As filed with the Securities and Exchange Commission on May 19, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
3D SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware
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95-4431352
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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333 Three D Systems Circle
Rock Hill, South Carolina
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29730
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(Address of Principal Executive Offices)
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(Zip Code)
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2015 Incentive Plan of 3D Systems Corporation
(Full title of the Plan)
Andrew M.
Johnson, Esq.
Executive Vice President, Chief Legal Officer and Secretary
3D Systems Corporation
333 Three D Systems Circle
Rock Hill, South Carolina 29730
(Name and Address of Agent for Service)
(803) 326-3900
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do not check if smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount
to be
Registered(1)
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Proposed
Maximum
Offering Price
per Share(2)
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, par value $0.001 per share
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6,300,000 shares
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$21.40
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$134,820,000.00
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$15,667.00
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(1)
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The 6,300,000 shares of Common Stock being registered hereunder are reserved for issuance pursuant to the 2015 Incentive Plan of 3D Systems Corporation (the “Plan”). Pursuant to Rule 416 of the U.S. Securities
Act of 1933, as amended (the “Securities Act”), there is also being registered such indeterminate number of Shares that may be necessary to adjust the number of Shares reserved for issuance pursuant to the Plan as a result of a stock
split, stock dividend, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock of the Registrant.
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(2)
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Estimated in accordance with Rules 457(h) and 457(c) under the Securities Act, solely for the purpose of calculating the total registration fee. The price per share and aggregate offering price are based upon the
average of the high and low prices of the Registrant’s Common Stock, as reported on the New York Stock Exchange on May 15, 2015.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by 3D Systems Corporation (the “Registrant”), relating to 6,300,000 shares of
the Registrant’s common stock, par value $0.001 per share (“Common Stock”), to be issued in accordance with the terms of the Plan.
PART I
Information
Required in the Section 10(a) Prospectus
The documents containing the information specified in Part I will be sent or given to
employees as specified by Rule 428(b)(1) of the Securities Act. Such documents are not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
Upon written or oral request, the Registrant will provide, without
charge, the documents incorporated by reference in Item 3 Part II of this Registration Statement. The Registrant will also provide, without charge, upon written or oral request, other documents required to be delivered to employees pursuant to
Rule 428(b) of the Securities Act. Request for the above-mentioned information should be directed to Andrew M. Johnson at the address and telephone number on the cover of this Registration Statement.
PART II
Information
Required in the Registration Statement and Explanatory Note
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:
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(a)
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Annual Report on Form 10-K for the year ended December 31, 2014 as filed on February 26, 2015;
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(b)
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The information specifically incorporated by reference into the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014 from the Registrant’s Definitive Proxy Statement on Schedule
14A as filed on April 1, 2015;
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(c)
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The Quarterly Report on Form 10-Q for the quarter ended March 31, 2015 as filed on May 6, 2015;
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(d)
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The Current Reports on Form 8-K as filed with the Commission on January 2, 2015, January 14, 2015, February 5, 2015, February 9, 2015, February 17, 2015, April 6,
2015 and May 15, 2015; and
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(e)
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The description of our Common Stock contained in our Registration Statement on Form 8-A, filed with the Commission on May 13, 2011 and any amendment or report filed with the Commission for the purpose of updating
the description.
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All documents filed pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”), after the date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents.
Any document and any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein, or in any other subsequently filed document that also is incorporated or deemed to be incorporated by reference herein, modifies or supersedes such
document or statement. Any such document or statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Subject to the foregoing, all information appearing in
this Registration Statement is qualified in its entirety by the information appearing in the documents incorporated by reference.
Nothing
in this Registration Statement shall be deemed to incorporate information furnished but not filed with the Commission pursuant to Item 2.02 or Item 7.01 of Form 8-K.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of
Named Experts and Counsel
The validity of the shares of Common Stock offered under this Registration Statement has been passed upon
for the Registrant by Andrew M. Johnson, Esq., Executive Vice President, Chief Legal Officer and Secretary of the Registrant. As of the date of this Registration Statement, Mr. Johnson was employed by the Registrant and was the beneficial owner
of approximately 124,715 shares of Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
The following summary is qualified in its entirety by reference to the complete text of the statute, the Registrant’s Certificate of
Incorporation, as amended (“Charter”), and the Registrant’s Amended and Restated By-laws (“By-laws”).
The
Registrant is a Delaware corporation and its directors and officers are indemnified pursuant to Section 145 of the General Corporation Law of the State of Delaware (the “DGCL”). Under Section 145 of the DGCL, a corporation may
indemnify any person who was or is a party, or is threatened to be made a party, to any action, suit or proceeding, civil or criminal, by reason of the fact that he or she is or was a director or officer of such corporation if such person acted in
good faith and in a manner he or she reasonably believed to be in and not opposed to the best interest of the corporation and, with respect to a criminal action or proceeding, such person had no reasonable cause to believe that his or her conduct
was unlawful, except that, in the case of any action or suit by or in the right of the corporation, no indemnification is permitted if the person shall be adjudged liable to the corporation other than indemnification for such expenses as a court
shall determine such person is fairly and reasonably entitled to. Section 145 of the DGCL authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act.
As permitted by the DGCL, the Charter includes a provision that eliminates the personal liability of directors for monetary damages for breach
of fiduciary duty as a director, except for liability:
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for any breach of the director’s duty of loyalty to the Registrant or its stockholders;
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for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
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under section 174 of the DGCL regarding unlawful dividends and stock purchases; or
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for any transaction for which the director derived an improper personal benefit.
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The Charter
provides that the Registrant shall indemnify to the fullest extent authorized or permitted by law, any person made or threatened to be made, a defendant or witness to any action, suit or proceeding (whether civil, criminal or otherwise) by reason of
the fact that she or he, his or her testator or intestate, is or was a director or officer of the Registrant.
As permitted by the DGCL, the By-Laws provide that:
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with respect to any action or proceeding not brought by the Registrant, the Registrant shall indemnify any director or officer who was or is a party or is threatened to be made a party to any action or proceeding if
that person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Registrant, and with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her
conduct was unlawful;
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with respect to any action or proceeding brought by or in the right of the Registrant, the Registrant shall indemnify any director or officer who was or is a party or is threatened to be made a party to any action or
proceeding if that person acted in good faith and in a manner that he or she reasonably believed to be in or not opposed to the best interests of the Registrant; provided, however, that no indemnification shall be made in respect of any claim, issue
or matter as to which that person is adjudged to be liable to the Registrant, unless, and only to the extent that, the court determines that such person is fairly and reasonably entitled to indemnity;
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any indemnification provided pursuant to the bullets above (unless ordered by a court) will be made only upon an affirmative vote of a majority of the disinterested directors, by a committee of disinterested directors
designated by majority vote of disinterested directors, or, if there are no such disinterested directors or such directors dictate, by a written opinion of independent legal counsel or an affirmative vote of the stockholders;
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to the extent that a director or officer of the Registrant has been successful on the merits or otherwise in defense of any action or proceeding, he or she shall be indemnified against expenses incurred by him or her;
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expenses incurred in defending a civil or criminal action or proceeding shall be paid by the Registrant in advance of the final disposition of the action or proceeding upon receipt of an undertaking by or on behalf of
the director or officer to repay that amount if it is ultimately determined that he or she is not entitled to indemnification; and
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the rights conferred in the By-Laws are not exclusive.
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The Charter and By-Laws provide that
the Registrant may purchase and maintain directors’ and officers’ insurance. The Registrant currently maintains directors’ and officers’ liability insurance. The Registrant has entered into an employment agreement with its Chief
Executive Officer that provides him with rights to indemnification and expense advancement to the fullest extent permissible under California law.
The Plan states that the Registrant agrees to indemnify and to defend to the fullest extent permitted by law each member of the Compensation
Committee of the Board of Directors of the Registrant against all liabilities, damages, costs and expenses (including attorney’s fees and amounts paid in settlement of any claims approved by the Registrant) occasioned by any act or omission to
act in connection with the Plan or any award agreement under the Plan, if such act or omission is in good faith and not due to willful misconduct or gross negligence. The Plan further states that the foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be entitled under the Charter, By-Laws, by contract, as a matter of law, or otherwise, or under any power that the Registrant may have to indemnify them or hold them
harmless.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
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Exhibit
Number
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Exhibit
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4.1
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2015 Incentive Plan of the Registrant. (Filed herewith.)
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4.2
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Form of Restricted Stock Award Agreement. (Filed herewith.)
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4.3
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Form of Restricted Stock Unit Award Agreement. (Filed herewith.)
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4.4
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Certificate of Incorporation of Registrant. (Incorporated by reference to Exhibit 3.1 to Form 8-B filed on August 16, 1993, and the amendment thereto, filed on Form 8-B/A on February 4, 1994)
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4.5
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Amendment to Certificate of Incorporation filed on May 23, 1995. (Incorporated by reference to Exhibit 3.2 to Registrant’s Registration Statement on Form S-2/A, filed on May 25, 1995)
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4.6
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Certificate of Amendment of Certificate of Incorporation filed with Secretary of State of Delaware on May 19, 2004. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2004, filed on August 5, 2004.)
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4.7
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Certificate of Amendment of Certificate of Incorporation filed with Secretary of State of Delaware on May 17, 2005. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2005, filed on August 1, 2005.)
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4.8
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Certificate of Amendment of Certificate of Incorporation filed with the Secretary of State of Delaware on October 7, 2011. (Incorporated by reference to Exhibit 3.1 to Form 8-K filed on October 7,
2011.)
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4.9
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Certificate of Amendment of Certificate of Incorporation filed with the Secretary of State of Delaware on May 21, 2013. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on
May 22, 2013.)
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4.10
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Amended and Restated By-Laws of the Registrant. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K, filed on February 17, 2015.)
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5.1
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Opinion of Andrew M. Johnson, Esq. (Filed herewith.)
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23.1
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Consent of BDO USA, LLP, Independent Registered Public Accounting Firm. (Filed herewith.)
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23.2
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Consent of Andrew M. Johnson, Esq. (Contained in Exhibit 5.1.)
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24.1
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Power of Attorney (Included on the signature pages to this Registration Statement on Form S-8.)
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Item 9. Undertakings
(a) The
undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or decrease in the volume of the securities offered (if the total value of securities offered does not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in value and price reflect no more than 20
percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration Statement;
provided
,
however
, that clauses
(1)(i) and (1)(ii) shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act that are incorporated by reference into this Registration Statement;
(2) That, for the
purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial
bona fide
offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold upon the termination of the offering.
(b) The undersigned Registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference
into this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8, and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Wilsonville, State of Oregon, on this 19th
day of May, 2015.
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3D SYSTEMS CORPORATION
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By:
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/s/ ABRAHAM N.
REICHENTAL
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Abraham N. Reichental
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President, Chief Executive Officer and Director
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Abraham N. Reichental and
Andrew M. Johnson, or either of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ ABRAHAM N.
REICHENTAL
Abraham N. Reichental
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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May 19, 2015
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/s/ DAVID R. STYKA
David R. Styka
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Executive Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
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May 19, 2015
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/s/ G. WALTER LOEWENBAUM,
II
G. Walter Loewenbaum, II
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Chairman of the Board of Directors
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May 19, 2015
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/s/ WILLIAM E.
CURRAN
William E. Curran
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Director
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May 19, 2015
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/s/ PETER H.
DIAMANDIS
Peter H. Diamandis
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Director
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May 19, 2015
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/s/ CHARLES W.
HULL
Charles W. Hull
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Executive Vice President, Chief Technology Officer and Director
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May 19, 2015
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/s/ WILLIAM D.
HUMES
William D. Humes
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Director
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May 19, 2015
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/s/ JIM D. KEVER
Jim D. Kever
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Director
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May 19, 2015
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/s/ KEVIN S. MOORE
Kevin S. Moore
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Director
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May 19, 2015
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/s/ DANIEL S. VAN
RIPER
Daniel S. Van Riper
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Director
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May 19, 2015
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/s/ KAREN E. WELKE
Karen E. Welke
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Director
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May 19, 2015
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EXHIBIT INDEX
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Exhibit
Number
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Exhibit
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4.1
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2015 Incentive Plan of the Registrant. (Filed herewith.)
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4.2
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Form of Restricted Stock Award Agreement. (Filed herewith.)
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4.3
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Form of Restricted Stock Unit Award Agreement. (Filed herewith).
