Executive Deferred Income Plan - Novoste Corp.
NOVOSTE CORPORATION
EXECUTIVE DEFERRED INCOME PLAN
PLAN SUMMARY
As part of its Executive Deferred Income Plan ("EDI" Plan), Novoste
Corporation (the "Company") offers to assist you with the purchase and
maintenance of a variable life insurance policy (the "Policy") to provide
investment accumulation benefits and life insurance protection for you and your
family. This summary describes the basic terms of the EDI Plan, which are set
forth more fully in certain formal documents - namely, the Split-Dollar Life
Insurance Agreement, the Collateral Assignment and the Tax Adjustment Program.
Each of these and your variable universal life insurance policy, issued by The
Principal Life Insurance Company, appear as separate exhibits to this Summary.
This Summary, your policy and these documents, with their corresponding
schedules, comprise all of the documentation that governs your EDI Plan.
Although it is somewhat complex, the Company selected this plan format
to enhance your EDI Plan asset security and to provide favorable taxation of
your benefits. This summary is designed to help you cut through the complexity,
by providing a plain English explanation of the EDI Plan.
o Explanation of Plan Contributions
o You elect to defer a portion of your salary or bonus (your
"Pay-Reduction Contribution") on a monthly, quarterly or
annual basis up to the contribution limit specified for the
year on Schedule B of the Split-Dollar Life Insurance
Agreement. For 2001, this limit is 10% of your salary and
bonus paid during the year.
o The Company will add a matching contribution (the "Company
Match"), based on the percentage specified for the year on
Schedule B of the Split Dollar Life Insurance Agreement. For
2001, the Company Match percentage is 100% of your
Pay-Reduction Contribution.
o Your Pay-Reduction Contribution and the Company Match are
treated as W-2 taxable compensation to you and income taxes
are withheld.
o Instead of waiting for salary and bonus deferrals to occur,
you may make a payment into the EDI Plan from your personal
funds (a "Personal Funds Contribution"). Because you have
already paid taxes on dollars that you pay into the Plan as a
Personal Funds Contribution, special rules apply in
calculating the contribution limit and Company Match on your
Personal Funds Contribution. These are designed to equalize
the treatment of Pay-Reduction Contributions and Personal
Funds Contributions after taking taxes into account. As a
result, for 2001, there is a 6% contribution limit and a
166-2/3% match for a Personal Funds Contribution.
1
<PAGE>
o Taken together, these Plan contributions produce what is called the
"Employee Premium" to the Policy, which can be expressed as a formula
as follows:
((Pay-Reduction Contribution + Company Match) - 40%
taxes) + (Personal Funds Contribution + (Company
Match - 40% taxes)) = the "Employee Premium."
The Employee Premium represents your total dollars paid into the life
insurance policy. We refer to them as "your dollars" because they
become your investment in the life insurance policy, even though they
are partly financed by the Company Match. (Note: Changes in tax rates
may change the tax percentage in the formula.)
o The Company then pays an additional amount into the life insurance
policy (the "Company Premium"), to replace the estimated amount of
taxes withheld on your Pay-Reduction Contribution and the Company
Match. For 2001, the Company Premium is set at two-thirds of your
Pay-Reduction Contribution and the Company Match combined, after both
are reduced for estimated taxes. (A comparable result occurs if you
make a Personal Funds Contribution, but here the Plan takes into
account that you previously paid taxes on dollars used for a Personal
Funds Contribution.) The formula for the Company Premium currently
produces a 60%/40% split of Employee Premiums to Company Premiums,
which is expected to continue.
o The end result is that a premium approximately equal to your pre-tax
Pay-Reduction Contribution plus the pre-tax Company Match is
contributed to the life insurance policy. (Once again, there is a
comparable result, adjusted for estimated taxes, if you make a Personal
Funds Contribution.)
o To summarize, the total premiums paid to the policy will consist of
your Employee Premiums (60% of the total) and the Company Premiums (40%
of the total). Your Employee Premiums are the sum of your Pay-Reduction
Contributions and the Company Match, less estimated income tax
withholding of 40%, plus any amounts you contribute from personal funds
and their corresponding Company Match. The Company Premiums replace the
taxes withheld on your deferral and Company Match. For example:
Pay-Reduction Contribution $10,000
+ Company Match $10,000
- Taxes Withheld $ 8,000
+ Personal Funds Contribution $ 0
-------
= Employee Premium $12,000
+ Company Premium $ 8,000
-------
= Total Premium $20,000
2
<PAGE>
o Investment of Premiums
o Your total premium is paid to the insurance company, and invested in
your life insurance policy. Certain deductions are made by the
insurance company, after which the remainder is invested in "separate
accounts" under the Policy. An illustration detailing these amounts is
attached as Schedule C to the Split-Dollar Life Insurance Agreement.
o The separate accounts represent the specific investment alternatives
offered by the insurance company. You direct the investment of values
under the Policy among the separate accounts. This lets you make
initial investments and investment changes that you decide will attain
your investment goals. Current information regarding your investment
choices and the procedures for directing these investments are attached
as an Exhibit to this Summary. Your investment direction privilege
continues for as long as the Policy remains in force.
o Ownership of the Policy
o You are the owner of the Policy. You may transfer your ownership rights
in the Policy to a transferee (such as a life insurance trust, that you
establish for estate planning purposes). If such a transfer occurs, the
"Transferee" would control all ownership rights and would be subject to
the Collateral Assignment obligation described below.
o Although the life insurance component of the Policy is minimized to
drive higher investment accumulation benefits in the EDI Plan, the life
insurance benefit provides significant economic protection to your
beneficiary during service with the Company. You may designate and
change the beneficiary or beneficiaries of the Policy, and select
optional methods of settlement with respect to the death benefit
provided for by the Policy.
o Neither you nor the Company may borrow any part of the Policy's loan
value or cash surrender value during the term of the Split-Dollar Life
Insurance Agreement.
o By executing the Collateral Assignment, you assign to the Company a
security interest in the Policy, limited to the sum of Company
Premiums. This security interest will be repaid out of Policy insurance
proceeds, if your death occurs. If a "Specified Termination Event"
(defined below) occurs, either the Company will withdraw its security
interest from the Policy cash value or you may elect to repay the
Company in cash.
