SENSATA TECHNOLOGIES HOLDING B.V. FIRST AMENDED AND RESTATED 2006 MANAGEMENT OPTION PLANEmployee Benefits Plan Agreement |
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Exhibit 10.12
SENSATA TECHNOLOGIES HOLDING B.V.
FIRST AMENDED AND RESTATED 2006 MANAGEMENT OPTION PLAN
ARTICLE I
ESTABLISHMENT AND PURPOSE; ADMINISTRATION
1.1 Establishment . On April 27, 2006 (the “ Effective Date ”), Sensata Technologies Holding B.V., a private limited liability company incorporated under the laws of the Netherlands (the “ Company ”), established an equity incentive plan known as the “Sensata Technologies Holding B.V. 2006 Management Option Plan” (the “ Original Plan ”). The Original Plan was amended and restated by the Company’s management board (the “ Board ”) on September 29, 2006 pursuant to a written resolution of the Board, and from and after such date the Original Plan, as amended and restated, became known as the “Sensata Technologies Holding B.V. First Amended and Restated 2006 Management Option Plan” (the “ Plan ”).
1.2 Purpose . The Plan is intended to promote the long-term growth and profitability of the Company and its Subsidiaries by providing those persons who are or will be involved in the Company’s and its Subsidiaries’ growth with an opportunity to acquire an ownership interest in the Company, thereby encouraging such persons to contribute to and participate in the success of the Company and its Subsidiaries. Under the Plan, the Company may make Awards (as defined in Section 3.1 ) to such present and future officers, directors, employees, consultants, and advisors of the Company or its Subsidiaries as may be selected in the sole discretion of the Board (collectively, “ Participants ”). Participation in the Plan is voluntary.
1.3 Administration . The Board shall have the power and authority to prescribe, amend and rescind rules and procedures governing the administration of this Plan, including, but not limited to the full power and authority (a) to interpret the terms of this Plan, the terms of any Awards made under this Plan, and the rules and procedures established by the Board governing any such Awards, (b) to determine the rights of any person under this Plan, or the meaning of requirements imposed by the terms of this Plan or any rule or procedure established by the Board, (c) to select Participants for Awards under the Plan, (d) to set the exercise price of any Options granted under the Plan, (e) to establish performance and vesting standards, (f) to impose such limitations, restrictions and conditions upon such Awards as it shall deem appropriate, (g) to adopt, amend and rescind administrative guidelines and other rules and regulations relating to the Plan, (h) to correct any defect or omission or reconcile any inconsistency in the Plan, and (i) to make all other determinations and take all other actions necessary or advisable for the implementation and administration of the Plan, subject to such limitations as may be imposed by the Code or other applicable law. Each action of the Board shall be binding on all persons. The Board may, to the extent permissible by law, delegate any of its authority hereunder to such persons as it deems appropriate.
ARTICLE II
DEFINITIONS
As used in this Plan, unless otherwise specified in an Award Agreement, the following terms shall have the meanings set forth below:
“ Adjusted IPO Price ” means a price per Ordinary Share equal to the price per Ordinary Share received by the Company and its securityholders in the Initial Public Offering; provided that, if the Initial Public Offering takes place prior to the fifth anniversary of the Effective Date, then the Adjusted IPO Price means a price per Ordinary Share determined as follows:
Adjusted IPO Price = P × 1.15 (D/365)
whereby “P” equals the price per Ordinary Share received by the Company and its securityholders in the Initial Public Offering and “D” equals the number of calendar days by which the date of the Initial Public Offering precedes the fifth anniversary of the Effective Date.
“ Affiliate ” of a Person means any other person, entity or investment fund controlling, controlled by, or under common control with such Person and, in the case of a Person which is a partnership, any partner of such Person.
“ Award Agreement ” means a written agreement between the Company and a Participant setting forth the terms, conditions, and limitations applicable to an Award, as amended from time to time. All Award Agreements shall be deemed to include all of the terms and conditions of the Plan, except to the extent otherwise set forth in an Award Agreement and approved by the Board.
“ Award Securities ” means, with respect to a Participant, any Ordinary Shares issued to such Participant upon exercise of any Options granted hereunder. For all purposes of this Plan, Award Securities will continue to be Award Securities in the hands of any holder other than a Participant (except for the Company, Luxco (or its designees) and purchasers pursuant to a Public Sale), and each such other holder of Award Securities will succeed to all rights and obligations attributable to such Participant as a holder of Award Securities hereunder. Award Securities will also include Ordinary Shares issued with respect to Award Securities by way of a security split, security dividend or other recapitalization.
