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EXHIBIT 10.90
DORAL FINANCIAL CORPORATION
0000 X.X. Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxx Xxxx 00000
As of December 22, 1999
Xx. Xxxxxxx Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx 00000
Dear Xx. Xxxxx:
You were previously employed pursuant to an Agreement (the "Prior
Employment Agreement") dated as of May 1, 1999 by Doral Financial Corporation, a
Puerto Rico corporation ("DFC"). You have had wide experience during your
employment by DFC in the financial services industry, have been employed by DFC
or its predecessors since 1983, and have served as Chairman of the Board of
Directors and Chief Executive Officer of DFC since February 1, 1990. Because of
your experience, DFC deems it in its best interests to continue to have the
benefit of your services as Chairman of the Board and Chief Executive Officer.
It is expected that in such capacity, in addition to your duties as
Chairman and Chief Executive Officer of DFC you will continue to manage the
business of DFC substantially in the manner in which you have prior to the date
hereof. The Board of Directors of DFC has authorized the execution of this
Agreement with regard to your employment on the conditions outlined in the
following sections of this letter. With respect to any period after December 31,
1999, this Agreement supersedes and cancels all prior employment, personal
service, consulting or similar agreement between you and DFC and its
subsidiaries, divisions and ventures, including the Prior Employment Agreement.
1. TERM OF EMPLOYMENT
The term of this Agreement shall be for a period commencing on
January 1, 2000 and ending December 31, 2001, unless sooner terminated as herein
provided.
2. POSITION AND RESPONSIBILITIES
You will serve as Chairman and Chief Executive Officer of DFC. By
your acceptance of this Agreement, you undertake to accept such employment and
to devote your full time and attention to DFC, and to use your best efforts,
ability and fidelity in the performance of the duties attaching to such
employment. During the term of your employment hereunder, you shall not perform
any services for any other company, which services conflict in any way with your
obligations under the two preceding sentences of this Section 2, whether or not
such company is competitive with the businesses of DFC, provided, however, that
nothing in this Agreement shall preclude you from devoting reasonable periods
required for
(i) serving as a director or member of a committee of any
organization involving no conflict or potential conflict of interest with the
interests of DFC;
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(ii) delivering lectures, fulfilling speaking engagements,
teaching at educational institutions;
(iii) engaging in charitable and community activities; and
(iv) managing your personal and family investments, provided that
such activities do not interfere with the regular performance of your duties and
responsibilities under this Agreement.
You shall, at all times during the term hereof, be subject to the
supervision and direction of the Board of Directors of DFC with respect to your
duties, responsibilities and the exercise of your powers.
3. COMPENSATION
(a) During the term of this Agreement you shall receive an annual
salary of $1,500,000 annually, payable no less often than monthly in accordance
with corporate policy.
(b) (i) During the term of this Agreement, you shall also be
entitled to receive an annual incentive bonus (commencing with the year ended
December 31, 2000) equal to 15% of the amount of Adjusted Net Income in excess
of a 15% Return on Equity Capital (as hereinafter defined); provided, however,
that the total salary and incentive compensation payable to you pursuant to this
Agreement shall not exceed $3.0 million per annum; and
(ii) The incentive bonus shall be payable annually by DFC
within 30 days following the date on which its Annual Report on Form 10-K for
the fiscal year ended the prior December 31 shall have been filed with the
United States Securities and Exchange Commission; provided that such amount
shall only be payable if you shall have served as Chairman of the Board and
Chief Executive Officer to DFC pursuant to this Agreement for the entire fiscal
year to which such payments relate. As used in this Section 3, "Adjusted Net
Income" means the annual consolidated net income by DFC and its subsidiaries
after all taxes (including net income from equity interests held by DFC in any
other venture and net income of any successor of DFC which may be formed by
merger, consolidation or sale of substantially all of the assets of DFC) during
the calendar year preceding the payment as determined in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved and as shown by DFC's published consolidated
financial statements audited by its independent accountants (hereinafter
referred to as "GAAP"), such net income to be adjusted (A) by adding back to
such net income any payments made pursuant to Section 3(b)(i) hereof and
payments of similar incentive compensation to other executive officers of DFC,
(B) by deducting from such net income dividends on shares of preferred stock
that are excluded from the definition of "Equity Capital" set forth below and
(C) by adjusting such net income by any extraordinary items of income and
expense such as merger related expenses. As used in Section 3, (1) "Equity
Capital" means DFC's consolidated Stockholders Equity (excluding preferred stock
or other similar instruments that are not convertible into shares of Common
Stock) at the December 31 immediately preceding the beginning of the fiscal year
for which the calculation is being made, determined in accordance with GAAP and
(2) "Return on Equity Capital" for any fiscal year means the percentage
determined by dividing DFC's consolidated net income after all taxes determined
in accordance with GAAP for such fiscal year by Equity Capital for such
preceding December 31; provided that such calculation shall be adjusted as set
forth in the immediately succeeding sentence. If DFC sells securities that
constitute Equity
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Capital during the fiscal year, Equity Capital shall be increased by the net
proceeds to DFC (after expenses) of such sale multiplied by a fraction the
numerator of which shall be the number of days in such fiscal year which had
elapsed from the date of the closing of such sale to the end of such fiscal year
and the denominator of which shall be 365.
