Exhibit 10.15
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SPLIT-DOLLAR AGREEMENT
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THIS AGREEMENT, made and entered into this 1st day of December, 2002
effective as of August 27, 2002, by and between MasTec, Inc., a Florida
corporation, with principal offices and place of business in the State of
Florida (hereinafter referred to as the "Corporation"), and Xxxxx Mas, an
individual residing in the State of Florida (hereinafter referred to as the
"Employee"),
WITNESSETH THAT:
WHEREAS, the Employee is employed by the Corporation; and
WHEREAS, the Employee wishes to provide life insurance protection for
his family, under policies of life insurance (hereinafter referred to
individually as a "Policy" and collectively as the "Policies"), insuring
his life and the life of his wife, Xxxxxx Mas (hereinafter referred to
collectively as the "Insureds"), which Policies are described in Exhibit A
attached hereto and by this reference made a part hereof, and which were
issued by Phoenix Life Insurance Company and General American Life Insurance
Company (hereinafter referred to individually as an "Insurer" and
collectively as the "Insurers"); and
WHEREAS, the Corporation is willing to pay the premiums due on the
Policies as an additional employment benefit for the Employee, on the terms
and conditions hereinafter set forth; and
WHEREAS, the Corporation is the owner of the Policies and, as such,
possesses all incidents of ownership in and to the Policies; and
WHEREAS, the Corporation wishes to retain such ownership rights, in
order to secure the repayment of the amounts which it will pay toward the
premiums on the Policies;
WHEREAS, pursuant to the interim guidance provided in Notice 2001-10,
as modified by Notice 2002-8 (the "Notices"), the parties to this
arrangement intend to have their income and gift tax consequences
determined under traditional split-dollar economic benefit concepts;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises contained herein, the parties hereto agree as follows:
1. Statement of Intention. The parties hereto intend that the income
and gift tax consequences of this split-dollar arrangement be governed by
traditional split-dollar economic benefit concepts, in accordance with the
interim guidance provided in the Notices, for arrangements entered into
prior to the adoption of final regulations. The parties hereto agree to
consistently treat this arrangement in accordance with such concepts on all
tax returns and other documents filed by them in connection herewith.
2. Purchase of Policies. The Corporation has purchased the Policies
from the Insurers in the Face Amount of Insurance (as such term is defined
in each Policy) and Death Benefit Options (as such term is defined in each
Policy) described in Exhibit A attached hereto. The parties hereto have
taken all necessary action to cause the Insurers to issue the Policies, and
shall take any further action which may be necessary to cause the Policies
to conform to the provisions of this Agreement. The parties hereto agree
that the Policies shall be subject to the terms and conditions of this
Agreement and of the endorsements to each Policy filed with the Insurers.
3. Ownership of Policies.
a. The Corporation shall be the sole and absolute owner of the
Policies, and may exercise all ownership rights granted to the owner
thereof by the terms of the Policies, except as may otherwise be provided
herein; provided, however, that in no event shall the Corporation have any
right to borrow against or make withdrawals from either Policy.
b. Specifically, the Corporation shall have the sole authority to
direct the manner in which the Policy Account (as such term is defined in
each Policy) established pursuant to the terms of the Policies shall be
allocated among the various investment options from time to time available
under the Policies and to change such allocation from time to time, as
provided for in the Policies.
4. Payment of Premiums. On or before the Anniversary Date of each
Policy (as defined therein), or within the grace period provided therein,
the Corporation shall pay the full amount of each Planned Periodic Premium
(as such term is defined in the Policies) to the Insurers, during the term
hereof, and shall, upon request, promptly furnish the Employee evidence of
timely payment of such premium. Subject to the acceptance of such amount
by the Insurers, the Corporation may also, in its discretion, make
additional premium payments on the Policies. The Corporation shall
annually furnish the Employee a statement of the amount of income reportable
by the Employee for federal and state income tax purposes, as a result of the
insurance protection provided to the Employee's beneficiary hereunder.
