EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
as of this 9th day of September, 1999 (the "Effective Date"), by and between
Xxxx X. Xxxxx ("Employee") and 3D Systems Corporation. ("Employer"). In
consideration of the covenants, representations and agreements set forth below,
Employer and Employee hereby agree as follows:
1. EMPLOYMENT OF EMPLOYEE. Employer hereby hires Employee pursuant to the
Agreement between Regent Pacific Management Corporation dated September 9, 1999
(the "Regent Agreement"), and Employee hereby accepts such employment on the
terms and conditions contained in this Agreement and the Regent Agreement.
2. TERM OF THE AGREEMENT. The initial term of this Agreement (the "Term")
shall commence upon the Effective Date and shall terminate 12 months thereafter
(the "Termination Date"), unless sooner terminated as provided herein. Employer
and Employee may, upon mutual agreement, elect to continue Employee's employment
on an at-will basis (meaning that either Employee or Employer may terminate the
employment relationship at any time with or without cause or notice), after the
initial term of this Agreement.
3. SERVICES TO BE PROVIDED BY EMPLOYEE.
3.1 SCOPE, RESPONSIBILITIES AND DUTIES. Employee agrees to provide
services to Employer, generally in the field of corporate strategy,
approximately two working days in each working week, so that Employer may have
the benefit of the experience and knowledge possessed by Employee (the
"Services"). It shall be the duty of Employee in rendering the Services to make
such periodic reports to Employer as the officers or directors of Employer may,
from time to time, reasonably request.
3.2. NON-EXCLUSIVITY. Employee is a short-term, part time employee by
reason of the obligations ascribed to him hereunder, and shall not be required
to devote full time to the affairs of Employer. Subject to the provisions of
Section 7 below, Employee may accept other employment and perform services for
others.
4. COMPENSATION. Employee shall not be entitled to any compensation,
other than compensation received from Regent Pacific Management Corporation, for
the Services to be provided hereunder, except as provided herein.
5. EXPENSES. Employer shall reimburse Employee for all reasonable and
necessary business expenses pursuant to the Regent Agreement.
6. TERMINATION. Termination pursuant to this Section shall become
effective immediately upon receipt by Employee of written notice from Employer
of such termination.
6.1 TERMINATION BY INCAPACITY OR DISABILITY OF EMPLOYEE. If Employee
shall become unable to fully perform the Services in accordance with the terms
of this Agreement due to incapacity, ill health or disability for a consecutive
period of four weeks, the Employer may, at its option, terminate this Agreement.
6.2 DEATH OF EMPLOYEE. Upon the death of Employee, this Agreement
shall terminate without further obligation or liability on the part of Employer
to Employee's estate.
6.3 TERMINATION OF REGENT AGREEMENT. Employee's employment shall
terminate upon termination of the Regent Agreement unless otherwise mutually
agreed between Employer and Employee.
7. CONFIDENTIALITY AND TRADE SECRETS. Employee acknowledges and agrees
that during the Term of this Agreement, and during any continuing term of
employment on at at-will basis he will become privy to important proprietary,
confidential business information and trade secrets that are the exclusive
property of Employer. This information includes, without limitation, business
plans, marketing concepts, designs, proposals, product information, financial
information, technology and costs, pricing information, customer lists, and
key accounts, including their credit information and product wants and needs
(the "Confidential Information"). This Confidential Information derives
independent economic value, both actual and potential, from not being
generally known to the public or to other persons who can obtain economic
value from its disclosure and use. As Employer has always held the
Confidential Information as proprietary, confidential trade secret
information and has taken steps to insure that the Confidential Information
is not disclosed outside of 3D Systems, the Confidential Information
constitutes "trade secrets" under the Uniform Trade Secrets Act, California
Civil Code Sections 3426(d)(1). In light of the foregoing, Employee therefore
agrees that: (1) he will not at any time, now or in the future, share,
disseminate, disclose, discuss or use the Confidential Information in any
way; and (2) upon termination of this Agreement, Employee will return to
Employer all property, writings and/or documents in his possession or custody
belonging to or relating to the affairs of Employer or any of its
subsidiaries or affiliates, or comprising or relating to the Confidential
Information.
8. OWNERSHIP OF INTELLECTUAL PROPERTY. Employee hereby acknowledges and
agrees that any and all copyrightable works authored by Employee in connection
with the performance of the Services, alone or with others, during the Term of
this Agreement, and during any continuing term of employment on at at-will
basis, shall be deemed to have been specially ordered or commissioned for use as
either a contribution to a collective work, as a translation, as a supplementary
work, as a compilation, or as an instructional text and, as such, shall be
deemed to be "works for hire" under the United States copyright laws from the
inception of creation of such works. In the event that any such works shall be
deemed by a court of competent jurisdiction not to be a "work made for hire,"
this Agreement shall
Page 2 of 23
operate as an irrevocable assignment by Employee to Employer of all right, title
and interest in and to such works, including without limitation, all worldwide
copyright interests therein, in perpetuity. The fact that such copyrightable
works are created by Employee outside of Employer's facilities or other than
during Employee's working hours with Employer, shall not diminish Employer's
rights with respect to such works which otherwise fall within this subsection.
