UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CNH INDUSTRIAL N.V.
(formerly FI CBM Holdings N.V.)
(Name of the Issuer)
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Kingdom of The Netherlands
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Not applicable
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(State or Other Jurisdiction of
Incorporation or Organisation)
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(I.R.S. Employer
Identification No.)
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Cranes Farm Road
Basildon
Essex SS14 3AD
United Kingdom
Tel. No.: +44 1268 533000
(Address of Principal Executive Offices)
CNH Global
N.V. Equity Incentive Plan
CNH Global N.V. Directors’ Compensation Plan
Fiat Industrial S.p.A. Long-Term Incentive Plan
CNH Industrial N.V. Directors’ Compensation Plan
(Full Title of the Plan)
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Scott Miller
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Tel.: 212-558-4000
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Roberto Russo
CNH Industrial N.V.
Cranes Farm Road
Basildon
Essex SS14 3AD
United Kingdom
Tel. No.: +44 1268 533000
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF REGISTRATION FEE
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Title of Securities
to be Registered
(1)
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Amount
to be
Registered
(2)
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Proposed
Maximum
Offering
Price
Per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Shares par value €0.01 per share
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23,421,146
(3)
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Not applicable
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$224,664,536
(4)
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$30,644.25
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(1)
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CNH Industrial N.V. (“CNH Industrial”) is offering common shares pursuant to the Fiat Industrial Long-Term Incentive Plan (the “Fiat Industrial Plan”), the CNH Global N.V. Equity Incentive Plan (the
“CNH Global Plan”) and the CNH Global N.V. Directors’ Compensation Plan (the “CNH Global Directors’ Compensation Plan” and together with Fiat Industrial Plan and the CNH Global Plan, the “Rollover Plans”)
following the assumption by CNH Industrial of the obligations under the Rollover Plans in connection with the merger of each of Fiat Industrial S.p.A. (“Fiat Industrial”) and CNH Global N.V. (“CNH”) with and CNH Industrial,
pursuant to the merger agreement by and among CNH Industrial, Fiat Industrial, CNH and Fiat Netherlands Holding N.V. dated November 25, 2012. CNH Industrial is also offering common shares pursuant to the CNH Industrial N.V. Directors’
Compensation Plan (the “CNH Industrial Directors’ Compensation Plan” and together with the “Rollover Plans”, the “Plans”), which was approved by the shareholder and adopted by the Board of Directors of CNH
Industrial on September 9, 2013.
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(2)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover additional common shares which may become issuable by reason of any stock
split, stock dividend, recapitalization, or other similar transaction effected without consideration which results in the increase in the number of the Registrant’s outstanding commons shares.
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(3)
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Represents the number of CNH Industrial common shares available for issuance (i) in connection with obligations (a) assumed by CNH Industrial (a) under the Fiat Industrial Plan based on an exchange ratio
of 1 CNH Industrial common share for each Fiat Industrial ordinary share (the “FI Exchange Ratio”) and (b) under the CNH Global Plan and the CNH Global Directors’ Compensation Plan, based on an exchange ratio of 3.828 CNH
Industrial common share for each CNH ordinary share (the “CNH Exchange Ratio”) and (ii) in connection with CNH Industrial Directors’ Compensation Plan.
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(4)
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Estimated solely for the purpose of calculating the registration fee. The offering price per share of the common shares was calculated based on the average of the high and low prices of the Fiat Industrial ordinary
shares on the
Mercato Telematico Azionario
and on the euro to dollar exchange rate, as reported on Bloomberg, both as of September 25, 2013. The Fiat Industrial ordinary shares was used as a reference because the ordinary shares of Fiat
Industrial have been converted into common shares of Fiat Industrial at the 1:1 FI Exchange Ratio. Pursuant to Rule 457(h) under the Securities Act, the aggregate offering price of the Common Shares to be issued in relation to stock options under
the Plans was calculated based on the weighted average price per share at which the stock options could be exercised as of September 25, 2013.
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EXPLANATORY NOTE
In connection with the merger (the “Merger”) of Fiat Industrial S.p.A. (“Fiat Industrial” or “FI”) and CNH
Global N.V. (“CNH”) with and into CNH Industrial N.V. (“CNH Industrial”, the “Company” or the “Registrant”), pursuant to the terms of a merger agreement entered into by and among CNH Industrial, Fiat
Industrial, CNH and Fiat Netherlands Holding N.V. dated November 25, 2012 (the “Merger Agreement”), CNH Industrial assumed the sponsorship of the Fiat Industrial Long-Term Incentive Plan (the “Fiat Industrial Plan”), the CNH
Global N.V. Equity Incentive Plan (the “CNH Global Plan”) and the CNH Global N.V. Directors’ Compensation Plan (the “CNH Global Directors’ Compensation Plan” and together with Fiat Industrial Plan and the CNH Global
Plan, the “Rollover Plans”), effective as of September 29, 2013 (the “Effective Date”).
On the Effective Date,
in accordance with the terms of the Merger Agreement:
(a)
each option, restricted share unit, performance unit or share appreciation right of Fiat Industrial (the “FI Incentives”) have been converted into an option,
restricted share unit, performance unit or share appreciation right, as applicable, (i) with respect to a number of common shares of the Company, par value €0.01 per share (“Common Shares”) equal to the equivalent number of
ordinary shares of FI, par value €1.57 per share (“FI Ordinary Shares”) subject to such FI Incentive prior to the Effective Date and (ii) at the exercise price per FI Ordinary Share as subject to such FI Incentive
immediately prior to the Effective Date (collectively, as converted, the “FI-Company Incentives”) and
(b)
each option, restricted share unit, performance unit or share appreciation right of CNH (the “CNH
Incentives”) have been converted into an option, restricted share unit, performance unit or share appreciation right, as applicable, (i) with respect to a number of Common Shares equal to the product (rounded down to the nearest whole
number) of (x) the equivalent number of common shares of CNH, par value €2.25 per share (“CNH Common Shares”) subject to such CNH Incentive prior to the Effective Date and (y) the CNH Exchange Ratio (as defined in the
Merger Agreement) and (ii) in the case of an option, at the exercise price per share (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per CNH Common Share of such option immediately prior to the
Effective Date, divided by (B) the CNH Exchange Ratio (as converted, the “CNH-Company Incentives” and, together with the FI-Company Incentives, the “Equity Incentives”);
Furthermore, on September 9, 2013 the CNH Industrial N.V. Directors’ Compensation Plan (the “CNH Industrial Directors’
Compensation Plan” and together with the “Rollover Plans”, the “Plans”) was approved by the shareholder and adopted by the Board of Directors of CNH Industrial.
This Registration Statement on Form S-8 registers the aggregate number of Common Shares that may be issued with respect to the Equity
Incentives and under the CNH Industrial Directors’ Compensation Plan. As of the Effective Time, CNH Industrial assumed all the obligations of Fiat Industrial and CNH, respectively, under the Rollover Plans, including the outstanding Equity
Incentives granted thereunder.
The assumed Equity Incentives shall be subject to the same terms and conditions (including expiration date
and exercise provisions) as were applicable to such CNH Incentives and the FI Incentives prior to the Effective Date.
As of the Effective
Date, (i) the Fiat Industrial Plan has been amended such that all references to FI shall be deemed to refer to the Company; (ii) the CNH Global Plan and the CNH Global Directors’ Compensation Plan have been amended such that all
references to CNH shall be deemed to refer to the Company; (iii) the Fiat Industrial Plan has been amended such that all references to FI Ordinary Shares shall be deemed to refer to Company Common Shares; (iv) the CNH Global Plan and the
CNH Global Directors’ Compensation Plan have been amended such that all references to CNH Common Stock shall be deemed to refer to Company Common Shares; (v) the Fiat Industrial Plan has been amended such that all references to the
Compensation Committee shall be deemed to refer to the Compensation Committee of the Board of the Company and (vi) the CNH Global Plan and the CNH Global Directors’ Compensation Plan have been amended such that all references to the
Committee shall be deemed to refer to the Compensation Committee of the Board of the Company.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A)
PROSPECTUS
Item 1. Plan
Information.
The documents containing the information specified in Part I (plan and registrant information) will be delivered in accordance with Rule
428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”), either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this
Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2. Registrant
Information and Employee Plan Annual Information.
CNH Industrial will provide participants of the Plans, upon written or oral request and without
charge, a copy of the documents incorporated by reference in Item 3 of Part II of this Registration Statement, which are incorporated by reference in the Section 10(a) prospectus, and all documents required to be delivered to employees
pursuant to Rule 428(b) under the Securities Act. Requests for such documents should be directed to CNH Industrial N.V., Cranes Farm Road, Basildon, Essex SS14 3AD, United Kingdom, Attention: Corporate Secretary, telephone number +44 1268 533000.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant incorporates herein by reference the following documents filed (other than, in each case, documents or information deemed to
have been furnished and not filed in accordance with SEC rules) by the Registrant with the SEC:
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(a)
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The prospectus dated June 6, 2013, which forms part of the Company’s Registration Statement on Form F-4 (No. 333-188600);
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(b)
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The description of the Common Shares included or incorporated by reference under Item 1 of the Company’s Registration Statement on Form 8-A (No. 001-36085), as filed by the Company with the SEC on
September 23, 2013 (No. 001-36085).
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(c)
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The Company’s Report of Foreign Private Issuer on Form 6-K, filed with the SEC on September 30, 2013.
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All reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from their respective dates of filing (such documents, and the documents enumerated above, being hereinafter referred to as
“Incorporated Documents”).
Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document 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.
Article 17 of the Articles of Association of the Registrant provides that:
“The company shall indemnify any and all of its directors, officers, former directors, former officers and any person who may have served
at its request as a director or officer of another company in which it owns shares or of which it is a creditor, against any and all expenses actually and necessarily incurred by any of them in connection with the defence of any action, suit or
proceeding in which they, or any of them, are made parties, or a party, by reason of being or having been director or officer of the company, or of such other company, except in relation to matters as to which any such person shall be adjudged in
such action, suit or proceeding to be liable for negligence or misconduct in the performance of duty. Such indemnification shall not be deemed exclusive of any other rights to which those indemnified may be entitled otherwise.”
The Registrant has obtained directors’ and officers’ liability insurance, which, subject to policy terms and limitations, includes
coverage to reimburse the Registrant for amounts that it may be required or permitted by law to pay its directors or officers. In addition, the Registrant expect to enter into indemnification agreements with each of its outside directors.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
See Exhibit Index
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 Securities Act of 1933, as amended (the “Securities
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 this
Registration Statement or any material change to such information in this Registration Statement;
provided
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however
, that
paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-closing effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for
the purpose of determining any liability under the Securities 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.
(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 offering.
B. The undersigned Registrant hereby undertakes
that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefits
plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this 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 Securities Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities 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
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 San Francisco, on the
30
th
day of September, 2013.
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CNH Industrial N.V.
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By:
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/s/ Richard Tobin
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Name:
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Richard Tobin
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Title:
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Chief Executive Officer
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II-1
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Richard Tobin and Massimiliano
Chiara, and each of them, his or her true and lawful attorney-in-fact and agents with full and several power of substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities on
the 30
th
day of September, 2013:
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Statements
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Title
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Chairman
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Sergio Marchionne
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/s/ Richard Tobin
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Chief Executive Officer (Principal Executive Officer)
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Richard Tobin
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/s/ Massimiliano Chiara
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Chief Financial Officer (Principal Financial Officer)
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Massimiliano Chiara
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/s/ Monica Ciceri
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Chief Accounting Officer (Principal Accounting Officer)
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Monica Ciceri
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Director
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John Elkann
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/s/ Mina Gerowin
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Director
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Mina Gerowin
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/s/ Maria Patrizia Grieco
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Director
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Maria Patrizia Grieco
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/s/ Léo Houle
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Director
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Léo Houle
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/s/ Peter Kalantzis
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Director
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Peter Kalantzis
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/s/ John Lanaway
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Director
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John Lanaway
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II-2
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/s/ Guido Tabellini
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Director
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Guido Tabellini
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/s/ Jacqueline Tammenoms Bakker
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Director
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Jacqueline Tammenoms Bakker
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Director
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Jacques Theurillat
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed on by the undersigned as the duly authorized
representative of CNH Industrial N.V. in the United States.
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CNH Industrial N.V.
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By:
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/s/ Richard Tobin
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Name:
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Richard Tobin
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Title:
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Chief Executive Officer
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II-3
INDEX TO EXHIBITS
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Exhibit
No.
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Description
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4.1
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Articles of Association (incorporated herein by reference to Appendix D to the Registration Statement on Form F-4 Filed by FI CBM Holdings N.V. on May 14, 2013)
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4.2
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CNH Global N.V. Equity Incentive Plan
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4.3
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Fiat Industrial S.p.A. Long-Term Incentive Plan
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4.4.
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CNH Global N.V. Directors’ Compensation Plan
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4.5
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CNH Industrial N.V. Directors’ Compensation Plan
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5.1
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Opinion of Freshfields Bruckhaus Deringer LLP as to the legality of the securities being registered
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23.1
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Consent of Reconta Ernst & Young S.p.A.
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23.2
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Consent of Ernst & Young LLP
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23.3
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Consent of Deloitte & Touche S.p.A.
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23.4
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Consent of Deloitte & Touche LLP
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23.5
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Consent of Freshfields Bruckhaus Deringer LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (see page II-2 to this registration statement)
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II-4
Exhibit 4.2
CNH GLOBAL N.V.
EQUITY INCENTIVE
PLAN
CNH GLOBAL N.V. EQUITY INCENTIVE PLAN
1.
Introduction and Purpose
. This CNH Global, N.V. Equity Incentive Plan was adopted by the Board by written consent dated
December 22, 2008 and was subsequently ratified and approved by the stockholders of the Company at the Annual General Meeting of the Company’s stockholders held on March 20, 2009.
The purpose of the Plan is to set forth principles and rules, which govern the grant of Stock-based awards to eligible top performers and key
leaders of the Company (and its Subsidiaries), in order to foster a strong performance culture, to reward the best performers, and to align management and stockholders’ interests in achieving the Company’s financial objectives. The Company
believes that the Plan will also assist in attracting and retaining individuals of outstanding training, experience and ability, and will also ultimately promote the long-term success of the Company.
2.
Definitions
. Unless the context clearly indicates otherwise, the following terms shall have the following meanings:
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(a)
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“Award” means the grant of a right or potential right, as applicable, to a Participant to a receive incentive compensation under the Plan. An Award shall be earned and vested only to the extent its terms and
conditions are satisfied.