“ Bain ” means, collectively, Bain Capital Fund VIII, L.P., Bain Capital VIII Coinvestment Fund, L.P., Bain Capital Fund VIII-E, L.P., Bain Capital Fund IX, L.P., Bain Capital IX Coinvestment Fund, L.P., Brookside Capital Partners Fund, L.P., Prospect Harbor Credit Partners, L.P., Sankaty Credit Opportunities, L.P., Sankaty Credit Opportunities II, L.P., Sankaty High Yield Partners III, L.P., BCIP Associates III, BCIP Trust Associates III, BCIP Associates III-B, BCIP Trust Associates III-B, and BCIP Associates-G.
“ Cause ” means, for any Participant, the meaning given to such term in an employment or other similar agreement entered into by such Participant and the Company or any of its Affiliates on or after the Effective Date and approved by the Board (which meaning shall continue to apply whether or not such agreement ceases to be effective, unless and until Participant subsequently enters into a superseding employment or other similar agreement that contains a definition of “Cause”, in which case the meaning in such superseding agreement shall apply), or, in the absence of any such agreement, it shall mean (i) the commission of, or indictment for, a felony or a crime involving moral turpitude or the commission of any other act or any omission to act involving dishonesty, disloyalty or fraud with respect to the Company or any of its Subsidiaries or any of their customers or suppliers, (ii) conduct that brings or is reasonably likely to bring the Company or its Subsidiaries into public disgrace or disrepute, (iii) failure to perform duties as
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reasonably directed by the Board or such Participant’s supervisor(s), if any, (iv) gross negligence or willful misconduct with respect to the Company or any of its Subsidiaries, or (v) any breach of the terms of Article VIII or any other material breach of the terms of this Plan, an Award Agreement or any other agreement with the Company or any of its Subsidiaries to which such Participant is a party.
“ CCMP Capital Asia ” means, collectively, Asia Opportunity Fund II, L.P. and AOF II Employee Co-Invest Fund, L.P.
“ Change in Control ” means (i) any transaction or series of transactions in which the Sponsors (whether by merger, sale of securities, recapitalization, or reorganization) dispose of or sell more than 50% of the total voting power or economic interest in the Company or in Parent to one or more Independent Third Parties, and (ii) a sale or disposition of all or substantially all of the assets of the Company and its Subsidiaries on a consolidated basis; provided that, in the case of clause (i) above, such transaction shall only constitute a Change in Control if it results in the Sponsors ceasing to have the power (whether by ownership of voting securities, contractual right or otherwise), collectively, to elect a majority of the Board.
“ Code ” means the Internal Revenue Code of 1986, as it may be amended from time to time.
“ Competing Business ” means any business engaged (whether directly or indirectly) in the design, manufacture, marketing, or sale of electromechanical or electronic sensors or controls.
“ Disability ” means, with respect to any Participant, the meaning given to such term in an employment or other similar agreement entered into by such Participant and the Company or any of its Affiliates on or after the Effective Date and approved by the Board (which meaning shall continue to apply whether or not such agreement ceases to be effective, unless and until Participant subsequently enters into a superseding employment or other similar agreement that contains a definition of “Disability”, in which case the meaning in such superseding agreement shall apply), or, in the absence of any such agreement, it shall mean such Participant’s incapacity due to physical or mental illness, which incapacity makes Participant eligible to receive disability benefits under the Company’s or its Subsidiaries’ long-term disability plans.
“ Dutch Securities Act ” means the Dutch Act on the Supervision of Securities Transactions 1995 (Wet toezicht effectenverkeer 1995), including the rules and regulations promulgated thereunder.
“ Fair Market Value ” of any Award Security (or any other security) means the fair market value of such Award Security (or such other security, as applicable) as determined in good faith by the Board, and such determination shall be binding and conclusive on the Company, the Participants and all other Persons interested in the Plan.
