JOINDER TO AND AMENDMENT OF NOTE AND WARRANT PURCHASE AGREEMENT

Exhibit 10.2

JOINDER TO AND AMENDMENT OF

NOTE AND WARRANT PURCHASE AGREEMENT

JOINDER TO AND AMENDMENT OF NOTE AND WARRANT PURCHASE AGREEMENT (this “Amendment”) is dated as of June 30, 2016 and is entered into by and among AMICUS THERAPEUTICS, INC. (“Amicus” or the “Company”), a Delaware corporation with its principal place of business at 1 Cedar Brook Drive, Cranbury, New Jersey 08512, AMICUS THERAPEUTICS UK LIMITED (“Amicus UK”), a private limited company incorporated under the laws of England and Wales with company number  05541527 and its principal place of business at Phoenix House, Oxford Road, Tatling End, Gerrards Cross, Buckinghamshire SL9 7AP, United Kingdom, AMICUS THERAPEUTICS INTERNATIONAL HOLDING LTD (“Amicus UK Holding” and, together with Amicus and Amicus UK, the “Amicus Parties”), a private limited company incorporated under the laws of England and Wales with company number 10147996 and its principal place of business at Phoenix House, Oxford Road, Tatling End, Gerrards Cross, Buckinghamshire SL9 7AP, United Kingdom and each Purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively  the “Purchasers,” and together with Amicus, Amicus UK and Amicus UK Holding, the “Parties”) and is made with reference to that certain Note and Warrant Purchase Agreement, dated as of February 19, 2016, by and among Amicus, Amicus UK and each Purchaser identified on the signature pages thereto (the “Purchase Agreement”). Capitalized terms used and not defined herein shall have the meanings ascribed to them in the Purchase Agreement.

RECITALS

WHEREAS, Amicus UK Holding is a wholly-owned subsidiary of Amicus;

WHEREAS, pursuant to Section 8.12 of the Purchase Agreement, the Parties desire that Amicus UK Holding join as party to the Purchase Agreement as one of the Amicus Parties and that GCM Grosvenor Special Opportunities Master Fund, Ltd. join as a party to the Purchase Agreement as a Purchaser (the “Joining Parties”) in accordance with the terms and conditions set forth in this Amendment; and

WHEREAS, the Parties further desire to amend the Purchase Agreement and certain exhibits thereto in accordance with the terms and conditions set forth in this Amendment.

NOW, THEREFORE, in consideration of the premises and for good and valuable consideration, the receipt and adequacy of which are hereby expressly acknowledged, the Parties agree as follows:

Section 1.                                          JOINDER AND RELEASE

1.1                               Joinder to Purchase Agreement.  In consideration of the foregoing recitals, and by execution of this Amendment, the Joining Parties become party to the Purchase Agreement, bound by all of the terms and conditions thereof from and after the date hereof. The Joining Parties hereby ratify, as of the date hereof, and agree to be bound by, all of the terms, provisions, obligations and conditions of the Purchase Agreement.

Section 2.                                          AMENDMENTS TO PURCHASE AGREEMENT

2.1                               Exhibits.  The Purchase Agreement is hereby amended to contain an amended and restated Exhibit D and a new Exhibit E and Exhibit F, each as attached hereto.

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2.2                               Section 2.3.  Section 2.3 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

