Exhibit 10.1


 


SUBSCRIPTION AGREEMENT


 


December 11, 2008


 


The undersigned investor
(the “Investor”) hereby confirms
its agreement with Momenta Pharmaceuticals, Inc. (the “Company”) as follows:


 


1.     This Subscription Agreement (this “Agreement”) is made as of the date set forth below between the
Company and the Investor.


 


2.     The Company has authorized the sale and issuance to certain
investors of up to an aggregate of 2,800,000 shares (the “Shares”) of its common stock, par value
$0.0001 per share (the “Common Stock”)
for a purchase price of $9.00 per Share (the “Purchase
Price”).


 


3.     The offering and sale of the Shares (the “Offering”) are being made pursuant to (1) an
effective Registration Statement on Form S-3 (Registration No. 333-140251)
filed by the Company with the Securities and Exchange Commission (the “Commission”) (the “Registration Statement”), which contains
the base prospectus (the “Base Prospectus”)
and was declared effective by the Commission on February 8, 2007, (2) if
applicable, certain “free writing prospectuses” (as that term is defined in Rule 405
under the Securities Act of 1933, as amended), that have or will be filed with
the Commission and delivered to the Investor on or prior to the date hereof and
(3) a final prospectus supplement (the “Prospectus
Supplement” and together with the Base Prospectus, the “Prospectus”) containing certain
supplemental information regarding the Shares and terms of the Offering that
will be filed with the Commission and delivered to the Investor (or made available
to the Investor by the filing by the Company of an electronic version thereof
with the Commission) along with the Company’s counterpart to this Agreement.


 


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 Shares set forth below for the aggregate purchase price set forth
below.  The Shares shall be purchased
pursuant to the Terms and Conditions for Purchase of Shares attached hereto as Annex
I and incorporated herein by this reference as if fully set forth
herein.  The Investor acknowledges that
the Offering is not being underwritten by the placement agent (the “Placement Agent”) named in the Prospectus
Supplement and that there is no minimum offering amount.


 


5.     The manner of settlement of the Shares purchased by the Investor
shall be determined by such Investor as follows:


 


Delivery by electronic book-entry at The Depository Trust
Company (“DTC”), registered in the
Investor’s name and address as set forth below, and released by American Stock
Transfer & Trust Company, the Company’s transfer agent (the “Transfer Agent”) (attention:  Isaac Kagan, telephone: (781) 921-8293, to
the Investor at the Closing (as defined in Section 3.1 of Annex A
hereto).  NO LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS
AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:


 


(I)            DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED
WITH THE SHARES ARE MAINTAINED TO SET UP A DEPOSIT/WITHDRAWAL AT CUSTODIAN (“DWAC”)
INSTRUCTING THE TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE
SHARES, AND


 

















 


(II)        REMIT BY
WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE
SHARES BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT:


 


Bank:                              U.S. Bank National
Association

ABA:                              091000022

A/C:                                180121167365

BNF:                               U.S. Bank
Trust N.A.

OBI:                                Trust
Finance Management

Attn:                               129688000
 Ref                                  Leerink-Momenta
Escrow


 


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 SHARES 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.


 


6.     The Investor represents that, except as set forth below, (a) it
has had no position, office or other material relationship within the past
three years with the Company or persons known to it to be affiliates of the
Company, (b) it is not a NASD member or an Associated Person (as such term
is defined under the NASD Membership and Registration Rules Section 1011)
as of the Closing, and (c) neither the Investor nor any group of Investors
(as identified in a public filing made with the Commission) of which the
Investor is a part in connection with the Offering of the Shares, 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.”)


 


7.     The Investor represents that it has received or can obtain on
the Commission’s EDGAR filing system the Base Prospectus, which is part of the
Company’s Registration Statement, the documents incorporated by reference
therein, and any free writing prospectus (collectively, the “Disclosure Package”), prior to or in
connection with the receipt of this Agreement along with the Company’s
counterpart to this Agreement.


 


8.     No offer by the Investor to buy Shares will be accepted and no
part of the Purchase Price will be delivered to the Company until the Company
has accepted such offer by countersigning a copy of this Agreement, and any
such offer may be withdrawn or revoked, without obligation or commitment of any
kind, at any time prior to the Company (or the Placement Agent on behalf of the
Company) sending (orally, in writing, or by electronic mail) notice of its
acceptance of such offer.  An indication
of interest will involve no obligation or commitment of any kind until this
Agreement is accepted and countersigned by or on behalf of the Company.


 


	
  Number of Shares:

  	
   

  	
   

  
	
  Purchase Price Per Share:

  	
  $  9.00

  	
   

  
	
  Aggregate Purchase Price:

  	
  $

  	
   

  
				



 


2

















 


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 December 11,
2008


 


	
   

  	
   

  
	
   

  	
  INVESTOR

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
						



 


Agreed and accepted this     


day of December 2008:


 


MOMENTA
PHARMACEUTICALS, INC.