“ Good Reason ” means, for any Participant, the meaning given to such term in an employment or other similar agreement entered into by such Participant and the Company or any of its Affiliates on or after the Effective Date and approved by the Board (which meaning shall continue to apply whether or not such agreement ceases to be effective, unless and until Participant subsequently enters into a superseding employment or other similar agreement that
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contains a definition of “Good Reason”, in which case the meaning in such superseding agreement shall apply), or, in the absence of any such agreement, it shall mean (i) a material reduction in such Participant’s annual base salary without such Participant’s prior consent, other than any reduction which is generally applicable to such Participant’s peer executives or which is the result of a bona fide performance evaluation of such Participant in accordance with the Company’s or its Subsidiaries’ policies and practices, (ii) any material breach by the Company or any of its Subsidiaries of any agreement between such Persons and such Participant, or (iii) a change in such Participant’s principal office without such Participant’s prior consent to a location that is more than 100 miles from such Participant’s principal office on the Effective Date, in each case which is not cured to Participant’s reasonable satisfaction within 30 days after delivery of written notice thereof to the Company; provided that, in each case written notice of a Participant’s resignation with Good Reason must be delivered to the Company within 15 days after the occurrence of any such event in order for such Participant’s resignation with Good Reason to be considered as such.
“ Independent Third Party ” means any Person or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended) that, as of the date hereof, does not (together with its Affiliates) own in excess of 5% of the Company’s or Parent’s securities on a fully-diluted basis, who is not an Affiliate of any such 5% owner of the Company’s or Parent’s securities and who is not the spouse or descendent (by birth or adoption) of any such 5% owner of the Company’s or Parent’s securities.
“ Initial Public Offering ” means an initial public offering, after the Effective Date, of the Company’s Ordinary Shares pursuant to an offering registered under the Dutch Securities Act, the Securities Act, or any similar securities law applicable outside of the Netherlands or the United States, other than any such offerings which are registered on Forms S-4 or S-8 under the Securities Act or any similar form under any securities law applicable outside of the United States.
“ Luxco ” means Sensata Investment Company S.C.A., a société en commandite par actions organized under the laws of the Grand Duchy of Luxembourg.
“ Management Securityholders Addendum ” means the Management Securityholders Addendum, dated as of the date hereof, among the Company and certain of its securityholders, as amended from time to time, a copy of which is attached hereto as Exhibit A .
“ Ordinary Shares ” means the Company’s Ordinary Shares, par value €0.01 per share, or in the event that the outstanding shares of ordinary share capital are hereafter recapitalized, converted into or exchanged for different stock or securities of the Company, such other stock or securities.
“ Parent ” means Luxco, but only so long as Luxco continues to own Ordinary Shares which represent more than 50% of the total voting power or economic interest in the Company.
“ Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a government or any branch, department, agency, political subdivision or official thereof.
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“ Public Sale ” means any sale pursuant to a registered public offering under the Dutch Securities Act, the Securities Act, or any similar securities law applicable outside of the Netherlands or the United States, or any sale to the public through a broker, dealer or market maker pursuant to Rule 144 promulgated under the Securities Act or any similar securities law applicable outside of the United States.
“ Securities Act ” means the Securities Act of 1933, as amended from time to time.
“ Sponsor Inflows ” means, without duplication, as of any measurement date, all cash payments (excluding fees and expense reimbursements) received by the Sponsors (either directly or indirectly through Luxco) with respect to or in exchange for securities of the Company (whether such payments are received from the Company or any third party) from the issuance date of such securities through such measurement date. If such measurement date is the date of consummation of a Change in Control, any securities held by the Sponsors and not transferred in such Change in Control will be deemed to have been sold on such measurement date for the price per security for such securities implied by the Change in Control. If such measurement date is the date of consummation of the Initial Public Offering, any Ordinary Shares held by the Sponsors will be deemed to have been sold on such measurement date for the Adjusted IPO Price.
“ Sponsor Outflows ” means, without duplication, as of any measurement date, all cash payments made (either directly or indirectly through Luxco) by the Sponsors (on a cumulative basis) with respect to or in exchange for securities of the Company (whether such payments are made to the Company or any third party).
“ Sponsors ” means, collectively, Bain and CCMP Capital Asia, in each case together with their respective Affiliates.
“ Subsidiary ” means any corporation, partnership, limited liability company, or other entity in which the Company owns, directly or indirectly, stock or other equity securities or interests possessing 50% or more of the total combined voting power of such entity.