3
<PAGE>
o Definitions of Specified Termination Events
o Normal Retirement - The later of age 65, or 15 years from the
effective date of the Split-Dollar Life Insurance Agreement,
assuming continued service with the Company until age 65.
o Pre-Retirement Termination - If your employment with the
Company terminates prior to Normal Retirement, whether
voluntarily or involuntarily.
o Company Termination of Plan - The Company may, upon 30 days' written
notice, terminate the entire EDI Plan.
o Default - Your defaulting under the terms of Collateral
Assignment, e.g., an unsuccessful contest of the Company's
rights under the Collateral Assignment.
o After a Specified Termination Event
o Both you and the Company stop making contributions to the EDI
Plan, and the Split-Dollar Life Insurance Agreement will
terminate. At this point, you may make Policy premium payments
directly to the insurance company, as you see fit.
o The Company will recover the Company Premiums it has paid. The
Company will recover its premiums from the cash value of the
Policy, unless you elect to pay the Company from other funds
under your control. Once the Company is paid back, the
Collateral Assignment will terminate.
o The Policy, its remaining cash value and insurance benefit,
are your sole property. You decide how long to keep the Policy
in force.
o You may then choose among the following:
o Taking cash distributions using cash value withdrawals or
Policy loans. Cash value withdrawals will be nontaxable to the
extent of your aggregate Employee Premiums. Amounts received
as policy loans will be nontaxable.
o Leaving the cash value to further accumulate.
o Surrendering the Policy. A surrender of the Policy would cause
taxation of all investment gains in the Policy.
4
<PAGE>
o The IRS is currently considering a position that would make the
investment gains on Company Premiums automatically taxable to you
once the Collateral Assignment ends. If this position is applied and
taxes result, you could pay them with amounts borrowed or withdrawn
from the Policy or from your other sources of funds. Keep in mind
that most of the investment gains will be on Employee Premiums and
will not be affected by this IRS position.
o Role of Tax Adjustment Program
o The Split-Dollar Life Insurance Agreement allows the build-up
on the Company Premiums to accrue to your benefit without
taxation as the build-up occurs, but the Internal Revenue
Service is considering new tax rules which might tax the
build-up each year.
o In the event of such adverse tax rules, to avoid current
taxation of the build-up each year, the accrued build-up
related to Company Premiums will become the property of the
Company, and will be replaced by an equal and offsetting
benefit to you under the Tax Adjustment Program. This
replacement benefit from the Tax Adjustment Program is a
traditional nonqualified benefit, i.e., it represents an
unfunded promise by the Company to pay a future cash benefit.
Subject to satisfactory completion of the application and underwriting, The
Principal Life Insurance Company will issue your Policy in the next several
weeks. Once it is issued, a copy will be provided to you, and you should retain
it as a part of your document package. For now, we have attached as an exhibit a
specimen of the Policy that will be issued to you. Once the actual Policy is
issued, it will automatically become a legal component of the documents
governing your Deferred Income Plan.
5
<PAGE>
EXHIBITS
For your convenience, and to provide you with a complete set of documents for
the EDI Plan, the following Exhibits are attached to this Summary:
o Exhibit 1: Split-Dollar Life Insurance Agreement
o Exhibit 2: Collateral Assignment
o Exhibit 3: Tax Adjustment Program
o Exhibit 4: Description of the Policy's investment alternatives and
current procedures
These are subject to change from time to time, in accordance
with the terms of the Policy.
o Exhibit 5: Life Insurance Policy
As noted, a specimen Policy is attached for now. Once an
actual Policy is issued to you, it will automatically be
deemed to be incorporated as Exhibit 5 (replacing the specimen
Policy).
6
<PAGE>
EXHIBIT 1
NOVOSTE CORPORATION
EXECUTIVE DEFERRED INCOME PLAN
SPLIT-DOLLAR LIFE INSURANCE AGREEMENT
THIS SPLIT-DOLLAR LIFE INSURANCE AGREEMENT (this "Agreement"),
made and entered into the ______ day of ________________, 2001, by and between
______________________________________________ (the "Employee" or "Insured") and
Novoste Corporation, a Florida corporation (the "Company").
RECITALS:
---------
The Employee is a valued employee of the Company. In order to
provide an incentive to the Employee to continue in the employment of the
Company, and to provide greater financial security for the Employee's family,
the Company desires to assist the Employee in providing life insurance for the
benefit and protection of the Employee's family, in accordance with the terms
and conditions of this Agreement.
This life insurance will be provided under the Policy (as
defined in Section 1 below). A copy of the Policy will be delivered to the
Employee, subject to its issuance by the Insurance Company.
