As filed with the Securities and Exchange Commission on April 13, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ASML Holding N.V.
(Exact
name of registrant as specified in its charter)
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The Netherlands
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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De Run 6501
5504 DR Veldhoven
The
Netherlands
Tel: 31-40-268-3000
(Address of Principal Executive Offices)
ASML Board of Management Umbrella Share Plan
ASML Employee Umbrella Share Plan
ASML Share and Option Purchase Plan
ASML US, Inc.
2650 W.
Geronimo Place
Chandler, AZ 85224
(Name and Address of Agent For Service)
800 227 6462
(Telephone
Number, Including Area Code, of Agent For Service)
Copy to:
James A. McDonald, Esq.
Skadden, Arps, Slate, Meagher & Flom (UK) LLP
40 Bank Street
Canary
Wharf, London E14 5DS
United Kingdom
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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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
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(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
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Amount
to be
registered
(1)
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Proposed
maximum
offering
price
per share (2)(3)
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Ordinary shares, nominal value EUR 0.09 per share
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1,266,753
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$99.69
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$126,282,600
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$14,674
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Options to acquire ordinary shares, nominal value
EUR 0.09 per share
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177,000
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$99.69
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$17,645,130
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$2,050
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Total
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$143,927,730
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$16,724
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(1)
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This Registration Statement shall also cover any additional Ordinary Shares, nominal value EUR 0.09 per share (“Ordinary Shares”) of ASML Holding N.V. (the “Registrant”), that become issuable in
respect of the securities identified in the above table under the (i) ASML Board of Management Umbrella Share Plan, (ii) ASML Employee Umbrella Share Plan and (iii) ASML Share and Option Purchase Plan (collectively, the “Plans”)
by reason of any share dividend, share split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of Ordinary Shares registered hereunder.
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(2)
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Pursuant to Rule 457(h) under the Securities Act of 1933 (the “Securities Act”), the proposed maximum offering price of the Ordinary Shares being registered hereby is not known and has been determined in
accordance with Rule 457(h)(1) and 457(c) based on the average high and low price of the Ordinary Shares on April 8, 2015.
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(3)
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Pursuant to Rule 457(h) under the Securities Act, the proposed maximum offering price of the options to acquire Ordinary Shares being registered hereby is not yet known and is determined in accordance with Rule
457(h)(1) as of April 8, 2015.
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INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
All information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 (the “Securities Act”) and the Note to Part I of Form S-8.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents filed with or
furnished to the Securities and Exchange Commission (the “Commission”) by the Registrant pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”) are incorporated herein by reference:
(a) the Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2014; and
(b) the description of the Ordinary Shares, contained in the Registrant’s Report of a Foreign Private Issuer on Form 6-K furnished to the
Commission on February 8, 2013.
All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, and, to the extent designated therein, certain reports on Form 6-K we submit to the Commission after the date hereof, prior to the filing of a post-effective amendment 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 herein and to be a part hereof from the date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein 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
document that is or is deemed to be incorporated by reference herein modifies or supersedes such previous statement. Any statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so
modified or superseded.
Description of Securities.
Not applicable.
Interests of Named Experts
and Counsel.
The legality of the securities offered hereby has been passed upon by the general counsel of the Registrant, who
participates in share and share option plans of the Registrant.
Indemnification of Directors and Officers.
The articles of association of the Registrant require the Registrant to indemnify members of the supervisory board and board of management
against liabilities (including reimbursement of legal expenses) incurred due to acts or omissions in acting in such capacity, except (i) to the extent that a court in the Netherlands irrevocably establishes that such acts or omissions are the
result of willful misconduct or intentional recklessness (unless the denial of indemnification or reimbursement of expenses would be, in view of all circumstances, contrary to reasonableness and fairness) and (ii) to the extent that such losses
are reimbursed by insurance. In addition, the Registrant’s articles of association provide that at each ordinary annual general meeting of shareholders, the shareholders may discharge the supervisory board and the board of management from
liability for the performance of their respective duties in the preceding financial year. Under Netherlands’ law, this discharge is not absolute and would not be effective as to any matter not disclosed in the annual accounts of the Registrant
and the report of the board of management, as presented to or adopted by the general meeting of shareholders. Members of the board of management and the supervisory board of the Registrant are also party to agreements with the Registrant providing
for indemnification by the Registrant in circumstances similar to those provided for in the Registrant’s articles of association as described above. In addition, members of the board of management,
the supervisory board and certain officers of the Registrant are, to a limited extent, insured under an insurance policy against damages resulting from their conduct when acting in their
capacities as such.
Exemption from Registration Claimed.
Not Applicable.
Exhibits.
The list of exhibits is set forth under “Index of Exhibits” at the end of this Registration Statement and is incorporated herein by
reference.
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;
(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 the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply if the
information required to be included in a post-effective amendment of this Registration Statement by those paragraphs is contained in periodic reports filed with or furnished to the Commission 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 benefit plan’s annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in the 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 Commission 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.
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 authorized, in the city of Veldhoven, The Netherlands on this, the 13
th
day of April 2015.
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ASML Holding N.V.
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By:
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/s/ Peter T.F.M. Wennink
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Name: Peter T.F.M. Wennink
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Title: President and Chief Executive Officer and Member of the Board of Management of ASML Holding N.V.
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Peter T.F.M. Wennink and Wolfgang U. Nickl, and each of them singly, his or
her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them singly, for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-8 of ASML, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting to the
attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney may be executed in counterparts.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons, in the
capacities indicated and on the 13
th
day of April 2015.
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Signature
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Title
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/s/ Peter T.F.M. Wennink
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President and Chief Executive Officer and
Member of the Board of Management of ASML
Holding
N.V.
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Name: Peter T.F.M. Wennink
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/s/ Arthur P.M. van der Poel
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Chairman of the Supervisory Board
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Name: Arthur P.M. van der Poel
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Vice Chairman and Member of the Supervisory Board
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Name: Fritz W. Fröhlich
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/s/ Carla M.S. Smits-Nusteling
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Member of the Supervisory Board
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Name: Carla M.S. Smits-Nusteling
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/s/ Johannes (Hans) M.C. Stork
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Member of the Supervisory Board
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Name: Johannes (Hans) M.C. Stork
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Member of the Supervisory Board
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Name: Douglas A. Grose
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Signature
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Title
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/s/ Pauline F.M. van der Meer Mohr
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Member of the Supervisory Board
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Name: Pauline F.M. van der Meer Mohr
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/s/ Wolfgang H. Ziebart
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Member of the Supervisory Board
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Name: Wolfgang H. Ziebart
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/s/ Wolfgang U. Nickl
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Executive Vice President, Chief Financial Officer, Principal Accounting Officer and Member of the Board of Management of ASML Holding N.V.
