Exhibit 4.5
EMPLOYMENT AGREEMENT
THE UNDERSIGNED:
1. ASM LITHOGRAPHY HOLDING NV, located at xx Xxx 0000, Xxxxxxxxx, Xxx
Xxxxxxxxxxx; in accordance with article 2: 146 Dutch civil code, hereby
duly represented by Xx. X. Xxxx and Xx. X. Xxxxxxxxxxx respectively the
Chairman and Secretary of the Supervisory Board of ASM Lithography
Holding N.V., hereinafter referred to as: "ASML";
and
2. XX. X. X. XXXX, residing at Xxxxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxx XX0 0XX
Xxxxxx Xxxxxxx, hereinafter referred to as: "Xx. Xxxx".
WHEREAS:
(a) Xx. Xxxx will be appointed by the Supervisory Board of ASML as Member
of the Board of Management of ASML once, on March 11, 1999, the General
Meeting of Shareholders of ASML has been informed on the intended
appointment,
(b) ASML and Xx. Xxxx wish to agree upon the terms and conditions of the
employment agreement that will govern Xx. Xxxx'x appointment as Member
of the Board Management of ASML,
HEREBY AGREE AS FOLLOWS:
1. TASKS AND DUTIES
1.1 ASML hereby employs Xx. Xxxx as Member of the Board Management. As of
January 1, 2000 Xx. Xxxx will hold the position of President & Chief
Executive Officer. Xx. Xxxx hereby accepts such employment, upon the
terms and conditions as set forth in this agreement.
1.2 Xx. Xxxx agrees to devote his best efforts, attention and abilities to
the business and the affairs of ASML. Xx. Xxxx shall, at all times,
observe the best interests of ASML and its affiliates or group
companies.
1.3 Except with prior written consent of the supervisory Board of ASML, Xx.
Xxxx shall not undertake any other paid or unpaid duties or activities
for or on behalf of third parties, or perform these duties or
activities on his own behalf, during the course of this agreement.
2. DURATION OF THE AGREEMENT AND TERMINATION
2.1 This agreement shall be in force for a period of five years. The
effective date of this agreement is April 1, 1999. During the course of
this agreement, both ASML and Xx. Xxxx may terminate this agreement. A
notice period of six months shall apply in case ASML terminates and a
notice period of three months shall apply in case Xx. Xxxx terminates.
Any notice hereunder will be given per the end of a calendar month.
2.2 No later than October 1, 2003, ASML and Xx. Xxxx will discuss the
possibilities and conditions of an extension of the employment
relationship after April 1, 2004. If agreement on an extension is not
reached before November 1, 2003, this agreement will end automatically
on April, 2004.
2.3 In the case ASML terminates this agreement during its initial term of
five years, Xx. Xxxx will be entitled to a severance payment equal to
the lesser of:
(a) the gross base salary as mentioned in article 3.1 for the
remaining term of this agreement, or
(b) two times the gross base annual salary as mentioned in article
3.1,
unless such termination takes place for an "urgent cause" in the sense
of article 7:678 Dutch Civil Code.
2.4 Apart from the severance payment set out in article 2.3, Xx. Xxxx shall
not be entitled to any further payment of severance, damages or the
like in case of termination of the employment agreement. ASML and Xx.
Xxxx hereby declare that the severance payment set out in article 2.3.
is a fair, reasonable and sufficient payment in relation to a
termination of this employment agreement during the course of the
five-year period.
3. SALARY
3.1 The gross base salary per year to which Xx. Xxxx shall be entitled is
NLG 1,000 (one million dutch guilders).
The salary will be paid in 12 equal parts at the end of each calendar
month. The Supervisory Board will review annually whether, in its
opinion, an increase in the gross base salary is justified. ASML and
Xx. Xxxx will jointly put forward a request to the dutch tax
authorities to be able to apply the so called 35% tax ruling.
3.2 Xx. Xxxx is not entitled to a separate holiday allowance, as this
allowance is deemed to be included in the gross base salary.
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3.3 Without prejudice to the reference in article 3.1 related to the
request for the 35% ruling, the salary payments mentioned in 3.1 shall
be subject to the usual statutory withholdings, such as tax and social
security premiums.
3.4 The payments mentioned in this agreement shall be made to a Dutch bank
account to be indicated by Xx. Xxxx.
4. BONUS/STOCK OPTIONS
4.1 Xx. Xxxx is entitled to a yearly bonus up to a maximum of 50% of his
gross base salary per year. The bonus is determined per year by the
Supervisory Board and will be related to specific pre set targets and
the actual results of ASML over such year. The Supervisory Board has
the authority to amend the bonus system whenever it feels that such
amendment is required or advisable.
4.2 The bonus referred to in article 4.1 shall be paid by ASML to Xx. Xxxx
within four months after the end of the calendar year.
4.3 Xx. Xxxx is not entitled to a bonus as mentioned in article 4.1:
(a) that relates to a year during which he was not able to perform
his duties due to illness for a consecutive period of four months
or more, or
(b) that relates to a year in which he was suspended for any period
of time.
