Exhibit 10.2


 


AMENDED AND RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT


 


This Amended and Restated Executive Employment Agreement (the “Agreement”)
entered into effective as of December 31, 2008 (the “Effective Date”)
between Genzyme Corporation (the “Company”), a Massachusetts corporation with
its principal executive offices at 500 Kendall Street, Cambridge, Massachusetts
02142, and Henri A. Termeer (the “Executive”) amends and restates in its
entirety the Executive Employment Agreement dated as of January 1, 1990
between the Company and the Executive (the “Prior Agreement”).


 


ARTICLE 1.           EMPLOYMENT
OF EXECUTIVE


 


1.1.          Employment.  Subject to the terms and conditions of this
Agreement, the Company agrees to employ Executive in a full time capacity to
serve as President and Chief Executive Officer of the Company and to perform
such specific duties as may reasonably be assigned to the Executive from time
to time by the Company’s Board of Directors (the “Board”) for the period
commencing on the Effective Date and terminating three (3) years from such
date, unless earlier terminated as provided herein; provided, however, that on
each anniversary date of the Effective Date during the period of the Executive’s
employment (an “Anniversary Date”) the term hereof shall automatically be
extended for one additional year unless written notice of termination of such
extension shall have been given 90 days prior to such Anniversary Date by
either party to the other.  Any
references herein to the “term” of this Agreement shall include both the
initial term and any renewal terms. 
Executive hereby accepts such employment for the term hereof.


 


1.2.          No Conflicting
Commitments.  During the period of
the Executive’s full time employment with the Company, Executive will not
undertake any commitments which might impair Executive’s performance of his
duties as a full time employee of the Company.


 


ARTICLE 2.           COMPENSATION


 


For all services to be rendered by Executive to the Company pursuant to
this Agreement, the Company shall pay to the Executive the compensation and
provide for Executive the benefits set forth below:


 


2.1.          Base Salary.  The Company shall pay to Executive an
annualized base salary rate of $1,580,250 during 2008, payable in accordance
with the Company’s payroll practices. 
Thereafter, Executive’s annualized base salary rate will be set annually
by the Board or a duly appointed committee thereof; provided, however, that
such base salary rate shall not be lower than the base salary rate for the
preceding calendar year.


 


2.2.          Bonuses.  Executive shall be entitled to participate in
a cash bonus plan as established by the Company which will provide that
Executive will be eligible to earn a cash bonus based on Executive’s and the
Company’s performance in meeting goals established 


 

















 


pursuant to the plan with respect to a given calendar year. Such cash
bonus, if earned, will be payable to Executive annually by March 15
following the calendar year in which Executive has earned the cash bonus.


 


2.3.          Fringe Benefits.  In addition to Executive’s base salary and
bonus, the Company shall provide Executive the following benefits: (i) term
life insurance in a policy amount of not less than $1,000,000 payable to
Executive or his designees, with all premiums paid by the Company; (ii) additional
life insurance payable to Executive or his designees on the same basis as is
provided to other executive officers of the Company (currently equal to two
times base salary), with all premiums paid by the Company; (iii) long term
disability insurance with benefits in an amount equal to 60% of Executive’s
base salary plus bonus,, subject to a maximum benefit limit of $20,000 per
month and subject to terms of the Company’s insurance policy; (iv) medical
insurance coverage for Executive and his dependents; and (v) such other
benefits as are generally made available by the Company to its other full time
executive employees, which currently include optional contributory life
insurance, travel insurance, and accidental death and dismemberment insurance
when engaged in the Company’s business.


 


2.4.          Participation in
Future Equity Incentive Plans. 
Executive shall be entitled to participate, to the extent and in the
manner determined by the Board or a duly appointed committee thereof in its
absolute discretion, in any stock option, stock purchase, restricted stock unit
(“RSU”) or other equity incentive plans established by the Company, if any, it
being the understanding of the Company and Executive that such participation
would be for the purpose of providing Executive additional opportunities for
equity participation in the Company.


 


ARTICLE 3.           EARLY
TERMINATION


 


3.1.          Early Termination.  Prior to a Change in Control (as defined
section 4.3(i) hereof) and except during the pendency of a Potential
Change of Control (as defined in Section 4.3(ii) hereof), Executive’s
employment hereunder shall terminate before the expiration of the term of this
Agreement upon the occurrence of any of the following events:


 


3.1.1.       Executive’s
death;


 


3.1.2.       The
termination of Executive’s employment hereunder by the Board, at its option, to
be exercised by written notice to Executive, upon Executive’s Disability.
..  For purposes of this Agreement, the
Executive shall be treated as having a Disability if the Executive becomes
incapacitated and is absent from the performance of his duties due to physical
or mental illness and such incapacity can be expected to result in death or to
last for a continuous period of not less than six (6) months as determined
by the Board based on medical evidence or the opinion of a physician reasonably
acceptable to the Company;


 


3.1.3.       The
termination of Executive’s employment hereunder by the Board, at its option,
for “Cause” as defined in Section 4.4(i);


 


3.1.4.       The
termination of Executive’s employment hereunder by the Board, at its option,
without Cause, to be exercised by delivery of 45 days prior written notice from
the Company to the Executive; or


 


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3.1.5.       The
termination of Executive’s employment hereunder by Executive to be exercised by
delivery of 45 days prior written notice from Executive to the Company.