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(b)
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“Award Agreement” means the written agreement between the Company and the Participant that sets forth the applicable terms, conditions, and limitations with respect to a particular Award. Each Award Agreement
shall be in such form and shall contain such terms and conditions as determined by the Committee in its sole discretion.
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(c)
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“Board” means the board of directors of the Company.
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(d)
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“Change of Control” means an event described in Section 12 hereof.
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(e)
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“Code” means the Internal Revenue Code of 1986, as amended from time to time. Any reference in the Plan to a specific Section of the Code shall include such Section, any valid regulation and other applicable
authorities promulgated thereunder, and any comparable provision of any future legislation amending, supplementing, or superseding such Section of the Code.
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(f)
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“Committee” means the Corporate Governance and Compensation Committee of the Board.
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(g)
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“Company” means CNH Global, N.V., a public limited liability company, incorporated in and under the laws of The Netherlands, or any successor thereto.
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(h)
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“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time. Any reference in the Plan to a specific Section of
the Exchange
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Act shall include such Section, any valid regulation and other applicable authorities promulgated thereunder, and any comparable provision of any future legislation amending, supplementing, or
superseding such Section of the Exchange Act.
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(i)
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“Fair Market Value” or “FMW” means a price that is based on the opening selling price, closing selling price, actual high, low, or average of the actual high and low selling price, or average selling
prices (weighted or unweighted based on the volume of trading) of Stock reported on the New York Stock Exchange (or such other established securities market) on the applicable date, the trading day immediately preceding the applicable date, the
trading day next succeeding the applicable date, or during a specified period before or after the applicable date, as determined by the Committee in its discretion, or such other price as required by applicable law or regulation.
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(j)
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“Incentive Stock Option” means a Stock Option designed to meet the requirements of Code Section 422.
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(k)
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“Nonqualified Stock Option” means a Stock Option that is not an Incentive Stock Option.
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(l)
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“Parent” means Fiat S.p.A. (or, effective beginning January 1, 2011, Fiat Industrial S.p.A.), the Company’s indirect majority stockholder, or any successor thereto that is the Company’s indirect
majority stockholder.
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(m)
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“Participant” means (i) an employee of the Company or its Subsidiaries or (ii) a consultant or other individual providing services to the Company and its Subsidiaries, who, in each case (A) has
been selected by the Committee to receive an Award under the Plan and (B) to the extent required by the Committee, has executed an Award Agreement.
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(n)
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“Performance Criteria” means one or more pre-established objective performance goals established by the Committee, which may be based one or
more of business criteria, including, but not limited to: trading profit (or operating profit after restructuring); trading cash flow; revenue; revenue growth; earnings before interest and taxes; earnings before interest, taxes, depreciation and
amortization; earnings per share; operating income; pre- or after-tax income; net operating profit after taxes; economic value added (or an equivalent metric); ratio of operating earnings to capital spending; cash flow (before or after dividends);
cash-flow per share (before or after dividends); net earnings; net sales; sales growth; share price performance; return on assets or net assets; return on shareholder equity; return on capital (including return on total capital or return on invested
capital); cash flow return on investment; total shareholder return; cumulative return on net assets employed; improvement in or attainment of expense levels; market share; and improvement in or attainment of working capital levels or other business
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- 2 -
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criteria. Performance Criteria may (i) be based on one or more business criteria that apply to the Participant, the Company as a whole, or any Subsidiary, business unit, division, segment of
the Company, or any combination thereof, (ii) include or exclude (or be adjusted to include or exclude) extraordinary items, the impact of charges for restructurings, discontinued operations and other unusual and non-recurring items, and the
cumulative effects of tax or accounting changes, each determined based on generally accepted accounting principles in the Unites States of America, as in effect from time to time (“GAAP”), or on a non-GAAP basis (such as International
Financial Reporting Standards), and/or (iii) reflect absolute entity performance or a relative comparison of entity performance to the performance of a peer group, index, or other external measure, in each case as determined by the Committee in
its sole discretion.
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(o)
|
“Performance Period” means the period during which the Performance Criteria must be attained, as designated by the Committee in its sole discretion.
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(p)
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“Performance Share” means an Award providing the Participant with a designated number of shares of Stock subject to the attainment of Performance Criteria within the Performance Period and the satisfaction of
such other terms and conditions, as specified by the Committee in the Award Agreement in accordance with Section 10 hereof.
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(q)
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“Performance Share Unit” means an Award, designated as a unit, providing a Participant with the right to receive a designated number of shares of Stock or cash in an amount determined as a function of a
designated number of shares of Stock at a date on or after, and subject to, the attainment of Performance Criteria within the Performance Period and the satisfaction of such other terms and conditions, as specified by the Committee in the Award
Agreement in accordance with Section 10 hereof.
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(r)
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“Person” means any individual, entity or group, including any “person” within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act.
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(s)
|
“Plan” means the CNH Global N.V. Equity Incentive Plan, as may be amended from time to time, including any and all component plans and programs established hereunder pursuant to which Awards are granted.
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(t)
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“Restricted Stock” means an Award providing a Participant with a designated number of shares of Stock subject to the satisfaction of vesting conditions and such other terms and conditions, as specified by the
Committee in the Award Agreement in accordance with Section 9 hereof.
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(u)
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“Restricted Stock Unit” means an Award, designated as a unit, providing a Participant with the right to receive a designated number of
shares of Stock or cash in an amount determined as a function of a designated number of shares
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- 3 -
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of Stock at a date on or after, and subject to, the satisfaction of vesting conditions and such other terms and conditions, as specified by the Committee in the Award Agreement in accordance with
Section 9 hereof.
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(v)
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“SAR” means an Award of a stock appreciation right granted to a Participant pursuant to Section 8 hereof.
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(w)
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“Stock” means a share of common stock of the Company that, by its terms, may be voted on all matters submitted to stockholders of the Company generally.
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(x)
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“Stock Option” means an Award providing a Participant with the right to acquire a designated number of shares of Stock at a certain price that is granted pursuant to Section 7 hereof. The term Stock
Option includes both Incentive Stock Options and Nonqualified Stock Options.
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(y)
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“Subsidiary” or “Subsidiaries” means any corporation or entity of which the Company owns directly or indirectly, at least 50% of the total voting power or in which it has at least a 50% economic
interest, and which is authorized by the Committee to participate in the Plan.
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3.
Administration
. The Plan will be
administered by the Committee consisting of two or more directors of the Company as the Board may designate from time to time, each of whom shall satisfy such requirements under applicable law.
The Committee shall have the discretionary authority to select those individuals who are eligible to participate in the Plan, to determine the
number, type, and amount of Awards to be granted to Participants, to construe and interpret the Plan and any Awards granted thereunder, to establish and amend rules for Plan administration, to change the terms and conditions of Awards at or after
grant (subject to the provisions of Section 18 hereof), to correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Award granted under the Plan, and to make all other determinations which it deems
necessary or advisable for the administration of the Plan.
The Committee or the Board may authorize one or more officers of the Company
to select individuals to participate in the Plan and to determine the number, type, and amount of Awards to be granted to such Participants. Any reference in the Plan to the Committee shall include such authorized officer or officers.
The determinations of the Committee shall be made in accordance with their judgment as to the best interests of the Company and its
stockholders and in accordance with the purposes of the Plan. Any determination of the Committee under the Plan may be made without notice or meeting of the Committee, if in writing signed by all the Committee members, and shall be final and binding
on all interested Persons to the maximum extent permitted under applicable law.
- 4 -
4.
Participants
. Participants may consist of any or all employees of, and consultants or
other individuals providing services to, the Company and its Subsidiaries. Designation of a Participant in any year shall not require the Committee to designate that individual to receive an Award in any other year or to receive the same type or
amount of Award as granted to the Participant in any other year or as granted to any other Participant in any year. The Committee shall consider all factors that it deems relevant in selecting Participants and in determining the type and amount of
their respective Awards.
5.
Shares Available under the Plan
. The Company shall establish the number of shares of Stock reserved
for issuance under the Plan. Stock covered by an Award granted under the Plan shall not be counted as used unless and until actually issued and delivered to a Participant. Accordingly, if there is (a) a lapse, expiration, termination or
cancellation of any Stock Option or other Award outstanding under this Plan prior to the issuance of Stock thereunder or (b) a forfeiture of any Performance Share, Restricted Stock, or Stock subject to Awards granted under this Plan prior to
vesting, then the Stock in respect of or subject to such Awards shall be added to the Stock available for Awards under the Plan. In addition, any Stock covered by a SAR shall be counted as used only to the extent Stock is actually issued to the
Participant upon exercise of the SAR. Finally, any Stock exchanged by a holder of a Stock Option as full or partial payment of the exercise price under any Stock Option exercised under the Plan, any Stock retained by the Company to comply with
applicable income tax withholding requirements, and any Stock covered by an Award which is settled in cash, shall be added to the Stock available for Awards under the Plan.
All Stock issued under the Plan may be either authorized and unissued Stock or issued Stock reacquired by the Company. Stock Options and
unissued Stock may only be issued if authorized pursuant to a resolution of the general meeting of shareholders of the Company (or, if authorized to do so by the general meeting of shareholders, by the Board) authorizing such issuance and excluding
preference rights for existing shareholders if applicable. The authorization shall not be applicable to the issuing of Stock to Participants who exercise a Stock Option. All of the available Stock may, but need not, be issued pursuant to the
exercise of Incentive Stock Options; provided, however, notwithstanding a Stock Option’s designation, to the extent that Incentive Stock Options are exercisable for the first time by the Participant during any calendar year with respect to
Stock whose aggregate Fair Market Value exceeds $100,000, such Stock Options shall be treated as Nonqualified Stock Options.
The Stock
reserved for issuance and the other limitations set forth above shall be subject to adjustment in accordance with Section 13 hereof.
6.
Types of Awards, Payments, and Limitations
. Awards under the Plan shall consist of Stock Options, SARs, Restricted Stock, Restricted
Stock Units, Performance Shares, Performance Share Units, and other Stock-based Awards, all as described below. Payment of Awards may be in the form of cash, Stock, other Awards or combinations thereof as the Committee shall determine, and with the
expectation that any Award of Stock shall be styled to preserve such restrictions as it may impose. The Committee need not require the execution of any such agreement by a Participant. Acceptance of the Award by the respective Participant shall
constitute agreement by the Participant to the terms and conditions of the Award.
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The Committee may (but need not) provide that any Awards under the Plan earn dividends or
dividend equivalents and interest on such dividends or dividend equivalents. Such dividends or dividend equivalents may be paid currently or may be credited to a Participant’s Plan account and are subject to the same terms and conditions,
including, without limitation, the attainment of Performance Criteria, as the underlying Award. Any crediting of dividends or dividend equivalents may be subject to such terms and conditions as the Committee may establish, including reinvestment in
additional Stock or Stock equivalents.
Awards shall be evidenced by an Award Agreement that sets forth the terms, conditions and
limitations of such Award. Such terms may include, but are not limited to, the term of the Award, the provisions applicable in the event the Participant’s employment terminates, and the Company’s authority (subject to the provisions of
Section 18 hereof) to unilaterally or bilaterally amend, modify, suspend, cancel or rescind any Award, including, without limitation, the ability to amend such Awards to comply with changes in applicable law. An Award may also be subject to
other provisions (whether or not applicable to similar Awards granted to other Participants) as the Committee determines appropriate, including provisions intended to comply with applicable securities laws and stock exchange requirements,
understandings or conditions as to the Participant’s employment, requirements or inducements for continued ownership of Stock after exercise or vesting of Awards, or forfeiture of Awards in the event of termination of employment shortly after
exercise or vesting, or breach of noncompetition or confidentiality agreements following termination of employment.
The Committee may
make retroactive adjustments to and the Participant shall reimburse to the Company any cash or equity based incentive compensation paid to the Participant where such compensation was predicated upon achieving certain financial results that were
substantially the subject of an accounting restatement, and as a result of such accounting restatement it is determined that the Participant otherwise would not have been paid such compensation, regardless of whether or not the accounting
restatement resulted from the Participant’s fraud or misconduct. In each such instance, the Company will, to the extent practicable, seek to recover (a) the amount by which the Participant’s cash or equity based incentive compensation
for the relevant period exceeded the lower payment, if any, that would have been made based on the restated financial results, or (b) if in the Committee’s view the Participant engaged in fraud or misconduct that caused or partially caused
the need for the accounting restatement, the total amount of the Participant’s cash or equity based incentive compensation for the relevant period, plus a reasonable rate of interest. In addition to (and not in derogation of) the foregoing:
(y) to the extent required under Section 304 of the Sarbanes-Oxley Act of 2002, as amended, if the Company is required to prepare an accounting restatement due to its material noncompliance, as a result of misconduct, with any financial
reporting requirement under the securities laws, the Company’s chief executive officer and chief financial officer shall reimburse the Company for (i) any bonus or other incentive-based or equity-based compensation received by that
- 6 -
individual from the Company during the 12-month period following the first public issuance or filing with the U.S. Securities and Exchange Commission (whichever first occurs) of the financial
document embodying such financial reporting requirement, and (ii) any profits realized from the sale of securities of the Company during that 12-month period, and (z) to the extent required under Section 10D of the Exchange Act,
effective on or after July 22, 2010, in the event that the Company is required to prepare an accounting restatement due to its material noncompliance with any financial reporting requirement under the securities laws, the Company will recover
from any current or former executive officer of the Company who received incentive based compensation (including Stock Options awarded as compensation) during the 3-year period preceding the date on which the Company is required to prepare an
accounting restatement, the excess of the amount of such incentive based compensation received based on the erroneous data over what would have been paid to the executive officer under the accounting restatement.
The Committee, in its sole discretion, either at the time of grant or by subsequent amendment, and subject to the provisions of Sections 18
and 23 hereof, may, except in the case of Stock Options and SARs, require or permit a Participant to elect to defer amounts or Stock that otherwise would be paid or delivered to the Participant as a result of the exercise or settlement of an Award
under the Plan under such rules and procedures as the Committee may establish under the Plan, and to have any such deferred amounts or Stock credited to one or more accounts established for the Participant by the Committee on the Company’s
books of account.
7.
