EXHIBIT 10.33
CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made as of January 1,
2004 by and between Doral Financial Corporation (the "Company"), a corporation
organized pursuant to the laws of the Commonwealth of Puerto Rico, and Xxxxxxx
X. Xxxxxx (the "Consultant").
RECITALS
WHEREAS, the Consultant was employed by the Company as Senior Executive
Vice President and Chief Financial Officer pursuant to an employment agreement
that terminated on December 31, 2003.
WHEREAS, the Consultant has informed the Board of Directors of the
Company that he desired to resign as an employee of the Company effective
December 31, 2003.
WHEREAS, the Consultant has obtained valuable experience in the
financial services industry during his many years of employment with the Company
and the Company deems it in its best interests to engage the Consultant as a
consultant to provide certain services to the Company.
WHEREAS, the Consultant wishes to accept to be retained by the Company,
upon the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the representations, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
SECTION 1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
1.1 "AGREEMENT" means this Consulting Agreement, as amended from
time to time.
1.2 "CONFIDENTIAL INFORMATION" means any and all:
(a) trade secrets concerning the business and affairs of
the Company, data, know-how, ideas, customer lists, market studies and business
plans; and
(b) information concerning the business and affairs of
the Company (which includes historical financial statements, financial
projections and budgets, historical and projected sales, expansion plans, the
names and backgrounds of key personnel, personnel training and techniques and
materials); and
(c) notes, analysis, compilations, studies, summaries,
and other materials prepared by or for the Company containing or based, in whole
or in part, on any information included in the foregoing.
1.3 "EFFECTIVE DATE" means January 1, 2004.
1.4 "FISCAL YEAR" means the Company's fiscal year, as it exists on
the Effective Date or as changed from time to time.
1.5 "PERSON" means any individual, corporation (including any
non-profit corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, association, organization, or
governmental body.
1.6 "PROPRIETARY ITEMS" as defined in Section 5.1(c).
SECTION 2. TERMS AND DUTIES
2.1 ENGAGEMENT. The Company hereby retains the Consultant, and the
Consultant hereby accepts to be retained by the Company, upon the terms and
conditions set forth in this Agreement.
2.2 TERM. The term of engagement under this Agreement will begin
on the Effective Date and end on December 31, 2005 (the "Term").
2.3 DUTIES. The Consultant will have such duties as are assigned
or delegated to the Consultant by the Chairman of the Board and the Chief
Executive Officer of the Company and will initially assist the Company in
identifying new business opportunities, strategic advice regarding the Company's
New York banking operations and investor relations. He will also serve as Vice
Chairman of the Board of Doral Bank FSB and as Secretary of the Board of
Directors of the Company. The Consultant will use his best efforts to promote
the success of the Company's business, and will cooperate fully with the Board
of Directors and officers of the Company in the advancement of the best
interests of the Company.
SECTION 3. COMPENSATION
3.1 COMPENSATION. The Consultant will be paid an annual fee of
$300,000 (the "Fee"), which will be payable in equal monthly installments
according to the Company's customary payroll practices. The payment of such Fee
shall be subject to any withholding of taxes to the extent required by law.
3.2 MEDICAL PLAN. The Company will continue to pay all costs
related to the Consultant's participation in the Company's medical plan. To the
extent the Consultant no longer is eligible to participate in the Company's
medical plan, the Company will reimburse the Consultant for the reasonable costs
of obtaining his own individual medical coverage.
SECTION 4. FACILITIES AND EXPENSES
4.1 GENERAL. The Company will furnish the Consultant office space,
equipment, supplies, and such other facilities and personnel as the Company
deems necessary or appropriate for the performance of the Consultant's duties
under this Agreement. The Company will pay on behalf of the Consultant (or
reimburse the Consultant for) reasonable expenses incurred by the Consultant at
the request of, or on behalf of, the Company in the performance of the
Consultant's duties pursuant to this Agreement in accordance with applicable
Company policy.
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SECTION 5. NON-DISCLOSURE COVENANT
5.1 AGREEMENTS OF THE CONSULTANT. In consideration of the
compensation to be paid to the Consultant by the Company under this Agreement,
the Consultant covenants as follows:
(a) During and following the Term, the Consultant will
hold in confidence the Confidential Information and will not disclose it to any
person except with the specific prior written consent of the Company or except
as otherwise expressly permitted by the terms of this Agreement.
(b) The foregoing obligation does not apply to any part
of the Confidential Information that the Consultant demonstrates was or became
generally available to the public other than as a result of a disclosure by the
Consultant.
(c) The Consultant will not remove from the Company's
premises (except to the extent such removal is for purposes of the performance
of the Consultant's duties at home or while traveling, or except as otherwise
specifically authorized by the Company) any document, record, notebook, plan, or
computer software or code, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Consultant recognizes that all of
the Proprietary Items are the exclusive property of the Company. Upon
termination of this Agreement or upon the request of the Company during the
Term, the Consultant will return to the Company all of the Proprietary Items in
the Consultant's possession or subject to the Consultant's control, and the
Consultant shall not retain any copies, abstracts, or other physical embodiment
of any of the Proprietary Items.
