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8-K - 8-K - SPECTRANETICS CORP | spectranetics8k2017psu.htm |
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THE SPECTRANETICS CORPORATION
2016 INCENTIVE AWARD PLAN
PERFORMANCE STOCK UNIT GRANT NOTICE
The Spectranetics Corporation, a Delaware corporation (the “Company”), pursuant to The
Spectranetics Corporation 2016 Incentive Award Plan (as it may be amended from time to time, the
“Plan”), hereby grants to the individual listed below (the “Participant”) the following award of
Performance Stock Units (“PSUs”). This award of PSUs is subject to all of the terms and conditions set
forth in this Grant Notice, in the Performance Stock Unit Terms and Conditions (the “Terms and
Conditions”) attached hereto as Appendix A and Appendix B (the “Appendices”) (this Grant Notice and
the Appendices being collectively referred to as the “Award Agreement”) and in the Plan, the terms of
which are incorporated herein by reference. All capitalized terms used and not otherwise defined in this
Award Agreement shall have the meanings ascribed to such terms in the Plan (as it may be amended from
time to time) unless the context clearly indicates otherwise.
Participant: ______________
Grant Date: ________ __, 2017
Target Number of PSUs: _________
The number of PSUs actually earned can be between 0%
and 200% of the Target Number of PSUs and is
determined at the end of the Performance Period.
Performance Period: January 1, 2017 – December 31, 2019
Performance Measures: Revenue and EBITDA
(See Appendix B)
Payout Range: 0% to 200% of Target Number
Scheduled Vesting Date[s]: 100% of earned PSUs vest on December 31, 2019
Payment of PSUs: The Company shall pay to the Participant in the form of
one share of Stock for each vested PSU as set forth in
Section 4 of the attached Terms and Conditions.
Termination of PSUs: Unvested PSUs are forfeited and terminated to the extent
set forth in Section 3 of the attached Terms and
Conditions.
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By his or her signature and the Company’s signature below, the Participant agrees to be bound by
the terms and conditions of the Plan and this Award Agreement. The Participant has reviewed the Award
Agreement, including the Appendices, and the Plan in their entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Grant Notice and fully understands all provisions of this Award
Agreement and the Plan. In the event that there are any inconsistencies between the terms of the Plan and
the terms of this Award Agreement, the terms of the Plan shall control. The Participant hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the Compensation Committee of
the Board of Directors of the Company (the “Committee”) upon any questions arising under this Award
Agreement or the Plan.
IN WITNESS WHEREOF, this Grant Notice has been executed and delivered by the parties
hereto as of the Grant Date first written above.
THE SPECTRANETICS
CORPORATION:
By:
Name: Robert Fuchs
Title: Senior Vice President,
Global Human Resources
PARTICIPANT:
Signature:
Print Name:
Address:
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APPENDIX A
TO PERFORMANCE STOCK UNIT GRANT NOTICE
PERFORMANCE STOCK UNIT TERMS AND CONDITIONS
1. Grant. Pursuant to the Performance Stock Unit Grant Notice (the “Grant Notice”) and
these Performance Stock Unit Terms and Conditions (the “Terms and Conditions”) attached to the
Grant Notice, and which together with this Appendix A and the Process for Determining Earned PSUs
attached hereto as Appendix B (this Grant Notice and Appendix A and Appendix B being collectively
referred to as the “Award Agreement,”) The Spectranetics Corporation, a Delaware corporation (the
“Company”), has granted to the Participant an award of PSUs under The Spectranetics Corporation 2016
Incentive Award Plan (as it may be amended from time to time, the “Plan”), subject to all of the terms
and conditions contained in this Award Agreement and the Plan. All capitalized terms used but not
defined in the Award Agreement shall have the meanings ascribed to such terms in the Plan unless the
context clearly indicates otherwise.
2. PSUs. Each PSU that vests represents the right to receive payment, in accordance with
Section 4 below, in the form of one share of Stock. Unless and until a PSU vests, the Participant has no
right to payment in respect of any such PSU. Prior to actual payment in respect of any vested PSU, such
PSU represents an unfunded and unsecured contingent obligation of the Company, payable (if at all)
only from the general assets of the Company.
3. Vesting and Termination. The number of PSUs that are earned and eligible to vest is
determined as set forth in this Section 3 or in Appendix B, if applicable.
3.1 Unearned PSUs. Any PSUs that have not yet been earned as of the end of the
Performance Period or otherwise in the manner provided in Appendix B, if applicable, will immediately
terminate and be forfeited and cancelled without payment of consideration therefor.