“ Termination Date ” means the date on which a Participant is no longer employed by the Company or any of its Subsidiaries for any reason. For the avoidance of doubt, a Participant’s Termination Date shall be considered to be the last date of his actual and active employment with the Company or one of its Subsidiaries, whether such day is selected by agreement with the Participant or unilaterally by the Company or such Subsidiary and whether advance notice is or is not given to the Participant; no period of notice that is or ought to have been given under applicable law in respect of the termination of employment will be taken into account in determining entitlement under the Plan.
“ Transfer ” means any direct or indirect sale, transfer, assignment, pledge, encumbrance or other disposition (whether with or without consideration and whether voluntary or involuntary or by operation of law, including to the Company or any of its Subsidiaries) of any interest.
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ARTICLE III
AWARDS AND ELIGIBILITY
3.1 Awards . Awards under the Plan (“ Awards ”) may be granted in the form of non-qualified options to purchase Ordinary Shares pursuant to the Plan (“ Options ”), as described in Article IV of the Plan. No Option shall be an incentive stock option within the meaning of Section 422(a) of the Code or any successor provision. All Awards shall be made in the form of Options exercisable for Ordinary Shares. Each grant of Options shall be evidenced by a written Award Agreement containing such restrictions, terms and conditions, if any, as the Board may require; provided that, except as otherwise expressly provided in an Award Agreement, if there is any conflict between any provision of the Plan and an Award Agreement, the provisions of the Plan shall govern.
3.2 Maximum Securities Available . An aggregate of 12,532,236 Ordinary Shares shall be reserved for issuance hereunder with respect to Options. All Awards shall be subject to adjustment by the Board as follows. In the event of any reorganization, recapitalization, security split, security dividend, combination of securities, merger, consolidation or other change in the Ordinary Shares, the Board shall make appropriate equitable changes in the number and type of Ordinary Shares covered by outstanding Awards and the terms thereof as the Board determines in its sole discretion (absent manifest error) are necessary to prevent dilution or enlargement of rights of Participants under the Plan. Without limiting the generality of the foregoing, in the event of any such transaction, the Board shall have the power to make such changes as it deems appropriate in the number and type of securities covered by outstanding Awards, the prices specified therein and the securities or other property to be received upon exercise (which may include providing for cash payment (or no consideration) in exchange for cancellation of outstanding Options). If any Options expire unexercised or unpaid or are canceled, terminated or forfeited in any manner without the issuance of Ordinary Shares or payment thereunder, the securities with respect to which such Options were granted shall again be available under this Plan, subject to the foregoing maximum amounts. Similarly, if any Ordinary Shares issued upon exercise of Options are repurchased by the Company in accordance with the terms hereof, such Ordinary Shares shall again be available under this Plan for reissuance, subject to the foregoing maximum amounts. It is the intention under the Plan that the Board and the chief executive officer of the Company shall consult with each other in good faith for purposes of determining who should be issued Options in respect of Options that are made available pursuant to the preceding two sentences, it being the understanding that the Options described in the first sentence of this Section 3.2 will be and remain fully allocated to Participants and potential newly hired employees of the Company and its Subsidiaries. Ordinary Shares to be issued upon exercise of Options hereunder may be either authorized and unissued securities, treasury securities or a combination thereof, as the Board shall determine.
3.3 Eligibility . The Board may, from time to time, select the Participants who shall be eligible to participate in the Plan and the Awards to be made to each such Participant. The Board may consider any factors it deems relevant in selecting Participants and in making Awards to such Participants. The Board’s determinations under the Plan (including, without limitation, determinations of which persons are to receive Awards and in what amount) need not be uniform and may be made by it selectively among persons who are eligible to receive Awards under the Plan.
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3.4 No Right to Continued Employment; No Entitlement to Future Awards . Nothing in this Plan or (in the absence of an express provision to the contrary) in any Award Agreement, as applicable, shall confer on any Participant any right to continue in the employment of the Company or its Subsidiaries or interfere in any way with the right of the Company or its Subsidiaries to terminate such Participant’s employment at any time for any reason or to continue such Participant’s present (or any other) rate of compensation. The grant of an Award to any Participant shall not create any rights in such Participant to any subsequent Awards by the Company, no Award hereunder shall be considered a condition of such Participant’s employment, and no profit with respect to an Award shall be considered part of such Participant’s salary or compensation under any severance statute or other applicable law.
3.5 Exchange of Prior Awards . In connection with any new Award, the Board shall have the right, at its discretion, to condition a Participant’s receipt of such new Award on the requirement that such Participant return to the Company Awards previously granted to him or her under the Plan. Subject to the provisions of the Plan, such new Award shall be upon such terms and conditions as are specified by the Board at the time the new Award is made.