5. Designation of Policy Beneficiary/Endorsement.
a. Contemporaneously with the execution of this Agreement, the
Corporation has executed a beneficiary designation for each Policy, under the
form used by each Insurer for such designations, naming the Corporation as
the Policy beneficiary, in order to secure the Corporation's recovery of the
amount due the Corporation hereunder.
b. The Employee may select both the settlement option for payment of
that portion of the death benefit provided under each Policy to which the
Employee is entitled hereunder and the beneficiary or beneficiaries to
receive such portion of the policy proceeds, by specifying the same in a
written notice to the Corporation. Upon receipt of such notice, the
Corporation shall execute and deliver to each Insurer a change of
beneficiary and/or Policy endorsement form necessary to elect the requested
settlement option and to designate the requested person, persons or entity
as the beneficiary or beneficiaries to receive the death proceeds of the
Policy in excess of the amount to which the Corporation is entitled
hereunder. The parties hereto agree to take the action necessary to cause
the beneficiary designation and settlement election provisions of that
portion of each Policy to which the Employee is entitled hereunder to
conform to the provisions hereof; the Corporation shall not terminate,
alter or amend such election or designation for such portion of each
Policy, without the express written consent of the Employee.
6. Limitations on Corporation's Rights in Policies. Except as
otherwise provided herein, the Corporation shall not sell, assign, transfer,
surrender or cancel the Policies, change the beneficiary designation
provision of that portion of the Policies to which the Employee is entitled
hereunder, nor change the Death Benefit Option thereof without, in any
such case, the express written consent of the Employee.
7. Collection of Death Proceeds.
a. Upon the death of the survivor of the Insureds, the Corporation
shall cooperate with the beneficiary or beneficiaries designated by the
Employee to take whatever action is necessary to collect the death benefit
provided under the Policies; when such benefit has been collected and paid
as provided herein, this Agreement shall thereupon terminate.
b. Upon the death of the survivor of the Insureds, the Corporation
shall have the unqualified right to receive a portion of such death benefit
equal to the total amount of the premiums paid by it hereunder, plus 4%,
compounded annually. The balance of the death benefit provided under the
Policies shall be paid directly to the beneficiary or beneficiaries
designated by the Corporation at the direction of the Employee, in the
manner and in the amount or amounts provided in the beneficiary designation
provision of the Policies. In no event shall the amount payable to the
Corporation hereunder exceed the Policy proceeds payable as a result of the
maturity of the Policies as a death claim. No amount shall be paid from such
death benefit to the beneficiary or beneficiaries designated by the
Corporation at the direction of the Employee, until the full amount due the
Corporation for the return of its premiums plus interest hereunder has been
paid. The parties hereto agree that the beneficiary designation provision
of the Policies shall conform to the provisions hereof.
c. Notwithstanding any provision hereof to the contrary, in the event
that, for any reason whatsoever, no death benefit is payable under the
Policies upon the death of the survivor of the Insureds and in lieu thereof
the Insurer refunds all or any part of the premiums paid for the Policies,
the Corporation shall have the unqualified right to retain such premiums.
8. Termination of the Agreement During the Lifetime of the Insureds.
a. This Agreement shall terminate while either of the Insureds is
alive, without notice, upon the occurrence of any of the following events:
(a) total cessation of the Corporation's business;
(b) bankruptcy, receivership or dissolution of the Corporation; or
(c) at any time that the collective voting securities of the Corporation
owned directly or indirectly by Xxxx Xxxxx Mas Holdings I Limited
Partnership, Xxxxx Mas Holdings I Limited Partnership, Mas Family
Foundation, Inc., a Florida not-for-profit corporation, Xxxx Xxxxxx Mas
Holdings I Limited Partnership, Xxxxx L Mas Xxxxxx Holdings I Limited
Partnership, Xxxxx X. Mas, Xxxxx Mas, Xxxx Xxxxxx, Xxxx Xxxxx Mas, and their
respective ancestors and descendants, are less than 38% of the outstanding
voting securities of the Corporation (a "Change in Control").
b. In addition, the Employee may terminate this Agreement, while either
of the Insureds is alive and while no premium under the Policies is overdue,
by written notice to the Corporation. Such termination shall be effective
as of the date of such notice.
