Exhibit 4.4
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Terms and Conditions |
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For Options granted to Employees |
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(Version April 2006 – |
TABLE OF CONTENTS
Related documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 2 | |||
Article 1 | Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 3 |
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Article 2 | Scope and Object. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 5 |
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Article 3 | Allocation of Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 5 |
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Article 4 | Acceptance of the Options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 6 |
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Article 5 | Option Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 6 |
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Article 6 | Exercise Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 7 |
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Article 7 | Transferability of the Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 7 |
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Article 8 | Exercise of the Option. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 7 |
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Article 9 | Dilution of Capital. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 8 |
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Article 10 | Taxes and Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 8 |
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Article 11 | Prevention of Insider Trading. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 9 |
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Article 12 | Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 9 |
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Article 13 | Disputes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 9 |
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Article 14 | Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . | 9 |
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In these option conditions reference is made to the following documents:
- ASML Stock Option Plan (version 2)
- ASML Rules of Conduct concerning Insider Information
These documents may be consulted on the ASML Intranet.
TERMS AND CONDITIONS FOR OPTIONS GRANTED TO EMPLOYEES OF ASML NETHERLANDS B.V. |
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Article 1 - Definitions
In these Option Conditions and the agreements arising from and relating thereto the following terms shall have the meanings as defined in this Article, unless explicitly stated otherwise.
Allocation Date | : | the date of allocation of an Option, being April 21st, 2006; |
Application Form | : | the application form for the Plan for Employees (Salary Grades 81 through 91) of ASML Netherlands B.V. in the Netherlands, on the basis of which Options are allocated to Employees; |
ASML | : | ASML Holding N.V., having its business address at De Run 6501 in Veldhoven, The Netherlands; |
Embargo Period | : | the period from April 21st, 2006 up to and including April 20th, 2007; |
Employee | : | a natural person who on the Allocation Date is employed under an employment agreement with ASML Netherlands B.V. in a position with a job grade 81 through 91, and who is on its payroll or who has been assigned abroad as an expatriate or ITA by ASML Netherlands B.V.; |
Employer | : | ASML or Group Company that employs Employee on the Allocation Date; |
Exercise Price | : | the price for which Option Holder may acquire one Share upon the exercise of one Option; |
Exchange Value | : | the underlying value of one Option determined on the basis of calculation method used by ASML in line with the applicable International Financial Reporting Standards and US GAAP accounting rules for share based remuneration provided to employees; |
Group Company | : | an affiliated company of ASML, in which the affiliation is determined by section 24c of Book 2 of the Dutch Civil Code, irrespective of the jurisdiction of such company and irrespective of the place where it has its registered office; |
Option | : | a right granted by Employer to Option Holder to acquire one Share against payment of the Exercise Price during the Option Period; |
Option Agent | : | the organization to be designated by ASML charged with the implementation of the Option Conditions; |
Option Conditions | : | the present terms and conditions for Options granted to Employees of ASML Netherlands B.V. under the ASML Stock Option Plan version April 2006, including any modifications subsequently introduced herein in conformity with the same; |
TERMS AND CONDITIONS FOR OPTIONS GRANTED TO EMPLOYEES OF ASML NETHERLANDS B.V. |
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Option Holder | : | the holder of an Option, being the person to whom an Option has been allocated in writing and who at the time of allocating of such Option is an Employee under an employment agreement with ASML or who has become the holder of such Option by virtue of being Employee’s heir; |
Option Period | : | the period during which the Option may be exercised; |
Option Rules | : | the ASML Stock Option Plan (version 2) including any modifications subsequently introduced therein in conformity with the same, on which these Option Conditions are based; |
Plan | : | the Stock Options from Holiday Allowance and/or Vacation/ADV-days 2006 Plan for Employees (Salary Grades 81 through 91) of ASML Netherlands B.V. in the Netherlands, including the appropriate Application Form and Option Conditions; |