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Name: Wolfgang U. Nickl
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Authorized Representative in the United States
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By:
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/s/ David Kim
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Name: David Kim
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INDEX OF EXHIBITS
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Exhibit
Number
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Description
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4.1
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English Translation of the Articles of Association of the Registrant (incorporated by reference to Exhibit 1.1 to Amendment No. 13 to the Registrant’s Registration Statement on Form 8-A filed with the Commission
on February 8, 2013)
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4.2
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Specimen Certificate for New York Shares (incorporated by reference to Exhibit 1.1 to Amendment No. 4 to the Registrant’s Registration Statement on Form 8-A filed with the Commission on June 6,
2000)
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4.3
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ASML Board of Management Umbrella Share Plan*
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4.4
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ASML Employee Umbrella Share Plan (incorporated by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-8 filed with the Commission on December 19, 2013)
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4.5
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ASML Share and Option Purchase Plan*
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5.1
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Opinion of Robert F. Roelofs regarding the legality of the securities being registered*
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23.1
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Consent of Deloitte Accountants B.V.*
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23.2
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Consent of Robert F. Roelofs (included in his opinion filed as Exhibit 5.1)*
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24.1
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Power of Attorney (included on the signature page of this Registration Statement)*
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Exhibit 4.3
ASML Board of Management Umbrella Share Plan
BoM Master Plan relating to the Grant of Equity Incentives
Adopted by the Supervisory Board on 19 November 2013
Effective Date 1 January 2014
TABLE OF CONTENTS
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Related documents
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2
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Introduction
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3
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Article 1 – Definitions
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3
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Article 2 – Interpretation
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6
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Article 3 – Availability of Company Shares
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7
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Article 4 – Powers of the Supervisory Board
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7
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Article 5 – Non-transferability of Grants
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8
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Article 6 – Frequency of Grants
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8
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Article 7 – Grant Notifications
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9
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Article 8 – Performance Shares and Long-Term Incentives
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9
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Article 9 – Termination
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10
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Article 10 – Variation of Share capital
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11
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Article 11 – Dissolution or Liquidation
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11
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Article 12 – Status of Board of Management Umbrella Share Plan and Grants
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11
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Article 13 – Shareholder rights
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12
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Article 14 – Taxes and Social Security
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12
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Article 15 – Costs
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13
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Article 16 – Insider Trading
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13
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Article 17 – Notification
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14
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Article 18 – Data Protection
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14
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Article 19 – Amendments
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14
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Article 20 – Breaches
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15
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Article 21 – Governing Law
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15
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Related documents
In the ASML Board of Management Umbrella Share Plan reference is made to the Insider Trading Rules and the Articles of Association. These documents can be
found on the ASML Intranet or the ASML website on Internet.
2 of 15
Introduction
ASML Holding N.V. (“the Company”) wishes to operate the Board of Management Umbrella Share Plan for the purposes of recognising and rewarding Members
of the Board of Management for their contributions to the success of the Company, creating an ownership culture, aligning their interests to those of the Company’s shareholders, strengthening their long-term commitment to the Company and
providing them with the opportunity to become shareholders of the Company. The main purpose of the grants of Equity Incentives under the Board of Management Umbrella Share Plan is to continue to attract, reward and retain qualified and experienced
top executive industry professionals in an international labour market.
Under the Board of Management Umbrella Share Plan, different types of Equity
Incentives may be granted to Members of the Board of Management from time to time. The Board of Management Umbrella Share Plan contains (i) this BoM Master Plan, outlining the general terms and conditions that apply to different types of Equity
Incentives; (ii) a separate Grant Notification for each type of Equity Incentive setting out the specific terms and conditions that apply to that particular Grant; and (iii) Operating Guidelines containing governance rules.
This Board of Management Umbrella Share Plan is applicable to all new Grants to be made as of the Effective Date under the then current Remuneration Policy
including the Long-Term Incentive.
Article 1 – Definitions
In this BoM Master Plan, the Grant Notification and the Operating Guidelines, unless the context otherwise requires, the following definitions will apply
unless explicitly expressed otherwise:
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Adoption
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adoption of the terms and conditions of the Board of Management Umbrella Share Plan by the Supervisory Board;
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Adoption Date
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the date on which the Board of Management Umbrella Share Plan is adopted;
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Agreement
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the terms of employment or the terms and conditions of the management service agreement agreed between the Participant and the Company as amended from time to time;
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Articles of Association
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the articles of association of the Company as registered with the Chamber of Commerce and as amended from time to time;
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Board of Management
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the board of management of the Company as mentioned in the Articles of Association;
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Board of Management
Umbrella Share Plan
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this BoM Master Plan; the Operating Guidelines; and the Grant Notification.
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Business Conditions
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any situation in which the termination of the Participant’s Agreement is caused by economic circumstances or other business reasons associated with the Company and is in any event or situation not based on the
Participant’s individual performance;
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BoM Master Plan
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this master plan for Equity Incentives relating to Company Shares;
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3 of 15
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BoM USP Committee
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a person or committee of persons designated by the Supervisory Board to exercise powers in relation to the Board of Management Umbrella Share Plan in accordance with Article 4.1 whose responsibilities are subject to the Operating
Guidelines;
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Change of Control
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an event as defined in the Agreement;
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Company
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ASML Holding N.V., having its registered seat at De Run 6501, 5504 DR Veldhoven, the Netherlands, registered with the Dutch Chamber of Commerce (
Kamer van Koophandel
) of Brabant under registration number
17085815;
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Company Share
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an ordinary share in the capital of the Company, having a nominal value of EUR 0.09 (nine eurocents) or any other nominal value such share may have in the future, as traded on the Stock Exchange;
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Closed Period
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a period during which certain Individuals, including and as defined as so-called Designated Employees, are not allowed to execute any transactions in or rights to Company Shares. Such a Closed Period includes the periods
prior to publication of the Company’s annual and quarterly results, as well as any other period in which it is prohibited to execute transactions, as further determined and defined in the Insider Trading Rules;
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Delivery
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the delivery (‘
levering
’) of Company Shares to the securities account of a Participant, constituting the legal transfer of ownership and shareholder’s rights to the Participant, whereby “Delivery”,
“Delivered” and “Delivery Date” shall be construed and interpreted accordingly;
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Effective Date
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the date as from which the Board of Management Umbrella Share Plan is effective, as specified on the title page;
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Equity Incentives
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Performance Shares or any other type of Long-Term Incentive Granted under the Board of Management Umbrella Share Plan;
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Fair Market Value
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the closing price of a Company Share on the Stock Exchange as reported on the daily list or any such other appropriate source on any transaction date and if, on any such date no such price exists, the closing price of a Share on
the Stock Exchange as reported on the daily list or any such other appropriate source on the nearest preceding day on which such a price exists;
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General Meeting
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the general or an extraordinary meeting of shareholders of the Company as mentioned in the Articles of Association;
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Grant
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the grant of an Equity Incentive;
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Grant Date
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the date on which a Grant is made to a Participant, which is specified in the relevant Grant Notification;
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4 of 15
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Grant Notification
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the document issued by the Company to the Participant which specifies the details of a specific Grant;
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Holding Period
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the period after the Vesting Date during which the Company Shares acquired by a Participant are subject to Transfer Restrictions as specified in the relevant Grant Notification or as otherwise required in order to comply
with applicable law or Company policies;
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Insider Trading Rules
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the internal ASML Rules on Insider Trading as published by the Company on its website, as may be amended from time to time;
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Long-Term Incentive
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the essential features of the long-term share-based incentive component of the total remuneration package for the Board of Management as included in the Remuneration Policy;
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Member of the
Board of Management
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a member of the Board of Management as appointed in such capacity by the Supervisory Board after notification to the General Meeting; such member may either be employed by the Company or may provide similar management services
for the Company on the basis of an Agreement;
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Operating Guidelines
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the guidelines to the Board of Management Umbrella Share Plan that govern, inter alia, the process and settlement of Grants, the administration of the Board of Management Umbrella Share Plan and the powers delegated to the BoM
USP Committee;
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Participant
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a Member of the Board of Management to whom a Grant has been made by way of a Grant Notification under the Board of Management Umbrella Share Plan;
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Performance Condition
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one or more performance targets set at the Grant Date specified in the relevant Grant Notification that should be achieved during the relevant Performance Period in order to determine the level of Vesting of Grants on the Vesting
Date;
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Performance Period
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the period, as determined in the relevant Grant Notification, over which the attainment of Performance Conditions is measured;
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Performance Shares
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a right granted under the Board of Management Umbrella Share Plan by the Company to the Participant to receive Company Shares after the fulfilment of the Vesting requirements, including the achievement of the Performance
Conditions;
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Remuneration Policy
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the remuneration policy for the Board of Management of the Company, as adopted by the General Meeting and as amended from time to time;
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Retirement
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the reaching of the normal statutory retirement age in a given country at which an individual becomes entitled to a state old age pension. This statutory retirement age can only be lowered if and to the extent that the Member of
the Board of Management is entitled to a form of early retirement in accordance with the prevailing pension agreement as applicable on Company level
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5 of 15
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Stock Exchange
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the stock exchange of NYSE Euronext Amsterdam, the Netherlands; or the NASDAQ Stock Market, New York, United States of America, where Company Shares are traded;
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Supervisory Board
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the supervisory board of the Company as mentioned in the Articles of Association;
|
|
|
|
|
Total and Permanent
Disability
:
|
|
the mental or physical disability, whether occupational or non-occupational in cause, which satisfies such definition in any insurance policy or plan provided to the Participant by the Company or, alternatively, the
Participant’s applicable national legislation pertaining to persons with disability;
|
|
|
|
|
Transfer Restrictions
:
|
|
restrictions during the Holding Period in respect of selling and transferring, and/or assigning, charging, pledging, encumbering and hedging of any Company Shares acquired upon Delivery following Vesting of Equity Incentives as
determined in the relevant Grant Notification;
|
|
|
|
|
Vest/Vesting
:
|
|
the satisfaction of continued employment conditions, Performance Conditions, or any other requirements or conditions, as the case may be, attached to Equity Incentives as determined in the Board of Management Umbrella
Share Plan; and
|
|
|
|
|
Vesting Date
:
|
|
the date on which an Equity Incentive Vests as specified in the relevant Grant Notification.
