Exhibit 4.4
BE SEMICONDUCTOR INDUSTRIES N.V.
INCENTIVE PLAN 2005 - 2009
CONTENTS
1. Definitions...........................................................2
2. Purpose and Commencing Date...........................................4
3. Eligibility...........................................................4
4. Notices...............................................................5
5. Amendments............................................................5
6. Governing Law.........................................................6
7. Annual Cash Bonus.....................................................6
8. PSA Units to Employees................................................7
9. SA Units to member of the Supervisory Board .........................10
10. General Provisions Governing Units...................................10
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GENERAL PROVISIONS
1. DEFINITIONS
Unless explicitly stated otherwise, the following terms shall have the
following meaning:
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AFM: Autoriteit Financiele Markten
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Allocation The written agreement between an Employee, a
Agreement: member of the Board of Management or a member of
the Supervisory Board as the case may be as
attached as Schedule to the Plan;
Allocation Date has the meaning ascribed thereto in each
Allocation Agreement;
Annual Cash The amounts of annual cash bonus that may be
Bonus: granted subject to the terms and conditions of the
Plan;
Base Annual 12 times monthly salary including holiday pay (if
Salary: applicable);
Besi Group: The Company and its present and future direct and
indirect 100%-subsidiaries;
Besi's Subsidiaries/ All of the Company's 100% subsidiaries/operating
Operating Entities: entities and its present and future direct and
indirect 100%-subsidiaries/operating entities;
Board of Management: The Company's Board of Management (statutair
bestuur);
Company: BE Semiconductor Industries N.V.;
Eligible Participant In respect of an Annual Cash Bonus and the PSA
Units an Employee (other a member of the
Supervisory Board) and in respect of SA Units a
member of the Supervisory Board;
Employee: Any individual who is, and has for an
uninterrupted period of at least three months,
been employed by the Besi Group;
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Net Income Besi Adjusted net earnings of the relevant entity of
Subsidiary \ the Company to be determined annually by the
Operating Entity: Supervisory Board, based on a proposal from the
Board of Management for the adjusted net earnings;
Net Income Besi: The Company's consolidated net earnings after tax
as appearing from its adopted consolidated annual
accounts;
Net Sales: The Company's consolidated Net Sales as appearing
from its adopted consolidated annual accounts;
New Employee: The Employee who has not been in employment with
the Company in the Plan Year immediately preceding
the current Plan Year;
Performance Stock A conditional right to acquire one or more Shares
Award Units ("PSA depending on certain performance criteria by an
Units"): Eligible Participant;
Plan: This BE Semiconductor Industries N.V. Incentive
Plan 2005-2009;
Plan Year: The fiscal year in which the Plan is operated by
the Company;
PSA Unit Holder: An Eligible Participant who receives a right to
acquire one or more PSA Units depending on certain
performance criteria;
PSA Unit Amount: The maximum number of PSA Units that may be
awarded under the Plan per Plan Year to each
individual Eligible Participant as determined by
the Board of Management;
Selling An Eligible Participant who wishes to sell or
Shareholder: otherwise dispose of one or more Shares;
Share: An ordinary share with a nominal value
(Euro)0.91, in the capital of the Company;
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Stock Award Units A conditional right to acquire one or more Shares
("SA Units"): by a member of the Supervisory Board;
SA Unit Holder: A member of the Supervisory Board who receives a
right to acquire one or more SA Units;
Supervisory Board: the Company's Supervisory Board (raad van
commissarissen); and
Unit Either a PSA Unit or a SA Unit.
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2. PURPOSE AND COMMENCING DATE
2.1 The purpose of the Plan is to secure for the Besi Group and its
shareholders the benefits through profit sharing and stock ownership for
certain Eligible Participants who are expected to contribute to the
Company's future growth and success.
2.2 The Plan governs the granting of Annual Cash Bonuses and/or Units, in
principle once per year, based upon the Company's results over its
financial years from 2004 up to and including 2008.
2.3 The Eligible Participant will not disclose any information about the Plan
(including its conditions) and the Allocation Agreement to any third
parties without obtaining the Company's prior written approval, except for
such filings, or notifications as are mandatorily prescribed by law.