Retirement | : | retirement for these Option Conditions is defined as (a) leaving the employment of Employer at the age of 55 (fifty five) years or later in case Employee is eligible to (early) retirement payments paid by a State, Federal or private pension fund, or (b) leaving the employment of Employer under the “Rule of 65” without being eligible to (early) retirement payments paid by a State, Federal or private pension fund. The “Rule of 65” determines that Employee is deemed to retire for these Option Conditions in case Employee leaves the employment of Employer at the age of 55 (fifty five) years after 10 (ten) years of continued employment with ASML, a Group Company or its legal predecessors. For every additional year in excess of 55 (fifty five) years of age, Employee is required to have one year less of continued employment, until the age of 65 (sixty five) years. Employee is deemed to retire for these Option Conditions in case Employee leaves the employment of Employer at the age of 65 (sixty five) years with one or less years of continued employment with ASML, a Group Company or her legal predecessors; |
Share | : | an ordinary share with a nominal value of EURO 0.02 (two EURO Cents) in the share capital of ASML, which share is listed on the Euronext Amsterdam (“AEX”) in the Netherlands, or the NASDAQ Stock Market (“NASDAQ”), New York City, New York, USA, which share is acquired by Option Holder by exercising an Option granted under these Option Conditions; |
TERMS AND CONDITIONS FOR OPTIONS GRANTED TO EMPLOYEES OF ASML NETHERLANDS B.V. |
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Termination for Cause | : | Cause shall mean (i) any act of personal dishonesty taken by Employee in connection with his or her responsibilities as Employee and intended to result in a personal enrichment of Employee, (ii) conviction of a felony, (iii) a willful act by Employee that constitutes gross misconduct and is injurious to Employer, and (iv) continued violations by Employee of his or her obligations to Employer which are demonstrably willful and deliberate on his or her part after (a) there has been delivered to Employee a written demand for performance from Employer that describes the basis for the belief that he or she has not substantially performed his or her duties set forth in specific goals to cure such defaults, and (b) he or she has been given 30 (thirty) days during which he or she has been unable to cure such failure to perform his or her duties. For Employees who are resident and/or working in the Netherlands, the term Cause shall have the meaning as stated in section 7:677 in conjunction with section 7:678 of the Dutch Civil Code at that time. |
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The terms defined above in the singular or in the plural shall also comprise the plural and vice versa, unless in the case in concerned it can be inferred otherwise from the text of the Option Conditions.
These Option Conditions are part of the Option Rules and contain the terms and conditions that are applicable to Option Holder pursuant to article IV of the Option Rules.
Option Holder is aware of the fact that the value of the shares may rise or fall, and that ASML does not guarantee that Option Holder will derive any benefit from participating in the Plan.
Nothing in these Option Conditions or related documents by themselves or in combination shall be construed as an expressed or implied contract of employment or a guarantee of continued future employment.
Article 3 - Allocation of Options
3.1 | Options shall be allocated at the request of Employee. The total number of Options allocated to Employee will be determined by ASML on the basis of the gross value of the requested holiday allowance percentage 2006 and/or the requested number of vacation days/ADV-days 2006 for which Employee enrolled on the Application Form divided by the Exchange Value, where a possible pro-ration will be applied resulting from the maximum available Options for the Plan; |
TERMS AND CONDITIONS FOR OPTIONS GRANTED TO EMPLOYEES OF ASML NETHERLANDS B.V. |
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3.2 | When submitting a request for the allocation of Options Employee waives the right to the gross value as mentioned on the Application Form of the requested holiday allowance percentage 2006 and/or the requested number of vacation/ADV-days, which at most equals 8% of his gross annual base salary as per January 1st, 2006, excluding holiday allowance or 13th month payment. Employee thus waives the right to his full or part gross holiday allowance percentage 2006 and/or gross value of the requested number of vacation/ADV-days 2006, where in case of a lack of future rights to vacation/ADV-days 2006 the remaining value will be deducted from his holiday allowance 2006. The number of Options to be allocated is dependent on aforementioned gross value and Section 1 of Article 3 of the Option Conditions and will be calculated by dividing the gross value as mentioned on the Application Form of requested holiday allowance percentage 2006 and/or requested number of vacation/ADV-days 2006 by the Exchange Value on the Allocation Date, where a fraction will be rounded down to the nearest whole number. In case of such rounding, the gross value on the Application Form of the requested holiday allowance percentage 2006 and/or requested number of vacation/ADV-days 2006 will be revised and will be determined to equal the amount of total Exchange Value of the allocated Options on the Allocation Date. |
