PERFORMANCE UNIT AWARD (CASH SETTLED) SURMODICS, INC. 2003 EQUITY INCENTIVE PLAN
Exhibit 99.5
PERFORMANCE UNIT AWARD
(CASH SETTLED)
(CASH SETTLED)
SURMODICS, INC.
2003 EQUITY INCENTIVE PLAN
2003 EQUITY INCENTIVE PLAN
THIS AGREEMENT, made effective as of this day of , 20___, by and
between SurModics, Inc., a Minnesota corporation (the “Company”), and
(“Participant”).
W I T N E S S E T H:
WHEREAS, the Participant on the date hereof is a key employee, officer, director of or
consultant or advisor to the Company or one of its Subsidiaries; and
WHEREAS, the Company wishes to grant a performance unit award to Participant pursuant to the
Company’s 2003 Equity Incentive Plan (the “Plan”) to entitle the Participant to certain benefits
upon the achievement of certain specified performance criteria; and
WHEREAS, the Administrator has authorized the grant of such performance unit award to
Participant;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the parties hereto agree as follows:
1. Grant of Performance Unit Award. The Company hereby grants to Participant on the
date set forth above (the “Date of Grant”) the right to receive up to ( )
Performance Units having a value of $ per Unit (the “Per Unit Value”) payable in cash on
the terms and conditions set forth herein (the “Performance Award”).
2. Performance Period. The Performance Period shall be the period beginning
, 20___, and ending , 20___.
3. Performance Objectives; Vesting. Except as otherwise provided in Paragraph 6(i)
herein, the Performance Units subject to this Performance Award shall vest only upon the
achievement of all or a portion of certain Performance Objectives, which must be achieved during
the Performance Period. The Performance Objectives and the extent to which achievement of all or
a portion of the Performance Objectives will result in the vesting of the Performance Units are as
follows:
| Percentage or Number of | ||||
| Performance Objective(s) | Achievement | Units Vested | ||
Notwithstanding the foregoing schedule, the Administrator may delay the vesting of all or any
portion of the Performance Units pursuant to Paragraph 6(i) herein; provided, however, that such
delay shall not extend the Performance Period during which the above Performance Objectives must be
achieved. Subject to such other terms and conditions set forth in this Agreement, the Participant
shall not be entitled to payment for any portion of the Performance Units subject to this
Performance Award until the Administrator determines the number of Performance Units, if any, which
have vested.
4. Form, Time of Issuance. The Administrator shall, within (___) days after the
end of the Performance Period or at such earlier times as described in Paragraph 3 above, determine
the number of Performance Units that have vested pursuant to Paragraph 3 above, and shall calculate
the amount of cash payable to the Participant by multiplying the Per Unit Value by such number of
vested Performance Units. Unless the Administrator delays the vesting and payment of such
Performance Units pursuant to Paragraph 6(i), such amount shall be paid in [the calendar year] [in
which] [immediately following] the date such Performance Units become vested.
5. Termination of Employment.
a. Prior to Vesting. If, prior to the vesting of any Performance Units, Participant
ceases to be [an employee] [a consultant] [a nonemployee director] of the Company or any Subsidiary
for any reason, the Participant shall forfeit all unvested Performance Units, and this Performance
Award shall terminate; provided, however, that if the Administrator delays the vesting and payment
of any Performance Units pursuant to Paragraph 6(i), the Participant shall not forfeit any such
Performance Units that otherwise would have vested prior to the termination of Participant’s
relationship had such vesting not been so delayed, and, upon payment for such delayed vested
Performance Units, this Performance Award shall terminate.
b. After Vesting But Prior to Issuance. If Participant ceases to be [an employee] [a
consultant] [a nonemployee director] of the Company or any Subsidiary for any reason after
Performance Units have vested but prior to the date payment is made to the Participant (as
described in Section 4 hereof), then Participant (or Participant’s estate in the event of his
death) shall be entitled to receive such payment as if such termination of employment had not
occurred. The amount of such payment shall be determined by the Administrator and shall be made at
the time set forth in Paragraph 4. Upon payment for the vested Performance Units, this Performance
Award shall terminate.
6. Miscellaneous.
a. Employment or Other Relationship. This Agreement shall not confer on Participant
any right to continuance of employment or any other relationship by the Company
or any of its Subsidiaries, nor will it interfere in any way with the right of the Company to
terminate such employment or relationship. The grant of this Award shall not prevent Participant
from receiving, in the sole discretion of the Administrator, additional performance unit awards for
subsequent performance periods, whether or not those performance periods overlap with the
Performance Period specified herein to which this Award relates.