Employee agrees to execute and deliver to Employer such further instruments or
documents as may be requested by Employer in order to effectuate the purposes of
this subsection.
9. RELATIONSHIP OF THE PARTIES. Employee enters into this Agreement as,
and shall continue to be, a short-term, part time Employee. Employee shall not
be entitled to any benefits except those required by law.
10. APPOINTMENT AS A DIRECTOR. The Board of Directors of Employer (the
"Board") has resolved to appoint Employee as a Class II Director. In this
capacity, Employee will serve at the pleasure of the Board and pursuant to
Employer's bylaws.
11. STOCK OPTIONS. Concurrently with the execution of this Agreement as an
inducement to Employee to accept employment with Employer, Employee and Employer
are executing and delivering Stock Option Agreements (the "Option Agreement"),
attached hereto as Exhibits A and C, and Option Certificates, attached hereto as
Exhibits B and D, and incorporated herein by this reference, which grants to
Employee the option to purchase three hundred fifty thousand (350,000) shares of
the Common Stock of Employer at an exercise price of $6.00. The number of shares
subject to this Option shall be earned pro rata over the Term of this Agreement,
and shall become exercisable pursuant to the exercise schedule contained in
Exhibit B. Should Employee's employment terminate as a result of an act of
misconduct described in Section 4(g) of the 3D Systems Corporation 1996 Stock
Incentive Plan, the Options will terminate immediately as to all unvested
shares.
12. ARBITRATION.
12.1 Any dispute regarding any aspect of this Agreement or any act
which would violate any provision in this Agreement (hereafter referred to as
"arbitrable disputes" shall be resolved by an experienced arbitrator licensed to
practice law in the State of California and selected in accordance with the
rules of the American Arbitration Association, as the exclusive remedy for such
dispute. Judgment on any award rendered by such arbitrator may be entered in any
court having proper jurisdiction.
12.2 Should Employee or Employer institute any legal action or
administrative proceeding regarding any dispute or matter covered by this
Section by any method other than said arbitration, the responding party shall be
entitled to recover from the other party all damages, costs, expenses and
attorney's fees incurred as a result of such action.
Page 3 of 23
13. SEVERABILITY AND GOVERNING LAW.
13.1 Should any of the provisions in this Agreement be declared or be
determined to be illegal or invalid, all remaining parts, terms or provisions
shall be valid, and the illegal or invalid part, term or provision shall be
deemed not to be a part of this Agreement.
13.2 This Agreement is made and entered into in the State of
California and shall in all respects be interpreted, enforced and governed under
the laws of California.
14. PROPER CONSTRUCTION.
14.1 The language of all parts of this Agreement shall in all cases be
construed as a whole according to its fair meaning, and not strictly for or
against any of the parties.
14.2 As used in this Agreement, the term "or" shall be deemed to
include the term "and/or" and the singular or plural number shall be deemed to
include the other whenever the context so indicates or requires.
14.3 The paragraph headings used in this Agreement are intended solely
for convenience of reference and shall not in any manner amplify, limit, modify
or otherwise be used in the interpretation of any of the provisions hereof.
15. ENTIRE AGREEMENT. This Agreement is the entire agreement between
Employee and Employer and fully supersedes any and all prior agreements or
understandings between the parties pertaining to its subject matter.
16. NOTICES. All notices, requests, demands and other communications
called for or contemplated under this Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered, on the date of
transmission if sent by facsimile, on the third day after mailing if mailed to
the party to whom notice is to be given, by first class mail, postage prepaid,
and properly addressed as follows:
If to Employer: 3D Systems, Inc.
00000 Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: A. Xxxxxx Xxxxxx
If to Employee: Xxxx X. Xxxxx
Regent Pacifc Management Corporation
00000 X. XxXxxx Xxxx. Xxxxx 000
Xxxxxxxxx, XX 00000
Page 4 of 23
17. AMENDMENTS. This Agreement may not be amended, supplemented,
canceled, or discharged except by written instrument executed by
the parties hereto.
18. WAIVERS. All waivers hereunder shall be in writing. No waiver by any
party hereto of any breach or anticipated breach of any provision of this
Agreement by any other party shall be deemed a waiver of any other
contemporaneous, preceding, or succeeding breach or anticipated breach, whether
or not similar, on the part of the same or any other party.
IN WITNESS WHEREOF, the parties hereto have hereby executed this Agreement
as of the day and year first written above.
3D SYSTEMS CORPORATION
---------------------------------- BY:
Xxxx X. Xxxxx ------------------------------
Its:
-----------------------------
Page 5 of 23
EXHIBIT A
STOCK OPTION AGREEMENT
(INCENTIVE STOCK OPTION FOR EXECUTIVES)
This STOCK OPTION AGREEMENT (this "OPTION AGREEMENT") is made and entered
into on the execution date of the Option Certificate to which it is attached
(the "CERTIFICATE"), by and between 3D Systems Corporation, a Delaware
corporation (the "COMPANY"), and the Executive of the Company named in the
Certificate ("EMPLOYEE").
