0Xxxxxxxxx.xxx
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx xxx Xxx, Xxxxxxxxxx 00000
Xx. Xxxxx Xxxxxxx
000 Xxxxxxxx
Xxxx Xxxxxx, XX 00000
RE: AMENDMENT TO OFFER LETTER
-----------------------------
Dear Xxxxx:
This letter amendment together with Schedule "1" attached hereto (collectively,
"Amendment") dated as of May 30, 2000, to your Offer Letter dated as of November
5, 1999, from Xxx Xxxxx to you, confirms our agreement in connection with your
promotion from Vice President, Business Development, to Chief Executive Officer
("C.E.O") of 0Xxxxxxxxx.xxx ("3D"), pursuant to the following terms:
1. Subject to confirmation by our Board of Directors ("Board") (which
confirmation was obtained on May 24, 2000), you will serve on a
full-time basis as 3D's Chief Executive Officer, and 3D will employ you
in those capacities beginning on May 18, 2000 ("Hire Date"). In that
capacity, you report to 3D's Board and will be advised, instructed and
assisted by the Board's Chairman and the Chairman of the Board's
Executive Committee (i.e., Xxxxxxxx Xxxxxxxx) to facilitate a smooth
transition into the performance of your C.E.O. duties.
2. Your initial employment term will be for a period of 1 year ("Term");
provided that, you are an at-will employee of 3D, and can be terminated
by 3D without cause at any time.
3. Subject to your execution of a general release of claims in a form
satisfactory to 3D, if you are terminated by 3D prior to expiration of
the Term other than for cause, you will be entitled to "Severance
Payments" equal to your Post-Term Compensation (as defined below) for
six months. These Severance Payments will be made at such times and in
such amounts as they would have been made had you remained continually
employed by 3D. Any prior acceleration of any compensation payments
made to you shall be taken into account for purposes of determining the
amount of such Severance Payments.
4. You will receive cash compensation at the rate of $200,000 per annum
during the Term only ("Term Compensation"), subject to partial
recoupment by 3D if the Performance Target (as defined below) is not
achieved (i.e., up to $50,000 may be recouped during the Term by 3D) as
detailed below. After the Term, if you remain in your current position
with 3D, you will receive cash compensation at the rate of $150,000 per
annum or such other amount as agreed by the parties in writing
("Post-Term Compensation"). You will be eligible for such bonuses and
other forms of supplemental compensation as may from time to time be
approved by the Board. Your rate of Compensation will be subject to
review by the Board of Directors not less often than annually in
connection with the annual review of officer compensation generally.
5. If during the Term, 3D achieves company-wide sales of $2,200,000
(excluding any deals for which Xxxxxxxx Xxxxxxxx is acting as the lead
salesperson) within any consecutive 90-day period (i.e., the 90-day
period is a rolling period within the Term for purposes of this
Paragraph) ("Performance Target"), then you are entitled to retain all
$200,000 paid to you as Term Compensation. If by the seventh month of
the Term (i.e., by December 18, 2000) you have failed to achieve the
Performance Target, then 3D is entitled to recoup $50,000 from the Term
Compensation, which shall be recouped on a monthly pro-rata basis over
the remaining five months of the Term (i.e., 10,000 per month shall be
deducted from your gross pay). As an accommodation to you, 3D will
accelerate the first month of the Term Compensation in accordance with
the schedule attached hereto as Schedule "1".
Upon your acceptance of this Amendment, it will be recommended to the
Board by the Compensation Committee that you be granted options to
purchase up to 100,000 additional shares of 3D common stock ("New
Options"), which in addition to the 25,000 options you currently
possess ("Existing Options") provides you with an aggregate total of
125,000 options (New Options and Existing Options are collectively
referred to herein as "Options"). The New Options exercise price is
$7.00, the fair market value of 3D's common stock as determined by the
American Stock Exchange on the close of business on May 18, 2000. To
the extent possible, the New Options would be qualified for treatment
as Incentive Stock Options under the Internal Revenue Code of 1986, as
amended. If approved by the Board, the New Options will vest as
follows:
a. 50,000 INCENTIVE OPTIONS: These New Options would vest in
accordance with 3D's standard four-year vesting schedule
commencing on your Hire Date, which provides for one-fourth
vesting on each of the next four employment anniversary dates
(i.e., 50,000/4 = 12,500) New Options vested annually
beginning on the first anniversary of your Hire Date).
b. 50,000 BONUS "HOME-RUN" OPTIONS: These New Options would vest
in their entirety (i.e., in one lump sum) on the earlier of
any of the following events occurring while you are employed
by 3D in your present position or at a substantially
equivalent or senior position: (i) four years from your Hire
Date passes (i.e., on May 18, 2004); (ii) a buyout occurs by a
single entity or group of a majority ownership (i.e., over
50%) of 3D on a fully-diluted basis; or (iii) 3D achieves a
market capitalization of $500,000,000 based on issued and
outstanding 3D shares of stock (i.e., not on a fully-diluted
basis) at any time. If none of these events occur, the New
Options will terminate and be of no further force and effect.
Upon your voluntary termination of employment, any vested New Options
would remain exercisable for thirty days and any unvested Options would
expire. In the event of termination of your employment at 3D's
initiative, any vested New Options would expire upon the later of the
date of termination or 60 days following notice to you of termination.
6. In addition to the foregoing, you will be eligible for such benefits as
are from time to time made available to other members of senior
management.
7. You will sign and be bound by 3D's customary agreements relating to
nondisclosure, non-solicitation, inventions, and the like.
8. Unless expressly amended by this Amendment, the terms of the Offer
Letter remain in full force and effect. The Offer Letter, and this
Amendment together with Schedule "1" thereto attached hereto and by
this reference made a part hereof, contains the entire agreement
(collectively, "Agreement") of the parties and shall replace and
supersede all prior arrangements and representations, either oral or
written, as to the subject matter hereof. This Agreement may be
modified or amended only by a written instrument signed by all parties
hereto.
If you are in agreement with the foregoing, please sign as indicated below and
return the original to me.
Very truly yours,
Xxxxxxxx Xxxxxxxx
Enclosure
Accepted and agreed:
XXXXX XXXXXXX
By
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Date
