after
the effective date of such subdivision or combination.


 


B-6 









 






(B) If the Company, at any time while this Warrant is outstanding, distributes to holders
of the Common Stock (i) evidences of its indebtedness, (ii) any security (other than a
distribution of the Common Stock covered by the preceding paragraph), (iii) rights or warrants
to subscribe for or purchase any security, or (iv) any other asset (in each case, “Distributed
Property”), then in each such case the Holder shall be entitled upon exercise of this Warrant
for the purchase of any or all of the Warrant Shares, to receive the amount of Distributed
Property which would have been payable to the Holder had such Holder been the holder of such
Warrant Shares on the record date for the determination of stockholders entitled to such
Distributed Property. The Company will at all times set aside in escrow and keep available for
distribution to such holder upon exercise of this Warrant a portion of the Distributed
Property to satisfy the distribution to which such Holder is entitled pursuant to the
preceding sentence.




(C) Upon the occurrence of each adjustment pursuant to this Section 4, the
Company at its expense will, at the written request of the Holder, promptly compute such
adjustment in accordance with the terms of this Warrant and prepare a certificate setting
forth such adjustment, including a statement of the adjusted Exercise Price and adjusted
number or type of Warrant Shares or other securities issuable upon exercise of this Warrant
(as applicable), describing the transactions giving rise to such adjustments and showing in
detail the facts upon which such adjustment is based. Upon written request, the Company will
promptly deliver a copy of each such certificate to the Holder and to the Company’s transfer
agent.




(D) No adjustment in the Exercise Price shall be required unless such adjustment would
require an increase or decrease of at least $0.0001; provided, however, that any adjustments
which by reason of this Section 4(D) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment; provided, further, however, that
adjustments shall be required and made in accordance with the provisions of this Section
4 (other than this Section 4(D)) not later than such time as may be required in
order to preserve the tax-free nature of a distribution, if any, to the Holder of this Warrant
or the Warrant Shares issuable upon the exercise hereof. All calculations under this
Section 4 shall be made to the $0.0001 or to the nearest 1/1000th of a share, as the
case may be. Anything in this Section 4 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Exercise Price, in addition to those required
by this Section 4, as it in its discretion shall deem to be advisable in order that
any stock dividend, subdivision of shares or distribution of rights to purchase stock or
securities convertible or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.



5. FRACTIONAL SHARES. No fractional shares shall be issued upon the exercise of this
Warrant as a consequence of any adjustment pursuant hereto. All Warrant Shares (including
fractions) issuable upon exercise of this Warrant may be aggregated for purposes of determining
whether the exercise would result in the issuance of any fractional share. If, after
aggregation, the exercise would result in the issuance of a fractional share, the number of
Warrant Shares to be issued will be rounded down to the nearest whole share.


 


B-7 









 





6. FUNDAMENTAL TRANSACTIONS. If any capital reorganization, reclassification of the
capital stock of the Company, consolidation or merger of the Company with another entity in which
the Company is not the surviving corporation, or sale, transfer or other disposition of all or
substantially all of the Company’s assets to another entity shall be effected (any such transaction
being hereinafter referred to as a “Fundamental Transaction”), then the Holder shall thereafter
have the right to purchase and receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore issuable upon exercise of this
Warrant, such shares of stock, securities or assets as would have been issuable or payable with
respect to or in exchange for a number of Warrant Shares equal to the number of Warrant Shares
immediately theretofore issuable upon exercise of this Warrant, had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition not taken place, and
in any such case appropriate provision shall be made with respect to the rights and interests of
the Holder to the end that the provisions hereof (including, without limitation, provision for
adjustment of the Exercise Price) shall thereafter be applicable, as nearly equivalent as may be
practicable in relation to any share of stock, securities or assets thereafter deliverable upon the
exercise thereof. The Company shall not effect any such consolidation, merger, sale, transfer or
other disposition unless prior to or simultaneously with the consummation thereof the successor
entity (if other than the Company) resulting from such consolidation or merger, or the entity
purchasing or otherwise acquiring such assets or other appropriate corporation or entity shall
assume the obligation to deliver to the Holder, at the last address of the Holder appearing on the
books of the Company, such shares of stock, securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase, and the other obligations under this
Warrant. Notice of any such reorganization, reclassification, consolidation, merger, sale, transfer
or other disposition and of said provisions so proposed to be made, shall be mailed to the Holders
of the Warrants not less than twenty (20) days prior to such event. The provisions of this
Section 6 shall similarly apply to successive reorganizations, reclassifications,
consolidations, mergers, sales, transfers or other dispositions, each of which transactions shall
also constitute a Fundamental Transaction.



7. NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will
not, by amendment of its Certificate of Incorporation, Bylaws or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Warrant, and will at all times in good faith carry out all the provisions
of this Warrant. Without limiting the generality of the foregoing, the Company (i) shall not
increase the par value of any shares of the Common Stock receivable upon the exercise of this
Warrant above the Exercise Price then in effect, (ii) shall take all such actions as may be
necessary or appropriate in order that the Company may validly and legally issue fully paid and
nonassessable shares of the Common Stock upon the exercise of this Warrant, and (iii) shall, so
long as this Warrant is outstanding, take all action necessary to reserve and keep available out of
its authorized and unissued shares of the Common Stock, solely for the purpose of effecting the
exercise of this Warrant, 100% of the Warrant Shares issuable upon exercise of this Warrant then
outstanding (without regard to any limitations on exercise).