3.3 | If Employee works in duty rosters which, measured on an annual base, have fewer than 40 working hours per week on average, Employee may request the use of gross base salary for the allocation of Options instead of ADV-days. In doing so Employee will observe the maximum percentage mentioned in this Article; |
3.4 | To be eligible for Options a fully completed and signed Application Form must have been duly received by the Stock Option/Salary Administration in Veldhoven, The Netherlands; |
3.5 | Options shall be allocated on the basis of the Application Form taking into account the maximum number of Options available. |
Article 4 - Acceptance of the Options
4.1 | By submitting the Application Form on which the wish is expressed to participate in the underlying plan, Employee accepts (i) all of the Options that may be allocated, and (ii) the Option Rules and the Option Conditions; |
4.2 | Employee shall be informed within a reasonable term in writing of the number of Options allocated; |
4.3 | Effective from the Allocation Date an option agreement will come into existence. |
5.1 | The Option Period shall be 10 (ten) years, counting from the Allocation Date and shall thus end on April 20th, 2016; |
5.2 | Options may only be exercised within the Option Period after the Embargo Period has ended as determined in Article 8 of these Option Conditions; |
5.3 | Options that have not been exercised within the Option Period shall lapse after the expiration of the Option Period and become null and void; |
5.4 | Notwithstanding the provisions of Sections 1 through 3 of this Article, the Option Period may be extended under the circumstances as referred to in Section 6 of Article 8 of these Option Conditions by a maximum period of 12 (twelve) months. |
TERMS AND CONDITIONS FOR OPTIONS GRANTED TO EMPLOYEES OF ASML NETHERLANDS B.V. |
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The Exercise Price shall be equal to the closing price “cum dividend” of an ordinary ASML share on Euronext, Amsterdam (“AEX”) in the Netherlands on the Allocation Date. For United States residents (other than through being assigned to the United States as an Employee) or citizens, the Euro denominated Exercise Price will be converted into a United States Dollar Exercise Price by taking the Exercise Price defined in the first sentence of this Article and applying the Euro – United States Dollar exchange rate fixing on the Allocation Date as performed by the European Central Bank at or around 14.00 hours C.E.T.
Article 7 - Transferability of the Option
7.1 | The Option shall be strictly non-transferable and may not be encumbered with a pledge; |
7.2 | Devolution by last will or hereditary succession pursuant to the statutory provisions shall, however, not vitiate the Option; |
7.3 | Option Holder shall not be permitted to conclude any transaction in relation to the Options on Euronext Amsterdam, the Netherlands, NASDAQ, New York, United States of America, or any other stock exchange; |
7.4 | In the event of an Option Holder acting in contravention of the provisions of this Article, the Options of such Option Holder shall lapse. |
Article 8 - Exercise of the Option
8.1 | All Options allocated to Option Holder will become exercisable after the Embargo Period ends. |
8.2 | By means of a written request by Option Holder to Employer, Option Holder may exercise all or part of the Options, provided approval of such request to exercise is given by Employer and exercise is not in conflict with other provisions of this Article; |
8.3 | A written request to exercise Options during the Embargo Period shall not be honoured by Employer; |
8.4 | When exercising the Options Option Holder must comply with the “ASML Rules of Conduct concerning Insider Information”, as in force at the time of exercising; |
8.5 | In case of termination of the employment relationship between Employee and Employer due to Employee’s (i) death, or (ii) incapability to act, the Options may be exercised during the entire Option Period, after the Embargo Period has expired. In case the remaining Option Period, measured from the moment of termination for aforementioned reasons, consists of less than 12 (twelve) months, the Option Period will be extended such that the remaining Option Period will be at least 12 (twelve) months counting from the date of the termination. Therefore, if the date of termination for reasons mentioned in the first sentence of this Article, falls within 12 (twelve) months before the end of the Option Period as defined in Section 1 of Article 5 the Option Period will effectively be prolonged beyond the period as defined in Section 1 of Article 5; |
8.6 | In case of termination of the employment relationship between Employee and Employer due to Employee’s (i) Retirement, including early retirement (SVM and SUM) or (ii) occupational disability (within the meaning of the Dutch Act on Work and Income relative to Ability to Work [Wet Werk en Inkomen naar Arbeidsvermogen]), the Options may be exercised during the entire Option Period, after the Embargo Period has expired provided such exercise is not in conflict with the provisions of Sections 1 through 4, and Section 8 of this Article; |
TERMS AND CONDITIONS FOR OPTIONS GRANTED TO EMPLOYEES OF ASML NETHERLANDS B.V. |
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8.7 | If, during the Option Period, Employee is terminated for Cause by Employer or Employee is terminated by Employer on account of another reason imputable to Employee, regardless of whether employment has been terminated, any Options not yet exercised shall lapse forthwith. All Options that have thus become null and void will do so without Employee being entitled to any compensation in this respect from Employer or another Group Company; |
