EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into this
28th day of October, 1996, by and between 3D SYSTEMS CORPORATION,
a Delaware corporation ("Employer"), and RICHARD BALANSON
("Employee").
RECITALS
A. Employer is engaged in the business of developing,
manufacturing and marketing solid-imaging systems.
B. Employer desires to employ Employee, and Employee
desires to be employed, on the terms and conditions set forth in
this Agreement.
AGREEMENT
Accordingly, in consideration of the mutual covenants
contained herein, the parties agree as follows:
1. INITIAL TERM OF AGREEMENT
The initial term of this Agreement shall begin on
October 28, 1996 and shall continue until the earlier of (a) the
date on which it is terminated pursuant to Section 5 or (b) October
28, 2000.
2. EMPLOYMENT
2.1 EMPLOYMENT OF EMPLOYEE. Employer hereby hires
Employee as Executive Vice President. Employee hereby accepts such
employment on the terms and conditions of this Agreement.
2.2 POSITION AND DUTIES. Employee shall serve, as
the Executive Vice President of Employer and shall have the general
powers and duties of management usually vested in that office in a
corporation and such other powers and duties as may be prescribed
by the Board of Directors or the Bylaws of Employer. In this
position, Employee will report directly to, and be subject to the
supervision of, Employer's President, or otherwise, as the CEO or
Board of Directors may specify.
2.3 STANDARD OF PERFORMANCE. Employee agrees that
he will at all times faithfully and industriously and to the best
of his ability, experience and talents perform all of the duties
that may be required of and from him pursuant to the terms of this
Agreement. Such duties shall be performed at such place or places
as the interests, needs, business and opportunities of Employer
shall require or render advisable.
2.4 EXCLUSIVE SERVICE. Employee shall devote all
of his business energies and abilities and all of his productive
time to the performance of his duties under this Agreement
(reasonable absences during holidays and vacations excepted), and
shall not, without the prior written consent of Employer, render to
others any service of any kind (whether or not for compensation) or
have or maintain an affiliation with any other entity that, in the
opinion of Employer, would materially interfere with the
performance of his duties under this Agreement.
3. COMPENSATION
3.1 COMPENSATION. During the term of this Agree-
ment, Employer shall pay the amounts and provide the benefits
described in this Section 3, and Employee agrees to accept such
amounts and benefits in full payment for Employee's services under
this Agreement.
3.2 BASE SALARY. Employer shall pay to Employee a
base salary of $225,000 annually in equal installments payable no
less frequently than monthly. The base annual salary may be
reviewed periodically and increased, at the option of Employer.
3.3 BONUS AND/OR INCENTIVE COMPENSATION. Employee
shall receive a contingent signing bonus of $50,000, payable in
four installments of $12,500, provided that Employee is a
continuing active employee on the date that each installment is
due. The sign-up bonus installment dates shall be: (i)
October 28, 1996; (ii) January 31, 1997; (iii) April 30, 1997; and
(iv) July 31, 1997. In addition to the sign-up bonus, Employee
shall be entitled to participate in Employer's executive bonus plan
then in effect, with a bonus range of $0 to the maximum of 75% of
Employee's base salary.
3.4 FRINGE BENEFITS. Subject to Section 3.6 and
upon satisfaction of the applicable eligibility requirements,
Employee shall be entitled to all fringe benefits which Employer
may make generally available from time to time for its executive
employees. Such benefits shall include without limitation those
available, if any, under any group insurance, profit sharing,
pension or retirement plans or sick leave policy.
3.5 VACATION AND HOLIDAYS. Employee shall be
entitled to such vacation plans and paid holidays as Employer shall
generally make available to its executive employees. Each vacation
shall be taken by Employee at a time convenient to Employer. If at
any time or times during the term of this Agreement Employee's
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accrued vacation time reaches four weeks, no additional vacation
time shall accrue until one or more vacation days have been taken
by Employee, after which vacation time shall again begin to accrue,
subject, however, to the maximum of fours weeks' accrued vacation
time.
3.6 DEDUCTION FROM COMPENSATION. Employer shall
deduct and withhold from all compensation payable to Employee all
amounts required to be deducted or withheld pursuant to any present
or future law, ordinance, regulation, order, writ, judgment, or
decree requiring such deduction and withholding.
3.7 RELOCATION ASSISTANCE. Employer agrees to
provide Employee with relocation assistance in accordance with the
Relocation Assistance Program attached hereto as Exhibit "A".
Should, prior to October 28, 1997, Employee voluntarily terminate
his employment under Section 5.3 of this Agreement, Employee shall
within six months of his termination date repay to Employer on a
pro rata basis to the date of termination all costs incurred by
Employer pursuant to the Relocation Assistance Program.