Pursuant to the 3D Systems Corporation 1996 Stock Incentive Plan (the
"PLAN"), the Compensation Committee (the "Committee") of the Board of Directors
of the Company (the "BOARD") has authorized the grant to Employee of an
incentive stock option to purchase shares of the Company's Common Stock, par
value $0.001 per share (the "COMMON STOCK"), upon the terms and subject to the
conditions set forth in this Option Agreement and in the Plan.
The Company and Employee agree as follows:
1. GRANT OF OPTION.
The Company hereby grants to Employee the right and option (the
"OPTION"), upon the terms and subject to the conditions set forth in this Option
Agreement, to purchase all or any portion of that number of shares of the Common
Stock (the "SHARES") set forth in the Certificate, at the Option exercise price
set forth in the Certificate (the "EXERCISE PRICE").
2. TERM OF OPTION.
The Option shall terminate and expire on the Option Expiration Date
set forth in the Certificate, unless sooner terminated as provided herein. In no
event shall the Option be exercisable after the expiration of ten years from the
date it was granted.
3. EXERCISE PERIOD.
(a) Subject to the provisions of Sections 3(b) and 5 of this Option
Agreement, the Option shall become exercisable (in whole or in part) upon and
after the dates set forth or referred to under the caption "Exercise Schedule"
in the Certificate. The installments shall be cumulative; I.E., the Option may
be exercised, as to any or all Shares covered by an installment, at any time or
times after the installment first becomes exercisable and until expiration or
termination of the Option.
(b) Notwithstanding anything to the contrary contained in this Option
Agreement, the Option may not be exercised, in whole or in part, unless and
until any then-applicable requirements of all federal, state and local laws and
regulatory agencies shall have been fully complied with to the satisfaction of
the Company and its counsel.
4. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part.
The Option may be exercised, in whole or in part, only by delivery to the
Company of:
Page 6 of 23
(a) written notice of exercise in form and substance identical to
Exhibit "A" attached to this Option Agreement stating the number of shares of
Common Stock then being purchased (the "PURCHASED SHARES");
(b) the Exercise Price for each Purchased Share shall be paid in full
upon exercise and shall be payable in cash in United States dollars (including
check, bank draft or money order). The Company will cooperate with any person
who participates in a cashless exercise program of a broker or other agent under
which all or part of the shares received upon exercise of the Option are sold
through the broker or other agent or under which the broker or other agent makes
a loan to such person. Notwithstanding the foregoing, the exercise of the Option
shall not be deemed to occur and no shares of Common Stock will be issued by the
Company upon exercise of the Option until the Company has received payment of
the Exercise Price in full. The date of exercise of an Option shall be
determined under procedures established by the Committee.
5. TERMINATION OF EMPLOYMENT.
(a) If Employee shall cease to be an employee of the Company, or any
direct or indirect subsidiary of the Company, under any of the circumstances
described in the Option Certificate under the caption "Exercise Schedule" then
the terms of the Option Certificate shall control.
(b) If, by reason of death or disability (a "SPECIAL TERMINATING
EVENT"), Employee shall cease to be an employee the Company, then Employee,
Employee's executors or administrators or any person or persons acquiring the
Option directly from Employee by bequest or inheritance, shall have the right to
exercise the Option. Following a Special Terminating Event the Option shall be
immediately vested and may be exercised in full.
(c) For purposes of this Option Agreement, "disability" shall mean
total and permanent disability as defined in Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"). Employee shall not be considered
permanently disabled unless he furnishes proof of such disability in such form
and manner, and at such times, as the Committee may from time to time require.
6. ADJUSTMENTS UPON RECAPITALIZATION.
In the event of any change in the outstanding shares of the Common
Stock or other securities then subject to the Plan by reason of any stock split,
reverse stock split, stock dividend, recapitalization, merger, consolidation,
combination or exchange of shares or other similar corporate change, or if the
outstanding securities of the class then subject to this Agreement are exchanged
for or converted into cash, property or a different kind of securities, or if
cash, property or securities are distributed in respect of such outstanding
securities (other than a regular cash divided) then, unless the terms of such
transaction shall otherwise provide, such equitable adjustments shall be made by
the Board, or the Committee, in the Option (including, without limitation,
appropriate and proportionate adjustments to the number and type of shares or
other securities or cash or other property that may be acquired pursuant to
exercise of the Option); and any such adjustments made by the Board or the
Committee shall be final, binding and conclusive for any and all purposes.
7. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Option Agreement, Employee acknowledges and agrees
that neither the Company nor any other person or entity is under any obligation
to sell or transfer to Employee any option or equity security of the Company,
other than the shares of Common Stock subject to the Option and any other right
or option to purchase Common Stock which was previously granted in writing to
Employee by
Page 7 of 23
the Committee (or the Board). By signing this Option Agreement, Employee
specifically waives all rights which he or she may have had prior to the date of
this Option Agreement (other than any other right or option to purchase Common
Stock which was previously granted in writing to Employee by the Committee or
the Board) to receive any option or equity security of the Company.