Stock Options
. Stock Options may be awarded to Participants under such terms and conditions as may be
established by the Committee, except that reload options may not be granted under the Plan. The Committee shall determine the number of shares of Stock subject to each Stock Option and whether the Stock Option is an Incentive Stock Option. The
exercise price for each Stock Option shall be determined by the Committee but shall not be less than the higher of (i) EUR 2.25 or (ii) 100% of the Fair Market Value of the Stock on the date the Stock Option is granted unless the Stock
Option is a substitute or assumed Stock Option granted pursuant to Section 14 hereof. Each Stock Option shall expire at such time as the Committee shall determine at the time of grant. Stock Options shall be exercisable at such time and subject
to such terms and conditions as the Committee shall determine; provided, however, that no Stock Option shall be exercisable later than the tenth anniversary of its grant. The exercise price, upon exercise of any Stock Option, shall be payable by or
on behalf of the Participants to the Company in full by: (a) cash payment or its equivalent; (b) tendering previously acquired Stock purchased on the open market having a Fair Market Value at the time of exercise equal to the exercise
price or certification of ownership of such previously-acquired Stock; (c) to the extent permitted by applicable law, delivery of a properly executed exercise notice, together with irrevocable instructions to a broker to promptly deliver to the
Company the amount of sale proceeds from the Stock Option shares or loan proceeds to pay the exercise price and any withholding taxes due to the Company; and (d) such other methods of payment as the Committee, in its discretion, deems
appropriate. Upon exercise of any Stock Option, the Stock will be issued in the manner as the Company may deem appropriate.
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8.
Stock Appreciation Rights
. SARs may be awarded to Participants under such terms and
conditions as may be established by the Committee. Notwithstanding any other provision of the Plan, the Committee may, in its discretion, substitute SARs which can be settled only in Stock for outstanding Stock Options. The grant price of a
substitute SAR shall be equal to the exercise price of the related Stock Option and the substitute SAR shall have substantive terms (e.g., duration) that are equivalent to the related Stock Option. The grant price of any other SAR shall be equal to
the Fair Market Value of the Stock on the date of its grant unless the SARs are substitute or assumed SARs granted pursuant to Section 14 hereof. A SAR may be exercised upon such terms and conditions and for the term the Committee in its sole
discretion determines, as specified by the Committee in the Award Agreement; provided, however, that the term shall not exceed the Stock Option term in the case of a substitute SAR or ten years in the case of any other SAR, and the terms and
conditions applicable to a substitute SAR shall be substantially the same as those applicable to the Stock Option which it replaces. Upon exercise of a SAR, the Participant shall be entitled to receive payment from the Company in an amount
determined by multiplying (a) the excess (if any) of the Fair Market Value of a share of Stock on the date of exercise over the grant price of the SAR by (b) the number of shares of Stock with respect to which the SAR is exercised. The
payment may be made in cash or Stock, or any combination thereof, at the discretion of the Committee, except in the case of a substitute SAR payment which may be made only in Stock.
9.
Restricted Stock and Restricted Stock Units
. Restricted Stock and Restricted Stock Units may be awarded to Participants under such
terms and conditions as shall be established by the Committee. Restricted Stock and Restricted Stock Units shall be subject to vesting conditions and such other terms and conditions as the Committee determines, including, without limitation, any of
the following:
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(a)
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a prohibition against sale, assignment, transfer, pledge, hypothecation or other encumbrance for a specified period; and
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(b)
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a requirement that the holder forfeit the Restricted Stock or Restricted Stock Units in the event of termination of employment during the period of restriction.
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All restrictions shall expire and the Award shall vest at such times as the Committee shall specify.
10.
Performance Shares and Performance Share Units
. Performance Shares and Performance Share Units may be awarded to Participants under
such terms and conditions as shall be established by the Committee. Performance Shares and Performance Share Units shall be subject to the attainment of Performance Criteria during the applicable Performance Period and the satisfaction of such other
terms and conditions established by the Committee.
Notwithstanding the satisfaction of any Performance Criteria, the Performance Criteria
for the applicable Performance Period and the number of shares of Stock issued or
- 8 -
the amount of cash paid in respect of a Performance Shares Award or Performance Share Units Award may be adjusted by the Committee on the basis of such further consideration as the Committee in
its sole discretion shall determine.
11.
Other Stock-Based Awards
. In addition to the incentives described in Sections 6 through
10 hereof, the Committee may grant other Stock-based incentives payable in cash or Stock, or any combination thereof, under the Plan as it determines to be in the best interests of the Company and subject to such other terms and conditions as it
deems appropriate, as specified by the Committee in the Award Agreement.
12.
Change of Control
. Except as otherwise determined by
the Committee at the time of grant of an Award, upon a Change of Control, all outstanding Stock Options and SARs shall become vested and exercisable; all restrictions shall lapse and all other terms and conditions shall be deemed met on Restricted
Stock and Restricted Stock Units; all Performance Criteria shall be deemed achieved at target levels and all other terms and conditions met on Performance Shares and Performance Share Units; all Restricted Stock Units and Performance Share Units
shall be paid out as promptly as practicable (but in no event later than the March 15th of the year following the year in which the Change of Control occurs, subject to any delay if the calculation of the amount of the payment is not
administratively practicable due to events beyond the control of the Company); and all other Awards shall be paid out in cash or Stock, or in any combination thereof, as determined by the Committee in its discretion, as promptly as practicable (but
in no event later than the March 15th of the year following the year in which the Change of Control occurs, subject to any delay if the calculation of the amount of the payment is not administratively practicable due to events beyond the
control of the Company).
Notwithstanding the foregoing, subject to Section 23 hereof, if an Award provides for the payment of
deferred compensation that is subject to (and not exempt from) Code Section 409A, to the extent a payment in respect of such Award following a Change of Control would not be a permissible distribution event, as defined in Code
Section 409A(a)(2), then the payment shall be made on the earlier of: (a) the date of payment originally provided under such Award; or (b) the date of termination of the Participant’s employment or service with the Company or, in
the case of a “specified employee” (as defined in Code Section 409A), the date that is six months and one day following such termination (or, if earlier, the Participant’s date of death).
For purposes of the Plan, the term “Change of Control” shall mean:
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(a)
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the acquisition by any individual, entity or group, including any Person, of beneficial ownership (as defined in Rule 13d-3 promulgated under the
Exchange Act), directly or indirectly, of more than 50% of the combined voting power of the then outstanding capital stock of the Company that by its terms may be voted on all matters submitted to stockholders of the Company generally (“Voting
Stock”); provided, however, that the following acquisitions shall not constitute a Change of Control: (i) any acquisition directly from the Company (excluding any acquisition resulting from the exercise of a
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conversion or exchange privilege in respect of outstanding convertible or exchangeable securities unless such outstanding convertible or exchangeable securities were acquired directly from the
Company); (ii) any acquisition by the Company, the Parent, or any entity controlled by the Parent; (iii) any acquisition by an employee benefit plan (or related trust) sponsored or maintained by the Company, the Parent, or any entity
controlled by the Parent; or (iv) any acquisition by any entity pursuant to a reorganization, merger or consolidation involving the Company, if, immediately after such reorganization, merger or consolidation, each of the conditions described in
clauses (i) and (ii) of subsection (b) below shall be satisfied; and provided further that, for purposes of clause (ii) above, if (A) any Person (other than the Company, the Parent, any entity controlled by the Parent, or
any employee benefit plan (or related trust) sponsored or maintained by the Company, the Parent, or any entity controlled by the Parent) shall become the beneficial owner of more than 50% of the Voting Stock by reason of an acquisition of Voting
Stock by the Company, and (B) such Person shall, after such acquisition by the Company, become the beneficial owner of any additional shares of the Voting Stock and such beneficial ownership is publicly announced, then such additional
beneficial ownership shall constitute a Change of Control; or
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(b)
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the consummation of a reorganization, merger or consolidation of the Company, or the sale, lease, exchange or other transfer of all or at least 50% of the total gross fair market value of all of the assets of the
Company (with the total gross fair market value of the total assets of the Company and the assets of the Company being sold, leased, exchanged, or transferred each determined without regard to any liabilities associated with such assets), excluding,
however, any such reorganization, merger, consolidation, sale, lease, exchange or other transfer with respect to which, immediately after consummation of such transaction: (i) all or substantially all of the beneficial owners of the Voting
Stock of the Company outstanding immediately prior to such transaction continue to beneficially own, directly or indirectly (either by remaining outstanding or by being converted into voting securities of the entity resulting from such transaction),
more than 50% of the combined voting power of the voting securities of the entity resulting from such transaction (including, without limitation, the Company or an entity which as a result of such transaction owns the Company or all or at least 50%
of the total gross fair market value of all of the assets of the Company (as described in herein), directly or indirectly) (the “Resulting Entity”) outstanding immediately after such transaction, in substantially the same proportions
relative to each other as their ownership immediately prior to such transaction; and (ii) no Person (other than any Person that beneficially owned, immediately prior to such reorganization, merger, consolidation, sale or other disposition,
directly or indirectly, Voting Stock representing more than 50% of the combined voting power of the Company’s then outstanding Voting Stock) beneficially owns, directly or indirectly, more than 50% of the combined voting power of the then
outstanding capital stock of the Resulting Entity; or
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(c)
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upon the approval of a plan of complete liquidation or dissolution of the Company.
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(d)
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Notwithstanding the foregoing and for the avoidance of doubt, the consummation of the “de-merger” transaction, as announced by the Parent on or about April 21, 2010 and effective as of January 1,
2011, shall not constitute a Change of Control.
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13.
Adjustment Provisions
.
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(a)
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In the event of any change affecting the number, class, market price or terms of the Stock by reason of share dividend, share split, recapitalization, reorganization, merger, consolidation, spin-off, disaffiliation of a
Subsidiary, combination of Stock, exchange of Stock, Stock rights offering, or other similar event, or any distribution to the holders of Stock other than a regular cash dividend, the Committee shall equitably substitute or adjust the number or
class of Stock which may be issued under the Plan in the aggregate or to any one Participant in any calendar year and the number, class, price or terms of shares of Stock subject to outstanding Awards granted under the Plan.
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(b)
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In the event of any merger, consolidation or reorganization of the Company with or into another corporation which results in the outstanding Stock of the Company being converted into or exchanged for different
securities, cash or other property, or any combination thereof, there shall be substituted, on an equitable basis, for each share of Stock then subject to an Award granted under the Plan, the number and kind of shares of stock, other securities,
cash or other property to which holders of Stock will be entitled pursuant to the transaction.
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14.
Substitution and
Assumption of Awards
. The Board or the Committee may authorize the issuance of Awards under this Plan in connection with the assumption of, or substitution for, outstanding Awards previously granted to individuals who become employees of the
Company or any Subsidiary as a result of any merger, consolidation, acquisition of property or stock, or reorganization, upon such terms and conditions as the Committee may deem appropriate.
15.
Nontransferability
. Each Award granted under the Plan shall not be transferable other than by will or the laws of descent and
distribution, and each Stock Option and SAR shall be exercisable during the Participant’s lifetime only by the Participant or, in the event of disability, by the Participant’s personal representative. In the event of the death of a
Participant, exercise of any Award or payment with respect to any Award shall be made only by or to the beneficiary, executor or administrator of the estate of the deceased Participant or the Person or Persons to whom the deceased Participant’s
rights under the Award shall pass by will or the laws of descent and distribution. Subject to the approval of
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the Committee in its sole discretion, Stock Options may be transferable to charity or to members of the immediate family of the Participant and to one or more trusts for the benefit of such
family members, partnerships in which such family members are the only partners, or corporations in which such family members are the only stockholders. Members of the immediate family means the Participant’s spouse, children, stepchildren,
grandchildren, parents, grandparents, siblings (including half brothers and sisters), and individuals who are family members by adoption.
16.
Taxes
. The Company shall be entitled to withhold the amount of any tax attributable to any amounts payable or Stock deliverable
under the Plan, after giving notice to the Person entitled to receive such payment or delivery, and the Company may defer making payment or delivery as to any Award, if any such tax is payable, until indemnified to its satisfaction. A Participant
may pay all or a portion of any withholding limited to the minimum statutory amount arising in connection with the exercise of a Stock Option or SAR or the receipt or vesting of Stock hereunder by electing to have the Company withhold Stock having a
Fair Market Value equal to the amount required to be withheld.
17.
Duration of the Plan
. No Award shall be made under the Plan
more than ten years after the date of its adoption by the Board; provided, however, that the terms and conditions applicable to any Award granted on or before such date may thereafter be amended or modified by mutual agreement between the Company
and the Participant, or such other Person as may then have an interest therein.
18.
Amendment and Termination
. The Board or the
Committee may amend the Plan from time to time or terminate the Plan at any time. However, unless expressly provided in an Award Agreement or the Plan, no such action shall reduce the amount of any existing Award or change the terms and conditions
thereof without the Participant’s consent; provided, however, that the Committee may, in its discretion, substitute SARs which can be settled only in Stock for outstanding Stock Options in accordance with Section 8 hereof, and may require
an Award be deferred pursuant to Section 6 hereof, without a Participant’s consent; and further provided that the Committee may amend or terminate an Award to comply with changes in applicable law without a Participant’s consent.
The Company shall obtain stockholder approval of any Plan amendment to the extent necessary to comply with applicable laws, regulations, or
stock exchange rules.
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19.
Other Provisions
.
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(a)
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In the event any Award under this Plan is granted to a Participant who is employed or providing services outside the United States and who is not compensated from a payroll maintained in the United States, the Committee
may, in its sole discretion: (i) modify the provisions of the Plan as they pertain to such individuals to comply with applicable foreign law, regulation or accounting rules consistent with the purposes of the Plan; and (ii) cause the
Company to enter into an agreement with any local Subsidiary pursuant to which such Subsidiary will reimburse the Company for the cost of such equity incentives.
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(b)
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Neither the Plan nor any Award shall confer upon a Participant any right with respect to continuing the Participant’s employment or service with the Company or any of its Subsidiaries; nor interfere in any way with
the Participant’s right or the Company’s or a Subsidiary’s right to terminate such relationship at any time, with or without cause, to the extent permitted by applicable laws and any enforceable agreement between the Participant and
the Company or a Subsidiary, as applicable.
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(c)
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No fractional shares of Stock shall be issued or delivered pursuant to the Plan or any Award, and the Committee, in its discretion, shall determine whether cash, other securities, or other property shall be paid or
transferred in lieu of any fractional shares of Stock, or whether such fractional shares or any rights thereto shall be canceled, terminated, or otherwise eliminated.
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(d)
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In the event any provision of the Plan shall be held to be illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining parts of the Plan, and the Plan shall be construed and enforced
as if such illegal or invalid provisions had never been contained in the Plan.