 


3.2. Adjustment Upon Early Termination.


 


3.2.1.       If
Executive’s employment is terminated by the Company at its option pursuant to Section 3.1.4,
(i) the Company shall pay, within 15 calendar days after such termination,
as severance pay to Executive a lump sum severance payment equal to two (2) times
the sum of (1) his annualized rate of base salary in effect on the date of
his termination and (2) the greatest of (a) the average of the last
two annual bonuses (annualized in the case of any bonus paid with respect to a
partial year) paid to him preceding the date of his termination, or (b) the
most recent annual bonus (annualized in the case of any bonus paid with respect
to a partial year) paid to him preceding the date of his termination; (ii) the
Company shall provide Executive and his dependents medical insurance and other
benefits in accordance with Section 2.3 for the period of two years after
the termination of his employment and shall continue to pay the premiums for
such two year period on all life insurance policies in effect on the date of
termination of his employment which Executive owned or under which he had the
right to designate beneficiaries and all such benefits shall, to the extent
applicable, be subject to Section 8.13 hereof; and (iii) all rights,
options and awards held by Executive under any stock option, stock purchase,
RSU or other equity incentive plan of or agreement with the Company, other than
any rights, options  or awards, the
value of which is substantially dependent upon achieving performance goals,
shall be fully vested as of the date of Executive’s termination of employment,
and not subject to forfeiture or repurchase on account of the termination of
employment.  Delivery to Executive of all
shares of stock underlying any RSUs shall occur as soon as practicable after
vesting but in no event later than March 15th following the
calendar year of such vesting.


 


3.2.2.       Executive
shall not be required to mitigate the amount of any payment provided for in
this Section 3.2, by seeking other employment or otherwise, nor shall the
amount of any payment or benefit provided for in this Section 3.2 be
reduced by any compensation earned by Executive as the result of employment by
another employer after the date his employment terminated, or otherwise, except
that any benefits otherwise receivable by Executive pursuant to clause (ii) of
Section 3.2.1 shall be reduced to the extent comparable benefits are
actually received by him from a subsequent employer during the two years after
the termination of his employment, and any such benefits actually received by
him shall be reported to the Company.


 


3.2.3.       If
Executive’s employment is terminated pursuant to Section 3.1 otherwise
than pursuant to Section 3.1.4, the Company shall pay him, within 15
calendar days after his employment termination, his full base salary through
the date of termination of employment, and shall provide him all other amounts and
benefits to which he is entitled under any retirement, insurance, compensation,
equity or benefit plan of or written agreement with the Company at the time
such payments or benefits are due under such plans or agreements, and the
Company shall have no further obligations to Executive under this Agreement;
provided, however, that if Executive’s employment is terminated pursuant to Section 3.1.1
or Section 3.1.2, all rights, options  and awards
held by 


 


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Executive under any stock option, stock purchase or other equity
incentive plan of or written agreement with the Company, other than any rights,
options or awards, the value of which is substantially dependent upon achieving
performance goals, shall be fully vested as of the date of Executive’s
termination of employment and not subject to forfeiture or repurchase on
account of the termination of employment. 
Notwithstanding anything to the contrary in this Article 3, (x) all
RSUs held by Executive shall fully vest as of the date of Executive’s
Disability if not already vested, and (y) delivery to Executive of all
shares of stock underlying vested RSUs shall occur as soon as practicable but
in no event later than March 15th following the calendar year
in which the RSUs vest.


 


ARTICLE 4.           CHANGE
IN CONTROL OF THE COMPANY


 


4.1.          Change in Control
Severance Benefits.  In order to
induce Executive to remain in the employ of the Company and in consideration of
the Executive’s agreement set forth in subsection 4.3(iii) hereof, the
Company agrees that Executive shall receive the severance benefits set forth in
section 4.5 in the event his employment with the Company is terminated
subsequent to a Change in Control (as defined in Section 4.3(i) hereof)
under the circumstances described in section 4.5(iii) hereof.


 


4.2.          Extension of Term of
Agreement.  Notwithstanding Section 1.1,
no notice of termination of the extension of this Agreement may be given during
the pendency of a Potential Change in Control (as defined in Section 4.3(ii) hereof).  If a Change in Control shall have occurred
during the term of this Agreement, this Agreement shall continue in effect for
a period of thirty-six (36) months beyond the month in which the Change in
Control occurred.


 


4.3.          Change in Control;
Potential Change in Control.


 


(i)            No benefits shall be
payable under Section 4.5 unless there shall have been a Change in
Control, as set forth below, followed by a termination of the Executive’s
employment as described in Section 4.5(iii) hereof. For purposes of
this Agreement, a “Change in Control” shall mean a change in control of the
Company of a nature that would be required to be reported in response to Item 6(e) of
Schedule l4A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the “Exchange Act”), whether or not the Company is in fact
required to comply therewith; provided, that, without limitation, such a change
in control shall be deemed to have occurred if:


 


(A)          any
“person” (as such term is used in Sections 13(d) and 14(d) of the
Exchange Act), other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a corporation
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the Company
is or becomes the “beneficial owner” (as defined in Rule l3d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 50% or more of the combined voting power of the Company’s then
outstanding securities;


 


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(B)           during
any period of twenty-four (24) consecutive months (not including any period
prior to the date of this Agreement), individuals who at the beginning of such
period constitute the Board and any new director (other than a director
designated by a person who has entered into an agreement with the Company to
effect a transaction described in paragraphs (A), (C) or (D) of this Section 4.3(i))
whose election by the Board or nomination for election by the Board or by the
stockholders of the Company was approved by a vote of at least two-thirds (2/3)
of the directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority thereof;


 


(C)           there
is consummated a merger, share exchange or consolidation of the Company with
any other corporation or business entity, or the sale or other disposition of
all or substantially all of the Company’s assets (each, a “Business
Combination”), other than (i) a Business Combination that would result
in the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of another entity) beneficial ownership, directly or
indirectly, of a majority of the combined voting power of the Company or the
surviving entity (including any person that, as a result of such transaction,
owns all or substantially all of the Company’s assets either directly or
indirectly or through one or more subsidiaries) outstanding immediately after
such Business Combination or (ii) a merger, share exchange or consolidation
effected to implement a recapitalization of the Company (or similar
transaction) following which no “person” (as hereinabove defined) is or becomes
the beneficial owner of 50% or more of the combined voting power of the Company’s
then outstanding securities; or


 


(D)          the
stockholders of the Company approve a plan of complete liquidation of the
Company.