9. Disposition of the Policies on Termination of the Agreement During
the Employee's Lifetime.
a. For sixty (60) days after the date of the termination of this
Agreement during the lifetime of the Insureds, the Employee shall have the
assignable option to purchase the Policies from the Corporation. The
purchase price for each Policy shall be the greater of the total amount of
the premium payments made by the Corporation hereunder or the then cash
surrender value of the Policy. Upon receipt of such amount, the Corporation
shall transfer all of its right, title and interest in and to such Policy to
the Employee or his assignee, by the execution and delivery of an appropriate
instrument of transfer, and this Agreement shall thereupon terminate.
b. If the Employee or his assignee fails to exercise such option within
such sixty (60) day period, then the Corporation may enforce its right to be
repaid for the premiums which it paid hereunder by surrendering or canceling
the Policies for their cash surrender value, or it may change the beneficiary
designation provisions of the Policies, naming itself or any other person or
entity as revocable beneficiary thereof, or exercise any other ownership
rights in and to the Policies, without regard to the provisions hereof.
Thereafter, neither the Employee, his assignee nor their heirs, assigns or
beneficiaries shall have any further interest in and to the Policies, either
under the terms thereof or under this Agreement.
10. Insurers Not a Party. The Insurers shall be fully discharged from
their obligations under the Policies by payment of the Policy death benefit
to the beneficiary or beneficiaries named in the Policies, subject to the
terms and conditions of the Policies. In no event shall either Insurer be
considered a party to this Agreement, or any modification or amendment
hereof. No provision of this Agreement, nor of any modification or amendment
hereof, shall in any way be construed as enlarging, changing, varying or in
any other way affecting the obligations of the Insurers as expressly provided
in the Policies, except insofar as the provisions hereof are made a part of
the Policies by the beneficiary designation executed by the Corporation and
filed with the Insurers in connection herewith.
11. Assignment by Employee. Notwithstanding any provision hereof to the
contrary, the Employee shall have the right to absolutely and irrevocably
assign by gift all of his right, title and interest in and to this Agreement
and to the Policies to an assignee. This right shall be exercisable by the
execution and delivery to the Corporation of a written assignment, in
substantially the form attached hereto as Exhibit B, which by this reference
is made a part hereof. Upon receipt of such written assignment executed by
the Employee and duly accepted by the assignee thereof, the Corporation
shall consent thereto in writing, and shall thereafter treat the Employee's
assignee as the sole owner of all of the Employee's right, title and
interest in and to this Agreement and in and to the Policies. Thereafter,
the Employee shall have no right, title or interest in and to this Agreement
or the Policies, all such rights being vested in and exercisable only by
such assignee.
12. Named Fiduciary, Determination of Benefits, Claims Procedure and
Administration.
a. The Corporation is hereby designated as the named fiduciary under
this Agreement. The named fiduciary shall have authority to control and
manage the operation and administration of this Agreement, and it shall be
responsible for establishing and carrying out a funding policy and method
consistent with the objectives of this Agreement.
b. Claim. A Participant, beneficiary or other person who believes
that he or she is being denied a benefit to which he or she is entitled
(hereinafter referred to as "Claimant"), or his or her duly authorized
representative, may file a written request for such benefit with the
President of the Corporation (the "First Level Reviewer"), setting forth
his or her claim. Such claim must be addressed to the President of the
Corporation, at its then principal place of business.
c. Claim Decision. Upon receipt of a claim, the First Level Reviewer
shall advise the Claimant that a reply will be forthcoming within a
reasonable period of time, but ordinarily not later than ninety days, and
shall, in fact, deliver such reply within such period. However, the First
Level Reviewer may extend the reply period for an additional ninety days for
reasonable cause. If the reply period will be extended, the First Level
Reviewer shall advise the Claimant in writing during the initial 90-day
period indicating the special circumstances requiring an extension and the
date by which the First Level Reviewer expects to render the benefit
determination.