|
Article 2 – Interpretation
Words or expressions used in the Plan shall where appropriate:
|
(i)
|
when denoting the masculine gender include the feminine and vice versa;
|
|
(ii)
|
when denoting the singular include the plural and vice versa;
|
|
(iii)
|
when referring to any enactment be construed as a reference to that enactment as for the time being consolidated, amended, re-enacted or replaced and shall include any regulations made there under;
|
|
(iv)
|
when referring to the Articles or a specific Article be taken to refer to the terms and conditions of this BoM Master Plan;
|
|
(v)
|
when a period of time is specified and starts from a given day or the day of an act or event, be calculated inclusive of that day;
|
|
(vi)
|
be construed such that the headings and sub-headings are for ease of reference only, and do not affect the interpretation of any Article;
|
|
(vii)
|
when referring to any enactment or regulations under Dutch law be construed at the discretion of the Supervisory Board as a reference to other applicable laws or regulations of any other country (or region of a
country); and
|
|
(viii)
|
references to tax and/or social security contributions and/or withholding taxes shall for the avoidance of doubt include the Netherlands and any other jurisdiction to which a Participant may be subject.
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Article 3 – Availability of Company Shares
The Company shall at all times have sufficient treasury shares and the relevant authorizations to issue Company Shares to satisfy the Delivery of all
Performance Shares and/or any other type of Long-Term Incentives Granted, notwithstanding any other obligations of the Company to procure the provision of Company Shares. The Company shall not issue nor procure the Delivery of Company Shares to
Participants until reasonable efforts have been undertaken to secure that the Company will carry out, any reporting obligations in respect of the Delivery of Company Shares.
Article 4 – Powers of the Supervisory Board
|
4.1
|
Administration of the Board of Management Umbrella Share Plan
– The Supervisory Board is responsible for the application of the Remuneration Policy, including the Grant of the Equity Incentives. As
such, the Supervisory Board is responsible for the application of the Board of Management Umbrella Share Plan, which is a further elaboration of the Granting of the Equity Incentives as included in the Remuneration Policy. Taking into consideration
applicable rules and regulations, the Supervisory Board shall have such powers and authority as set out in this BoM Master Plan. Furthermore, the Supervisory Board shall determine as soon as practicable after the Adoption Date when, how and to what
extent any of its powers shall be delegated to the BoM USP Committee. The Supervisory Board will, subject to the applicable legal requirements, issue the Operating Guidelines setting out the powers of the BoM USP Committee and the procedures
following which the Board of Management Umbrella Share Plan shall be operated provided that, in the event of a conflict between any provision of the Operating Guidelines and the BoM Master Plan, the BoM Master Plan shall prevail. The Supervisory
Board has the authority to amend or withdraw any such delegation of powers at any time.
|
|
4.2
|
Powers of the Supervisory Board
– In accordance with applicable rules and regulations, the Supervisory Board shall have the authority and complete discretion to:
|
|
|
(i)
|
adopt the terms and conditions of the Board of Management Umbrella Share Plan;
|
|
|
(ii)
|
select members of the Board of Management for participation in the Board of Management Umbrella Share Plan taking into account the Remuneration Policy;
|
|
|
(iii)
|
determine the type and number of Equity Incentives to be Granted to Members of the Board of Management and the terms and conditions that apply to the Equity Incentives, in accordance with the Long-Term Incentive;
|
|
|
(iv)
|
decide on the total number of Company Shares to be used to give effect to Grants in accordance with the Long-Term Incentive;
|
|
|
(v)
|
determine, for each Grant of Performance Shares to Members of the Board of Management, the Performance Condition that will be attached to such Grant in accordance with the Long-Term Incentive;
|
|
|
(vi)
|
make Grants to Members of the Board of Management;
|
|
|
(vii)
|
determine, in respect of Grants to which a Performance Condition is attached, the level of Vesting of such Grant on the Vesting Date, taking into account the satisfaction of continued employment or service conditions of
the Agreement and/or any other Vesting conditions;
|
|
|
(viii)
|
determine, in respect of Grants to which no Performance Condition is attached, that the Grant has Vested on the Vesting Date;
|
|
|
(ix)
|
make any adjustments to the Board of Management Umbrella Share Plan and/or outstanding Grants in the event of a Change of Control;
|
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|
|
(x)
|
decide to Grant to Members of the Board of Management a type of share-based incentive under the Board of Management Umbrella Share Plan other than those explicitly mentioned in the definition of Equity Incentive as
included in the Remuneration Policy;
|
|
|
(xi)
|
construe and interpret the provisions of the Board of Management Umbrella Share Plan;
|
|
|
(xii)
|
authorize any person, other than the BoM USP Committee members, to execute on behalf of the Company, any instrument required to effectuate a Grant; and
|
|
|
(xiii)
|
make all other determinations deemed necessary or desirable for the administration of the Board of Management Umbrella Share Plan.
|
|
4.3
|
Ultimate remedium and claw back
– The Supervisory Board has the authority to adjust the number of unvested Equity Incentives or Vested Equity Incentives subject to Transfer Restrictions during the
Holding Period and/or to fully or partially recover Vested Equity Incentives subject to the terms and conditions as contained in or applicable to the Agreement.
|
|
4.4
|
Interpretation
– The Supervisory Board’s interpretation and construction of any provision of the BoM Master Plan or of any Grant Notification shall be final and binding on all persons claiming an
interest in a Grant effected under the Board of Management Umbrella Share Plan. The Supervisory Board shall not be liable for any action or determination made in good faith with respect to the Board of Management Umbrella Share Plan.
|
Article 5 – Non-transferability of Grants
|
5.1
|
Notwithstanding the situation as mentioned in Article 9.1, the following restrictions apply to the transfer of Grants:
|
|
|
(i)
|
Participants are not permitted to transfer, assign, charge, pledge, encumber or hedge the rights to Company Shares granted to them under the Board of Management Umbrella Share Plan.
|
|
|
(ii)
|
Prior to a Delivery, Participants shall not be permitted to conclude any transaction in relation to the Grants on any Stock Exchange. Any attempt by a Participant to effect such a transaction shall cause such Grant to
lapse with immediate effect and become null and void.
|
|
|
(iii)
|
Following a Delivery, Participants may be subject to Transfer Restrictions during a Holding Period as determined in the relevant Grant Notification.
|
|
5.2
|
In addition, a Participant’s rights to Company Shares under the Board of Management Umbrella Share Plan cannot be subject, in any manner, to alienation, sale, transfer, pledge, hedging, attachment or garnishment by
creditors of the Participant. Any attempt by a Participant to make his rights subject to such actions shall cause such Grant to lapse with immediate effect and to become null and void.
|
Article 6 – Frequency of Grants
|
6.1
|
Grants will be made annually, on a fully discretionary basis, in a consistent manner relating to frequency and timing and based on a maximum number of underlying Company Shares available for Grants.
|
|
6.2
|
The Grant Date shall be the second trading day on the Stock Exchange following the date of the publication of the annual financial results of the Company.
