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EXHIBIT 10.92
DORAL FINANCIAL CORPORATION
0000 X.X. Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxx Xxxx 00000
As of December 22, 1999
Xx. Xxxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Dear Xx. Xxxxxx:
We are pleased to detail herein below the provisions of your employment
agreement with Doral Financial Corporation ("DFC").
1. TERMS OF EMPLOYMENT
The term of this Agreement shall be for a period commencing on to
January 1, 2000 and ending on December 31, 2001, unless sooner terminated as
herein provided. With respect to any period after January 1, 1999, this
Agreement supersedes and cancels all prior employment, personal service or
similar agreements between you and DFC and its subsidiaries, divisions and
ventures.
2. POSITION AND RESPONSIBILITIES
You will serve as Senior Executive Vice President, Secretary and
Chief Financial 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;
(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 Chairman of the Board and Chief Executive
Officer and the President of DFC with respect to your duties, responsibilities
and the exercise of your powers.
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3. COMPENSATION
(a) During the term of this Agreement you shall receive an
annual salary of $390,000 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 ending December 31, 2000) equal to 5% of the
amount of Adjusted Net Income (as hereinafter defined) in
excess of a 15% Return on Equity Capital (as hereinafter
defined); provided, however, that total salary and incentive
compensation payable to you pursuant to this Agreement shall
not exceed $600,000 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
Senior Executive Vice President 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 preferred stock that are excluded
from the definition of "Equity Capital" set forth below and
(C) by adjusting such net income for any extraordinary items
of income and expense such as merger related expenses. As
used in this Section 3, (1) "Equity Capital" means DFC's
consolidated Stockholders Equity (excluding preferred stock
or other similar instrument 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 equity
securities 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.
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(c) You shall be entitled to receive stock options to acquire
180,000 shares of DFC's Common Stock subject to the terms and conditions of the
stock option awards made on the date hereof by DFC's Compensation 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, except that DFC agrees to establish an
annuity contract for your benefit in the amount of $30,000 per year in lieu of
your participation in DFC's pension plan and will acquire separate medical
insurance for you in lieu of your participation in DFC's medical plan. 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) (the "incentive compensation"), 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, Doral or any other
person or party by reason thereof.
(b) The incentive compensation is personal to you and, except as
provided as 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 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.
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(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 mortgage banking business 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 two years 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, whether 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.
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
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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. MEMBERSHIP ON BOARD OF DIRECTORS. DFC agrees to nominate or cause
you to be nominated for election to DFC's Board of Directors.
8. 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.
9. 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.
10. ARBITRATION
Any dispute arising under this Agreement shall be submitted to
arbitration in New York, New York under the rules of the American Arbitration
Association.
11. 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.
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12. GOVERNING LAW
This Agreement shall be construed in accordance with the laws of
the Commonwealth of Puerto Rico.
13. 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.
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 Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
Accepted and Agreed to as of the
date first above set forth:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