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(e)
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Notwithstanding any provision to the contrary, the Company shall have no liability to deliver any Award or make any other distribution of benefits under the Plan unless such delivery or distribution would comply with
all applicable laws (including, without limitation, the requirements of the United States Securities Act of 1933, as amended, and the Exchange Act), and the shares of Stock in respect of such Award are authorized for listing on the New York Stock
Exchange.
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(f)
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Except as otherwise provided in any Award Agreement or as expressly set forth herein, a Participant shall have no rights as a stockholder of the Company until he or she becomes the holder of record of the shares of
Stock.
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(g)
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Payments and other benefits received by a Participant under an Award made pursuant to the Plan generally shall not be deemed a part of a Participant’s compensation for purposes of determining the Participant’s
benefits under any other employee benefit plans or arrangements provided by the Company or a Subsidiary, unless the Committee expressly provides otherwise in writing or unless expressly provided under such other plan or arrangement.
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20.
Governing Law
. Subject to Section 19(a) hereof, the Plan and any actions taken in
connection herewith shall be governed by and construed in accordance with applicable federal law of the United States of America and, to the extent not pre-empted thereby or inconsistent therewith, the laws of the State of Delaware, United States of
America, without regard to any jurisdiction’s conflict of laws principles. BY ACCEPTING ANY AWARD UNDER THE PLAN, THE PARTICIPANT EXPRESSLY AND IRREVOCABLY AGREES TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED IN
WILMINGTON, DELAWARE, UNITED STATES OF AMERICA IN RESPECT OF ANY MATTER RELATING THE PLAN THAT IS NOT OTHERWISE ARBITRATED OR RESOLVED IN ACCORDANCE WITH SECTION 21 HEREOF, INCLUDING, WITHOUT LIMITATION, ANY ACTION OR PROCEEDING TO COMPEL
ARBITRATION OR TO ENFORCE AN ARBITRATION AWARD.
21.
Arbitration
. Any and every dispute or difference arising under, or in relation
to the Plan, including any dispute or difference as to the validity, meaning or effect hereof, shall be finally settled by arbitration in Wilmington, Delaware, United States of America under the Rules of the United States Federal Arbitration Act.
The arbitration award shall be final and binding and shall deal with the question of the costs of arbitration and all matters relating thereto. The arbitrator is not empowered to award damages in excess of reasonable actual damages.
22.
Unfunded Plan
. Unless otherwise determined by the Committee, the Plan shall be unfunded and shall not create (or be construed to
create) a trust or a separate fund or funds. The Plan shall not establish a fiduciary relationship between the Company and any Participant or other Person. To the extent any Person holds any rights by virtue of an Award under the Plan, such right
(unless otherwise determined by the Committee) shall be not greater than the right of an unsecured general creditor of the Company.
23.
Code Section 409A
. Awards granted under the Plan generally are intended to be exempt from Code Section 409A; provided,
however, notwithstanding any contrary provision of the Plan or any agreement or notice governing any Award, the following provisions shall apply if and to the extent any payment made pursuant to an Award is subject to (and not exempt from) Code
Section 409A:
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(a)
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Such payment shall comply with Code Section 409A and, accordingly, to the maximum extent permitted, the Plan shall be interpreted, and such payment shall be made under such other conditions determined by the
Committee that cause such payment, to be in compliance with Code Section 409A.
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(b)
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A termination of employment shall not be deemed to have occurred for purposes of any provision of the Plan or an Award providing for the payment of any amounts upon or following a Participant’s termination date
unless such termination is also a “separation from service” within the meaning of Code Section 409A, applying the default rules thereof.
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- 14 -
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(c)
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With respect to any payment that is otherwise payable upon a Participant’s separation from service, in the event the Participant is a “specified employee” (as defined in Code Section 409A), any such
payment that would otherwise have been payable in the first six months following the Participant’s separation from service date will not be paid to the Participant until the date that is six months and one day following the Participant’s
separation from service date (or, if earlier, the Participant’s date of death), with any such deferred payments being paid in a lump sum; provided that, thereafter, the remainder of any such payments shall be payable in accordance with the
terms of the Plan or the Award Agreement, as the case may be.
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(d)
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Whenever a payment under the Plan or an Award Agreement specifies a period within which such payment may be made, the actual date of payment within the specified period shall be within the sole discretion of the
Committee.
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(e)
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In no event shall any payment under the Plan that constitutes “deferred compensation” for purposes of Code Section 409A be offset by any other payment pursuant to the Plan or otherwise.
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(f)
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To the extent required under Code Section 409A, (i) any reference herein to the term “Plan” shall mean this Plan and any other plan, agreement, method, program, or other arrangement, with which this
Plan is required to be aggregated under Code Section 409A, and (ii) any reference herein to the term “Company” shall mean the Company and all Persons with whom the Company would be considered a single employer under Code
Section 414(b) or 414(c).
|
In such case, if the Plan or the terms of an Award Agreement fail to meet the requirements
of Code Section 409A with respect to such Award, then such Award shall remain in effect and be subject to taxation in accordance with Code Section 409A and the Committee may accelerate distribution or settlement of an Award in accordance
with Code Section 409A. The Company and its Subsidiaries shall have no liability for any tax imposed on a Participant under Code Section 409A, and if any tax is imposed on a Participant, the Participant shall have no recourse against the
Company and its Subsidiaries for payment of any such tax. Notwithstanding the foregoing, if any modification of an Award causes the Award to be deferred compensation under Code Section 409A, the Committee may rescind such modification in
accordance with Code Section 409A.
Notwithstanding any provisions of this Plan, the Company and its Subsidiaries do not guarantee to
any Participant or any other Person with an interest in an Award that any Award intended to be exempt from Code Section 409A shall be so exempt, nor that any Award intended to comply with Code Section 409A or Code Section 422 shall so
comply.
- 15 -
24.
Successors and Assigns
. The Plan shall be binding on the Company and all Participants
and their respective heirs, executors, agents, trustees, administrators, successors and assigns.
25.
Gender, Singular, Plural,
Captions
. Where the context of the Plan permits, words in the masculine gender shall include the feminine gender, the plural form of a word shall include the singular form, and the singular form of a word shall include the plural form. In
addition, the captions of the Sections of the Plan are for convenience only and shall not control or affect the meaning or construction of any of its provisions.
26.
Effective Date and Applicability
. This Plan shall be effective as of December 22, 2008, as adopted by the Board by written
consent, and the provisions contained herein shall apply with respect to any and all Awards granted on or after July 20, 2010.
- 16 -
Exhibit 4.3
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General Meeting
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of Shareholders
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5 April 2012
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Reports on “Compensation
and own shares”:
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Incentive Plan, resolutions pursuant to Article 114-
bis
of Legislative Decree 58/98
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(Item 3 b. on the Agenda)
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3. Compensation and own shares:
b. Incentive Plan, resolutions pursuant to Article 114-
bis
of Legislative Decree 58/98
Shareholders,
Pursuant to Article 114-
bis
of the
Legislative Decree February 24, 1998 no. 58 (the “
Financial Act
”), we hereby submit for your approval the motions approved by the Board of Directors on February 22, 2012.
Specifically, these motions relate to the adoption of an equity incentive plan aimed at providing a long term based incentive with performance and retention
component to the overall compensation package of the Beneficiaries, as better identified below, thereby providing the Group with an instrument that is more closely aligned to the current competitive environment in the capital goods business globally
and to the specific needs of the Group and long term shareholder interests.
The Plan (as defined below) takes the form of stock grants and entitles the
relevant beneficiaries to receive, under specific conditions and without cash consideration, a number of Fiat Industrial S.p.A. (the “
Company
”) ordinary shares (the “
Shares
”) equivalent to the number of rights
granted (the “
Rights
”).
The first part of the Plan is the Company Performance Long Term Incentive (“
Company Performance
LTI
”) and provides for the allocation of a maximum 3 million Rights – subject to the achievement of pre-established financial performance objectives for the performance period starting on January 1, 2012 and ending on
December 31, 2014, and continuation of a professional relationship with the Group.
The second part of the Plan is the Retention Long Term Incentive
(“
Retention LTI
” and together with the Company Performance LTI, the “
Plan
”) with an allocation of a maximum of 3 million Rights, subject to certain levels of individual performance and continuation of a
professional relationship with the Group.
The Chairman of the Company, Mr. Sergio Marchionne, is beneficiary of both parts of the Plan.
This report was prepared in conformity with the instructions for disclosure provided as a schedule to the Issuers’ Regulation no. 11971 issued by Consob
on May 14, 1999 (the “
Issuers’ Regulation
”).
Definitions
For the purpose of this Report the terms listed below shall have the respective meaning set forth in this Section:
Beneficiaries
: the beneficiaries of (either or both parts of) the Plan, including the Company’s Chairman, Mr. Sergio Marchionne
Company
: Fiat Industrial S.p.A.
Company Performance
LTI
: the part of the Plan directly linked with the achievement of pre-established financial performance objectives for the performance period starting on January 1, 2012 and ending on December 31, 2014
Compensation Committee
: the Nominating, Compensation and Sustainability Committee of the Company
Financial Act
: Legislative Decree February 24, 1998 no. 58, as subsequently amended
Issuers’ Regulation
: Issuers’ Regulation issued by Consob on May 14, 1999 and its Annexes, as subsequently amended
Plan
: the Company Performance LTI and the Retention LTI
Retention LTI
: the part of the Plan directly linked with the continuing employment relationship with the Company throughout the vesting period
Rights
: the rights granted to the beneficiaries that, upon fulfillment of the vesting conditions provided for in the Plan, will convert in an equal
number of Shares to be physically delivered to the Beneficiaries
Share(s)
: the Company’s ordinary share(s)
Beneficiaries
The Beneficiaries of the Plan will be
approximately one hundred and fifty executives holding key positions which have a significant impact on business results, excluding individuals being the beneficiaries of current or future financial
2
instruments-based incentive schemes assigned by CNH Global N.V. A minor percentage of the Beneficiaries of the Retention LTI would be selected on a discretionary basis in order to provide
incentive to individuals (i) whose particular performance is critical to the success of the Group, or (ii) who hold exceptional leadership requisites.
The Chairman of the Company, Sergio Marchionne, is beneficiary of both parts of the Plan.
The other executives will be selected by the Chairman of the Company in accordance with criteria approved by the Compensation Committee, among employees of
the Company and/or its subsidiaries, consistent with organizational criteria and contribution of such beneficiaries to the economic and financial results of the Company and or its subsidiaries.
Should all or part of the Beneficiaries must be identified on a name basis, in accordance with Scheme 7 of Annex 3A of the Issuers’ Regulation, the
Company will inform the market as prescribed by Article 84-
bis
, paragraph 5 of the Issuers’ Regulation.
Reasons for the Plan
In general, incentive plans based on financial instruments motivate individuals in key positions to achieve Company’s and Group’s financial
performance targets, correlating that incentive to the medium-to long-term value created for shareholders. The level of commitment is further strengthened when vesting of rights is subject to the achievement of specific financial performance targets
over a predetermined reference period.
At the same time, motivating management by granting instruments that are representative of the Company’s
value contributes to the alignment of the interests of management with those of shareholders, promoting a sense of identification with the Group and significantly enhancing retention as a result.
Retention is also sought through the use of incentives, which are subject to continued professional relationship with the Group.
As anticipated above, the Plan is aimed at providing the Group with an instrument that is more closely aligned to the current competitive environment in the
capital goods sector globally and to the specific needs of the Group and long term shareholders’ interests. In particular, long-term incentive schemes incentivize individuals in key positions toward the achievement of Company and Group
performance targets through the alignment of long-term incentives to value creation for shareholders.
Finally, with reference to the criteria used to
determine the time frame of the Plan, it should be noted that the Plan will be executed over a time period of three years, which is generally considered to be the most appropriate to get a grounded and meaningful measure of the Company’s and
Group’s performance. With these objectives, the Board of Directors, advised by the Compensation Committee, constantly monitors the effectiveness of existing incentive schemes in relation to the global market and, in particular, the industries
in which the Group operates.
The importance of management and the stability of that management in a period of significant volatility have been key
factors in the success of the Group’s companies since 2004 and will have increasing importance in the future. Having effective tools for motivation and retention, therefore, is an essential competitive factor.
For the reasons stated above and upon proposal by the Compensation Committee, the Board determined that it is significantly in the Company’s and
Group’s interests to increase the incentive and retention capability through the adoption of a long-term incentive plan.
The
Company Performance
LTI
consists primarily of a performance based component and is linked to Group’s pre-established performance targets. The vesting period is through the end of the performance period (i.e., the Board of Directors’ approval of the 2014
consolidated financial statements) and is based on cumulative three-year results. Therefore, the Company Performance LTI Plan will be based on a one-time grant covering 2012-2014 period: this part of the Plan will be vested at the end of the
performance period and will be based on cumulative three-year results, it being understood that all targets assigned to the Beneficiaries should be cumulatively met in order to fulfill the vesting conditions.
The
Retention LTI
has a retention-only component and is linked to individual contribution. The vesting period is through the third anniversary of said
Retention LTI, being understood that one-third of this component will be vested on each grant anniversary over the three years. Under the Plan, it is envisaged that the Company will assign three different cycles of Retention LTI: the first award
would occur in 2012 (and it will vest over the 2012-2015 period), the second in 2013 (and it will vest over the 2013-2016 period), and the third in 2014 (and it will vest over the 2014-2017 period).
3
For more detailed information on the characteristics of the financial instruments and the vesting period, please
refer to the relevant paragraph below.
The performance targets and the other criteria relating to the Company Performance LTI and the Retention LTI will
be set forth (and from time to time amended according to market conditions) by the Chairman of the Company, in accordance with criteria approved by the Compensation Committee.
The maximum amount of Rights to be granted to each Beneficiary, other than the Chairman of the Company, will be set forth by the Chairman of the Company but
it is not expected to exceed the equivalent at the grant date of the annual fixed compensation of each Beneficiary.
The amount of Rights granted to the
Chairman of the Company is submitted to the approval of the shareholders’ meeting. For further information on this amount, please refer to paragraph “Characteristics of the financial instruments” below.
The Shares attributed under the Plan are ordinary Shares issued by the Company; no financial instruments will be issued by the Company, the Company’s
subsidiaries or the Company’s parent company or by any third party.
The Plan is in line with latest international best practice and would take the
form of stock grants which are based, for the portion whose vesting is subject to the achievement of performance objectives, on performance measurement tools that are consistent with current market conditions and linked to key performance indicators
for the Group.