(c) You shall be entitled to receive stock options to acquire
400,000 shares of DFC's Common Stock subject to the terms and conditions of
DFC's 1997 Employee Stock Option Plan and of the stock option awards made on the
date hereby by DFC's Corporation Committee.
(d) You shall be entitled to participate in the other benefit
plans of DFC upon the terms and conditions on which such benefits are made
available to other officers of DFC. Nothing herein shall obligate DFC to
continue any existing benefit plan or to establish any replacement benefit plan.
(e) You shall be entitled to reimbursement for reasonable travel
and entertainment expenses incurred in connection with the rendering of your
services hereunder in compliance with DFC policy. Nothing contained herein shall
authorize you to make any political contributions, including but not limited to
payments for dinners and advertising in any political party program or any other
payment to any person which might be deemed a bribe, kickback or otherwise and
improper payment under corporate policy or practice and no portion of the
compensation payable hereunder is for any such purpose.
(f) Payments under this Agreement shall be subject to reduction by
the amount of any applicable federal, Commonwealth, state or municipal income,
withholding, social security, state disability insurance, or similar or other
taxes or other items which may be required or authorized to be deducted by law
or custom.
(g) No additional compensation shall be due to you for services
performed or offices held in any subsidiary, division, affiliate, or venture of
DFC.
4. MISCELLANEOUS PROVISIONS RELATING TO THE BONUS AND OTHER MATTERS
(a) Your acceptance of this Agreement will confirm that you
understand and agree that the granting of the incentive compensation referred to
in Section 3(b) and the receipt of any incentive bonus thereunder (the
"incentive compensation") and of the stock options referred in Section 3(c), and
any action thereunder, does not involve any statement or representation of any
kind by DFC as to its business, affairs, earnings or assets, or as to the tax
status of the incentive compensation or stock options or the tax consequences of
any payment or exercise thereof, or otherwise. You further agree that any action
at any time taken by or on behalf of DFC or by its directors or any committee
thereof, which might or shall at any time adversely affect you or the incentive
compensation, may be freely taken notwithstanding any such adverse effect
without your being thereby or otherwise entitled to any right or claim against
DFC or any other person or party by reason thereof.
(b) The incentive compensation is personal to you and, except as
provided or contemplated in Section 3(b) above, in the event of your death or
incapacity, is not transferable or assignable either by your act or by operation
of law, and no assignee, trustee in bankruptcy, receiver or other party
whosoever
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shall have any right to demand any incentive compensation or any other right
with respect to it. If, in the event of your death or incapacity, your legal
representative shall be entitled to demand the incentive compensation under any
of the provisions hereof then, unless otherwise indicated by the context or
otherwise required by any term hereof, references to "you" shall apply to said
representative.
(c) If and when questions arise from time to time as to the
intent, meaning or application of any one or more of the provisions hereof such
questions will be decided by the Board of Directors of DFC or any Committee
appointed to consider such matters, or, in the event DFC is merged into or
consolidated with any other corporation, by the Board of Directors (or a
Committee appointed by it) of the surviving or resulting corporation, and the
decision of such Board of Directors or Committee, as the case may be, as to what
is a fair and equitable settlement of each such question or as to what is a fair
and proper interpretation of any provision hereof or thereof, whatever the
effect of such a decision may be, beneficial or adverse, upon the incentive
compensation, shall be conclusive and binding and you hereby agree that the
incentive compensation is granted to and accepted by you subject to such
condition and understanding. You understand that the incentive compensation is
not held or set aside in trust and (1) DFC may seek to retain, offset, attach or
similarly place a lien on such funds in circumstances where you have been
discharged for cause and shall be entitled to do so for (x) malfeasance damaging
to DFC, (y) conversion to you of an DFC opportunity, or (z) a violation of DFC's
conflict of interest policy, in each case as determined in the sole discretion
of the Board of Directors, and (2) in the event DFC is unable to make any
payment under this Agreement because of insolvency, bankruptcy or similar status
or proceedings, you will be treated as a general unsecured creditor of DFC and
may be entitled to no priority under applicable law with respect to such
payments.