|
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|
6.3
|
Only in those events that Grants are made to a Member of the Board of Management who is appointed by the Supervisory Board upon notification to the General Meeting in an extraordinary shareholders’ meeting, the
Grant Date shall be the second trading day on the Stock Exchange following the date of the publication of the first quarterly results of the Company following the date of the effective date of his appointment.
|
|
6.4
|
Where the second trading day on the Stock Exchange falls within a Closed Period, the Grant Date shall be set at the first date these transfer restrictions are lifted.
|
Article 7 – Grant Notifications
|
7.1
|
Subject to Article 21.3, each Grant shall be evidenced by a written Grant Notification concluded between the Member of the Board of Management and the Company, setting forth the terms and conditions pertaining to such
Grant. Grant Notifications shall, together and concurrently with the BoM Master Plan, govern the Grant in accordance with local legal and regulatory requirements.
|
|
7.2
|
Subject to Articles 8.1 and 8.2, the Grant Notification may contain such other provisions as deemed desirable by the Supervisory Board, including without limitation:
|
|
|
(i)
|
the Vesting requirements, including, inter alia, the requirement to be continuously employed or to provide similar management services continuously under the Agreement from the Grant Date up to and including the
relevant Vesting Date; and
|
|
|
(ii)
|
the procedure to facilitate the payment of withholding taxes in accordance with Article 14.
|
|
7.3
|
The Member of the Board of Management shall be deemed to have accepted the Grant at the Grant Date unless the Member of the Board of Management has given written notice to the Company within 30 days following the Grant
Date that he does not accept the Grant. By acceptance of the Grant, the Member of the Board of Management acknowledges to have received a copy of the BoM Master Plan and fully understands and agrees to its terms and conditions.
|
Article 8 – Performance Shares and Long-Term Incentives
|
8.1
|
Performance Shares may be granted to selected Members of the Board of Management, whereby the Grant Notification shall specify, inter alia, the Grant Date, the Vesting Date, the number of Performance Shares, the
Performance Condition including the possible Vesting levels, the Performance Period and the Transfer Restrictions during the Holding Period.
|
|
8.2
|
In case the Remuneration Policy contains types of Long-Term Incentive other than Performance Shares, such other Equity Incentive(s) may be granted to selected Members of the Board of Management, whereby the Grant
Notification shall specify, inter alia, the Grant Date, the Vesting Date, the number of Company Shares comprised in the Grant, the Performance Condition (if any) including the possible Vesting levels, the Performance Period or Vesting Period and the
Transfer Restrictions during the Holding Period.
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Article 9 – Termination
|
9.1
|
Death
– In case of the decease of a Participant, any of his Equity Incentives that have not yet Vested at the date of his decease shall Vest in full immediately upon such date and will be settled in
cash at the Fair Market Value of the Company Share at such date. The Vesting requirement relating to the Performance Condition shall not be applied and the Equity Incentive shall be deemed to Vest. The cash proceeds of such settlement shall be paid,
subject to Article 14, to his legal personal representatives (or, if appropriate, his designated beneficiary or beneficiaries and in the event of there being no designated beneficiary or beneficiaries, his estate) as soon as practically possible
following the date of his decease.
|
|
9.2
|
Total and Permanent Disability, Retirement, or Business Conditions
– If a Participant ceases to be employed by the Company or ceases to provide similar management services under the Agreement:
|
|
|
(i)
|
by reason of Total and Permanent Disability; or
|
|
|
(ii)
|
by reason of Retirement; or
|
|
|
(iii)
|
by virtue of termination of employment by the Company due to or following from Business Conditions as determined by the Supervisory Board in their absolute discretion;
|
then any of his Equity Incentives that have not yet Vested at such date of termination of employment or services shall continue to Vest upon
the Vesting Date stated in the Grant Notification and/or all or any of his Performance Shares shall continue to Vest upon the Vesting Date stated in the Grant Notification.
|
9.3
|
Fraud, gross negligence, wilful misconduct
– If a Participant is dismissed in his capacity as Member of the Board of Management and is given notice to terminate the Agreement in circumstances
involving fraud, gross negligence or wilful misconduct, all of his Equity Incentives shall lapse on the date that such notice of termination of employment or services is given. In addition, the Participant is required to sell any Company Shares
Delivered under the Board of Management Umbrella Share Plan that are subject to Transfer Restrictions immediately prior to terminating the Agreement, to the Company or a person indicated by it for a price equal to the Fair Market Value of the
Company Share at the date that such notice of termination of employment or similar management services is given, multiplied by the number of Company Shares acquired.
|
|
9.4
|
Completion of term of appointment
– Upon completion of the term of appointment as Member of the Board of Management without being nominated for re-appointment, all unvested Performance Shares shall
remain outstanding and shall Vest in accordance with the Vesting requirements relating to the Performance Conditions initially set at the Grant Date.
|
|
9.5
|
Other reasons for termination in respect of Equity Incentives
– If a Participant ceases to be employed by the Company or ceases to provide similar management services under the Agreement for any
reason other than those listed in Articles 9.1, 9.2, 9.3 and 9.4, the right to receive any Performance Shares that have not Vested prior to or on the date of such termination of employment or similar management services shall lapse with immediate
effect and become null and void. All Grants that have thus become null and void will do so without Participants being entitled to any compensation in this respect from the Company.
|
|
9.6
|
Transfer Restrictions during the Holding Period
– If a Participant ceases to be employed by the Company or ceases to provide
similar management services under the Agreement and owns Company Shares acquired through the Vesting of Performance Shares which are subject to Transfer Restrictions during a Holding Period, such Company Shares will not lapse upon such termination
of employment or
|
10 of 15
|
|
similar management services, but such Company Shares will remain subject to the Transfer Restrictions as set out in the Grant Notification. In case of the decease of a Participant in accordance
with Article 9.1, Company Shares acquired through the Vesting of Performance Shares which are subject to Transfer Restrictions will no longer be subject to the Transfer Restrictions unless the Grant Notification explicitly determines otherwise.
|
Article 10 – Variation of Share capital
|
10.1
|
The number of Equity Incentives subject to a Grant or the value of Equity Incentives may be adjusted in the event of a change of the Company’s share capital that affects the value of Grants made under the Board of
Management Umbrella Share Plan. Such adjustments will be made by the Company in a manner the Company considers to be fair and reasonable, without any obligation for the Company to make such adjustment. The Company is under no obligation to
compensate Participants in the event of such an adjustment.
|
|
10.2
|
Events that may affect the share capital of the Company are: (i) a stock split, (ii) a reverse stock split, (iii) any other capitalisation issue, rights issue or rights offer or (iv) any reduction,
sub-division, consolidation or other change in the share capital of the Company.
|
|
10.3
|
Any adjustments made based on this Article 10 may upon request of the Supervisory Board be reviewed by an independent expert on the basis of the principles of reasonableness and fairness. Notwithstanding the provisions
of this Article 10, the decision made by the Company as to whether or not such adjustments are to be made shall be conclusive and binding. The Participant will be notified in writing as soon as possible on the adjustments made to their Equity
Incentives.
|
Article 11 – Dissolution or Liquidation
In the event of a proposed dissolution or liquidation of the Company, unvested Equity Incentives shall lapse immediately prior to the dissolution or
liquidation taking place. However the Supervisory Board is authorised to allow for the immediate Vesting and/or mandatory sale of Vested Equity Incentives immediately preceding the moment the dissolution or liquidating taking place.