If the claim is denied in whole or in part, the First Level Reviewer
will render a written opinion, using language calculated to be understood
by the Claimant, setting forth:
(1) the specific reason or reasons for the denial;
(2) the specific references to pertinent Plan provisions on which the
denial is based;
(3) a description of any additional material or information necessary
for the Claimant to perfect the claim and an explanation as to why such
material or such information is necessary;
(4) appropriate information as to the steps to be taken if the Claimant
wishes to submit the claim for review, including a statement of the
Claimant's right to bring a civil action under Section 502(a) of ERISA
following an adverse benefit determination on review; and
(5) the time limits for requesting a review of the denial under
Subsection C hereof and for the actual review of the denial under
Subsection D hereof.
d. Request for Review. Within sixty days after the receipt by the
Claimant of the written opinion described above, the Claimant may request
in writing that the Secretary of the Corporation (the "Second Level
Reviewer") review the First Level Reviewer's prior determination.
Such request must be addressed to the Secretary of the Corporation, at its
then principal place of business. The Claimant or his or her duly authorized
representative may submit written comments, documents, records or other
information relating to the denied claim, which such information shall be
considered in the review under this subsection without regard to whether such
information was submitted or considered in the initial benefit determination.
The Claimant or his or her duly authorized representative shall be
provided, upon request and free of charge, reasonable access to, and copies
of, all documents, records and other information which (i) was relied upon
by the First Level Reviewer in making its initial claims decision, (ii) was
submitted, considered or generated in the course of the First Level Reviewer
making its initial claims decision, without regard to whether such instrument
was actually relied upon by the First Level Reviewer in making its decision
or (iii) demonstrates compliance by the First Level Reviewer with its
administrative processes and safeguards designed to ensure and to verify
that benefit claims determinations are made in accordance with governing
Plan documents and that, where appropriate, the Plan provisions have been
applied consistently with respect to similarly situated claimants. If the
Claimant does not request a review of the First Level Reviewer's
determination within such sixty-day period, he or she shall be barred and
estopped from challenging such determination.
e. Review of Decision. Within a reasonable period of time, ordinarily
not later than sixty days, after the Second Level Reviewer's receipt of a
request for review, it will review the First Level Reviewer's prior
determination. If special circumstances require that the sixty-day time
period be extended, the Second Level Reviewer will so notify the Claimant
within the initial 60-day period indicating the special circumstances
requiring an extension and the date by which the Second Level Reviewer
expects to render its decision on review, which shall be as soon as
possible but not later than 120 days after receipt of the request for
review. In the event that the Second Level Reviewer extends the
determination period on review due to a Claimant's failure to submit
information necessary to decide a claim, the period for making the benefit
determination on review shall not take into account the period beginning on
the date on which notification of extension is sent to the Claimant and
ending on the date on which the Claimant responds to the request for
additional information.
The Second Level Reviewer has discretionary authority to determine a
Claimant's eligibility for benefits and to interpret the terms of the Plan.
Benefits under the Plan will be paid only if the Second Level Reviewer
decides in its discretion that the Claimant is entitled to such benefits.
The decision of the Second Level Reviewer shall be final and non-reviewable,
unless found to be arbitrary and capricious by a court of competent review.
Such decision will be binding upon the Employer and the Claimant.
If the Second Level Reviewer makes an adverse benefit determination on
review, the Second Level Reviewer will render a written opinion, using
language calculated to be understood by the Claimant, setting forth:
(1) the specific reason or reasons for the denial;
(2) the specific references to pertinent Plan provisions on which
the denial is based;
(3) a statement that the Claimant is entitled to receive, upon
request and free of charge, reasonable access to, and copies of, all
documents, records and other information which (i) was relied upon by the
Second Level Reviewer in making its decision, (ii) was submitted,
considered or generated in the course of the Second Level Reviewer making
its decision, without regard to whether such instrument was actually relied
upon by the Second Level Reviewer in making its decision or (iii)
demonstrates compliance by the Second Level Reviewer with its
administrative processes and safeguards designed to ensure and to verify
that benefit claims determinations are made in accordance with governing
Plan documents, and that, where appropriate, the Plan provisions have been
applied consistently with respect to similarly situated claimants; and
(4) a statement of the Claimant's right to bring a civil action under
Section 502(a) of ERISA following the adverse benefit determination on such
review.
13. Amendment. This Agreement may not be amended, altered or modified,
except by a written instrument signed by the parties hereto, or their
respective successors or assigns, and may not be otherwise terminated except
as provided herein.
14. Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the Corporation and its successors and assigns, and the
Employee, his successors, assigns, heirs, executors, administrators and
beneficiaries.
15. Notices. Any notice, consent or demand required or permitted to
be given under the provisions of this Agreement shall be in writing, and
shall be signed by the party giving or making the same. If such notice,
consent or demand is mailed to a party hereto, it shall be sent by United
States certified mail, postage prepaid, addressed to such party's last known
address as shown on the records of the Corporation. The date of such
mailing shall be deemed the date of notice, consent or demand.
16. Governing Law. This Agreement, and the rights of the parties
hereunder, shall be governed by and construed in accordance with the laws
of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
in duplicate, as of the day and year first above written.
MASTEC, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, President
ATTEST:
/s/ Xxxxx Xxxxx
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Assistant Secretary
"Corporation"
/s/ Xxxxx Mas
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XXXXX MAS
"Employee"
EXHIBIT A
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The following life insurance policies are subject to the attached Split-
Dollar Agreement:
Insurer: Phoenix Life Insurance Company
Insured: Xxxxx Mas and Xxxxxx Mas
Policy Number: 11203773
Face Amount: $20,000,000
Death Benefit Option: A
Date of Issue: November 25, 2002
Insurer: General American Life Insurance Company
Insured: Xxxxx Mas and Xxxxxx Mas
Policy Number: 16052149
Face Amount: $30,000,000
Death Benefit Option: A
Date of Issue: August 27, 2002
EXHIBIT B
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THIS ASSIGNMENT, dated this 1st day of December, 2002.
WITNESSETH THAT:
WHEREAS, the undersigned (the "Assignor") is the Employee under that
certain Split-Dollar Agreement between MasTec, Inc., a Florida corporation
(the "Company") and Xxxxx Mas dated 1st day of December, 2002, effective as
of September 13, 2002, (the "Split-Dollar Agreement"), which Split-Dollar
Agreement confers upon the undersigned certain rights and benefits with
regard to one or more policies of insurance insuring the Assignor's life; and
WHEREAS, pursuant to the provisions of said Split-Dollar Agreement, the
Assignor retained the right, exercisable by the execution and delivery to the
Company of a written form of assignment, to absolutely and irrevocably
assign all of the Assignor's right, title and interest in and to said Split-
Dollar Agreement to an assignee; and
WHEREAS, the Assignor desires to exercise said right;
NOW, THEREFORE, the Assignor, without consideration, and intending to
make a gift, hereby absolutely and irrevocably assigns, gives, grants and
transfers to XXXXX MAS, IRREVOCABLE TRUST (the "Assignee"), all of the
Assignor's right, title and interest in and to the Split-Dollar Agreement
and said policies of insurance, intending that, from and after this date,
the Split-Dollar Agreement be solely between the Company and the Assignee
and that hereafter the Assignor shall neither have nor retain any right,
title or interest therein.
/s/ Xxxxx Mas
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Xxxxx Mas, Assignor
Page 2, EXHIBIT B
ACCEPTANCE OF ASSIGNMENT
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The undersigned Assignee hereby accepts the above assignment of all
right, title and interest of the Assignor therein in and to the Split-Dollar
Agreement, and the undersigned hereby agrees to be bound by all of the terms
and conditions of said Split-Dollar Agreement, as if the original Employee
thereunder.
XXXXX MAS IRREVOCABLE
TRUST DATED
December 1, 2002
/s/ JRM
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Trustee
Assignee
Dated: December 1, 2002
CONSENT TO ASSIGNMENT
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The undersigned Company hereby consents to the foregoing assignment of
all of the right, title and interest of the Assignor in and to the Split-
Dollar Agreement, to the Assignee designated therein. The undersigned
Company hereby agrees that, from and after the date hereof, the undersigned
Company shall look solely to such Assignee for the performance of all
obligations under said Split-Dollar Agreement which were heretofore the
responsibility of the Assignor, shall allow all rights and benefits provided
therein to the Assignor to be exercised only by said Assignee, and shall
hereafter treat said Assignee in all respects as if the original Employee
thereunder.
MASTEC, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
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Xxxxxx Xxxxxxxxxx, President
Dated: December 1, 2002