Certain documents are incorporated as part of this Agreement
(i) the Policy, (ii) the Plan Summary of the Novoste Executive Deferred Income
Plan, and (iii) the Tax Adjustment Program. In addition, by also signing the
Collateral Assignment, the Employee agrees to collaterally assign the Policy and
the Policy Proceeds to the Company for the sole purpose of providing security
for repayment of the Company Interest. The parties desire to define and limit
the extent of the Company's security interest in the Policy and the Policy
Proceeds to the Secured Amount. The Policy shall be owned by and legal title
shall be held by the Policy Owner. The interest of the Company in the Policy and
the Policy Proceeds arising pursuant to the Collateral Assignment shall be
limited to that of lienholder and holder of a security interest. In no event may
the Company borrow any part of the Policy's loan value or cash surrender value.
NOW, THEREFORE, in consideration of the premises and the
promises contained herein, and each intending to be legally bound hereby, the
parties agree as follows:
1. Definitions. For all purposes of this Agreement, including
-----------
the Recitals, and any amendment hereto (except as otherwise expressly provided
herein or by amendment or unless the context otherwise requires), the terms
defined in this Section 1 shall have the meanings set forth herein (terms
defined in the singular shall have the same meanings when used in the plural,
and vice versa, and references to one gender shall include the other):
"Affiliate" of any Person means (i) any other Person which
directly, or indirectly through one or more intermediaries, controls
such Person, (ii) any other Person which directly, or indirectly
through one or more intermediaries, is controlled by or is under common
control with such Person, or (iii) any other Person of which such
Person owns, directly or indirectly, 10% or more of the common stock or
1
<PAGE>
equivalent equity interests. As used in this Agreement, the term "control" means
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Assignee" has the meaning assigned to such term in Section
5(b) of this Agreement.
"Cash Compensation" means the Employee's salary and bonus that
are paid in cash during the calendar year by the Company.
"Claimant" has the meaning assigned to such term in Section
9(c) of this Agreement.
"Collateral Assignment" means the assignment by and from the
Policy Owner to the Company for Collateral Security, executed in
connection with this Agreement, as the same may be modified, amended,
supplemented, restated or extended from time to time, pursuant to which
the Policy Owner assigns the Policy and the Policy Proceeds to the
Company to secure the Insured's obligation to repay the Secured Amount
to the Company.
"Company Interest" means, subject to the next sentence, the
aggregate sum of all Company Premium payments then or theretofore
actually paid by the Company to the Insurance Company and credited to
the Policy. In the event that the Internal Revenue Service issues
guidance that requires federal income taxation to the Employee of the
Policy earnings relating to the Company Premiums prior to the
extinguishment of the Secured Amount, then immediately prior to when a
modification in this Agreement to avoid such taxation may last be made
under the terms of the applicable guidance or as otherwise provided by
the Internal Revenue Service, the Company Interest shall from that
point forward include the total amount of the Policy earnings relating
to the Company Premium, as determined under Section 4(d).
"Company Match" means the match provided by the Company that
is considered part of the Employee Premium, and that is calculated:
(a) In the case of the Company Match related to
the Pay-Reduction Contribution, as the applicable
percentage (as listed in Schedule B) of the Employee's
Pay-Reduction Contribution; and
(b) In the case of the Company Match related to the
Personal Funds Contribution, the applicable percentage (as
listed in Schedule B) of the Employee's Personal Funds
Contribution.
"Company Premium" means any premium payment made by the
Company under the terms of the Policy or called for and due under this
Agreement. Each Company Premium shall be equal to sixty-six and
two-thirds percent (66-2/3%) of each Employee Premium (except for any
period for which a different percentage is specified for this purpose
on Schedule B).
"Employee" means the individual named as the Employee in the
first paragraph of this Agreement.
"Employee Premium" means for any Employee the sum of (a), (b),
(c) and (d) below:
(a) The Employee's Pay-Reduction Contribution
multiplied by the Specified Factor ;
-------------
2
<PAGE>
(b) The Matching Contribution (which is
related to the Employee's Pay-Reduction Contribution)
multiplied by the Specified Factor;
-------------
(c) The Employee's Personal Funds Contribution; and
(d) The Matching Contribution (which is related to
the Employee's Personal Funds Contribution)
multiplied by the Specified Factor.
-------------
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, 29 U.S.C.ss.1001, et seq., and the rules and
regulations issued thereunder.
"Insurance Company" means Principal Life Insurance Company, an
Iowa corporation, and its successors and assigns.
"Insured" means the Employee, on whose life the Policy is
insured. In the event the Policy insures the lives of the Employee and
spouse, "Insured" means the Employee and spouse.
"Maximum Amount" means for any one calendar year the
Employee's Cash Compensation multiplied by the Maximum Deferral
Percentage for such calendar year (as listed in Schedule B). Solely for
purposes of calculating the Maximum Amount when the Employee has
elected to make a a Personal Funds Contribution, the Plan Administrator
shall convert the Personal Funds Contribution into an equivalent
Pay-Reduction Contribution by dividing the Employee's Personal Funds
Contribution by the Specified Factor.
"Minimum Amount" has the meaning assigned to such term in
Schedule B.
"Named Fiduciary" means the Company.
"Pay-Reduction Contribution" means the annual dollar amount
that the Employee has elected to contribute by payroll deduction from
his or her Cash Compensation to the payment of Policy premiums. These
contributions from an Employee's Cash Compensation become subject to
tax at the time they are applied to the payment of Policy premiums, as
determined by the Plan Administrator.
"Permitted Assignee" has the meaning assigned to such term in
Section 5(b) of this Agreement.
"Person" means any individual, joint venture, corporation,
company, limited liability company, voluntary association, partnership,
trust, joint stock company, unincorporated organization, association,
government, or any agency, instrumentality, or political subdivision
thereof, or any other form of entity or organization.
