Exhibit 10.12
XXXXXXXXX SEMICONDUCTOR INTERNATIONAL, INC.
2000 EXECUTIVE STOCK OPTION PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
Xxxxxxxxx Semiconductor International, Inc., a Delaware corporation (the
"Company"), hereby grants an Option to purchase shares of its Class A Common
Stock, par value $.01 per share (the "Shares"), to the Optionee named below. The
terms and conditions of the Option are set forth in this cover sheet, in the
attachment and in the Company's 2000 Executive Stock Option Plan (the "Plan").
Date of Option Grant: September 15, 2000
Name of Optionee: Xxxx X. Xxxxxxx, Xx.
Number of Shares Covered by Option: 75,000
Exercise Price per Share: $42.75
Vesting Schedule:
Subject to all the terms of the attached Agreement, your right to purchase
Shares under this Option vests in full on April 5, 2005, or earlier as follows:
20% of the Option shall vest at the time the Share price reaches or exceeds
$55.00 on each of any 20 trading days during any period of 30 consecutive
trading days; an additional 20% of the Option shall vest at the time the Share
price reaches or exceeds $64.00 on each of any 20 trading days during any period
of 30 consecutive trading days; an additional 30% of the Option shall vest at
the time the Share price reaches or exceeds $77.00 on each of any 20 trading
days during any period of 30 consecutive trading days; and the remaining 30% of
the Option shall vest at the time the Share price reaches or exceeds $90.00 on
each of any 20 days during any period of 30 consecutive trading days.
BY SIGNING THIS COVER SHEET, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS
DESCRIBED IN THE ATTACHED AGREEMENT AND IN THE PLAN, A COPY OF WHICH IS ALSO
ENCLOSED.
Optionee: /s/ Xxxx X. Xxxxxxx, Xx.
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(Signature)
Company: /s/ Xxxxxx X. Xxxxxx
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(Signature)
Title: Exec. V.P. & CFO
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Attachment
XXXXXXXXX SEMICONDUCTOR INTERNATIONAL, INC.
2000 EXECUTIVE STOCK OPTION PLAN
NONSTATUTORY STOCK OPTION AGREEMENT
THE PLAN AND The text of the Plan is incorporated in
OTHER AGREEMENTS this Agreement by reference. Certain
capitalized terms used in this Agreement
are defined in the Plan.
This Agreement and the Plan constitute
the entire understanding between you and
the Company regarding this Option. Any
prior agreements, commitments or
negotiations concerning this Option are
superseded.
NONSTATUTORY STOCK OPTION This Option is not intended to be an
Incentive Stock Option under section 422
of the Internal Revenue Code and will be
interpreted accordingly.
VESTING This Option is only exercisable before
it expires and then only with respect to
the vested portion of the Option. This
Option will vest according to the
Vesting Schedule on the attached cover
sheet.
TERM Your Option will expire in any event at
the close of business at Company
headquarters on the day before the 10th
anniversary of the Date of Option Grant,
as shown on the cover sheet. Your Option
may expire earlier if your Service
terminates, as described below.
TERMINATION OF SERVICE If your Service with the Company
terminates, you shall immediately
forfeit all rights to the unvested
portion of your Option, and your right
(or the right of your estate, executor
or representative) to exercise the
vested portion of your Option after
termination shall be governed by the
terms of the Company's Employee Stock
Option Plan as if the Option had been
granted under that plan.
CHANGE IN CONTROL In the event that you are employed by
the Company at the time of a Change in
Control, as defined below, your Option
shall fully vest upon the effective date
of the Change in Control, unless the
Change in Control is initiated by the
Company and you remain employed by the
successor corporation in a position of
equal rank and responsibility to your
position in the Company on the Date of
Option Grant.