 


B-8 









 





8. NO STOCKHOLDER RIGHTS. Other than as provided in Section 3.2 or otherwise
herein, this Warrant in and of itself shall not entitle the Holder to any voting rights or other
rights as a stockholder of the Company.



9. TRANSFER OF WARRANT. Subject to applicable laws, this Warrant and all rights
hereunder are transferable, by the Holder in person or by duly authorized attorney, upon delivery
of this Warrant and the form of assignment attached hereto as Exhibit B to any transferee
designated by Holder. The transferee shall sign an investment letter in form and substance
reasonably satisfactory to the Company and its counsel. Any purported transfer of all or any
portion of this Warrant in violation of the provisions of this Warrant shall be null and void.



10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant is lost, stolen,
mutilated or destroyed, the Company may, on such terms as to indemnity or otherwise as it may
reasonably impose (which shall, in the case of a mutilated Warrant, include the surrender thereof),
issue a new Warrant of like denomination and tenor as this Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated or destroyed Warrant shall be at any time
enforceable by anyone.



11. NOTICES, ETC. All notices required or permitted hereunder shall be in writing and
shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when
sent by confirmed facsimile to the facsimile number specified in writing by the recipient if sent
during normal business hours of the recipient on a Trading Day, if not, then on the next Trading
Day, (c) the next Trading Day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent to the Company at the address listed on the signature page hereto and to Holder at the
applicable address set forth on the applicable signature page to the Subscription Agreement or at
such other address as the Company or Holder may designate by ten (10) days advance written notice
to the other parties hereto.



12. ACCEPTANCE. Receipt of this Warrant by the Holder shall constitute acceptance of
and agreement to all of the terms and conditions contained herein.



13. GOVERNING LAW. This Warrant and all rights, obligations and liabilities hereunder
shall be governed by, and construed in accordance with, the internal laws of the State of New York,
without giving effect to the principles of conflicts of law that would require the application of
the laws of any other jurisdiction.


 


B-9 









 





14. AMENDMENT OR WAIVER. Any term of this Warrant may be amended or waived (either
generally or in a particular instance and either retroactively or prospectively) with the written
consent of the Company and the holders of Company Warrants representing at least two-thirds of the
number of shares of the Common Stock then subject to outstanding Company Warrants. Notwithstanding
the foregoing, (a) this Warrant may be amended and the observance of any term hereunder may be
waived without the written consent of the Holder only in a manner which applies to all Company
Warrants in the same fashion and (b) the number of Warrant Shares subject to this Warrant and the
Exercise Price of this Warrant may not be amended, and
the right to exercise this Warrant may not be waived, without the written consent of the
Holder. The Company shall give prompt written notice to the Holder of any amendment hereof or
waiver hereunder that was effected without the Holder’s written consent. No waivers of any term,
condition or provision of this Warrant, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or provision.



[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]




 


B-10 









 







IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its duly authorized
officer as of February 25, 2010.



	 	 	 	 	 
	 	AMICUS THERAPEUTICS, INC.

 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	6 Cedar Brook Drive

Cranbury, NJ 08512

 	 



 


B-11 









 





Exhibit A




FORM OF NOTICE OF EXERCISE





			
	TO:	 	AMICUS THERAPEUTICS, INC.






Reference is made to that certain Warrant to Purchase Common Stock, dated March [•], 2010, No.

 _____ 

of a series of similar Warrants to Purchase Common Stock (the “Warrant”).
Capitalized terms used herein and not otherwise defined shall have the respective
meanings set forth in the Warrant.




(1) [_] The undersigned hereby elects to purchase                      shares of the common
stock, par value $.01 (the “Common Stock”), of AMICUS THERAPEUTICS, INC. (the “Company”)
pursuant to the terms of the Warrant, and tenders herewith payment of the Exercise Price
in full, together with all applicable transfer taxes, if any.




[_] The undersigned hereby elects to purchase                      shares of the Common Stock
pursuant to the terms of the net exercise provisions set forth in Section 2.1 of the
Warrant, and shall tender payment of all applicable transfer taxes, if any.




(2) Please issue the certificate for shares of the Common Stock in the name of:


 
 



Print or type name



 



Social Security or other Identifying Number



 



Street Address



 



City State Zip Code




(3) If such number of shares shall not be all the shares purchasable upon the exercise of the
Warrants evidenced by this Warrant, a new warrant certificate for the balance of such Warrants
remaining unexercised shall be registered in the name of and delivered to:



Please insert social security or other identifying number:                                         



 



(Please print name and address)



 






 


B-12 









 







	 	 	 	 	 
	Dated:
	 	 	 	 
	 
	 	 	 	 
	(Date)
	 	 	 	 
	 

	 	 

(Signature)
	 	 
	 
	 	 	 	 
	 

	 	 

(Print name)
	 	 






 


B-13 









 





Exhibit B




FORM OF ASSIGNMENT




(To assign the foregoing Warrant, execute this form and supply required information. Do not
use this form to purchase shares.)



FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned
to



 



	 	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 

(Please Print)
	 	 
	 
	 	 	 	 
	Address:
	 	 	 	 
	 

	 	 

(Please Print)
	 	 






Dated:                     , 201[_]




Holder’s Signature:                                         




Holder’s Address:                                         






NOTE:
The signature to this Form of Assignment must correspond with the name as it appears on the
face of the Warrant, without alteration or enlargement or any change whatever. Officers of
corporations and those acting in a fiduciary or other representative capacity should file proper
evidence of authority to assign the foregoing Warrant.




 


B-14 









 







Exhibit C




ISSUER FREE WRITING PROSPECTUSES




The Company’s Indicative Terms, dated February 25, 2010

Form of Subscription Agreement

Form of Placement Agency Agreement

Form of Escrow Agreement





 


C-1











 




Exhibit D




OPINION OF PEPPER HAMILTON LLP




1. The Company is a corporation validly existing and in good standing under the law of the
State of Delaware with the requisite corporate power and authority necessary under such law to
permit it to conduct its business as described in the Prospectus.



2. The Company (a) has the requisite corporate power and authority to execute, deliver and
perform the Transaction Documents and (b) has taken all corporate action necessary to authorize its
execution, delivery and performance of the Transaction Documents.




3. Each of the Transaction Documents has been duly executed and delivered by the Company.



4. The Shares have been duly authorized by the Company and, when issued, delivered and paid
for as provided in the Placement Agency Agreement and the Subscription Agreements, the Shares will
be validly issued, fully paid and nonassessable, and the issuance of such Shares will not have been
issued in violation of any (a) preemptive rights contained in the DGCL, the certificate of
incorporation or by-laws of the Company or (b) similar contractual rights granted by the Company
pursuant to any contract or agreement listed on Schedule A to this letter.



5. The Warrants have been duly authorized by the Company and, when executed, delivered and
paid for as provided in the Placement Agency Agreement and the Subscription Agreements, the
Warrants will be validly issued and will be legal, valid and binding obligations of the Company,
and the issuance of such Warrants will not have been issued in violation of any (a) preemptive
rights contained in the DGCL, the certificate of incorporation or by-laws of the Company or (b)
similar contractual rights granted by the Company pursuant to any contract or agreement listed on
Schedule A to this letter.



6. The Warrant Shares have been duly authorized by the Company and, when issued and delivered
by the Company upon exercise thereof in accordance with the terms of the Warrants, the Warrant
Shares will be validly issued, fully paid and nonassessable, and the issuance of such Warrant
Shares will not have been issued in violation of any (a) preemptive rights contained in the DGCL,
the certificate of incorporation or by-laws of the Company or (b) similar contractual rights
granted by the Company pursuant to any contract or agreement listed on Schedule A to this
letter.



7. The statements in each of the Disclosure Package and the Prospectus under the caption
“Description of Our Common Stock,” insofar as such statements purport to summarize certain
provisions of the Common Stock or documents referred to therein, constitute a fair and accurate
summary of those provisions and fairly summarize in all material respects the documents referred to
therein.



8. No consent, authorization, approval or other action by, and no notice to or filing with,
any United States federal or New York governmental authority or regulatory body, is required for
the due execution, delivery or performance of the Transaction Documents by the Company and the
issuance by the Company of the Shares and the Warrants, except as have been obtained or made and
are in full force and effect, or except as may be required under the state securities or blue sky
laws of any jurisdiction in the United States (as to which we express no opinion) in connection
with the sale of the Shares and the Warrants.


 


D-1









 





9. The execution and delivery by the Company of the Transaction Documents do not, and the
performance by the Company of its obligations thereunder will not (a) result in a violation of the
Company’s certificate of incorporation or by-laws, (b) result in a violation of Applicable Laws
(other than performance by the Company of its obligations under the Section 9 of the Placement
Agency Agreement, as to which no opinion is expressed herein), (c) to our knowledge, based solely
upon a docket search conducted in the Superior Court of Middlesex County, New Jersey and the United
States District Court for the District of New Jersey as of January 25, 2010, result in a violation
of any order, writ, judgment, injunction, decree, determination or award, in each case entered by
either such court, and binding on the Company or its assets or (d) conflict with or result in a
breach of, a default under or the acceleration of (or entitle any party to accelerate) the maturity
of any obligation of the Company under, or result in or require the creation of any lien upon or
security interest in any property of the Company pursuant to the terms of, any agreement or
document listed in Schedule A to this letter.



10. The Company is not and, upon the closing of the Transaction, will not be, required to
register as an investment company under the Investment Company Act of 1940, as amended.



11. The statements referenced on Schedule B to this letter, insofar as such statements
constitute summaries of applicable provisions of the Federal Food, Drug, and Cosmetic Act, as
amended, and the regulations promulgated thereunder, fairly summarize in all material respects the
provisions purported to be summarized under such captions in the Prospectus.



