Exhibit 10.25
SEPARATION AGREEMENT
SEPARATION AGREEMENT ("Agreement") dated as of August 7, 2001, between
JOEL-TOMAS CITRON ("Executive"), and MASTEC, INC. ("MasTec").
WHEREAS, Executive wishes to resign and terminate his employment with
MasTec; and
WHEREAS, MasTec and Executive desire to establish the terms of the
separation and the parties' respective rights and obligations.
NOW, THEREFORE, In consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Executive and MasTec mutually agree to terminate Executive's employment
with MasTec and all of its subsidiaries in whatever capacity and to
terminate all prior agreements or understandings relating to
Executive's employment with MasTec and all of its subsidiaries
effective August 7, 2001 (the "Separation Date") other than Executive's
existing rights relating to stock options held by him under MasTec's
stock option plans and MasTec's obligation to fund premiums of an
additional $150,000 under a deferred compensation life insurance
program and to maintain the insurance on substantially the same terms
previously agreed to by MasTec. To this end, effective on the
Separation Date, Executive resigns as President and Chief Executive
Officer of MasTec, as a member of the Board of Directors of MasTec, and
as an executive and member of the board of directors of all of MasTec's
subsidiaries. Executive shall also resign on the Separation Date from
the boards of directors (or similar governing bodies) of any entity for
which Executive serves as a designee of MasTec or its affiliates.
2. (a) Subject to the terms and conditions of this Agreement, in
connection with Executive's separation from MasTec and in
consideration for the covenants and agreements set forth
herein, MasTec agrees to pay Executive an aggregate of $10
million (the "Severance Pay") payable in cash by wire transfer
to the account designated in writing by Executive from time to
time as follows:
Payment Date Amount
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September 3, 2001 $2,000,000
January 2, 2002 $2,000,000
April 1, 2002 $2,000,000
July 1, 2002 $2,000,000
October 1, 2002 $2,000,000
; provided, however, that all payments shall accelerate and be
due and payable in the event that MasTec fails to make any of
the foregoing payments within three business days after
written notice from Executive that any such payment has not
been timely made.
(b) Executive agrees that MasTec may reduce the payment to be made
on October 1, 2002 by the amount of all indebtedness owed to
MasTec under the Demand Note in the principal amount of
$750,000 dated November 1, 2000.
(c) Such Severance Pay shall constitute full payment and
consideration in connection with the separation and
Executive's employment and shall be in lieu of any other
payments or consideration arising out of any previous
relationship, agreements or arrangements between MasTec or its
subsidiaries and affiliates on the one hand, and Executive, on
the other.
3. (a) From the Separation Date until August 7, 2003 (the "Consulting
Period"), Executive shall provide such consulting services
(the "Consulting Services") (i) as may be reasonably necessary
or appropriate in order to effect an orderly transfer of
Executive's responsibilities to one or more other executives
of MasTec and to ensure that MasTec is aware of all matters
that were handled by Executive during his employment by MasTec
and (ii) as may be reasonably requested by MasTec in
connection with general corporate matters.
(b) During the Consulting Period, Executive shall not have any
formal schedule of duties or assignments, but (i) during the
period from the Separation Date until November 7, 2001 (the
"Initial Consulting Period"), Executive shall make himself
available for at least 20 hours per week to
perform the Consulting Services and (ii) during the remainder
of the Consulting Period, Executive shall make himself
available for at least 20 hours per month to perform the
Consulting Services. After the Initial Consulting Period,
Executive shall receive reasonable advance notice from MasTec
of the time requested for such Consulting Services, which time
shall not unreasonably interfere with Executive's other
activities. Executive may perform Consulting Services by
telephone and may be required to travel in connection with his
performance of Consulting Services.
(c) MasTec agrees to reimburse Executive for reasonable expenses
incurred by him in connection with his rendering of Consulting
Services to the extent such expenses are reimbursable under
MasTec's policy for business expenses as provided to him from
time to time. Executive will provide appropriate documentation
of expenses as may from time to time be reasonably requested
by MasTec.
(d) MasTec agrees that it will provide an office for Executive's
use in MasTec's office at 660 Madison Avenue, New York, New
York through December 31, 2001 and will continue to (i) employ
Krysta Mihalik through December 31, 2001 and (ii) engage
Gabriella Grunwald as a consultant through September 30, 2001.
Executive will either vacate the New York office on or prior
to December 31, 2001 or assume the lease of such space for the
remainder of the lease term. In the event Executive assumes
the lease, MasTec shall be unconditionally released from any
liability thereunder and any letter of credit or security
provided by MasTec which is currently held by the landlord or
any other third party in connection with such leased office
shall be promptly returned to MasTec.