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4.4
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Certificate of Incorporation of Registrant. (Incorporated by reference to Exhibit 3.1 to Form 8-B filed on August 16, 1993, and the amendment thereto, filed on Form 8-B/A on February 4, 1994)
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4.5
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Amendment to Certificate of Incorporation filed on May 23, 1995. (Incorporated by reference to Exhibit 3.2 to Registrant’s Registration Statement on Form S-2/A, filed on May 25, 1995)
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4.6
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Certificate of Amendment of Certificate of Incorporation filed with Secretary of State of Delaware on May 19, 2004. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on
Form 10-Q
for the quarterly period ended June 30, 2004, filed on August 5, 2004.)
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4.7
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Certificate of Amendment of Certificate of Incorporation filed with Secretary of State of Delaware on May 17, 2005. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on
Form 10-Q
for the quarterly period ended June 30, 2005, filed on August 1, 2005.)
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4.8
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Certificate of Amendment of Certificate of Incorporation filed with the Secretary of State of Delaware on October 7, 2011. (Incorporated by reference to Exhibit 3.1 to
Form 8-K
filed
on October 7, 2011.)
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4.9
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Certificate of Amendment of Certificate of Incorporation filed with the Secretary of State of Delaware on May 21, 2013. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on
May 22, 2013.)
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4.10
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Amended and Restated By-Laws. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on
Form 8-K,
filed on February 17, 2015.)
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5.1
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Opinion of Andrew M. Johnson Esq. (Filed herewith.)
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23.1
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Consent of BDO USA, LLP, Independent Registered Public Accounting Firm. (Filed herewith.)
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23.2
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Consent of Andrew M. Johnson Esq. (Contained in Exhibit 5.1)
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24.1
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Power of Attorney (Included on the signature pages to this Registration Statement on Form S-8)
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EXHIBIT 4.1
2015 INCENTIVE PLAN
OF
3D SYSTEMS CORPORATION
(Adopted Effective May 19, 2015)
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Section 1.
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Purpose; Effective Date; Definitions
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The purpose of the 3D Systems Corporation 2015
Incentive Plan (the “
Plan
”) is to assist the Company and its Subsidiaries and Affiliates in attracting and retaining employees and consultants of outstanding competence by providing an incentive that permits the persons responsible
for the Company’s growth to share directly in that growth and to further the identity of their interests with the interests of the Company’s stockholders.
For purposes of the Plan, the following terms shall be defined as set forth below:
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(a)
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“
Affiliate
” means any current or future entity other than the Company and its Subsidiaries that is designated by the Board as a participating employer under the Plan.
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(b)
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“
Award
” means a grant of a Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, a Performance Award or an Incentive Award under the Plan.
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(c)
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“
Award Agreement
” means a written agreement between the Company and a Participant or a written notice from the Company to a Participant specifically setting forth the terms and conditions of an Award
granted under the Plan.
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(d)
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“Beneficiary”
means the person designated by the Participant prior to the Participant’s death in a form acceptable to the Committee to exercise Awards or receive benefits pursuant to the terms of
this Plan. If no beneficiary is designated by the Participant, the Beneficiary shall be the Participant’s estate.
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(e)
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“
Board
” means the Board of Directors of the Company.
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(f)
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“
Cause
” means, but is not limited to, any of the following actions: embezzlement; fraud; nonpayment of any obligation owed to the Company, a Subsidiary or an Affiliate; breach of fiduciary duty;
deliberate disregard of the Company’s rules resulting in loss, damage or injury to the Company; unauthorized disclosure of any trade secret or confidential information; conduct constituting unfair competition; and the inducement of any customer
of the Company to breach a contract with the Company. The determination of whether Cause exists shall be made in the Company’s sole discretion.
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(g)
|
“
Code
” means the Internal Revenue Code of 1986, and the regulations promulgated thereunder, as amended from time to time, and any successor thereto.
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|
|
(h)
|
“
Committee
” means the Committee referred to in Section 2 of the Plan.
|
|
|
(i)
|
“
Common Stock
” means the common stock, $0.001 par value per share, of the Company.
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|
(j)
|
“
Company
” means 3D Systems Corporation, a corporation organized under the laws of the State of Delaware, or any successor corporation.
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|
(k)
|
“Covered Employee
”
means a “covered employee” within the meaning of Code Section 162(m).
|
|
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(l)
|
“
Date of Grant
” means the date as of which the Committee grants an Award. If the Committee contemplates an immediate grant to a Participant, the Date of Grant shall be the date of the Committee’s
action. If the Committee contemplates a date on which the grant is to be made other than the date of the Committee’s action, the Date of Grant shall be the date so contemplated and set forth in or determinable from the records of action of the
Committee;
provided, however
, that the Date of Grant shall not precede the date of the Committee’s action.
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|
|
(m)
|
“Detrimental Activity”
means: (i) the rendering of services for any organization or engaging directly or indirectly in any
business which is or becomes competitive with the Company, or which organization or business, or the rendering of services to such organization or business, is or becomes otherwise prejudicial to or in conflict with the interests of the Company;
(ii) the disclosure to anyone outside the Company, or the use in other than the Company’s business, without prior written authorization from the Company, of any confidential information or material relating to the business of the Company,
acquired by the Participant either during or after employment with the Company; (iii) the failure or refusal to disclose promptly and to assign to the Company all right, title and interest in any invention or idea, patentable or not, made or
conceived by the Participant during employment by the Company, relating in any manner to the actual or anticipated business, research or development work of the Company or the failure or refusal to do anything reasonably necessary to enable the
Company to secure a patent where appropriate in the United States and in other countries; (iv) a violation of any rules, policies, procedures or guidelines of the Company; (v) any attempt directly or indirectly to induce any employee of
the Company to be employed or perform services elsewhere or any attempt directly or indirectly to solicit the trade or business of any current or prospective customer, supplier or partner of the
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- 2 -
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Company; (vi) the Participant being convicted of, or entering a guilty plea with respect to, a crime, whether or not connected with the Company; or (vii) any other conduct or act
determined in the sole discretion of the Committee or the Board to be injurious, detrimental or prejudicial to any interest of the Company.
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|
(n)
|
“
Disability
” means disability as determined under procedures established by the Committee for purposes of this Plan.
|
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(o)
|
“
Dividend Equivalent Account
” means a bookkeeping account in accordance with Section 18 and related to a grant of Restricted Stock Units that is credited with the amount of any ordinary cash
dividends or stock distributions that would be payable with respect to the shares of Common Stock subject to such Awards had such shares been outstanding shares of Common Stock.
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|
(p)
|
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended from time to time, and any successor thereto.
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(q)
|
“
Fair Market Value
” means, as of any given date, unless otherwise determined by the Committee in good faith, the closing price of the Common Stock on the principal stock exchange on which the
Company’s shares are listed on such date.
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(r)
|
“
Incentive Award
” means an Award granted under Section 8 that, subject to such terms and conditions as may be prescribed by the Committee, entitles the Participant to receive a payment in Common
Stock and/or cash from the Company or a Subsidiary or Affiliate.
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|
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(s)
|
“
Incentive Stock Option
” means any Stock Option designated as an “incentive stock option” within the meaning of Section 422 of the Code. No Stock Option that is intended to be an
Incentive Stock Option shall be invalid for failure to qualify as an Incentive Stock Option.
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(t)
|
“
Nonqualified Stock Option
” means any Stock Option that is not an Incentive Stock Option.
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(u)
|
“
Participant
” means a member of the Board, an employee or a consultant who receives an Award under this Plan.
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(v)
|
“
Performance Award
” means an Award under Section 8 that is based on the level of attainment of performance goals related to objective business criteria.
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(w)
|
“
Person
” means “person” as defined in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d) and 14(d)
thereof, including a “group” as
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|
defined in Section 13(d) of the Exchange Act but excluding the Company, any Subsidiary or any Affiliate, and any employee benefit plan sponsored or maintained by the Company or any
Subsidiary or Affiliate (including any trustee of such plan acting in the capacity of trustee).
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(x)
|
“
Plan
” means this 3D Systems Corporation 2015 Incentive Plan, and any successor thereto, as amended from time to time.
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(y)
|
“
Plan Year
” shall mean the calendar year.
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(z)
|
“
Restricted Stock
” means shares of Common Stock subject to restrictions imposed in connection with an Award granted under Section 7.
|
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(aa)
|
“
Restricted Stock Unit
” means a notional bookkeeping entry representing the equivalent of a share of Common Stock, subject to restrictions imposed in connection with an Award granted under
Section 7.
|
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(bb)
|
“
Retirement
” means the Termination of the Participant on or after the Participant’s attainment of age 65.
|
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(cc)
|
“
Section 409A
” means Section 409A of the Code.
|
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(dd)
|
“Stock Appreciation Right”
or
“SAR”
means a right granted under Section 6 to receive payment, in cash and/or Common Stock, equal in value to the excess of the Fair Market Value of
the specified number of shares of Common Stock on the date the Stock Appreciation Right is exercised over the grant price of the Stock Appreciation Right, as determined in accordance with Section 6(a).
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(ee)
|
“
Stock Option
” or “
Option
” means any option to purchase shares of Common Stock (including Restricted Stock, if the Committee so determines) granted pursuant to Section 5.
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(ff)
|
“
Subsidiary
” means those corporations fifty percent (50%) or more of whose outstanding voting stock is owned or controlled, directly or indirectly, by the Company and those partnerships and joint
ventures in which the Company owns directly or indirectly a fifty percent (50%) or more interest in the capital account or earnings.
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(gg)
|
“Termination”
means the complete cessation of services with the Company, a Subsidiary, or an Affiliate with no anticipated resumption
of services by the Company, a Subsidiary, or an Affiliate in the capacity as an employee or independent contractor. A Participant’s employment or services relationship with the Company shall be treated as continuing intact while the individual
is on military leave, sick leave, or other bona fide Company-approved leave of absence if the period of leave does not exceed
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three (3) months, or if longer, so long as the individual retains a right to reemployment with the Company under an applicable statute or by agreement. If the period of leave exceeds three
(3) months, and the Participant’s right to reemployment is not provided either by statute or by contract, the Participant shall be treated for purposes of this Plan as having experienced a Termination of the Participant’s employment
or services relationship with the Company on the first day immediately following such three-month period.
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Section 2.
|
Administration
|
The Plan shall be administered by the Compensation Committee, or a
subcommittee thereof (the “Committee”), which consists of two or more members of the Board, each of whom shall be both a
“Non-Employee
Director,” as that term is defined in
Rule 16b-3(b)(3)(i) of the Exchange Act, and an “outside director” within the meaning of Section 162(m) of the Code, but the failure of a Committee member to satisfy such requirements shall not affect any actions taken by the
Committee.
The Committee shall have full authority to grant, pursuant to the terms of the Plan, Awards to employees and consultants
eligible under Section 4. The Board shall have full authority to grant, pursuant to the terms of the Plan, Awards to members of the Board.
In particular the Committee shall have the authority, without limitation:
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(i)
|
to select the employees and consultants to whom Awards may be granted hereunder, separately or in tandem, from time to time;
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(ii)
|
subject to the provisions of Sections 3 and 9, to determine the number of shares of Common Stock to be covered by each such Award granted hereunder;
|
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(iii)
|
to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder, which terms and conditions are not required to be the same in respect of each Participant;
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(iv)
|
to designate the Corporate Secretary of the Company, other officers or employees of the Company or competent professional advisors to assist the Committee in the administration of the Plan, and to grant authority to
such persons to execute agreements or other documents on its behalf;
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(v)
|
as it pertains to Awards granted to employees and consultants residing in foreign jurisdictions, to adopt such supplements or subplans to the Plan as may be necessary or appropriate to comply with the applicable laws of
such foreign jurisdictions and to afford Participants favorable treatment under such laws;
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- 5 -
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|
(vi)
|
to approve forms of agreements for use under the Plan;
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|
(vii)
|
to correct administrative errors; and
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|
(viii)
|
to allow Participants to satisfy Withholding Tax Obligations as such manner as may be determined by the Committee in accordance with the terms of the Plan.
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The Committee shall have the authority to adopt, alter, and repeal such rules, guidelines and practices governing the Plan as it shall, from
time to time, deem advisable; to interpret the terms and provisions of the Plan and any Award issued under the Plan (and any Award Agreement relating thereto); and to otherwise supervise the administration of the Plan.
All decisions made by the Committee pursuant to the provisions of the Plan shall be made in the Committee’s sole discretion and shall be
final and binding on all persons, including the Company and Participants.