Article 12 – Status of Board of Management Umbrella Share Plan and Grants
|
12.1
|
The Board of Management Umbrella Share Plan is not part of the Participant’s employment agreement (or similar management services agreement) with the Company, and shall not be construed to give any Participant the
right to remain in the employ of or to provide services to the Company.
|
|
12.2
|
A Grant made under this Plan cannot be considered a guarantee to the Participant that the employment (or similar management services arrangement) under the Agreement will continue.
|
|
12.3
|
Any benefits derived by the Participant under this Plan shall not be taken into account for the purposes of determining the Participant’s contribution or entitlement to benefits under any pension arrangement or for
the purposes of determining any other claim for compensation the Participant may have against the Company.
|
11 of 15
|
12.4
|
Where the employment of the Participant terminates for whatever reason, the Participant shall not be entitled to any compensation or damages including damages following unfair dismissal, any other form of breach of
contract or any claim for compensation for the loss of employment insofar as such compensation or damages arise or may arise from the Participant ceasing to have rights under, or ceasing to be entitled to receive Equity Incentives under this Board
of Management Umbrella Share Plan as a result of such termination. The Plan shall not at any time affect the rights of the Company to terminate such Participant’s status as an employee or similar management services provider under the
Agreement, whether with or without cause.
|
|
12.5
|
The Grant of an Equity Incentive shall not entitle the Participant to receive any other Grant under the Board of Management Umbrella Share Plan or to participate in any other plan operated by the Company now or in
future. The Grant of an Equity Incentive shall not preclude the Participant from receiving any other Grant or other grant under the Board of Management Umbrella Share Plan or from participating in any other plan operated by the Company now or in
future.
|
|
12.6
|
The Plan is intended to constitute an unfunded plan for incentive compensation. Prior to the Delivery of Company Shares, cash or other form of payment in connection with an Equity Incentive, nothing contained herein
shall give any Participant any rights that are greater than those of a general unsecured creditor of the Company.
|
Article 13 –
Shareholder rights
|
13.1
|
Company Shares Delivered pursuant to the Board of Management Umbrella Share Plan will be Delivered without the benefit of any rights (including shareholder rights) attaching thereto preceding the date of Vesting. This
also includes Participants having no right to receive dividends or exercise voting rights with respect to Equity Incentives granted under the Board of Management Umbrella Share Plan that have not Vested.
|
|
13.2
|
Company Shares Delivered shall be identical and rank pari passu in all respects with the shares in the same class then in issue.
|
Article 14 – Taxes and Social Security
|
14.1
|
Any personal taxes that result from participation in the Board of Management Umbrella Share Plan or from any amendment to the terms and condition of this Plan shall be entirely for the account of the Participant.
Personal taxes may include, but are not limited to, levies such as wage tax, income tax, net wealth tax, capital gains tax, share transfer tax, employee social security and social insurance including mandatory health insurance contributions.
|
|
14.2
|
Each Participant is ultimately responsible for reporting taxable income in his annual personal income tax return. Furthermore, any consequences of Participation in the Board of Management Umbrella Share Plan for among
others pension arrangements, early retirement arrangements, social benefits or income level dependent regulations, such as subsidies and allowances, are entirely for the account of the Participant.
|
12 of 15
|
14.3
|
It shall be a condition pursuant to the obligation of the Company, to issue or to procure the Delivery of Company Shares to a Participant and the Participant (or in the event of his decease, such person, persons or
estate mentioned in Article 9.1) shall permit the Company to account for an amount equal to any wage or income tax, employee’s social security contributions liability and any other liabilities for which the Company has an obligation to withhold
and account. Consequently, they have the right to make withholdings from the Participant’s salary or variable compensation (e.g. bonus payments, holiday allowance) to meet any withholding obligations that result from the participation in the
Board of Management Umbrella Share Plan.
|
|
14.4
|
In order to meet its obligations, the Participant may be given the possibility to sell sufficient Company Shares to meet his liabilities under Article 14.1 above, unless the relevant Grant Notification determines
otherwise. To that effect, the Participant may permit the Company, to retain from the sale proceeds an amount equal to such liability and any balance amount will be paid to the Participant.
|
|
14.5
|
Whenever Company Shares are to be Delivered or issued under the Plan, the Company may require the Participant to remit to the Company an amount sufficient to satisfy all withholding tax requirements, as mentioned in
this Article 14.1, prior to the Delivery of the Company Shares, including, but not limited to, the withholding of wage tax, income tax and employee social security contributions.
|
|
14.6
|
The Board of Management Umbrella Shares Plan is governed by the applicable tax and social security legislation and regulations prevailing at the Effective Date. If any tax and/or social security legislation or
regulations are amended at any time after the Effective Date and any tax or employee social security levies become payable, the costs and risks related thereto shall be borne by the Participant.
|
|
14.7
|
For the avoidance of doubt, the provisions of Article 14.3 through 14.5 shall apply to a Participant’s liabilities that may arise on the (i) Grant, Vesting and/or exercise of an Equity Incentives; and
(ii) the Vesting and/or Delivery of his Equity Incentive Company Share Grants in more than one jurisdiction.
|
|
14.8
|
Except as described in this Article 14, any tax, employee’s social security contributions or similar liabilities arising out of the disposal of Shares shall be the responsibility of the Participant alone.
|
Article 15 – Costs
|
15.1
|
The costs associated with the sale and retention of Company Shares shall be borne by the Participant.
|
|
15.2
|
The costs relating to the issue and/or acquisition of Company Shares by the Company to meet its obligations under the Board of Management Umbrella Share Plan shall be payable by the Company.
|
Article 16 – Insider Trading
|
16.1
|
Participants shall be subject to and bound by the terms and conditions of the internal Insider Trading Rules and statutory insider trading rules as well as other statutory rules, applicable at the time. Such rules may
restrict the rights of the Participants under this Plan.
|
|
16.2
|
Participants are deemed to be familiar and are responsible for complying with the Insider Trading Rules and any other information, guidance and/or regulations issued by the Company or relevant government or regulatory
bodies. The Company shall incur no liability should the Participant act in breach of these Insider Trading Rules.
|
13 of 15
Article 17 – Notification
|
17.1
|
Notices from the Company to (potential) Participants with respect to the Board of Management Umbrella Share Plan shall be regarded as correctly addressed if sent to the address as recorded in the staff records
department of the Company.
|
|
17.2
|
Participants are obliged to timely notify the Company of any change of address, even if the Participant terminated his employment or similar services arrangement with the Company. The Company does not have an obligation
to verify that the address information, including the e-mail address information of Participants as contained in the staff records is correct.
|
|
17.3
|
Adverse consequences from incomplete or incorrect address information in the staff records are for the account of the Participant, unless the Participant is able to legally prove, which goes beyond making a credible
claim, that the Participant notified the Company in a timely and correct manner of the complete and correct address.
|
|
17.4
|
Notices from (potential) Participants to the Company shall be considered correctly addressed if sent for the attention of the designated plan administrator to the address of the Company as listed with the Chamber of
Commerce.
|
Article 18 – Data Protection
|
18.1
|
In the execution of the Board of Management Umbrella Share Plan, the Company will respect and comply with applicable data protection laws. The Participant will be requested to consent electronically to the processing,
collection, recording, organising, storing and adapting of personal data by the Company or third party administrators involved in the operation and administration of this Board of Management Umbrella Share Plan and for that purpose only. This may
also include transferring such information to countries or territories that fall outside of the European Economic Area and which may not provide the same level of data protection as the European Economic Area or the Participant’s home country.
