EXHIBIT 4.3
A S M L
_______________________________________________________________________________
TERMS AND CONDITIONS FOR OPTIONS GRANTED
TO MANAGEMENT OF ASML GROUP COMPANIES IN
THE UNITED STATES OF AMERICA UNDER THE ASML
STOCK OPTION PLAN (Version January 2005)
TABLE OF CONTENTS
Related documentation........................................................2
Article 1 - Definitions......................................................3
Article 2 - Scope and Object.................................................5
Article 3 - Allocation of Options............................................5
Article 4 - Acceptance of the Options........................................6
Article 5 - Option Period....................................................6
Article 6 - Exercise Price...................................................7
Article 7 - Transferability of the Option....................................7
Article 8 - Exercise of the Option...........................................7
Article 9 - Dilution of Capital..............................................9
Article 10 - Taxes and Costs.................................................9
Article 11 - Prevention of Inside Trading...................................10
Article 12 - Notices........................................................10
Article 13 - Disputes.......................................................10
Article 14 - Amendments.....................................................11
Related documents
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 MANAGEMENT OF ASML GROUP COMPANIES IN
THE UNITED STATES OF AMERICA UNDER THE ASML
STOCK OPTION PLAN (Version January 2005)
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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
two days after the publication of the
annual results for 2004 being January
21st, 2005;
Application Form : the Stock Options from Performance Related
Bonus 2004 Plan for Senior and Executive
Management (Salary Grades 92 through 95)
of ASML Holding Group Companies in the
United States of America Application Form,
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 January 21st, 2005 up to
and including January 20th, 2008;
Employee : a natural person who on the Allocation
Date is employed by ASML Holding Group
Companies in the United States of America
in a position with job grade 92 through
95, and who is on its payroll or who has
been assigned abroad as an expatriate or
ITA by such ASML Group Company;
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;
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;
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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
Management of ASML Holding Group
Companies in the United States of
America under the ASML Stock Option
Plan version January 2005, including
any modifications subsequently
introduced herein in conformity with
the same;
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 of 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;
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;
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
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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 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.
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.
Article 2 - Scope and Object
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 ASML Stock Option Plan version January 2005.
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. Options shall
be allocated pro rated to the number of Options requested by
Employee on the Application Form, the total number of Options
requested and the maximum number of Options available;
3.2 When submitting a request for the allocation of Options, Employee
must, at Employee's sole discretion, pay to Employer a net amount
equal to USD 2.00 (two United States DOLLARS and zero DOLLAR Cents)
multiplied by the number of Options allocated to such Employee. The
number of Options allocated to such Employee shall depend on the
percentage, determined by Employee at Employee's sole discretion, of
the total
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gross amount of 2004 Performance Related Bonus, divided by
gross USD 4.00 (four United States Dollars and zero DOLLAR Cents).
The aforementioned percentage shall be between 0% and 100% of the
total gross amount of 2004 Performance Related Bonus.
3.3 To be eligible for Options a fully completed and signed Application
Form must have been received by the Stock Option Administration in
Veldhoven, no later than on January 10th, 2005;
3.4 Options shall be allocated on the basis of the Application Form and
pro-rated on an availability basis. For each Option allocated,
Employee shall pay USD 2.00 (two United States DOLLARS and zero
DOLLAR Cents) from Employee's actual net 2004 Performance Related
Bonus amount in cash. In the event that the aforementioned amounts
are insufficient to cover the balance, Employee shall pay any
outstanding balance by a check payable to ASML drawn on a European
Union Bank or a bank as decided by ASML.
Article 4 - Acceptance of the Options
4.1 By handing in 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 in writing of the number of Options
allocated;
4.3 Effective from the Allocation Date an option agreement will come
into existence.
Article 5 - Option Period
5.1 The Option Period shall be 10 (ten) years, counting from the
Allocation Date and shall thus end on January 20th, 2015;
5.2 Options may only be exercised within the Option Period;
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 paragraphs 1 through 3 of this
Article, the Option Period may be extended under the circumstances
as referred to in Article 8.5 by a maximum period of 12 (twelve)
months.
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Article 6 - Exercise Price
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 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 Options may only be exercised after expiration of the Embargo Period.
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
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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
Article 5.1, the Option Period will effectively be prolonged beyond
the period as defined in Article 5.1;
In case of termination of the employment relationship between
Employee and Employer due to Employee's (iii) retirement or (iv)
occupational disability (within the meaning of the Dutch Disablement
Benefits Act [Wet op de Arbeidsongeschiktheidsverzekering]), the
Options may be exercised during the entire Option Period, after the
Embargo Period has expired;
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.
8.6 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;
8.7 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 Article 8, paragraphs 5 and 6, the
Options may be exercised during the Option Period, provided such
exercise is not in conflict with the provisions of paragraphs 1
through 4,
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and paragraph 8 of this Article. If the Options are not exercised
within the Option Period, the Options shall lapse.
8.8 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;
8.9 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 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. Any tax and/or
social insurance consequences resulting from the above shall be 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.
Article 10 - Taxes and Costs
10.1 All taxes and/or social insurance contributions payable as a result
of the Options allocated and/or as a result of Option being owned
and/or exercised 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 insurance benefits as a result of the relinquishment
of specific remuneration elements
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and/or 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;
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.
Article 12 - Notices
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.
Article 13 - Disputes
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 Eindhoven;
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Article 14 - Amendments
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.
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