2.4 The commencing date of the Plan is March 24, 2005.
3. ELIGIBILITY
3.1 Annual Cash Bonuses and/or PSA Units may be granted to officers, managers
and key Employees within the Besi Group, working in one or more of the
positions listed below:
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President
Exec. VP Operations
Director Marketing & Sales
Director Global Sourcing
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Finance Technology Board
--------------- ----------------
- -------------------------------------------------------------------------------------------
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
Laurier Datacon Fico Molding Fico Tooling Fico Trim Fico Meco
& Form Singulation Plating
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ----------- ----------- -----------
Marketing Marketing Marketing Marketing Marketing Marketing
& Sales & Sales & Sales & Sales & Sales & Sales
- ----------- ----------- ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
Finance Finance Finance Finance Finance Finance Finance
& Control & Control & Control & Control & Control & Control & Control
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ----------- ----------- -----------
Customer Customer Customer Customer Customer Customer
Service Service Service Service Service Service
- ----------- ----------- ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
Operations Operations Operations Operations Operations Operations Operations
3x NL
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
Development Development Development Operations Development Development Development
KL
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
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Operations
Leshan, China
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3.2 SA Units will be annually granted to members of the Supervisory Board
pursuant to Article 9 hereof. For the avoidance of doubt, except for SA
Units pursuant to Article 9 hereof, members of the Supervisory Board shall
not be awarded Annual Cash Bonuses or PSA Units under this Plan.
4. NOTICES
4.1 Notices by the Company to an Eligible Participant shall be mailed to the
address provided by the Eligible Participant to the personnel or finance
department of the company by which the Eligible Participant is employed.
4.2 Notices by the Eligible Participant to the Company shall be mailed to the
registered address of the Company.
5. AMENDMENTS
5.1 The Board of Management may, with the approval of the Supervisory Board at
any time, and from time to time, modify or amend the Plan in any respect.
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5.2 A modification or amendment of the Plan shall not, without the consent of a
PSA or SA Unit Holder, affect his \ her rights under a PSA Unit or SA Unit
previously granted to him/her.
6. GOVERNING LAW
6.1 This Plan shall be governed by and construed in accordance with the laws of
The Netherlands.
6.2 Any disputes arising out of or in connection with Plan shall be submitted
in first instance to the competent court in the Netherlands.
ANNUAL CASH BONUS
7. ANNUAL CASH BONUS
7.1 The total amount of Annual Cash Bonus, if any, that may be granted to any
individual Employee shall in no event exceed 60% of such Employee's gross
annual salary including vacation allowance (Base Annual Salary) over the
Company's financial year preceding the year in which such Annual Cash Bonus
is granted. The determination of the total Annual Cash Bonus per person
shall be based on 35% of the Besi Group's performance, 35% of the
Employee's company performance and 30% of the Employee's individual
performance.
7.2 The Annual Cash Bonus, if any, will be determined using following elements:
(a) If the Net Income Besi is achieved, the Employee may receive a
maximum of 21% of Base Annual Salary;
(b) If the Net Income Besi subsidiary / Operating entity is achieved, the
Employee may receive a maximum of 21% of Base Annual Salary;
(c) Based on individual performance, the Employee may receive a maximum of
18% of Base Annual Salary.
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7.3 The amount of the Annual Cash Bonus, if any, referred to under 7.2a), will
be based on a percentage of the net income according to following grid:
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% Net Income of Sales 0-1% 1-4% 5-7% 8-9% 10%+
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a) The Besi Group 0 8,5% 14% 19% 21%
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b) Net Income Besi max. 21%
subsidiary/Operating entity
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c) Individual Employee max. 18%
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The 7.2.b) component may be considered at the discretion of the Supervisory
Board in case the operating entity overall achieved a positive Net Income.
7.4 At the discretion of the Supervisory Board, the Board of Management may
grant an Annual Cash Bonus to the Employee of max. 18% of the Base Annual
Salary (7.2.c).