2.3                               At any time following the date of issuance of the Initial Notes and prior to the earlier of (i) the second (2nd) anniversary of the Initial Closing Date and (ii) such date as the VWAP for any four consecutive trading days of the Company’s common stock equals or exceeds 200.0% of the VWAP price as of the Initial Closing Date (the earlier of (i) and (ii), the “Additional Notes End Date”), the Company will have the option (at its sole discretion) to issue and sell to GCM Grosvenor Special Opportunities Master Fund, Ltd. up to $25,000,000 principal amount of additional notes and to issue and sell to Redmile Capital Offshore Fund II, Ltd. up to $5,000,000 principal amount of additional notes at least 60 days following Committee for Medicinal Products for Human Use (CHMP) positive opinion of migalastat in Europe, such notes the “Additional Notes,” and, together with the Initial Notes, the “Notes;” provided that, at the time of such issuance of Additional Notes, there has not occurred and be continuing any state of facts, event, change or effect that has had, or that would reasonably be expected to have, a material adverse effect on the business, properties, results of operations or financial condition of the Amicus Parties, individually or in the aggregate. The Company may exercise its right pursuant to this Section 2.3 by delivering notice to the Purchasers on or prior to the Additional Notes End Date, which notice shall indicate the aggregate amount of Additional Notes that the Company intends to issue and sell to the Purchasers.  For the sake of clarification, the Company shall not have the option to issue and sell Additional Notes to the Purchasers on or after the Additional Notes End Date unless notice thereof is delivered by the Company on or prior to the Additional Notes End Date.  All Additional Notes shall be issued on the same terms as the Initial Notes, except that all Additional Notes will mature on October 1, 2021, and will include warrants in substantially the form attached hereto as Exhibit F (such warrants, the “Additional Warrants,” and together with the Initial Warrants, the “Warrants”). The purchase price for the Additional Notes shall be 100% of the principal amount thereof and be paid in cash. All Additional Notes will be issued by Amicus UK Holding in the form set forth in Exhibit E.

2.3                               Section 2.4.  Section 2.4 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

The Company will provide a guaranty of the obligations under the Initial UK Notes and any Additional Notes that may be issued by Amicus UK or Amicus UK Holding in the form attached hereto as Exhibit D (the “Guarantee”).

2.4                               Section 8.5.  Section 8.5 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and permitted assigns. The Companies may not assign this Agreement or any rights or obligations hereunder without the prior written consent of Purchasers purchasing at least 50.01% of the principal amount of the Notes and Additional Notes issued and then outstanding hereunder. Subject to Section 7.7, any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Securities, provided such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”

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2.5                               Section 8.12.  Section 8.12 of the Purchase Agreement is hereby amended and restated in its entirety as follows:

Amendment and Waiver. No provision of this Agreement may be waived or amended except in a written instrument signed by the Companies and Purchasers purchasing at least 50.01% of the principal amount of the Notes and Additional Notes issued and then outstanding hereunder.

Section 3.   REPRESENTATIONS AND WARRANTIES; COVENANTS

3.1                               Ownership in Amicus UK Holding. Amicus represents and warrants that it owns one hundred percent (100%) of the equity interests in Amicus UK Holding.

3.2                               Amicus Covenants. Amicus represents warrants and covenants that it will comply with the restrictions on Indebtedness imposed on it by Section 5.1 of the Additional Notes, the form of which is attached hereto as Exhibit E.

3.3                               Ownership of Initial Notes.  Each Purchaser, as applicable, represents and warrants that it is the record and beneficial owner of the Initial Notes set forth beside its name in Schedule A to the Purchase Agreement.

Section 4.                                          MISCELLANEOUS

4.1                               Effectiveness of Amendment.  This Amendment shall become effective as of the date set forth in the preamble hereto upon execution and delivery by all Parties.

4.2                               Amendment; Binding Effect.  This Amendment may not be modified or amended except by an instrument in writing signed by individuals authorized to bind each respective Party.  The terms of this Amendment shall be binding upon, and inure to the benefit of, the Parties and their successors and permitted assigns.

4.3                               Governing Law.  This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

4.4                               Severability.  Whenever possible, each provision of this Amendment will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or the effectiveness or validity of any provision in any other jurisdiction, and this Amendment will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision had never been contained herein.

4.5                               Headings.  Paragraph headings have been inserted in this Amendment as a matter of convenience for reference only and it is agreed that such paragraph headings are not a part of this Amendment and shall not be used in the interpretation of any provision hereof.

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4.6                               Counterparts.  This Amendment may be executed in separate counterparts (including by means of telecopied or e-mailed signature pages) each of which shall be an original and all of which taken together shall constitute one and the same agreement.

4.7                               Assignments.  No Party may assign its rights or obligations pursuant to this Amendment without the prior written consent of the other Parties.

4.8                               Entire Agreement.  This Amendment embodies the complete agreement and understanding among the Parties relating to the subject matter hereof.

4.9                               Further Assurance.   Each Party shall execute and deliver any other document or instrument reasonably requested by any other Party to effectuate the terms of this Amendment.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the Parties have caused this Joinder and Amendment to be executed and acknowledged by their respective officers or representatives hereunto duly authorized, as of the date first above written.

