<PAGE>
As filed with the Securities and Exchange Commission on September 3, 1998
Registration No. 333-_____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
DTM CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS 74-248705
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1611 HEADWAY CIRCLE, BUILDING 2, AUSTIN, TEXAS 78754
(Address of principal executive offices) (Zip code)
-----------------------
THE DTM CORPORATION
1998 STOCK OPTION PLAN
(Full title of the Plans)
-----------------------
GEOFFREY W. KREIGER
DTM CORPORATION
1611 HEADWAY CIRCLE, BUILDING 2, AUSTIN, TEXAS 78754
(Name and address of agent for service)
(512) 339-2922
(Telephone number, including area code, of agent for service)
With a copy to:
J. Matthew Lyons, Esq.
BROBECK, PHLEGER & HARRISON LLP
301 Congress Avenue, Suite 1200
Austin, Texas 78701
Facsimile: (512) 477-5813
------------------------
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
---------- ------------- ------------ -------- ---
Common Stock,
$0.0002 par
value 300,000 shares $1.44 $432,000 $127.44
================================================================================
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the DTM Corporation 1998 Stock
Option Plan by reason of any stock dividend, stock split, 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 Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, (the "1933 Act"), on the basis of the
average of the high and low selling prices per share of Registrant's Common
Stock on August 31, 1998 as reported by the Nasdaq National Market.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
DTM Corporation (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed with the Commission on March 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998, filed with the Commission on August 12, 1998
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998, filed with the Commission on May 12, 1998; and
(d) The Registrant's Registration Statement No. 000-20993 on Form 8-A,
filed with the Commission on July 11, 1996, as amended on April 28,
1997, pursuant to Section 12 of the Securities and Exchange Act of
1934, as amended (the "1934 Act"), in which there is described the
terms, rights and provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which 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 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 in any subsequently filed document
which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Registrant's Amended and Restated Articles of Incorporation
include provisions to permit the Registrant to indemnify its directors and
officers to the fullest extent permitted by Texas law. Article 2.02-1 of the
Texas Business Corporation Act makes provision for the indemnification of
officers and directors in terms sufficiently broad as to include indemnification
under certain circumstances for liabilities (including reimbursement of expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). In addition, as permitted by Article 2.02-1 of the Texas Business
Corporation Act, the Registrant's Amended and Restated Articles of Incorporation
of the Registrant provide that a director of the Registrant shall not be liable
to the Registrant or its shareholders for monetary damages for acts or omissions
in the director's capacity as such, except for liability (i)
<PAGE>
for breach of a duty of loyalty to the Registrant or its shareholders, (ii) for
acts or omissions not in good faith, or which involve intentional misconduct or
a knowing violation of law, (iii) for receipt of improper benefits, (iv) where
liability is expressly provided for by statute or (v) for unlawful stock
repurchases or dividend payments. The Registrant's Amended and Restated Articles
of Incorporation further provide that directors receive the benefit of any
future amendment to Texas statutes that further limits the liability of a
director.
Directors who are also employees of The B.F.Goodrich Company
("BFGoodrich") are entitled to indemnification pursuant to BFGoodrich's bylaws.
Furthermore, BFGoodrich's bylaws provide for discretionary indemnification for
certain other persons acting as officers or directors of its subsidiaries.
The Underwriting Agreement, dated May 2, 1997, between the Registrant
and A.G. Edwards & Sons, inc. and Ladenburg Thalmann & Co. Inc., as
representatives of the several underwriters listed on Schedule II thereto,
provides for indemnification by the Underwriters of the Registrant, the Selling
Shareholders named therein (including BFGoodrich) and the Registrant's officers
and directors for certain liabilities arising under the Securities Act, or
otherwise.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining Rights of Shareholders. Reference is made
to Registrant's Registration Statement No. 000-20993 on Form 8-
A, including the exhibits thereto, which are incorporated herein
by reference pursuant to Item 3(c).
5.1 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1* DTM Corporation 1998 Stock Option Plan.
99.2 Form of Stock Option Agreement.
* Exhibit 99.1 is incorporated herein by reference to Exhibit 10.21,
respectively, on Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998, filed with the Commission on May 12, 1998.
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 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of the 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 the
Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the 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 periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference
into the Registration Statement; (2) that for the purpose of determining any
liability under the 1933 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 at the termination of the Registrant's 1998 Stock Option Plan.
II-2
<PAGE>
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is
incorporated by reference into the 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 above
or otherwise, the Registrant has been informed that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
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 Austin, State of Texas, on this 31st day of
August 1998.