The Committee may delegate to officers of the Company its
duties, powers, and authority under this Plan pursuant to such conditions and limitations as the Committee may establish, except that only the Committee may administer the Plan and Awards to Participants who are subject to Section 16 of the
Securities Exchange Act of 1934 or to officers who are or reasonably may become Covered Employees. In the event of such delegation of authority, any reference in this Plan to Committee shall be to the officer(s) to whom the Committee has delegated
authority to administer the Plan.
The Company agrees to indemnify and to defend to the fullest extent permitted by law each member of the
Committee against all liabilities, damages, costs and expenses (including attorney’s fees and amounts paid in settlement of any claims approved by the Company) occasioned by any act or omission to act in connection with the Plan or any Award
Agreement, if such act or omission is in good faith and not due to willful misconduct or gross negligence. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification to which such persons may be entitled
under the Company’s Articles of Incorporation, Bylaws, by contract, as a matter of law, or otherwise, or under any power that the Company may have to indemnify them or hold them harmless.
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Section 3.
|
Common Stock Subject to Plan
|
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(a)
|
Number of Shares Available for Award.
The total number of shares of Common Stock reserved and available for distribution under the Plan and the total number of shares of Common Stock that can be issued under
Stock Options shall be six million three hundred thousand (6,300,000) shares.
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If any Award is cancelled, forfeited, expires
or otherwise terminates without the issuance or delivery of nonforfeitable shares of Common Stock, or if
- 6 -
any Award is settled for cash or otherwise does not result in the issuance of all or a portion of the shares of Common Stock subject to such Award, then the shares of Common Stock subject to the
Award shall, to the extent of such cancellation, forfeiture, expiration, termination, cash settlement or non-issuance, again be available for issuance under the Plan.
In the event of any change in the outstanding shares of 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 the Plan are exchanged for or converted
into cash, property or a different kind of security, or if cash, property or securities are distributed in respect of such outstanding securities (other than a regular cash dividend), then, unless the terms of such transaction shall provide
otherwise, such equitable adjustments shall be made in the Plan and the Awards thereunder (including, without limitation, appropriate and proportionate adjustments in (i) the number and type of shares or other securities that may be acquired
pursuant to Awards theretofore granted under the Plan; (ii) the maximum number and type of shares or other securities that may be issued pursuant to Awards thereafter granted under the Plan; (iii) the number of shares of Restricted Stock
and shares of Common Stock under Restricted Stock Units that are outstanding and the terms thereof; and (iv) the maximum number of shares or other securities with respect to which Awards may thereafter be granted to any Participant in any Plan
Year) as the Committee determines are necessary or appropriate, including, if necessary, any adjustment in the maximum number of shares of Common Stock available for distribution under the Plan as set forth in this Section 3. Such adjustments
shall be conclusive and binding for all purposes of the Plan.
In the event that (i) any Stock Option granted under the Plan is
exercised through the tendering of shares of Common Stock (either actually or by attestation) or by the withholding of shares of Common Stock by the Company or (ii) withholding tax liabilities resulting from an Award are satisfied by the
withholding of shares of Common Stock, then the number of shares tendered or withheld shall not be available for future grants of Awards. If Common Stock is issued in settlement of a Stock Appreciation Right, the number of shares of Common Stock
available under the Plan shall be reduced by the number of shares of Common Stock for which the Stock Appreciation Right is exercised rather than the number of shares of Common Stock issued in settlement of the Stock Appreciation Right.
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|
(b)
|
Limitation on Shares Subject to Stock Options and Stock Appreciation Rights.
Subject to adjustment from time to time pursuant to Section 3(a) above, not more than five-hundred thousand (500,000) shares
of Common Stock, in the aggregate, may be made subject to Stock Options or Stock Appreciation Rights under the Plan in respect of any one Participant during any Plan Year.
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- 7 -
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|
(c)
|
Limitation on Awards to Members of the Board
. Subject to adjustment from time to time pursuant to Section 3(a) above, not more than ten thousand (10,000) shares of Common Stock, in the aggregate, may be
made subject to Awards under the Plan in respect of any one non-employee member of the Board during any Plan Year.
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Any person who is member of the Board, an employee of or consultant to the
Company, a Subsidiary or an Affiliate shall be eligible to be considered for the grant of an Award under the Plan other than an Incentive Stock Option. Any person who is a common law employee of the Company shall be eligible to be considered for the
grant of an Incentive Stock Option.
Each Award granted under the Plan shall be evidenced by a written Award Agreement in such form as the
Committee shall approve from time to time. Award Agreements shall comply with the terms and conditions of the Plan. In the case of an Incentive Stock Option, the Award Agreement shall contain all of the required provisions and otherwise conform to
the requirements under Code Section 422. Award Agreements may be evidenced by an electronic transmission (including an e-mail or reference to a website) sent to the Participant. As a condition to receiving an Award, the Committee may require
the proposed Participant to affirmatively accept the Award and agree to the terms and conditions set forth in the Award Agreement by physically and/or electronically executing the Award Agreement or by otherwise physically and/or electronically
acknowledging acceptance and agreement. With or without such affirmative acceptance, however, the Committee may prescribe conditions (including the exercise or attempted exercise of any benefit conferred by the Award) under which the proposed
Participant may be deemed to have accepted the Award and agreed to the terms and conditions set forth in the Award Agreement.
Stock Options granted under the Plan may be of two types: Incentive
Stock Options that, in addition to being subject to applicable terms, conditions and limitations established by the Committee, comply with Section 422 of the Code and Nonqualified Stock Options. Any Stock Option shall be in such form as the
Committee may from time to time approve; shall be subject to the following terms and conditions; and shall contain such additional terms and conditions, not inconsistent with the terms of the Plan, that are set forth in the Award Agreement as the
Committee shall deem desirable:
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(a)
|
Exercise Price
. The exercise price per share of Common Stock purchasable under a Stock Option shall be determined by the Committee on the Date
of Grant but shall be not less than one hundred percent (100%) of the Fair
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- 8 -
|
|
Market Value of the Common Stock on the Date of the Grant,
provided, however
, that the exercise price per share of Common Stock purchasable under an Incentive Stock Option that is granted
to an individual who, on the Date of Grant, owns or is deemed to own stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any of its Subsidiaries, shall not be less than one
hundred and ten percent (110%) of the Fair Market Value of the Common Stock on the Date of Grant. Except as provided in Section 3, without the approval of stockholders (i) the Committee may not reduce, adjust or amend the exercise
price of an outstanding Stock Option, whether through amendment, cancellation, replacement grant or any other means and (ii) no payment may be made to cancel an outstanding Stock Option if on the date of such amendment, cancellation,
replacement grant or payment the exercise price exceeds Fair Market Value.
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(b)
|
Option Term and Exercisability
. The term of each Stock Option shall be fixed by the Committee, but no Stock Option shall be exercisable more than ten (10) years after the Date of Grant;
provided, however
,
that no Incentive Stock Option that is granted to an individual who, on the Date of Grant, owns or is deemed to own Common Stock possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or
any of its Subsidiaries, shall be exercisable more than five (5) years after the Date of Grant of such Incentive Stock Option. Stock Options shall be exercisable at such time or times and subject to such terms and conditions as shall be
determined by the Committee and set forth in the applicable Award Agreement.
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|
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(c)
|
Method of Exercise
. Stock Options may be exercised in whole or in part subject to the terms of the applicable Award Agreement by giving written notice of exercise to the Company, or its designated representative,
specifying the number of shares to be purchased.
|
Such notice shall be accompanied by payment in full of the exercise price
by check, note or such other instrument as the Committee may accept and, in the case of Nonstatutory Stock Options, payment in full of the Withholding Tax Obligation. As determined by the Committee, in its sole discretion, payment of the exercise
price in full or in part also may be made through (a) a “cashless exercise” (which will be conducted in a manner acceptable to the Company through a third party broker, and otherwise in compliance with Section 402 of the
Sarbanes-Oxley
Act) or in which the exercise price (and any interest thereon) is subtracted from the number of shares of Common Stock received by the Participant upon exercise of the Stock Option (based on the Fair
Market Value of the Common Stock on the date the Option is exercised); or (b) the surrender of other Common Stock which (i) in the case of Common Stock acquired upon the exercise of an Award, has been owned by the Participant for more than
six months on the
- 9 -
date of surrender; and (ii) has a Fair Market Value on the date of surrender that, together with any cash paid, is equal to the aggregate exercise price of the Common Stock as to which said
Stock Option shall be exercised.
No shares of Common Stock shall be issued until full payment has been made. No Participant shall have
interest in or be entitled to voting rights or dividends or other rights or privileges of stockholders of the Company with respect to shares of Common Stock granted pursuant to the Plan unless, and until, shares of Common Stock actually are issued
to such person and then only from the date such person becomes the record owner thereof and, if requested, has given the representation described in Section 15.
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(d)
|
Termination by Reason of Death or Disability
. Except as otherwise expressly approved by the Committee and set forth in the applicable Award Agreement, if a Participant has a Termination of employment by or
service with the Company, a Subsidiary or an Affiliate by reason of death or Disability, any Stock Option held by such Participant thereafter may be exercised by the Participant or the Participant’s Beneficiary in the case of death, for the
number of shares that the Participant was eligible to exercise on the date of Termination, until the expiration of twelve (12) months after the date of such Termination, provided such Stock Option was exercisable on such date of Termination,
but no later than the expiration date of the Stock Option.
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(e)
|
Termination by the Company without Cause, Retirement, Resignation
. Except as otherwise expressly approved by the Committee and set forth in the applicable Award Agreement, if a Participant has a Termination of
employment by or service with the Company, a Subsidiary or an Affiliate (other than as provided in subsection (d) above) by the Company without Cause, by reason of Retirement, or on account of voluntary resignation provided that it is
determined by the Committee that Cause did not exist as of the time of resignation, any Stock Option held by such Participant thereafter may be exercised, for the number of shares that the Participant was eligible to exercise on the date of
Termination, until the expiration of ninety (90) days after the date of such Termination, provided such Stock Option was exercisable on such date of Termination, but no later than the expiration date of the Stock Option.
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(f)
|
Other Termination
. Unless otherwise determined by the Committee, if a Participant’s employment by or service with the Company, a Subsidiary or an Affiliate is terminated for any reason other than as
specified in subsections (d) and (e) above, including Termination with Cause, any unexercised Stock Option granted to such Participant shall be cancelled on the date of such termination, whether or not exercisable on such date.
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- 10 -
|
|
(g)
|
Incentive Stock Options
. Anything in the Plan to the contrary notwithstanding, no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or
authority granted under the Plan be so exercised, without the consent of the Participant(s) affected, to disqualify any Incentive Stock Option under Section 422 of the Code. If an Incentive Stock Option is exercised other than in accordance
with the exercise periods that apply for purposes of Section 422 of the Code or if the aggregate Fair Market Value of the Common Stock with respect to which the Incentive Stock Options are exercisable for the first time during any calendar year
(under all plans of the Company and any Subsidiary) exceeds U.S. $100,000, such Stock Option thereafter will be treated as a Nonqualified Stock Option, notwithstanding the “Incentive Stock Option” designation in the Award Agreement.
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|
Section 6.
|
Stock Appreciation Rights
|
The Committee may, in its discretion, grant a Stock
Appreciation Right either singly or in combination with an underlying Stock Option granted hereunder. Such Stock Appreciation Right shall be subject to the following terms and conditions and such other terms and conditions as the Committee may
prescribe in the Award Agreement:
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|
(a)
|
Exercise Price
. The exercise price per share of Common Stock under a Stock Appreciation Right shall be determined by the Committee on the Date of Grant but shall be not less than the greater of (a) one
hundred percent (100%) of the Fair Market Value of the Common Stock on the Date of the Grant or (b) the exercise price per share of Common Stock purchasable under a underlying Stock Option with respect to which the Stock Appreciation Right
is granted. Except as provided in Section 3, without the approval of stockholders (i) the Committee may not reduce, adjust or amend the exercise price of an outstanding Stock Appreciation Right, whether through amendment, cancellation,
replacement grant or any other means and (ii) no payment may be made to cancel an outstanding Stock Appreciation Right if on the date of such amendment, cancellation, replacement grant or payment the exercise price exceeds Fair Market Value.