 


 


	
  By:

  	
   

  	
   

  
	
   

  
	
  Name: Richard P. Shea

  
	
   

  
	
  Title: Senior Vice
  President and Chief Financial Officer

  



 


3

















 


ANNEX I


 


TERMS AND CONDITIONS
FOR PURCHASE OF SHARES


 


1.     Authorization and Sale of the
Shares.  Subject to the terms
and conditions of this Agreement, the Company has authorized the sale of the
Shares.


 


2.     Agreement to Sell and
Purchase the Shares; Placement Agent.


 


2.1   At the Closing (as defined in Section 3.1
of this Annex I), the Company will sell to the Investor, and the Investor will
purchase from the Company, upon the terms and conditions set forth herein, the
number of Shares set forth on the last page of the Agreement to which
these Terms and Conditions for Purchase of Shares are attached as Annex I
(the “Signature Page”) for the
aggregate purchase price therefor set forth on the Signature Page.


 


2.2   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 Shares to them. 
The Investor and the Other Investors are hereinafter sometimes
collectively referred to as the “Investors,”
and this Agreement and the Subscription Agreements executed by the Other
Investors are hereinafter sometimes collectively referred to as the “Agreements.”


 


2.3   The Investor acknowledges that the Company
intends to pay Leerink Swann LLC (the “Placement
Agent”) a fee (the “Placement Fee”)
in respect of the sale of Shares to the Investor.


 


2.4   The Company has entered into a Placement
Agency Agreement, dated December 11,
2008 (the “Placement Agreement”),
with the Placement Agent that 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.  A copy of the Placement Agreement is
available upon request.


 


3.     Closings and Delivery of the
Shares and Funds.


 


3.1   Closing.  The completion of the purchase and sale of
the Shares (the “Closing”) shall
occur at a place and time (the “Closing Date”)
to be specified by the Company and the Placement Agent, and of which the
Investors will be notified in advance by the Placement Agent, in accordance
with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”).  At the Closing, (a) the Company shall
cause the Transfer Agent to deliver to the Investor the number of Shares set
forth on the Signature Page registered in the name of the Investor or, if
so indicated on the Investor Questionnaire attached hereto as Schedule A,
in the name of a nominee designated by the Investor and (b) the aggregate
purchase price for the Shares being purchased by the Investor will be delivered
by or on behalf of the Investor to the Company.


 


3.2   (a)   Conditions to the Company’s Obligations.  The Company’s obligation to issue and sell
the Shares to the Investor shall be subject to: 
(i) the receipt by the Company of the purchase price for the Shares
being purchased hereunder as set forth on the Signature Page and (ii) the
accuracy of the representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled prior to the
Closing Date.


 


(b)   Conditions
to the Investor’s Obligations. 
The Investor’s obligation to purchase the Shares 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 that are contained in the Placement Agreement and the Subscription
Agreement, and to the condition that the 


 


1

















 


Placement
Agent shall not have:  (i) terminated
the Placement Agreement pursuant to the terms thereof or (ii) determined
that the conditions to the closing in the Placement 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 Shares that they have agreed to purchase from the Company or
the issuance of any minimum amount of Shares by the Company.


 


3.3   Delivery
of Funds by Electronic Book-Entry at The Depository Trust Company.  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
Shares 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 December 11, 2008, by and among the Company, the Placement
Agent and U.S. Bank National Association (the “Escrow Agent”):


 


Bank:                              U.S. Bank National
Association

ABA:                              091000022

A/C:                                180121167365

BNF:                               U.S. Bank
Trust N.A.

OBI:                                Trust
Finance Management

Attn:                               129688000
 Ref                                  Leerink-Momenta
Escrow


 


Such funds shall be held in
escrow until the Closing and delivered by the Escrow Agent on behalf of the
Investors to the Company upon the satisfaction, in the reasonable judgment of
the Placement Agent, of the conditions set forth in Section 3.2(b) hereof.  The Placement Agent shall have no rights in
or to any of the escrowed funds unless the Placement Agent and the Escrow Agent
are notified in writing by the Company in connection with the Closing that a
portion of the escrowed funds shall be applied to the Placement Fee as
contemplated by Section 2(e) of the Placement Agreement.  The Company and the Investor agree to
indemnify and hold the Escrow Agent and the Placement Agent harmless from and
against any and all losses, costs, damages, expenses and claims (including,
without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this Section 3.3
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. 
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.