DTM CORPORATION
By: /s/ John S. Murchison, III
--------------------------------------
John S. Murchison, III
Chief Executive Officer, President
and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of DTM Corporation, a
Texas corporation, do hereby constitute and appoint John S. Murchison III and
Geoffrey W. Kreiger and each of them, the lawful attorneys and agents, with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, and any one of them, determine may
be necessary or advisable or required to enable said corporation to comply with
the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both pre-
effective and post-effective, and supplements to this Registration Statement,
and to any and all instruments or documents filed as part of or in conjunction
with this Registration Statement or amendments or supplements thereof, and each
of the undersigned hereby ratifies and confirms all that said attorneys and
agents, or any of them, shall do or cause to be done by virtue hereof. This
Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the 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.
Signatures Title Date
- ---------- ----- ----
/s/ John S. Murchison, III Chief Executive Officer, August 31, 1998
- ----------------------------- President and Director
John S. Murchison, III (Principal Executive Officer)
/s/ Les C. Vinney Chairman of the Board August 31, 1998
- ---------------------------- and Director
Les C. Vinney
II-4
<PAGE>
Signatures Title Date
- ---------- ----- ----
/s/ Geoffrey W. Kreiger Controller, Treasurer and August 31, 1998
- ---------------------------- Secretary
Geoffrey W. Kreiger (Principal Financial and
Accounting Officer)
/s/ Marshall O. Larsen Director August 31, 1998
- ----------------------------
Marshall O. Larsen
Director August __, 1998
- ----------------------------
Robert D Koney
/S/ Thomas G. Ricks Director August 31, 1998
- ----------------------------
Thomas G. Ricks
Director August __, 1998
- ----------------------------
Alexander MacLachlan
II-5
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
DTM CORPORATION
<PAGE>
EXHIBIT INDEX
-------------
Exhibit Number Exhibit
- -------------- -------
4 Instruments Defining Rights of Shareholders. Reference is made
to Registrant's Registration Statement No. 000-20993 on Form 8-
A, including the exhibits thereto, which are incorporated herein
by reference pursuant to Item 3(c).
5.1 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1* DTM Corporation 1998 Stock Option Plan.
99.2 Form of Stock Option Agreement.
* Exhibit 99.1 is incorporated herein by reference to Exhibit 10.21,
respectively, on Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1998, filed with the Commission on May 12, 1998.
<PAGE>
EXHIBIT 5.1
Opinion and Consent of Brobeck, Phleger & Harrsion LLP
August 31, 1998
DTM Corporation
1611 Headway Circle, Building 2
Austin, TX 78754
Re: DTM Corporation Registration Statement on Form S-8 for 300,000
Shares of Common Stock and Related Stock Options
Ladies and Gentlemen:
We have acted as counsel to DTM Corporation, a Texas corporation
(the "Company"), in connection with the registration on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended, of (i)
an additional 300,000 shares of common stock and related stock options for
issuance under the Company's 1998 Stock Option Plan (the "Option Plan").
This opinion is being furnished in accordance with the requirements
of Item 8 of Form S-8 and Item 601(b)(5)(i) of Regulation S-K.
We have reviewed the Company's charter documents and the corporate
proceedings taken by the Company in connection with the establishment and
amendment of the Option Plan. Based on such review, we are of the opinion that,
if, as and when the shares of common stock are issued and sold (and the
consideration therefor received) pursuant to (a) the provisions of option
agreements duly authorized under the Option Plan and in accordance with the
Registration Statement, or (b) duly authorized direct stock issuances in
accordance with the Option Plan and the Registration Statement, such shares will
be duly authorized, legally issued, fully paid and non-assessable.
We consent to the filing of this opinion letter as Exhibit 5.1 to
the Registration Statement.
This opinion letter is rendered as of the date first written above
and we disclaim any obligation to advise you of facts, circumstances, events or
developments which hereafter may be brought to our attention and which may
alter, affect or modify the opinion expressed herein. Our opinion is expressly
limited to the matters set forth above and we render no opinion, whether by
implication or otherwise, as to any other matters relating to the Company, the
Option Plan or the shares of common stock issuable under such plan.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
DRAFT
EXHIBIT 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1998 Stock Option Plan of DTM Corporation of our
report dated February 20, 1998 with respect to the consolidated financial
statements of DTM Corporation incorporated by reference in its Annual Report on
Form 10-K for the year ended December 31, 1997, and the related financial
statement schedule included therein, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
- -------------------------------------
ERNST & YOUNG LLP
Austin, Texas
August 31, 1998
<PAGE>
EXHIBIT 99.2
[DATE]
STOCK OPTION AGREEMENT
----------------------
DTM CORPORATION 1998 OPTION PLAN
--------------------------------
Dear ______________:
Section 1. The DTM 1998 Stock Option Plan (hereinafter called the "Plan")
was adopted in January 1998 and authorized by the shareholders in May 1998.