3.8 SALARY CONTINUATION AND DISABILITY. If Employee
becomes totally disabled while in the employ of Employer, Employer
agrees to continue his base annual salary for the first three
months of disability. Total disability means Employee is unable to
perform his duties due to bodily injury or sickness, including
mental or nervous disorder, as determined by a physician selected
by Employer, and while disabled he does not engage in any
employment for wage or profit. This provision is in addition to
any disability plan in effect for executive employees at the time
of Employee's total disability.
Employer's obligation to continue Employee's base
annual salary shall be reduced by any payments for which he and his
dependents are eligible under the Federal Social Security Act, and
any payment to which he is eligible under the Worker's Compensation
Law, Unemployment Insurance Code or other similar legislation, or
under any other plan or insurance providing benefits for loss of
time from disability or unemployment.
4. REIMBURSEMENT OF EXPENSES
Employer shall pay to or reimburse Employee for
those travel and similar expenditures incurred by Employee which
Employer determines are reasonably necessary for the proper
discharge of Employee's duties under this Agreement and for which
Employee submits appropriate receipts and indicates the amount,
date, location and business character.
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5. TERMINATION
5.1 TERMINATION DATE. This Agreement shall
terminate, as provided for in Section 1, above. 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. This period shall be referred to as the "Employment
Extension Period." Unless modified in writing by Employer, during
the Employment Extension Period, the provisions of this Agreement
shall continue in full force and effect, with the exception of
Sections 5.2 through 5.4, which shall be superseded by the
employment at-will nature of the Employment Extension Period.
5.2 TERMINATION WITHOUT CAUSE. Without cause,
Employer may terminate this Agreement at any time for any reason,
or no reason by giving Employee 30 days' written notice. If
requested by Employer to do so, Employee shall continue to perform
his duties under this Agreement during such 30 day period. This
Agreement shall automatically and without further action of
Employer terminate on the death of Employee.
If this Agreement is terminated by Employer during
the initial term of this Agreement without cause or reason other
than death or disability, Employer guarantees to continue to pay
Employee's base salary for 12 months from the date of termination
(subject to any withholding required by law).
5.3 VOLUNTARY TERMINATION. Employee may terminate
this Agreement at any time for any reason, or no reason by giving
Employer 30 days' written notice. If requested by Employer to do
so, Employee shall continue to perform his duties under this
Agreement during such 30-day period.
5.4 TERMINATION FOR CAUSE. Employer may terminate
this Agreement at any time without prior notice for "cause" or in
the event that Employee does not cure a breach of any provision of
this Agreement within five days after Employer delivers demand to
Employee to cure such breach. For this purpose, "cause" shall
include, without limitation, (i) Employee's insubordination,
meaning the willful failure to conform to or conduct himself in
accordance with the policies and standards of Employer or the
refusal to perform the duties assigned pursuant to Section 2;
(ii) the dishonesty of Employee; (iii) Employee's conviction for a
felony or for fraud, embezzlement or any other act of moral
turpitude; (iv) any willful violation by Employee of laws or
regulations applicable to Employer's business; or (v) Employee's
gross negligence or willful misconduct in the performance of his
duties under this Agreement which would adversely affect the
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business or reputation of Employer. A termination by Employee at
any time after the occurrence of an event which would constitute
cause for termination by Employer shall be considered a termination
by Employer for cause, rather than a voluntary termination under
Section 5.3.
5.5 RETURN OF EMPLOYER PROPERTY. Within five days
after termination, Employee shall return to Employer all products,
books, records, forms, specifications, formulae, data processes,
designs, papers and writings relating to the business of Employer
including without limitation proprietary or licensed computer
programs, customer lists and customer data, and/or copies or
duplicates thereof in Employee's possession or under Employee's
control. Employee shall not retain any copies or duplicates of
such property and all licenses granted to him by Employer to use
computer programs or software shall be revoked upon termination.
6. CONFIDENTIAL INFORMATION
6.1 CONFIDENTIALITY PROGRAM. Employee shall take
such steps and shall adopt and/or implement such policies and
programs as may be necessary to protect and to cause all subor-
dinate employees of Employer to protect the inventions, trade
secrets and other confidential information of Employer, its
affiliates and customers. Employer shall require Employee to sign
a confidentiality, inventions, trade secrets, and conflict of
interest agreement as part of Employee's employment, attached
hereto as Exhibit "B."
6.2 NO SOLICITATION. During employment and for a
period of two (2) years after termination of Employee's employment,
Employee agrees not to utilize trade secrets OR Confidential
Information to solicit, or cause to be solicited, any customers of
Employer for purposes of promoting or selling any products or
services competitive with those of Employer. In addition, during
employment and for a period of two (2) years after termination of
Employee's employment with Employer, Employee hereby agrees not to
solicit, or cause to be solicited, away from Employer any employees
of Employer for purposes of having such employees engage or
participate in any business enterprise, or become employed by
anyone, in competition with Employer. Furthermore, in order to
protect the trade secrets and Confidential Information of Employer,
Employee hereby agrees not to accept any employment or engage in
any activities competitive with Employer for a period of two (2)
years after termination of employment with Employer if the loyal
and complete fulfillment of the duties of the competitive
employment or activities would inherently call upon Employee to
reveal any of the trade secrets and Confidential Information of
Employer to which Employee had access during employment by
Employer.