5. RESTRICTIONS ON COMPETITION
During the term of this Agreement and for a period of one year
after you cease to be an employee of DFC or an affiliate of DFC, you will not,
without the prior written consent of DFC, (a) accept employment or render
service to any person, firm or corporation, directly or indirectly, in
competition with DFC, or any affiliate thereof for any purpose which would be
competitive with the business of DFC and its affiliates within the Commonwealth
of Puerto Rico or any other geographic area in which DFC or any affiliate of DFC
by which you were employed, conducted operations (the "Restricted Area") or any
business as to which studies or preparations relating to the entry into which
were made by DFC or any affiliate of DFC by which you were employed within one
year prior thereto (collectively, the "Restricted Businesses") or (b) directly
or indirectly, enter into or in any manner take part in or lend your name,
counsel or assistance to any venture, enterprise, business or endeavor, wither
as proprietor, principal, investor, partner, director, officer, employee,
consultant, adviser, agent, independent contractor or in any other capacity
whatsoever for any purpose which would be competitive with the Restricted
Businesses in the Restricted Area. An investment not exceeding 5% of the
outstanding stock in any corporation regularly traded on any national securities
exchange or in the over-the-counter market shall not be deemed to violate this
provision, provided that you shall not render any services for such corporation.
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6. TERMINATION OF EMPLOYMENT
(a) Your employment hereunder may be terminated for dishonesty,
death, incapacity, or inability to perform the duties of your employment on a
daily basis, resulting from physical or mental disability caused by illness,
accident or otherwise or refusal to perform the duties and responsibilities of
you employment hereunder, or breach of fidelity to DFC.
(b) At any time following a "Change in Control" of DFC, this
Agreement may be terminated by DFC or you on 30 days' written notice to you or
DFC, as the case may be, such termination to be effective as of the end of the
calendar year during which such notice is given. As used herein, a "Change in
Control" shall be deemed to have occurred at such time as (i) any person or
group becomes the beneficial owner of more than 50% of the voting power of DFC's
voting stock, or (ii) DFC consolidates with or merges into any other corporation
or conveys or otherwise disposes of all or substantially all of its assets to
any person.
(c) If at any time you shall voluntarily terminate your
employment, then this Agreement, except for Section 5 hereof, shall terminate
and all further obligations of DFC hereunder shall cease, provided that in any
termination pursuant to subsection (b) of this Section 6 you shall be entitled
to receive all compensation due to pursuant to Section 3 hereof for the calendar
year in which such date of termination occurs.
You agree that this Section 6 shall create no additional rights in
you to direct the operations of DFC.
7. WAIVERS AND MODIFICATIONS
No waiver by either party of any breach by the other of any
provisions hereof shall be deemed to be a waiver of any later or other breach
thereof, or as a waiver of any such or other provision of this Agreement. This
Agreement sets forth all of the terms of the understandings between the parties
with reference to the subject matter set forth herein and may not be waived,
changed, discharged or terminated orally or by any course of dealing between the
parties, but only by an instrument in writing signed by the party against whom
any waiver, change, discharge or termination is sought.
8. SEVERABILITY
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective under applicable law. In the event
that any provision, or any portion of any provision, of this Agreement shall be
held to be void and unenforceable, the remaining provisions of this Agreement,
and the remaining portion of any provision found void or unenforceable in part
only, shall continue in full force and effect.
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9. ARBITRATION
Any dispute arising under this Agreement shall be submitted to
arbitration in San Xxxx, Puerto Rico under the rules of the American Arbitration
Association.
10. NOTICES
Any notice or communication required or permitted to be given
hereunder shall be deemed duly given if delivered personally or sent by
registered or certified mail, return receipt requested, to the address of the
intended recipient as herein set forth or to such other address as a party may
theretofore have specified in writing to the other by delivering or mailing in a
similar manner. Any notice or communication intended for DFC shall be addressed
to the attention of its Board of Directors.
11. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of
the Commonwealth of Puerto Rico.
12. MISCELLANEOUS
This Agreement shall be binding upon the successors and assigns of
DFC. This Agreement is personal to you, and you therefore may not assign your
duties under this Agreement. The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
thereof or to affect the meaning hereof.
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If the foregoing terms and conditions correctly embody your mutual
understanding with DFC, kindly endorse your acceptance and agreement therewith
in the space below provided, whereupon this shall become a binding agreement.
Very truly yours,
DORAL FINANCIAL CORPORATION
By: /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Executive Vice President
Accepted and Agreed to as of the
date first above set forth:
/s/ XXXXXXX XXXXX
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Xxxxxxx Xxxxx