"Personal Funds Contribution" means the annual dollar amount
that the Employee has elected to contribute to the payment of Policy
premiums from sources other than salary or bonus reduction. In contrast
to the Pay- Reduction Contribution, these contributions from an
Employee's personal funds have been subject to tax at a time before
they are applied to the payment of Policy premiums.
"Plan" has the meaning assigned to such term in Section 9(a)
of this Agreement.
3
<PAGE>
"Plan Administrator" means the Chief Financial Officer of the
Company, or his or her delegate or delegates.
"Policy" means the policy of life insurance (as described on
Schedule A attached hereto) issued by the Insurance Company on the life
of the Insured and legally owned by the Policy Owner, as hereinafter
defined, together with any and all supplements, endorsements and
amendments thereto.
"Policy Anniversary" means any anniversary of the Policy
Effective Date.
"Policy Effective Date" means the effective date of the Policy
as set forth on Schedule A attached hereto.
"Policy Owner" means the Employee, or such other Person to
whom the Employee has transferred his or her ownership rights in the
Policy, subject to Section 6(d).
"Policy Proceeds" means any and all proceeds of any type of,
from or under the Policy, including, without limitation, (i) the cash
surrender value of the Policy, (ii) any and all proceeds of the Policy
payable when it becomes a claim at death, maturity or otherwise, and
(iii) distributions or shares of surplus, dividends, deposits or
additions to the Policy, now or hereafter made thereunder or
apportioned thereto.
"Required Payment" means an amount equal to the lesser of the
Secured Amount or the cash surrender value of the Policy.
"Secured Amount" at any time means the difference of (A) minus
(B) where: (A) is the amount of the Company Interest; and (B) is the
aggregate of all amounts, if any, previously paid to the Company (or
its Permitted Assignee) by the Policy Owner as a repayment of all or
any portion of the amounts included in (A).
"Specified Factor" means, for any period of time, a decimal
equal to one minus the Assumed Tax Rate (as such is listed in Schedule
B for the period of time in question, except that the Assumed Tax Rate
set forth there shall be converted from a percentage to an equivalent
decimal for purposes of this calculation). For example, at any time the
Assumed Tax Rate is 40%, the Specified Factor shall be .60 exactly.
"Specified Termination Event" means an event that results in
the termination of this Agreement pursuant to Sections 10(a)(2),
10(a)(3), 10(a)(4) or 10(a)(5).
2. Application for Policy. The Policy Owner has applied to the
----------------------
Insurance Company for the Policy. The Insured, with the assistance of the
Company will take all reasonable steps to cause the Policy to be issued. The
application number and application date are recorded on Schedule A attached
hereto. When the Policy is issued, the policy number, effective date, face
amount and plan of insurance shall be recorded on Schedule A attached hereto.
While the Agreement continues in effect, the Policy shall at all times be
subject to the terms of this Agreement.
3. Ownership of Policy. The Policy shall be owned by and legal
-------------------
title shall be held by the Policy Owner. The Company shall have no legal,
equitable or beneficial right, title, or interest in the Policy, except to the
extent of the lien on and security interest in the Policy and the Policy
Proceeds created under the
4
<PAGE>
Collateral Assignment. The interest of the Company in the Policy and the Policy
Proceeds shall be limited to that of lienholder and holder of a security
interest. In no event may the Company borrow any part of the Policy's loan value
or cash surrender value.
4. Payment of Premiums; Assignments; Borrowings.
--------------------------------------------
(a) Payment of Premiums. At the beginning of each
-------------------
calendar year (or at such other time or times during
the year as the Employee and the Company shall
agree), the Employee shall designate his or her
Pay-Reduction Contribution and Personal Funds
Contribution for the year on forms supplied by the
Plan Administrator for such purpose. The total of the
Pay-Reduction Contribution and the Personal Funds
Contribution shall not be less than the Minimum
Amount nor greater than the Maximum Amount applicable
for the year. The Pay-Reduction Contribution and the
Company Match shall be treated as taxable
compensation of the Employee and subjected to
applicable withholding for income and employment
taxes, as determined by the Plan Administrator. The
Company shall withhold the Pay-Reduction Contribution
from the Employee's Cash Compensation in one or more
installments during the calendar year as elected by
the Employee. After combining the Employee's
Pay-Reduction Contribution with any Personal Funds
Contribution and the related Company Matches, the
Company shall thereafter remit the Employee Premium
together with the Company Premium to the Insurance
Company at one or more times during the calendar year
pursuant to the requirements of the Policy.
(b) Collateral Assignment. The Policy Owner and the
---------------------
Company shall execute the Collateral Assignment
pursuant to which the Policy Owner assigns the Policy
and the Policy Proceeds to the Company to the extent
of securing the Policy Owner's obligation under
Section 9 of this Agreement to repay the Secured
Amount to the Company.
(c) Restrictions on Borrowings. Notwithstanding any other
--------------------------
provision of this Agreement or the Policy, neither
the Employee nor the Company may at any time borrow
from the Policy.
(d) Separate Tracking of Earnings. At all times during
-----------------------------
the term of this Agreement, the Company shall track
and separately account for the earnings of the Policy
relating to the Company Premium and the earnings of
the Policy relating to the Employee Premium. To the
extent that each payment of the Employee Premium and
the Company Premium are paid into the Policy at
substantially the same time, it is intended that the
earnings of the Policy may be allocated in proportion
to the amounts of the respective Employee Premiums
and Company Premiums.
5. Company Rights and Restrictions.
-------------------------------
(a) Rights as Lienholder. The rights of the Company as
--------------------
collateral assignee shall be that of a holder of a
lien on and security interest in the Policy and
Policy
5
<PAGE>
Proceeds, securing the Policy Owner's obligations to
the Company under this Agreement.