The Company has granted to you an option to purchase _________ shares of
common stock of the Company at a price of $_____ per share, upon the terms and
conditions set forth in this letter and the Plan. This option price represents
100% of the fair market value of the common stock as of the close of business on
[GRANT DATE], as calculated under the Plan.
All capitalized terms in this Agreement shall have the meaning assigned to
them in this Agreement or the Plan.
The option granted to you is an INCENTIVE STOCK OPTION. The dates on which
the option granted to you will become exercisable, and the number of shares of
common stock, which will become purchasable on each of those dates are as
follows:
<TABLE>
<CAPTION>
Percentage
Number of of Total
Shares Purchasable Option Shares
------------------------------ ----------------------------
<S> <C> <C>
Prior to [1-YEAR AFTER GRANT DATE] 0
[1-YEAR AFTER GRANT DATE] ______ shares (35%)
[2-YEARS AFTER GRANT DATE] ______ shares (35%)
[3-YEARS AFTER GRANT DATE] ______ shares (30%)
</TABLE>
Once exercisable, the option granted hereunder shall, subject to the terms and
conditions of this letter, remain exercisable for a period ending on [10-YEARS
MINUS ONE DAY AFTER GRANT DATE] (the "Option Termination Date"). The incentive
stock option granted to you will be reclassified as non-statutory stock option
if it is not exercised within three (3) months after termination of your
employment for any reason, including early or normal retirement, except
permanent or total disability, as described in Section 6, which is expected to
result in death or to be of continuous duration of 12 months or more, in which
case reclassification will occur one (1) year after disability, or death, in
which case reclassification will not occur.
In making this grant to you of the option to purchase shares, the Plan
Administrator has taken into account an evaluation of your services based on
your responsibilities and performance and your potential future value to the
Company. In the event, however, that in the opinion of the Plan Administrator
(and such opinion will be conclusive in the matter) there should be at any time
or times hereafter while the option remains outstanding a change in the
evaluation of your services and such responsibilities, performance, or potential
future value, the Plan Administrator will have the right thereafter to
terminate, upon such future date as may be specified in a written notice mailed
or personally delivered to you, the option hereunder as to all or any part of
the shares that first become
<PAGE>
Page 2
exercisable after the date specified in such notice. The option as to any shares
not so terminated may be exercised by you, subject to the further provisions of
this letter, at any time on or after their applicable installment dates, but in
no event later than the Option Termination Date.
This grant and exercise of this option are subject to the condition that
this option, together with any other options granted on the same date, will
conform with any applicable provisions of any State or Federal law or regulation
in force either at the time of grant of the option or the exercise thereof. The
Plan Administrator reserves the right pursuant to the condition mentioned in
this paragraph to terminate all or a portion of this option in the event that in
the opinion of said Plan Administrator, with the advice of counsel of the
Company, this option or the exercise thereof, together with any other options
granted as of the same date, does not conform with any such applicable State or
Federal law or regulation.
Your ability to exercise this option and receive the benefits of such
exercise are further contingent upon your agreement that you will remit to the
Company any taxes which the Company is required by law to collect from you. The
Company reserves the right to deduct from the total number of shares purchased
by you pursuant to the exercise of the options the number of shares the fair
market value of which equals any tax withholding obligation which it has upon
your exercise of the option. The Company also reserves the right to require
that any such taxes be remitted to the Company from the proceeds of the sale of
any stock acquired by you through exercise of the option by any stock broker
effecting such sale.