4.4 Xx. Xxxx shall be entitled to 200,000 stock options in ASML upon
signing of this agreement subject to statutory Dutch tax withholdings.
Furthermore Xx. Xxxx will be eligible to participate in the Management
Option Program as approved by the Supervisory board of ASML.
5. CAR/EXPENSES/TRAVEL
5.1 Xx. Xxxx is entitled to a company car that shall be leased by ASML. The
costs of the lease shall be bone by ASML to a maximum of NLG 4,000 per
month (inclusive of petrol).
5.2 Any reasonable expenses properly incurred by Xx. Xxxx in the
performance of his duty, shall be reimbursed by ASML, in accordance
with the standard procedure within the organization of ASML. An account
of such expenses, accompanied by supporting receipts and other
appropriate evidence, shall be rendered by Xx. Xxxx to ASML prior to
any reimbursement.
5.3 Xx. Xxxx and his partner shall be entitled to a maximum of twenty
return flights a year from Eindhoven or Amsterdam to the UK at the
expense of ASML for non-business purposes.
5.4 ASML will pay Xx. Xxxx an amount of NLG 60,000 as reimbursement for the
costs of moving - including decorating costs - to The Netherlands at
the
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beginning of this employment agreement. ASML will further reimburse the
reasonable costs of moving back to the UK at the end of this employment
agreement.
5.5 ASML will reimburse Xx. Xxxx the reasonable costs of temporary housing
near Eindhoven/Veldhoven for a period up to the first eight weeks of
Xx. Xxxx'x employment for ASML.
6. HOLIDAYS
6.1 Xx. Xxxx shall be entitled to 30 holidays per year. He is entitled to
enjoy holidays after consultation with the other members of the Board
of Management of ASML. Any holidays granted but not taken in one year
will expire without compensation if not taken in the following two
years.
7. ILLNESS OR DISABILITY
7.1 In case of illness or disability of Xx. Xxxx, ASML is obliged to pay
100% of the gross base salary as referred to article 3.1 during the
first 52 weeks of illness or disability.
7.2 After 52 weeks of illness or disability Xx. Xxxx will be entitled to
payment under the disability insurance
('Arbeidsongeschiktheidsverzekering') that ASML has concluded on Xx.
Xxxx'x behalf, subject to the terms and conditions of such insurance.
The costs of such insurance shall be borne by ASML. The disability
insurance will pay up to 70% of Xx. Xxxx'x xxxxx base salary, minus any
other contributions that Xx. Xxxx may be entitled to (such as AAW/WAO).
8. INSURANCE
8.1 Xx. Xxxx shall be covered by the ASML travel and accident insurance
('Ongevallenverzekering') that will pay up to four times the gross base
salary per year to Xx. Xxxx in case of whole or partial disability of
Xx. Xxxx and up to two times the gross base salary per year to a
designed party in case of death of Xx. Xxxx. The costs of this
insurance shall be borne by ASML.
8.2 Xx Xxxx, his wife and children will be covered by the ASML medical
insurance ('Ziektekostenverzekering'). Fifty percent of the cost
thereof shall be borne by ASML and fifty percent by Xx. Xxxx.
8.3 Xx. Xxxx will be covered by the ASML Director and Officers Liability
Insurance policy, the costs of which shall be borne by ASML.
9. PENSION
9.1 Xx. Xxxx shall participate in the ASML pension scheme with Aegon.
Parties will investigate the possibility to transfer any funds that
have been build up during Xx. Xxxx'x participation in the pension
scheme with his former employer (Philips)
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into the present pension scheme with Aegon. The premium for pension
scheme will be borne for 60% by ASML and for 40% by Xx. Xxxx.
10. CONFIDENTIALITY AND DELIVERY OF DOCUMENTS
10.1 Xx. Xxxx shall, neither during the term of this agreement nor after its
termination, directly or indirectly use or disclose to any third party
any information related to the business of ASML, or of any of its group
companies, which information can be reasonably expected to be secret or
confidential. The foregoing shall not apply to disclosure or use of
information with the prior written consent of ASML nor to disclosure
that is necessary for the adequate performance of Xx. Xxxx'x duties
under applicable law.
10.2 Xx. Xxxx shall treat all items of ASML, such as books, documents,
computer floppy disks, other information carriers, resolutions,
drawings, reports and notes as property of ASML, and he shall treat
such property with the same degree of care as his own property. Xx.
Xxxx shall not use any item in another way, or keep any item any
longer, than is necessary for the adequate performance of his duties.
Xx. Xxxx shall deliver all such items to ASML immediately following
termination of this agreement.
11. GIFTS/BENEFITS
11.1 In the performance of his duties for ASML, Xx. Xxxx shall not accept or
bargain for any gifts or benefits, in whatever form and however
defined, from third parties without the prior written consent of ASML.
11.2 Article 11.1 is not applicable to customary non-valuable promotional
gifts.