8.8 | In case of termination of the employment relationship, during or after the Embargo Period, between Employee and Employer for reasons other than those mentioned in Sections 5, 6 and 7 of Article 8, the Options may be exercised during the Option Period, provided such exercise is not in conflict with the provisions of Sections 1 through 4, and Section 9 of this Article. If the Options are not exercised within the Option Period, the Options shall lapse. All Options that have thus become null and void will do so without Employee being entitled to any compensation in this respect from Employer or another Group Company; |
8.9 | The Options may be exercised by Option Holder for the total number allocated or in tranches of 100 or multiples thereof (with the exception of the last tranche), with the provision that each exercise must take place within the Option Period, provided such exercise is not in conflict with the provisions of Article 11 of these Option Conditions; |
8.10 | Exercise of the Option shall take place in conformity with the applicable “Procedure for the exercise of ASML Options”. |
Article 9 - Dilution of Capital
9.1 | If at any time the issued capital of ASML increases, for instance as a result of (i) a resolution to issue shares with a pre-emption right for the holders of the Shares at that time outstanding, (ii) a stock dividend or (iii) a capitalisation of reserves, the Exercise Price and/or the number of Options allocated may be adjusted in such a manner as the Board of Management of ASML shall then decide; |
9.2 | The adjustments by the Board of Management referred to in Article 9.1 shall be binding after an independent accountant who is a member of the Netherlands Institute for Registered Accountants [Nederlands Instituut voor Register Accountants] has issued a certificate stating that the adjustments have been determined in a reasonable manner. Adjustment of the Exercise Price and/or the number of Options shall take place on the day preceding the day on which notice was given of the aforementioned resolutions. Possible consequences of such adjustments for the levy of tax, social security premiums, social insurance premiums, medical insurance premiums and income level dependent regulations, shall be entirely for the account of Option Holder; |
9.3 | An adjustment of the Exercise Price and/or the number of Options allocated and the computation upon which the same are based shall be notified as soon as possible to Option Holder in writing. |
10.1 | All taxes levied and social security premiums, social insurance and premiums medical insurance due as a result of the allocation and/or possession and/or exercise of Options by Option Holder, including possible consequences of an amendment of the Option Conditions, shall be entirely for the account of Option Holder; |
10.2 | All possible consequences for pension, including early retirement, and/or social security and/or social insurance benefits and/or income level dependent regulations as a result of the waiver of specific remuneration elements and of Options allocated under this plan, including possible consequences of an amendment of the Option Conditions, shall be entirely for the account of Option Holder; |
TERMS AND CONDITIONS FOR OPTIONS GRANTED TO EMPLOYEES OF ASML NETHERLANDS B.V. |
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10.3 | Option Holder shall be liable for all the costs relating to the exercise of Options, including - but not limited to - costs charged by stock brokers in connection with the acquired Shares resulting from the exercise of Options and the contiguous sale of such Shares; |
10.4 | Costs relating to the issue and/or acquisition of Shares in the capital of ASML shall be for the account of ASML. |
Article 11 - Prevention of Insider Trading
Option Holder who by returning the Application Form accepts the Option Conditions, shall at the same time, be deemed to accept the applicable "ASML Rules of Conduct concerning Insider Information" and to act accordingly.
12.1 | Notices which must be given by ASML to Option Holder pursuant to or in connection with the Option Rules and/or the Option Conditions shall be regarded as correctly addressed if sent to the address of Option Holder as recorded in the Staff Records Department of ASML or the Group Company; |
12.2 | Notices which must be given by Option Holder to ASML pursuant to or in connection with the Option Rules and/or the Option Conditions shall be regarded as correctly addressed if sent to the address of ASML as listed with the Chamber of Commerce, for the attention of the ASML Option Administrator. |
13.1 | The Option Rules, the Option Conditions, the annexes thereto, and all further documents related to the Option Rules and/or the Option Conditions shall be governed by the laws of the Netherlands; |
13.2 | All disputes arising from the Option Rules, the Option Conditions, the annexes thereto, and further documents related to the Option Rules and/or the Option Conditions, shall in the first instance, be settled by the District Court of ‘s-Hertogenbosch. |
14.1 | The Board of Management shall have the power to amend the Option Rules and/or Option Conditions or add further provisions to the same at any time; |
14.2 | Option Holder shall be informed of any amendments or measures as referred to in this Article in good time, in writing. |
TERMS AND CONDITIONS FOR OPTIONS GRANTED TO EMPLOYEES OF ASML NETHERLANDS B.V. |
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