12. To our knowledge, based solely upon a docket search conducted in the Superior Court of
Middlesex County, New Jersey and the United States District Court for the District of New Jersey as
of January 25, 2010, there are no actions, suits, investigations or proceedings pending to which
the Company is a party, before or by either such court which are required to be described in the
Registration Statement, the Disclosure Package or the Prospectus but are not so described.



13. Except as otherwise described in the Disclosure Package, to our knowledge, no person has
the right to require the Company to register under the Securities Act any shares of Common Stock or
shares of any other capital stock or other equity interest of the Company, or to include any such
shares or interest in the Registration Statement or the Transaction, whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the Shares in the Transaction
or otherwise, other than such rights that have been duly satisfied or waived.



On [•], 2010, a member of the staff of the SEC orally informed us that no stop order
suspending the effectiveness of the Registration Statement has been issued under the Securities
Act. To our knowledge, no proceedings for that purpose have been initiated or are pending or
threatened by the Commission. The Prospectus Supplement, the Term Sheet, the Form Agreement and any
“free writing prospectus” identified on Exhibit B to the Placement Agency Agreement that is
required to be filed under Rule 433 of the Securities Act have been duly filed with the SEC.


 


D-2









 





We further advise you that (a) the purpose of our professional engagement was not to establish
or confirm factual matters or financial or accounting matters, (b) except as expressly set forth
herein, we are not passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement, the Prospectus, the Term
Sheet or the Form Agreement or any amendment or supplement thereto, (c) we assume no responsibility
for and have not independently verified the accuracy, completeness or fairness of the financial
statements and related schedules and other financial data derived therefrom included in the
Registration Statement, the Prospectus, the Term Sheet or the Form Agreement or any amendment or
supplement thereto, and have not examined the accounting or financial records from which such
financial statements, schedules (if any) and relevant data are derived and (d) we have participated
in conferences with officers and other
representatives of the Company, representatives of the registered public accounting firm of
the Company, representatives of the Placement Agent and the Placement Agent’s counsel at which the
contents of the Registration Statement, the Prospectus, the Term Sheet and the Form Agreement and
any amendments or supplements thereto were discussed. Subject to the foregoing and based upon such
participation and discussions, the Registration Statement and the Prospectus (other than the
financial statements and other financial data derived therefrom contained therein or omitted
therefrom, as to which we assume no responsibility as noted above) each comply in all material
respects as to form with the Securities Act and the rules and regulations promulgated thereunder,
and no facts have come to our attention that have caused us to believe that (i) the Registration
Statement (other than the financial statements and other financial data derived therefrom contained
therein or omitted therefrom, as to which we assume no responsibility as noted above), at the time
it became effective, contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, (ii) the Disclosure
Package (other than the financial statements and other financial data contained or incorporated by
reference therein or omitted therefrom, as to which we assume no responsibility as stated above),
at [•] [A.M.][P.M.] on February [•], 2010 or on the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of circumstances under
which they were made, not misleading or (iii) the Prospectus (other than the financial statements
and other financial data contained or incorporated by reference therein or omitted therefrom, as to
which we assume no responsibility as stated above), as of February [•], 2010 or the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.




 


D-3









 







Exhibit E-1




OPINION OF BAKER BOTTS LLP




We have been retained by Amicus Therapeutics, Inc. (the “Company”) as special intellectual
property counsel to review the information relating to the Company’s intellectual property
contained solely in the below specified sections of (a) the Company’s Annual Report for the year
ended December 31, 2008 on Form 10-K (the “Annual Report”) and the Company’s Quarterly Report for
the quarter ended September 30, 2009 (the “Quarterly Report”) as incorporated by reference into the
Registration Statement and Prospectus (as defined in the Placement Agency Agreement) under the
captions “Risk Factors — Risks Related to Intellectual Property,” and “Business — Intellectual
Property” and (b) the Registration Statement under the caption “Certain Relationships and Related
Party Transactions — Mt. Sinai School of Medicine License Agreement.” Baker Botts L.L.P. (“the
Firm”) has represented the Company since 2006, during which time we have been engaged to prosecute
certain U.S. patents and applications to the extent summarized in Schedule A, attached hereto,
before the United States Patent and Trademark Office (the “USPTO”). We have never been engaged by
the Company with respect to any licensing, litigation or trade secret matters.



We have not been retained or engaged by the Company to address or otherwise pass on any other
information in the (A) registration statement under the Securities Act of 1933, as amended (the
“Securities Act”), on Form S-3 (File No. 333-158405) originally dated and filed with the Securities
and Exchange Commission (the “Commission”) on April 3, 2009, as amended (the “Registration
Statement”), including (i) all financial schedules and exhibits thereto and (ii) all documents
incorporated by reference or deemed to be incorporated by reference therein, (B) the final
prospectus supplement dated as of February [•], 2010 filed with the Commission pursuant to Rule
424(b) under the Securities Act (the “Prospectus Supplement”), and (C) the issuer free writing
prospectus dated as of February [•], 2010 filed with the Commission pursuant to Rule 433 of the
Securities Act (the “Issuer Free Writing Prospectus” and, together with the Registration Statement
and the Prospectus Supplement, the “Disclosure Package”), nor have we acted as counsel to the
Company in any other capacity in connection with the offer and sale of securities on the date
hereof to the purchaser of common stock listed on Exhibit 1 of the Placement Agency Agreement dated
February [•], 2009 (the “Placement Agreement,”) among the Company and the Placement Agents set
forth therein. This opinion is provided to you at the request of the Company pursuant to Section
7(b) of the Placement Agreement.