(b) Right to Assign. The Company shall have the right,
---------------
without the Policy Owner's consent, to assign or
otherwise transfer any or all of its right, title and
interest in, to and under this Agreement, the
Collateral Assignment, the Policy and the Policy
Proceeds, absolutely or (subject to Section 4 of the
Collateral Assignment) as collateral security only,
to an Affiliate of the Company, to the Insurance
Company or to an Affiliate of the Insurance Company
(any such Person is referred to herein as a
"Permitted Assignee" and any such Person to whom such
an assignment or transfer shall have been so made is
referred to herein as an "Assignee"). Any Permitted
Assignee shall also have the right to assign as set
forth under this Section 5(b). Any assignment under
this Section 5(b) shall place the Permitted Assignee
in the same position as its predecessor, except to
the extent the assignment provides otherwise. Within
ten (10) days of making such an assignment, the
assigning party shall give notice of such assignment
to the Policy Owner and, if the Insurance Company is
not the Assignee, to the Insurance Company, provided
that the failure to do so shall not limit or impair
the rights or remedies of the Company or any
Permitted Assignee under this Agreement or the
Collateral Assignment or the rights or remedies of
any Permitted Assignee under any such assignment. The
Insured agrees to treat any Permitted Assignee the
same as if this Agreement and the Collateral
Assignment were made between the Insured and Policy
Owner and such Permitted Assignee. No subsequent
assignment shall be binding upon the Insurance
Company until the notice of the assignment is given
to the Insurance Company. Neither the Company nor any
Assignee shall have the right to borrow against the
Policy.
(c) Right to Repayment. Subject to the limitations of
------------------
Section 10(b) and the provisions of Section 8, upon
the occurrence of a Specified Termination Event the
Company shall have the right to repayment of the
amount of the Required Payment plus all amounts
required to be repaid pursuant to Section 5 of the
Collateral Assignment.
(d) Restrictions on Actions Taken. The Company shall not
-----------------------------
take any action that might endanger the interests and
rights of the Policy Owner in the Policy, subject,
however, to the Company's right to exercise any
right, power or remedy available to it hereunder or
under the Collateral Assignment for the enforcement
of the Policy Owner's obligations hereunder and
thereunder.
(e) Right to Terminate. The Company shall have the right
------------------
to terminate this Agreement at any time upon thirty
(30) days prior written notice to the Policy Owner
and as specified in Section 10 of this Agreement.
6. Rights of Policy Owner. Subject to the provisions of this
Agreement and the Collateral Assignment, the Policy Owner shall possess all
rights in the Policy, including, but not limited to, the following:
6
<PAGE>
(a) the right to transfer the values under the Policy
between available investment funds, subject to the
terms and conditions of the Policy;
(b) the right to designate and change the beneficiary (or
beneficiaries) of the Policy;
(c) the right to select optional methods of settlement
with regard to the death benefit provided for in the
Policy, subject to the provisions of Section 8 of
this Agreement;
(d) the right to transfer to another Person all or a
portion of the Policy Owner's right, title and
interest in and to the Policy, subject in all cases
to the Collateral Assignment and prior written notice
to the Company; and
(e) all other rights contained in the Policy, excluding
the right to borrow against the Policy.
7. Surrender of Policy. The Policy Owner may not surrender
-------------------
the Policy prior to the occurrence of a termination as enumerated in
Section 10(a).
8. Death Claims Under the Policy. Provided that the Policy
-----------------------------
Owner shall not have theretofore satisfied the obligations of the Policy Owner
under Section 10(b) of this Agreement to repay the Secured Amount, the Policy
Owner hereby directs the Insurance Company, upon written demand by the Company
(or its Permitted Assignee) following the death of the Insured (which demand
shall constitute the Company's certification, on which the Insurance Company may
conclusively rely, that such obligations have not been satisfied), to pay to the
Company (or its Permitted Assignee) from the Policy Proceeds an amount equal to
the Secured Amount, notwithstanding the settlement option selected by the Policy
Owner under the Policy. Nothing in this Section 8 shall give the Company any
interest in any of the assets of the Policy Owner or the Insured including, but
not limited to, the Policy itself, other than as a holder of a lien on and
security interest in the Policy and the Policy Proceeds. The balance of the
Policy Proceeds shall be paid to the beneficiary or beneficiaries designated to
receive such balance in accordance with the terms of the Policy.
9. ERISA Requirements.
------------------
(a) Named Fiduciaries. For purposes of ERISA, the Company
-----------------
will be the Named Fiduciary and Plan Administrator
with respect to the plan of split-dollar life
insurance provided for under this Agreement and the
overall Novoste Corporation Executive Deferred Income
Plan of which it is part. Together they may be
referred to as the "Plan," which is intended to
qualify as a life insurance employee benefit plan.
This Agreement, together with the documents
incorporated herein, shall constitute the written
plan instrument required by ERISA. The Company shall
be responsible for the general administration,
operation and interpretation of the Plan and for
carrying out its provisions, except to the extent all
or any such obligations specifically are imposed on
another person or persons or entity. The Company may
engage an actuary, attorney, accountant, insurance
company or similar entity, consultant or any other
technical advisor on matters regarding the operation
of the Plan and to assist in the administration of
the Plan, and to perform such other duties as are
required in connection therewith. The Company may
allocate its responsibilities for the operation and
administration of the Plan,
7
<PAGE>
including the designation of persons who are not
named fiduciaries to carry out fiduciary
responsibilities under the Plan. The Company shall
effect such allocation of its responsibilities by
adopting resolutions specifying the nature and extent
of the responsibilities allocated; including, if
appropriate, the persons who are not named
fiduciaries, but who are designated to carry out
fiduciary responsibilities under the Plan. For these
purposes and for purposes of the claims procedures
set forth in Section 9(c) hereof, the Company shall
have the duty and discretionary authority to
interpret and construe the provisions of the Plan and
decide any dispute which may arise regarding the
rights of the Insured. The discretion of the Company
in this regard is intended to be absolute and,
therefore, an Employee or Beneficiary shall be
entitled to a benefit from the Plan only to the
extent that the Company determines that he or she is.