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|
|
(b)
|
Time and Period of Grant
. If a Stock Appreciation Right is granted with respect to an underlying Stock Option, it must be granted at the time
of the Stock Option grant. If a Stock Appreciation Right is granted with respect to an underlying Stock Option, at the time the Stock Appreciation Right is granted, the Committee may limit the exercise period for such Stock Appreciation Right, after
which period the Stock Appreciation Right shall not be exercisable. In no event shall the exercise period for a Stock Appreciation Right granted with respect to an underlying Stock Option exceed the exercise period for such Stock Option. If a Stock
Appreciation Right is granted without an underlying Stock Option, the Stock Appreciation Right shall be exercisable at such time or times and subject to
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- 11 -
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|
such terms and conditions as shall be determined by the Committee and set forth in the applicable Award Agreement but the Stock Appreciation Right shall not be exercisable more than ten years
after its Date of Grant. No Stock Appreciation Right may provide that, upon the exercise of the Stock Appreciation Right, a new Stock Appreciation Right automatically will be granted.
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|
|
(c)
|
Value of Stock Appreciation Right
. If a Stock Appreciation Right is granted with respect to an underlying Stock Option, the grantee will be entitled to surrender the Stock Option which is then exercisable and
receive in exchange therefore and on account of the exercise of the Stock Appreciation Right an amount equal to the excess of the Fair Market Value of the Common Stock on the date the election to surrender is received by the Committee in accordance
with exercise procedures established by the Committee over the Stock Appreciation Right exercise price (the “Spread”) multiplied by the number of shares covered by the Stock Option which is surrendered. If a Stock Appreciation Right is
granted without an underlying Stock Option, the grantee will receive upon exercise of the Stock Appreciation Right the Spread multiplied by the number of shares covered by the exercise of the Stock Appreciation Right. Notwithstanding the foregoing,
at the time it grants a Stock Appreciation Right, the Committee, in its sole discretion, may provide that the Spread covered by such Stock Appreciation Right may not exceed a specified amount. At the Committee’s discretion, the amount payable
as a result of the exercise of a Stock Appreciation Right may be settled in cash, Common Stock or a combination of cash and Common Stock. A fractional share shall not be deliverable upon the exercise of a Stock Appreciation Right but a cash payment
will be made in lieu thereof.
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|
|
(d)
|
Method of Exercise
. Stock Appreciation Rights may be exercised in whole or in part subject to the terms of the applicable Award Agreement by giving written notice of exercise to the Company, or its designated
representative, specifying the number of shares that are subject to exercise.
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No Participant shall have interest in or be
entitled to voting rights or dividends or other rights or privileges of stockholders of the Company with respect to shares of Common Stock subject to a Stock Appreciation Right unless, and until, shares of Common Stock actually are issued to such
person and then only from the date such person becomes the record owner thereof and, if requested, has given the representation described in Section 15.
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|
(e)
|
Termination by Reason of Death or Disability
. Except as otherwise expressly approved by the Committee and set forth in the applicable Award
Agreement, if a Participant has a Termination of employment by or service with the Company, a Subsidiary or an Affiliate by reason of death or
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- 12 -
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|
Disability, any Stock Appreciation Right held by such Participant thereafter may be exercised by the Participant or the Participant’s Beneficiary in the case of death, for the number of
shares that the Participant was eligible to exercise on the date of Termination, until the expiration of twelve (12) months after the date of such Termination, provided such Stock Appreciation Right was exercisable on such date of Termination,
but no later than the expiration date of the Stock Appreciation Right.
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|
|
(f)
|
Termination by the Company without Cause, Retirement, Resignation
. Except as otherwise expressly approved by the Committee and set forth in the applicable Award Agreement, if a Participant has a Termination of
employment by or service with the Company, a Subsidiary or an Affiliate (other than as provided in subsection (e) above) by the Company without Cause, by reason of Retirement, or on account of voluntary resignation provided that it is
determined by the Committee that Cause did not exist as of the time of resignation, any Stock Appreciation Right held by such Participant thereafter may be exercised, for the number of shares that the Participant was eligible to exercise on the date
of Termination, until the expiration of ninety (90) days after the date of such Termination, provided such Stock Appreciation Right was exercisable on such date of Termination, but no later than the expiration date of the Stock Appreciation
Right.
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|
|
(g)
|
Other Termination
. Unless otherwise determined by the Committee, if a Participant’s employment by or service with the Company, a Subsidiary or an Affiliate is terminated for any reason other than as
specified in subsections (e) and (f) above, including Termination with Cause, any unexercised Stock Appreciation Right granted to such Participant shall be cancelled on the date of such termination, whether or not exercisable on such date.
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|
Section 7.
|
Restricted Stock and Restricted Stock Units
|
|
|
(a)
|
Grant of Restricted Stock and Restricted Stock Units
. The Committee may grant to any Participant one or more Awards of Restricted Stock or
Restricted Stock Units on such terms and subject to such conditions as may be established by the Committee that are set forth in the Award Agreement. Restricted Stock or Restricted Stock Units may be granted subject to such restrictions and
provisions, whether based on performance standards, periods of service, retention by the Participant of ownership of specified shares of Common Stock or other criteria, not inconsistent with the terms of this Plan, as may be established by the
Committee. Each Award of Restricted Stock or Restricted Stock Units may be subject to a different restricted period and additional restrictions; however, a Participant’s Restricted Stock or Restricted Stock Unit Award shall not be contingent on
any payment by or consideration from the Participant other
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than the rendering of services, except as the Committee may otherwise expressly determine. Neither Restricted Stock nor Restricted Stock Units may be sold, transferred, assigned, pledged or
otherwise encumbered or disposed of during the restricted period or prior to the satisfaction of any other applicable restrictions.
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|
|
(b)
|
Recordkeeping of Award; Lapse of Restrictions
. As soon as practicable after the Date of Grant of Restricted Stock or a Restricted Stock Unit by the Committee, the Company shall:
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|
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(i)
|
for Restricted Stock Awards, cause to be transferred on the books of the Company or its agent, shares of Common Stock, registered on behalf of the Participant, evidencing the Restricted Stock covered by the Award,
subject to forfeiture to the Company as of the Date of Grant if an Award Agreement with respect to the Restricted Stock covered by the Award is not duly executed by the Participant and timely returned to the Company. Until the lapse or release of
the restrictions applicable to the shares subject to an Award of Restricted Stock, the share certificates representing such Restricted Stock may be held in custody by the Company or its designee, in physical or book entry form, or, if the
certificates bear a restrictive legend, by the Participant. Upon the lapse or release of all restrictions with respect to an Award as described in Section 7(e)(i), one or more share certificates, registered in the name of the Participant, for
an appropriate number of shares as provided in Section 7(e)(i), free of any restrictions set forth in the Plan and the related Award Agreement, or a statement from the Company representing such shares in book entry form free of any restrictions
set forth in the Plan and the related Award Agreement, shall be delivered to the Participant as provided in Section 7(e);
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(ii)
|
for Restricted Stock Unit Awards, cause to be entered upon its books a notional account for the Participant’s benefit indicating the number of Restricted Stock Units awarded, subject to forfeiture as of the Date of
Grant if an Award Agreement with respect to the Restricted Stock Units covered by the Award is not duly executed by the Participant and timely returned to the Company. Until the lapse or release of the restrictions applicable to the shares subject
to a Restricted Stock Unit Award, no shares of Common Stock shall be issued in respect of such Awards and, as further described in Section 7(d), no Participant shall have any rights as a stockholder of the Company with respect to the shares of
Common Stock covered by such Restricted Stock Unit Award.
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(c)
|
Rights of Holders of Restricted Stock
. Beginning on the Date of Grant of a Restricted Stock Award and subject to execution of the related Award
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- 14 -
|
|
Agreement as provided in Section 7(b)(i), and except as otherwise provided in such Award Agreement, the Participant shall become a stockholder of the Company with respect to all shares
subject to a Restricted Stock Award Agreement and shall have all of the rights of a stockholder, including, but not limited to, the right to vote such shares and the right to receive dividends;
provided
,
however
, that any shares of
Common Stock or other securities distributed as a dividend or otherwise with respect to any Restricted Stock as to which the restrictions have not yet lapsed, shall be subject to the same restrictions as such Restricted Stock and held or restricted
as provided in Section 7(b)(i), and provided further that for any such Restricted Stock that are part of a Performance Award any such dividends shall be earned by the Participant only when and to the extent the underlying Award is earned.
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(d)
|
Rights of Holders of Restricted Stock Units
.
|
|
|
(i)
|
Settlement of Restricted Stock Units
. Restricted Stock Units may be settled in cash or Common Stock, as determined by the Committee and set forth in the Award Agreement. The Award Agreement shall also set forth
whether the Restricted Stock Units shall be settled (1) within the time period specified for “short-term deferrals” under Section 409A or (2) in compliance with the requirements of Section 409A, in which case the Award
Agreement shall specify the date (or event) upon which such Restricted Stock Units shall be settled.
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(ii)
|
Voting and Dividend Rights
. Holders of Restricted Stock Units shall not have rights as stockholders of the Company with respect to the shares of Common Stock covered by such Restricted Stock Unit Award, including
the right to vote such shares and the right to receive dividends;
provided
,
however
, that the Committee may, in its sole discretion, award a Participant dividend equivalents with respect to a Restricted Stock Unit Award in accordance
with Section 18 of the Plan.
|
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(iii)
|
Creditor’s Rights
. A holder of Restricted Stock Units shall have no rights other than those of a general creditor of the Company. Restricted Stock Units represent an unfunded and unsecured obligation of the
Company, subject to the terms and conditions of the applicable Award Agreement.
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(i)
|
Restricted Stock
. Upon expiration or earlier termination of the restricted period without a forfeiture and the satisfaction of or release from
any other conditions prescribed by the Committee, or at such earlier time as provided under Section 7(g), the restrictions
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- 15 -
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|
applicable to the Restricted Stock shall lapse. As promptly as administratively feasible thereafter, subject to the requirements of Section 13 (regarding tax withholding), the Company shall
deliver to the Participant or, in case of the Participant’s death, to the Participant’s Beneficiary, one or more share certificates for the appropriate number of shares of Common Stock, or a statement from the Company representing that
such shares have been issued, are in book entry form and are free of all such restrictions, except for any restrictions that may be imposed by law.
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(ii)
|
Restricted Stock Units
. Upon expiration or earlier termination of the restricted period without a forfeiture and the satisfaction of or release from any other conditions prescribed by the Committee, or at such
earlier time as provided under Section 7(g), the restrictions applicable to the Restricted Stock Units shall lapse. As promptly as administratively feasible thereafter, subject to the requirements of Section 13 (regarding tax withholding),
but no later than ninety (90) days following such event the Company shall deliver to the Participant or, in case of the Participant’s death, to the Participant’s Beneficiary, (1) a cash payment equal to the number of Restricted
Stock Units as to which such restrictions have lapsed multiplied by the Fair Market Value of a share of Common Stock as of the date the restrictions lapsed, (2) solely in the Committee’s discretion, one or more share certificates
registered in the name of the Participant, for the appropriate number of shares of Common Stock, or a statement from the Company representing that such shares have been issued, are in book entry form and are free of all restrictions, except for any
restrictions that may be imposed by law, or (3) any combination of cash and shares of Common Stock.
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(f)
|
Forfeiture
. Restricted Stock shall be forfeited and returned to the Company, and Restricted Stock Units shall be forfeited, and all rights of the Participant with respect to such Restricted Stock or Restricted
Stock Units shall terminate unless the Participant continues in the service of the Company, a Subsidiary or an Affiliate until the expiration of the restricted period for such Restricted Stock or Restricted Stock Unit Award and satisfies any and all
other conditions set forth in the Award Agreement. The Committee shall determine the restricted period (which may, but need not, lapse in installments) and any other terms and conditions applicable with respect to any Restricted Stock or Restricted
Stock Unit Award, which shall be set forth in the Award Agreement.
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|
(g)
|
Committee Discretion
. Notwithstanding anything contained in this Section 7 to the contrary, the Committee may, in its sole discretion,
waive the forfeiture period and any other conditions set forth in any Award Agreement under appropriate circumstances (including, but not limited to, the death, Disability or Retirement of the Participant or a material change
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- 16 -
|
|
in circumstances arising after the date of an Award) and subject to such terms and conditions (including forfeiture of a proportionate number of the Restricted Stock or Restricted Stock Units) as
the Committee shall deem appropriate.
|
|
Section 8.
|
Performance Awards and Incentive Awards
|
|
|
(a)
|
Performance Goals.