Section 2. The option hereby granted may be exercised at any time as to
all or any of the shares then purchasable in accordance with Section 1 hereof by
payment in full therefor, at the corporate offices of the Company, either in
(a) cash (including checks, bank draft or money order) or (b) by delivering
common stock of the Company owned of record by you, or a combination of common
stock of the Company owned of record by you and cash. The fair market value of
the common stock so delivered will be determined in the same way as fair market
value is determined under the Plan, effective as of the exercise date. The
utilization of common stock for all or part of the option price will be subject
to rules and conditions issued by the Plan Administrator including but not
limited to common stock holding period requirements relating to pyramiding
rules, regulations, principles and practices of the Internal Revenue Service,
the Securities and Exchange Commission and the accounting profession. Upon
receipt of such payment, the Company will issue, sell and deliver fully paid and
nonassessable shares of common stock, having a par value of $.0002 per share, of
the Company in the amount for which payment is so made. As soon as practicable
after such payment, a certificate or certificates representing the shares of
stock so purchased will be issued.
Section 3. You are required to notify the Secretary of the Company, or his
or her designee, in the event you dispose of any of the shares acquired as a
result of the exercise of the incentive stock option granted to you hereunder
within two (2) years from the Grant date or within one (1) year from the date
upon which such shares were acquired by you through the exercise of this option.
Section 4. The option hereby granted is personal to you and is not
assignable except as otherwise provided in Section 7 hereof.
Section 5. If your Service terminates prior to the Option Termination Date
and you are at least 55 years of age and have at least ten years of continuous
service with the Company, the number of shares which were not immediately
purchasable under the schedule in Section 1 at the time of such
<PAGE>
Page 3
termination of Service will continue to become purchasable in accordance with
the schedule contained in Section 1. Such purchase privilege may be exercised by
you at any time but in no event later than the Option Termination Date, and
thereafter will terminate.
Section 6. If your Service terminates prior to the Option Termination Date
by reason of permanent and total disability, determined on the basis of medical
evidence satisfactory to the Company, the number of shares which were not
immediately purchasable pursuant to the schedule contained in Section 1 at the
time of such termination of Service will become immediately exercisable together
with the number of shares that were purchasable by you under the option at the
time of your termination of Service by reason of permanent or total disability.
These purchase privileges may be exercised by you at any time within three (3)
years of the initial date of disability, but in no event later than the
expiration date of your option, and thereafter will terminate.
Section 7. If your Service terminates by reason of your death, the number
of shares which were not immediately purchasable pursuant to the schedule
contained in Section 1 at the time of your death will become immediately
exercisable together with the number of shares which were purchasable by you
under the option at the time of your death. This purchase privilege may be
exercised by your executors or administrators at any time within twelve (12)
months of the date of your death, but in no event later than the expiration date
of your option, and thereafter will terminate.
Section 8. If your Service terminates for any reason other than death,
retirement or permanent and total disability referred to in Sections 5, 6 and 7
above, the option will be limited to the number of shares which were immediately
purchasable by you at the time of termination of your Service, and the option as
to the remaining shares will terminate forthwith. You may exercise these
limited purchase privileges at any time within three (3) months after the
termination of your Service, but in no event later than the expiration date of
your option. This agreement is not intended to place upon you any obligation to
continue, nor to place upon the Company any obligation to continue you, in
Service - notwithstanding that some or all of the shares to which your option
relates are not yet purchasable by you in accordance with the terms of this
agreement, both you and the Company are free to terminate your Service as if
this agreement had never been made.
For purposes of the option, Service shall mean your performance of services
for the Company (or any Parent or Subsidiary corporation, as defined in the
Plan) in your capacity as an employee, a non-employee member of the board of
directors or a consultant or independent advisor.
Section 9. Subject to the provisions of Section 10 hereof, in case
dividends payable in common stock of the Company are declared by the Company or
in case of the subdivision or combination of shares of common stock of the
Company, the number of shares deliverable upon exercise of the privilege to
purchase hereunder will be increased or decreased proportionately, as the case
may be, and appropriate adjustments in the purchase price will be made without
change in the aggregate purchase price, all as determined by the Board of
Directors or the Compensation Committee; provided that no fractions of a share
will be deliverable.
Section 10. In the event of a Change in Control of the Company (as defined
in the Plan) in connection with which this option, to the extent outstanding at
that time but not otherwise fully exercisable, is not continued pursuant to the
terms of the plan for continuation in such circumstances, the outstanding but
then not yet exercisable options shall automatically accelerate so that this
option shall, immediately prior to the effective date of the Change in Control,
become exercisable for all of the
<PAGE>
Page 4
option shares at the time subject to this option and may be exercised for any or
all of those option shares as fully-vested shares of the Company's common stock.