Determinations by the Company shall be binding and
conclusive upon all interested persons, and such
determinations shall be upheld upon review unless
they constitute an abuse of discretion. The Plan
shall be administered and the records of the Plan
shall be maintained on the basis of the plan year.
The plan year shall be the twelve month period ending
on December 31 of each year.
(b) Funding Policy. All premiums due on the Policy shall
--------------
be remitted to the Insurance Company when due. The
benefits provided by the Policy shall be paid by the
Insurance Company in accordance with the terms of the
Policy. The payment of such benefits is predicated on
the payment of the required premiums.
(c) Claims and Review Procedures. The following claims
----------------------------
procedure shall apply for purposes of this Agreement.
The claims procedure in subparagraph (c)(1) below
shall be followed with respect to benefits provided
by the Insurance Company under the terms of the
Policy. The claims procedure in subparagraph (c)(2)
below shall be followed with respect to benefits, if
any, provided directly by the Company. The Policy
Owner, the Insured, the Insured's heirs, successors,
beneficiaries or personal representatives
(individually or collectively, "Claimant") must
follow both procedures, if necessary.
(1) Filing a Claim for Insurance Benefits. A
-------------------------------------
Claimant shall make a claim for benefits
provided by the Insurance Company by submitting
a written claim and proof of claim to the
Insurance Company in accordance with procedures
and guidelines established from time to time by
the Insurance Company. On written request, the
Plan Administrator shall provide copies of any
claim forms or instructions, or advise the
Claimant how to obtain such forms or
instructions. The Insurance Company shall decide
whether the claim shall be allowed. If a claim
is denied in whole or in part, the Insurance
Company shall notify the Claimant and explain
the procedure for reviewing a denied claim.
(2) Filing a Claim for Any Other Benefit. The
------------------------------------
following claims procedure shall apply with
respect to all benefits other than those
provided by the Insurance Company:
8
<PAGE>
(A) Filing a Claim; Notification to Claimant of
-------------------------------------------
Decision: The Claimant shall make a claim
--------
in writing in accordance with procedures
and guidelines established from time to
time by the Plan Administrator, which claim
shall be delivered to the Plan
Administrator. The Plan Administrator shall
review and make the decision with respect
to any claim. If a claim is denied in whole
or in part, written notice thereof shall be
furnished to the Claimant within thirty
(30) days after the claim has been filed.
Such notice shall set forth:
(i) the specific reason or reasons for
the denial;
(ii) specific reference to the provisions
of this Agreement, the Collateral
Assignment and/or the Policy on
which denial is based;
(iii) a description of any additional
material or information necessary
for the Claimant to perfect a claim
and an explanation of why such
material or information is
necessary;
(iv) appropriate information as to the
steps to be taken if Claimant wishes
to submit his or her claim for
review; and
(v) the right of Claimant to review
pertinent documents.
(B) Procedure for Review: Any Claimant whose
--------------------
claim has been denied in full or in part
may individually, or through the Claimant's
duly authorized representative, request a
review of the claim denial by delivering a
written application for review to the Plan
Administrator at any time within sixty (60)
days after receipt by the Claimant of
written notice of the denial of the claim.
Such request shall set forth in reasonable
detail:
(i) the grounds upon which the request
for review is based and any facts in
support thereof; and
(ii) any issues or comments which the
Claimant considers pertinent to the
claim.
Following such request for review, the Plan
Administrator shall review fully and fairly
the decision denying the claim. Prior to
the decision of the Plan Administrator,
the Claimant shall be given an opportunity
to review pertinent documents.
(C) Decision on Review: A decision on the
------------------
review of a claim denied in whole or in
part shall be made in the following manner:
9
<PAGE>
(i) The decision on review shall be made
by the Plan Administrator, which
shall consider the application and
any written materials submitted by
the Claimant in connection
therewith. The Plan Administrator,
in its sole discretion, may require
the Claimant to submit such
additional documents or evidence as
the Plan Administrator may deem
necessary or advisable in making
such review.
(ii) The Plan Administrator will render a
decision upon a review of a denied
claim within sixty (60) days after
receipt of a request for review. If
special circumstances (such as the
need to hold a hearing on any matter
pertaining to the denied claim)
warrant additional time, the
decision will be rendered as soon as
possible, but not later than one
hundred twenty (120) days after
receipt of a request for review.
Written notice of any such extension
will be furnished to the Claimant
prior to the commencement of the
extension.
(iii) The decision on review shall be in
writing and shall include specific
reasons for the decision, written in
a manner calculated to be understood
by the Claimant, and the specific
references to the provisions of this
Agreement, the Collateral Assignment
or the Policy on which the decision
is based. The decision of the Plan
Administrator on review shall be
final and conclusive upon all
persons. If the decision on review
is not furnished to the Claimant
within the time limits prescribed in
subparagraph (ii) above, the claim
will be deemed denied on review. In
no event may a Claimant commence
legal action for benefits the
Claimant believes are due until the
Claimant has exhausted all of the
remedies and procedures afforded the
Claimant by this Section.
