EXHIBIT 4.9cccc
WAFERTECH
2004 EMPLOYEE STOCK OPTIONS PLAN
1. PURPOSE
The purpose of the WaferTech 2004 Employee Stock Options Plan (the
"Plan") is to promote the interests of the Company and its shareholders
by attracting and retaining the high-tech talents/professionals of the
Company and its subsidiaries by means of incentives in the form of stock
options.
2. DEFINITIONS
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Committee" shall mean the committee appointed by the Board, in
accordance with Section 3(a) hereof, to administer the Plan.
(c) "Common Stock" shall mean the voting common stock of Taiwan
Semiconductor Manufacturing Company Limited ("TSMC").
(d) "Company" shall mean WaferTech, LLC, a Delaware limited liability
company.
(e) "Employee" shall mean any individual who is employed by the Company.
(f) "Exercise Price" of the options shall be the closing price of the
common shares of TSMC on the date that the options are granted as may be
subsequently adjusted pursuant to Section 8 herein.
(g) "Option" shall mean an option to purchase Common Stock granted
pursuant to the Plan.
(h) "Optionee" shall mean any person who holds an Option pursuant to the
Plan.
(i) "Outside Director" shall mean a non-employee member of the Board who
(1) is not a current employee of the Company; and (2) does not receive
compensation for prior services (other than benefits under a tax-qualified
retirement plan) from the Company during a taxable year in which he or she
serves on the Committee.
(j) "Plan" shall mean this WaferTech 2004 Employee Stock Options Plan as
it may be amended from time to time.
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(k) "Purchase Price" shall mean at any particular time the Exercise Price
times the number of Shares for which an Option is being exercised.
(l) "Share" shall mean one share of authorized Common Stock.
(m) "TSMC Plan" shall mean the TSMC 2004 Employee Stock Options Plan.
3. ADMINISTRATION.
(a) The Committee
The Plan shall be administered by a Committee of Outside Directors that
shall consist of not less than two members, who during the one year prior
to service as an administrator of the Plan, shall not have been granted or
awarded equity securities pursuant to the Plan.
(b) Powers of the Committee
Subject to the provisions of the Plan, the TSMC Plan, and applicable laws
and regulations, the Committee shall have the authority, in its discretion
and on behalf of the Company:
(i) to grant Options;
(ii) to determine the Exercise Price per Share of Options to be
granted;
(iii) to determine the Employees to whom, and the time or times at
which, Options shall be granted and the number of Shares for which
an Option will be exercisable;
(iv) to interpret the Plan;
(v) to prescribe, amend, and rescind rules and regulations relating
to the Plan;
(vi) to determine the terms and provisions of each Option granted
and, with the consent of the holder thereof, modify or amend each
Option;
(vii) to accelerate or defer, with the consent of the Optionee, the
exercise date of any Option;
(viii) to authorize any person to execute on behalf of the Company
any instrument required to effectuate the grant of an Option
previously granted by the Committee;
(ix) with the consent of the Optionee, cancel and regrant an Option
previously granted by the Committee; and
(x) to make all other determinations deemed necessary or advisable
for the administration of the Plan.
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(c) Committee's Interpretation of the Plan
The interpretation and construction by the Committee of any provision of
the Plan or of any Option granted hereunder shall be final and binding on
all parties claiming an interest in an Option granted under the Plan. No
member of the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any Option.
4. PERIOD AND NATURE OF THE OPTION GRANT
The Committee on behalf of the Company may grant the Options in one or
more tranches within one (1) year after the TSMC Plan has become
effective. The actual dates of grant will be determined by the Committee.
Options shall be evidenced by written stock option agreements between the
Optionee and the Company in such form as the Committee shall from time to
time determine. No Option or purported Option shall be a valid and binding
obligation of the Company unless so evidenced in writing.
5. OPTIONEE
Each Optionee shall be a regular full-time Employee of the Company, or in
a subsidiary in which the Company's shareholding with voting rights,
directly or indirectly, is more than fifty percent (50%). Whether an
Employee is entitled to receive Options, and the number of Options to be
received, shall be subject to approval by the Committee, and based on job
grade, performance, contribution, special achievement and/or years of
employment. In connection therewith, the Committee shall seek the advice
and counsel of the Chairman and Compensation Committee of the Board of
Directors of TSMC. The number of Shares subject to Options granted to any
one Optionee in any tranche shall not exceed ten percent (10%) of the
total number Shares subject to Options granted in that tranche, and the
total number of Shares subject to Options to be exercised by any one
Optionee within each fiscal year shall not exceed one percent (1%) of the
outstanding common shares of TSMC at the year-end.