In our capacity as special intellectual property counsel to the Company and in the course of
this representation, we have reviewed only the following sections (the “Sections”) under the
captions “RISK FACTORS — Risks Related to Our Intellectual Property” and “BUSINESS — Intellectual
Property” in the Annual Report and the Quarterly Report:


 


E-1









 





RISK FACTORS





Risks Related to Our Intellectual Property




If we are unable to obtain and maintain protection for the intellectual property relating to
our technology and products, the value of our technology and products will be adversely
affected.




If we fail to comply with our obligations in our intellectual property licenses with third
parties, we could lose license rights that are important to our business.




If we are unable to protect the confidentiality of our proprietary information and know-how,
the value of our technology and products could be adversely affected.




If we infringe or are alleged to infringe intellectual property rights of third parties, it
will adversely affect our business.



BUSINESS





Intellectual Property — Patents and Trade Secrets

Intellectual Property — License Agreements



and the section (also a “Section”) captioned “Certain Relationships and Related Party Transactions
— Mt. Sinai School of Medicine License Agreement” in the Registration Statement.



Specifically, based on facts known to us at this time and without having made an
investigation, we are of the opinion as to the Company’s patents and patent applications owned by
or exclusively licensed to the Company that both (a) were prosecuted by lawyers of the Firm while
employed by the Firm or are being prosecuted by lawyers currently of the Firm and (b) listed in the
attached Schedule A (the “Baker Botts-Prosecuted Patents”) and patents and patent applications
owned by the Mount Sinai School of Medicine that we have not prosecuted and that have been licensed
to the Company listed in the attached Schedule A (collectively with the Baker Botts-Prosecuted
Patents, the “Patents”):




	 	(i)	 	Except as disclosed in the Disclosure Package, to our knowledge, no person or
entity has asserted any ownership rights in any of the Patents other than the assignee
identified in the records of the USPTO. To our knowledge, assignments have been
executed that cover each of the Baker Botts-Prosecuted Patents that is a
non-provisional patent application or issued patent, in which the named inventor(s) of
such Baker Botts-Prosecuted Patents assigned their rights in those Baker
Botts-Prosecuted Patents to the Company or Mt. Sinai, as appropriate. In those
instances in the attached Schedule A where it is indicated that an assignment has not
been recorded, our records nevertheless indicate that the inventor(s) of such
applications or patents have assigned their rights in the inventions disclosed therein
to either the Company or Mt. Sinai as appropriate. Schedule A reflects the publicly
available assignment information of the
USPTO’s website as of February
 _____, 2010 for each of the U.S. Patents listed. To
our knowledge, no liens have been filed against any of the Patents in the USPTO.




 


E-2









 





	 	(ii)	 	We believe the Firm, to the extent that it has been so engaged as indicated in
Schedule A, has filed and/or prosecuted each of the Baker Botts-Prosecuted Patents in
accordance with the rules and regulations of the USPTO.
	 
	 	(iii)	 	We believe that the attorneys currently of the Firm who have a duty of candor
under 37 CFR § 1.56 with respect to the Baker Botts-Prosecuted Patents listed in
Schedule A have complied and are continuing to comply on an ongoing basis with their
duty of candor and good faith in dealing with the USPTO with respect to the Baker
Botts-Prosecuted Patents, including the duty to disclose to the USPTO all information
known to them to be material to the patentability of each of the Baker Botts-Prosecuted
Patents. We also believe that attorneys of the Firm who had a duty of candor under 37
CFR § 1.56 with respect to the Baker Botts-Prosecuted Patents listed in Schedule A
complied with their duty of candor and good faith in dealing with the USPTO with
respect to the Baker Botts-Prosecuted Patents during their employment with the Firm,
including the duty to disclose to the USPTO all information known to them to be
material to the patentability of each of the Baker Botts-Prosecuted Patents.





Although we have reviewed the foregoing listed Sections, we are not passing upon and do not
assume any responsibility for the accuracy of, completeness of, or fairness of the statements in
said Sections. Nonetheless, nothing has come to our attention that has caused us to believe that
(i) as of the date hereof, the Sections contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the statements in the Sections, in the light
of the circumstances under which they were made, not misleading, and (ii) at [•] [a][p].m., Eastern
time, on February [•], 2010 or on the date hereof, said Sections contained or contain any untrue
statement of a material fact or omitted or omit to state any material fact necessary in order to
make the statements in said Sections, in the light of the circumstances under which they were made,
not misleading. Except as set forth in the Disclosure Package, to our knowledge and without having
conducted an investigation, there is no claim, action, proceeding or litigation relating to the
Patents or the patent rights of others that is pending or threatened against the Company before any
court, governmental or administrative agency or body of which we are aware.



To the extent the statements made in said Sections constitute summaries of law, such
statements, in our opinion, accurately summarize in all material respects the provisions of the
laws, referred to therein. The opinions set forth in the above sentence are limited in all
respects to U.S. federal patent law, each as in effect on the date hereof.