8. NO RIGHTS AS SHAREHOLDER.
Except as provided in Section 6 of this Option Agreement, Employee
shall have no rights as a shareholder with respect to the Shares until the date
of the issuance to Employee of a stock certificate or stock certificates
evidencing such Shares. Except as may be provided in Section 6 of this Option
Agreement, no adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate is issued.
9. MODIFICATION.
Subject to the terms and conditions and within the limitations of the
Plan, the Committee (or the Board) may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised). No modification of the
Option shall be made which, without the consent of Employee, would cause the
Option to fail to continue to qualify as an "incentive stock option" within
Section 422 of the Code or would alter or impair any rights of the Employee
under the Option.
10. DISQUALIFYING DISPOSITION; WITHHOLDING.
(a) Employee agrees that should he or she make a "disposition" (as
defined in Section 424(c) of the Code) of all or any of the Purchased Shares
within two years from the date of the grant of the Option or within one year
after the issuance of such Purchased Shares, he or she shall immediately advise
the Company in writing as to the occurrence of the sale and the price realized
upon the sale of such Purchased Shares. Employee agrees that he or she shall
maintain all Purchased Shares in his or her name so long as he or she maintains
beneficial ownership of such Shares.
(b) The Company shall be entitled to require as a condition of
delivery of any Purchased Shares upon exercise of any Option that the Employee
agree to remit, at the time of such delivery or at such later date as the
Company may determine, an amount sufficient to satisfy all federal, state and
local withholding tax requirements relating thereto, and Employee agrees to take
such other action required by the Company to satisfy such withholding
requirements.
11. SERVICES OF OPTION HOLDER.
In consideration for the grant of the Option, Employee agrees to
remain in the employ of, and shall continue to render services to, the Company
or any direct or indirect subsidiary of the Company, as the Committee Board may
from time to time direct, for a period of one year from the date of this Option
Agreement. This provision shall not obligate the Company, or such subsidiary, to
continue to employ, or utilize the services of, Employee for any period
whatsoever. The sole remedy to the Company should Employee breach his or her
obligations under this Section 11 shall be to cancel this Option Agreement and
the Option granted under this Option Agreement. For the purposes of this Option
Agreement, the term "subsidiary" shall mean any present or future corporation
that would be a "subsidiary corporation" of the Company, as defined in Section
424 of the Code.
Page 8 of 23
12. CHARACTER OF OPTION.
The Option is intended to qualify as an "incentive stock option" as
that term is defined in Section 422 of the Code.
13. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Employee shall promptly take all actions and
execute all documents requested by the Company that the Company deems to be
reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
(i) If to the Company, to:
3D Systems Corporation
00000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
(ii) If to Employee, to the address set
forth in the records of the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid; or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
Page 9 of 23
(c) TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may
at any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its officers, directors and stockholders, with or without
consideration.
(d) OPTION NON-TRANSFERABLE. Employee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent and
distribution, and Options may be exercised during the lifetime of Employee only
by Employee or by his or her guardian or legal representative.
(e) MARKET STAND-OFF. In the event of an underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the Securities Act of 1933, as amended, Employee shall not
sell, make any short sale of, loan, hypothecate, pledge, grant any option for
the repurchase of, or otherwise dispose or transfer for value, or otherwise
agree to engage in any of the foregoing transactions with respect to any shares
of Common Stock without the prior written consent of the Company or its
underwriters, for such period of time from and after the effective date of such
registration statement as may be requested by the Company or such underwriters
(the "MARKET STAND-OFF"); provided, however, that in no event shall such period
exceed 180 days.
(f) SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns, heirs and personal representatives.
(g) GOVERNING LAW. THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE IN, AND TO BE PERFORMED SOLELY WITHIN, THAT STATE.
(h) THE PLAN. This Option Agreement is made pursuant to the Plan, and
it is intended, and shall be interpreted in a manner, to comply therewith. Any
provision of this Option Agreement inconsistent with the Plan shall be
superseded and governed by the Plan.
(i) MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not constitute a
part of this Option Agreement for any other purpose.
The Signature Page to this Option Agreement consists of the last page
of the Certificate.
Page 10 of 23
Exhibit "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
TO: 3D Systems Corporation
The undersigned, the holder of the enclosed Stock Option Agreement
(Incentive Stock Option), hereby irrevocably elects to exercise the purchase
rights represented by the Option and to purchase thereunder ______* shares of
Common Stock of 3D Systems Corporation (the "COMPANY"), and herewith encloses
payment of $__________ and/or _________ shares of the Company's Common Stock in
full payment of the purchase price of such shares being purchased.
Dated:
------------------------
---------------------------------------
(Signature must conform in all respects to
name of holder as specified on the face of
the Option)
---------------------------------------
(Please Print Name)
---------------------------------------
(Address)
---------------------------------------
* Insert here the number of shares called for on the face of the
Option (or, in the case of a partial exercise, the number of shares being
exercised), in either case without making any adjustment for additional Common
Stock of the Company, other securities or property which, pursuant to the
adjustment provisions of the Option, may be deliverable upon exercise.