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6.3 CONTINUING EFFECT. The provisions of this
Section 6 shall remain in effect after termination of employment.
7. OTHER PROVISIONS
7.1 COMPLIANCE WITH OTHER AGREEMENTS. Employee
represents and warrants to Employer that the execution, delivery
and performance of this Agreement will not conflict with or result
in the violation or breach of any term or provision of any order,
judgment, injunction, contract, agreement, commitment or other
arrangement to which Employee is a party or by which he is bound,
including without limitation any agreement restricting the sale of
products similar to Employer's products in any geographic location
or otherwise. Employee acknowledges that Employer is relying on
his representation and warranty in entering into this Agreement,
and agrees to indemnify Employer from and against all claims,
demands, causes of action, damages, costs or expenses (including
attorneys' fees) arising from any breach thereof.
7.2 INJUNCTIVE RELIEF. Employee acknowledges that
the services to be rendered under this Agreement and the items
described in Sections 5.5 and 6 are of a special, unique and
extraordinary character, that it would be difficult or impossible
to replace such services or to compensate Employer in money damages
for a breach of this Agreement. Accordingly, Employee agrees and
consents that if he violates any of the provisions of this
Agreement, Employer, in addition to any other rights and remedies
available under this Agreement or otherwise, shall be entitled to
temporary and permanent injunctive relief, without the necessity of
proving actual damages and without the necessity of posting any
bond or other undertaking in connection therewith.
7.3 ATTORNEYS' FEES. The prevailing party in any
suit, arbitration or other proceeding brought to enforce any
provisions of this Agreement, shall be entitled to recover all
costs and expenses of the proceeding and investigation (not limited
to court costs), including attorneys' fees.
7.4 NONDELEGABLE DUTIES. This is a contract for
Employee's personal services. The duties of Employee under this
Agreement are personal and may not be delegated or transferred in
any manner whatsoever, and shall not be subject to involuntary
alienation, assignment or transfer by Employee during his life.
7.5 ENTIRE AGREEMENT. This Agreement (and any
referenced documents) is the only agreement and understanding
between the parties pertaining to the subject matter of this
Agreement, and supersedes all prior agreements, summaries of agree-
ments, descriptions of compensation packages, discussions,
negotiations, understandings, representations or warranties,
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whether verbal or written, between the parties pertaining to such
subject matter.
7.6 GOVERNING LAW. The validity, construction and
performance of this Agreement shall be governed by the laws,
without regard to the laws as to choice or conflict of laws, of the
State of California.
7.7 SEVERABILITY. If any provision of this
Agreement or the application thereof is held invalid, the remaining
provisions or applications of this Agreement shall continue in
effect, and any invalid provision shall be enforced to the greatest
extent allowable under law.
7.8 AMENDMENT AND WAIVER. This Agreement may be
amended, modified or supplemented only by a writing executed by
each of the parties. Either party may in writing waive any
provision of this Agreement to the extent such provision is for the
benefit of the waiving party. No waiver by either party of a
breach of any provision of this Agreement shall be construed as a
waiver of any subsequent or different breach, and no forbearance by
a party to seek a remedy for noncompliance or breach by the other
party shall be construed as a waiver of any right or remedy with
respect to such noncompliance or breach.
7.9 BINDING EFFECT. The provisions of this
Agreement shall bind and inure to the benefit of the parties and
their respective successors and permitted assigns.
7.10 NOTICE. Any notices or communications
required or permitted by this Agreement shall be deemed suffi-
ciently given if in writing and when delivered personally or 48
hours after deposit with the United States Postal Service as
registered or certified mail, postage prepaid and addressed as
follows:
(a) If to Employer, to the principal office of
Employer in the State of California, marked "Attention:
President"; or
(b) If to Employee, to the most recent address
for Employee appearing in Employer's records.
7.11 ARBITRATION. Any dispute, action, suit or
proceeding arising out of or relating to this Agreement or the
interpretation, performance or breach of this Agreement shall, if
demanded by any party, be determined and settled by arbitration to
be held in the County of Los Angeles, State of California, in
accordance with the rules of the American Arbitration Association.
Any award rendered by the arbitrator shall be final and binding
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upon each party to the arbitration and judgment on the award may be
entered in any court.
7.12 HEADINGS. The Section and other headings
contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
EMPLOYEE EMPLOYER
3D SYSTEMS, INC.
__________________________ By:___________________________
RICHARD BALANSON
Its:__________________________
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