4. Executive agrees that he will cooperate and assist MasTec in connection
with any legal, quasi-legal, administrative or other similar
proceeding, including any external or internal investigation, involving
MasTec or any of its subsidiaries or affiliates, by furnishing such
information and appropriate services (including, if required,
testimony) and by making himself available to MasTec as may be
reasonably requested by MasTec from time to time.
5. All stock options to acquire MasTec Common Stock granted to Executive
under MasTec's 1994 Stock Incentive Plan, as amended, or any other
option or benefit plan shall, upon the Separation Date, become fully
vested and immediately exercisable and may be exercised by Executive
for the full remaining term of the options but in no event later than
the latest day on which such option may be exercised under the terms of
the plan under which such option was granted.
6. Executive acknowledges and agrees that he is not entitled to any
further payments or benefits other than as provided for by this
Agreement and he has no additional right to (a) vacation, holiday, sick
or personal days or pay in lieu thereof, (b) bonus, profit sharing or
other incentive compensation, or (c) stock options or restricted stock,
all of which Executive specifically waives; provided, however, that
Executive is not waiving his rights under the federal law providing for
continuation of medical coverage commonly known as COBRA. Executive
agrees and acknowledges that his eligibility (i) to purchase stock
under the MasTec, Inc. Non-Qualified Employee Stock Purchase Plan, (ii)
to participate in Employer incentive compensation or other compensation
plans and (iii) to participate in any other benefit plan of Employer or
its subsidiaries or affiliates is terminated as of the Separation Date.
Notwithstanding the foregoing, MasTec agrees to reimburse Executive for
reasonable business expenses incurred by him prior to the Separation
Date subject to MasTec's historical policy for the reimbursement of
business expenses.
7. Executive agrees that at MasTec's request he will promptly deliver or
cause to be delivered to MasTec, (a) all keys, ID cards, company
automobile or other vehicle, corporate credit card, laptop computer or
other hardware, computer software of any kind, electronic address book,
portable telephone, radio, electronic beeper or other electronic
devices, equipment and all other property belonging to MasTec and (b)
all originals and copies of any drawings, books, manuals, letters,
notes, notebooks, reports, financial statements, business plans,
projections, data base, or documents, materials or information in
Executive's possession or control containing or describing any
Confidential Information (as defined below) or otherwise relating to
MasTec or any of its subsidiaries or affiliates; provided, however,
that Executive will not be required to return the computers (and
software currently installed therein) in the New York, New York office
currently being used by him prior to December 31, 2001.
8. Executive acknowledges that as a result of his employment with MasTec,
Executive gained knowledge of, and had access to, proprietary and
confidential information and trade secrets of MasTec and its
affiliates. Executive agrees that he will not, in any fashion, form or
manner, directly or indirectly (a) use, disclose,
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communicate or provide or permit access to any person or entity, or (b)
remove from the premises of MasTec or any of its affiliates any notes
or records (including copies or facsimiles, whether made by electronic,
electrical, magnetic, optical, laser, acoustic or other means),
relating to any confidential, proprietary or secret information of
MasTec or any of its affiliates (collectively, "confidential
Information") (including without limitation (1) the identity of
customers, suppliers, subcontractors and others with whom they do
business; (2) their marketing methods, strategies and related
information; (3) contract terms, pricing, margin or cost information or
other information regarding the relationship between them and the
persons and entities with which they have contracted; (4) their
services, products, software, technology, developments, improvements
and methods of operation; (5) their results of operations, financial
condition, projected financial performance, sales and profit
performance and financial requirements; (6) the identity of and
compensation paid to their employees and consultants; (7) any business
plans, models or strategies and the information contained therein; (8)
their sources, leads or methods of obtaining new business; and (9) all
other confidential information of, about or concerning the business of
MasTec and its affiliates), except for (x) information that is or
becomes available to the public generally other than as a result of an
unauthorized disclosure by Executive, including as an example
publicly-available information filed by MasTec with the Securities and
Exchange Commission or other governmental or regulatory authorities,
(y) information that is generally known in the business of MasTec or
its affiliates or that constitutes standard industry practices, customs
and methods, or (z) information known to Executive prior to joining
MasTec or its predecessors or gained during his employment with MasTec
from sources outside of MasTec or its employees, officers, directors,
consultants, advisors or other representatives who do not owe a duty of
confidence to MasTec or any of its affiliates, whether arising under
contract or otherwise. Executive will be entitled to use Confidential
Information in the discharge of his Consulting Services.