12. NON-COMPETITION
12.1 During the term of this agreement and for a consecutive period of two
years after its termination, Xx. Xxxx shall neither directly nor
indirectly engage in or be involved in activities in the semiconductor
lithography equipment manufacturing industry or in activities that are
otherwise similar or in any way competitive with the activities of
ASML.
12.2 Xx. Xxxx acknowledges that the provisions of this article are
reasonably necessary to protect the interest of ASML.
13. PENALTY
13.1 Should Xx. Xxxx breach any of the obligations mentioned in article 11
or 12, ASML shall be entitled to a penalty of NLG 25,000 for every
breach, to be increased by NLG 5,000 for every day such breach
continues, without prejudice to any other rights or claims ASML may
have. The parties hereto acknowledge that the above-mentioned penalty
represent a genuine and reasonable pre-estimate
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of the minimum damage likely to be suffered by ASML in case Xx. Xxxx
breaches any of its duties pursuant to article 11 or 12.
13.2 Each of the restrictions in article 11 or 12 shall be independently
enforceable by ASML.
14. CODE OF CONDUCT
Xx. Xxxx will be subject to the provisions of the ASML Code of Conduct
with Respect to Inside Information, in their most recent version.
15. APPLICABLE LAW
15.1 This agreement shall be governed by the laws of The Netherlands.
15.2 Any disputes arising from this agreement shall be brought before the
competent court as's-Hertogenbosch, The Netherlands.
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This agreement is signed in twofold on February 23, 1999
/s/ X. Xxxx /s/ X. X. Xxxx
---------------------------------- -------------------------------------
X. Xxxx X. X. Xxxx
Chairman of the Supervisory Board
of ASM Lithography Holding N.V.
/s/ A. Westerlaken
----------------------------------
A. Westerlaken
Secretary of the Supervisory Board
of ASM Lithography Holding N.V.
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AMENDMENT TO EMPLOYMENT AGREEMENT
The undersigned:
1. ASML Holding N.V., established and headquartered at Veldhoven, the
Netherlands, represented by X. Xxxx and X. Xxxxxxx in their capacity of
Chairman and member of the Supervisory Board respectively, hereinafter
referred to as: "ASML";
and
2. Xxxxxxx Xxxx Xxxx, residing in Pastorij 27, 5508 LT Veldhoven, the
Netherlands, hereinafter referred to as: "Xx. Xxxx";
Hereby agree that as per July 1, 2003 the following shall be an amendment to the
employment agreement between ASM Lithography Holding N.V. and Xx. Xxxx dated
February 23, 1999 (the "Employment Agreement"). The remaining provisions of the
Employment Agreement shall be amended as follows:
1. In this article the following definitions shall apply:
(a) "CHANGE OF CONTROL" of ASML means (i) that any merger or
consolidation of ASML with or into any other individual,
partnership, company or entity in the broadest sense (hereinafter
referred to as "Third Party(ies)" or any stock purchase or sale,
reorganization, recapitalization or other transaction, in each
case, in one transaction or a series of related transactions, if,
immediately after giving effect to such transaction(s), any Third
Party(ies), not currently controlling ASML acquires Control of
ASML or of its transferee(s) or surviving Third Party(ies) or
(ii) any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of the assets of ASML, on a
consolidated basis, in one transaction or a series of related
transactions;
(b) "CONTROL" means, with respect to any Person, the power to
control, directly or indirectly, greater than 50% of the voting
interest of such Person, or the ability to appoint or elect more
than 50% of the Management Board or other equivalent governing
board of such Person, whether such power is effect through
ownership of shares or other securities, by contract, by proxy or
otherwise;
(c) "PERSON" means any individual, partnership, limited liability
company, firm, corporation, company, association, trust,
unincorporated organization or other entity.
2. In the event notice of termination of this agreement is given by ASML
or its legal successor in connection with a Change of Control, the
rights of the Statutory
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Director under any of the applicable ASML stock option plan(s) shall
not be subject to the restrictions contained in the relevant articles
related to termination of employment in the applicable ASML stock
option plans and the Statutory Director shall remain entitled to
exercise options during the full original Option Period as defined in
those stock option plans. In addition the Statutory Director is not
subject to any Embargo Period as defined in the applicable ASML stock
option plan(s) and consequently the Statutory Director can exercise any
option(s) held by him without being restricted as per the relevant
articles in the applicable ASML stock option plans. This provision 15.2
also applies if the Statutory Director gives notice of termination,
provided that this notice of termination is directly related to the
Change of Control and such notice is given within 12 months from the
date on which the Change of Control occurs.
3. The provisions of this article do not affect any other rights the
parties have or may have under Dutch law in the event of a termination
of this agreement.
In witness whereof, this document has been signed and executed in duplicate this
14th day of July 2003.
/s/ X. Xxxx /s/ X. X. Xxxx
----------------------------------- ------------------------------------
X. Xxxx X. X. Xxxx
Chairman of the Supervisory Board
of ASM Lithography Holding N.V.
/s/ X. Xxxxxxx
-----------------------------------
X. Xxxxxxx
Member of the Supervisory Board
of ASML Holding N.V.
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