7.5 In the event that an Employee is transferred from a position included in
the table of Article 3 to a position not included in that table, that
Employee will no longer be entitled to any Annual Cash Bonus under this
Plan.
(PERFORMANCE) STOCK AWARD UNITS
8. PSA UNITS TO EMPLOYEES
8.1 At its discretion, the Board of Management may award PSA Units to an
Employee. The PSA Unit Amount shall in the aggregate of the granted PSA
Units not exceed the right to acquire 1.5% of the total outstanding Shares
in the capital of the Company at December 31 of the year prior to the date
of granting, per annum.
8.2 The PSA Unit Amount is determined by the relevant Employee's position in
the BESI Group as depicted in the organizational chart below. In the
organizational chart below the maximum PSA Unit Amount to be granted, on an
annual basis to members of the Board of Management, is as follows:
Chief Executive Officer 50,000
Other Members of Board of Management 35,000
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For each Eligible Employee, who is not member of the Board of Management,
the PSA Unit Amount will be determined by the Board of Management of the
Company annually, before the Allocation Date.
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President
Exec. VP Operations
Director Marketing & Sales
Director Global Sourcing
------------------------------
--------------- ----------------
Finance Technology Board
--------------- ----------------
- -------------------------------------------------------------------------------------------
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
Laurier Datacon Fico Molding Fico Tooling Fico Trim Fico Meco
& Form Singulation Plating
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ----------- ----------- -----------
Marketing Marketing Marketing Marketing Marketing Marketing
& Sales & Sales & Sales & Sales & Sales & Sales
- ----------- ----------- ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
Finance Finance Finance Finance Finance Finance Finance
& Control & Control & Control & Control & Control & Control & Control
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ----------- ----------- -----------
Customer Customer Customer Customer Customer Customer
Service Service Service Service Service Service
- ----------- ----------- ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
Operations Operations Operations Operations Operations Operations Operations
3x NL
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
Development Development Development Operations Development Development Development
KL
- ----------- ----------- ------------ ------------ ----------- ----------- -----------
-------------
Operations
Leshan, China
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However, the value of the PSA Unit Amount granted (value determined as
number of maximum Shares granted to an Employee, to be acquired with the
awarded PSA Units, times the stock price at the date of grant) may not
exceed 60% of the Base Annual Salary of the individual Employee, excluding
members of the Supervisory Board.
8.3 The number of PSA Units, if any, to be awarded to an individual Employee
will be determined by using the following elements:
(a) Besi Net Income, resulting in an award of maximum 35% (thirty five
percent) of the PSA Unit Amount;
(b) Besi Subsidiary / Operating Entity Net Income, resulting in an award
of maximum 35% (thirty five percent) of the PSA Unit Amount;
(c) Individual Employee performance, resulting in an award of maximum 30%
(thirty percent) of the PSA Unit Amount.
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8.4 The number of PSA Units to be awarded to an individual Employee will be
determined according to the following grid:
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% of Net Income resulting 0-1% 1-4% 5-7% 8-10% 10%+
from Net Sales
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a) Besi Group, % of the 0% 15% 25% 30% 35%
maximum PSA Unit Amount
b) Besi Subsidiary/ Max. 35% of the PSA Unit Amount
Operating Entity
c) Individual Employee Max. 30% of the PSA Unit Amount
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The 8.3.b) component may, at the discretion of the Supervisory Board, only
be granted in case the Subsidiary / Operating Entity overall achieved a
positive Net Income.
8.5 The 8.3.c) component mentioned above means that, at the discretion of the
Supervisory Board, the Board of Management may award Employees a maximum of
30% (thirty percent) of the PSA Unit Amount once in any Plan Year.
8.6 At the discretion of the Supervisory Board, the Board of Management may
award a New Employee PSA Units once during any Plan Year, provided that (i)
the amount of PSA Units awarded does not exceed the PSA Unit Amount; (ii)
the Company has notified AFM of its intention to award PSA Units two months
prior to the day on which the PSA Units are to be awarded and (iii) a
consistent policy with awarding PSA Units to New Employees is followed.