 


E-3









 





Phrases herein such as “to our knowledge,” “known to us,” or “of which we are aware,” and
those with equivalent wording, refer to the conscious awareness of information by the lawyers
currently of this Firm who have performed services for the Company in connection with the
prosecution of the Patents, without any independent investigation by any lawyer of this Firm.



We understand that, by making the request to us to provide this opinion to you, the Company
does not intend to waive the attorney-client privilege with respect to any communications between
the Company and the Firm or information that the Company has furnished to us. Moreover, please be
advised that our response to you should not be construed in any way to constitute a waiver of the
protection of the attorney work-product privilege with respect to any of our files involving the
Company.



The opinions set forth in this letter are as of the date hereof except as otherwise noted. We
disclaim any undertaking to advise you of changes that hereafter may be brought to our attention.
This response is further limited to inquiry of the lawyers currently in our Firm who have billed
time to Company’s matters as of that date. Except as otherwise indicated in the opinions set forth
in paragraphs (i), (ii) and (iii) above, we disclaim any responsibility to comment on any matters
to which any lawyer who is not currently with this Firm may have given substantive attention while
with this Firm or any matters to which any lawyer who is currently with this Firm may have given
substantive attention prior to joining this Firm but to which substantive attention has not been
given after such lawyer joined this Firm.



This letter has been prepared solely for your use in connection with the closing on the date
hereof of the sale of the Company’s Common Stock as contemplated by the Disclosure Materials, and
shall not be relied upon, quoted in whole or in part or otherwise be referred to, nor be filed with
or furnished to any government agency or other person or entity, without prior written consent of
the Firm.


 


E-4









 





Exhibit E-1




OPINION OF HOFFMAN & BARON, LLP




We have been retained by Amicus Therapeutics, Inc. (the “Company”) as special intellectual
property counsel to review the information relating to the Company’s intellectual property
contained solely in the below specified sections of (a) the Company’s Annual Report for the year
ended December 31, 2008 on Form 10-K (the “Annual Report”) and the Company’s Quarterly Report for
the quarter ended September 30, 2009 (the “Quarterly Report”) as incorporated by reference into the
Registration Statement and Prospectus (as defined in the Placement Agency Agreement) under the
captions “Risk Factors — Risks Related to Intellectual Property,” and “Business — Intellectual
Property” and (b) the Registration Statement under the caption “Certain Relationships and Related
Party Transactions — Mt. Sinai School of Medicine License Agreement.” Hoffmann & Baron, LLP (“the
Firm”) has represented the Company since 2008, during which time we have been engaged to prosecute
the U.S. patents and applications to the extent summarized in Schedule A, attached hereto, before
the United States Patent and Trademark Office (the “USPTO”). We have never been engaged by the
Company with respect to any licensing, litigation or trade secret matters.



We have not been retained or engaged by the Company to address or otherwise pass on any other
information in the (A) registration statement under the Securities Act of 1933, as amended (the
“Securities Act”), on Form S-3 (File No. 333-158405) originally dated and filed with the Securities
and Exchange Commission (the “Commission”) on April 3, 2009, as amended (the “Registration
Statement”), including (i) all financial schedules and exhibits thereto and (ii) all documents
incorporated by reference or deemed to be incorporated by reference therein, (B) the final
prospectus supplement dated as of February [•], 2010 filed with the Commission pursuant to Rule
424(b) under the Securities Act (the “Prospectus Supplement”), and (C) the issuer free writing
prospectus dated as of February [•], 2010 filed with the Commission pursuant to Rule 433 of the
Securities Act (the “Issuer Free Writing Prospectus” and, together with the Registration Statement
and the Prospectus Supplement, the “Disclosure Package”), nor have we acted as counsel to the
Company in any other capacity in connection with the offer and sale of securities on the date
hereof to the purchaser of common stock listed on Exhibit 1 of the Placement Agency Agreement dated
February [•], 2009 (the “Placement Agreement,”) among the Company and the Placement Agents set
forth therein. This opinion is provided to you at the request of the Company pursuant to Section
7(b) of the Placement Agreement.



In our capacity as special intellectual property counsel to the Company and in the course of
this representation, we have reviewed the following sections (the “Sections”) under the captions
“RISK FACTORS — Risks Related to Our Intellectual Property” and “BUSINESS — Intellectual
Property” in the Annual Report and the Quarterly Report:


 


E-5









 





RISK FACTORS





Risks Related to Our Intellectual Property




If we are unable to obtain and maintain protection for the intellectual property relating to
our technology and products, the value of our technology and products will be adversely
affected.




If we fail to comply with our obligations in our intellectual property licenses with third
parties, we could lose license rights that are important to our business.




If we are unable to protect the confidentiality of our proprietary information and know-how,
the value of our technology and products could be adversely affected.




If we infringe or are alleged to infringe intellectual property rights of third parties, it
will adversely affect our business.



BUSINESS





Intellectual Property — Patents and Trade Secrets

Intellectual Property — License Agreements



and the section (also a “Section”) captioned “Certain Relationships and Related Party Transactions
— Mt. Sinai School of Medicine License Agreement” in the Registration Statement.