b. Mergers, Recapitalizations, Stock Splits, Etc. Except as otherwise specifically
provided in any employment, change of control, severance or similar agreement executed by the
Participant and the Company, the Administrator may, at any time during the Performance Period
specified herein, pursuant and subject to Section 14 of the Plan, suspend, modify or terminate this
Agreement or any Performance Objectives set forth in Paragraph 3 upon the occurrence of any
extraordinary event which substantially affects the Company or its Subsidiary, including, but not
limited to, a merger, consolidation, exchange, divestiture (including a spin-off), reorganization
or liquidation of the Company or Subsidiary or the sale by the Company or its Subsidiary of
substantially all of its assets and the consequent discontinuance of its business.
c. Withholding Taxes. To permit the Company to comply with all applicable federal or
state income tax laws or regulations, the Company may take such action as it deems appropriate to
ensure that, if necessary, all applicable federal and state payroll, income or other taxes are
withheld from any amounts payable by the Company to the Participant. If the Company is unable to
withhold such federal and state taxes, for whatever reason, the Participant hereby agrees to pay to
the Company an amount equal to the amount the Company would otherwise be required to withhold under
federal or state law.
d. Nontransferability. The Performance Units granted pursuant to this Agreement shall
not be transferred, assigned or pledged in any manner by the Participant, in whole or in part,
other than by will or by the laws of decent and distribution.
e. 2003 Equity Incentive Plan. The Award evidenced by this Agreement is granted
pursuant to the Plan, a copy of which has been made available to Participant and is hereby
incorporated into this Agreement. This Agreement is subject to and in all respects limited and
conditioned as provided in the Plan. All defined terms of the Plan shall have the same meaning
when used in this Agreement. The Plan governs this Award and the Participant and, in the event of
any questions as to the construction of this Agreement or of a conflict between the Plan and this
Agreement, the Plan shall govern, except as the Plan otherwise provides.
f. Scope of Agreement. This Agreement shall bind and inure to the benefit of the
Company and its successors and assigns and the Participant and any successor or successors of the
Participant permitted by Paragraph 5(b) above.
g. Arbitration. Any dispute arising out of or relating to this Agreement or the
alleged breach of it, or the making of this Agreement, including claims of fraud in the inducement,
shall be discussed between the disputing parties in a good faith effort to arrive at a mutual
settlement of any such controversy. If, notwithstanding, such dispute cannot be resolved, such
dispute shall be settled by binding arbitration. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be a
retired state or federal judge or an
attorney who has practiced securities or business litigation for at least 10 years. If the parties
cannot agree on an arbitrator within 20 days, any party may request that the chief judge of the
District Court for Hennepin County, Minnesota, select an arbitrator. Arbitration will be conducted
pursuant to the provisions of this Agreement, and the commercial arbitration rules of the American
Arbitration Association, unless such rules are inconsistent with the provisions of this Agreement.
Limited civil discovery shall be permitted for the production of documents and taking of
depositions. Unresolved discovery disputes may be brought to the attention of the arbitrator who
may dispose of such dispute. The arbitrator shall have the authority to award any remedy or relief
that a court of this state could order or grant; provided, however, that punitive or exemplary
damages shall not be awarded. The arbitrator may award to the prevailing party, if any, as
determined by the arbitrator, all of its costs and fees, including the arbitrator’s fees,
administrative fees, travel expenses, out-of-pocket expenses and reasonable attorneys’ fees.
Unless otherwise agreed by the parties, the place of any arbitration proceedings shall be Hennepin
County, Minnesota.
h. Right to Amend. The Company hereby reserves the right to amend this Agreement
without Participant’s consent to the extent necessary or desirable to comply with the requirements
of Code Section 409A and the regulations, notices and other guidance of general application issued
thereunder.
i. Delay of Payment for Section 162(m). In the event the Administrator reasonably
anticipates that the Company’s income tax deduction with respect to the vesting and payment of any
Performance Units subject to this Agreement would be limited or eliminated by Code Section 162(m),
the Administrator may, subject to such terms and conditions as determined by the Administrator,
delay the vesting and payment of all or a portion of such Performance Units until the earlier of
(i) the date at which the Administrator reasonably anticipates that the corresponding income tax
deduction will not be so limited or eliminated, and (ii) the calendar year of the Participant’s
separation from service, as such term is defined in Code Section 409A and the regulations, notices
and other guidance of general applicability issued thereunder. In the event of such delay, this
Performance Award shall not terminate until the delayed vesting and payment of such Performance
Units has occurred.
▇. ▇▇▇▇▇ in Payment for Specified Employee. In the event this Award is subject to
Code Section 409A and the Administrator determines that the Participant is a “specified employee”
within the meaning of Code Section 409A, then any payment due to the Participant’s separation from
service shall not be paid earlier than the date that is six months after such separation from
service, but shall be paid during the calendar year following the year in which the Participant’s
separation from service occurs and within thirty (30) days after the earliest possible date
permitted under Code Section 409A.
ACCORDINGLY, the parties hereto have caused this Agreement to be executed on the day and year
first above written.
| SURMODICS, INC. | ||||
By: |
||||
| Its: | ||||
| Participant | ||||