8.7 An award of PSA Units pursuant to this Article 8 (Performance Stock Award
Units to Employees) shall be subject to the Company's remuneration policy
or similar arrangement at any time adopted by the Supervisory Board. If
applicable, an award of PSA Units will be qualified as wage for Dutch wage
tax and social security purposes. The amounts of wage tax and social
security contributions due in connection with an award of PSA Units shall
be for the account of the Employee and shall be deducted from the
Employee's salary.
8.8 The statutory directors (statutair bestuurders) of the Besi Besi Group have
to choose forthwith whether or not they will accept the PSA Units to be
awarded to them under the Plan, at the time the Plan is approved by the
Supervisory Board or, as the case may be, at the time the Supervisory Board
approves an amendment of the Plan. The statutory directors are not allowed
to change their choice during the duration of the Plan.
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8.9 An award of PSA Units will vest in accordance with the vesting schedule
contained in the Allocation Agreement.
9. SA UNITS TO THE MEMBERS OF THE SUPERVISORY BOARD
9.1 The number of SA Units to be granted to each member of the Supervisory
Board will be fixed at 4,000 per year as part of the annual remuneration
package.
9.2 SA Units issued pursuant to this Article 9 (Stock Award Units to
Supervisory Board Members), shall be subject to the Company's remuneration
policy or similar arrangement at any time adopted by the Supervisory Board.
If applicable, an award of SA Units will be qualified as wage for
Netherlands wage tax and social security purposes. The amounts of wage tax
and social security contributions due in connection with an award of SA
Units shall be for the account of the relevant member of the Supervisory
Board.
9.3 An award of SA Units will vest in accordance with the vesting schedule
contained in the Allocation Agreement.
9.4 Once during any Plan Year, the Supervisory Board may award a new member of
the Supervisory Board SA Units provided that (i) the Company has notified
AFM of its intention to award SA Units two months prior to the day on which
the SA Units are to be awarded and (ii) a consistent policy with awarding
SA Units to new member of the Supervisory Board is followed.
9.6 The members of the Supervisory Board have to choose forthwith whether or
not they will accept the SA Units to be awarded to them under the Plan.
9.7 An award of SA Units will vest in accordance with the vesting schedule
contained in the Allocation Agreement.
10. GENERAL PROVISIONS GOVERNING UNITS
10.1 The Company will enter into an Allocation Agreement with Eligible
Participants who wish to participate in the Company's capital on the basis
of the Plan. Shares will be delivered to participating Eligible
Participants by the Company in accordance with the Plan and the Allocation
Agreement. The Allocation Agreement will allocate a conditional right to a
participating Eligible Participants to obtain one or more Shares without
consideration. On termination of the Eligible Participant's employment, or
as case may, appointment, the Allocation Agreement will be terminated with
immediate effect without the Eligible Participants receiving any
consideration.
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10.2 In the event of a merger, cessation of stock exchange quotation or takeover
of the Company, the Board of Management will be entitled to terminate all
Allocation Agreements.
10.3 An Eligible Participant will not be permitted to encumber or transfer
ownership of Units or any right to acquire one or more shares pursuant to
the Plan or the Allocation Agreement the right to take up Shares under the
Allocation Agreement, nor to transfer ownership of the Allocation Agreement
as a whole. Rights to acquire Shares under the Allocation Agreement may
only be exercised by the Eligible Participant and his/her heirs.
10.4 Subject to the legal requirements of the various jurisdictions in which a
public market for the Shares may exist and subject to the provisions of
this Article 10 (General Provisions for Governing (Units) a Share acquired
upon the vesting of a Unit shall be tradable on such public market or
markets.
10.5 A Selling Shareholder shall notify the Board of Management in writing of
his intention to sell one or more Shares. In case required, the Eligible
Participant is responsible for notification of the AFM regarding the
intention of trading of the Shares. Furthermore, the Eligible Participant
is obliged at all time to comply with the Company's "Gedragscode inzake
Voorwetenschap" and all other applicable laws, whether relating to insider
trading or otherwise, including the Besi Code.
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