"Change in Control" means the occurrence
of any of the following events:
(i) Any "person" (as such term is used
in Sections 13(d) and 14(d) of the
Exchange Act), other than (x) Sterling
Holding Company, LLC and/or Citicorp
Venture Capital Ltd. (either, for
purposes of this definition, "CVC"), (y)
any officer, employee or director of CVC
or any trust, partnership or other
entity established solely for the
benefit
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of such officers, employees or directors
or (z) any officer, employee or director
of the Company or any subsidiary of the
Company or any trust, partnership or
other entity established solely for the
benefit of such officers, employees or
directors (any of such persons
identified in clauses (x), (y) and (z),
a "Permitted Holder"), is or becomes the
beneficial owner (as such term is
defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or
indirectly, of more than 35% of the
total voting power of the voting stock
of the Company, provided, however, that
the Permitted Holders beneficially own
(as defined above), directly or
indirectly, in the aggregate a lesser
percentage of the total voting power of
the voting stock of the Company than
such other person and do not have the
right or ability by voting power,
contract or otherwise to elect or
designate for election a majority of the
board of directors of the Company;
(ii) during any period of two
consecutive years, individuals who at
the beginning of such period constituted
the board of directors of the Company
(together with any new directors whose
election by such board of directors or
whose nomination for election by the
stockholders of the Company was approved
by a vote of a majority of the directors
of the Company then still in office who
were either directors at the beginning
of such period or whose election or
nomination for election was previously
so approved) cease for any reason to
constitute a majority of the board of
directors of the Company then in office;
or
(iii) the merger or consolidation of the
Company with or into another corporation
or entity or the merger of another
corporation or entity with or into the
Company, or the sale of all or
substantially all the assets of the
Company to another corporation or entity
(in any of such cases, other than a
corporation or entity that prior to such
merger, consolidation or sale is
controlled by Permitted Holders), if the
securities of the Company that are
outstanding immediately prior to such
transaction and which represent 100% of
the aggregate voting power of the voting
stock of the Company are changed into or
exchanged for cash, securities or
property, unless pursuant to such
transaction such securities are changed
into or exchanged for, in addition to
any other consideration, securities of
the surviving corporation or entity or
transferee that represent, immediately
after such transaction, at least a
majority of the aggregate voting power
of the voting stock of the surviving
corporation, entity or transferee.
LEAVES OF ABSENCE For purposes of this Option, your
Service does not terminate when you go
on a bona fide leave of absence that was
approved by the Company in writing, if
the terms of the leave provide for
continued Service crediting, or when
continued Service crediting is required
by applicable law. Your Service
terminates in any event when the
approved leave ends unless you
immediately return to active work.
The Company determines which leaves
count for this purpose, and
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when your Service terminates for all
purposes under the Plan.
NOTICE OF EXERCISE When you wish to exercise this Option,
you must notify the Company by filing
the proper "Notice of Exercise" form at
the address given on the form. Your
notice must specify how many Shares you
wish to purchase. Your notice must also
specify how your Shares should be
registered (in your name only or in your
and your spouse's names as community
property or as joint tenants with right
of survivorship). The notice will be
effective when it is received by the
Company.
If someone else wants to exercise this
Option after your death, that person
must prove to the Company's satisfaction
that he or she is entitled to do so.
FORM OF PAYMENT When you submit your notice of exercise,
you must include payment of the Option
price for the Shares you are purchasing.
Payment may be made in one (or a
combination) of the following forms:
- Your personal check, a cashier's
check or a money order.
- Shares which have already been owned
by you for more than six months and
which are surrendered to the
Company. The value of the Shares,
determined as of the effective date
of the Option exercise, will be
applied to the Option price.
- By delivery (on a form prescribed by
the Company) of an irrevocable
direction to a securities broker to
sell Shares and to deliver all or
part of the sale proceeds to the
Company in payment of the aggregate
exercise price.
WITHHOLDING TAXES You will not be allowed to exercise this
Option unless you make acceptable
arrangements to pay any withholding or
other taxes that may be due as a result
of the Option exercise or sale of Shares
acquired under this Option.
RESTRICTIONS ON EXERCISE AND RESALE By signing this Agreement, you agree not
to exercise this Option or sell any
Shares acquired under this Option at a
time when applicable laws, regulations
or Company trading policies prohibit
exercise, sale or issuance of Shares.
The Company will not permit you to
exercise this Option if the issuance of
Shares at that time would violate any
law or regulation. The Company shall
have the right to designate one or more
periods of time, each of which shall not
exceed one hundred eighty (180) days in
length, during which this Option shall
not be exercisable if the Company
determines (in its sole discretion) that
such limitation on exercise could in any
way facilitate a lessening of any
restriction on transfer pursuant to the
Securities Act or any state securities
laws with respect to any issuance of
securities by the Company, facilitate
the registration or qualification of any
securities by the Company under the
Securities Act or any state securities
laws,
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or facilitate the perfection of any
exemption from the registration or
qualification requirements of the
Securities Act or any applicable state
securities laws for the issuance or
transfer of any securities. Such
limitation on exercise shall not alter
the vesting schedule set forth in this
Agreement other than to limit the
periods during which this Option shall
be exercisable.