 


(ii)           For purposes of this
Agreement, a “Potential Change in Control” shall be deemed to have occurred if:


 


(A)          the
Company enters into an agreement with any person (as hereinabove defined), the
consummation of which would result in the occurrence of a Change in Control;


 


(B)           any
person (as hereinabove defined), including the Company, publicly announces an
intention to take or consider taking actions which if consummated would
constitute a Change in Control, unless the Board adopts a resolution in good
faith setting forth its determination that such announcement is not
sufficiently credible to constitute a Potential Change in Control for purposes of
this Agreement;


 


(C)           any
person (as hereinabove defined), other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the Company or a
corporation owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company (a) is or becomes the beneficial owner, (b) discloses
directly or indirectly to the Company or publicly a plan or intention to become
the beneficial owner, or (c) 


 


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makes a filing under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, with respect to securities to become the beneficial owner,
directly or indirectly, of securities representing 50% or more of the combined
voting power of the outstanding voting securities of the Company; or


 


(D)          the
Board adopts a resolution to the effect that, for purposes of this Agreement, a
potential change in control of the Company has occurred.


 


(iii)          Executive agrees that,
subject to the terms and conditions of this Agreement and notwithstanding
Sections 1.1 and 3.1.5, in the event of a Potential Change in Control, he will
remain in the employ of the Company until the earliest of (a) a date which
is one (1) year from the occurrence of such Potential Change in Control, (b) the
termination of the Executive’s employment by reason of death or Disability as
defined in Section 4.4(i), (c) the date of the occurrence of a Change
in Control, or (d) the determination in good faith by the Board that the
event creating such Potential Change of Control has ceased to exist.


 


4.4.          Termination Following
Change in Control.  If any of the
events described in subsection 4.3(i) hereof constituting a Change in
Control shall have occurred, Executive shall be entitled to the benefits
provided in Subsection 4.5(iii) hereof upon the subsequent termination of
his employment during the term of this Agreement (A) by the Board other
than for Cause or Disability, or (B) by Executive for Good Reason.  In the event Executive’s employment with the
Company is terminated for any reason and subsequently a Change in Control shall
occur, Executive shall not be entitled to any benefits under Section 4.5.


 


(i)            Disability.  Executive’s employment may be terminated by
the Board at its option for Disability, as defined in Section 3.1.2, if
within thirty (30) days after Notice of Termination (as defined in Section 4.4(iv))
is given, he shall not have returned to the full-time performance of his
duties.


 


(ii)           Cause.  Termination by the Company of Executive’s
employment for “Cause” shall mean termination upon (A) the willful and
continued failure by him to substantially perform his duties with the Company
(other than any such failure resulting from his incapacity due to physical or
mental illness or any such actual or anticipated failure after the issuance of
a Notice of Termination by him for Good Reason, as defined in Sections 4.4(iv) and
4.4(iii), respectively) after a written demand for substantial performance is delivered
to Executive by the Board, which demand specifically identifies the manner in
which the Board believes that he has not substantially performed his duties, or
(B) the willful engaging by Executive in conduct which is demonstrably and
materially injurious to the Company, monetarily or otherwise. For purposes of
this Subsection, no act, or failure to act, on Executive’s part shall be deemed
“willful” unless done, or omitted to be done, by him not in good faith and
without reasonable belief that his action or omission was in the best interest
of the Company.  Notwithstanding the
foregoing, Executive shall not be terminated for Cause unless and until there
shall have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) of the entire membership
of the Board at a meeting of the Board called and held for such purpose (after
reasonable notice to Executive and an opportunity for him, together with his
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board Executive was guilty of conduct set forth above in this Subsection
and specifying the particulars thereof in detail.


 


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(iii)          Good Reason.  Executive shall be entitled to terminate his
employment for Good Reason following a Change in Control pursuant to this Section 4.4(iii).  For purposes of this Agreement, termination
for “Good Reason” means separation from service during the two (2) year
period following the initial existence of one or more of the following
conditions arising without the Executive’s consent:


 


(1)           a material
diminution in the Executive’s base compensation;


 


(2)           a material
diminution in the Executive’s authority, duties, or responsibilities;


 


(3)           a
material diminution in the authority, duties, or responsibilities of the
Executive’s supervisor to whom the Executive is required to report, including a
requirement that the Executive report to a corporate officer or employee
instead of reporting directly to the Board;


 


(4)           a
material change in the budget over which the Executive retains authority;


 


(5)           a
material change in the geographic location where the Executive is required to
perform services for the Company, from the Company’s offices at which he was
principally employed, except for required travel on the Company’s business to
an extent substantially consistent with his present business travel
obligations; or


 


(6)           any
other action or inaction that constitutes a material breach by the Company of this
Agreement.


 


Within 90 days after the initial existence of any event described
above, Executive must give the Company a Notice of Termination (as defined in Section 4.4(iv)),
which shall include notice of the existence of the material diminution, change
or breach described above, and the Company will have 30 days to remedy the
material diminution, change or breach.  A
separation from service for Good Reason does not occur if the material
diminution, change or breach is remedied by the Company during such 30-day
period.  If the Company does not remedy
the material diminution, change or breach, the separation from service for Good
Reason shall occur on the 31st day after receiving the Notice of
Termination from the Executive.  The
terms of this Section 4.4(iii) are intended to comply with the safe
harbor set forth in Treas. Reg. §1.409A-1(n)(2) and shall be construed and
applied in accordance with that intent.