3.6 Securities Laws . The Plan has been instituted by the Company to provide certain compensatory incentives to Participants. The Plan is intended to qualify for an exemption from the obligation to have a prospectus made generally available under the Dutch Securities Act. In addition, the Plan is intended to qualify for an exemption from the registration requirements under the Securities Act pursuant to Rule 701 of the Securities Act and under applicable state securities laws in the United States and under applicable securities laws in other countries in which Awards are granted.
ARTICLE IV
OPTIONS
4.1 Options . The Board shall have the right and power to grant to any Participant, at any time prior to the termination of this Plan, Options in such quantity, at such price, on such terms and subject to such conditions that are consistent with this Plan and established by the Board. Options granted under this Plan shall be in the form described in this Article IV , or in such other form or forms as the Board may determine, and shall be subject to such additional terms and conditions and evidenced by Award Agreements, as shall be determined from time to time by the Board. Except as otherwise set forth in an Award Agreement, Options shall be subject to all of the terms and conditions contained in this Plan.
4.2 Vesting of Options . Unless otherwise specified in an Award Agreement, all Options shall be subject to vesting in accordance with the provisions of this Section 4.2 . Options shall be exercisable by a Participant only to the extent that they are vested. In addition to the other requirements set forth in this Section 4.2 , Options shall vest only so long as a Participant remains employed by the Company or one of its Subsidiaries. Unless otherwise set forth in an Award Agreement, all Awards of Options shall be divided into three equal portions, with each such portion exercisable for one-third of the Ordinary Shares for which such Options are exercisable, and such portions shall be referred to hereunder as “ Tranche I Options ”, “ Tranche II Options ” and “ Tranche III Options ”.
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(a) Tranche I Vesting . The Tranche I Options will be subject to time vesting and will time vest on each date set forth below with respect to the cumulative percentage of Tranche I Options that is set forth opposite such date, provided that the Participant holding such Tranche I Options is, and has been, continuously employed by the Company or any of its Subsidiaries from the date of award through such determination date:
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Date |
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Cumulative Percentage of Tranche I Options Vested |
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2 nd anniversary of date of grant |
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40 |
% |
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3 rd anniversary of date of grant |
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60 |
% |
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4 th anniversary of date of grant |
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80 |
% |
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5 th anniversary of date of grant |
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100 |
% |
Notwithstanding the foregoing, all Tranche I Options shall be considered 100% vested upon consummation of a Change in Control.
(b) Tranche II Vesting . The Tranche II Options shall be subject to time and performance vesting, and will only be deemed fully vested when they have both time vested and performance vested in accordance with the terms hereof. The Tranche II Options will time vest in the same manner as the Tranche I Options. The Tranche II Options will performance vest upon the earlier to occur of a Change in Control or an Initial Public Offering in which the Sponsor Inflows prior to and in connection with such Change in Control or Initial Public Offering are at least two (2) times the Sponsor Outflows prior to such Change in Control or Initial Public Offering.
(c) Tranche III Vesting . The Tranche III Options shall be subject to time and performance vesting, and will only be deemed fully vested when they have both time vested and performance vested in accordance with the terms hereof. The Tranche III Options will time vest in the same manner as the Tranche I Options. The Tranche III Options will performance vest upon the earlier to occur of a Change in Control or an Initial Public Offering in which the Sponsor Inflows prior to and in connection with such Change in Control or Initial Public Offering are at least two and one-half (2.5) times the Sponsor Outflows prior to such Change in Control or Initial Public Offering.
4.3 Normal Expiration . All Options granted under this Plan shall expire at the close of business on the tenth anniversary of the date of grant to the Participant holding such Options, subject to earlier expiration as provided in this Article IV .
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4.4 Expiration in Certain Circumstances .
(a) Expiration on Termination . Unless otherwise specified in an Award Agreement, if a Participant ceases to be employed by the Company and its Subsidiaries for any reason, then the portion of such Participant’s Options that have not fully vested as of the Termination Date shall expire at such time. The portion of a Participant’s Options that have fully vested as of such Participant’s Termination Date shall expire (i) 60 days after the Termination Date if such Participant ceases to be employed by the Company and its Subsidiaries for any reason other