The Participant acknowledges that this may restrict the Participant’s rights.
|
|
18.2
|
The Participant has the right to access and/or correct personal data by himself and, if and when necessary, by contacting the local HR representative.
|
Article 19 – Amendments
|
19.1
|
Subject to the necessary approvals and/or consents required by applicable rules and regulations the Supervisory Board may from time to time at its absolute discretion amend any of the terms and conditions of the Board
of Management Umbrella Share Plan by means of an amendment agreement.
|
|
19.2
|
No amendment, waiver or replacement to or of the Board of Management Umbrella Share Plan, any rules or regulations for the administration of this Board of Management Umbrella Share Plan shall be made to the extent to
which it would have a detrimental effect on any of the existing rights of Participants without such prior consent on their part.
|
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Article 20 – Breaches
|
20.1
|
If a Participant breaches the provisions of the Board of Management Umbrella Share Plan, dependent on the breach, the Supervisory Board may decide at its sole discretion that the relevant Grants will become null and
void. A notification will be sent accordingly to the Participant.
|
|
20.2
|
The decision of the Supervisory Board in any dispute or question relating to any Grant to Members of the Board of Management shall be final and conclusive subject to the terms and conditions of the Board of Management
Umbrella Share Plan.
|
|
20.3
|
The provisions of a Grant Notification shall govern and prevail in the event of any conflict with the terms and conditions of this BoM Master Plan.
|
Article 21 – Governing Law
|
21.1
|
The Board of Management Umbrella Share Plan is governed by the laws of the Netherlands. In the event part of the terms and conditions of the Board of Management Umbrella Share Plan are ruled to be null and void by a
judge, the undisputed terms and conditions will remain in force.
|
|
21.2
|
Any disputes with respect to participation in the Board of Management Umbrella Share Plan shall be settled by the Court of ‘s-Hertgenbosch, the Netherlands.
|
* * * * *
15 of 15
Exhibit 4.5
|
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Shares and Options Purchase Plan
|
|
Document name
|
|
: Purchase Plan
|
|
|
|
Modification date
|
|
: September 2014
|
|
|
|
Status
|
|
: Under Change Control
|
|
|
|
|
|
Policy Owner
|
|
Policy Maintainer
|
|
VP HR Expertise
|
|
C&B Europe
|
|
The policy owner approves the policy.
|
|
Send information or feedback to further improve this policy to the policy maintainer
|
|
|
|
|
© ASML 2014. All rights reserved.
|
|
|
|
Reproduction in whole or in part is prohibited without the prior written consent of ASML.
|
TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
2 of 12
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Shares and Options Purchase Plan
|
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Document name
|
|
: Purchase Plan
|
|
|
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Modification date
|
|
: September 2014
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Status
|
|
: Under Change Control
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TABLE OF CONTENTS
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Related documents
|
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3
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Article 1 –
|
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Definitions
|
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4
|
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|
Article 2 –
|
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General
|
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7
|
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Article 3 –
|
|
Allocation of Options and Shares
|
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7
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Article 4 –
|
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Acceptance and Release of the Options and/or Shares
|
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8
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Article 5 –
|
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Option Period
|
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|
9
|
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Article 6 –
|
|
Option Exercise Price
|
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9
|
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Article 7 –
|
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Transferability of the Option
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9
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Article 8 –
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Exercise of the Option
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10
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Article 9 –
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Allocation of Cash Premium
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10
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Article 10 –
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Dilution of Capital
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11
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Article 11 –
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Taxes and Costs
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11
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Article 12 –
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Prohibition of Insider Trading
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12
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Article 13 –
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Notices
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12
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Article 14 –
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Disputes
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12
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Article 15 –
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Amendments
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12
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|
[Related documents
In these
Conditions reference is made to the ASML Rules on Insider Trading. This document can be consulted on the ASML Intranet.]
TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
3 of 12
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Shares and Options Purchase Plan
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Document name
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: Purchase Plan
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Modification date
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: September 2014
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Status
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: Under Change Control
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Article 1 — Definitions
In these Conditions and the agreements arising from and relating thereto the following terms shall have the meanings as defined in this Article, unless
explicitly stated otherwise.
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Allocation:
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the allocation of an Option and/or Share to an Employee in accordance with Article 3 of this Plan and ‘Allocated’ shall be construed and interpreted accordingly;
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Annual Gross Base Salary:
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the annual gross base salary as applicable in the month preceding the Grant Date;
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Application Form:
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the application form for this Plan on the basis of which Options and/or Shares are Allocated to Employees
;
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ASML:
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ASML Holding N.V., having its registered seat at De Run 6501, 5504 DR Veldhoven, The Netherlands, registered with the Chamber of Commerce (Kamer van Koophandel) of Oost-Brabant under registration number 17085815;
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Board of Management:
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the Board of Management of ASML as mentioned in the articles of association of ASML;
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Cash Premium:
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a gross cash payment that the Option Holder and/or Share Holder will receive in accordance with Article 9 of this Plan;
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Conditions:
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the present terms and conditions for Options (to be) granted and Shares (to be) awarded to Employees of an ASML Group Company under the ASML Share and Option Purchase Plan, including any modifications subsequently introduced herein
in conformity with the same;
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Employee:
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a natural person who is employed with ASML or an ASML Group Company in a position with a salary grade 81 through 95 (according to ASML’s salary system applicable until July 1, 2012) or with a salary grade 1 through 15
(according to ASML’s salary system applicable of July 1 2012), and who is on its payroll or who has been assigned abroad as an expatriate or ITA by an ASML Group Company;
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Employer:
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ASML or Group Company that employs Employee;
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TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
4 of 12
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Shares and Options Purchase Plan
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Document name
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: Purchase Plan
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Modification date
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: September 2014
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Status
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: Under Change Control
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Grant Date:
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the date of Allocation of an Option and/or Share, being two days after the publication of the quarterly or annual results;
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Group Company:
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an affiliated company of ASML. Affiliation shall be construed and interpreted in accordance with section 24b of Book 2 of the Dutch Civil Code;
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Option:
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a right issued under this Plan by Employer to Option Holder to acquire one Share against payment of the Option Exercise Price during the Option Period;
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Option Exercise Price:
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the price for which Option Holder may acquire one Share upon the exercise of one Option;
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Option Holder:
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the holder of an Option, being either the person to whom an Option has been Allocated in writing and who at the time of Allocating of such Option is an Employee of ASML or who has become the holder of such Option by virtue of being
the Employee’s heir;
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Option Period:
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the period during which the Option may be exercised as determined by Articles 5 and 8 hereof;
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Option Purchase Price:
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the price for which the Option Holder may acquire one Option which price is equal to the value of one Option on the Grant Date and which price is determined by ASML on the basis of the calculation method used by ASML in line with
the applicable International Financial Reporting Standards and US GAAP accounting rules for share based remuneration provided to employees (not taking into account the payment of the Option Purchase Price);
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Plan:
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this ASML Share and Option Purchase Plan for Employees, including the appropriate Application Form and Conditions;
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Plan Agent:
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the organization to be designated by ASML and that is engaged for the implementation of the Conditions;
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Release:
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the issuance or transfer of Options and/or Shares to an employee in accordance with Article 4 of this Plan and “Release” and “Released” shall be construed and interpreted accordingly;
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Share:
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an ordinary share in the capital of ASML, having a nominal value of EUR 0.09 (nine eurocents) or any other nominal value such Share may have in the future listed on NYSE Euronext Amsterdam, The Netherlands;
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Share Holder:
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the holder of a Share, being either the person to whom a Share has been Allocated under this Plan in writing and who at the time of Allocating of such Share is an Employee of ASML or who has become the holder of such Share by virtue
of being Employee’s heir;
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TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
5 of 12
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Shares and Options Purchase Plan
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Document name
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: Purchase Plan
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Modification date
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: September 2014
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Status
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: Under Change Control
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Share Purchase Price:
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the price for which the Share Holder may acquire one Share upon Allocation which price is equal to the underlying value of one Share on the Grant Date;
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Total Purchase Price:
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the sum of the Option Purchase Price and/or Share Purchase Price payable by the Employee
;
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The terms defined above in the singular or in the plural shall also comprise the plural and vice versa, unless in the case in
concerned it can be inferred otherwise from the text of the Conditions.
TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
6 of 12
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Shares and Options Purchase Plan
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Document name
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: Purchase Plan
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Modification date
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: September 2014
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Status
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: Under Change Control
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Article 2 — General
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Option Holder and/or Share Holder is aware of the fact that participation is an investment and that the value of the Shares may rise or fall, and that ASML does not guarantee that Option Holder and/or Share Holder will derive any
benefit from participating in the Plan.
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Nothing in these Conditions or related documents by themselves or in combination shall be construed as an expressed or implied contract of employment or a guarantee of continued future employment.
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In case of a conflict between these Conditions and the Application Form, these Conditions will supersede the Application Form.