Tax effects of the Plan benefits are the responsibility of the Beneficiaries.
Given its characteristics, no special funds (including the special fund for the encouragement of worker participation, referred to in Article 4, paragraph
112, of the Italian Law December 24, 2003 no. 350) would support the Plan.
Procedure for approval of the Plan
The Plan was discussed and proposed by the Compensation Committee, composed of R. Liberatore (independent director), J. Zhao (independent director) and by its
Chairman, J. Elkann: the Compensation Committee examined the matter during its meetings held in October 2011 and February 2012.
On February 22,
2012, the Board of Directors, with Sergio Marchionne abstaining during the discussion and approval of the Plan exclusively in his quality as Beneficiary, unanimously approved the Compensation Committee’s proposal and submitted the proposed Plan
to Shareholders for approval, pursuant to Article 114-
bis
of the Financial Act.
The entire process of definition of the characteristics of the
Plan was developed in a collective manner with the propositional and consulting support of the Compensation Committee, in compliance with the recommendations of the Corporate Governance Code of listed companies promoted by Borsa Italiana S.p.A. and
with the best corporate practices in this matter.
The Official Price published by Borsa Italiana for the Company Shares on February 22, 2012 was
€8.118.
Should you approve this proposal, the grant of the Rights to the Chairman of the Company under the Plan would have immediate effect while,
as required by law, information on the Beneficiaries and actual number of financial instruments granted in relation to the Company Performance LTI and the Retention LTI will be communicated to the market pursuant to the applicable laws and
regulations.
The Plan will be administered by the Board of Directors of the Company, which has all necessary or appropriate powers in order to implement
the Plan. Said powers include, without limitation, the power to establish any other terms and conditions for the implementation of the Plan, provided that such terms and conditions do not contravene to the general terms and conditions approved by
the shareholders’ meeting.
Characteristics of the financial instruments
The Plan (the Company Performance LTI and the Retention LTI) is based on the granting of Rights, which upon vesting conditions being fulfilled will entitle the
Beneficiaries to receive an aggregate maximum of 6 million Company Shares. A separate section of the Plan is dedicated to the Chairman with features focused on maximizing his retention and his commitment to achieving the Business Plan
objectives. To attain such objectives, Mr. Marchionne’s Company Performance LTI for the three years of the duration of the Plan (2012-2014) will result in a one-time grant of 1 million Rights.
4
The Chairman of the Company will be beneficiary of the Retention LTI Plan with an even more relevant retention
value for the Company; this part of the Plan will be equal to 1.1 million Rights awarded, upon your approval of this Report, with a one-time grant, and vesting one third each, upon Mr. Marchionne still being in his position of Chairman of
the Company on February 22, 2013, February 22, 2014, and February 22, 2015, respectively.
A maximum of 3.9 million Rights would
be available for allocation to the Beneficiaries, other than the Chairman of the Company.
Of the above mentioned 3.9 million Rights, approximately
1.9 million would be granted over the three cycles under the Retention LTI and approximately 2 million for a one-time grant covering a three year performance period 2012-2014 under the Company Performance LTI.
With regard to the Company Performance LTI, Rights would vest subject to the achievement of pre-established financial performance targets for the performance
period starting on January 1, 2012 and ending on December 31, 2014 and remaining in office or upon the continuation of the professional relationship with the Group, as the case may be, until approval of the 2014 consolidated financial
statements by the Board of Directors; the Rights will be vested in a single tranche upon approval of the 2014 consolidated financial statements by the Board of Directors.
With regard to the Retention LTI, Rights would vest solely subject to the Beneficiaries continued professional relationship with the Group through the vesting
period of each cycle; the Rights will be exercised ratably upon each of three anniversary dates of the grant.
The Plan is to be serviced through treasury
Shares bought on the market rather than through the issue of new Shares and, therefore, would have no dilutive effects. The Company will purchase treasury Shares sufficient to fully service the Plan hereby submitted for your approval.
Specific rules (involving acceleration or forfeiting of the Rights) apply to certain cases of early termination of the relationship, such as, for example, a
change of employer within the Group, retirement or death of the Beneficiary.
Other conditions of the Plan include, among others, specifically
(i)
the right of the Company to substitute, in whole or in part, Shares vested under the Plan with a cash payment calculated on the basis of the Official Price of those Shares published by Borsa Italiana on the date of vesting
fulfillment,
(ii)
the discretion of the Chairman of the Company to determine, on one or more occasions, the number of Rights to be granted to each Beneficiary, as well as to reassign any Rights forfeited due to termination of the
employment relationship.
Rights relating to the Plan are granted to the Beneficiary only and are non-transferable, except by inheritance once vested,
while the Shares received will not be subject to any restrictions other than legal restrictions relating to the use of privileged information. The Board of Directors may set trading restrictions for periods immediately prior to key dates in the
corporate calendar.
On February 22, 2012 the preliminary estimate of the annual non-cash cost of the proposed Plan was approximately
€48.7 million for the duration of the Plan. Those costs will be recalculated on the date that the proposals, if approved, become effective, on the basis of the price of Company Shares and the stated vesting conditions. For the part of the
Plan relating to the Chairman of the Company, that date shall be the date of Shareholders’ approval. For the granting of the maximum 3.9 million Rights to other executives, that date shall be the effective grant date. For accounting
purposes, the cost calculated on the grant date is recognized on a pro rata basis over the vesting period as the vesting conditions are met.
In addition
to the proposed Plan that is being submitted for your approval, the Company does not have other incentive plans in place for directors and executives.
February 22, 2012
On behalf of the Board of Directors
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/s/ John Elkann
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John Elkann
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CHAIRMAN OF THE NOMINATING,
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COMPENSATION AND SUSTAINABILITY COMMITTEE
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5
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SHARE-BASED PAYMENT PLANS
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Table 1 of schedule 7, Annex 3A of Regulation no. 11971/1999
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Date: 22 February 2012
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BOX 1
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Financial instruments other than options
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Section 2
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Newly granted instruments based on decision of:
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x
Board of Directors for proposal to Shareholders
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competent body in Implementation of Shareholder resolution
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Name or category
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Position
(required only for
individuals named)
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Date of
shareholders’
resolution
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Description
of instruments
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Number of financial
instruments
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Date of grant
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Purchase price
(if applicable)
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Market price
on grant date
Source: Borsa Italiana
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Vesting period
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Sergio Marchionne
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Chairman of the Board of Directors Fiat Industrial S.p.A.
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—
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Stock grant entitling to receive, under specific conditions and without cash considerations, Fiat Industrial ordinary shares
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2,100,000
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22 February 2012
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—
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8.118
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*
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2012-2015
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Executives holding key positions with significant impact on business results
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—
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Stock grant entitling to receive, under specific conditions and without cash considerations, Fiat Industrial ordinary shares
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3,900,000
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—
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—
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—
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2012-2017
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*
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Official price reported on the Stock Exchange on 22 February 2012, the date when the Board of Directors approved the motion to be submitted to the Shareholders’ Meeting.
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6
Exhibit 4.4
CNH Global N.V.
Directors’ Compensation Plan
(As amended and restated as of March 29, 2011 and effective as of 1 November, 2010)
This Directors’ Compensation Plan (the “
Plan
”), formerly known as the “Outside Directors’ Compensation
Plan”, has been established by action of the CNH Global N.V. (the “
Company
”) Board of Directors (the “
Board
”) at their meeting of January 26, 2011, where the Board has resolved, upon recommendation of the
Corporate Governance and Compensation Committee of the Board (the “
Committee
”), that each member of the Board shall be eligible to receive compensation under the Plan provided that such director does not receive salary or other
employment compensation from the Company or its affiliates or from Fiat S.p.A. or its subsidiaries in consideration for employment services provided to such entities, such action and resolution to be ratified at the next Annual General Meeting of
Shareholders (“
AGM
”) with effect as of November 1, 2010. The members of the Board who shall be eligible to receive compensation under the Plan are hereinafter referred to as the “
Directors
” and each of them
individually a “
Director
”.
The purpose of the Plan is to provide for the terms and conditions pursuant to
which the Directors (i) are paid their compensation in arrears; namely, the annual retainer fee, the committee membership fee and the committee chair fee (collectively, the “
Fees
”) in the amounts reflected on
Appendix A
,
attached hereto; and (ii) elect each quarter to receive all or a portion of the Fees in the form of cash, and/or common shares of the Company (“
Common Shares
”), and/or options to purchase Common Shares (“
Stock
Options
”).
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2.
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General Rules and Definitions.
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(a)
|
Plan Year
: means the period beginning on the date of the AGM and ending on the day immediately prior to the AGM of the following year.
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(b)
|
Plan Year Quarters
: for any Plan Year, the first Plan Year Quarter shall begin on the first day of the Plan Year, and shall end on the 90th day of the Plan Year; the second Plan Year Quarter shall begin on the
91st day of the Plan Year, and shall end on the 180th day of the Plan Year; the third Plan Year Quarter shall begin on the 181st day of the Plan Year, and shall end on the 270th day of the Plan Year; and the fourth Plan Year Quarter shall begin on
the 271st day of the Plan Year, and shall end on the last day of the Plan Year.
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(c)
|
Value Date
is the last trading day of each Plan Year Quarter, in which sales of Common Shares on the New York Stock Exchange are included on the Composite Tape for such day.
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(d)
|
Fair Market Value
, as applied to each Common Share, is equal to the average of the highest and lowest sale price of a Common Share on the Composite Tape for the Value Date.
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(e)
|
Proration For Partial Services
: if the Director is not a member of the Board or of a committee or a committee chair during an entire Plan Year, the Fees shall be reduced pro rata of his actual service.
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(f)
|
Fractional Shares
: for any fractional Common Share to which a Director shall be entitled for any Plan Year Quarter, he shall receive a whole Common Share only if the fraction is .50 or greater.
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Each Director shall receive, thirty days prior to the end of each
Plan Year Quarter, an election form, as set forth in
Appendix B
, attached hereto (“
Election Form
”), whereby the Director will elect the form of payment of one-fourth (1/4) of this Fees (“
Quarterly
Payment
”) at his discretion, in any of the following options, totalling 100% of each Quarterly Payment:
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(b)
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in a number of Common Shares equal to the elected percent of the Quarterly Payment divided by the Fair Market Value;
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(c)
|
in a number of Stock Options equal to the quotient of (A) divided by (B) (“
Stock Option Grant
”) where:
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(A)
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is the product of the elected percent of the Quarterly Payment, multiplied by four; and
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(B)
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is the Fair Market Value.
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Each Director shall timely return the Election Form to the Secretary
of the Company (the “
Secretary
”), so that the Quarterly Payment can be made to each Director effective as of the last trading day of each Plan Year Quarter (“
Effective Date
”).
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4.
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Terms and Conditions of Stock Option Grants.
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(a)
|
Stock Option Agreement
: each Stock Option Grant shall be evidenced by a written Stock Option Agreement which shall be executed by the Director and the Company, shall become effective on the Effective Date
(“
Grant Date
”) and shall contain such terms and conditions as are consistent with this Plan.
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(b)
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Exercise or Option Price
: shall be equal to the Fair Market Value of a Common Share on the Value Date.
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(c)
|
Sale Restriction
: each Stock Option Grant shall become exercisable immediately upon the Grant Date but Common Shares purchased upon exercise of a Stock Option Grant may not be sold until at least six months after
the Grant Date.
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-2-
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(d)
|
Term
: each Stock Option Grant shall terminate upon the earlier of (i) ten years after the Grant Date; or (ii) six months after the date an individual ceases to be a Director.
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(e)
|
Death of Director
: in accordance with paragraph 4(d) above, the Director’s designated beneficiary or estate, if no beneficiary has been designated, may exercise any Stock Options within the six-month period
following the death of the Director.
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(f)
|
Total Disability of Director
: in accordance with paragraph 4(d) above, all Stock Options shall remain exercisable within the six-month period following the Director’s termination for Total Disability. For
purposes of this provision, “Total Disability” means the permanent inability (as determined by the Director’s medical doctor) of the Director which is a result of accident or sickness, to perform the duties of a director of the
Company.
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(g)
|
Change of Control
: in accordance with paragraph 4(d) above, all Stock Options that have been awarded to a Director shall remain exercisable for a six-month period, if a change of control (as determined by the
Board) of the Company or of the majority shareholder of the Company occurs.
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5.
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Manner of Payment of Option Price.
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The Option Price shall be paid in full at the time
of the exercise of any Stock Option and may be paid in any of the following methods or combinations thereof:
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(a)
|
in United States dollars, in cash, wire transfer, certified or bank check or personal check, payable to the order of the Company through its Broker (see
Appendix C
for contact details);
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(b)
|
by delivering Common Shares to the Broker, such Shares:
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(i)
|
having been acquired under the Plan and having been held for at least six months prior to the date of payment; and
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(ii)
|
having an aggregate fair market value, determined as per paragraph 2(d) above, on the date of payment equal to the Option Price; or
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(c)
|
in any other manner that the Board shall approve, including without limitation any arrangement that the Board may establish to enable Directors to simultaneously exercise Stock Options and sell the Common Shares
acquired thereby and apply the proceeds to the payment of the Option Price therefor.
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The Plan shall be administrated by the Committee.
-3-
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7.
|
Shares Subject to Plan
|
Subject to Section 8 hereof, a number of authorized but
unissued Common Shares shall be reserved from time to time by resolution of the Board, which number shall be sufficient to always cover the needs of the Plan. Treasury shares may be used for the purposes of the Plan. If any Common Shares are subject
to an award under the Plan that expires, is cancelled or is forfeited, such Common Shares shall again become available for issuance under the Plan.
|
8.
|
Adjustments and Reorganizations
|
In the event of any merger, reorganization,
consolidation, recapitalization, separation, liquidation, stock dividend, extraordinary dividend, spin-off, split-up, share combination, or other change in the corporate structure of the Company affecting the Common Shares, the number and kind of
Common Shares that may be delivered under the Plan shall be subject to such equitable adjustment as the Committee, in its sole discretion, may deem appropriate in order to preserve the benefits or potential benefits to be made available under the
Plan, and the number and kind and price of Common Shares subject to outstanding Stock Options and the Option Price and any other terms of outstanding Stock Options or Stock Option Grants shall be subject to such equitable adjustment as the
Committee, in its sole discretion, may deem appropriate in order to prevent dilution or enlargement of outstanding Stock Options or Stock Option Grants.
|
9.
|
Transferability of Awards
|
No awards under the Plan shall be assignable, alienable,
saleable or otherwise transferable other than by will or the laws of descent.
|
10.
|
No Right of Continued Service
|
Participation in the Plan does not give any Director the
right to be retained as a director of the Company or any right or claim to any benefit under the Plan unless such right or claim has specifically accrued under the terms of the Plan.