Specifically, based on facts known to us at this time and without having made an
investigation, we are of the opinion as to the Company’s patents and patent applications owned by
or exclusively licensed to the Company that are and/or were both (a) prosecuted or are being
prosecuted by us and (b) listed in the attached Schedule A (the “Owned Patents”) and patents and
patent applications owned by third parties that we have not prosecuted and that have been licensed
to the Company (collectively with the Owned Patents, the “Patents”):




	 	(ii)	 	Except as disclosed in the Disclosure Package, to our knowledge, no person or
entity has asserted any ownership rights in any of the Patents other than the assignee
identified in the records of the USPTO. In addition, for cases for which the Firm has
drafted we have filed and recorded an assignment in the USPTO for each of the Owned
Patents that is a non-provisional patent application or issued patent, in which the
named inventor(s) of such Owned Patents assigned their rights in those Owned Patents to
the Company or the Company’s licensor, as appropriate; or if the assignment has not
been filed and/or recorded, we believe the Company is entitled to receive the
assignment and the inventor(s) will provide the assignment. To our knowledge, no liens
have been filed against any of the Patents in the USPTO.




 


E-6









 











	 	(ii)	 	We believe the Firm, to the extent that it has been so engaged, has filed
and/or prosecuted each of the U.S. Patents in accordance with the rules and regulations
of the USPTO.






	 	(iii)	 	We believe we have complied and are continuing to comply on an ongoing basis
with the required duty of candor and good faith in dealing with the USPTO with respect
to the U.S. Patents prosecuted or being prosecuted by the Firm, including the duty to
disclose to the USPTO all information known to us to be material to the patentability
of each of the U.S. Patents.





Although we have reviewed the foregoing listed Sections, we are not passing upon and do not
assume any responsibility for the accuracy of, completeness of, or fairness of the statements in
said Sections. Nonetheless, nothing has come to our attention that has caused us to believe that
(i) as of the date hereof, the Sections contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the statements in the Sections, in the light
of the circumstances under which they were made, not misleading, and (ii) at [•] [a][p].m., Eastern
time, on February [•], 2010 or on the date hereof, said Sections contained or contain any untrue
statement of a material fact or omitted or omit to state any material fact necessary in order to
make the statements in said Sections, in the light of the circumstances under which they were made,
not misleading. Except as set forth in the Disclosure Package, there is no claim, action,
proceeding or litigation relating to the Patents or the patent rights of others that is pending or
threatened against the Company before any court, governmental or administrative agency or body of
which we are aware.



To the extent the statements made in said Sections constitute summaries of law, such
statements, in our opinion, accurately summarize in all material respects the provisions of the
laws, referred to therein. The opinions set forth in the above sentence are limited in all
respects to U.S. federal patent law, each as in effect on the date hereof.



Phrases herein such as “to our knowledge,” “known to us,” or “of which we are aware,” and
those with equivalent wording, refer to the conscious awareness (as such term has been interpreted
under the Legal Opinion Accord of the ABA Section of Business Law (1991)) of information by the
lawyers currently of this Firm who have performed services for the Company in connection with the
prosecution of the Patents, without any independent investigation by any lawyer of this Firm.


 


E-7









 





We understand that, by making the request to us to provide this opinion to you, the Company
does not intend to waive the attorney-client privilege with respect to any communications between
the Company and the Firm or information that the Company has furnished to us. Moreover, please be
advised that our response to you should not be construed in any way to constitute a waiver of the
protection of the attorney work-product privilege with respect to any of our files involving the
Company.



The opinions set forth in this letter are as of the date hereof except as otherwise noted. We
disclaim any undertaking to advise you of changes that hereafter may be brought to our attention.
This response is further limited to inquiry of the lawyers currently in our Firm who have billed
time to Company’s matters as of that date. Except as otherwise indicated in the
opinions set forth in paragraphs (i), (ii) and (iii) above, we disclaim any responsibility to
comment on any matters to which any lawyer who is not currently with this Firm may have given
substantive attention while with this Firm or any matters to which any lawyer who is currently with
this Firm may have given substantive attention prior to joining this Firm but to which substantive
attention has not been given after such lawyer joined this Firm.



This letter has been prepared solely for your use in connection with the closing on the date
hereof of the sale of the Company’s Common Stock as contemplated by the Disclosure Materials, and
shall not be relied upon, quoted in whole or in part or otherwise be referred to, nor be filed with
or furnished to any government agency or other person or entity, without prior written consent of
the Firm.




 


E-8









 







Exhibit F




FORM OF LOCK-UP AGREEMENT




February ___, 2010




Leerink Swann LLC

One Federal Street, 37th Floor

Boston, Massachusetts 02110




Re:   Amicus Therapeutics, Inc. (the “Company”)



Ladies and Gentlemen:



The undersigned is an owner of record or beneficially of certain shares of Common Stock of the
Company (“Common Stock”) or securities convertible into or exchangeable or exercisable for Common
Stock. The Company proposes to issue and sell units consisting of (i) one share of Common Stock
and (ii) one warrant to purchase 0.375 of a share of Common Stock (the “Offering”) for which you
will act as the exclusive placement agent. The undersigned acknowledges that you are relying on
the representations and agreements of the undersigned contained in this letter in carrying out the
Offering and in entering into placement arrangements with the Company with respect to the Offering.