Page 11 of 23
EXHIBIT B
OPTION CERTIFICATE
(INCENTIVE STOCK OPTION FOR EXECUTIVES)
THIS IS TO CERTIFY that 3D Systems Corporation, a Delaware corporation (the
"COMPANY"), has granted to the employee named below an incentive stock option
(the "OPTION") to purchase shares of the Company's Common Stock (the "SHARES"),
under its 1996 Stock Incentive Plan (the "PLAN"), and upon the terms and
conditions determined bythe Compensation Committee (the "Committee") of the
Board of Directors of the Company (the "BOARD"), as follows:
Name of Employee: Xxxx X. Xxxxx
Address of Employee:
-----------------------
-----------------------
Number of Shares: 100,000, provided, however, that the
number of shares subject to this Option shall be earned pro rata over the first
twelve (12) months beginning with the Date of Grant. However, if Regent Pacific
Management Corporation's ("Regent Pacific") contract with the Company is
terminated without cause during this twelve-month period, then the entire amount
shall be considered earned upon termination.
-------------------
Option Exercise Price: $6.00 per share
Date of Grant: September 9, 1999
Option Expiration Date: September 8, 2004
EXERCISE SCHEDULE: The shares earned, as described above, shall be
exercisable with respect to one third (rounded up or down to the nearest whole
number) on each of the first three anniversaries of the Date of Grant: provided,
however, that such option shall fully vest (i) upon the termination of Regent
Pacific by the Company without cause, (ii) should Regent Pacific principals
cease to be associated with the management of the Company or, (iii) upon a
"Change of Control Transaction."
Change of Control Transaction shall mean (i) the consummation of a sale of all
or substantially all of the assets of Company, or (ii) a merger of Company with
or into another corporation in which the stockholders of Company immediately
before the transaction do not own, directly or indirectly, a majority of Company
or the surviving entity immediately following the transaction.
SUMMARY OF OTHER TERMS: This Option is defined in the Stock Option
Agreement (Incentive Stock Option) (the "OPTION AGREEMENT") which is attached
to this Option Certificate (the
Page 12 of 23
"CERTIFICATE") as Annex I. This Certificate summarizes certain of the provisions
of the Option Agreement for your information, but is not complete. Your rights
are governed by the Option Agreement, NOT by this summary. The Company strongly
suggests that you carefully review the full Option Agreement prior to signing
this Certificate or exercising the Option.
Among the terms of the Option Agreement are the following:
TERMINATION OF EMPLOYMENT: The Option terminates on the Option Expiration
Date. If your employment ends as the result of any of the circumstances
described in the Exercise Schedule, above, the terms of that section shall
apply. If your employment ends due to death or disability, the Option shall vest
immediately and continue to be exercisable until the Expiration Date.
TRANSFER: The Option is personal to you, and cannot be sold, transferred,
assigned or otherwise disposed of to any other person, except upon your death.
See Section 13(d) of the attached Option Agreement.
EXERCISE: You can exercise the Option (while it is exercisable), in whole
or in part, by delivering to the Company a Notice of Exercise identical to
Exhibit "A" attached to the Option Agreement, accompanied by payment of, or
provision pursuant to the Option Agreement for the payment of, the Exercise
Price for the Shares to be purchased. The Company may require you to submit
certain written reassurances to the Company with respect to your status as a
shareholder. The Company will then issue a certificate to you for the Shares you
have purchased. You are under no obligation to exercise the Option. See Section
4 of the attached Option Agreement.
ADJUSTMENTS UPON RECAPITALIZATION: The Option contains provisions which
affect your rights in the event of stock splits, stock dividends, mergers and
other major corporate reorganizations. See Section 6 of the attached Option
Agreement.
WAIVER: By signing this Certificate, you will be agreeing to all of the
terms of the Option Agreement, including those not summarized in this
Certificate. You will waive your rights to options or stock that may otherwise
have been promised to you. See Section 7 of the attached Option Agreement.
WITHHOLDING: The Company may require you to make any arrangements necessary
to insure the proper withholding of any amount of tax, if any, required to be
withheld by the Company as a result of the exercise of the Option. See Section
10 of the attached Option Agreement.
VALUE OF SHARES: If you are granted an Option first exercisable in any one
calendar year to purchase Shares valued in excess of $100,000 on the grant date,
then for tax purposes the incremental portion of such Shares with an aggregate
fair market value in excess of $100,000 shall be treated as non-statutory stock
options, rather than as incentive stock options (as that term is defined in
Section 422 of the Internal Revenue Code of 1986, as amended).
Page 13 of 23
A G R E E M E N T
3D Systems Corporation, a Delaware corporation, and the Employee each
hereby agrees to be bound by all of the terms and conditions of the Stock Option
Agreement (Incentive Stock Option) which is attached hereto as Annex I and
incorporated herein by this reference as if set forth in full in this document.
