EXHIBIT 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
(Xxxxx Xxxxx)
This Amended and Restated Agreement ("Agreement"), effective as of
September 16, 1997, by and between Employee and GTC (each as hereinafter
defined) amends and restates, in its entirety, that Agreement ("Original
Agreement"), dated as of March 28, 1996, by and between Genzyme Transgenics
Corporation (together with its affiliates and subsidiaries, "GTC"), a
Massachusetts corporation with its principal offices at Xxx Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 and Xxxxx Xxxxx (the "Employee") residing at 00
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxxx 00000.
GTC and Employee desire to amend and restate the Original Agreement as
hereinafter set forth.
GTC desires to employ the Employee as Vice President, Marketing and
Corporate Development of GTC for the period and upon the terms and conditions
hereinafter set forth.
Employee desires to serve in such capacity for such period and upon such
terms.
Accordingly, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT OF EMPLOYEE.
1.1 Employment. Subject to the terms and conditions of this Agreement,
GTC agrees to employ Employee as Vice President, Marketing and Corporate
Development of GTC. Employee shall perform such specific duties as are
commensurate with such position, and as may reasonably be assigned to the
Employee from time to time by the Board of Directors of GTC or GTC's Chief
Executive Officer, for the period commencing on the date hereof until terminated
as herein provided. Employee hereby accepts such employment.
SECTION 2. COMPENSATION. For all services to be rendered by Employee
to GTC during the term of this Agreement, GTC shall pay to, and provide the
Employee, with, the following compensation and benefits:
2.1 Base Salary and Bonus. For the period from the date hereof until
December 31, 1997, GTC shall pay to Employee (i) a base salary of not less than
$154,000 per year, pro rated for such portion of a year and payable in
substantially equal installments in accordance with GTC practice as in effect
from time to time and (ii) incentive and compensatory bonuses, if any, as may be
awarded from time to time by GTC's Compensation Committee. With respect to
subsequent periods during the term of this Agreement, GTC will review Employee's
base salary and bonus from time to time and may make adjustments to such base
salary and determine such bonus based upon, among other
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factors: (a) Employee's performance, (b) GTC's performance, (c) changes in
costs of living, (d) changes in Employee's responsibilities, and (e) the benefit
to GTC of Employee's efforts on its behalf; provided that Employee's base salary
shall not be less than $154,000 per year during the term of this Agreement.
2.2 Participation in Benefit Plans. Employee shall be entitled to
participate in all employee benefit plans or programs of GTC. For the purpose
of determining Employee's eligibility for such plans and programs, Employee's
tenure shall be calculated from Employee's original date of hire at GTC (or any
affiliate or predecessor of GTC). GTC may, from time to time, grant Employee
stock options under GTC's stock option plans. GTC does not guarantee the
adoption or continuance of any particular employee benefit or stock plan or
other program during the term of this Agreement, and Employee's participation in
any such plan or program shall be subject to the provisions, rules and
regulations applicable thereto. Employee shall be entitled to paid vacation each
year in accordance with applicable GTC policy. Health and dental plans shall
cover Employee and his dependents as they do for other GTC executives. Such
health and dental plans comply with ERISA and COBRA to the extent applicable.
Under current health insurance policies, such COBRA rights will commence on
termination of the period over which severance payments are made under Section
4.2.
2.3 Expenses. GTC shall reimburse Employee for all ordinary and necessary
business expenses incurred in the performance of Employee's duties under this
Agreement, provided that Employee accounts properly for such expenses to GTC in
accordance with the general corporate policies of GTC and in accordance with the
requirements of the Internal Revenue Service regulations relating to
substantiation of expenses.
SECTION 3. CONFIDENTIAL INFORMATION AND NON-COMPETITION AGREEMENTS.
The Employee confirms that he has executed a confidentiality and non-competition
agreement pertaining to GTC's intellectual property and confidential information
and including GTC's standard non-competition covenant for executive officers and
key employees.
The obligations of Employee under this section and the agreements
referenced in the preceding paragraph shall survive termination of this
Agreement for any reason.
SECTION 4. TERMINATION AND SEVERANCE PAYMENT.
4.1 Termination. The employment of the Employee by GTC may be terminated
as follows:
(a) Employee's employment hereunder shall terminate upon Employee's
death or inability, by reason of physical or mental impairment, to perform
substantially all of Employee's duties as contemplated herein for a continuous
period of 120 days or more;
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(b) Employee's employment hereunder may be terminated by GTC or
Employee without Cause (as hereinafter defined);
(c) Employee's employment hereunder may be terminated by GTC in the
event of Employee's breach of any material duty or obligation hereunder, or
intentional or grossly negligent conduct that is materially injurious to GTC, as
reasonably determined by GTC's Board of Directors, or willful failure to follow
the reasonable directions of GTC's Board of Directors (any such event herein to
be referred to as "Cause");
(d) Employee's employment hereunder may be terminated by Employee
within twenty-four months after the occurrence of any one of the following
(each, a "Change of Control"):
(i) the acquisition (A) by any "person" (as such term is defined
in Section 3(a)(9) of the Securities Exchange Act of 1934) or (B) by Genzyme
Corporation from any party of an amount of GTC's Common Stock so that it holds
or controls 50% or more of GTC's Common Stock;
(ii) a merger or similar combination after which 49% or more of
the voting stock of the surviving corporation is held by persons who were not
stockholders of GTC immediately prior to such merger or combination; or
(iii) the election by the stockholders of GTC of 20% or more
of the directors of GTC other than pursuant to nomination by GTC's management;
and
(e) Employee's employment hereunder may be terminated by Employee
within twenty-four months after the acquisition by any "person" (as heretofore
defined) of all, substantially all or a majority of GTC's CRO business unless
Employee accepts an offer of employment with such acquiring person within six
months of Employee's termination of his employment.