The validity, construction and effect of the Plan, and any actions taken
or relating to the Plan, shall be determined in accordance with the laws of the State of Delaware, U.S.A.
|
12.
|
Successors and Assigns
|
The Plan shall be binding on all successors and assigns of a
Director, including, without limitation, the estate of such director and the executor, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or representative of the Director’s creditors.
-4-
|
13.
|
Rights as a Shareholder
|
A Director shall have no rights as a shareholder of the Company
with respect to shares awarded under the Plan or subject to options awarded under the Plan until he becomes the holder of record of Common Shares.
The Plan and Appendices attached hereto may be amended by action and
resolution of the Board, to be ratified by the Shareholders of the Company.
Notwithstanding any other provision of the Plan, the Company shall
have no liability to deliver any Common Shares under the Plan unless such delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the United States Securities Act of 1933), and unless such
Common Shares are authorized for listing on any securities exchange on which the Common Shares of the Company are listed. To the extent that the Plan provides for the issuance of Common Shares, the issuance may be effected on a non-certificated
basis, to the extent not prohibited by applicable law or the applicable rules of any stock exchange on which the Common Shares of the Company are listed.
-5-
|
|
|
|
|
CNH Global N.V.
|
|
APPENDIX A
|
DIRECTORS’ COMPENSATION PLAN
DIRECTORS’ COMPENSATION
(amended as of July 22, 2008)
Each Director, unless employed by CNH, Fiat or an affiliated CNH or Fiat company, will receive the following
Fees
in each Plan Year
beginning with the third quarter of the Tenth Plan Year:
|
|
|
|
|
|
|
•
Annual Retainer Fee:
|
|
$
|
100,000
|
|
|
|
|
|
•
Committee Membership Fee
(if also a member of any Board Committee)
|
|
|
|
|
|
Audit Committee:
|
|
$
|
20,000
|
|
|
Corporate Governance and Compensation Committee
|
|
$
|
15,000
|
|
|
|
|
|
•
Committee Chair Fee
(if also a Chair of any Board Committee
)
|
|
|
|
|
|
Audit Committee
|
|
$
|
35,000
|
|
|
Corporate Governance & Compensation Committee
|
|
$
|
25,000
|
|
The Fees will be payable in arrears each Plan Year Quarter in cash, in Common Shares or in Stock Options, as
per the quarterly election (Appendix B) made by each Outside Director.
At the beginning of the Eighth Plan Year on 7 April 2006,
each Outside Director received
a one-time grant of 4,000 Automatic Stock Options; i.e., automatic stock options are exercisable on the third anniversary of the Grant Date.
|
|
|
|
|
CNH Global N.V.
|
|
APPENDIX B
|
DIRECTORS’ COMPENSATION PLAN
ELECTION FORM
For the Plan Year:
I hereby elect,
subject to the terms and conditions of the CNH Global N.V. Directors’ Compensation Plan (“the Plan”) and applicable tax withholding requirements, to receive my Fees as follows:
|
|
|
|
|
%
|
|
in cash
|
|
|
|
|
%
|
|
in shares of common stock
|
|
|
|
|
%
|
|
in stock options
|
I understand that my election is irrevocable for the current Plan Year Quarter commenced on
. For subsequent Plan Year Quarters, a new election shall be made, failing which, the last made election shall continue to be
valid until a new election is made.
|
|
|
|
|
CNH Global N.V.
|
|
APPENDIX C
|
DIRECTORS’ COMPENSATION PLAN
BROKER
The Common Shares
of the Company will be issued, and the Fees’ payments will be made, through the Company’s Broker, whose contact details are as follows:
Morgan
Stanley Smith Barney LLC
800.609.3534 - Inside the U.S. (Toll Free)
312.419.3264 - Outside the U.S.
312-739-2834 - Fax
Gregory D. Wallenstein
312-419-3508
312-419-3515 Fax
800-621-2842 x 3508
gregory.d.wallenstein@mssb.com
David Patience - General
Administration Questions
Phone: 312-419-3331
david.patience@mssb.com
Exhibit 4.5
APPENDIX 1
CNH
Industrial N.V.
Directors’ Compensation Plan
Adopted by the Board of CNH Industrial N.V. on September 9, 2013
Approved by shareholders of CNH Industrial N.V. on September 9, 2013
This Directors’ Compensation Plan (the “
Plan
”) has been established by action of the CNH Industrial N.V. (the
“
Company
”) Board of Directors (the “
Board
”) at their meeting of September 9, 2013, where the Board has resolved, that each member of the Board shall be eligible to receive compensation under the Plan provided
that such director does not receive salary or other employment compensation from the Company or its subsidiaries or affiliates or from Fiat S.p.A. or its subsidiaries or affiliates in consideration for employment services provided to such entities
and the Plan has been approved by a shareholders’ resolution of the Company on September 9, 2013. Such non-executive members of the Board, who shall be eligible to receive compensation under the Plan, are hereinafter referred to as the
“
Directors
” and each of them individually as a “
Director
”.
The purpose of the Plan is to provide for the terms and conditions pursuant to
which the Directors (i) are paid their compensation (the annual retainer fee, any committee membership fee and any committee chair fee) (collectively, the “
Fees
”) in the amounts reflected on
Appendix A
, attached hereto,
and (ii) elect each quarter to receive all or a portion of the Fees in the form of cash, and/or common shares of the Company (“
Common Shares
”), and/or options to purchase Common Shares (“
Stock Options
”).
|
2.
|
General Rules and Definitions.
|
|
|
(a)
|
Plan Year
: means, for the first Plan Year, the period from the closing of the transactions contemplated by the Merger Agreement dated as of November 25, 2012 by and between the Company, Fiat Industrial
S.p.A., Fiat Netherlands Holding N.V. and CNH Global N.V. (“
Closing
”) to the next Annual General Meeting of Shareholders (“
AGM
”) thereafter, and for subsequent Plan Years, the period beginning on the date of the AGM
and ending on the day immediately prior to the AGM of the following year.
|
|
|
(b)
|
Plan Year Quarters
: for any Plan Year, the first Plan Year Quarter shall begin on the first day of the Plan Year, and shall end on the 90th day of the Plan Year; the second Plan Year Quarter shall begin on the
91st day of the Plan Year, and shall end on the 180th day of the Plan Year; the third Plan Year Quarter shall begin on the 181st day of the Plan Year, and shall end on the 270th day of the Plan Year; and the fourth Plan Year Quarter shall begin on
the 271st day of the Plan Year, and shall end on the last day of the Plan Year.
|
|
|
(c)
|
Value Date
is the last trading day of each Plan Year Quarter, in which sales of Common Shares on the New York Stock Exchange are recorded during normal trading hours for such day.
|
|
|
(d)
|
Fair Market Value
, as applied to each Common Share, is equal to the average of the highest and lowest sale price of a Common Share during normal trading hours on the New York Stock Exchange on the Value Date, as
determined by the Committee in its sole discretion, or such other price as required by applicable law or regulation.
|
|
|
(e)
|
Proration For Partial Services
: if the Director is not a member of the Board or of a committee or a committee chair during an entire Plan Year Quarter, the Fees payable with respect of such Plan Year Quarter
shall be reduced on a pro rata basis to reflect the period of his or her actual service.
|
|
|
(f)
|
Fractional Shares
: for any fractional Common Share to which a Director shall be entitled for any Plan Year Quarter, the Director shall receive a whole Common Share with respect to such fractional Common Share
only if the fraction is .50 or greater.
|
|
|
(g)
|
Terms of Plan for US Directors
: any Director who is a US Director shall be subject to the provisions set forth in Schedule 1 to the Plan, the United States Addendum. “
US Director
” means a
Director who (i) is resident in, or a citizen or green card holder of the the United States of America during any Plan Year Quarter, (ii) is otherwise subject to US taxation during any calendar year, or (iii) becomes subject to US
taxation prior to exercise of a Stock Option;
|
Each Director shall receive, thirty days prior to the end of each
Plan Year Quarter, an election form, as set forth in
Appendix B
, attached hereto (“
Election Form
”), whereby the Director will elect the form of payment of one-fourth (1/4) of this Fees (“
Quarterly
Payment
”) at his discretion, in any of the following options, totaling 100% of each Quarterly Payment:
|
|
(b)
|
in Common Shares, with the number of Common Shares granted to the Director in respect of such election equal to the quotient of (A) divided by (B), where:
|
|
|
(A)
|
is the dollar amount of the Quarterly Payment elected by the Director to be paid in Common Shares; and
|
|
|
(B)
|
is the Fair Market Value.
|
-2-
|
|
(c)
|
in Stock Options, with the number of Stock Options granted to the Director in respect of such election equal to the quotient of (A) divided by (B), where:
|
|
|
(A)
|
is the product of the dollar amount of the Quarterly Payment elected by the Director to be paid in Stock Options, multiplied by four; and
|
|
|
(B)
|
is the Fair Market Value.
|
Each Director shall timely return the Election Form to the Secretary
of the Company (the “
Secretary
”), so that the Quarterly Payment can be made to each Director effective as of the last trading day of each Plan Year Quarter (“
Effective Date
”).
|
4.
|
Terms and Conditions of Stock Options.
|
|
|
(a)
|
Stock Option Agreement
: Each Stock Option shall be granted under the CNH Global N.V. Equity Incentive Plan, Fiat Industrial S.p.A. Long-Term Incentive Plan, CNH Industrial N.V. Equity Incentive Plan to be adopted
by the Company or any successor plan thereto (the “
Equity Plan
”) and shall be evidenced by a written Stock Option Agreement which shall be executed by the Director and the Company, shall become effective on the Effective Date
(“
Grant Date
”) and shall contain such terms and conditions as are consistent with this Plan and the Equity Plan.
|
|
|
(b)
|
Exercise Price
: The exercise price of each Stock Option (the “
Option Price
”) shall be equal to the Fair Market Value of a Common Share on the Value Date.
|
|
|
(c)
|
Sale Restriction
: Each Stock Option shall become exercisable immediately upon the Grant Date but Common Shares purchased upon exercise of a Stock Option may not be sold until at least six months after the Grant
Date.
|
|
|
(d)
|
Term
: Each Stock Option shall terminate upon the earlier of (i) ten years after the Grant Date; or (ii) six months after the date an individual ceases to be a Director for any reason.
|
|
|
(e)
|
Death of Director
: In accordance with paragraph 4(d) above, the Director’s designated beneficiary or estate, if no beneficiary has been designated, may exercise any Stock Options within the six-month period
following the death of the Director.
|
|
5.
|
Manner of Payment of Option Price.
|
The Option Price shall be paid in full at the time
of the exercise of any Stock Option and may be paid in any of the following methods or combinations thereof:
|
|
(a)
|
in United States dollars, in cash, wire transfer, certified or bank check or personal check, payable to the order of the Company through its Broker (see
Appendix C
for contact details);
|
-3-
|
|
(b)
|
by delivering Common Shares to the Broker, such Common Shares:
|
|
|
(i)
|
having been acquired under the Plan and having been held for at least six months prior to the date of payment; and
|
|
|
(ii)
|
having an aggregate fair market value, determined as per paragraph 2(d) above, on the date of payment equal to the Option Price; or
|
|
|
(c)
|
in any other manner that the Committee shall approve, including without limitation any arrangement that the Committee may establish to enable Directors to simultaneously exercise Stock Options and sell the Common Shares
acquired thereby and apply the proceeds to the payment of the Option Price therefor.
|
|
6.
|
Fees Payable in Common Shares.
|
All Fees payable in Common Shares pursuant to
Section 3(b) of the Plan shall be granted under the Equity Plan and issued to the Director through the Company’s Broker in accordance with Appendix C. Any Common Shares subject to vesting conditions pursuant to a Director’s election
on Appendix B shall be evidenced by a written award agreement which shall be executed by the Director and the Company (“
Share Award Agreement
”) and shall contain such terms and conditions as are consistent with this Plan and the
Equity Plan.
The Plan shall be administered by the Compensation Committee of
the Board (“
Committee
”). The Committee or a subcommittee thereof (which hereinafter shall also be referred to as the Committee) shall have the authority (i) to exercise all of the powers granted to it under the Plan,
(ii) to construe, interpret and implement the Plan, (iii) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules governing its own operations, (iv) to make all determinations necessary or advisable
in administering the Plan, (v) to correct any defect, supply any omission and reconcile any inconsistency in the Plan, (vi) to amend the Plan to reflect changes in applicable law and (vii) to determine whether, to what extent and
under what circumstances any Fees payable hereunder shall be paid in cash or Common Shares or deferred either automatically or at the election of the Director. The determination of the Committee on all matters relating to the Plan, any Fees, any
Stock Option or any agreement evidencing a right to an award or payment under the Plan shall be final, binding and conclusive. To the extent a Director elects to receive payment of any Fees in Common Shares or the Committee determines that any Fee
shall be paid in Common Shares, such Common Shares shall be issued under the Equity Plan.
Notwithstanding anything to the contrary
contained herein, the Board may, in its sole discretion, at any time and from time to time, resolve to administer the Plan and shall have all of the authority and responsibility granted to the Committee herein.
-4-
|
8.
|
Transferability of Awards.
|
No Fees, Common Shares, or Stock Options payable or awarded
hereunder shall be assignable, alienable, saleable or otherwise transferable other than by will or the laws of descent, except, in the case of Stock Options and Fees paid in Common Shares, as otherwise permitted under the Equity Plan.
|
9.
|
No Right of Continued Service.
|
Participation in the Plan does not give any Director the
right to be retained as a director of the Company or any right or claim to any benefit under the Plan or the Equity Plan unless such right or claim has specifically accrued under the terms of the Plan or the Equity Plan.