DATED:
----------------------------
3D SYSTEMS CORPORATION
By:
-------------------------------
Its:
-------------------------------
EMPLOYEE
-----------------------------------
---------------------------------- Name:
-----------------------------------
(Please print your name exactly as
you wish it to appear on any stock
certificates issued to you upon
exercise of the Option)
Page 14 of 23
EXHIBIT C
OPTION CERTIFICATE
THIS IS TO CERTIFY that 3D Systems Corporation, a Delaware corporation (the
"COMPANY"), has granted to the employee of the Company named below a
non-statutory stock option (the "OPTION") to purchase shares of the Company's
Common Stock (the "SHARES"), and upon the terms and conditions determined by the
Compensation Committee (the "COMMITTEE") of the Board of Directors of the
Company (the "BOARD"), as follows:
NAME OF OPTIONEE: Xxxx X. Xxxxx
ADDRESS OF OPTIONEE: c/o 3D Systems Corporation
00000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
NUMBER OF SHARES: 250,000, provided, however, that
the number of shares subject to this Option shall be earned pro rata over the
twelve (12) months beginning with the Date of Grant. However, if Regent
Pacific Management Corporation's ("Regent Pacific") contract with the Company
is terminated without cause during this twelve-month period, then the entire
amount shall be considered earned upon termination.
OPTION EXERCISE PRICE: $ 6.00 per share
DATE OF GRANT: September 9, 1999
OPTION EXPIRATION DATE: Five years from the Date of Grant.
EXERCISE SCHEDULE: The shares earned, as described above, shall be
exercisable with respect to one third (rounded up or down to the nearest whole
number) on each of the first three anniversaries of the Date of Grant: provided,
however, that such option shall fully vest (i) upon the termination of Regent
Pacific by the Company without cause, (ii) should Regent Pacific principals
cease to be associated with the management of the Company or, (iii) upon a
"Change of Control Transaction."
Change of Control Transaction shall mean (i) the consummation of a sale of all
or substantially all of the assets of Company, or (ii) a merger of Company with
or into another corporation in which the stockholders of Company immediately
before the transaction do not own, directly or indirectly, a majority of Company
or the surviving entity immediately following the transaction.
OUTSIDE OF 1996 STOCK INCENTIVE PLAN: The Option has been granted outside
the 1996 Stock Incentive Plan and is not subject to the terms thereof.
SUMMARY OF OTHER TERMS: This Option is defined in the Stock Option
Agreement (Non-Statutory Stock Option) (the "OPTION AGREEMENT") which is
attached to this Option Certificate (the "CERTIFICATE") as Exhibit D. This
Certificate summarizes certain of the provisions of the Option
Page 15 of 23
Agreement for your information, but is not complete. Your rights are governed by
the Option Agreement, NOT by this summary. The Company strongly suggests that
you carefully review the full Option Agreement prior to signing this Certificate
or exercising the Option.
Among the terms of the Option Agreement are the following:
TERMINATION OF EMPLOYMENT: The Option terminates on the Option Expiration
Date. If your employment ends as the result of any of the circumstances
described in the Exercise Schedule, above, the terms of that section shall
apply. If your employment ends due to death or disability, the Option shall vest
immediately and continue to be exercisable until the Expiration Date.
TRANSFER: The Option is personal to you, and cannot be sold, transferred,
assigned or otherwise disposed of to any other person, except upon your death.
See Section 13(d) of the attached Option Agreement.
EXERCISE: You can exercise the Option (while it is exercisable), in whole
or in part, by delivering to the Company a Notice of Exercise identical to
Exhibit "A" attached to the Option Agreement, accompanied by payment of, or
provision pursuant to the Option Agreement for the payment of, the Exercise
Price for the Shares to be purchased. The Company may require you to submit
certain written assurances to the Company with respect to your status as a
shareholder. The Company will then issue a certificate to you for the Shares you
have purchased. You are under no obligation to exercise the Option. See Section
4 of the attached Option Agreement.
ADJUSTMENTS UPON RECAPITALIZATION: The Option contains provisions which
affect your rights in the event of stock splits, stock dividends, mergers and
other major corporate reorganizations. See Section 6 of the attached Option
Agreement.
WAIVER: By signing this Certificate, you will be agreeing to all of the
terms of the Option Agreement, including those not summarized in this
Certificate. You will waive your rights to options or stock which may otherwise
have been promised to you. See Section 7 of the attached Option Agreement.
WITHHOLDING: The Company may require you to make any arrangements necessary
to insure the proper withholding of any amount of tax, if any, required to be
withheld by the Company as a result of the exercise of the Option. See Section
10 of the attached Option Agreement.
Page 16 of 23
A G R E E M E N T
3D Systems Corporation, a Delaware corporation, and Optionee each hereby
agrees to be bound by all of the terms and conditions of the Stock Option
Agreement (Non-Statutory Stock Option) which is attached hereto as Annex I and
incorporated herein by this reference as if set forth in full in this document.
DATED:
----------------------------
3D SYSTEMS CORPORATION
By:
-------------------------------
Its: Chief Executive Officer
OPTIONEE
Name:
------------------------------
------------------------------
(Please print your name exactly as
you wish it to appear on any stock
certificates issued to you upon
exercise of the Option)
Page 17 of 23
EXHIBIT D
STOCK OPTION AGREEMENT
(NON-STATUTORY STOCK OPTION)
This STOCK OPTION AGREEMENT (this "OPTION AGREEMENT") is made and entered
into on the execution date of the Option Certificate to which it is attached
(the "CERTIFICATE"), by and between 3D Systems Corporation, a Delaware
corporation (the "COMPANY"), and the employee of the Company named in the
Certificate ("OPTIONEE").