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Article 3 — Allocation of Options and Shares
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3.1
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ASML shall determine not later than November, prior to the first Grant Date of the following year, the maximum aggregate value of the Option Purchase Price and the Share Purchase Price that may be used for the purchase of Options
and/or Shares under this Plan. This aggregate value will be set as a percentage (which percentage may, for the avoidance of doubt, also be set at nil percent) of Annual Gross Base Salary at the discretion of the Board of Management. The Option
Purchase Price and Share Purchase Price is paid from Option Holder and/or Share Holder’s net periodic pay;
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3.2
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The number of Options and/or Shares to be Allocated is dependent on the requested amount as mentioned on the Application Form divided by the Option Purchase Price and/or Share Purchase Price in euro on the Grant Date. Where the
calculation results in fractional Options or Shares the actual number of Options and/or Shares will be rounded down to the nearest whole number. If the Total Purchase Price exceeds the net periodic pay of the Employee in the month preceding the Date
of Grant, the Total Purchase Price will be reduced to a maximum amount that is equal to the net periodic pay of the Employee in that month and, therefore, the number of Options and/or Shares that are Allocated to the Employee are reduced as deemed
fair by ASML.
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3.3
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When submitting a request for the Allocation of Options and/or Shares Employee shall owe Employer a net amount, taking into account article 3.2, in euro converted on the Grant Date into local currency applicable to Employee equal to
the Option Purchase Price multiplied by the number of Options Allocated on the Grant Date and/or equal to the Share Purchase Price multiplied by the number of Shares Allocated on the Grant Date.
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3.4
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Per Option and/or Share purchased, Employee shall pay to ASML the Total Purchase Price as determined on the Grant Date in euro converted on the Grant Date to the local currency applicable to Employee. The Total Purchase Price is
deductible from the net pay of the Employee in the month preceding the Grant Date;
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TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
7 of 12
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Shares and Options Purchase Plan
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Document name
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: Purchase Plan
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Modification date
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: September 2014
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Status
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: Under Change Control
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3.5
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In the event of termination of employment, Employee, by submitting the Application Form, authorizes ASML to deduct any balance remaining from the amount determined in Article 3.4 from any final net payroll payment. In the event that
such amount is insufficient to cover the remaining balance or no net periodic pay is made to the Employee in the month preceding the Grant Date, the Employee will receive less Options and/or Shares and any outstanding balance shall be paid by ASML
to the Employee within one month after the Grant Date. ASML will determine which payment method shall be used;
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3.6
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To be eligible for the Allocation of Options or Shares a fully completed and signed Application Form must have been duly received by the ‘employee benefits administration department’ in Veldhoven, The
Netherlands;
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3.7
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Options and/or Shares shall be Allocated on the basis of the Application Form taking into account the maximum number of Options and/or Shares available.
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3.8
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All euro denominated amounts mentioned in this Article shall be calculated by using the euro – local currency exchange rate fixing applicable to Employee on the Grant Date as performed by the European Central Bank at or around
14.00 hours C.E.T.
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Article 4 — Acceptance and Release of the Options and/or Shares
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4.1
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By submitting the Application Form Employee expresses his wish to participate in the Plan and accepts (i) all of the Options and/or Shares that are Allocated, and (ii) the Conditions of this Plan;
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4.2
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Employee shall be informed within a reasonable term in writing of the number of Options and/or Shares Allocated;
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4.3
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The Options and/or Shares Allocated to the Employees will be Released by ASML as soon as practicable following the Grant Date to a share account opened by ASML in the name of the Employee. A Release of Options and/or Shares shall
only be made if the Employee has fulfilled all of his or her obligations towards the Company or any Group Company under this Plan.
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4.4
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The Release is subject to the ASML Rules on Insider Trading and applicable mandatory provisions regarding insider trading, if any, as amended from time to time.
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4.5
|
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The Participant shall not be entitled to any compensation of damages insofar as such damages arise or may arise from a delayed Release under this Article 4.
|
TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
8 of 12
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Shares and Options Purchase Plan
|
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Document name
|
|
: Purchase Plan
|
|
|
|
Modification date
|
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: September 2014
|
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Status
|
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: Under Change Control
|
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Article 5 — Option Period
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5.1
|
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The Option Period shall be 10 (ten) years, counting from the Grant Date;
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5.2
|
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Options may only be exercised or settled within the Option Period as determined in Article 8 of these Conditions against payment of the Option Exercise Price for each Option exercised;
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5.3
|
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Options that have not been exercised within the Option Period shall lapse after the expiration of the Option Period and become null and void;
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5.4
|
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Notwithstanding the provisions of Sections 1 through 3 of this Article, the Option Period may be extended under the circumstances as referred to in Section 3 of Article 8 of these Conditions by a maximum period of 12 (twelve)
months.
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Article 6 — Option Exercise Price
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The Option Exercise Price shall be equal to the closing price “cum dividend” of an ordinary ASML share on NYSE Euronext, Amsterdam in The Netherlands on the Grant Date. For US employees the euro denominated Exercise Price
will be converted into a United States Dollar Exercise Price by taking the Exercise Price defined in the first sentence of this Article and applying the exchange rate fixing on the Allocation Date as performed by the European Central Bank at or
around 14.00 hours C.E.T.
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Article 7 — Transferability of the Option
|
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7.1
|
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The Option is strictly non-transferable and may not be encumbered with a pledge nor are Option Holders allowed to enter into any other act (including for the avoidance of doubt entering into any form of hedging transactions) the
economic effect of which would be the same as a transfer or encumbrance of an Option or otherwise substantially alter the economic interest in the Option;
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7.2
|
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Devolution by last will or hereditary succession pursuant to the statutory provisions shall, however, not vitiate the Option;
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7.3
|
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Option Holder shall not be permitted to conclude any transaction in relation to the Options on (i) NYSE Euronext Amsterdam, The Netherlands, (ii) NASDAQ, New York, United States of America, or (iii) any other stock
exchange;
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7.4
|
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In the event of an Option Holder acting in contravention of the provisions of this Article, the Options of such Option Holder shall lapse.
|
TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
9 of 12
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Shares and Options Purchase Plan
|
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Document name
|
|
: Purchase Plan
|
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|
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Modification date
|
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: September 2014
|
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Status
|
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: Under Change Control
|
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Article 8 — Exercise of the Option
|
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8.1
|
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All Options Allocated to Option Holder are immediately exercisable as from the Grant Date.
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8.2
|
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When exercising the Options Option Holder must comply with the “ASML Rules on Insider Trading”, as in force at the time of exercise;
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8.3
|
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In case of termination of the employment relationship between Employee and Employer due to Employee’s (i) death, or (ii) incapability to act, each Option shall be settled in cash based on the difference between (i) the
underlying value of one Share at the date of decease or incapability to act; and (ii) the Option Exercise Price. The cash proceeds of such settlement shall be paid, subject to Article 11, to Employee or the Employee’s legal personal
representatives (or, if appropriate, his designated beneficiary or beneficiaries and in the event of there being no designated beneficiary or beneficiaries, his estate) as soon as practically possible following the date of the decease or incapacity
to act.
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Article 9 — Allocation of Cash Premium
|
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9.1
|
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Notwithstanding Articles 9.2 and 9.3 of these Conditions, if (i) Option Holder has not exercised the Allocated Option up to and including the first anniversary of the respective Allocation Grant Date; and/or (ii) Share Holder has
continued to hold the Allocated Share up to and including the first anniversary of the respective Grant Date and has not encumbered the Allocated Shares with a pledge, nor entered into any other act (including for the avoidance of doubt entering
into any form of hedging transactions) the economic effect of which would be the same as a transfer or encumbrance of an Option or otherwise substantially alter the economic interest in the Allocated Shares, and (iii) Option Holder and/or Share
Holder has continuously been an Employee as from the relevant Grant Date up to and including the first anniversary of such Grant Date, and (iv) Option Holder or Share Holder has complied with all requirements set forth in these Conditions (including
but not limited to 7.1 ), then ASML will award Option Holder and/or Share Holder a Cash Premium;
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9.2
|
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In case of termination of the employment relationship between Employee and Employer due to Employee’s (i) death, or (ii) incapability to act prior to the first anniversary of the respective Grant Date, , Employee or the
Employee’s legal personal representatives (or, if appropriate, his designated beneficiary or beneficiaries and in the event of there being no designated beneficiary or beneficiaries, his estate), will be awarded the Cash Premium and this Cash
Premium will be paid, subject to Article 11, as soon as practically possible following the date of the decease or incapacity to act;
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9.3
|
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Unless otherwise determined by ASML prior to the relevant Grant Date, the Cash Premium is equal to 20% of the aggregate value of the Total Purchase Price paid by the Employee for the Shares and/or the Options. For the avoidance of
doubt, this Cash Premium is a gross payment and may be liable to (withholding) taxes, employee social security premiums and social insurance premiums;
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9.4
|
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The Cash Premium will be paid to Employee as soon as practical following the first anniversary of the Grant Date.