[Signature Page to Amendment of N+W Purchase Agreement]

[Signature Page to Amendment of N+W Purchase Agreement]

[Signature Page to Amendment of N+W Purchase Agreement]

Exhibit D

AMENDED AND RESTATED
GUARANTEE

This Amended and Restated Guarantee (this “Guarantee”), dated June 30, 2016, by Amicus Therapeutics, Inc., a Delaware corporation with its principal place of business at 1 Cedar Brook Drive, Cranbury, New Jersey 08512 (“Amicus” or the “Guarantor”) in favor of each of the Purchasers identified on the signatures pages hereto (each, including their successors and permitted assigns, the “Purchasers”). Amicus and each of the Purchasers are referred to herein as a “Party” and together as the “Parties”.

W I T N E S S E T H:

WHEREAS, the Parties have entered into a Guarantee, dated as of February 19, 2016 (the “Original Guarantee”) in connection with the Note and Warrant Purchase Agreement, dated as of February 19, 2016, by and among the Guarantor, the purchasers named therein and Amicus Therapeutics UK Limited (“Amicus UK”), as amended by the Joinder to and Amendment of Note and Warrant Purchase Agreement, dated June 30, 2016, by and among the Guarantor, the Purchasers, Amicus UK and Amicus Therapeutics International Holding LTD (“Amicus UK Holding”) (and as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Note and Warrant Purchase Agreement”);

WHEREAS, the Purchasers have agreed to purchase the Initial UK Notes and any Additional Notes (collectively, the “Notes”) upon the terms and subject to the conditions set forth in the Note and Warrant Purchase Agreement;

WHEREAS, GCM Grosvenor Special Opportunities Master Fund, Ltd. was not a party to the Original Guarantee;

WHEREAS, Guarantor acknowledges that it will derive substantial direct and indirect benefit from the purchase of the Notes;

WHEREAS, it is a condition precedent to the obligation of the Purchasers to purchase the Notes that Guarantor shall have executed and delivered this Guarantee to the Purchasers;

WHEREAS, pursuant to Section 12(a) of the Original Guarantee, the provisions of the Original Guarantee may be amended upon the written consent of each party thereto; and

WHEREAS, the parties hereto desire to amend and restate the Original Guarantee on the terms of this Guarantee.

NOW, THEREFORE, in consideration of the premises and to induce the Purchasers to enter into the Note and Warrant Purchase Agreement and to induce the Purchasers to purchase the Notes under the Note and Warrant Purchase Agreement, Guarantor hereby agrees with the Purchasers as follows:

1.             Defined Terms.

(a)           Unless otherwise defined herein, terms defined in the Note and Warrant Purchase Agreement and used herein shall have the meanings given to them in the Note and Warrant Purchase Agreement.

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(b)           “Guarantee” shall mean this Guarantee, as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time.

(c)           As used herein, the term “Obligations” shall mean the obligations of Amicus UK, Amicus UK Holding or any of their successors and permitted assigns under the Notes, including (a) the due and punctual payment of the principal of, premium, if any, and interest on the Notes, whether at maturity, by acceleration, redemption or otherwise.

(d)           The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Guarantee shall refer to this Guarantee as a whole and not to any particular provision of this Guarantee, and Section references are to Sections of this Guarantee unless otherwise specified.  The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.

(e)           The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

2.             Guarantee.

(a)           Subject to the provisions of Section 2(b), Guarantor hereby, unconditionally and irrevocably, guarantees to the Purchasers, the prompt and complete payment when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations.  This Guarantee shall in all respects be an irrevocable, absolute and unconditional guaranty of collection and not of payment.

(b)           Anything herein or in any of the Notes or the Note and Warrant Purchase Agreement or any of the other Transaction Documents to the contrary notwithstanding, the maximum liability of Guarantor hereunder and under the Notes shall in no event exceed the amount that can be guaranteed by Guarantor under applicable laws relating to the insolvency of debtors.