Notwithstanding anything else contained in the Plan to the contrary, the Committee may determine on the Date of Grant, that
any Restricted Stock or Restricted Stock Unit granted to a Participant shall be a Performance Award and shall vest only upon the determination by the Committee that Performance Goals established by the Committee have been attained, in whole or in
part. Such performance goals, the business criteria upon which they are based, and the weights or other formulas to be applied to any such business criteria shall be set forth in writing by the Committee not later than ninety (90) days after
the start of each Plan Year;
provided, however
, that if the performance goals are to be measured over a period shorter than the Plan Year, the above items are to be set forth in writing by the Committee before twenty-five percent
(25%) of the measurement period has elapsed. A “Performance Goal” means a performance objective that is stated with respect to one or more of the following business criteria, either individually or in combination, applied to the
Participant or to the Company, a Subsidiary or an Affiliate as a whole or to individual units thereof, and measured either absolutely or relative to a designated group of comparable companies: (i) cash flow, (ii) earnings per share,
(iii) earnings before interest, taxes, depreciation, and amortization (EBITDA), (iv) return on equity, (v) total stockholder return, (vi) return on capital, (vii) return on assets or net assets, (viii) revenue,
(ix) income or net income, (x) operating income or net operating income, (xi) operating profit or net operating profit, (xii) operating margin, (xiii) return on operating revenue, (xiv) customer satisfaction,
(xv) market share, (xvi) expenses, (xvii) credit rating, (xviii) mergers and acquisitions or divestitures, (xix) product development, (xx) intellectual property, (xxi) manufacturing, production or inventory,
(xxii) price/earnings ratio, (xxiii) liquidity, (xxiv) financings, (xxv) cash, (xxvi) cost of goods sold, (xxvii) economic value added, (xxviii) accounts receivable, (xxix) number of customers and
(xxx) gross profit margin. The Participant’s rights in the Performance Award shall become exercisable, transferable or nonforfeitable only to the extent that the Committee certifies in writing that such objectives have been achieved. A
Performance Goal may be expressed on an absolute basis or relative to the performance of one or more similarly situated companies or a published index. When establishing Performance Goals, the Committee may exclude any or all special, unusual or
extraordinary items as determined under U.S. generally accepted accounting principles, including, without limitation, the charges or cost associated with restructurings of the Company, discontinued operations, other unusual or non-recurring items
and the cumulative effects of accounting changes. To the extent permitted under Section 162(m) of the
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- 17 -
|
|
Code, the Committee may also adjust Performance Goals as it deems equitable in recognition of unusual or non-recurring events affecting the Company, changes in applicable tax laws or accounting
principles or such other factors as the Committee may determine.
|
|
|
(b)
|
Maximum Performance Award.
The maximum, aggregate amount that can be awarded to any one Participant pursuant to Performance Awards in one (1) Plan Year is five hundred thousand (500,000) shares of
Common Stock.
|
|
|
(c)
|
Interpretation of Performance Awards.
If a Performance Award is intended to constitute “performance-based compensation” under Section 162(m) of the Code, the Performance Award shall be designed,
interpreted and administered consistent with such intent. In that regard, any discretion exercised by the Committee with respect to the vesting of the Performance Award may reduce, but may not increase, the amount earned based on attainment of the
applicable pre-established, objective performance goals.
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|
(d)
|
Incentive Awards.
The Committee shall designate Participants to whom Incentive Awards are made for incentive compensation opportunities. All Incentive Awards shall be finally determined exclusively by the
Committee under the procedures established by the Committee.
|
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(e)
|
Terms And Conditions Of Incentive Awards.
The Committee, at the time an Incentive Award is made, shall specify the terms and conditions which govern the award. Such terms and conditions may include, by way of
example and not of limitation, requirements that the Participant complete a specified period of employment with the Company or a Subsidiary or Affiliate, or that the Company, a Subsidiary or Affiliate, or the Participant attain stated objectives or
goals, including objectives stated with respect to Performance Goals as a condition to earning an Incentive Award. The period for determining whether such requirements are satisfied shall be at least one year. The maximum, aggregate amount that can
be awarded to any one Participant for Incentive Awards denominated in shares of Common Stock in one Plan Year is five hundred thousand (500,000) shares of Common Stock and the maximum, aggregate amount that can be awarded to any one Participant
under one or more Incentive Awards denominated in cash in one Plan Year is three million five hundred thousand dollars ($3,500,000).
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(f)
|
Incentive Awards not subject to Liability
. No right or interest of a Participant in an Incentive Award shall be liable for, or subject to, any lien, obligation, or liability of such Participant.
|
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(g)
|
Settlement of Incentive Awards.
An Incentive Award that is earned shall be settled with a single lump sum payment which may be in cash, shares of Common Stock or a combination of cash of Common Stock, as
determined by the Committee.
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- 18 -
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|
(h)
|
Stockholder Rights.
No Participant shall, as a result of receiving an Incentive Award, have any rights as a stockholder of the Company until the date that the Incentive Award is settled and then only to the
extent that the Incentive Award is settled by the issuance of Common Stock.
|
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(i)
|
Employee Status for Performance Awards and Incentive Awards.
Notwithstanding Section 1(ff), if the terms of an Incentive Award or a Performance Award provide that a payment will be made thereunder only if
the Participant completes a stated period of employment or continued service the Committee may decide to what extent leaves of absence for governmental or military service, illness, temporary disability or other reasons shall not be deemed
interruptions of continuous employment or service.
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Section 9.
|
Change in Control
|
|
|
(a)
|
“Change in Control” means:
|
(i) the Company is merged into or consolidated with
another corporation or other entity and as a result of such merger or consolidation less than seventy percent (70%) of the combined voting power of the outstanding voting securities of the surviving or resulting corporation or other entity
shall, after giving effect to such merger or consolidation, be “beneficially owned” (within the meaning of Sections 13(d) and 14(d) of Exchange Act) in the aggregate, directly or indirectly, by the former stockholders of the Company
(excluding from such computation any such securities beneficially owned, directly or indirectly, by “affiliates” of the Company as defined in Rule 12b-2 under the Exchange Act and such securities so beneficially owned, directly or
indirectly, by a party to such merger or consolidation), provided however, that Company securities acquired directly from the Company shall be disregarded for this purpose,
(ii) the Company shall sell all or substantially all of its assets to any other person or entity (other than a wholly-owned subsidiary),
(iii) any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act, other than the Company, any
trustee or other fiduciary holding securities under an employee benefit plan of the Company, or any Company owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the
Company), is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly, of securities of the Company representing thirty percent (30%) or more of the combined voting power of
- 19 -
the Company’s then outstanding securities, provided however, that Company securities acquired directly from the Company shall be disregarded for this purpose,
(iv) during any period of two consecutive years, individuals who at the beginning of such period constitute the Board, and any new
director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in clause (i), (ii), (iii) or (v) of this Section 9(a) and other than a director initially
elected or nominated as a result of an actual or threatened election contest with respect to directors) whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of a majority of the directors
then still in office who either (x) were directors at the beginning of such period or (y) were so elected or nominated with such approval, cease for any reason to constitute at least a majority of the Board, or
(v) the Company shall become subject for any reason to a voluntary or involuntary dissolution or liquidation.
In addition, if a Change in Control (as defined in clauses (i), (ii), (iii), (iv) or (v) above) constitutes a payment event with
respect to any Stock Option, Stock Appreciation Right, Performance Award, Restricted Stock Unit award, Incentive Award or Restricted Stock that provides for the deferral of compensation and is subject to Section 409A of the Code, no payment
will be made under that award on account of a Change in Control unless the event described in clause (i), (ii), (iii), (iv) or (v) above, as applicable, constitutes a “change in control event” as defined in Treasury Regulation
Section 1.409A-3(i)(5).
|
|
(b)
|
“Control Change Date” means the date on which a Change in Control occurs. If a Change in Control occurs on account of a series of transactions, the Control Change Date is the date of the last of such
transactions.
|
|
|
(c)
|
Impact Of Change In Control.
Unless an outstanding award is assumed in accordance with Section 9(d) and notwithstanding any other provision of the Plan, upon a Control Change Date, the Committee is
authorized to, and in its discretion, may provide that (i) a Stock Option and Stock Appreciation Right shall be fully exercisable thereafter, (ii) Restricted Stock will become transferable and nonforfeitable thereafter,
(iii) Restricted Stock Units shall be earned in their entirety and converted into transferable and nonforfeitable Restricted Stock, (iv) the performance goals to which the vesting of Performance Awards are subject shall be deemed to be met
at target, such that Performance Awards immediately become fully vested, and (v) an Incentive Award shall be earned, in whole or in part, in accordance with the terms of the applicable Agreement.
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- 20 -
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|
(d)
|
Assumption Upon Change In Control
. In the event of a Change in Control the Committee, in its discretion and without the need for a Participant’s consent, may provide that an outstanding Stock Option, Stock
Appreciation Right, award of Restricted Stock, Restricted Stock Unit, Performance Award or Incentive Award shall be assumed by, or a substitute award granted by, the surviving entity in the Change in Control. Such assumed or substituted award shall
be of the same type of award as the original Stock Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Performance Award or Incentive Award being assumed or substituted. The assumed or substituted award shall have a value, as
of the Control Change Date, that is substantially equal to the value of the original award (or the difference between the Fair Market Value and the exercise price in the case of Stock Options and Stock Appreciation Rights) as the Committee
determines is equitably required and such other terms and conditions as may be prescribed by the Committee.
|
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(e)
|
Cash-Out Upon Change In Control
. Unless an outstanding award is assumed in accordance with Section 9(d), in the event of a Change in Control the Committee, in its discretion and without the need of a
Participant’s consent, may provide that each Stock Option, Stock Appreciation Right, Performance Award, Incentive Award, award of Restricted Stock and Restricted Stock Unit shall be cancelled in exchange for a payment. The payment may be in
cash, shares of Common Stock or other securities or consideration received by Company stockholders in the Change in Control transaction. The amount of the payment shall be an amount that is substantially equal to (i) the amount by which the
price per share received by Company stockholders in the Change in Control exceeds the Stock Option exercise price in the case of a Stock Option and Stock Appreciation Right, or (ii) the price per share received by stockholders for each share of
Common Stock subject to an award of Restricted Stock or Restricted Stock Units or an Incentive Award.
|
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Section 10.
|
Transferability; Successors
|
Awards granted under the Plan may not be sold, pledged,
assigned, hypothecated, transferred or disposed of in any manner other than by will or the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant. Any act in violation of this
Section 10 shall be void. Notwithstanding the foregoing, the Committee may permit further transferability of Awards other than Incentive Stock Options, on a general or specific basis, and may impose conditions and limitations on any permitted
transferability.
The provisions of the Plan shall be binding upon and inure to the benefit of all successors of any person receiving
Common Stock of the Corporation pursuant to the Plan, including, without limitation, the estate of such person and the executors, administrators or trustees thereof, the heirs and legatees of such person, and any receiver, trustee in bankruptcy or
representative of creditors of such person.
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|
Section 11.
|
Amendments and Termination
|
The Board may amend, alter or discontinue the Plan at any
time, provided that (i) no amendment, alteration or discontinuation shall be made which would materially impair the rights of a Participant in respect of any outstanding Award hereunder without such Participant’s prior consent; and
(ii) an amendment shall be contingent on approval of the Company’s stockholders to the extent stated by the Committee or required by applicable law or stock exchange listing requirements.
Subject to the above provisions, the Board shall have broad authority to amend the Plan to take in to account changes in applicable securities
and tax laws and accounting rules, as well as other developments.
|
Section 12.
|
Company’s Right to Terminate Retention; Exclusivity
|
Nothing contained in the Plan
shall prevent the Board from adopting other or additional compensation arrangements or modifying existing compensation arrangements for Participants, subject to stockholder approval if such approval is required by applicable statute, rule or
regulation; and such arrangements either may be generally applicable or applicable only in specific cases. Neither the adoption of the Plan nor a grant to a Participant of any Award shall confer upon any Participant any right to continued employment
or service with the Company.
|
Section 13.
|
Tax Withholding
|
The Company shall have the power and the right to deduct or withhold,
or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, local or other applicable taxes (including the Participant’s FICA obligation or other social taxes) required by law to be withheld (collectively,
the “Withholding Tax Obligation”) (i) with respect to the vesting of or other lapse of restrictions applicable to an Award, (ii) upon the exercise of a Stock Option or Stock Appreciation Right, or (iii) otherwise due in
connection with an Award.