(D) Satisfaction of Claim: Any payment made to
---------------------
a Claimant may be made pursuant to a
requirement that the Claimant execute a
receipt and release therefor in such form
as shall be determined by the Plan
Administrator or the Company, and any
payment or other distribution to a Claimant
may be delayed until the Plan Administrator
or the Company receives a properly executed
receipt and release.
10. Termination and Repayment.
-------------------------
(a) Termination. This Agreement shall terminate upon
-----------
the occurrence of any one of the following events:
(1) the death of the Insured;
10
<PAGE>
(2) upon thirty (30) days prior written notice of
termination by the Company to the Policy Owner
pursuant to Section 5(e), such notice to be
given in accordance with the provisions of
Section 19 of this Agreement;
(3) the occurrence of a "Default" as defined and
specified in Section 10 of the Collateral
Assignment; or
(4) the later of the employee's age 65 or 15 years
from the effective date of this agreement,
assuming continued service by the employee with
the Company until age 65; or
(5) the termination of the Insured's employment with
the Company and all of its Affiliates, whether
voluntary or involuntary, prior to fulfillment
of the service requirement set forth in
10(a)(4).
(b) Repayment. Upon the termination of this Agreement
---------
pursuant to Section 10(a)(1) (i.e., the death of the
Insured), the Secured Amount shall be repaid to the
Company pursuant to the provisions of Section 8,
plus all amounts required to be repaid pursuant to
Section 5 of the Collateral Assignment. Upon
termination of this Agreement as a result of a
Specified Termination Event, the Policy Owner shall
and hereby agrees to repay to the Company the
Required Payment as follows:
(1) by directing the Insurance Company to pay, upon
written demand and without the necessity of any
further direction, the Required Payment to the
Company or its Assignee from the Policy Proceeds
(including the cash surrender value of the
Policy); or
(2) in the Policy Owner's discretion, by
transferring ownership of the Policy to the
Company or its Assignee, or by transferring cash
to the Company in an amount equal to the
Required Payment, provided that if the Policy
Owner fails to transfer ownership of the Policy
or to transfer such cash within five (5)
business days following such termination, then
the right of the Policy Owner to satisfy such
repayment obligation by effecting such a
transfer shall expire and terminate and the
Company may make demand on the Insurance Company
for the Required Payment as provided in
subparagraph (b)(1).
In the case of an occurrence of a Specified
Termination Event, if the cash surrender value of the
Policy (or, if the same shall have been paid by the
Insurance Company in accordance with the foregoing
provisions, the amount of the Required Payment) at
the time of termination shall be less than the
Secured Amount, then, notwithstanding anything herein
to the contrary, neither the Insured nor the Policy
Owner shall be liable to the Company or its Assignee
for the payment of the remaining balance of the
Secured Amount or any other amount hereunder.
Notwithstanding anything to the contrary, if this
Agreement and the Collateral Assignment shall have
been pledged, assigned or become subject to a
11
<PAGE>
lien or security interest, and provided the
Policy Owner has been given notice thereof as
required by Section 5(b) of this Agreement, the
payments or transfer to be made in satisfaction
of the Policy Owner's repayment obligations
hereunder shall be distributed or made in
accordance with the instruments evidencing or
governing the terms of such pledge, assignment,
lien or security interest for application to the
obligations and indebtedness secured thereby in
order of priority established by such
instruments.
11. Actions of Insurance Company. The Insurance Company shall
----------------------------
not be deemed to be a party to this Agreement for any purpose nor in any way be
responsible for its validity. Any payments made or action taken by the Insurance
Company in accordance with the provisions of the Policy, this Agreement or the
Collateral Assignment shall fully discharge the Insurance Company from all
claims, suits and demands of all persons whatsoever, and the Insured and Policy
Owner hereby agree to indemnify the Insurance Company from and against any loss,
damage, cost, expense (including, without limitation, reasonable attorneys'
fees) or liability resulting from any such payment or action.
12. Binding Effect. This Agreement and the rights and
--------------
obligations herein shall inure to the benefit of and bind the heirs, legal
representatives, successors and assigns of the parties hereto, including
successors of the Company resulting from a merger, acquisition, affiliation or
other corporate restructuring.
13. Recitals. The Recitals to this Agreement are incorporated
--------
herein and shall constitute an integral part of this Agreement.
14. Amendment of Agreement. None of the terms or provisions of
----------------------
this Agreement or of the Collateral Assignment may be waived, limited or amended
except by written agreement, signed by both the Employee and the Company.
15. Governing Law. This Agreement shall be subject to and
-------------
governed by the laws of the state of Georgia, without regard to choice of law or
conflict of law principles, except to the extent such laws shall be superseded
by the provisions of ERISA or other applicable federal laws.
16. Company Not Liable. Although the Company, by this
------------------
Agreement, is assisting the Policy Owner in obtaining certain life insurance
coverage on the life of the Insured, the Company is not responsible for paying
any life insurance benefits which are not paid by the Insurance Company, whether
such nonpayment is caused by refusal of the Insurance Company to pay by virtue
of a legal reason for nonpayment (including, but not limited to, suicide or
fraud in the inducement), inability of the Insurance Company to pay, or any
other reason.
17. Rights of Successor Assignee. If the Company shall assign
----------------------------
its rights under this Agreement and the Collateral Assignment and a dispute
shall exist or arise between the Company and the Insured or Policy Owner which
is not directly related to this Agreement or the Collateral Assignment, then the
Permitted Assignee's rights in the Policy, the Policy Proceeds, this Agreement
and the Collateral Assignment shall be held by it free and clear of any defenses
or rights of offset which exist or which are alleged by the Policy Owner or
Insured against the Company arising out of such dispute.