3.             No Subrogation.  Notwithstanding any payment or payments made by Guarantor hereunder or any set-off or appropriation and application of funds of Guarantor by the Purchasers, Guarantor shall not be entitled to be subrogated to any of the rights of the Purchasers against Amicus UK, Amicus UK Holding or any of their successors and permitted assigns or right of offset held by the Purchasers for the payment of the Obligations, nor shall Guarantor seek or be entitled to seek any contribution or reimbursement from Amicus UK, Amicus UK Holding or any of their and permitted assigns in respect of payments made by Guarantor hereunder, until all amounts owing to the Purchasers by Amicus UK, Amicus UK Holding or any of their successors and permitted assigns on account of the Obligations under the Notes are paid in full and the Notes are terminated.

4.             Amendments, etc. with Respect to the Obligations; Waiver of Rights.  Guarantor shall remain obligated hereunder notwithstanding that, without any reservation of rights against Guarantor and without notice to or further assent by Guarantor, (a) any demand for payment of any of the Obligations made by the Purchasers may be rescinded by such party and any of the Obligations continued, (b) the Obligations, or the liability of any other party upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, extended, amended, modified, accelerated, compromised, waived, surrendered or released by the Purchasers, (c) the Note and Warrant Purchase Agreement, the other Transaction Documents and any other documents executed and delivered in connection therewith may be amended, modified, supplemented or terminated, in whole or in part, and (d) any collateral security, guarantee or right of offset at any time held by the Purchasers for the payment of the Obligations may be sold, exchanged, waived, surrendered or released.  When making any demand hereunder against Guarantor, the Purchasers may, but shall be under no obligation to, make a similar demand on Amicus UK, Amicus UK Holding or any of their successors and permitted assigns.

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5.             Guarantee Absolute and Unconditional.  Guarantor waives any and all notice of, the creation, contraction, incurrence, renewal, extension, amendment, waiver or accrual of any of the Obligations, and notice of or proof of reliance by the Purchasers upon this Guarantee or acceptance of this Guarantee, and the Obligations or any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended, waived or accrued, in reliance upon this Guarantee; and all dealings between Amicus UK or Amicus UK Holding and Guarantor, on the one hand, and the Purchasers, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon this Guarantee.  Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon Amicus UK, Amicus UK Holding, any of their successors or permitted assigns, or Guarantor with respect to the Obligations.  Guarantor understands and agrees that this Guarantee shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (a) the validity, regularity or enforceability of the Note and Warrant Purchase Agreement, any other Transaction Document, any of the Obligations or any other collateral security therefor or guarantee or right of offset with respect thereto at any time or from time to time held by the Purchasers, (b) any defense, set-off or counterclaim (other than a defense of payment or performance) that may at any time be available to or be asserted by Amicus UK, Amicus UK Holding or any of their successors or permitted assigns against the Purchasers or (c) any other circumstance whatsoever (other than payment in full) that constitutes, or might be construed to constitute, an equitable or legal discharge of Amicus UK, Amicus UK Holding or any of their successors and permitted assigns for the Obligations, or of Guarantor under this Guarantee, in bankruptcy or in any other instance.  This Guarantee shall remain in full force and effect and be binding in accordance with and to the extent of its terms upon Guarantor and the successors and assigns thereof, and shall inure to the benefit of the Purchasers, and its successors, indorsees, transferees and assigns, until all the Obligations shall have been satisfied by payment in full and the Notes shall be terminated.

6.             Reinstatement.  This Guarantee shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Purchasers upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Amicus UK, Amicus UK Holding, their successors or permitted assigns, or Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, Amicus UK, Amicus UK Holding, their successors or permitted assigns, or Guarantor or any substantial part of its property, or otherwise, all as though such payments had not been made.

7.             Payments.  Guarantor hereby guarantees that payments hereunder will be paid to the Purchasers without set-off or counterclaim in U.S. dollars.

8.             Notices.  All notices, requests and demands pursuant hereto shall be made in accordance with Section 8.13 of the Note and Warrant Purchase Agreement.

9.             Counterparts.  This Guarantee may be executed by one or more of the parties to this Guarantee on any number of separate counterparts (including by facsimile or other electronic transmission), and all of said counterparts taken together shall be deemed to constitute one and the same instrument.