At the time of such vesting, lapse, or exercise, the Participant shall pay to the Company any amount that the
Company may reasonably determine to be necessary to satisfy the Withholding Tax Obligation. The Committee, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit the Participant to elect to satisfy the
Withholding Tax Obligation, in whole or in part, by (a) paying the Company cash; (b) having the Company withhold shares of Common Stock having a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total
tax which could be imposed on the transaction; and/or (c) tendering previously acquired, unencumbered shares of Common Stock having an aggregate Fair Market Value equal to the minimum statutory total tax which could be imposed on the
transaction. All such elections shall be irrevocable, made in writing (including by electronic mail), and shall be subject to any restrictions or limitations that the Committee, in its sole discretion, deems appropriate.
- 22 -
If the Participant fails to make an election with respect to the method by which the Withholding
Tax Obligation shall be satisfied or fails to pay the Withholding Tax Obligation, in whole or in part, by means of the elected method, the Company may cause the Withholding Tax Obligation to be satisfied by the Company withholding shares of Common
Stock otherwise deliverable in connection with the Award that have a Fair Market Value on the date the tax is to be determined equal to the minimum statutory total tax that could be imposed on the transaction.
|
Section 14.
|
Choice of Law
|
The Plan and all Awards made and actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of Delaware.
|
Section 15.
|
Governmental and Other Regulations and Restrictions
|
|
|
(a)
|
In General.
The issuance by the Company of any shares of Common Stock pursuant to the Plan shall be subject to all applicable laws, rules and regulations and to such approvals by governmental agencies as may be
required.
|
|
|
(b)
|
Registration of Shares.
The Company shall use its reasonable commercial efforts to cause the shares of Common Stock issuable in connection with this Plan to be registered under the Securities Act of 1933, as
amended (the “
Securities Act
”), but shall otherwise be under no obligation to register any shares of Common Stock issued under the Plan under the Securities Act or otherwise. If, at the time any shares of Common Stock are issued
pursuant to the Plan, there shall not be on file with the Securities and Exchange Commission an effective Registration Statement under the Securities Act covering such shares of Common Stock, the Participant to whom such shares are to be issued will
execute and deliver to the Company upon receipt by him or her of any such shares an undertaking, in form and substance satisfactory to the Company, that (i) such Participant has had access or will, by reason of such person’s employment or
service with the Company, or otherwise, have access to sufficient information concerning the Company to enable him or her to evaluate the merits and risks of the acquisition of shares of the Company’s Common Stock pursuant to the Plan,
(ii) such Participant has such knowledge and experience in financial and business matters that such person is capable of evaluating such acquisition, (iii) it is the intention of such Participant to acquire and hold such shares for
investment and not for the resale or distribution thereof, (iv) such Participant will comply with the Securities Act and the Exchange Act with respect to such shares, and (v) such Participant will indemnify the Company for any cost,
liability and expense that the Company may sustain by reason of any violation of the Securities Act or the Exchange Act occasioned by any act or omission on his or her part with respect to such shares.
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|
|
(c)
|
Resale of Shares.
Without limiting the generality of Section 10, shares of Common Stock acquired pursuant to the Plan shall not be sold, transferred or otherwise disposed of unless and until (i) such
shares shall have been registered by the Company under the Securities Act, (ii) the Company shall have received either a “no action” letter from the Securities and Exchange Commission or an opinion of counsel acceptable to the Company
to the effect that such sale, transfer or other disposition of the shares may be effected without such registration, or (iii) such sale, transfer or disposition of the shares is made pursuant to Rule 144 of the General Rules and
Regulations promulgated under the Securities Act, as the same may from time to time be in effect, and the Company shall have received an opinion of counsel acceptable to the Company to such effect.
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|
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(d)
|
Legend on Certificates.
The Company may require that any certificate evidencing shares issued pursuant to the Plan bear a restrictive legend and be subject to stop-transfer orders or other actions, intended to
effect compliance with the Securities Act or any other applicable regulatory measure.
|
|
Section 16.
|
Election With Respect to Restricted Property
|
A Participant who receives an award of
Restricted Stock including Restricted Stock granted as a Performance Award (but not Restricted Stock Units) shall be entitled to make, at his or her discretion, within thirty (30) days of receipt of such restricted property and in accordance
with applicable laws and regulations, the election provided for under Section 83(b) of the Code to be taxed on the fair market value of such restricted property at the time it is received. Participants should consult their individual tax
advisors as to the tax consequences to them of the election under Section 83(b).
The Plan is intended to provide either stock-based compensation that
is not governed by Section 409A or for the deferral of compensation pursuant to a nonqualified deferred compensation plan that complies with the requirements of Section 409A. With respect to any Awards granted under this Plan that provide
for the deferral of compensation that is governed by Section 409A, the Plan shall be interpreted in a manner consistent with Section 409A and in the event that any provision that is necessary for the Plan to comply with Section 409A
is determined by the Committee, in its sole discretion, to have been omitted, such omitted provision shall be deemed included herein and is hereby incorporated as part of the Plan. Any payments described in the Plan that are due within the
“short-term deferral period” as defined in Section 409A shall not be treated as deferred compensation unless applicable laws require otherwise. Notwithstanding anything to the contrary in the Plan, to the extent required to avoid
accelerated taxation
- 24 -
and tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to the Plan during the six (6) month period
immediately following the Participant’s “separation from service” as defined in Section 409A shall instead be paid on the first payroll date after the six-month anniversary of the Participant’s “separation from
service” (or the Participant’s death, if earlier). In addition, and notwithstanding any provision of the Plan to the contrary, the Company reserves the right to amend the Plan or any Award granted under the Plan, by action of the
Committee, without the consent of any affected Participant, to the extent deemed necessary or appropriate for purposes of maintaining compliance with Section 409A and the regulations promulgated thereunder. Notwithstanding the foregoing,
neither the Company nor the Committee shall have any obligation to take any action to prevent the assessment of any excise tax or penalty on any Participant under Section 409A and neither the Company nor the Committee will have any liability to
any Participant for such tax or penalty.
|
Section 18.
|
Dividend Equivalents
|
For any Restricted Stock Units granted under the Plan, the
Committee shall have the discretion, upon the Date of Grant or thereafter, to provide for the payment of dividend equivalents to the Participant in connection with such Award or to establish a Dividend Equivalent Account with respect to the Award,
and the applicable Award Agreement or an amendment thereto shall confirm the terms of such arrangement. For purposes of payment of dividend equivalents or settlement of any Dividend Equivalent Account, the amount to be paid or otherwise settled (if
expressed in cash) shall be rounded to the nearest cent ($0.01). If a Dividend Equivalent Account is established, the following terms shall apply:
|
|
(i)
|
Dividend Equivalent Accounts shall be subject to such terms and conditions as the Committee shall determine and as shall be set forth in the applicable Award Agreement. Such terms and conditions may include, without
limitation, for the Participant’s Account to be credited as of the record date of each cash dividend on the Common Stock with an amount (expressed either in cash or shares of Common Stock of equivalent Fair Market Value) equal to the cash
dividends which would be paid with respect to the number of shares of Common Stock then covered by the related Award if such shares of Common Stock had been owned of record by the Participant on such record date.
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(ii)
|
Dividend Equivalent Accounts shall be established and maintained only on the books and records of the Company and no assets or funds of the Company shall be set aside, placed in trust, removed from the claims of the
Company’s general creditors, or otherwise made available until such amounts are actually payable as provided hereunder.
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|
|
(iii)
|
Dividend equivalents and amounts credited to a Dividend Equivalent Account with respect to any Performance Award or Restricted Stock Unit
|
- 25 -
|
|
that does not vest solely on continued employment or service shall be earned by the Participant only when and to the extent the underlying Award is earned.
|
|
|
(iv)
|
Notwithstanding the foregoing, the right to any dividends or dividend equivalents declared and paid on the number of shares underlying the Award may not be contingent, directly or indirectly, on the exercise of the
Award, and any Award providing a right to dividend equivalents must comply with or qualify for an exemption from Section 409A.
|
|
Section 19.
|
Cancellation and Rescission of Awards
|
The Committee or the Board of Directors may
cancel, rescind, suspend or otherwise limit or restrict any unexpired Award at any time if a Participant engages in “Detrimental Activity.”
|
Section 20.
|
Certain Reduction of Parachute Payments
|
The benefits that a Participant may be entitled
to receive under this Plan and other benefits that a Participant is entitled to receive under other plans, agreements and arrangements (which, together with the benefits provided under this Plan, are referred to as “Payments”), may
constitute Parachute Payments that are subject to Code Sections 280G and 4999. As provided in this Section 20, the Parachute Payments will be reduced pursuant to this Section 20 if, and only to the extent that, a reduction will allow a
Participant to receive a greater Net After Tax Amount than a Participant would receive absent a reduction.
The Accounting Firm will first
determine the amount of any Parachute Payments that are payable to a Participant. The Accounting Firm also will determine the Net After Tax Amount attributable to the Participant’s total Parachute Payments.
The Accounting Firm will next determine the largest amount of Payments that may be made to the Participant without subjecting the Participant
to tax under Code Section 4999 (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments.
The Participant will receive the total Parachute Payments or the Capped Payments, whichever provides the Participant with the higher Net After
Tax Amount. If the Participant will receive the Capped Payments, the total Parachute Payments will be adjusted by first reducing the amount of any benefits under this Plan or any other plan, agreement or arrangement that are not subject to
Section 409A of the Code (with the source of the reduction to be directed by the Committee) and then by reducing the amount of any benefits under this Plan or any other plan, agreement or arrangement that are subject to Section 409A of the
Code (with the source of the reduction to be directed by the Committee) in a manner that results in the best economic benefit to the Participant (or, to the extent economically equivalent, in a pro rata manner). The Accounting Firm
- 26 -
will notify the Participant and the Company if it determines that the Parachute Payments must be reduced to the Capped Payments and will send the Participant and the Company a copy of its
detailed calculations supporting that determination.
As a result of the uncertainty in the application of Code Sections 280G and 4999 at
the time that the Accounting Firm makes its determinations under this Section 20, it is possible that amounts will have been paid or distributed to the Participant that should not have been paid or distributed under this Section 20
(“Overpayments”), or that additional amounts should be paid or distributed to the Participant under this Section 20 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the
Internal Revenue Service against the Company or the Participant, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, the Participant
must repay to the Company, without interest; provided, however, that no loan will be deemed to have been made and no amount will be payable by the Participant to the Company unless, and then only to the extent that, the deemed loan and payment would
either reduce the amount on which the Participant is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or substantial
authority, that an Underpayment has occurred, the Accounting Firm will notify the Participant and the Company of that determination and the amount of that Underpayment will be paid to the Participant promptly by the Company.
For purposes of this Section 20, the term “Accounting Firm” means the independent accounting firm engaged by the Company
immediately before the Control Change Date. For purposes of this Section 20, the term “Net After Tax Amount” means the amount of any Parachute Payments or Capped Payments, as applicable, net of taxes imposed under Code Sections 1,
3101(b) and 4999 and any State or local income taxes applicable to the Participant on the date of payment. The determination of the Net After Tax Amount shall be made using the highest combined effective rate imposed by the foregoing taxes on income
of the same character as the Parachute Payments or Capped Payments, as applicable, in effect on the date of payment. For purposes of this Section 20, the term “Parachute Payment” means a payment that is described in Code
Section 280G(b)(2), determined in accordance with Code Section 280G and the regulations promulgated or proposed thereunder.
Nothing in this Section 20 shall limit or otherwise supersede the provisions of any other agreement or plan which provides that a
Participant cannot receive Payments in excess of the Capped Payments.
|
Section 21.
|
Return of Awards; Repayment
|
Each Award granted under this Plan is subject to the
condition that the Company may require that such award be returned, and that any payment made with respect to such award must be repaid, if such action is required under the terms of any Company recoupment or “clawback” policy as in effect
on the date that the payment was made, on
- 27 -
the date the award was granted or the date the Stock Option or Stock Appreciation Right was exercised or the date any Restricted Stock, Restricted Stock Unit or Performance Award or Incentive
Award became vested or earned.
This Plan shall be effective upon its approval by the stockholders of the
Company (the “Effective Date”). It shall continue in effect until May 19, 2025. Awards granted on or before that date shall remain valid in accordance with their terms, notwithstanding the expiration of the Plan.