 


(iv)          Notice of Termination.  Any purported termination of Executive’s
employment by the Company or by Executive shall be communicated by written
Notice of Termination to the other party hereto in accordance with Sections 4.4
and 8.6.  For purposes of this Agreement,
a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so indicated and, if
the notice is for a termination for Good Reason, such notice shall also include
the information described in the last paragraph of Section 4.4(iii).


 


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(v)           Date of
Termination, Etc. “Date of Termination” shall mean (A) thirty (30)
days after Notice of Termination is given if Executive’s employment is
terminated by the Company for Disability (provided that Executive shall not
have returned to the full-time performance of his duties during such thirty
(30) day period) or by the Executive for Good Reason (provided the Company has
not cured the condition(s) set forth in the Notice of Termination within
such 30-day period); and (B) the date specified in the Notice of
Termination (which, in the case of a termination by the Company for Cause or other
than for Cause or Disability, shall not be less than thirty (30) days nor more
than forty-five (45) days from the date such Notice of Termination is given);
provided that if within fifteen (15) days after any Notice of Termination is
given, or, if later, prior to the Date of Termination (as determined without
regard to this proviso), the party receiving such Notice of Termination
notifies the other party that a dispute exists concerning the termination, the
Date of Termination shall be the date on which the dispute is finally
determined, either by a binding arbitration award or upon earlier resolution or
concession by the Parties; and provided further that (A) the Date of
Termination shall be extended by a notice of dispute only if such notice is
given in good faith and the party giving such notice pursues the resolution of
such dispute with reasonable diligence; and (B) for purposes of
determining whether the termination is such as to entitle Executive to any
payments or benefits under this Agreement, Executive’s entitlement, if any, to
such payments or benefits shall not be deemed to have been defeated solely
because the Date of Termination falls outside the term of this Agreement if,
but for a dispute-related delay described in this paragraph, it would have
fallen within the term of this Agreement. 
In any case where a dispute described in the preceding sentence delays
payment of an amount believed by Executive to be owed to him, Executive shall
make prompt and reasonable, good faith efforts to collect such payment,
including by initiating the dispute-resolution processes described herein,
within one hundred eighty (180) days after the date payment would have been
made in the absence of a dispute. 
Notwithstanding the first sentence of this paragraph, if Executive would
be entitled to the benefits provided in Section 4.5(iii) upon a
termination of employment but the timely payment of such benefits is rendered
administratively impracticable by reason of a dispute-related delay described
above, such benefits, to the extent they are intended to constitute “short-term
deferrals” for purposes of Section 409A of the Code, will be paid to
Executive consistent with the treatment of such benefits as such “short term
deferrals” and, to the extent that such benefits are subject to Section 409A
of the Code, will be paid to the Executive consistent with the other payment
provisions of Section 409A of the Code and regulations thereunder,
including, if applicable, Treas. Regs. Section 1.409A-3(g).  During the pendency of any dispute, (i) Executive
shall not be required to report for work or otherwise continue to perform his
duties with the Company and (ii) the Company will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, base salary) and, to the
extent permissible by law, continue Executive and his dependents as a
participant in all compensation, benefit and insurance plans in which he or
they were participating when the notice giving rise to the dispute was given,
until the dispute is finally resolved in accordance with this Subsection.  Amounts paid under this Subsection shall be
payment for continued employment during the period of dispute, are in addition
to all other amounts due under this Agreement and shall not be offset against
or reduce any other amounts due under this Agreement.


 


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4.5.          Compensation Upon
Termination or During Disability Following a Change in Control.


 


(i)            During Disability
Leave.  During any period that
Executive fails to perform his full-time duties with the Company as a result of
incapacity due to physical or mental illness, to the extent Executive is not
receiving salary replacement benefits under the Company’s disability plan or
program or other similar plan at a rate at least equal to his base salary
at the rate in effect at the commencement of any such period, the Company will
provide Executive with supplemental wage replacements, payable in
accordance with the Company’s regular payroll practices, such that
any salary replacement benefits he receives combined with such
supplemental wage replacements shall provide payments at a rate
equal to such base salary rate.


 


(ii)           Voluntary
Termination, Involuntary Termination for Cause, or Termination as a Result of
Disability or Death.  If Executive’s
employment shall be terminated by the Company as a result of his Disability, or
due to his death; by the Company for Cause; or by Executive other than for Good
Reason, the Company shall pay him, within 15 days after the Date of
Termination, his full base salary through the Date of Termination at the rate
in effect at the time Notice of Termination is given, and shall provide him
with all other amounts and benefits to which he is entitled under any
retirement, insurance, compensation, equity or benefit plan of or written
agreement with the Company at the time such payments or benefits are due under
such plans or agreements and the Company shall have no further obligations to
Executive under this Agreement.


 


(iii)          Good Reason
Termination, Involuntary Termination Other than for Cause or Disability.  If Executive’s employment by the Company
shall be terminated (a) by the Company other than for Cause or Disability
or (b) by Executive for Good Reason, then he shall be entitled to the
benefits provided below:


 


(A)          the
Company shall pay Executive, within 15 days after his Date of Termination, his
full base salary through the Date of Termination at the rate in effect at the
time Notice of Termination is given, and shall provide him all other amounts
and benefits to which he is entitled under any retirement, insurance,
compensation, equity or benefit plan of or written agreement with the Company,
at the time such payments are due under such plans or agreements, except as
otherwise provided below;


 