3.2 Voluntary Termination by the Participant or Termination by the Company for
Cause. All PSUs that have not yet vested as of the time Participant ceases to be a Service Provider (a
“Termination of Service”) due to voluntary termination by the Participant (not including a voluntary
Termination of Service for Good Reason as contemplated by Section 3.3 below) or termination by the
Company for Cause shall thereupon terminate and be forfeited and cancelled without payment of
consideration therefor.
3.3 Termination without Cause or for Good Reason. Except as provided in Section
3.5, if the Participant experiences an involuntary Termination of Service without Cause or a voluntary
Termination of Service for Good Reason, the PSUs vest as follows (and any PSUs that do not vest under
the circumstances described below are forfeited and cancelled without payment of consideration
therefor):
(a) If such termination occurs in the first year of the Performance Period, all
unvested PSUs as of the Participant's Termination of Service thereupon terminate and are
forfeited and cancelled without payment of consideration therefor.
(b) If such termination occurs in the second year of the Performance Period
and if either the Year 2 Threshold Revenue Level (as set forth in Appendix B) or the Year 2
Threshold EBITDA Level (as set forth in Appendix B) is earned by the Company during the
fiscal year ending December 31, 2018, then the Participant is entitled to a prorated vesting and
payout of PSUs. If the Year 2 Threshold Revenue Level is achieved, the Participant is entitled to
a prorated vesting of 35% of the Target Number of PSUs. If the Year 2 Threshold EBITDA Level
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is achieved, the Participant is entitled to a prorated vesting of 15% of the Target Number of
PSUs. If both the Year 2 Threshold Revenue Level and the Year 2 Threshold EBITDA Level are
achieved, the Participant is entitled to a prorated vesting of 50% of the Target Number of PSUs.
The prorated number of PSUs that vest upon such Termination of Service is equal to the number
of PSUs earned as described above multiplied by a fraction, the numerator of which equals the
number of days such Participant was employed with the Company during the Performance Period
and the denominator of which equals the number of days in the Performance Period. In such
case, any earned PSUs shall be paid out after December 31, 2018 following the calculation of the
performance measures in accordance with this Section 3.3(b) and Appendix B.
(c) If such termination occurs in the third year of the Performance Period,
the Participant is entitled to a prorated vesting and payout of PSUs. The number of PSUs that
vest upon such Termination of Service is equal to the number of PSUs earned as of the end of the
Performance Period upon calculation of the performance measures as set forth in Appendix B
multiplied by a fraction, the numerator of which equals the number of days such Participant was
employed with the Company during the Performance Period and the denominator of which equals
the number of days in the Performance Period. In such case, any earned PSUs shall be paid out
following the end of the Performance Period and the calculation of the performance measures in
accordance with Appendix B.
3.4 Termination by Reason of Death or Disability. If the Participant's Termination of
Service occurs by reason of death or Disability prior to the Scheduled Vesting Date, the Participant, or the
Participant's estate, designated beneficiary or other beneficiary contemplated by the Plan in the event of
the Participant’s death, is entitled to the immediate vesting and payout of the Target Number of PSUs as
set forth in the Grant Notice. Any PSUs that do not vest under the circumstances described in the
preceding sentence are forfeited and cancelled without payment of consideration therefor.
3.5 Change in Control. If a Change in Control occurs prior to the Scheduled Vesting
Date and prior to the Participant’s Termination of Service:
(a) If this Award is continued, assumed or replaced by the surviving or
successor entity (or its parent entity) and within 12 months after the Change in Control the
Participant experiences an involuntary Termination of Service without Cause or a voluntary
Termination of Service for Good Reason, then the Participant is entitled to the immediate vesting
and payout of a number of PSUs equal to the Target Number of PSUs as set forth in the Grant
Notice. Any PSUs that do not vest under the circumstances described in the preceding sentence
are forfeited and cancelled without payment of consideration therefor.
(b) If this Award is not continued, assumed or replaced by the surviving or
successor entity (or its parent entity), then the Participant is entitled to the immediate vesting and
payout of a number of PSUs equal to the Target Number of PSUs as set forth in the Grant Notice.
Any PSUs that do not vest under the circumstances described in the preceding sentence are
forfeited and cancelled without payment of consideration therefor.