 


3.4   Delivery
of Shares by Electronic Book-Entry at The Depository Trust Company.  No later
than one (1) business day after the execution of this Agreement by the
Investor and the Company, the Investor shall direct the
broker-dealer at which the account or accounts to be credited with the Shares
being purchased by such Investor are maintained, which broker/dealer shall be a
DTC participant, to set up a Deposit/Withdrawal at Custodian (“DWAC”) instructing American Stock Transfer &
Trust Company, the Company’s 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.  Simultaneously with
the delivery to the Company by the Escrow Agent of the funds held in escrow
pursuant to Section 3.3 above, the Company shall direct its transfer agent
to credit the Investor’s account or accounts with the Shares pursuant to the
information contained in the DWAC.


 


2

















 


4.     Representations, Warranties
and Covenants of the Investor.


 


4.1
 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
shares presenting an investment decision like that involved in the purchase of
the Shares, 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 Shares, (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 Shares 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.


 


4.2
 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 Shares, or
possession or distribution of offering materials in connection with the issue
of the Shares 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
Shares 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 have not made any representation or use of
any information in connection with the issue, placement, purchase and sale of
the Shares, except as set forth or incorporated by reference in the Disclosure
Package.


 


4.3   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) and except as the
indemnification agreements of the Investors herein may be legally
unenforceable.


 


4.4   The Investor understands that nothing in this
Agreement, the Prospectus or any other materials presented to the Investor in
connection with the purchase and sale of the Shares 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 Shares.


 


4.5   Each Investor represents, warrants and agrees
that, since the earlier to occur of (i) the date on which the Placement
Agent first contacted such Investor about the Offering and (ii) 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).  Each 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.  Each Investor
agrees that it will not use any of the Shares 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 Exchange Act, whether or not against the box, and all types 


 


3

















 


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.


 


5.     Survival of Representations,
Warranties and Agreements; Third Party Beneficiary. Notwithstanding
any investigation made by any party to this Agreement or by the Placement
Agent, all covenants, agreements, representations and warranties made by the
Company and the Investor herein will survive the execution of this Agreement,
the delivery to the Investor of the Shares being purchased and the payment
therefor.  The Placement Agent shall be a
third party beneficiary with respect to representations, warranties and
agreements of the Investor in Section 4 hereof.


 


6.     Notices.  All notices, requests, consents and other
communications hereunder will be in writing, will be mailed (a) if within
the domestic United States by first-class registered or certified airmail, or
nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by
International Federal Express or facsimile, and will be deemed given (i) if
delivered by first-class registered or certified mail domestic, three business
days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by
International Federal Express, two business days after so mailed and (iv) if
delivered by facsimile, upon electric confirmation of receipt and will be
delivered and addressed as follows:


 


6.1   if to the Company, to:


 


Momenta Pharmaceuticals, Inc.

675
West Kendall Street


Cambridge, MA 02142


Facsimile: 
(617) 621-3014

Attention:  General Counsel


 


with copies to:


 


Wilmer Cutler Pickering Hale and Dorr LLP

60 State Street

Boston, MA  02109

Facsimile:  (617) 526-5000


Attention: 
Steven D. Singer, Esq.


 


6.2   if to the Investor, at its
address on the Signature Page hereto, or at such other address or addresses
as may have been furnished to the Company in writing.


 


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


 


8.     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.


 


9.     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.


 


4

















 


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


 


11.   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 to the other parties.  The
Company and the Investor acknowledge and agree that the Company shall deliver
its counterpart to the Investor along with the Base Prospectus and the
Prospectus Supplement (or the filing by the Company of an electronic version
thereof with the Commission).


 


12.   Confirmation of Sale.  The Investor acknowledges and agrees that
such Investor’s receipt of the Company’s counterpart to this Agreement,
together with the Base Prospectus and the Prospectus Supplement (or the filing
by the Company of an electronic version thereof with the Commission), shall
constitute written confirmation of the Company’s sale of Shares to such
Investor.


 


13.   Press Release.  The Company and the Investor agree that the
Company shall issue a press release announcing the material terms of the
Offering prior to the opening of the financial markets in New York City on the
business day immediately after the date hereof to the extent permitted by
applicable law and the rules and regulations of the Commission.


 


14.   Termination.  In the event that the Placement 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.


 


5

















 


SCHEDULE A TO ANNEX I


 


MOMENTA PHARMACEUTICALS, INC.


 


INVESTOR QUESTIONNAIRE


 


Pursuant to Section 3
of Annex I to the Agreement, please provide us with the following
information:


 


	
  1.

  	
   

  	
  The exact name that your
  Shares are to be registered in. You may use a nominee name if appropriate:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  The relationship between
  the Investor and the registered holder listed in response to item 1 above:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  The mailing address of the
  registered holder listed in response to item 1 above:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  The Social Security Number
  or Tax Identification Number of the registered holder listed in the response
  to item 1 above:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Name of DTC Participant
  (broker-dealer at which the account or accounts to be credited with the
  Shares are maintained); please include the name and telephone number of the
  contract person at the broker-dealer:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  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:

  
	
   

  	
   

  	
   

  	
   

  



 


1