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EXHIBIT 10.100
March 7, 2000
Xx. Xxxxxx Xxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxx:
We are pleased to detail herein below the provisions of your employment
agreement with Doral Mortgage Corporation ("DMC").
1. TERMS OF EMPLOYMENT
The term of this Agreement shall be for a period commencing on January
1, 1999 and ending December 31, 2000 unless sooner terminated as
herein provided. This Agreement supersedes and cancels all prior
employment, personal service or similar agreements between you and DMC
or First Financial Caribbean Corporation ("FFCC") and their respective
subsidiaries, divisions and ventures.
2. POSITION AND RESPONSIBILITIES
You will serve as President of DMC. By your acceptance of this
Agreement, you undertake to accept such employment, to devote your
full time and attention to DMC, 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 DMC or FFCC, 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 DMC or FFCC;
(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 Chief Executive Officer and Chairman of the Board of DMC
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 Two Hundred Forty Thousand dollars ($240,000.00)
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 incentive bonus equal to the lesser of
Three Hundred Thousand Dollars ($300,000.00) and (y) Three
Percent (3%) based on the net income of Doral Mortgage
Corporation over and above Three Million Dollars ($3,000,000)
derived from its Mortgage Banking activities (as hereinafter
defined).
(ii) One half (1/2) of the incentive bonus shall be payable
annually by DMC within 120 days following the end of the
preceding fiscal year, provided that such amount shall
only be payable if you shall have served as President to
DMC pursuant to this Agreement for the entire fiscal
year to which such payments relate. As used in this
Section 3, "Net Income" means the annual net income by
DMC and its subsidiaries after all taxes 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 DMC's audited financial
statements audited by its independent accountants
(hereinafter referred to as "GAAP"). As used in this
Section 3, "Mortgage Banking Activities, and all
expenses of DMC (including all taxes) shall be deemed to
be related to its Mortgage Banking Activities.
(iii) The remaining one-half (1/2) of the incentive bonus (the
"Deferred Bonus") shall be deferred pursuant to the
deferred compensation arrangement described in Exhibit A
hereto.
(c) You shall be entitled to participate in the other benefit
plans of DMC upon the terms and conditions on which such
benefits are made available to other employees of DMC. Nothing
herein shall obligate DMC to continue any existing benefit
plan or to establish any replacement benefit plan.
(d) You shall be entitled to reimbursement for reasonable travel
and entertainment expenses incurred in connection with the
rendering of your services hereunder. 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.
(e) 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.
(f) No additional compensation shall be due to you for services
performed or offices held in any subsidiary, division,
affiliate, or venture of DMC or FFCC.
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
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compensation"), and any action thereunder, does not involve
any statement or representation of any kind by DMC as to its
business, affairs, earnings or assets, or as to the tax status
of the incentive compensation or the tax consequences of any
payment thereof, or otherwise. You further agree that any
action at any time taken by or on behalf of DMC 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 DMC, FFCC or any other person or party by
reason thereof.
(b) The incentive compensation is personal to you and 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 Board
of Directors of DMC or any Committee appointed to consider
such matters, or, in the event DMC 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) DMC 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 DMC, (y) conversion to you
of opportunity of DMC of FFCC, or (z) a violation of FFCC's
conflict of interest policy, in each case as determined in the
sole discretion of the Board of Directors, and (2) in the
event DMC 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 DMC 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 DMC or an affiliate of DMC or FFCC, you
will not, without the prior written consent of DMC, (a) accept
employment or render service to any person, firm or corporation,
directly or indirectly, in competition with DMC or FFCC, 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 DMC or any affiliate of DMC or FFCC by
which you were employed, conducted operations (the "Restricted Area")
or any business 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.
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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 your employment
hereunder, or breach of fidelity to DMC.
(b) At any time following a "Change in Control" of DMC, this
Agreement may be terminated by DMC or you on 30 days' written
notice to you or FFCC, 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 any person
other than FFCC or an entity controlled by or under common
control with FFCC ceases to be the owner of at least 51% of
the outstanding voting securities of DMC.
(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 FFCC 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 you pursuant to Section 3(a)
hereof (but not 3 (b) --(c)) 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 DMC.
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, discharge 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 New York, New York 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
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requested, to the address of the intended recipient as herein set forth
or to such other address as a party may therefore have specified in
writing to the other by delivering or mailing in a similar manner. Any
notice or communication intended for DMC 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 DMC.
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 DMC, kindly endorse your acceptance and agreement
therewith in the space below provided, whereupon this shall become a
binding agreement.
Very truly yours,
DORAL MORTGAGE 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/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