- 28 -
EXHIBIT 4.2
RESTRICTED STOCK AWARD AGREEMENT
AGREEMENT dated as of [Grant Date] between 3D SYSTEMS CORPORATION, a Delaware corporation (the “Company”), and [Name of Recipient]
(the “Participant”).
The 2015 Incentive Plan (the “Plan”) of 3D Systems Corporation is designed to assist the Company
and its subsidiaries and affiliates in attracting and retaining employees and consultants of outstanding competence by providing an incentive that permits the persons responsible for the Company’s growth to share directly in that growth and to
further the identity of their interests with the interests of the Company’s stockholders. The Participant is eligible to receive grants of shares of the Company’s common stock, $0.001 par value per share (“Common Stock”) under
Section 7 of the Plan.
NOW, THEREFORE, the Company and the Participant mutually agree as follows:
|
Section 1.
|
Award of Restricted Stock
|
Subject to the terms and conditions hereinafter set forth,
the Company hereby grants to the Participant and the Participant accepts from the Company [Number of Shares] shares of Common Stock. The Participant will receive evidence of ownership of such shares of Common Stock within a reasonable time after
execution of this Agreement.
|
Section 2.
|
Terms and Conditions of Plan
|
The Participant agrees that all shares of Common Stock
issued pursuant to this Agreement shall be held in accordance with the terms and conditions of the Plan. The authority of the Company to enter into this Agreement and to issue shares of Common Stock pursuant hereto is derived exclusively from the
Plan. If any terms or conditions of this Agreement conflict with any terms or conditions of the Plan, the terms and conditions of the Plan shall control. Any capitalized terms not defined herein shall have the meaning assigned to such term in the
Plan. The Participant acknowledges that a copy of the Plan has been made available to the Participant.
|
Section 3.
|
Restriction on Transfer
|
Until the restrictions in Section 4 of this Agreement
lapse and except as permitted by Section 4 of this Agreement and Section 10 of the Plan, no shares of Common Stock issued pursuant to this Agreement, or any interest therein, shall be sold, transferred, pledged, encumbered or otherwise
disposed of by the Participant so long as the Participant shall remain a Participant of the Company, except that such restrictions may expire earlier as provided by Section 9 of the Plan.
|
Section 4.
|
Forfeiture and Period of Restriction
|
The Restricted Stock shall be forfeited and all
rights of the Participant with respect to such Restricted Stock shall terminate unless the Participant continues in the service of the Company, a Subsidiary or an Affiliate for a period beginning on the date of the grant and ending on the earlier of
the third anniversary of such date or the date that the Participant’s employment ends on account of death or Disability, and satisfies any and all other conditions set forth in this Agreement. Notwithstanding anything contained in
Section 7 of the Plan to the contrary, the Compensation Committee of the Board of Directors of the Company (the “Committee”) may, in its sole discretion, waive the forfeiture period and any other conditions set forth in this Agreement
under appropriate circumstances (including, but not limited to, the death, Disability or Retirement of the Participant or a material change in circumstances arising after the date of an Award) and subject to such terms and conditions (including
forfeiture of a proportionate number of the shares under the Restricted Stock Award) as the Committee shall deem appropriate.
|
Section 5.
|
Undertakings of Participant
|
The Participant represents and agrees that he or she will
comply with the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”), with respect to such shares, and he or she will indemnify the Company
for any costs, liabilities and expenses that it may sustain by reason of any violation of the Securities Act or the Securities Exchange Act caused by any act or omission on his or her part with respect to such shares.
|
Section 6.
|
Restrictive Legends and Stop-Transfer Instructions
|
The obligation of the Company to
issue Common Stock upon execution of this Agreement shall be subject to all applicable laws, rules and regulations and to such approvals by governmental agencies as may be required. Stock certificates evidencing Common Stock issued under this
Agreement may bear such restrictive legends and/or appropriate stop transfer instructions may be issued to the Company’s transfer agent as the Company and the Company’s counsel deem necessary under applicable law or pursuant to this
Agreement.
|
Section 7.
|
Registration of Shares
|
The Company shall use its reasonable commercial efforts to cause
the shares of Common Stock issuable in connection with the Plan to be registered under the Securities Act of 1933, as amended (the “Securities Act”), but shall otherwise be under no obligation to register any shares of Common Stock issued
under the Plan under the Securities Act or otherwise. If, at the time any shares of Common Stock are issued pursuant to the Plan, there shall not be on file with the Securities and Exchange Commission an effective Registration Statement under the
Securities Act covering such shares of Common Stock, the Participant to whom such shares are to be issued will execute and deliver to the Company upon receipt by him or her of any such shares an undertaking, in form and substance satisfactory to the
Company, that (i) such Participant has had access or will, by reason of such person’s employment or service with the Company, or
- 2 -
otherwise, have access to sufficient information concerning the Company to enable him or her to evaluate the merits and risks of the acquisition of shares of the Company’s Common Stock
pursuant to the Plan, (ii) such Participant has such knowledge and experience in financial and business matters that such person is capable of evaluating such acquisition, (iii) it is the intention of such Participant to acquire and hold
such shares for investment and not for the resale or distribution thereof, (iv) such Participant will comply with the Securities Act and the Exchange Act with respect to such shares, and (v) such Participant will indemnify the Company for
any cost, liability and expense that the Company may sustain by reason of any violation of the Securities Act or the Exchange Act occasioned by any act or omission on his or her part with respect to such shares.
|
Section 8.
|
No Rights in Common Stock
|
The prospective recipient of a Restricted Stock award shall
not have any right with respect to such award, unless and until the recipient has [executed an agreement evidencing the award, delivered a fully executed copy thereof to the Company,][electronically accepted an agreement evidencing such award] and
otherwise complied with the terms and conditions of such award and of Section 7 of the Plan, and then only from the date such person becomes the record owner of the shares of Restricted Stock. Once the conditions in the foregoing sentence have
been satisfied, and except as provided in Section 4 of this Agreement, the Participant shall have with respect to an award of Restricted Stock all the rights of a stockholder of the Company, including the right to vote and to receive cash
dividends (if any). The Committee, in its sole discretion, as determined at the time of the award, may permit or require such cash dividends (if any) to be reinvested in additional Restricted Stock, provided that sufficient shares of Common Stock
are available under Section 3 of the Plan for such reinvestment (taking into account then outstanding awards under the Plan). Stock dividends issued with respect to Restricted Stock shall be treated as additional shares of Restricted Stock that
are subject to the same restrictions and other terms and conditions that apply to the shares with respect to which such dividends are issued.
Any notice that either party hereto may be required or permitted to give to the
other shall be in writing and, except as otherwise required herein, may be delivered personally or by mail to the Company at 333 Three D Systems Circle, Rock Hill, South Carolina 29730, attention of the Secretary of the Company, or to the
Participant at the address set forth below or at such other address as either party may designate by notice to the other.
- 3 -
The number of shares of Common Stock subject to the award under this Agreement and the
terms of this Agreement shall be subject to adjustment in accordance with Section 3(a) of the Plan.
The provisions of the Plan shall be binding upon and inure to the benefit of
all successors of any person receiving Common Stock of the Corporation pursuant to the Plan, including, without limitation, the estate of such person and the executors, administrators or trustees thereof, the heirs and legatees of such person, and
any receiver, trustee in bankruptcy or representative of creditors of such person.
|
Section 12.
|
Company’s Right to Terminate Retention; Exclusivity
|
Nothing contained in the Plan
shall prevent the Board from adopting other or additional compensation arrangements or modifying existing compensation arrangements for Participants, subject to stockholder approval if such approval is required by applicable statute, rule or
regulation; and such arrangements either may be generally applicable or applicable only in specific cases. Neither the adoption of the Plan nor a grant to a Participant of any Restricted Stock Award shall confer upon any Participant any right to
continued employment or service with the Company, a Subsidiary or an Affiliate.
|
Section 13.
|
Payment of Withholding Tax
|
The Participant undertakes to comply with any appropriate
requests that may be made by the Company in respect of the withholding of any federal, state or local taxes and any other charges that may be required by law to be withheld by reason of a grant or the issuance of shares of Common Stock pursuant to
the Plan.
|
Section 14.
|
Applicable Law
|
This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware.
If any provision of this Agreement is held to be illegal, void or
unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the extent possible. In any event, all other provisions of this Agreement shall be deemed valid and enforceable to
the fullest extent possible.
- 4 -
Notwithstanding any provision in this Agreement, the award under this
Agreement shall be subject to any special terms and conditions set forth in any Appendix to the Agreement for your country of residence. Moreover, if you relocate to one of the countries included in the Appendix, the special terms and conditions for
such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable in order to comply with local law or facilitate the administration of the Plan. The Appendix constitutes
part of this Agreement.
|
Section 17.
|
Electronic Delivery
|
The Company may, in its sole discretion, decide to deliver any
documents related to your current or future participation in the Plan by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to
participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
|
[Section 18.
|
Electronic Acceptance of Agreement
|
You must expressly accept the terms and conditions
of your award as set forth in this Agreement by electronically accepting this Agreement within 90 days after the Company sends this Agreement to you. If you do not accept this Agreement in the manner instructed by the Company, your award will be
subject to cancellation.
YOU ACKNOWLEDGE THAT BY CLICKING ON THE “I AGREE” BUTTON BELOW, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT,
ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
PLEASE PRINT AND KEEP A COPY FOR YOUR RECORDS]
- 5 -
[IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed pursuant to due
authorization, all as of the day and year first above written.
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3D SYSTEMS CORPORATION
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By:
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[Name]
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|
|
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Executive Vice President, Chief Legal Officer and Secretary
|
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PARTICIPANT
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[Name of Recipient]
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[Address]
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[City, State or Province, Postal Code, and Country]
|
Participant hereby designates
to be
the beneficiary of the Restricted Stock awarded pursuant to this Agreement, to the extent that the restrictions set forth in Section 4 of this Agreement relating to such Restricted Stock have not yet lapsed at the time of Participant’s
death.]
- 6 -
EXHIBIT 4.3
RESTRICTED STOCK UNIT AGREEMENT
AGREEMENT dated as of [Grant Date] between 3D SYSTEMS CORPORATION, a Delaware corporation (the “Company”), and [Name of Recipient]
(the “Participant”).
The 2015 Incentive Plan (the “Plan”) of 3D Systems Corporation is designed to assist the Company
and its subsidiaries and affiliates in attracting and retaining employees and consultants of outstanding competence by providing an incentive that permits the persons responsible for the Company’s growth to share directly in that growth and to
further the identity of their interests with the interests of the Company’s stockholders. The Participant is eligible to receive an Award of Restricted Stock Units (“Restricted Stock Units”), each unit of which is a notional
bookkeeping entry representing the equivalent of a share of Common Stock under Section 7 of the Plan.
NOW, THEREFORE, the Company
and the Participant mutually agree as follows:
|
Section 1.
|
Restricted Stock Units
|
Subject to the terms and conditions hereinafter set forth, the
Company hereby grants to the Participant and the Participant accepts from the Company [Number of Units] Restricted Stock Units.
|
Section 2.
|
Terms and Conditions of Plan
|
The Participant agrees that all Restricted Stock Units
issued pursuant to this Agreement shall be held in accordance with the terms and conditions of the Plan. The authority of the Company to enter into this Agreement and to issue Restricted Stock Units pursuant hereto is derived exclusively from the
Plan. If any terms or conditions of this Agreement conflict with any terms or conditions of the Plan, the terms and conditions of the Plan shall control. Any capitalized terms not defined herein shall have the meaning assigned to such term in the
Plan. The Participant acknowledges that a copy of the Plan has been made available to the Participant.
|
Section 3.
|
Restriction on Transfer
|
Except as permitted in Section 10 of the Plan, no
Restricted Stock Units issued pursuant to this Agreement, or any interest therein, shall be sold, transferred, pledged, encumbered or otherwise disposed of by the Participant so long as the Participant shall remain a Participant of the Company,
except that such restrictions may expire earlier as provided by Section 9 of the Plan.
|
Section 4.
|
Forfeiture and Period of Restriction
|
(a) Restricted Stock Units shall be forfeited, and
all rights of the Participant with respect to such Restricted Stock Units shall terminate unless the Participant continues in the service of the Company, a Subsidiary or an Affiliate for a period beginning on the date of the grant and ending on the
earlier of the third anniversary of such date or the date that the Participant’s employment ends on account of death or Disability, and satisfies any and all other conditions set forth in this Agreement.