SECTION 6. NON-COMPETITION
6.1 ACKNOWLEDGMENT BY THE CONSULTANT. The Consultant acknowledges
that: (a) the services to be performed by him under this Agreement are of a
special character; (b) the Company competes with other businesses that are or
could be located in any part of the Commonwealth of Puerto Rico or in the New
York City metropolitan area; (c) the Company has required that the Consultant
make the covenants set forth in this Section 6 in consideration for the
Consultant's engagement hereunder; and (d) the provisions of this Section 6 are
reasonable and necessary to protect the Company's business.
6.2 COVENANT NOT TO COMPETE. During the term of this Agreement,
you will not, without the prior written consent of the Company's Chief Executive
Officer or Audit Committee, accept employment or render service to any person,
firm or corporation in competition with the Company, or any affiliate thereof
for any purpose which would be directly competitive with the mortgage banking,
banking, insurance or securities business of the Company and its affiliates
within Puerto Rico or with the Company's retail banking and mortgage banking
business in New York City; provided, however, that anything in this Agreement to
the contrary notwithstanding the provisions of this Agreement will not restrict
you from continuing to service as a director of Fundex Corporation or investing
in loans or loan participations to be made by Fundex Corporation or investing in
real estate development projects. 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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SECTION 7. GENERAL PROVISIONS
7.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The Consultant
acknowledges that the injury that would be suffered by the Company as a result
of a breach of the provisions of this Agreement would be irreparable and that an
award of monetary damages to the Company for such a breach would be an
inadequate remedy. Consequently, the Company will have the right, in addition to
any other rights it may have, to obtain injunctive relief to restrain any breach
or threatened breach or otherwise to specifically enforce any provision of this
Agreement, and the Company will not be obligated to post bond or other security
in seeking such relief.
7.2 REPRESENTATIONS AND WARRANTIES BY THE CONSULTANT. The
Consultant represents and warrants to the Company that the execution and
delivery by the Consultant of this Agreement do not, and the performance by the
Consultant of the Consultant's obligations hereunder will not, with or without
the giving of notice or the passage of time, or both: (a) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Consultant; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Consultant is a party or by which the Consultant is or
may be bound.
7.3 WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by either party in exercising any right, power, or privilege under this
Agreement will operate as a waiver of such right, power, or privilege, and no
single or partial exercise of any such right, power, or privilege will preclude
any other or further exercise of such right, power, or privilege or the exercise
of any other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement.
7.4 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED. This
Agreement shall inure to the benefit of, and shall be binding upon, the parties
hereto and their respective successors, assigns, heirs, and legal
representatives, including any entity with which the Company may merge or
consolidate or to which all or substantially all of its assets may be
transferred. The duties and covenants of the Consultant under this Agreement,
being personal, may not be delegated or assigned.
7.5 NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by facsimile (with written confirmation of receipt), provided
that a copy is mailed by registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nationally recognized overnight delivery
service (receipt requested), in each case to the appropriate addresses and
facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
If to the Company: Doral Financial Corporation
0000 X.X. Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxx Xxxx 00000-0000
Attention: Chairman of the Board
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If to the Consultant: Xxxxxxx X. Xxxxxx
0 Xxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
8.6 INDEPENDENT CONTRACTOR. Notwithstanding anything to the
contrary contained herein, Consultant shall be an independent contractor
performing the functions set forth in this Agreement. Nothing contained herein
shall be deemed to create any association, partnership, joint venture, or
relationship of master and servant, or employer or employee between the parties
hereto or any affiliates or subsidiaries thereof, or to provide either party
with the right, power and authority, whether express or implied, to create any
such duty or obligation or behalf of the other party.
8.7 ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the
entire agreement between the parties with respect to the subject matter hereof
and supersede all prior agreements and understandings, oral or written, between
the parties hereto with respect to the subject matter hereof. This Agreement may
not be amended orally, but only by an agreement in writing signed by the parties
hereto.
8.8 APPLICABLE LAW. This Agreement shall be governed by,
interpreted and construed in accordance with the laws of the Commonwealth of
Puerto Rico.
8.9 ARBITRATION. Any dispute under this Agreement shall be
submitted to arbitration in New York, New York under the rules of the American
Arbitration Association.
8.10 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in
this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding Section or Sections of this Agreement unless otherwise
specified. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
8.11 SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any court of competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect. Any provision
of this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or unenforceable.
8.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
8.13 TAXES. Consultant shall be solely responsible for paying any
income and any other taxes or licenses applicable to Consultant, its business
and its services.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
DORAL FINANCIAL CORPORATION CONSULTANT
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
------------------------- -------------------------
Name: Xxxxxxx Xxxxx Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
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