(B)           in
lieu of any further salary payments to Executive for periods subsequent to the
Date of Termination, the Company shall pay, within 15 days after the Date of
Termination, as severance pay to Executive a lump sum severance payment
(together with the payments provided in paragraphs (D), (E) and (F) below,
the “Severance Payments”) equal to three (3) times the sum of (1) the
greater of (a) his annualized rate of base salary in effect on the Date of
Termination or (b) his annualized rate of base salary in effect
immediately prior to the Change in Control and (2) the greatest of (a) the
average of the last two annual bonuses (annualized in the case of any bonus
paid with respect to a partial year) paid to him preceding the Date of
Termination, (b) the average of the last two annual bonuses (annualized in
the case of any bonus paid with respect to a partial year) paid to him
preceding the Change in Control, (c) the most recent annual bonus
(annualized in the case of any bonus paid with respect to a partial year) paid
to him preceding the Date of Termination, or (d) the most recent annual
bonus (annualized in the 


 


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case of any bonus paid with respect to a partial year) paid to him
preceding the Change in Control;


 


(C)           the
Company shall also pay to Executive, within thirty (30) days after any such
fees or expenses are incurred, all legal fees, taxes, penalties and expenses
incurred by him during his lifetime as a result of or in connection with such
termination, including all such fees and expenses, if any, incurred in
contesting or disputing any such termination or in seeking to obtain or enforce
any right or benefit provided by this Agreement (other than any such fees or
expenses incurred in connection with any such claim which is determined by
arbitration, in accordance with Section 8.5 of this Agreement, to be
frivolous) or in connection with any tax audit or proceeding to the extent
attributable to the application of Sections 4999 or 409A of the Code to any
payment or benefit provided hereunder, and all such reimbursements shall, to
the extent applicable, be subject to Section 8.13 hereof;


 


(D)          for
a thirty-six (36) month period after such termination, the Company shall
arrange to provide Executive and his dependents with life, disability, accident
and health insurance benefits substantially similar to those which he and they
are receiving immediately prior to the issuance of the Notice of Termination
and all such benefits shall, to the extent applicable, be subject to Section 8.13
hereof. Benefits otherwise receivable by Executive pursuant to this Subsection
4.5(iii)(D) shall be reduced to the extent comparable benefits are
actually received by him from a subsequent employer during the thirty-six (36)
month period following his termination, and any such benefits actually received
by him shall be reported to the Company;


 


(E)           in
addition to the retirement benefits to which Executive is entitled under the
provisions of the Company’s defined benefit plans (the “Benefit Plans”), any
supplemental defined benefit retirement or excess defined benefit plan maintained
by the Company or any of its subsidiaries or any successor plans thereto
(hereinafter collectively referred to as the “Pension Plans”)  the Company shall pay Executive, within 15
days after the Date of Termination, a cash a lump sum equal to the excess of (a) the
actuarial equivalent of the retirement pension (taking into account any early
retirement subsidies associated therewith and determined as a straight life
annuity commencing at age sixty-five (65) or any earlier date, but in no event
earlier than the third anniversary of the Date of Termination, whichever
annuity the actuarial equivalent of which is greatest) which Executive would
have accrued under the terms of the Pension Plans (without regard to the
limitations imposed by Section 401(a) (17) of the Internal Revenue
Code of 1986, as amended (the “Code”), any temporary freeze on benefit accruals
under the Pension Plans pursuant. to Internal Revenue Service Notice 88-131 or
any amendment to the Pension Plans made subsequent to a Change in Control and
on or prior to the Date of Termination, which amendment adversely affects in
any manner the computation of retirement benefits thereunder), determined as if
Executive was fully vested thereunder and had continued to be employed by the
Company (after the Date of Termination) for thirty-six (36) additional months
and as if he had accumulated thirty-six (36) additional months of compensation
(for purposes of determining his pension benefits thereunder), each in an
amount equal to the sum of the amounts determined under clauses (1) and (2) of
Section 4.5 (iii) (B) hereof over (b) the actuarial
equivalent of the vested retirement 


 


10

















 


pension (taking into account any early retirement subsidies associated
therewith and determined as a straight life annuity commencing at age
sixty-five (65) or any earlier date, but in no event earlier than the Date of
Termination, whichever annuity the actuarial equivalent of which is greatest)
which Executive had then accrued pursuant to the provisions of the Pension
Plans. For purposes of this Subsection, “actuarial equivalent” shall be
determined using the same actuarial assumptions utilized in determining the
amount of alternate forms of benefits under the Benefit Plans immediately prior
to the Change in Control; and


 


(F)           should
Executive move his residence in order to pursue other business opportunities
within one (1) year after the Date of Termination, the Company shall pay
him, within thirty (30) days after such reasonable expenses are incurred, an
amount equal to the reasonable expenses incurred by him in connection with such
relocation (including expenses incurred in selling his home to the extent such
expenses were customarily reimbursed by the Company to transferred executives
prior to the Change in Control) and which are not reimbursed by another
employer, and all such reimbursements shall, to the extent applicable, be
subject to Section 8.13 hereof.


 


(iv)          Amounts payable to
Executive shall be reduced as set forth below.


 


(A)          For
purposes of this Section 4.5(iv), (i) a Payment shall mean any
payment or distribution in the nature of compensation to or for the benefit of
Executive, whether paid or payable pursuant to this Agreement or otherwise; (ii) Agreement
Payment shall mean a Payment paid or payable pursuant to this Agreement
(disregarding this Subsection (iv)); (iii) Net After Tax Receipt shall
mean the Present Value of a Payment net of all taxes imposed on Executive with
respect thereto under Sections 1 and 4999 of the Internal Revenue Code of 1986,
as amended (the “Code”), determined by applying the highest marginal rate under
Section 1 of the Code which applied to Executive’s taxable income for the
immediately preceding taxable year; (iv) “Present Value” shall mean such
value determined in accordance with Section 280G(d)(4) of the Code;
and (v) “Reduced Amount” shall mean the smallest aggregate amount of
Payments which (a) is less than the sum of all Payments and (b) results
in aggregate Net After Tax Receipts which are equal to or greater than the Net
After Tax Receipts which would result if the aggregate Payments were any other
amount less than the sum of all Payments.