4. Payment after Vesting; Code Section 409A. The Company shall issue one share of Stock
(in book-entry form or otherwise) in respect of each PSU that vests in accordance herewith to the
Participant (or in the event of the Participant’s death, to the Participant’s estate, designated beneficiary or
other beneficiary contemplated by the Plan) as soon as practicable following the date on which such PSU
vests. Notwithstanding anything herein to the contrary, no such payment shall be made to the Participant
during the six-month period following the Participant’s “separation from service” (within the meaning of
Section 409A of the Code) if the Participant is a “specified employee” (within the meaning of Section
409A of the Code) on the date of such separation from service (as determined by the Company in
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accordance with Section 409A of the Code) and the Company determines that paying such amounts at
the time set forth in this Section 4 would constitute a failure to comply with Section 409A(a)(2)(B)(i) of
the Code. If the payment of any such amounts is delayed as a result of the previous sentence, then on the
first day following the end of such six-month period, the Company shall pay the Participant the
cumulative amounts that would have otherwise been payable to the Participant during such six-month
period.
5. Tax Withholding. The Company may deduct or withhold, or require the Participant to
remit to the Company, an amount sufficient to satisfy all applicable federal, state and local taxes
(including the Participant’s employment tax obligations, if any) required by law to be withheld with
respect to any taxable event arising in connection with the PSUs. Without limiting the generality of
Section 14 of the Plan, the Participant may, in satisfaction of the foregoing requirement, elect to have the
Company withhold or cause to be withheld shares of Stock otherwise issuable in respect of such PSUs
having a Fair Market Value equal to the sums required to be withheld.
6. Rights as Shareholder. Neither the Participant nor any person claiming under or through
the Participant has any of the rights or privileges of a shareholder of the Company in respect of any
shares of Stock that may become deliverable hereunder unless and until certificates representing such
shares of Stock have been issued, recorded on the records of the Company or its transfer agents or
registrars, and delivered in certificate or book entry form to the Participant or any person claiming under
or through the Participant.
7. Non-Transferability. Neither the PSUs nor any interest or right therein is liable for the
debts, contracts or engagements of the Participant or his or her successors in interest or subject to
disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or any other means,
whether such disposition be voluntary or involuntary or by operation of law by judgment, levy,
attachment, garnishment or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect; provided, however, that this Section 7
shall not prevent transfers by will or by the applicable laws of descent and distribution or pursuant to a
domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security
Act of 1974, as amended, or the rules thereunder. Upon any attempt by the Participant to transfer,
assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred hereby,
or upon any attempted sale by the Participant under any execution, attachment or similar process, this
grant and the rights and privileges conferred hereby shall immediately become null and void.
8. Distribution of Stock. Notwithstanding anything herein to the contrary, the Company is
not required to issue or deliver any certificates evidencing shares of Stock pursuant to this Award
Agreement unless and until the Committee has determined, with advice of counsel, that the issuance and
delivery of such certificates is in compliance with all applicable laws, regulations of governmental
authorities and, if applicable, the requirements of any exchange on which the shares of Stock are listed or
traded. All Stock certificates delivered pursuant to this Award Agreement are subject to any stop-
transfer orders and other restrictions as the Committee deems necessary or advisable to comply with
federal, state, or foreign jurisdiction, securities or other laws, rules and regulations and the rules of any
national securities exchange or automated quotation system on which the Stock is listed, quoted, or
traded. In the event that any such issuance or delivery is delayed because the Company reasonably
determines that such issuance or delivery will violate Federal securities laws or other applicable law,
such issuance or delivery shall be made at the earliest date at which the Company reasonably determines
that such issuance or delivery will not cause such violation. The Committee may place legends on any
Stock certificate to reference restrictions applicable to the Stock. In addition to the terms and conditions
provided herein, the Committee may require that the Participant make such reasonable covenants,
agreements, and representations as the Committee, in its discretion, deems advisable in order to comply
with any such laws, regulations, or requirements. The Committee may require the Participant to comply
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with any timing or other restrictions with respect to the settlement of any PSUs, including a window-
period limitation, as may be imposed in the discretion of the Committee. Notwithstanding any other
provision of this Award Agreement, unless otherwise determined by the Committee or required by any
applicable law, rule or regulation, the Company shall not deliver to the Participant any certificates
evidencing shares of Stock issued upon settlement of any PSUs under this Award Agreement and instead
such shares of Stock shall be recorded in the books of the Company (or, as applicable, its transfer agent
or stock plan administrator) and all references herein to certificates shall be deemed to apply instead to
recordation in such books.
9. No Effect on Service Relationship. Nothing in this Award Agreement or in the Plan
confers upon the Participant any right to serve or continue to serve as an Employee, Non-Employee
Director, consultant or other Service Provider of the Company or any Subsidiary.