(b) Notwithstanding anything contained in Section 7 of the Plan to the contrary, the Compensation Committee of the Board of Directors of
the Company (the “Committee”) may, in its sole discretion, waive the forfeiture period and any other conditions set forth in this Agreement under appropriate circumstances (including, but not limited to, the death, Disability or Retirement
of the Participant or a material change in circumstances arising after the date of an Award) and subject to such terms and conditions (including forfeiture of a proportionate number of the Restricted Stock Units) as the Committee shall deem
appropriate.
|
Section 5.
|
Settlement of Restricted Stock Units
|
Upon expiration or earlier termination of the
restricted period provided in Section 4 above without a forfeiture and the satisfaction of or release from any other conditions set forth in this Agreement, or at such earlier time as provided under Section 4(b) above, the restrictions
applicable to the Restricted Stock Units shall lapse. As promptly as administratively feasible thereafter, subject to the requirements of Section 14 of this Agreement and Section 13 of the Plan (regarding tax withholding), but no later
than sixty (60) days following such event, the Company shall deliver to the Participant or, in case of the Participant’s death, to the Participant’s Beneficiary, (1) a cash payment equal to the number of Restricted Stock Units as
to which such restrictions have lapsed multiplied by the Fair Market Value of a share of Common Stock as of the date the restrictions lapsed, (2) solely in the Committee’s discretion, one or more share certificates registered in the name
of the Participant, for the appropriate number of shares of Common Stock, or a statement from the Company representing that such shares have been issued, are in book entry form and are free of all restrictions, except for any restrictions that may
be imposed by law, or (3) any combination of cash and shares of Common Stock.
|
Section 6.
|
Undertakings of Participant
|
The Participant represents and agrees that he or she will
comply with the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act”), with respect to such shares, and he or she will indemnify the Company
for any costs, liabilities and expenses that it may sustain by reason of any violation of the Securities Act or the Securities Exchange Act caused by any act or omission on his or her part with respect to such shares.
- 2 -
|
Section 7.
|
Registration of Shares
|
The Company shall use its reasonable commercial efforts to cause
the shares of Common Stock issuable in connection with the Plan to be registered under the Securities Act of 1933, as amended (the “Securities Act”), but shall otherwise be under no obligation to register any shares of Common Stock issued
under the Plan under the Securities Act or otherwise. If, at the time any shares of Common Stock are issued pursuant to the Plan, there shall not be on file with the Securities and Exchange Commission an effective Registration Statement under the
Securities Act covering such shares of Common Stock, the Participant to whom such shares are to be issued will execute and deliver to the Company upon receipt by him or her of any such shares an undertaking, in form and substance satisfactory to the
Company, that (i) such Participant has had access or will, by reason of such person’s employment or service with the Company, or otherwise, have access to sufficient information concerning the Company to enable him or her to evaluate the
merits and risks of the acquisition of shares of the Company’s Common Stock pursuant to the Plan, (ii) such Participant has such knowledge and experience in financial and business matters that such person is capable of evaluating such
acquisition, (iii) it is the intention of such Participant to acquire and hold such shares for investment and not for the resale or distribution thereof, (iv) such Participant will comply with the Securities Act and the Exchange Act with
respect to such shares, and (v) such Participant will indemnify the Company for any cost, liability and expense that the Company may sustain by reason of any violation of the Securities Act or the Exchange Act occasioned by any act or omission
on his or her part with respect to such shares.
|
Section 8.
|
Rights of Holders of Restricted Stock Units
|
(a) Until the lapse or release of the
restrictions applicable to the shares subject to a Restricted Stock Unit, no shares of Common Stock shall be issued in respect of such Restricted Stock Units. Holders of Restricted Stock Units shall not have rights as stockholders of the Company,
with respect to the shares of Common Stock covered by such Restricted Stock Units or otherwise, and shall not have the right to vote such shares or the right to receive dividends until, and then to the extent that, shares of Common Stock are issued
in settlement of the Restricted Stock Units.
(b) A holder of Restricted Stock Units shall have no rights other than those of a general
creditor of the Company. Restricted Stock Units represent an unfunded and unsecured obligation of the Company, subject to the terms and conditions of this Agreement.
- 3 -
|
Section 9.
|
Restrictive Legends and Stop-Transfer Instructions
|
Certificates evidencing shares of
Common Stock issued pursuant to Restricted Stock Units may bear such restrictive legends and /or appropriate stop-transfer instructions may be issued to the Company’s transfer agent as the Company and the Company’s counsel deem necessary
under applicable law or pursuant to this Agreement.
Any notice that either party hereto may be required or permitted to give to the
other shall be in writing and, except as otherwise required herein, may be delivered personally or by mail to the Company at 333 Three D Systems Circle, Rock Hill, South Carolina 29730, attention of the Secretary of the Company, or to the
Participant at the address set forth below or at such other address as either party may designate by notice to the other.
The number of Restricted Stock Units and the terms of this Agreement shall
be subject to adjustment in accordance with Section 3(a) of the Plan.
The provisions of the Plan shall be binding upon and inure to the benefit of
all successors of any person receiving Common Stock of the Corporation pursuant to the Plan, including, without limitation, the estate of such person and the executors, administrators or trustees thereof, the heirs and legatees of such person, and
any receiver, trustee in bankruptcy or representative of creditors of such person.
|
Section 13.
|
Company’s Right to Terminate Retention; Exclusivity
|
Nothing contained in the Plan
shall prevent the Board from adopting other or additional compensation arrangements or modifying existing compensation arrangements for Participants, subject to stockholder approval if such approval is required by applicable statute, rule or
regulation; and such arrangements either may be generally applicable or applicable only in specific cases. Neither the adoption of the Plan nor the issuance of the Restricted Stock Units shall confer upon the Participant any right to continued
employment or service with the Company, a Subsidiary or an Affiliate.
|
Section 14.
|
Payment of Withholding Tax
|
The Participant undertakes to comply with any appropriate
requests that may be made by the Company in respect of the withholding of any federal, state or local taxes and any other charges that may be required by law to be withheld by reason of a grant or the issuance of shares of Common Stock pursuant to
the Plan.
- 4 -
|
Section 15.
|
Applicable Law
|
This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware.
If any provision of this Agreement is held to be illegal, void or
unenforceable for any reason, it shall be adjusted rather than voided, if possible, in order to achieve the intent of the parties to the extent possible. In any event, all other provisions of this Agreement shall be deemed valid and enforceable to
the fullest extent possible.
Notwithstanding any provision in this Agreement, the award under this
Agreement shall be subject to any special terms and conditions set forth in any Appendix to the Agreement for your country of residence. Moreover, if you relocate to one of the countries included in the Appendix, the special terms and conditions for
such country will apply to you, to the extent the Company determines that the application of such terms and conditions is necessary or advisable in order to comply with local law or facilitate the administration of the Plan. The Appendix constitutes
part of this Agreement.
|
Section 18.
|
Electronic Delivery
|
The Company may, in its sole discretion, decide to deliver any
documents related to your current or future participation in the Plan by electronic means or to request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and agree to
participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
|
[Section 19.
|
Electronic Acceptance of Agreement
|
You must expressly accept the terms and conditions
of your award as set forth in this Agreement by electronically accepting this Agreement within 90 days after the Company sends this Agreement to you. If you do not accept this Agreement in the manner instructed by the Company, your award will be
subject to cancellation.
YOU ACKNOWLEDGE THAT BY CLICKING ON THE “I AGREE” BUTTON BELOW, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT,
ALL AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
PLEASE PRINT AND KEEP A COPY FOR YOUR RECORDS]
- 5 -
[IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed pursuant to due
authorization, all as of the day and year first above written.
|
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3D SYSTEMS CORPORATION
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By:
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[Name]
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|
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Executive Vice President, Chief Legal Officer and Secretary
|
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[Name of Recipient]
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[Address]
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[City, State or Province, Postal Code, and Country]
|
Participant hereby designates
to be
the beneficiary of the Restricted Stock Units awarded pursuant to this Agreement, to the extent that the restrictions set forth in Section 4 of this Agreement relating to such Restricted Stock Units have not yet lapsed at the time of
Participant’s death.]
- 6 -
EXHIBIT 5.1
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A
NDREW
M. J
OHNSON
|
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D
IRECT
D
IAL
: +1 803.326.4003
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E
XECUTIVE
V
ICE
P
RESIDENT
, C
HIEF
L
EGAL
O
FFICER
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A
ND
S
ECRETARY
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May 19, 2015
Board of Directors
3D Systems Corporation
333 Three D Systems Circle
Rock Hill, SC 29730
3D Systems Corporation Registration Statement on Form S-8
6,300,000 Shares of Common Stock
Ladies
and Gentlemen:
I am the Executive Vice President, Chief Legal Officer and Secretary of 3D Systems Corporation, a Delaware corporation
(the “
Company
”), and as such have represented the Company in connection with the preparation of a Registration Statement on Form S-8 (the “
Registration Statement
”) filed by the Company with the Securities and
Exchange Commission (the “
Commission
”) pursuant to the Securities Act of 1933, as amended (the “
Securities Act
”) on the date hereof, with respect to 6,300,000 shares of Common Stock, par value $0.001 per share, of
the Company (the “
Common Stock
”), available for issuance under the 2015 Incentive Plan of 3D Systems Corporation (the “
Plan
”) that was approved by the Board of Directors of the Company on March 11, 2015 and by
the stockholders of the Company on May 19, 2015. This opinion is being furnished in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K.
As counsel for the Company, in addition to participating in the preparation of the Registration Statement, I have reviewed the resolutions
adopted by the Board of Directors that authorized the adoption of the Plan and the issuance of the Shares under the Plan and of the stockholders that approved the Plan. I have also reviewed such other corporate records, documents, instruments and
certificates and have made such other inquiries as I have considered necessary for purposes of the opinions expressed below.
Based on the
foregoing and subject to the qualifications, assumptions and limitations contained herein, and having regard for such legal considerations as I have deemed relevant, I am of opinion that the Shares, when and to the extent issued and delivered in
accordance with the terms of the Plan, assuming that at the times of any such issuances the Company has a sufficient number of authorized and unissued shares of Common Stock available therefor, will be validly issued, fully paid and nonassessable.
3D Systems Corporation
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Three D Systems Circle | Rock Hill, SC 29730 | USA
Tel: +1 803.326.3900 | www.3dsystems.com | NYSE:
DDD
MANUFACTURING
THE
FUTURE
The foregoing opinion is limited to the General Corporation Law of the State of Delaware
(“
DGCL
”), and I do not express any opinion herein concerning any other law. I express no opinion as to the applicability or effect of any federal or state securities laws, or as to federal or state laws regarding fraudulent
transfers of fraudulent conveyances, including the securities laws of the State of Delaware. To the extent that any matter as to which my opinion as expressed herein would be governed by any law, statute or regulations other than the DGCL, I do not
express any opinion on such matter. I wish to advise you that I am a member of the bar of the State of North Carolina.
I consent to the
filing of this opinion as an exhibit to the Registration Statement and to the reference to me under the heading “Legal Matters” therein. In giving this consent, I do not thereby admit that I am within the category of persons whose consent
is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
This opinion is limited to the
matters stated in this letter, and no opinions may be implied or inferred beyond the matters expressly stated in this letter. This opinion is given as of the date hereof an I assume no obligation to advise you after the date hereof of facts or
circumstances that come to my attention or changes in the law, including judicial or administrative interpretations thereof, that occur which could affect the opinions contained herein.
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Very truly yours,
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/s/ ANDREW M. JOHNSON, ESQ.
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Andrew M. Johnson, Esq.
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Executive Vice President, Chief Legal Officer and Secretary
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EXHIBIT 23.1
Consent of Independent Registered Public Accounting Firm
3D Systems Corporation
Rock Hill, South Carolina
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 26, 2015, relating to the
consolidated financial statements, the effectiveness of 3D Systems Corporation’s internal control over financial reporting, and schedule of 3D Systems Corporation appearing in the Company’s Annual Report on Form 10-K for the year ended
December 31, 2014.
/s/ BDO USA, LLP
Charlotte, North
Carolina
May 18, 2015
BDO USA, LLP, a Delaware limited
liability partnership, is the U.S. member of BDO International Limited, a UK company limited by guarantee, and forms part of the international BDO network of independent member firms.
BDO is the brand name for the BDO network and for each of the BDO Member Firms.