The Board of Directors of the Company (the "BOARD") has authorized the
grant to Optionee of a non-statutory stock option to purchase shares of the
Company's Common Stock, par value $0.001 per share (the "COMMON STOCK"), upon
the terms and subject to the conditions set forth in this Option Agreement.
The Company and Optionee agree as follows:
9. GRANT OF OPTION.
The Company hereby grants to Optionee the right and option (the
"OPTION"), upon the terms and subject to the conditions set forth in this Option
Agreement, to purchase all or any portion of that number of shares of the Common
Stock (the "SHARES") set forth in the Certificate, at the Option exercise price
set forth in the Certificate (the "EXERCISE PRICE").
10. TERM OF OPTION.
The Option shall terminate and expire on the Option Expiration Date
set forth in the Certificate, unless sooner terminated as provided herein. In no
event shall the Option be exercisable after the expiration of ten years from the
date it was granted.
11. EXERCISE PERIOD.
(a) Subject to the provisions of Sections 3(b) and 5 of this Option
Agreement, the Option shall become exercisable (in whole or in part) upon and
after the dates set forth or referred to under the caption "Exercise Schedule"
in the Certificate. The installments shall be cumulative; I.E., the Option may
be exercised, as to any or all Shares covered by an installment, at any time or
times after the installment first becomes exercisable and until expiration or
termination of the Option.
(b) Notwithstanding anything to the contrary contained in this Option
Agreement, the Option may not be exercised, in whole or in part, unless and
until any then-applicable requirements of all federal, state and local laws and
regulatory agencies shall have been fully complied with to the satisfaction of
the Company and its counsel.
Page 18 of 23
12. EXERCISE OF OPTION.
There is no obligation to exercise the Option, in whole or in part.
The Option may be exercised, in whole or in part, only by delivery to the
Company of:
(a) written notice of exercise in form and substance identical
to Exhibit "A" attached to this Option Agreement stating the number of shares of
Common Stock then being purchased (the "PURCHASED SHARES");
(b) the Exercise Price for each Purchased Share shall be paid in
full upon exercise and shall be payable in cash in United States dollars
(including check, bank draft or money order). The Company will cooperate with
any person who participates in a cashless exercise program of a broker or other
agent under which all or part of the shares received upon exercise of the Option
are sold through the broker or other agent or under which the broker or other
agent makes a loan to such person. Notwithstanding the foregoing, the exercise
of the Option shall not be deemed to occur and no shares of Common Stock will be
issued by the Company upon exercise of the Option until the Company has received
payment of the Exercise Price in full. The date of exercise of an Option shall
be determined under procedures established by the Committee.
13. TERMINATION OF EMPLOYMENT.
(a) If Employee shall cease to be an employee of the Company, or any
direct or indirect subsidiary of the Company, under any of the circumstances
described in the Option Certificate under the caption "Exercise Schedule" then
the terms of the Option Certificate shall control.
(b) If, by reason of death or disability (a "SPECIAL TERMINATING
EVENT"), Employee shall cease to be an employee the Company, then Employee,
Employee's executors or administrators or any person or persons acquiring the
Option directly from Employee by bequest or inheritance, shall have the right to
exercise the Option. Following a Special Terminating Event the Option shall be
immediately vested and may be exercised in full.
(c) For purposes of this Option Agreement, "disability" shall mean
total and permanent disability as defined in Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended (the "Code"). Employee shall not be considered
permanently disabled unless he furnishes proof of such disability in such form
and manner, and at such times, as the Committee may from time to time require.
14. ADJUSTMENTS UPON RECAPITALIZATION.
In the event of any change in the outstanding shares of the Common
Stock or other securities then subject to this option by reason of any stock
split, reverse stock split, stock dividend, recapitalization, merger,
consolidation, combination or exchange of shares or other similar corporate
change, or if the outstanding securities of the class then subject to this
Agreement are exchanged for or converted into cash, property or a different kind
of securities, or if cash, property or securities are distributed in respect of
such outstanding securities (other than a regular cash divided) then, unless the
terms of such transaction shall otherwise provide, such equitable adjustments
shall be made by the Board,
Page 19 of 23
in the Option (including, without limitation, appropriate and proportionate
adjustments to the number and type of shares or other securities or cash or
other property that may be acquired pursuant to exercise of the Option); and any
such adjustments made by the Board shall be final, binding and conclusive for
any and all purposes.
15. WAIVER OF RIGHTS TO PURCHASE STOCK.
By signing this Option Agreement, Optionee acknowledges and agrees
that neither the Company nor any other person or entity is under any obligation
to sell or transfer to Optionee any option or equity security of the Company,
other than the shares of Common Stock subject to the Option and any other right
or option to purchase Common Stock which was previously granted in writing to
Optionee by the Committee (or the Board). By signing this Option Agreement,
Optionee specifically waives all rights which he or she may have had prior to
the date of this Option Agreement (other than any other right or option to
purchase Common Stock which was previously granted in writing to Optionee by the
Committee or the Board) to receive any option or equity security of the Company.