18. Counterparts. This Agreement may be executed
------------
simultaneously in one or more counterparts, each of which shall be deemed an
original but all of which together shall constitute one and the same instrument.
12
<PAGE>
19. Notices. All notices, requests and other communications to
-------
any party under this Agreement shall be in writing (including telefacsimile
transmission or similar writing) and shall be given to such party at its address
or telefacsimile number set forth below or such other address or telefacsimile
number as such party may hereafter specify. A copy of any such notice, request
or communication shall be sent to the Insurance Company at its address or
telefacsimile number set forth below or such other address or telefacsimile
number as the Insurance Company may hereafter specify.
(a) Policy Owner:
---------------------------------
---------------------------------
---------------------------------
Fax Number:
----------------------
(b) Company:
---------------------------------
---------------------------------
---------------------------------
Attention:
-----------------------
Fax Number:
----------------------
(c) Insurance Company:
---------------------------------
---------------------------------
---------------------------------
Attention:
-----------------------
Fax Number:
----------------------
Each such notice, request or other communication shall
be effective if (i) given by mail, 72 hours after such
communication is deposited in the mails with first class
postage prepaid, addressed as specified above, or (ii)
given by any other means, when delivered at the address
specified above.
20. Schedules. Attached to this Agreement are certain
---------
Schedules. Schedule A identifies the Policy that is related to this Agreement.
Schedule B sets forth certain information that is expected to vary over time,
such as the percentage of the Company Match. Schedule C is an illustration of
the possible performance of the Policy under certain specified assumptions. The
Company shall have the right to unilaterally prepare updated Schedules and to
distribute copies of the updated Schedules to the Employee as soon as
practicable thereafter. Any such updated and distributed Schedule shall
automatically become and be considered a part of this Agreement, without a
formal amendment and without the need for any Employee consent. However, the
power to update Schedule A shall not include the power to eliminate thereby any
Employee rights in the Policy that are provided by the other terms of this
Agreement. Rather, the power to update Schedule A is intended to allow the
Company to reflect an exchange of one Policy for a new Policy, and other similar
acts related to the orderly maintenance of records for this Agreement. This
section shall apply notwithstanding the provisions of Section 14.
13
<PAGE>
21. Headings. Section headings herein are for the convenience
--------
of reference only and shall not affect the construction or interpretation of or
alter or modify the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the year and day first above written.
NOVOSTE CORPORATION
By:
--------------------------------
President
By:
--------------------------------
Secretary
POLICY OWNER:
------------------------------------
------------------------------------
[Type Name Above]
14
<PAGE>
SCHEDULE A
SPLIT-DOLLAR AGREEMENT
SPLIT-DOLLAR INSURANCE ON THE LIFE OF
-------------------------------------------
<TABLE>
<CAPTION>
Application Number Application Date
------------------ ----------------
Insurance
Policy Number Effective Date Company Type of Policy Initial Specified Amount
------------- -------------- ------- -------------- ------------------------
<S> <C> <C> <C> <C>
Universal Life $______________________
</TABLE>
Annual Premium$_________________
15
<PAGE>
SCHEDULE B
SPLIT-DOLLAR AGREEMENT
For purposes of this Agreement, the following capitalized terms used
herein shall have the corresponding meanings:
"Assumed Tax Rate" shall be equal to 40%, or such other percentage
number as the Plan Administrator in its sole discretion from time to time may
determine.
"Company Match Percentage" shall in any one calendar year be equal to
the percentage listed in the chart below for the Pay-Reduction Contribution and
the Personal Funds Contribution that corresponds to the applicable calendar
year.
"Maximum Deferral Percentage" shall in any one calendar year be equal
to the percentage listed in the chart below that corresponds to the applicable
calendar year.
Before the beginning of each calendar year, the Plan Administrator in
its sole discretion shall establish the Company Match Percentage and the Maximum
Deferral Percentage for the following calendar year, and in the event that the
Plan Administrator fails to so establish these percentages, the percentages for
the prior year shall be used.
----------------------- ------------------------- ------------------------- -------------------------
Calendar Company Match Company Match Maximum Deferral
Year Percentage Percentage Percentage
for the for the
Pay-Reduction Personal Funds
Contribution Contribution
----------------------- ------------------------- ------------------------- -------------------------
2001 100% 166 2/3% 10%
----------------------- ------------------------- ------------------------- -------------------------
----------------------- ------------------------- ------------------------- -------------------------
----------------------- ------------------------- ------------------------- -------------------------
----------------------- ------------------------- ------------------------- -------------------------
----------------------- ------------------------- ------------------------- -------------------------
----------------------- ------------------------- ------------------------- -------------------------
----------------------- ------------------------- ------------------------- -------------------------
----------------------- ------------------------- ------------------------- -------------------------
----------------------- ------------------------- ------------------------- -------------------------
"Minimum Amount" shall in any one calendar year be equal to $5,000 for
a Pay-Reduction Contribution or $3,000 for a Personal Funds Contribution, or
such other dollar amounts as the Plan Administrator in its sole discretion from
time to time may determine. If in any year an Employee makes both a
Pay-Reduction Contribution and a Personal Funds Contribution, the Employee's
Personal Funds Contribution shall be converted to an equivalent Pay-Reduction
Contribution by dividing the Personal Funds Contribution by the Specified
Factor, and by applying the year's dollar minimum for the Pay-Reduction
Contribution.
16