4.2 Severance Payment; Benefits.
(a) Termination Events Resulting in Severance Payments. In the event
of the termination of the Employee's employment:
(i) by GTC under Section 4.1(b), or
(ii) by Employee under Section 4.1(d) or 4.1(e),
then GTC shall make severance payment(s) to Employee equal to (A) the Base
Salary Payment (as defined below) and (B) an amount equal to the Employee's
maximum incentive bonus that would next be payable to him and would otherwise be
due to Employee if such termination had not occurred and the maximum amount of
such bonus had been fully earned,
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pro rated on the basis of the number of days that have elapsed between the
beginning of the bonus period in which such termination occurs and the
termination date, together payable in a lump sum within ten (10) days after the
termination date. No severance shall be payable in the event that Employee's
employment is terminated pursuant to Section 4.1(a) or (c), or by the Employee
pursuant to 4.1(b).
For the purposes of this Section, the "Base Salary Payment" shall mean
(I) twelve months of the Employee's base salary at the time of
termination:
(i) in the event GTC terminates the Employee pursuant to Section
4.1(b) at any time other than during the period 180 days prior to
and twenty-four months after a CRO Disposition or
(ii) in the event Employee terminates employment under Section 4.1(d)
and
(II) twenty-four months of the Employee's base salary at the time of such
termination
(i) in the event GTC terminates the Employee during the period 180
days prior to and twenty-four months after a CRO Disposition or
(ii) in the event the Employee terminates employment under Section
4.1(e).
(b) Benefits. Employee's coverage under GTC's health and dental
insurance plans will remain in effect and Employee will be entitled to continue
to participate in GTC's retirement plans, all at GTC's expense, during the
period following termination that has the duration of the time period used to
determine the Base Salary Payment, unless Employee notifies GTC in writing that
such coverage is no longer necessary. If, because of limitations required by
third parties or imposed by law, Employee cannot be provided such benefits
through GTC's plans, then GTC will provide Employee with substantially
equivalent benefits on an aggregate basis, at its expense.
4.3 Accelerated Vesting of Options Upon a Change of Control. If this
Agreement is terminated by Employee pursuant to Section 4.1(d) or 4.1(e) or if
GTC terminates the Employee without Cause upon a Change in Control or a CRO
Disposition, any options then held by Employee to purchase shares of the Common
Stock of GTC, which options are then subject to vesting, shall, notwithstanding
any contrary provision in the agreement or plan pursuant to which such options
had been granted, be fully vested and exercisable on the date immediately
preceding the effective date of such termination for the duration of the term of
such options, as if such termination of employment had not occurred.
SECTION 5. MISCELLANEOUS.
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5.1 Assignment. This Agreement may not be assigned, in whole or in part,
by either party without the prior written consent of the other party, except
that GTC may, without the consent of Employee, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity with or
into which GTC may merge or consolidate, or to which GTC may sell or transfer
all or substantially all of its assets, or of which 50% or more of the equity
investment and of the voting control is owned, directly or indirectly, by, or is
under common ownership with, GTC. After any such assignment by GTC, GTC shall
be discharged from all further liability hereunder and such assignee shall have
all the rights and obligations of GTC under this Agreement.
5.2 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, to the addresses set forth at
the beginning of this Agreement or such other address as a party shall have
designated by notice in writing to the other party, provided that notice of any
change in address must actually have been received to be effective hereunder.
5.3 Integration. This Agreement is the entire agreement of the parties
with respect to the subject matter hereof and supersedes any prior agreement or
understanding relating to Employee's employment with or compensation by GTC or
any of its subsidiaries, including, but not limited to, an Employment Agreement
dated June 14, 1994 between GTC, the Employee and TSI Corporation. This
Agreement may not be amended, supplemented or otherwise modified except by a
writing signed by Employee and GTC.
5.4 Binding Effect. Subject to Section 5.1, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their successors,
assigns, heirs and personal representatives.
5.5 Counterparts. This Agreement may be executed in two counterparts,
each of which shall be deemed an original and shall together constitute one and
the same instrument.
5.6 Severability. If 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, activity or subject matter, it
shall be construed by limiting and reducing it to make it enforceable to the
extent compatible with applicable law as then in effect.
5.7 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, without regard to its conflict-of-law provisions.
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IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement as of the date first written above.
EMPLOYEE
/s/ Xxxxx Xxxxx
---------------------------------
Xxxxx Xxxxx
GENZYME TRANSGENICS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Title: President and Chief Executive
Officer
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