6. MAXIMUM NUMBER OF OPTIONS TO BE GRANTED
The maximum number of Options authorized to be granted with respect to the
Plan shall be Eleven Million (11,000,000) units, with one (1) unit
entitled to subscribe to one (1) Share. The number of Shares for which an
Option is exercisable at any time shall not exceed the number of Shares
remaining available for issuance under the Plan. No Option shall be
granted
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with respect to the Plan, however, if the aggregate number of Shares
issued or issuable to all past and present Optionees under the Plan would
thereupon exceed eleven million (11,000,000 ) Shares, which is the maximum
aggregate number of Shares that have been authorized by TSMC for issuance
under the Plan. The Committee shall consult with a designated officer of
TSMC prior to granting any Options with respect to the Plan to ensure
compliance with the foregoing limitation. The limitations established by
this Section 6 shall be subject to adjustment in the manner provided in
Section 8 hereof upon the occurrence of an event specified therein.
7. TERMS AND CONDITIONS
(a) Exercise Price
The Exercise Price of the Options is defined in Section 2(f) hereof.
(b) Vesting Schedule
An Optionee may not exercise his or her Option for any Shares until the
Option, in regard to such Shares, has vested. Each stock option grant
agreement shall include a vesting schedule in accordance with this Section
which shall show when the Option becomes exercisable. The vesting schedule
shall not impose upon the Company any obligation to retain the Optionee in
its employ or under contract for any period of time or otherwise change
the employment-at-will status of an Optionee who is an employee of the
Company. The Options will not vest in the first two (2) years ("Waiting
Period") and may be exercised in accordance with the following schedule.
Except as may be shortened in the Plan or by the Committee, the options
shall be valid for ten (10) years from the date of grant and may not be
transferred, except by inheritance, enforceable court order, or in
accordance with applicable law, rule or regulation. The following is the
vesting schedule:
Years after Grant Percent Vesting
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2 years 50%
3 years 75%
4 years and after 100%
(c) After the Company grants an Option to an Optionee, the Committee
shall, in its sole discretion, have the right to revoke and cancel
unvested Options in the event that the Optionee commits serious
misconduct or violates his/her employment contract or policies of
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the Company.
(d) Termination of Employment
If an Optionee's employment with the Company is terminated for any reason,
the Optionee shall exercise his/her vested Options in accordance with the
following provisions, subject to the ten-year limit set forth in Section
7(b) above:
(i) Voluntary Termination or Terminated by the Company in Accordance
with applicable state or Federal laws --
If an Optionee's employment by the Company is either voluntarily
terminated by the Optionee or by the Company in accordance with
applicable state or Federal laws, the Optionee's Options vested in
accordance with the schedule set forth in Section 7(b) above must be
exercised within three (3) months from the employment termination
date. Any Options unvested as of the employment termination date or
not exercised within three (3) months from the employment termination
date shall expire and become invalid.
(ii) Retirement --
If an Optionee's employment by the Company is terminated because the
Optionee retires in accordance with the then current policies of the
Company, all Options granted to the Optionee as of the employment
termination date shall completely vest and be exercisable following
the Waiting Period, regardless of the vesting schedule set forth in
Section 7(b) above. The Optionee shall exercise all Options within
one (1) year from the later of: (x) the date of retirement; or, (y)
the end of the Waiting Period, whichever date is later. Any Options
not exercised within the time frame set forth in the immediately
preceding sentence shall expire and become invalid.
(iii) Temporarily on Leave Without Pay --
If the Optionee is approved to be temporarily on leave without pay in
accordance with the then current policies of the Company or
applicable law, rule or regulation, his/her vested Options shall be
exercised within three (3) months from the effective date of the
temporary leave; otherwise, the right to exercise options shall be
deferred until the Optionee's reinstatement. For unvested Options,
the accumulation of years of employment with respect to the vesting
schedule set forth in Section 7(b) above shall suspend during the
period of the Optionee's temporary leave and shall resume after the
Optionee's reinstatement, subject to the ten-year limit set forth in
Section 7(b) above.