|
TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
10 of 12
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Shares and Options Purchase Plan
|
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Document name
|
|
: Purchase Plan
|
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|
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Modification date
|
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: September 2014
|
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|
Status
|
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: Under Change Control
|
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9.5
|
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The Cash Premium will not form part of the Employee’s pensionable salary. Where pension premiums are payable based on local legislation, these premiums will be payable by or recovered from the Employee.
|
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|
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Article 10 — Dilution of Capital
|
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10.1
|
|
In the event of a share split, reverse share split, any capitalisation issue (other than a capitalisation issue in substitution for, or as an alternative to, a cash dividend), or rights issue or rights offer or any reduction,
sub-division, consolidation or other variation of the capital of ASML affecting the Option Exercise Price or the number of Options or Shares (to be) granted under this Plan (including any change in the currency in which Options or Shares are
denominated) or the number of Options or Shares subject to any Allocation and reserve for distribution under the Plan may be adjusted (including retrospective adjustments where appropriate) by ASML in such manner as ASML considers to be in its
opinion fair and reasonable, without any obligation for ASML to make such adjustment.
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10.2
|
|
The adjustments by the Board of Management referred to in Article 10.1 shall be binding after an independent accountant who is a member of The Netherlands Institute for Registered Accountants [Nederlands Instituut voor Register
Accountants] has issued a certificate stating that the adjustments have been determined in a reasonable manner. Adjustment of the Option Exercise Price, the number of Options and/or the number of Shares shall take place on the day preceding the day
on which notice was given of the aforementioned resolutions. Possible consequences of such adjustments for the levy of tax, employee social security premiums, social insurance premiums, and income level dependent regulations, shall be entirely for
the account of Option Holder and/or Share Holder;
|
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10.3
|
|
An adjustment of the Option Exercise Price, the number of Options Allocated and/or the number of Shares Allocated and the computation upon which the same are based shall be notified as soon as possible to Option Holder and/or Share
Holder in writing.
|
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|
|
Article 11 — Taxes and Costs
|
|
|
|
|
11.1
|
|
All taxes levied, employee social security premiums and social insurance premiums due as a result of the Allocation and/or Release and/or possession and/or exercise and/or sale of Options and/or Shares and/or Cash Premiums,
including possible consequences of an amendment of the Conditions, shall be entirely for the account of Option Holder and/or Share Holder;
|
|
|
|
|
11.2
|
|
All possible consequences for pension, including early retirement, and/or employee social security and/or social insurance benefits and/or income level dependent regulations as a result of Options and/or Shares and/or Cash Premiums
Allocated or Released under this Plan, including possible consequences of an amendment of the Conditions, shall be entirely for the account of Option Holder and/or Share Holder;
|
|
|
|
|
11.3
|
|
Option Holder and/or Share Holder shall be liable for all the costs relating to the exercise of Options and/or sale of Shares, including - but not limited to - costs charged by stock brokers in connection with the
transaction;
|
TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
11 of 12
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Shares and Options Purchase Plan
|
|
Document name
|
|
: Purchase Plan
|
|
|
|
Modification date
|
|
: September 2014
|
|
|
|
Status
|
|
: Under Change Control
|
|
|
|
|
|
11.4
|
|
Costs relating to the issue and/or acquisition of Shares in the capital of ASML for the purpose of Allocating and/or Releasing Shares or Options to Employee shall be for the account of ASML.
|
|
|
|
|
|
|
Article 12 — Prohibition of Insider Trading
|
|
|
|
|
|
|
The return by an Employee of a filled in Application Form constitutes a confirmation of the Employee’s acceptance of the applicable “ASML Insider Trading Rules” and of his or her covenant to act in accordance with
those rules.
|
|
|
|
|
|
|
Article 13 — Notices
|
|
|
|
|
13.1
|
|
Notices which must be given by ASML to Option Holder and/or Share Holder pursuant to or in connection with the Conditions shall be regarded as correctly addressed if sent to the address of Option Holder and/or Share Holder as
recorded in the Staff Records Department of ASML or the Group Company;
|
|
|
|
|
13.2
|
|
Notices which must be given by Option Holder and/or Share Holder to ASML pursuant to or in connection with the Conditions shall be regarded as correctly addressed if sent to the address of ASML as listed with the Chamber of
Commerce, for the attention of the Plan Agent.
|
|
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|
|
Article 14 — Disputes
|
|
|
|
|
14.1
|
|
The Conditions, the annexes thereto, and all further documents related to the Conditions shall be governed by the laws of The Netherlands;
|
|
|
|
|
14.2
|
|
All disputes arising from the Conditions, the annexes thereto, and further documents related to the Conditions, shall in the first instance, be settled by the District Court of ‘s-Hertogenbosch.
|
|
|
|
|
|
|
Article 15 — Amendments
|
|
|
|
|
15.1
|
|
The Board of Management shall have the power to amend the Conditions or add further provisions to the same at any time;
|
|
|
|
|
15.2
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Option Holder and/or Share Holder shall be informed of any amendments or measures as referred to in this Article in good time, in writing.
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TERMS AND CONDITIONS FOR OPTIONS AND
SHARES PURCHASED BY EMPLOYEES UNDER THE ASML SHARE AND OPTION PURCHASE PLAN (Version September 2014)
12 of 12
Exhibit 5.1
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ASML Holding N.V.
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De Run 6501
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5504 DR Veldhoven
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PO Box 324
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5500 AH Veldhoven
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The Netherlands
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Phone +31 40 268 6762
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Fax +31 40 268 4888
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www.asml.com
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Trade Register 17085815
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Eindhoven, The Netherlands
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United States Securities and Exchange Commission
450 Fifth Street N.W.
Washington, DC 20549
United States of America
Date: April 13, 2015
Subject: Form S-8
Ladies and Gentlemen:
I refer to the Registration Statement on Form S-8 (the “
Registration Statement
”) of ASML Holding N.V., a Netherlands corporation (the
“
Company
”), under the Securities Act of 1933 (the “
Securities Act
”). The Registration Statement relates to up to 1,266,753 ordinary shares, nominal value €0.09 per share, of the Company (the
“
Securities
”), issuable and issued under the ASML Board of Management Umbrella Share Plan, ASML Employee Umbrella Share Plan and the ASML Share and Option Purchase Plan (collectively the “
Plans
”) and up to 177,000
options to acquire the Securities (the “
Options
”), issuable and issued under the ASML Employee Umbrella Share Plan and ASML Share and Purchase Plan.
I have examined and am familiar with (i) the Company’s Articles of Association, as amended, and (ii) the corporate proceedings relating to the
Registration Statement. Upon the basis of the foregoing, and having satisfied myself as to such other matters of law and fact as I consider relevant for the purposes of this opinion, I advise you that, in my opinion, upon issuance in accordance with
the terms and conditions of the Plans, the Securities and the Options will have been legally issued, fully paid and non-assessable.
I express no opinion
herein, on or with respect to, any law other than the laws of The Netherlands, and I express no opinion on, or with respect to, the laws of the United States, any state thereof or any other laws, statutes, regulations or ordinances.
I hereby consent to the filing of this opinion as an exhibit to the Registration Statement and any reference to me therein. In giving such consent, I do not
hereby admit that I am in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
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Very truly yours,
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/s/ Robert F. Roelofs
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Robert F. Roelofs
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General Counsel
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ASML Holding N.V.
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