 


(B)           Anything
in this Agreement to the contrary notwithstanding, in the event
PricewaterhouseCoopers LLP or a successor accounting firm of national
reputation (the “Accounting Firm”) shall determine that receipt of all Payments
would subject Executive to tax under Section 4999 of the Code, it shall
determine whether some amount of Payments would meet the definition of a “Reduced
Amount.” If the Accounting Firm determines that there is a Reduced Amount, the
aggregate Agreement Payments shall be reduced to such Reduced Amount; provided,
however, that if the Reduced Amount exceeds the aggregate Agreement Payments,
the aggregate Payments shall, after the reduction of all Agreement Payments, be
reduced (but not below zero) in the amount of such excess.


 


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(C)           If
the Accounting Firm determines that aggregate Agreement Payments or Payments,
as the case may be, should be reduced to the Reduced Amount, the Company shall
promptly give Executive notice to that effect and a copy of the detailed
calculation thereof.  In determining the
Reduced Amount, the Company will reduce or eliminate the Agreement Payment or
Payments in the following order:


 


(1)           the
portion denominated and payable in cash (other than “24(c) Payments”),
such as Severance Payments;


 


(2)           the
portion payable in-kind, such as insurance coverage, or in cash as a
reimbursement, such as for outplacement, legal fees, or moving expenses (other
than “24(c) Payments”); and


 


(3)           the
portion constituting “24(c) Payments,” such as equity-based compensation
and enhancements under any Pension Plans.


 


The Company has full discretionary authority
to determine which payments to reduce within each of the three categories
described in the preceding sentence.  The
Company cannot, however, reduce payments in the second or third category unless
all payments in the preceding category have been eliminated.  A “24(c) Payment” is any Agreement
Payment or Payments that are permitted to be valued under Treasury Regulation
section 1.280G-1, Q/A-24(c).  All
determinations made by the Accounting Firm under this Subsection shall be binding
upon the Company and Executive and shall be made within 60 days of a
termination of employment of Executive. 
As promptly as practicable following such determination and subject to
any payment provisions otherwise applicable under this Agreement, the Company
shall pay to or distribute for the benefit of Executive such payments as are
then due to Executive under this Agreement and shall promptly pay to or
distribute for the benefit of Executive in the future such Payments as become
due to Executive under this Agreement.


 


(D)          While
it is the intention of the Company and Executive to reduce the amounts payable
or distributable to Executive hereunder only if the aggregate Net After Tax
Receipts to Executive would thereby be increased, as a result of the uncertainty
in the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that amounts
will have been paid or distributed by the Company to or for the benefit of
Executive pursuant to this Agreement which should not have been so paid or
distributed (“Overpayment”) or that additional amounts which will have not been
paid or distributed by the Company to or for the benefit of Executive pursuant
to this Agreement could have been so paid or distributed (“Underpayment”), in
each case, consistent with the calculation of the Reduced Amount hereunder. In
the event that the Accounting Firm, based either upon the assertion of a
deficiency by the Internal Revenue Service against the Company or Executive
which the Accounting Firm believes has a high probability of success or
controlling precedent or other substantial authority, determines that an
Overpayment has been made, any such Overpayment paid or distributed by the
Company to or for the benefit of Executive shall be treated for all purposes as
if it were a loan ab  initio to Executive which Executive shall 


 


12

















 


repay to the Company (together with interest at the rate provided for
in Section 1274(b) (2) (B) of the Code); provided, however,
that no such deemed loan shall be deemed to have been made and no amount shall
be payable by Executive to the Company if and to the extent such deemed loan
and payment would not either reduce the amount on which Executive is subject to
tax under Section 1 and Section 4999 of the Code or generate a refund
of such taxes. In the event that the Accounting Firm, based upon controlling
precedent or other substantial authority, determines that an Underpayment has
occurred, any such Underpayment shall be promptly paid (subject to any payment
provisions otherwise applicable under this Agreement) by the Company to or for
the benefit of Executive (together with interest at the rate provided for in Section 1274(b) (2) (8) of
the Code).


 


(v)           Executive shall not be
required to mitigate the amount of any payment provided for in this Section 4.5
by seeking other employment or otherwise, nor shall the amount of any payment
or benefit provided for in this Section 4.5 be reduced by any compensation
earned by Executive as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by the
Executive to the Company, or otherwise, except to the extent expressly so
provided.


 


ARTICLE 5.           COVENANTS AGAINST COMPETITION


 


5.1.          Non-solicitation
of Employees.  Executive agrees that
during the term of Executive’s employment with the Company and for a period of
two (2) years after the termination of Executive’s employment with the
Company, for any reason, occurring prior to a Change of Control, Executive
shall not directly or indirectly recruit, solicit or otherwise induce or
attempt to induce any employees of the Company to leave employment of the
Company.


 


5.2.          Noncompetition.  Executive agrees that during the term of
Executive’s employment with the Company and for a period of two (2) years
after the termination of Executive’s employment with the Company, for any
reason, occurring prior to a Change of Control, Executive shall not directly or
indirectly, except as a passive investor in publicly held companies and except
for investments held at the date hereof, own or control any interest in, or act
as director, officer or employee of, or consultant to, any firm, corporation or
institution which sells products which compete with (i) Ceredase for the
treatment of Gaucher’s disease or (ii) products formulated in whole or in
part with hyaluronic acid and intended to reduce the incidence and severity of
postoperative adhesions (the “Major Products”). Executive and the Company agree
to review in good faith the list of Major Products at intervals of not less
than 12 months and not more than 24 months during the term of this Agreement
with a view to amending the list to include only those products which accounted
for or are expected to account for substantial percentages of the Company’s
consolidated gross revenues at the time of the review; provided, however, that
any addition or deletion to the list of Major Products shall require the prior
written consent of both the Company and the Executive.