9. Executive acknowledges that it is essential to MasTec that Executive
not utilize his special knowledge of MasTec and its business and his
relationships with customers, suppliers and other who have business
dealing with MasTec to compete with MasTec. Accordingly, during the
Consulting Period, Executive covenants that he will not within the
United States of America or the Commonwealth of Canada:
(a) Directly or indirectly own, manage, operate, control, be
employed by, consult with or participate in ownership,
management, operation or control of, or be connect in any
manner with, any entity engaged, directly or through one or
more subsidiaries, in the business of providing
telecommunications or other utility infrastructure services,
if such entity derives at least 20% or more of its
consolidated revenues from telecommunications or other utility
infrastructure services ("Competitor"). For these purposes,
ownership of securities of 1% or less of any publicly held
class of securities of any Competitor will not be considered
to be competition with MasTec;
(b) Solicit, persuade or attempt to solicit or persuade any
existing customer or any client or potential customer or
client to which MasTec or any of its affiliates has made
presentation within 3 years prior to the Separation Date or
with which any of them has been having discussions, to cease
doing business with or decrease the amount of business done
with or not to hire MasTec or any of its affiliates or to
commence doing business with or increase the amount of
business done with or hire another person or entity;
(c) Solicit, persuade or attempt to solicit or persuade any
individual who is an employee of MasTec or any of its
affiliates other than Krysta Mihalik to leave their employ or
to become employed by any other person or entity.
10. It is the desire and intent of the parties to this Agreement that the
provisions of Sections 8 and 9 be enforced to the fullest extent
permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. If any particular
provisions or portion of Section 8 or 9 is adjudicated invalid or
unenforceable, such section will be deemed amended to delete any
provision or portion adjudicated to be invalid or unenforceable, the
amendment to apply only with respect to the operation of that section
in the particular jurisdiction in which the adjudication is made. The
parties recognize that the performance by Executive of his obligations
under Sections 8 and 9 are special, unique and extraordinary in
character, and that if Executive breaches or threatens to breach the
terms and conditions of this Agreement, the Company may suffer
irreparable injury for which no adequate remedy at law may exist.
Accordingly, in the event of such breach or threatened breach, the
Company will be entitled, if it so elects, without posting any bond or
other security, to institute and prosecute proceedings in any court of
competent jurisdiction, either in law or in equity, to obtain damages
for any breach of this Agreement, to enforce the specific performance
of this Agreement by Executive, and/or to enjoin Executive from
breaching or attempting to breach this Agreement.
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11. Executive and his heirs, representatives, executors, successors and
assigns (collectively, the "Executive Releasors"), acquit, release and
forever discharge MasTec and its agents, servants, officers, directors,
shareholders, employees, predecessors, subsidiaries, affiliates,
successors, assigns and other representatives (collectively, the
"MasTec Released Parties") from all claims, demands, debts, damages,
liabilities, obligations, actions or causes of action, whether known or
unknown, foreseen and unforeseen, fixed accrued or contingent,
liquidated or unliquidated, matured or unmatured, direct or derivative
or consequential, arising from contract, torf, statute, regulation or
otherwise (collectively, "Claims"), including, without limitation (a)
Claims for fraud, intentional misconduct, simple or gross negligence,
criminal conduct, slander or libel, (b) Claims in connection with
Executive's employment (including wrongful termination, breach of
express or implied contract, unpaid wages, unemployment compensation,
accrued vacation, holidays or sick days, Executive benefits, or under
any federal, state, or local employment laws, regulations, or executive
orders prohibiting discrimination of any kind, including discrimination
on the basis of age, race, sex, sexual preference, marital status,
national origin, religion, handicap, and disability discrimination or
retaliat on, such as the Age Discrimination in Employment Act, Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1866, the
Executive Retirement Income Security Act of 1974, the Americans with
Disabilities Act of 1990, the Family and Medical Leave Act, and
Florida's Civil Rights Act, and (c) all other Claims of any kind
whatsoever, arising out of, resulting from or in any way connected with
any act, omission, fact, event, occurrence, matter, agreement,
happening, representation, warranty, promise or transaction of any kind
that the Executive Releasors ever had or may now have against the
MasTec Released Parties, from the beginning of time to the date of this
Agreement, other than MasTec's obligations under this Agreement,
MasTec's obligations with respect to stock options held by Executive
under the Company's stock option plans and MasTec's obligations under
the deferred compensation life insurance program as provided herein.
12. MasTec and the MasTec Released Parties acquit, release and forever
discharge Executive and the Executive Releasors from all Claims of any
kind whatsoever, arising out of, resulting from or in any way connected
with any act, omission, fact, event, occurrence, matter, agreement,
happening, representation, warranty, promise or transaction of any kind
that MasTec or the MasTec Released Parties ever had or may now have
against Executive or the Executive Releasors, from the beginning of
time to the date of this Agreement, except for Claims arising from (a)
any criminal activity by Executive, (b) any fraud or breach of
fiduciary duty committed by Executive or (c) Executive's obligations
under this Agreement, the $750,000 Demand Note dated November 1, 2000
and the deferred compensation life insurance program.
