EX-10.19 PAYMENT AGREEMENT-MR. AURELIO EMANUELLI



 





EXHIBIT 10.19




PAYMENT AGREEMENT

IN THE EVENT OF A CHANGE OF CONTROL



This PAYMENT AGREEMENT IN THE EVENT OF A CHANGE OF CONTROL (the “Agreement”) to become effective on
August 7, 2006, between W Holding Company, Inc. and Westernbank Puerto Rico (the “Company” and
“Bank”) and Mr. Aurelio Emanuelli (the “Employee”).




          WHEREAS, the Employee will serve as the Chief Legal Officer of the Bank; and




          WHEREAS, the Board believes that it is in the best interests of the Company and the Bank to
encourage the Employee’s continued employment with dedication to the Bank in the face of
potentially distracting circumstances arising from the remote possibility of a change in control of
the Company and or Bank, although no such change is now thought of or contemplated; and




          WHEREAS, the parties desire to enter into this Agreement setting forth the terms and
conditions for the payment of special compensation to the Employee in the event of a termination of
the Employee’s employment in connection with or as a result of a change in control;




          NOW THEREFORE, it is AGREED as follows:





	1.	 	Term. The initial term of this Agreement shall be for a two (2) year period
commencing on the date hereof. This Agreement shall be automatically renewed for one (1)
additional year on the first and each subsequent anniversary date of this Agreement, unless
the Company and or Bank gives contrary written notice to the Employee sixty (60) days prior to
such renewal date. References herein to the term of this Agreement shall include the initial
term and any additional years for which this Agreement is renewed.






	2.	 	Termination of Employment in Connection with a Change in Control.






	 	(a)	 	If during the term of this Agreement there is a change in control of the Company and
or the Bank, the Employee shall be entitled to receive as a special compensation a lump
sum cash payment as provided for herein, in connection with or within one (1) year after a
“Change in Control” (as defined below) in the event the Employee’s employment is
terminated voluntarily by the Employee or involuntarily by the Company and or the Bank
without cause in connection with or within one (1) year after a change in control has
occurred. The amount of this payment shall be equal to three (3) times the annual base
compensation, year-end Christmas bonus, and special bonuses, if any, paid to the Employee
by the Company and or Bank during the calendar year preceding the year in which the




 









 






	 	 	 	Change
in Control occurs. Payment under this Section 2(a) shall be in lieu of any amount that may be otherwise owed to the employee as damages
for the loss of employment, in the event that such loss occurs. Payment under this
Section 2(a) shall not be reduced by any compensation which the Employee may receive from
other employment with another employer after termination of the Employee’s employment
with the Company and or Bank, if such termination occurs. No payment hereunder shall
affect the Employee’s entitlement to any vested benefits or other compensation payments.
	 
	 	(b)	 	For purposes of this Agreement, a “Change in Control” shall be deemed to have
occurred if:






	 	(i)	 	Twenty-five (25) percent or more of ownership, control, power
to vote, or beneficial ownership of any class of voting securities of the
Company and or Bank is acquired by any person, either directly or indirectly
or acting through one or more other persons;
	 
	 	(ii)	 	any person (other than any person named as a proxy in
connection with any solicitation on behalf of the Board) holds revocable or
irrevocable proxies, as to the election or removal of three (3) or more
Directors of the Company and or Bank, for twenty-five (25) percent or more of
the total number of voting shares of the Company and or Bank;
	 
	 	(iii)	 	any person has received all applicable regulatory approvals
to acquire control of the Company and or Bank;
	 
	 	(iv)	 	any person has commenced a cash tender or exchange offer, or
entered into an agreement or received an option, to acquire beneficial
ownership of twenty-five (25) percent or more of the total number of voting
shares of the Company and or Bank, whether or not any requisite regulatory
approval for such acquisition has been received, provided that a Change in
Control will not be deemed to have occurred under this clause (iv) unless the
Board has made a determination that such action constitutes or will constitute
a Change in control; or
	 
	 	(v)	 	as the result of, or in connection with, any cash tender or
Exchange offer, merger, or other business combination, sale of assets or
contested election, or any combination of the foregoing transaction, (A) the
persons who were directors of the Company and or Bank before such transaction
shall cease to constitute at least a majority of the Board or its successor,
or (B) the persons who were stockholders of the Company and or Bank
immediately before such transaction do not own more than fifty (50) percent of
the outstanding voting stock of the Company and or Bank or its successor
immediately after such transaction.




 









 






	 	 	 	For purposes of this Section, a “person” includes an individual, corporation,
partnership, trust, association, joint venture, pool, syndicate,
unincorporated organization, joint-stock company or similar organization or
entity or group acting in concert. A person for these purposes shall be
deemed to be a “beneficial owner” as that term is used in Rule 13d-3 under the
Securities Exchange Act of 1934.






	3.	 	No Assignments. This Agreement is personal to each of the parties hereto. No party
may assign or delegate any rights or obligations hereunder without first obtaining the written
consent of the other party hereto. However, in the event of the death of the Employee, all
rights to receive payments hereunder shall become rights of the Employee’s estate claimable
within a twelve (12) month period following the date of death of the Employee.






	4.	 	Amendments or Additions: Action by Board of Directors. No amendments or additions
to this Agreement shall be binding unless in writing and signed by both parties hereto. The
prior approval by a majority affirmative vote of the full Board shall be required in order for
the Bank to authorize any amendments or additions to this Agreement.






	5.	 	Section Headings. The section headings used in this Agreement are included solely
for convenience and shall not affect, or be used in connection with, the interpretation of
this Agreement.






	6.	 	Compensation. The special compensation to be received as agreed to herein shall not
exceed in any event $1.5 million.






	7.	 	Governing Law. This Agreement shall be governed by the laws of the United States to
the extent applicable because of the Bank’s status as a federally insured financial
institution, and otherwise by the laws of the Commonwealth of Puerto Rico.





	 	 	 	 	 	 	 
	 	 	 	 	WESTERNBANK Puerto Rico
	 
	 	 	 	 	 	 
	Attest:

	 	/s/ César Ruiz
	 	By:
	 	/s/ Frank C. Stipes
	 	 	 	 	 	 	 
	 

	 	(Secretary)
	 	 	 	(Chairman of the Board)
	 

	 	César Ruiz
	 	 	 	Frank C. Stipes
	 

	 	W Holding Company, Inc.
	 	 	 	W Holding Company, Inc. CEO
	 

	 	Westernbank Puerto Rico
	 	 	 	Westernbank Puerto Rico
	 
	 	 	 	 	 	 
	 	 	 	 	Employee:
	 
	 	 	 	 	 	 
	 

	 	/s/ José M. Biaggi
	 	 	 	/s/ Aurelio Emanuelli
	 	 	 	 	 	 	 
	 

	 	(President and CEO)
	 	 	 	Aurelio Emanuelli
	 

	 	José M. Biaggi, Esq.	 	 	 	 
	 

	 	Westernbank Puerto Rico