 


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ARTICLE 6.           CONFIDENTIAL
INFORMATION


 


6.1.          Maintenance of
Confidentiality.  Executive agrees
that Executive will not (except as required in the course of employment with
the Company), both during the term of Executive’s employment with the Company
and thereafter, communicate or divulge to, or use for Executive’s own benefit
or the benefit of any other person, firm or organization, any confidential and
proprietary information of the Company and its subsidiaries.  The provisions of this section shall not
apply to information which (i) was known to Executive at the time it was
received from the Company, other than by previous disclosure by the Company, as
evidenced by written records of Executive maintained at the time of receipt, (ii) is
at the time of disclosure or later becomes publicly known under circumstances
involving no breach of this agreement, (iii) is lawfully and in good faith
made available to Executive by a third. person who did not derive it front the
Company and who imposes no obligation of confidence on Executive, (iv) is
approved for disclosure by prior written consent of the Company, or (v) is
required to be disclosed by a governmental or judicial authority, and
reasonable advance notice of such disclosure is given to the Company.


 


6.2.          Ownership of
Confidential Information.  Records,
files, memoranda, reports, price lists, customer lists, drawings, plans,
sketches and documents and the like, relating to the business of the Company,
which Executive shall use or prepare or come into contact within the course of,
in connection with, or as a result of- employment with the Company, shall
remain the Company’s sole and exclusive property.


 


ARTICLE 7.           OWNERSHIP OF INVENTIONS


 


7.1.          “Invention”
Defined.  As used in this Agreement, “Invention”
means any invention, discovery or innovation with regard to chemistry,
enzymology, biotechnology, genetic engineering or recombinant DNA technology,
whether or not patentable, made, conceived, or first actually reduced to
practice by Executive, alone or jointly with others, in the course of, in
connection with, or as a result of service as an executive of the Company,
including any art, method, process, machine, manufacture, design or composition
of matter, or any improvement thereof, or any variety of plant or
microorganism.


 


7.2.          Disclosure of
Inventions.  Each Invention made,
conceived or first actually reduced to practice by Executive, whether alone or
jointly with others, during the term of Executive’s employment with the Company
and each Invention made, conceived or first actually reduced to practice by
Executive, whether alone or jointly with others, within one year after the
termination of Executive’s employment with the Company which relates in any way
to work performed for the Company during the term of Executive’s employment,
shall be promptly disclosed in writing to such officer of the Company as the
Board may designate. Such report shall be sufficiently complete in technical
detail and appropriately illustrated by sketch or diagram to convey to one
skilled in the art of which the Invention pertains, a clear understanding of
the nature, purpose, operations; and, to the extent known, the physical,
chemical, biological or electrical characteristics of the Invention.


 


14

















 


7.3.          Ownership of
Inventions.  Each Invention, as
herein defined, shall be the sole and exclusive property of the Company.


 


7.4.          Assignment of Title.  Executive agrees to execute an assignment to
the Company or its nominee of Executive’s entire right, title and interest in
and to any Invention, without compensation beyond that provided in this
Agreement.  Executive further agrees,
upon the request of the Company and its expense, that Executive will execute
any other instrument and document necessary or desirable in applying for and
obtaining patents in the United States and in any foreign country with respect
to any Invention.  Executive further
agrees, whether or not Executive is then an employee of the Company to
cooperate to the extent and in the manner reasonably requested by the Company
in the prosecution or defense of any claim involving a patent covering any
Invention or any litigation or other claim or proceeding involving any
Invention covered by this Agreement, but all expenses thereof shall be paid by
the Company.


 


ARTICLE 8.           MISCELLANEOUS


 


8.1.          Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to be one and the same instrument.


 


8.2.          Binding
Effect.  This Agreement shall inure
to the benefit of and be binding upon the parties hereto and their respective
lawful successors and assigns and Executive’s heirs and personal
representatives. If Executive should die while any amount would still be
payable to him hereunder if he had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to his devisee, legatee or other designee or, if there is no such
designee, to his estate.


 


8.3           Assignment.  Except as otherwise provided in Section 8.4,
neither this Agreement nor any rights or obligations hereunder shall be
assignable by either party hereto without the prior written consent of the
other party.


 


8.4.          Obligation of the
Company’s Successors.  Any successor
to substantially all of the Company’s assets and business, whether by merger,
consolidation, purchase of assets or otherwise, shall succeed to the rights and
obligations of the Company hereunder. 
The Company shall require any such successor, by agreement in form and
substance satisfactory to Executive, to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. The failure of
the Company to obtain such agreement prior to the effectiveness of any such
succession shall be a material breach of this Agreement.


 


8.5.          Arbitration.  Any dispute or controversy arising under or
in connection with this Agreement shall be settled exclusively by arbitration
conducted before a panel of three arbitrators in the Commonwealth of
Massachusetts in accordance with the Employment Dispute Resolution rules of
the American Arbitration Association then in effect.  Judgment may be entered on the arbitrator’s
award in any court having jurisdiction; provided, however, that Executive shall
be entitled to seek specific performance of his right to be paid until the Date
of 


 


15

















 


Termination during the pendency of any dispute or controversy arising
under or in connection with this Agreement. 
The Company shall pay to Executive, within thirty (30) days after any
such fees or expenses are incurred, all legal fees and expenses reasonably
incurred by him during his lifetime as a result of or in connection with any
dispute or controversy arising under or in connection with this Agreement,
including all such fees and expenses, if any, reasonably incurred in seeking to
obtain or enforce any right or benefit provided by this Agreement (other than
any such fees or expenses incurred in connection with any such claim which is
determined to be frivolous), and all such reimbursements shall, to the extent
applicable, be subject to Section 8.13 hereof.


