EMPLOYMENT AGREEMENT
BETWEEN
EARTHSHELL CORPORATION
AND
XXXXXXX X. XXXXXX
This Employment Agreement (the "Agreement") is entered into as of April
15, 1998 (the "Effective Date") by and between EarthShell Corporation, a
Delaware corporation with its principal office located in Santa Barbara,
California (the "Company"), and Xxxxxxx X. Xxxxxx, an individual
("Executive").
AGREEMENT
1. SERVICES PROVIDED TO THE COMPANY. Commencing as of May 1, 1998
("Start Date"), Executive shall be employed by the Company as its Vice
President of Marketing and Sales, and Executive agrees to such employment.
During the term of this Agreement, Employee shall devote all of his regular
working hours to the business and welfare of the Company and its
subsidiaries. Executive, however, may spend a reasonable amount of time with
respect to charitable and civic activities (including serving on the board of
directors of charitable organizations) and may make personal investments or
conduct private business affairs to the extent that such activities do not
materially interfere with the services required under this Agreement.
2. COMPENSATION TO EXECUTIVE.
(a) BASE SALARY. During the term of this Agreement, the Company
shall pay to Executive a base salary in the amount of $225,000 per annum,
payable in accordance with the normal payment pattern of the Company, not to
be less frequently than monthly. The Base Salary shall commence to accrue on
the Start Date.
(b) STOCK OPTIONS. Pursuant to the Company's 1995 Stock Incentive
Plan (the "Plan"), on the Effective Date, the Company shall grant to
Executive options to acquire 75,000 shares of the Company's common stock at
an exercise price equal to the market price per share of the Company's common
stock at the close of trading on the business day immediately preceding the
Start Date. Such options shall vest at the rate of 25% on each anniversary
of the Effective Date. All options shall become fully vested on the fourth
anniversary of the Effective Date.
(c) ADDITIONAL COMPENSATION. Executive shall receive a "signing"
bonus in the amount of $50,000 payable promptly after the Start Date.
Executive may also be entitled to receive (i) an annual bonus in an amount
equal to one year's base salary provided certain financial and other
milestones are met by the Company and Executive, as determined by Executive
and the Compensation Committee (the "Compensation Committee") of the
Company's Board of Directors (the "Board") within 60 days following the date
of this Agreement, and, in the event such milestones are not met or are
significantly exceeded, such
other lesser or greater bonus as the Compensation Committee shall determine
is its sole discretion, and (ii) options or other rights to acquire the
Company's common stock pursuant to the Plan, under such terms and conditions
as are determined by the Stock Option Committee (the "Option Committee") of
the Board in its sole discretion. In making such determinations, the
Compensation Committee and Option Committee shall consider, among other
things, the annual financial results of the Company, meeting critical
milestones on the business plan and Executive's contributions thereto.
3. EMPLOYEE BENEFITS. The Company shall provide to Executive each of
the following benefits:
(a) BUSINESS EXPENSES. The Company shall pay or reimburse
Executive for all reasonable out-of-pocket expenses incurred by Executive in
the course of providing his services hereunder and which are consistent with
the Company's expense reimbursement guidelines or policies. Such
reimbursement shall be made by the Company within thirty (30) days after
receipt of a statement therefor from Executive setting forth in reasonable
detail the expenses for which reimbursement is requested, accompanied by
reasonable documentation evidencing such expenses.
(b) INSURANCE COVERAGE AND BENEFITS. Beginning on the Start Date,
the Company shall provide Executive, at the Company's expense, coverage under
the major medical, hospitalization, disability and other insurance programs
maintained by the Company for its officers generally, or if none is made for
its officers generally, its employees generally, including any benefit plans
that are provided by the Company subsequent to the date of this Agreement.
In addition, Executive shall receive on the Start Date all other
Company-provided benefits, including sick pay benefits, that are, from time
to time, made available by the Company to its officers generally or, if not
made to its officers generally, its employees generally. Executive shall be
entitled to four weeks paid vacation each year.
4. TERMINATION. Executive's employment hereunder may be terminated
upon thirty (30) days written notice by Executive or the Company, provided
that if Company terminates Executive's employment for other than cause,
Executive shall be entitled to severance pay equal to 100% of his annual base
salary. Notwithstanding the foregoing, Executive shall not be entitled to
any severance payment if his employment shall be terminated for cause. Cause
means the occurrence of any of the following events: (i) willful and
continued failure (to include such failure due to (a) death or (b) disability
for a consecutive period of ninety (90) days or more) by the Executive to
substantially perform his duties with the Company; provided, however, that
the Executive must be notified by the Company of any such failure to perform
his duties and shall have thirty (30) days from the date of such notice to
cure such failure; (ii) any act by the Executive of fraud, misappropriation,
dishonesty, embezzlement or similar conduct against the Company; or (iii)
indictment or conviction of the Executive for a felony or any other crime
involving moral turpitude.
5. CONFIDENTIAL AND PROPRIETARY INFORMATION. Executive agrees to
execute and deliver to the Company its standard non-disclosure agreement with
respect to the Company's
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confidential and proprietary information. Such agreement shall be effective
as of the Effective Date.
6. GENERAL PROVISIONS.
(a) NOTICES. Any notice to be given pursuant to this Agreement
shall be in writing and, in the absence of receipted hand delivery, shall be
deemed duly given when mailed, if the same shall be sent by certified or
registered mail, return receipt requested, or by a nationally recognized
overnight courier, and the mailing date shall be deemed the date from which
all time periods pertaining to a date of notice shall run. Notices shall be
addressed to the parties at the following addresses:
If to the Company, to: EarthShell Corporation
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chairman of the Board
If to Executive, to: Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
(b) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the Company and any successors whether by
merger, consolidation, transfer of substantially all assets or similar
transaction, and it shall be binding upon and shall inure to the benefit of
Executive and his heirs and legal representatives. This Agreement is
personal to Executive and shall not be assignable by Executive.
(c) WAIVER OF BREACH. The waiver by the Company or Executive of a
breach of any provision of this Agreement or by the other shall not operate
or be construed as a waiver of any subsequent breach by the other.
(d) ENTIRE AGREEMENT/AMENDMENT. This Agreement shall constitute
the entire agreement between the parties hereto with respect to the subject
matter hereof, and shall supersede all previous oral and written and all
contemporaneous oral negotiations, commitments, agreements and understandings
relating hereto. Any amendment to this Agreement shall be effective only if
it is in writing and signed by the parties to this Agreement.
(e) APPLICABLE LAW. The validity of this Agreement and the
interpretation and performance of all of its terms shall be construed and
enforced in accordance with the laws of the State of California without
reference to choice or conflict of law principles.
(f) SEVERABILITY. Any provision of this Agreement that is deemed
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction and subject to this paragraph, be ineffective to the extent of
such invalidity, illegality or unenforceability, without affecting in any way
the remaining provisions hereof in such jurisdiction or rendering that or any
other provision of this Agreement invalid, illegal or unenforceable in any
other jurisdiction. If
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any covenant should be deemed invalid, illegal or unenforceable because its
scope is considered excessive, such covenant shall be modified so that the
scope of the covenant is reduced only to the minimum extent necessary to
render the modified covenant valid, legal and enforceable.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
EARTHSHELL CORPORATION,
a Delaware corporation
By:
---------------------------------
Title:
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XXXXXXX X. XXXXXX
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