The validity, construction and effect of the Plan, and any actions taken
or relating to the Plan, shall be determined in accordance with the laws of the State of Delaware, U.S.A.
|
11.
|
Successors and Assigns.
|
The Plan shall be binding on all successors and assigns of a
Director, including, without limitation, the estate of such director and the executor, administrator or trustee of such estate, or any receiver or trustee in bankruptcy or representative of the Director’s creditors.
|
12.
|
Rights as a Shareholder.
|
A Director shall have no rights as a shareholder of the
Company with respect to Common Shares awarded under the Plan or subject to Stock Options awarded under the Plan until the Director becomes the holder of record of Common Shares.
|
13.
|
Amendment and Termination.
|
The Plan and Appendices attached hereto may be amended
and/or terminated by action and resolution of the Board, to be ratified by the Shareholders of the Company to the extent required under applicable law.
|
14.
|
General Restrictions.
|
Notwithstanding any other provision of the Plan, the Company
shall have no liability to deliver any Common Shares under the Plan unless such delivery or distribution would comply with all applicable laws (including, without limitation, the requirements of the United States Securities Act of 1933), and unless
such Common Shares are authorized for listing on any securities exchange on which the Common Shares of the Company are listed. To the extent that the Plan provides for the issuance of Common Shares, the issuance may be effected on a non-certificated
basis, to the extent not prohibited by applicable law or the applicable rules of any stock exchange on which the Common Shares of the Company are listed.
-5-
Schedule 1: United States Addendum
This Schedule shall apply to all US Directors. Where a Director becomes a US Director after the beginning of a Plan Year, the Plan terms
(including, but not limited to, the US Director’s election and the Company’s payment of cash, Common Shares or Stock Options in respect of the Fees) shall be administered in a manner consistent with this Schedule. Where there is any
conflict between the Plan and this Schedule, the terms of this Schedule shall prevail.
Except as noted in this Schedule, the terms
described in the Plan apply to Fees, Common Shares and Stock Options payable or awarded under this Schedule.
|
1.
|
Notwithstanding anything in Section 3 of the Plan to the contrary, where a Director is a US Director, all elections with respect to the timing and form of payment of the Fees shall be made in accordance with
Section of the United States Internal Revenue Code of 1986, as amended (“
Section 409A
” and “
Code
,” respectively) and Section 457A of the Code (“
Section 457A
”), as applicable.
|
|
2.
|
The documentation provided for any Fees, Common Shares or Stock Options (or a US Director’s election thereof) payable or awarded under the Plan, shall, to the extent such award is subject to Section 409A or
Section 457A, as applicable, include the scheduled payment/settlement dates for such award.
|
|
3.
|
To the extent that a Director who has been granted a Stock Option becomes subject to US taxation and such Stock Option is determined to have been granted with an Option Price less than “fair market value” on
the Value Date as defined in US Treasury Regulation Section 1.409A-1(b)(5), the Stock Option shall be exercisable only in the first calendar year after the year in which the Director becomes a US Director in light of being subject to US
taxation.
|
|
4.
|
Notwithstanding anything in the Plan to the contrary, if any provision of the Plan would, in the reasonable, good faith judgement of the Company, result in or likely result in the imposition on any US Director or any
other person of any tax, interest or penalty under Section 409A or Section 457A, as applicable, the Company may reform the Plan or any provision thereof, without the consent of any such US Director, in the manner that the Company
reasonably determines to be necessary or advisable to avoid the imposition of such tax, interest or penalty, provided, however, that any such reformation shall, to the maximum extent possible, retain the economic and tax benefits to the applicable
US Directors hereunder while not materially increasing the cost to the Company of providing such benefits to such US Directors.
|
-6-
|
|
|
|
|
CNH Industrial N.V.
|
|
APPENDIX A
|
DIRECTORS’ COMPENSATION PLAN
DIRECTORS’ COMPENSATION
Each Director, unless employed by CNH Industrial N.V. or its subsidiaries or affiliates, or by Fiat S.p.A. or its subsidiaries or affiliates,
will receive the following Fees in each Plan Year, beginning with the Plan Year Quarter that commences as of Closing:
|
|
|
|
|
|
|
•
Annual Retainer Fee:
|
|
$
|
125,000
|
|
|
|
|
|
•
Committee Membership Fee
(if also a member of any Board Committee)
|
|
|
|
|
|
Audit Committee:
|
|
$
|
25,000
|
|
|
Corporate Governance and Compensation Committee
|
|
$
|
20,000
|
|
|
|
|
|
•
Committee Chair Fee
(if also a Chair of any Board Committee)
|
|
|
|
|
|
Audit Committee
|
|
$
|
35,000
|
|
|
Corporate Governance & Compensation Committee
|
|
$
|
25,000
|
|
The Fees will be payable in arrears each Plan Year Quarter in cash, in Common Shares or in Stock Options, as
per the quarterly election made by each Director pursuant to the Election Form set forth on Appendix B.
|
|
|
|
|
CNH Industrial N.V.
|
|
|
|
|
|
APPENDIX B
|
DIRECTORS’ COMPENSATION PLAN
ELECTION FORM
For the Plan Year
[Quarter]:
|
1.
|
I hereby elect, subject to the terms and conditions of the CNH Industrial N.V. Directors’ Compensation Plan (“the Plan”) and applicable tax withholding requirements, to receive my Fees as follows:
|
|
|
|
|
|
|
|
A.
|
|
%
|
|
in cash
|
|
|
|
|
|
B.
|
|
%
|
|
in shares of common stock issued on a current basis
|
|
|
|
|
|
C.
|
|
%
|
|
in shares of common stock issued on a deferred basis, subject to the vesting schedule set forth below (“
Restricted Common Shares
”)
|
|
|
|
|
|
D.
|
|
%
|
|
in stock options
|
|
2.
|
I understand that by making an election under Section 1C of this Appendix B, the portion of my Fees delivered in the form of Restricted Common Shares will be subject to a vesting schedule pursuant to my election
below. Further, I understand that my Restricted Common Shares are subject to a risk of forfeiture and will be forfeited if I am no longer a Director of the Company on the Vesting Date.
|
I acknowledge that I have read this Section 2 and I hereby I elect that the portion of my Fees delievered in the form of Restricted Common
Shares shall vest as follows:
1
|
|
€
|
100% of my Restricted Common Shares shall vest on the 1
st
anniversary of the Grant Date (“
Vesting Date
”)
|
|
|
€
|
100% of my Restricted Common Shares shall vest on the 2
nd
anniversary of the Grant Date (“
Vesting Date
”)
|
|
|
€
|
100% of my Restricted Common Shares shall vest on the 3
rd
anniversary of the Grant Date (“
Vesting Date
”)
|
|
3.
|
I understand that all of my elections set forth on this Appendix B are irrevocable for the current Plan Year [Quarter] commenced on
. For subsequent Plan Year[s] [Quarters], a new election shall be made, failing which, the last made election(s) shall continue
to be valid until a new election is made.
|
|
1
|
Instruction to Directors: this Section 2 should only be completed if you have elected to have a portion of your Fees delivered in the form of Restricted Common Shares pursuant to 1C above.
|
|
|
|
|
|
CNH Industrial N.V.
|
|
|
|
|
|
APPENDIX B
|
|
|
|
|
|
CNH Industrial N.V.
|
|
|
|
|
|
APPENDIX C
|
DIRECTORS’ COMPENSATION PLAN BROKER
Fees payable in cash will be paid from a bank account of the Company. The Common Shares issuable under Stock Options and Fees payable in
Common Shares will be issued through the Company’s Broker, whose contact details are as follows:
Morgan Stanley
800.609.3534 - Inside the U.S. (Toll Free)
312.419.3264 -
Outside the U.S.
312-739-2834 - Fax
JanPaul Ferrer
Phone: 312-419-3535 Fax: 312-419-3515
Toll free: 800-621-2842 x
3535
Email: janpaul.ferrer@ms.com
Gallagher Group -
General Administration Questions for Participants
Phone: 312-419-3264
Exhibit 5.1
|
|
|
|
|
|
|
|
|
|
AMSTERDAM
Strawinskylaan 10
1077 XZ Amsterdam
|
|
|
CNH Industrial N.V.
|
|
|
T+31 20 485 7000
|
|
|
Cranes Farm Road
|
|
|
F+31 20 485 7001
|
|
|
Basildon
Essex SS14 3 AD
UNITED KINGDOM
|
|
|
W freshfields.com
DOC ID AMSN385562/6+
|
|
|
|
|
|
|
|
|
30 September 2013
Dear
Sirs,
I
NTRODUCTION
1. We have acted
as Netherlands law special counsel to Fiat Industrial S.p.A. (
FI
) and its the legal successor under universal title of succession (
rechtsvoorganger onder algemene titel
) CNH Industrial N.V. (
DutchCo
), with respect
to certain matters of Netherlands law in connection with,
inter alia
, the registration statement (the
Registration Statement
)on Form S-8 to be filed with the United States Securities and Exchange Commission (
SEC
)
under the United States of America’s Securities Act of 1933, as amended (the
Securities Act
) with respect to 23,421,146 common shares with a nominal value of EUR 0.01 each in the share capital of DutchCo to be issued pursuant to
the following equity plans: (i) the Fiat Industrial S.p.A. Incentive Plan; (ii) the CNH Global Equity Incentive Plan; (iii) the CNH Global NV Directors’ Compensation Plan and (iv) the CNH Industrial Directors Compensation
Plan (together the
Equity Plans
and the common shares delivered pursuant to the Equity Plans, the
Plan Shares
).
2. We have
further acted as Netherlands law special counsel to Fiat Industrial S.p.A. (
FI
), the legal predecessor under universal title succession (
rechtsvoorganger onder algemene titel
) of DutchCo, with respect to certain matters of
Netherlands law with respect to the cross-border statutory merger (
grensoverschrijdende juridische fusie
) of FI with and into DutchCo effective as per 28 September 2013 (the
FI Merger
) and (ii) the statutory merger
(
juridische fusie
) of CNH with and into DutchCo effective as per 29 September 2013 (the
CNH Merger
).
Freshfields Bruckhaus
Deringer LLP is a limited liability partnership registered in England and Wales with registered number OC334789. It is authorised and regulated by the Solicitors Regulation Authority. Dutch Chambers of Commerce registration number 34368197. For
regulatory information please refer to www.freshfields.com/support/legalnotice.
A list of the members (and of the non-members who are designated as
partners) of Freshfields Bruckhaus Deringer LLP and their qualifications is available for inspection at its registered office, 65 Fleet Street, London EC4Y 1HS or at the above address. Any reference to a partner means a member, or a consultant or
employee with equivalent standing and qualifications, of Freshfields Bruckhaus Deringer LLP or any of its affiliated firms or entities. Freshfields Bruckhaus Deringer LLP’s Amsterdam office includes attorneys, civil law notaries, tax advisers
and solicitors.
Notarial bank account:
Kwaliteitsrekening
Notariaat Freshfields, ABN AMRO Bank N.V., IBAN: NL87ABNA0252085116, BIC: ABNANL2A
Abu Dhabi Amsterdam Bahrain Barcelona Beijing Berlin Brussels Cologne
Dubai Düsseldorf Frankfurt am Main Hamburg Hanoi Ho Chi Minh City Hong Kong London Madrid Milan Moscow Munich New York Paris Rome Shanghai Singapore Tokyo Vienna Washington
This opinion letter is delivered to you pursuant to your request.
D
OCUMENTS
REVIEWED
3. In
rendering the opinion set out below we have examined the following documents:
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(a)
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An electronic copy of the Registration Statement excluding any documents incorporated by reference in it and any exhibits to it, other than specifically listed below;
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(b)
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electronic copies of the documentation regarding the Equity Plans (the
Plan Documentation
)
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(c)
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a copy of the deed of incorporation of DutchCo dated 23 November 2012 (the
Deed of Incorporation
) and the articles of association of DutchCo as they read as of 28 September 2013, which, according
to the Extract, are DutchCo’s articles of association currently in force and effect (the
Articles of Association
);
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(d)
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an electronic copy of:
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(i)
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the minutes of the meeting of the board of directors of DutchCo (the
Board
) held on 9 September 2013 and signed by R. Russo as secretary of that meeting on 27 September 2013 (the
Resolutions
); and
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(ii)
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the written resolutions of the general meeting of shareholders of DutchCo dated 9 September 2013;
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(e)
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a print-out of an electronic copy of an extract from the Commercial Register of the Amsterdam Chamber of Commerce (the
Commercial Register
) dated 30 September 2013 relating to DutchCo, and confirmed
upon our request by the Commercial Register by telephone to be correct as at the date hereof (the
Extract
);
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(f)
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a print-out of an electronic online confirmation from the insolvency register from the district court of Amsterdam through www.rechtspraak.nl and the online EU Insolvency register dated 30 September 2013 that
DutchCo has not been declared bankrupt (
failliet verklaard
) or has not been granted a suspension of payments (
surseance van betaling
) and confirmed upon our request by the court registries of the district courts of Amsterdam and The
Hague by telephone to be correct as at the date hereof;
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(g)
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the notarial deed of merger (
notariële akte van fusie
) relating to the cross-border statutory merger of FI with and into DutchCo executed before Dirk-Jan J. Smit, civil law notary, officiating in Amsterdam,
the Netherlands, executed on 27 September 2013 (the
FI Deed of Merger
); and
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(h)
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the notarial deed of merger (
notariële akte van fusie
) relating to the statutory merger of CNH with and into DutchCo executed before Dirk-Jan J. Smit, civil law notary officiating in Amsterdam, the
Netherlands, executed on 28 September 2013 (the
CNH Deed of Merger
),
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FI, CNH and DutchCo are herein together referred to
as the
Companies
; the documents referred to above in items (a) to (h) (inclusive) are herein referred to as the
Documents
; the documents referred to above in item (d) are hereinafter referred to as the
Resolutions
, the documents referred to above in items (c) and (d) (inclusive) are herein referred to as the
Corporate Documents
; the documents referred to above in items (g) and (h) (inclusive) are
herein referred to as the
Merger Documents
.
N
ATURE
OF
O
PINION
AND
O
BSERVATIONS
4. This opinion is subject to the following limitations:
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(a)
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This opinion is confined to the laws with general applicability (
wettelijke regels met algemene gelding
) of the Netherlands and, insofar as they are directly applicable in the Netherlands, the European Union, all
as they stand as at the date hereof and as such laws are currently interpreted in published authoritative case law of the courts of the Netherlands (
Netherlands law
); accordingly, we express no opinion with regard to any other system
of law (including the law of jurisdictions other than the Netherlands in which our firm has an office), even in cases where, in accordance with Netherlands law, any foreign law should be applied; furthermore, we do not express any opinion on public
international law or on the rules of or promulgated under any treaty or by any treaty organisation (except as otherwise stated above).
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(b)
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We express no opinion on any taxation laws of any jurisdiction (including the Netherlands).