 


8.6.          Notices.  All notices, requests, demands and other
communications to be given pursuant to this Agreement shall be in writing and
shall be deemed to have been duly given if delivered by hand or mailed by
registered or certified mail, return receipt requested, postage prepaid, as
follows:


 


If to the Company, to:


 


Genzyme Corporation


500 Kendall Street


Cambridge, MA 02142


Attention:  Secretary


 


If to Executive, to:


 


Henri A. Termeer


[the address last provided by Executive to the Company]


 


or such other address as either party hereto shall have designated by
notice in writing to the other party.


 


8.7.          Amendments; No
Waivers.   No provision of this
Agreement may be modified, waived or discharged unless such waiver,
modification or discharge is agreed to in writing and signed by Executive and
such officer as may be specifically designated by the Board. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.


 


8.8.          Governing Law.  This Agreement and the legal relations among
the parties hereto shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts.


 


8.9.          Severability.  In case any provision hereof shall, for any
reason, be held to be invalid or unenforceable in any respect, such invalidity
or unenforceability shall not affect any other provision hereof, and this
Agreement shall be construed as if such invalid or unenforceable provision had
not been included herein. If any provision hereof shall, for any reason, be
held by a court to be excessively broad as to duration, geographical scope,
activity or subject matter, it 


 


16

















 


shall be construed by limiting and reducing it to make it enforceable
to the extent compatible with applicable law as then in effect.


 


8.10.        Miscellaneous.  All references to sections of the Exchange
Act, the Code or the Treasury Regulations shall be deemed also to refer to any
successor provisions to such sections. 
Any payments provided for hereunder shall be paid net of any applicable
withholding required under federal, state or local law.


 


8.11         Termination
of Employment/Separation from Service. 
All references in the Agreement to a “termination of employment,” “Date
of Termination,” or a “separation from service” and correlative terms that
result in the payment or vesting of any amounts or benefits that constitute “nonqualified
deferred compensation” within the meaning of Section 409A of the Code
shall be construed to require a “separation from service” (as that term is
defined in Section 1.409A-1(h) of the Treasury Regulations) from the
Company and from all other corporations and trades or businesses, if any, that
would be treated as a single “service recipient” with the Company under Section 1.409A-1(h)(3) of
the Treasury Regulations and shall be treated as occurring on the date of such “separation
from service.”  The Company may, but need
not, elect in writing, subject to the applicable limitations under Section 409A
of the Code, any of the special elective rules prescribed in Section 1.409A-1(h) of
the Treasury Regulations for purposes of determining whether a “separation from
service” has occurred.  Any such written
election shall be deemed part of the Agreement.


 


8.12         Specified
Employee.  If at the time of
Executive’s separation from service, Executive is a “specified employee” (as
hereinafter defined) any and all amounts payable in connection with such
separation from service that constitute deferred compensation subject to Section 409A
of the Code, as determined by the Company in its sole discretion, and that
would (but for this sentence) be payable within six months following such
separation from service (including without limitation reimbursements of
payments made by Executive), shall not be paid until the date which is six (6) months
and one (1) day after the date of such separation from service or, if
earlier than the end of such period, Executive’s date of death.  For purposes of this Section 8.12, “specified
employee” means an individual determined by the Company to be a specified
employee as defined in subsection (a)(2)(B)(i) of Section 409A of the
Code.  The Company may, but need not,
elect in writing, subject to the applicable limitations under Section 409A
of the Code, any of the special elective rules prescribed in Section 1.409A-1(i) of
the Treasury Regulations for purposes of determining “specified employee”
status.  Any such written election shall
be deemed part of this Agreement.


 


8.13         Reimbursements/In-kind
Benefits.  Any reimbursements or
in-kind benefits provided under this Agreement that constitute “nonqualified
deferred compensation” within the meaning of Section 409A of the Code
shall satisfy the requirements set forth in Treas. Reg. §1.409A-3(i)(1)(iv)(A),
including, without limitation, the following requirements:  (i) any such reimbursements or benefits
shall be provided not later than the last day of the year following the year in
which the expense was incurred; (ii) no expense reimbursed or benefit
provided in one calendar year will affect the amount of expenses eligible for
reimbursement or benefits to be provided in any other calendar year;  and (iii) Executive’s right to receive
such reimbursements or benefits shall not be not subject to liquidation or
exchange for another benefit.


 


17

















 


8.14.        Survival.  Section 3.2 and Articles 4, 5, 6 and 7
and 8 shall survive the termination or expiration of this Agreement for the
periods of time indicated therein or indefinitely if no period of time is
indicated.


 


8.15.        Entire Agreement.  No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this
Agreement.  This Agreement sets forth the
entire agreement of the parties hereto in respect of the subject matter
contained herein and supersedes the provisions of all prior agreements
(including but not limited to the Prior Agreement, which is of no further force
and effect), promises, covenants, arrangements, communications, representations
or warranties, whether oral or written, by any officer, employee or
representative of any party hereto with respect to the subject matter hereof,
except for any written equity agreements between Executive and the Company,
which shall remain in full force and effect in accordance with their respective
terms.


 


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IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Agreement under seal as of the date first above written.


 


	
   

  	
  GENZYME CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Zoltan Csimma

  
	
   

  	
   

  	
  Zoltan Csimma

  
	
   

  	
   

  	
  Senior Vice President, Chief Human

  
	
   

  	
   

  	
  Resources Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Henri A. Termeer

  
	
   

  	
   

  	
  Henri A. Termeer

  



 


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