10. Severability. In the event that any provision in this Award Agreement is held invalid or
unenforceable, such provision will be severable from, and such invalidity or unenforceability will not be
construed to have any effect on, the remaining provisions of this Award Agreement, which shall remain
in full force and effect.
11. Tax Consultation. The Participant understands that the Participant may suffer adverse tax
consequences in connection with the PSUs granted pursuant to this Award Agreement. The Participant
represents that the Participant has consulted with any tax consultants that the Participant deems advisable
in connection with the PSUs and that the Participant is not relying on the Company for tax advice.
12. Amendments, Suspension and Termination. To the extent permitted by the Plan, this
Award Agreement may be wholly or partially amended or otherwise modified, suspended or terminated
at any time or from time to time by the Committee or the Board.
13. Conformity to Securities Laws. The Participant acknowledges that the Plan and this
Award Agreement are intended to conform to the extent necessary with all provisions of the Securities
Act of 1933, as amended, and the Exchange Act and any and all regulations and rules promulgated by
the Securities and Exchange Commission thereunder, and all applicable state securities laws and
regulations. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the
PSUs are granted, only in such a manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Plan and this Award Agreement shall be deemed amended to the extent
necessary to conform to such laws, rules and regulations.
14. Limitations Applicable to Section 16 Persons. Notwithstanding any other provision of
the Plan or this Award Agreement, if the Participant becomes subject to Section 16 of the Exchange Act,
the Plan, the PSUs and this Award Agreement will be subject to any additional limitations set forth in
any applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule
16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To the
extent permitted by applicable law, this Award Agreement is deemed amended to the extent necessary to
conform to such applicable exemptive rule.
15. Code Section 409A. Neither the PSUs nor this Award Agreement is intended to provide
for any deferral of compensation subject to Section 409A of the Code, and, accordingly, notwithstanding
anything to the contrary, the shares of Stock issuable hereunder in settlement of vested PSUs shall be
distributed no later than the later of: (i) the 15th day of the third month following Participant’s first
taxable year in which the PSUs are no longer subject to a substantial risk of forfeiture, and (ii) the 15th
day of the third month following the first taxable year of the Company in which the PSUs are no longer
subject to substantial risk of forfeiture, as determined in accordance with Code Section 409A and any
Treasury Regulations and other guidance issued thereunder. Nevertheless, to the extent that the
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Committee determines that any PSUs may not be exempt from (or compliant with) Section 409A of the
Code, the Committee may (but shall not be required to) amend this Award Agreement in a manner
intended to comply with the requirements of Section 409A of the Code or an exemption therefrom
(including amendments with retroactive effect), or take any other actions as it deems necessary or
appropriate to (a) exempt the PSUs from Section 409A of the Code and/or preserve the intended tax
treatment of the benefits provided with respect to the PSUs, or (b) comply with the requirements of
Section 409A of the Code. To the extent applicable, this Award Agreement shall be interpreted in
accordance with the provisions of Section 409A of the Code.
16. Compensation Recovery Policy. To the extent that any compensation paid or payable
pursuant to this Award Agreement is considered “incentive-based compensation” within the meaning
and subject to the requirements of Section 10D of the Exchange Act, such compensation shall be subject
to potential forfeiture or recovery by the Company in accordance with any compensation recovery policy
adopted by the Board or any committee thereof in response to the requirements of Section 10D of the
Exchange Act and any implementing rules and regulations thereunder adopted by the Securities and
Exchange Commission or any national securities exchange on which the Company’s common stock is
then listed. This Award Agreement may be unilaterally amended by the Company to comply with any
such compensation recovery policy.
17. Adjustments. The Participant acknowledges that the PSUs are subject to modification
and termination in certain events as provided in this Award Agreement and Section 15 of the Plan.
18. Notices. Notices required or permitted hereunder must be given in writing and are
deemed effectively given upon personal delivery or upon deposit in the United States mail by certified
mail, with postage and fees prepaid, addressed to the Participant to his or her address shown in the
Company records, and to the Company at its principal executive office.
19. Successors and Assigns. The Company may assign any of its rights under this Award
Agreement to single or multiple assignees, and this Award Agreement inures to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer contained herein, this
Award Agreement shall be binding upon the Participant and his or her heirs, executors, administrators,
successors and assigns.
20. Governing Law. This Award Agreement is intended to be administered, interpreted and
enforced under the internal laws of the State of Delaware, without giving effect to any choice of law or
conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of Delaware.
21. Captions. Captions provided herein are for convenience only and are not intended to
serve as a basis for interpretation or construction of this Award Agreement.