16. NO RIGHTS AS SHAREHOLDER.
Except as provided in Section 6 of this Option Agreement, Optionee
shall have no rights as a shareholder with respect to the Shares until the date
of the issuance to Optionee of a stock certificate or stock certificates
evidencing such Shares. Except as may be provided in Section 6 of this Option
Agreement, no adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities or other property) or distributions or other rights
for which the record date is prior to the date such stock certificate is issued.
17. MODIFICATION.
The Committee (or the Board) may modify, extend or renew the Option or
accept the surrender of, and authorize the grant of a new option in substitution
for, the Option (to the extent not previously exercised); PROVIDED, that a
modification of the Option shall be effective only with the consent of the
Optionee.
18. WITHHOLDING.
The Company shall be entitled to require as a condition of delivery of
any Purchased Shares upon exercise of any Option that the Optionee agree to
remit, at the time of such delivery or at such later date as the Company may
determine, an amount sufficient to satisfy all federal, state and local
withholding tax requirements relating thereto, and Optionee agrees to take such
other action required by the Company to satisfy such withholding requirements.
19. CHARACTER OF OPTION.
The Option is not intended to qualify as an "incentive stock option"
as that term is defined in Section 422 of the Code.
Page 20 of 23
20. GENERAL PROVISIONS.
(a) FURTHER ASSURANCES. Optionee shall promptly take all actions and
execute all documents requested by the Company which the Company deems to be
reasonably necessary to effectuate the terms and intent of this Option
Agreement.
(b) NOTICES. All notices, requests, demands and other communications
under this Option Agreement shall be in writing and shall be given to the
parties hereto as follows:
21. If to the Company, to:
3D Systems Corporation
00000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
22. If to Optionee, to the address set
forth in the records of the Company,
or at such other address or addresses as may have been furnished by such either
party in writing to the other party hereto. Any such notice, request, demand or
other communication shall be effective (i) if given by mail, 72 hours after such
communication is deposited in the mail by first-class certified mail, return
receipt requested, postage prepaid, addressed as aforesaid; or (ii) if given by
any other means, when delivered at the address specified in this subparagraph
(b).
(c) TRANSFER OF RIGHTS UNDER THIS OPTION AGREEMENT. The Company may
at any time transfer and assign its rights and delegate its obligations under
this Option Agreement to any other person, corporation, firm or entity,
including its employees, directors and stockholders, with or without
consideration.
(d) OPTION NON-TRANSFERABLE. Optionee may not sell, transfer, assign
or otherwise dispose of the Option except by will or the laws of descent and
distribution, and Options may be exercised during the lifetime of Optionee only
by Optionee or by his or her guardian or legal representative.
(e) MARKET STAND-OFF. In the event of an underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the Securities Act of 1933, as amended, Optionee shall not
sell, make any short sale of, loan, hypothecate, pledge, grant any option for
the repurchase of, or otherwise dispose or transfer for value, or otherwise
agree to engage in any of the foregoing transactions with respect to any shares
of Common Stock without the prior written consent of the Company or its
underwriters, for such period of time from and after the effective date of such
registration statement as may be requested by the Company or such underwriters
(the "MARKET STAND-OFF"); provided, however, that in no event shall such period
exceed 180 days.
Page 21 of 23
(f) SUCCESSORS AND ASSIGNS. Except to the extent specifically limited
by the terms and provisions of this Option Agreement, this Option Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns, heirs and personal representatives.
(g) GOVERNING LAW. THIS OPTION AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE IN, AND TO BE PERFORMED SOLELY WITHIN, THAT STATE.
(h) MISCELLANEOUS. Titles and captions contained in this Option
Agreement are inserted for convenience of reference only and do not constitute a
part of this Option Agreement for any other purpose.
The Signature Page to this Option Agreement consists of the last page
of the Certificate.
Page 22 of 23
Exhibit "A"
NOTICE OF EXERCISE
(To be signed only upon exercise of the Option)
TO: 3D Systems Corporation
The undersigned, the holder of the enclosed Stock Option Agreement
(Non-Statutory Stock Option), hereby irrevocably elects to exercise the purchase
rights represented by the Option and to purchase thereunder ______* shares of
Common Stock of 3D Systems Corporation (the "COMPANY"), and herewith encloses
payment of $__________ and/or _________ shares of the Company's Common Stock in
full payment of the purchase price of such shares being purchased.
Dated:
------------------------------
------------------------------------
Signature must conform in all
respects to name of holder as
specified on the face of the Option)
------------------------------------
(Please Print Name)
------------------------------------
(Address)
* Insert here the number of shares called for on the face of the Option
(or, in the case of a partial exercise, the number of shares being exercised),
in either case without making any adjustment for additional Common Stock of the
Company, other securities or property which, pursuant to the adjustment
provisions of the Option, may be deliverable upon exercise.
Page 23 of 23