10.          Severability.  Any provision of this Guarantee that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

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11.          Integration.  This Guarantee represents the agreement of Guarantor and the Purchasers with respect to the subject matter hereof, and there are no promises, undertakings, representations or warranties by the Purchasers relative to the subject matter hereof not expressly set forth or referred to herein or in the other Transaction Documents.

12.          Amendments in Writing; No Waiver; Cumulative Remedies.

(a)           Except as provided herein, none of the terms or provisions of this Guarantee may be waived, amended, supplemented or otherwise modified except by a written instrument executed by Guarantor and the Purchasers.

(b)           No failure to exercise, nor any delay in exercising, on the part of the Purchasers, any right, power or privilege hereunder shall operate as a waiver thereof.  No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege.  A waiver by the Purchasers of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that the Purchasers would otherwise have on any future occasion.

(c)           The rights, remedies, powers and privileges herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

13.          Successors and Assigns.  This Guarantee shall be binding upon the successors and assigns of Guarantor and shall inure to the benefit of the Purchasers and its successors and assigns except that Guarantor may not assign, transfer or delegate any of its rights or obligations under this Guarantee without the prior written consent of the Purchasers.

14.          Governing Law.  This Guarantee and all rights, obligations and liabilities hereunder shall 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.

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IN WITNESS WHEREOF, the Parties have caused this Guarantee to be duly executed and delivered as of the day and year first above written.

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Exhibit E

FORM OF UNSECURED PROMISSORY NOTE

THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM OR UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO AMICUS UK HOLDING AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.

THE NOTES MAY NOT BE OFFERED OR SOLD TO PERSONS IN THE EUROPEAN ECONOMIC AREA OTHER THAN TO QUALIFIED INVESTORS AS DEFINED UNDER DIRECTIVE 2003/71/EC (AS AMENDED, INCLUDING BY DIRECTIVE 2010/73/EU AND INCLUDES ANY RELEVANT IMPLEMENTING MEASURE IN THE RELEVANT MEMBER STATE) (THE “PROSPECTUS DIRECTIVE”) AND IN CIRCUMSTANCES WHICH DO NOT REQUIRE THE ISSUER TO PUBLISH A PROSPECTUS PURSUANT TO ARTICLE 3 OF THE PROSPECTUS DIRECTIVE. THE NOTES MAY NOT BE OFFERED OR SOLD TO PERSONS IN THE UNITED KINGDOM OTHER THAN TO (I) INVESTMENT PROFESSIONALS FALLING WITHIN ARTICLE 19(5) OF THE FINANCIAL SERVICES AND MARKETS ACT 2000 (FINANCIAL PROMOTION) ORDER 2005 (THE “ORDER”) OR (II) HIGH NET WORTH COMPANIES AND OTHER PERSONS FALLING WITHIN ARTICLE 49(2)(A) TO (D) OF THE ORDER.

AMICUS THERAPEUTICS INTERNATIONAL HOLDING LTD

UNSECURED PROMISSORY NOTE

1.           Principal. Amicus Therapeutics International Holding LTD, a private limited company incorporated under the laws of England and Wales with company number 10147996 and its principal place of business at Phoenix House, Oxford Road, Tatling End, Gerrards Cross, Buckinghamshire SL9 7AP, United Kingdom (“Amicus UK Holding”), for value received, hereby promises to pay to the order of                (“Holder”) in lawful money of the United States of America at the address for notices to Holder set forth below, the principal amount of $               , together with interest as set forth below. This Note was issued by Amicus UK Holding in connection with a private offering of substantially identical Unsecured Promissory Notes (collectively, the “Notes”) and warrants pursuant to that certain Note and Warrant Purchase Agreement entered into among Amicus Therapeutics UK Limited (“Amicus UK”), Amicus Therapeutics, Inc. (“Amicus”) and each of purchasers named therein, as amended by the Joinder to and Amendment of Note and Warrant Purchase Agreement, dated June 30, 2016, by and among Amicus, Amicus UK, Amicus UK Holding and the purchasers named therein  (the “Purchasers”) (the “Purchase Agreement”), and is subject to its terms. This Note is being issued by Amicus UK Holding pursuant to the Purchase Agreement and is intended to record and represent Amicus UK Holding’s obligations thereunder. Capitalized terms not otherwise defined herein shall have the meaning given in the Purchase Agreement.