This option shall not accelerate in connection with a Change in Control,
however, if and to the extent: (i) this option is, in connection with the
Change in Control, to be assumed by the successor corporation (or parent
thereof), to be replaced with a comparable option to purchase shares of the
capital stock of the successor corporation (or parent thereof) or to otherwise
continue in effect, in all material respects, pursuant to the provisions of the
Change in Control or (ii) this option is to be replaced with a cash or other
equivalent incentive program of the successor corporation which preserves the
spread existing at the time of the Change in Control on the option shares for
which this option is not otherwise at that time exercisable (the excess of the
fair market value of those option shares over the aggregate option price payable
for such shares) and provides for subsequent pay-out in accordance with the same
option exercise schedule set forth in this agreement.
Immediately following the Change in Control, this option shall terminate
and cease to be outstanding, except to the extent continued under the terms of
the plan as described above or to the extent necessary to allow for the
completion of exercise transactions for which notice of exercise was timely
given in connection with the Change in Control.
If this option is assumed in the Change in Control, then this option shall
be appropriately adjusted, immediately after such Change in Control, to apply to
the number and class of securities which would have been issuable to you in
consummation of the Change in Control if the option had been exercised
immediately prior to such Change in Control, and the appropriate adjustments
shall also be made to the option price; provided the aggregate option price
shall remain the same.
To the extent the option does not accelerate in connection with a Change in
Control, the option shall continue, over your period of Service after the Change
in Control, to become exercisable for the option shares in one or more
installments in accordance with the provisions of this agreement. However,
immediately upon an Involuntary Termination of your Service within eighteen (18)
months following such Change in Control, the option (or any replacement grant),
to the extent outstanding at the time but not otherwise fully exercisable, shall
automatically accelerate so that the option shall become immediately exercisable
for all the option shares at the time subject to the option and may be exercised
for any or all of those option shares as fully vested shares. The option as
accelerated shall remain so exercisable until the earlier of (i) the Option
Termination Date under Paragraph 1 or (ii) the expiration of the one (1)-year
period measured from the date of your Involuntary Termination.
For purposes of this agreement an INVOLUNTARY TERMINATION shall mean the
termination of your Service by reason of:
(A) your involuntary dismissal or discharge by the Company (or
successor corporation) for reasons other than Misconduct, or
(B) your voluntary resignation following a change in your position
with the Company (or Parent or Subsidiary employing you) or successor
corporation which materially reduces your duties and responsibilities, or
a reduction in your level of cash compensation (including base salary,
fringe benefits and target bonus under any corporate-performance based
bonus or incentive programs) by more than fifteen percent (15%), in the
aggregate, provided and only if such change or reduction is effected
without your consent.
<PAGE>
Page 5
MISCONDUCT shall mean the commission of any act of fraud, embezzlement or
dishonesty by you, any unauthorized use or disclosure by you of confidential
information or trade secrets of the Company (or any Parent or Subsidiary) or
successor corporation, or any other reckless conduct or knowing or intentional
misconduct by you that is determined to materially adversely affect (or that is
determined to be likely to materially adversely affect in the future) the
performance of your job functions, in your position with the Company (or any
Parent , Subsidiary or successor). The foregoing definition is not inclusive of
all the acts or omissions which the Company (or any Parent or Subsidiary) or
successor corporation may consider as grounds for your dismissal or discharge.
Section 11. You are not entitled by virtue of your acceptance of this
option letter to any rights of a shareholder of the Company or to notice of
meetings of shareholders or of any other proceedings of the Company.
Section 12. All notices hereunder to the Company shall be delivered
personally or mailed to its corporate offices, attention: Secretary, 1611
Headway Circle, Building 2, Austin, Texas 78754 and all notices hereunder to you
shall be delivered personally or mailed to you at your address noted above.
Such addresses for the service of notices may be changed at any time provided
notice of such change is furnished in advance to the Company or to you, as the
case may be.
Section 13. This option letter and the terms and conditions herein set
forth are subject in all respects to the terms and conditions of the Plan as
approved by the Board of Directors and shareholders, which are controlling. All
decisions or interpretations of the Plan Administrator referred to herein will
be binding and conclusive upon you or upon your executors or administrators upon
any question arising hereunder or under the Plan.
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Page 6
This option letter, when accepted by you, will constitute an agreement between
us as of the date first above written, which shall bind and inure to the benefit
of our respective executors, administrators, successors and assigns.
Very truly yours,
DTM CORPORATION
By:
-----------------------------------------
Secretary
On behalf of the Compensation
Committee of the Board of Directors
Accepted:
,1998
- ------------------------------------
(Date)
- --------------------------------
(Signature)