If the sale of Shares under the Plan is
not registered under the Securities Act,
but an exemption is available which
requires an investment or other
representation, you shall represent and
agree at the time of exercise that the
Shares being acquired upon exercise of
this Option are being acquired for
investment, and not with a view to the
sale or distribution thereof, and shall
make such other representations as are
deemed necessary or appropriate by the
Company and its counsel.
TRANSFER OF OPTION You shall not assign, alienate, pledge,
attach, sell, transfer or encumber this
Option. If you attempt to do any of
these things, this Option will
immediately become invalid. You may,
however, dispose of this Option in your
will or it may be transferred by the
laws of descent and distribution.
Notwithstanding the preceding paragraph,
if the Company consents, you may
transfer this Option, by gift, to a
Family Member. For purposes of this
section, "Family Member" is defined to
include any child, stepchild,
grandchild, parent, stepparent,
grandparent, spouse, former spouse,
sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law,
daughter-in-law, brother-in-law, or
sister-in-law, including adoptive
relationships, any person sharing your
household (other than a tenant or
employee), a trust in which these
persons have more than fifty percent of
the beneficial interest, a foundation in
which these persons (or you) control the
management of assets, and any other
entity in which these persons (or you)
own more than fifty percent of the
voting interests. A Family Member
transferee is hereafter referred to as a
"Permitted Transferee." Before any such
transfer of this Option is effectuated,
however, the Company must be notified in
advance in writing of the terms and
conditions of the proposed transfer and
the Company must determine that the
proposed transfer complies with
applicable law and the requirements of
the Plan and this Option. Any purported
assignment, alienation, pledge,
attachment, sale, transfer or
encumbrance that does not qualify
hereunder shall be void and
unenforceable against the Company.
The terms of this Option (including the
post-termination of Service exercise
periods) shall apply to your
beneficiaries, executors, administrators
and Permitted Transferees (including the
beneficiaries, executors and
administrators of the Permitted
Transferees), including the right to
agree to any amendment of this Option,
except that Permitted Transferees shall
not transfer this Option other than by
will or by the laws of descent and
distribution. The Company is under no
obligation to provide notice to a
Permitted Transferee of your
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termination of Service.
This Option shall be exercised only by
you (including, in the case of a
transferred Option, by a Permitted
Transferee), or, in the case of your
death, by your executor or administrator
(including, in the case of a transferred
Option, by the executor or administrator
of the Permitted Transferee). Before a
Permitted Transferee will be allowed to
exercise this option, you must make
acceptable arrangements to pay any
withholding or other taxes that may be
due as a result of exercising this
option.
Regardless of any marital property
settlement agreement, the Company is not
obligated to honor a notice of exercise
from your spouse, nor is the Company
obligated to recognize your spouse's
interest in your Option in any other
way.
RETENTION RIGHTS Your Option or this Agreement does not
give you the right to be retained by the
Company (or any Parent or any
Subsidiaries or Affiliates) in any
capacity. The Company (or any Parent and
any Subsidiaries or Affiliates) reserve
the right to terminate your Service at
any time.
STOCKHOLDER RIGHTS You, or your estate or heirs, have no
rights as a stockholder of the Company
until a certificate for your Option's
Shares has been issued. No adjustments
are made for dividends or other rights
if the applicable record date occurs
before your stock certificate is issued,
except as described in the Plan.
ADJUSTMENTS In the event of a stock split, a stock
dividend or a similar change in the
Company stock, the number of Shares
covered by this Option and the exercise
price per Share may be adjusted (and
rounded down to the nearest whole
number) pursuant to the Plan. Your
Option shall be subject to the terms of
the agreement of merger, liquidation or
reorganization in the event the Company
is subject to such corporate activity.
APPLICABLE LAW This Agreement will be interpreted and
enforced under the laws of the State of
Maine.
BY SIGNING THE COVER SHEET OF THIS AGREEMENT, YOU AGREE TO ALL OF THE
TERMS AND CONDITIONS DESCRIBED ABOVE AND IN THE PLAN.
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