In consideration of the foregoing, the undersigned hereby agrees that the undersigned will not
(and will cause any spouse or immediate family member of the spouse or the undersigned living in
the undersigned’s household not to), without the prior written consent of Leerink Swann LLC (the
“Placement Agent”) (which consent may be withheld in its sole discretion), directly or indirectly,
sell, offer, contract or grant any option to sell (including without limitation any short sale),
pledge, transfer, establish an open “put equivalent position” or liquidate or decrease a “call
equivalent position” within the meaning of Rule 16a-1(h) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), or otherwise dispose of or transfer (or enter into any transaction
which is designed to, or might reasonably be expected to, result in the disposition of), including
the filing (or participation in the filing) of a registration statement (except for a registration
statement on Form S-8) with the Securities and Exchange Commission in respect of, any shares of
Common Stock, options to acquire shares of Common Stock, or securities exchangeable or exercisable
for or convertible into shares of Common Stock currently or hereafter owned either of record or
beneficially (as defined in Rule 13d-3 under the Exchange Act) by the undersigned (or such spouse
or family member), or publicly announce an intention to do any of the foregoing, for a period
commencing on the date hereof and continuing through the close of trading on the date 60 days after
the date of the Prospectus Supplement relating to the Offering (the “Lock-Up Period”). The
foregoing sentence shall not apply to (i) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the Offering, provided that
no filing under Section 16(a) of the



 


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Exchange Act or other public announcement shall be required or
voluntarily made during the Lock-Up Period in connection with subsequent sales of Common Stock or other securities acquired in such open
market transactions, (ii) transactions effected under any trading plan established pursuant to Rule
10b5-1 of the Exchange Act for the transfer of shares of Common Stock that has been entered into by
the undersigned prior to the date of this agreement, (iii) a bona fide gift or gifts or (iv) the
transfer of any or all of the shares of Common Stock or securities convertible into or exchangeable
or exercisable for Common Stock owned by the undersigned, either during the undersigned’s lifetime
or on death, by gift, will or intestate succession to the immediate family of the undersigned or to
a trust the beneficiaries of which are exclusively the undersigned and/or a member or members of
the undersigned’s immediate family; provided, however, that in each of (iii) and (iv) above, it
shall be a condition to such transfer that the transferee executes and delivers to the Placement
Agent an agreement stating that the transferee is receiving and holding the Common Stock subject to
the provisions of this letter agreement, and there shall be no further transfer of such Common
Stock except in accordance with this letter; and, provided, further, that in the case of any
transfer or distribution pursuant to clause (iii) or (iv) above, no filing by any party (donor,
donee, transferor or transferee) under the Exchange Act or other public announcement shall be
required or shall be made voluntarily in connection with such transfer (other than a filing on a
Form 5 made after expiration of the Lock-Up Period). In addition, the undersigned agrees that,
without the prior written consent of the Placement Agent, it will not, during the Lock-Up Period,
make any demand for or exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common Stock.



If (i) the Company issues an earnings release or material news, or a material event relating
to the Company occurs, during the last 17 days of the Lock-Up Period, or (ii) prior to the
expiration of the Lock-Up Period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-Up Period, the restrictions imposed
by this agreement shall continue to apply until the expiration of the 18-day period beginning on
the issuance of the earnings release or the occurrence of the material news or material event,
unless the Placement Agent waives, in writing, such extension. The undersigned hereby acknowledges
that the Company has agreed in the Placement Agency Agreement to provide notice of any event that
would result in an extension of the Lock-Up Period pursuant to the previous paragraph to the
undersigned (in accordance with Section 5(h) of the Placement Agency Agreement) and agrees that any
such notice properly delivered will be deemed to have given to, and received by, the undersigned.
The undersigned hereby further agrees that, prior to engaging in any transaction or taking any
other action that is subject to the terms of this Lock-Up Agreement during the period from the date
of this Lock-Up Agreement to and including the 34th day following the expiration of the initial
Lock-Up Period, it will give notice thereof to the Company and will not consummate such transaction
or take any such action unless it has received written confirmation from the Company that the
Lock-Up Period (as such may have been extended pursuant to the previous paragraph) has expired.



The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock held by the undersigned except in
compliance with the foregoing restrictions.


 


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It is understood that if the Company advises the Placement Agent in writing that the parties
do not intend to proceed with the Offering, or if either the Company or the Placement Agent shall
advise the other party in writing that the Offering has been terminated, then the undersigned will
be released from its obligations under this agreement.



With respect to the Offering only, the undersigned waives any registration rights relating to
registration under the Securities Act of 1933, as amended, of any Common Stock owned either of
record or beneficially by the undersigned, including any rights to receive notice of the Offering.



This agreement is irrevocable and will be binding on the undersigned and the respective
successors, heirs, personal representatives, and assigns of the undersigned.



	 	 	 	 	 
	 	 	 
	Printed Name of Holder
	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 	 	 
	 

	 	Signature	 	 
	 
	 	 	 	 
	 	 	 
	Printed Name of Person Signing
	 	 







 


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