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(c)
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We have not considered whether the transactions contemplated by the Plan Documentation comply with anti-trust, competition, public procurement or state aid laws, nor whether any filings or clearances are required under
such laws.
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(d)
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We express no opinion on any data protection or insider trading laws of any jurisdiction (including the Netherlands).
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(e)
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We express no opinion that the future or continued performance of a party’s obligations or the consummation of the transactions contemplated by the Plan Documentation will not contravene Netherlands law, its
application or interpretation if altered in the future.
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(f)
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We express no opinion as to the correctness of any representation given by any of the parties (express or implied) under or by virtue of the Documents, save if and insofar as the matters represented are the subject
matter of a specific opinion herein.
|
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(g)
|
In rendering this opinion we have exclusively examined the Documents and we have conducted such investigations of Netherlands law as we have deemed necessary or advisable for the purpose of giving this opinion letter;
as to matters of fact we have relied on the Documents and any other document we have deemed relevant, and on statements or certificates of public officials.
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(h)
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We have not been responsible for investigating or verifying the accuracy of the facts (or statements of foreign law) or the reasonableness of any statements of opinion or intention contained in any documents, or for
verifying that no material facts or provisions have been omitted therefrom; nor have we verified the accuracy of any assumption made in this opinion letter.
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(i)
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We have not been involved in the preparation or negotiation of the Plan Documentation, and have reviewed it only for the limited purpose of giving this opinion. Accordingly, we express no view as to the suitability of
the Plan Documentation or of its provisions or its general compliance with market practice or any commercial aspects of the Plan Documentation;
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(j)
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Netherlands legal concepts are expressed in English terms and not in their original Dutch terms; the concepts concerned may not be identical to the concepts described by the same English terms as they exist in the laws
of other jurisdictions.
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(k)
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This opinion speaks as of today’s date; no obligation is assumed to update this opinion or to inform any person of any changes of law or other matters coming to our knowledge and occurring after today’s date,
which may affect this opinion in any respect.
|
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(l)
|
The opinion expressed in this opinion letter has no bearing on declarations made, opinions expressed or statements of a similar nature made by any of the parties in the Documents.
|
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(m)
|
All references in this opinion letter and its schedules to the Netherlands and Netherlands law are to the European part of the Netherlands and its law, respectively, only.
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4|10
O
PINION
5. On the basis of, and subject to, the foregoing, the assumptions in Schedule 1, the qualifications in Schedule 2 and any factual matters, documents
or events not disclosed to us, we are of the opinion that: when issued pursuant to a validly executed deed of issue and fully paid in accordance with the terms of the Plan Documentation and the Articles of Association, each Plan Share will have been
duly authorised, validly issued, fully paid and non-assessable.
B
ENEFIT
OF
OPINION
.
6. This opinion is addressed to you in relation to and as an exhibit to the Registration Statement and, except with our prior written consent, is not to be
transmitted or disclosed to any other person, other than as an exhibit to the Registration Statement and is not to be used or relied upon by you or by any other person for any purpose other than in connection with the filing of the Registration
Statement.
7. This opinion letter and any non-contractual obligations arising out of or in relation to this opinion are governed by the laws of the
Netherlands.
8. We hereby consent to the filing of this legal opinion letter as an exhibit to the Registration Statement. In giving the consent set out
in the previous sentence, we do not thereby admit or imply that we are in the category of persons whose consent is required under Section 7 of the Securities Act or any rules and regulations of the SEC promulgated thereunder.
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Yours faithfully,
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/s/ Freshfields Bruckhaus Deringer LLP
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Freshfields Bruckhaus Deringer LLP
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SCHEDULE 1
ASSUMPTIONS
In rendering the opinion in
this opinion letter we have assumed that:
Authenticity of documents
|
(a)
|
all documents reviewed by us and submitted to us as originals are true, complete and authentic; all documents reviewed by us and submitted to us as electronic copy, facsimile or photocopy are in conformity with the
originals and such originals are true, complete and authentic; and the signatures on all such documents are genuine;
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(b)
|
the Registration Statement has been or will have been filed with the SEC and declared effective pursuant to the Securities Act;
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Due incorporation and existence
|
(c)
|
at the time when any Corporate Document was signed, each person who is a party to or signatory of that Corporate Document, as applicable (i) had been validly incorporated, was validly existing and, to the extent
relevant in such party’s jurisdiction, in good standing under the laws applicable to such party, (ii) had all requisite power, authority and legal capacity to sign that Corporate Document and to perform all juridical acts
(
rechtshandelingen
) and other actions contemplated thereby and (iii) has validly signed that Corporate Document;
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(d)
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the information set forth in the Extract is accurate and complete;
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Corporate authorisation
|
(e)
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the Resolutions have been executed by persons who had all required power, authority and legal capacity to execute such Resolutions;
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(f)
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the Resolutions have not been revoked (
ingetrokken
) or amended and have not been and will not be declared null and void by a competent court, have not been, and will not be, amended, revoked (
ingetrokken
),
terminated or declared null and void by a competent court and the statements and confirmations set out in the Resolutions are true and correct;
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(g)
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any statement and confirmation set out in the Merger Documents is true and remains true and correct until all Merger Documents will have been executed;
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(h)
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at any time during the entire period during which the Plan Shares are to be issued pursuant to the Plan Documentation: (i) the authorised share capital of DutchCo will allow for the issuance of the relevant number
of Plan Shares and (ii) that the Board will remain to hold the exclusive power to issue the Plan Shares;
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Enforceability
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(i)
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each of the parties to any of the Plan Documentation and any agreement and document entered into pursuant to the Plan Documentation (other than DutchCo) (i) has been validly incorporated, will be validly existing
and, to the extent relevant in such party’s jurisdiction, in good standing under the laws applicable to such party, (ii) will have the power, capacity and authority to enter into, execute and deliver the Plan Documentation and any
agreement and document entered into pursuant to the Plan Documentation to which it is a party and to exercise its rights and perform its obligations thereunder, and, to the extent relevant, deliver Plan Documentation and any agreement and document
entered into pursuant to the Plan Documentation to which it is a party.
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(j)
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under the laws to which the Plan Documentation are expressed to be subject and under any applicable law (other than Netherlands law), (i) the Company has validly executed and, to the extent relevant, delivered, the
Plan Documentation, (ii) and each of the Plan Documentation constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms;
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SCHEDULE 2
QUALIFICATIONS
Our opinion is subject to
the following qualifications:
Insolvency proceedings
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(a)
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a confirmation derived from an insolvency register does not provide conclusive evidence that an entity is not subject to any insolvency proceedings as defined in the Council Regulation (EC) no. 1346/2000 of 29 May
2000 on Insolvency Procedures or otherwise;
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Enforceability
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(b)
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the validity or enforceability of the Plan Documentation or any legal act (
rechtshandeling
) forming part thereof or contemplated thereby are subject to and limited by the protection afforded by Netherlands law to
creditors whose interests have been adversely affected pursuant to the rules of Netherlands law relating to (x) unlawful acts (
onrechtmatige daden
) based on Section 6:162 et seq. of the Netherlands Civil Code (
Burgerlijk
Wetboek
) and (y) fraudulent conveyance or preference (
actio pauliana
) within the meaning of Section 3:45 of the Netherlands Civil Code (
Burgerlijk Wetboek
) and/or Section 42
et seq
. of the Netherlands
Bankruptcy Act (
Faillissementswet
);
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(c)
|
the term “
enforceability
” as used in this opinion letter indicates that the relevant obligations are of a type for which Netherlands law generally provides a remedy; it does not imply that the
obligations and remedies provided in the Plan Documentation would always be enforceable in accordance with their specific terms; enforcement in the courts of the Netherlands will in any event be subject to the acceptance by such courts of
jurisdiction, the availability of defences and the nature of the remedies available in the Netherlands courts;
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(d)
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the validity and enforceability of the obligations under the Plan Documentation are subject to applicable prescription or limitation periods, principles of set-off (unless such right is validly waived), force majeure
(
overmacht
), reasonableness and fairness (
redelijkheid en billijkheid
), unforeseen circumstances (
onvoorziene omstandigheden
) and other defences afforded by Netherlands law to obligors generally; furthermore, under Netherlands
law, a party to an agreement may under certain circumstances suspend performance of its obligations under such agreement pursuant to the
exceptio non-adimpleti contractus
or otherwise;
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(e)
|
with respect to the obligations under the Plan Documentation, the competent court in the Netherlands (i) may give effect to overriding mandatory provisions of the law of any other country with which the Plan
Documentation have a close connection if and insofar as, under the law of the latter country, those rules must be applied whatever the law applicable to the Plan Documentation and (ii) shall have regard to the law of the country in which the
performance takes place in relation to the manner of performance and the steps to be taken in the event of defective performance and (iii) may refuse the application of a provision of the law of any country otherwise applicable to
the Plan Documentation, if such application is manifestly incompatible with public policy (“
ordre public
”) of the Netherlands;
|
Foreign documents
|
(f)
|
the opinion and other statements expressed herein relating to the Plan Documentation are subject to the qualification that as Dutch lawyers we are not qualified or able to assess the true meaning and purport under
applicable law (other than Netherlands law) of the terms of the Plan Documentation and the obligations thereunder of the parties thereto, and we have made no investigation of such meaning and purport; our review of the Plan Documentation and any
other documents subject or expressed to be subject to any law other than Netherlands law has therefore been limited to the terms of such documents as they appear to us on the basis of such review and only in respect of any involvement of Netherlands
law.
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Non-assessable
|
(g)
|
in absence of an equivalent Dutch legal term for the term “non-assessable” as used in this opinion letter and for the purposes of this opinion letter non-assessable means that no holder of Common Shares can be
required to pay any amount in addition to the amount required for such share to be fully paid as provided for by Section 2:81 of the Netherlands Civil Code and holders of Common Shares cannot be held personally liable for acts performed in the
name of the DutchCo and cannot be held liable to contribute to losses of DutchCo in excess of the amount which must be paid up on their shares as provided for by Section 2:64 Netherlands Civil Code; and
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Commercial Register
|
(h)
|
An extract from the Commercial Register does not provide conclusive evidence that the facts set out in it are correct. However, under the 2007 Trade
Register Act
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9|10
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(
Handelsregisterwet 2007
), subject to limited exceptions, a legal entity cannot invoke the incorrectness or incompleteness of its Commercial Register information against third parties who
were unaware of the incorrectness or incompleteness.
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10|10
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement of CNH Industrial N.V. on Form S-8 dated September 30, 2013
pertaining to the CNH Global N.V. Equity Incentive Plan, the CNH Global N.V. Directors’ Compensation Plan, the Fiat Industrial S.p.A. Long-Term Incentive Plan and the CNH Industrial N.V. Directors’ Compensation Plan of our report dated
May 13, 2013, with respect to the consolidated financial statements of Fiat Industrial S.p.A. for the years ended December 31, 2012 and 2011 included in the Registration Statement (Form F-4 No. 333-188600) and related Prospectus of FI
CBM Holdings N.V. (now CNH Industrial N.V.) for the mergers of Fiat Industrial S.p.A. and CNH Global N.V. with and into FI CBM Holdings N.V.
/s/ Reconta
Ernst & Young S.p.A.
Turin, Italy
September 30,
2013
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement of CNH Industrial N.V. on Form S-8 dated September 30, 2013
pertaining to the CNH Global N.V. Equity Incentive Plan and the Fiat Industrial S.p.A. Long-Term Incentive Plan of our reports dated February 28, 2013, with respect to the consolidated financial statements of CNH Global N.V. as of and for the
years ended December 31, 2012 and 2011, and the effectiveness of internal control over financial reporting of CNH Global N.V. as of December 31, 2012, included in its Form 20-F filed with the Securities and Exchange Commission.
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/s/ Ernst & Young LLP
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Chicago, Illinois
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September 30, 2013
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Exhibit 23.3
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Deloitte & Touche S.p.A.
Galleria San Federico, 54
10121 Torino
Italia
Tel: +39 011 55971
Fax: +39 011 544756
www.deloitte.it
|
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated May 13, 2013 relating to the combined
financial statements of the Fiat Industrial Group for the year ended December 31, 2010, before the retrospective adjustments to the financial statements discussed in the Notes to the consolidated financial statements under Significant
Accounting Policies – “Accounting standards, amendments and interpretations effective from January 1, 2013 and adopted by the Group” (which report expresses an unqualified opinion and includes an explanatory paragraph referring
to the method of preparation of such financial statements due to the partial and proportional demerger of Fiat S.p.A. in favor of Fiat Industrial that occurred effective January 1, 2011) appearing in the Prospectus, which is part of the
Registration Statement on Form F-4 (No. 333-188600) of FI CBM Holdings N.V. (now CNH Industrial N.V.) for the mergers of Fiat Industrial S.p.A. and CNH Global N.V. with and into FI CBM Holdings N.V.
/s/ DELOITTE & TOUCHE S.p.A.
Turin, Italy
September 30, 2013
Ancona Bari Bergamo Bologna Brescia
Cagliari Firenze Genova Milano Napoli Padova
Palermo Parma Roma Torino Treviso Verona
Sede Legale: Via Tortona, 25 - 20144 Milano - Capitale Sociale: Euro 10.328.220,00 i.v.
Codice Fiscale/Registro delle Imprese Milano n. 03049560166 - R.E.A. Milano n. 1720239
Partita IVA: IT 03049560166
Member of Deloitte Touche Tohmatsu
Limited
Exhibit 23.4
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Deloitte Services LP
111 S. Wacker Drive
Chicago, IL 60606-4301
USA
Tel: +1 312 486 1000
Fax: +1 312 486 1486
www.deloitte.com
|
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 28, 2011 relating to
the consolidated statements of operations, comprehensive income, cash flows and changes in equity of CNH Global N.V. and subsidiaries for the year ended December 31, 2010 (which report expresses an unqualified opinion and includes an
explanatory paragraph related to the adoption on January 1, 2010 of new accounting guidance related to transfers of financial assets and consolidation of variable interest entities and the application of the reporting requirements on a
prospective basis) appearing in the Annual Report on Form 20-F of CNH Global N.V. for the year ended December 31, 2012, which was incorporated by reference in the Prospectus, which is part of the Registration Statement on Form F-4 (No.
333-188600) of CNH Industrial N.V. (formerly FI CBM Holdings N.V.).
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/s/ Deloitte & Touche LLP
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Chicago, Illinois
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September 30, 2013
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Member of
Deloitte Touche Tohmatsu
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