(iv) Death --
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If an Optionee dies while employed by the Company, his/her Options
vested in accordance with the schedule set forth in Section 7(b)
above, as of the date of his/her death, shall be exercised by the
Optionee's inheritor within one (1) year from the death of the
Optionee. Any Options unvested upon the death of the Optionee or not
exercised within one (1) year of his/her death shall expire and
become invalid.
(v) Death or Disability Caused by Work Injury --
(1) Regardless of the vesting schedule set forth in Section 7(b)
above, if an Optionee ceases to be employed by the Company due
to any permanent total disability caused by a work related
injury, on such date all Options he/she were granted shall
immediately vest and become exercisable, subject only to the
Waiting Period. The Optionee shall exercise his/her vested
Options within one (1) year from the later of: (x) the date
he/she ceases to be employed by the Company; or, (y) the end of
the Waiting Period, whichever date is later. Any Options not
exercised within the time frame set forth in the immediately
preceding sentence shall expire and become invalid.
(2) Regardless of the vesting schedule set forth in Section 7(b)
above, if an Optionee ceases to be employed by the Company due
to his/her death caused by a work related injury, on such date
all Options they were granted shall immediately vest and become
exercisable by the Optionee's inheritor, subject only to the
Waiting Period. The inheritor shall exercise the Options within
one (1) year from the later of: (x) the death of the Optionee;
or, (y) the end of the Waiting Period, whichever date is later.
Any Options not exercised within the time frame set forth in the
immediately preceding sentence shall expire and become invalid.
(vi) Transfer to Affiliates --
If an Optionee is transferred to an affiliate of TSMC or of the
Company, due to the necessity of the operations of the Company, the
rights of the Optionee and obligations of the Company with respect to
the Options granted shall not be affected by such transfer.
(6) Invalidated Options
Any invalidated options shall be cancelled.
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8. ADJUSTMENTS OF THE EXERCISE PRICE AND NUMBER OF GRANTED OPTIONS
(a) The Exercise Price of each Option shall be subject to adjustment in
accordance with the following formula (to be rounded to the nearest
tenth) upon the occurrence of events relating to changes in paid-in
capital of TSMC, as a result of capitalization of retained earnings or
capital reserves.
NEP = OEP x [N/(N+ n)]
Where: NEP = the Exercise Price after such adjustment
OEP = the Exercise Price before such adjustment
N = the number of outstanding common Shares before issue
(the number of treasury Shares which have not been
transferred or cancelled, or convertible bonds, shall
not be included)
n = the number of new common Shares arising from the
capitalization of retained earnings or capital
reserves
(b) The Exercise Price will not be adjusted in case of issuance of new
Common Stock in connection with mergers involving either the Company or
TSMC.
9. ISSUANCE OF ADDITIONAL OPTIONS
Upon the occurrence of TSMC's capitalization of retained earnings or
capital reserves, in addition to adjusting the exercise price in
accordance with provisions set forth in Section 8(a) above, the Company
will issue additional options in proportion to the increase of paid-in
capital (only integral options will be issued and any fractional options
resulting therefrom will be disregarded) at the adjusted price to holders
of existing unvested or unexercised options, provided that there are
sufficient common shares reserved for granting the options as specified
in the Articles of Incorporation of TSMC.
10. PROCEDURES FOR EXERCISING OPTIONS
(a) Subject to the Company's Insider Trading Policy, except during a
period in which the exercise of Options is not permitted by relevant laws
and regulations, the Optionee may exercise his/her Options in accordance
with the vesting schedule set forth in Section 7(b)
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above by submitting a written notice (the "Exercise Notice") to the
Company.
(b) The Company shall inform the Optionee of the payment needed for
exercising the Options to a designated bank upon the receipt of the
Exercise Notice, and the Purchase Price shall be payable in full in cash.
The Exercise Notice shall not be withdrawn once given.
(c) The Company shall cause TSMC to register the Optionee and his/her
shares in the shareholders record upon confirmation of payment.
11. MISCELLANEOUS
(a) The Plan, and its amendments, shall become effective when the TSMC
Plan is approved by the relevant authority and upon approval from the
Committee.
(b) Any other matters not set forth in the Plan shall be dealt with in
accordance with the applicable laws and regulations by the Committee,
whose decisions regarding the Plan and its administration shall be final.
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