13. MasTec agrees that it will (a) indemnify and hold Executive harmless
for any claims, demands, damages, liabilities, losses, costs and
expenses (including attorneys' and paralegal fees and court costs)
incurred or suffered by Executive in connection with Executive's
service as an executive officer of MasTec or its affiliates to the
fullest extent (including advancement of expenses) permitted by Florida
corporate law for the indemnification of officers and directors of a
Florida corporate and (b) will include Executive as a covered employee
under MasTec's directors' and officers' liability insurance policy and
employment practices liability insurance policy until the applicable
statues of limitations have expired.
14. Executive represents and warrants that no person other than he had or
has any interest in the matters referred to in this Agreement, that
Executive has sole right and exclusive authority to execute this
Agreement, and that Executive has not sold, assigned, transferred,
conveyed, or otherwise disposed of any claim or demand relating to any
matter covered by this Agreement.
15. Executive agrees that he will not make any statements about or relating
to MasTec or its affiliates, its officers, directors, shareholders,
agents or independent contractors which are disparaging, critical or
likely to cause embarrassment. MasTec shall not make any statements
about or relating to Executive that are disparaging, critical or likely
to cause embarrassment.
16. The Executive acknowledges that MasTec may be required to disclose the
terms of this Agreement and to issue a public statement regarding
Executive's resignation if in the opinion of counsel such disclosure is
required by law. MasTec agrees that it will provide Executive a
reasonable opportunity to provide comments on any written statements
regarding the termination of Executive's employment prior to its
issuance. Executive agrees that he will not issue any public statements
on Executive's termination of employment (including the circumstances
giving rise thereto) or the terms hereof, except with the prior written
consent of MasTec which shall not be unreasonably withheld. Subject to
paragraph 15, Executive shall be free to discuss his termination with
potential future employers.
17. With respect to the provisions of this Agreement other than Sections 8
and 9 (which are covered by Section 10), Executive acknowledges that
violation of the Agreement may give rise to irreparable injury to
MasTec,
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inadequately compensable in damages. Accordingly, MasTec may seek and
obtain injunctive relief against the breach or threatened breach of the
foregoing, in addition to any other legal remedies which may be
available and which legal remedies are not waived by MasTec's seeking
injunctive relief.
18. This Agreement will be governed by and construed and enforced in
accordance with the laws of the State of Florida, without regard to its
conflict of laws rules. Executive consents to the jurisdiction of any
state or federal court located within Miami-Dade County, State of
Florida, and consents that all service of process may be made by
registered or certified mail directed to Executive at the address of
Executive in the payroll records of MasTec. Executive waives any
objection which Executive may have based on lack of jurisdiction or
improper venue or FORUM NON CONVENIENS to any suit or proceeding
instituted by MasTec under this Agreement in any state or federal court
located within Miami-Dade County, Florida and consents to the granting
of such legal or equitable relief as is deemed appropriate by the
court. This provision is a material inducement for MasTec to enter into
this Agreement with Executive.
19. The waiver by MasTec in writing of any provision of this Agreement will
not be construed to be a waiver by MasTec or any succeeding breach of
such provision or a waiver of any breach of any other provision.
20. This Agreement represents the entire understanding and agreement
between the parties hereto with respect to the subject matter hereof
and supercedes and replaces all prior agreements between the parties.
There are no promises, agreements, conditions, undertakings,
warranties, or representations, whether written or oral, express or
implied, between the parties other than as set forth herein. This
Agreement cannot be amended, supplemented, or modified except by an
instrument in writing signed by the parties against whom enforcement of
such amendment, supplement or modification is sought. No party will
make any claim and each party waives any right such party may now have
or may hereafter have based upon any alleged oral alteration,
amendment, modification, or any other alleged change in this Agreement.
21. If any action or proceeding is brought in any court by any party to
enforce any provision of this Agreement, the prevailing party shall be
entitled to recover from the non-prevailing party all of its reasonable
costs and expenses incurred in connection with such action, including
reasonable attorneys' fees and disbursements through and including all
appeals.
22. This Agreement may be executed in counterparts, each of which will be
considered an original but which will constitute one and the same
agreement.
23. In the event that any provision or portion of this Agreement is
determined to be invalid or unenforceable for any reason, the remaining
provisions of this Agreement will be unaffected thereby and will remain
in full force and effect.
24. THE PARTIES KNOWINGLY, VOLUNTARILY, IRREVOCABLY, UNCONDITIONALLY AND
INTENTIALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY CLAIMS COVERED BY THIS AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF AN PERSON OR PARTY AND RELATED TO THIS AGREEMENT OR ANY
CLAIMS; THIS IRREVOCABLE WAIVER OF THE RIGHT TO A JURY TRIAL BEING A
MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first written above.
MASTEC, INC.
By: /s/ Jose Sariego
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Name: Jose Sariego
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Title: Senior VP
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EXECUTIVE:
/s/ Joel-Tomas Citron
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