EXHIBIT 10.31
DORAL FINANCIAL CORPORATION
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As of January 1, 2004
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Doral Financial Plaza
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Dear ▇▇. ▇▇▇▇▇:
You are currently employed pursuant to an Agreement (the "Prior
Employment Agreement") dated as March 5, 2002 by Doral Financial Corporation, a
Puerto Rico corporation ("DFC") which expired on December 31, 2003. 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 of service after
December 31, 2003, 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, 2004 and ending December 31, 2005, unless sooner terminated as herein
provided.
2. POSITION AND RESPONSIBILITIES
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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
(a) 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;
(b) delivering lectures, fulfilling speaking
engagements, teaching at educational institutions;
(c) engaging in charitable and community
activities; and
(d) 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 $2,400,000 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, 2004) 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 $4.8 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
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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 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 600,000 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 granted
as of January 2, 2004 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. 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,
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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 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 Compensation Committee of the Board of
Directors of DFC or any other 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
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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 Code of
Business Conduct and Ethics, in each case as determined in the sole discretion
of the Compensation Committee 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.
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.
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(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.
9. ARBITRATION
Any dispute arising under this Agreement shall be submitted to
arbitration in San ▇▇▇▇, Puerto Rico under the rules of the American Arbitration
Association.
10. NOTICES
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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 the Chairman of the Compensation Committee of DFC's 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.
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/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chairman Compensation Committee
Accepted and Agreed to as of the
date first above set forth:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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