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Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is dated the 1st day of September, 2000, among Hamilton
Bancorp Inc., a Florida corporation, Hamilton Bank, N.A. (the "Bank"), a
national banking association located in Miami, Florida (collectively, the
"Company"), and John F. Stumpff (the "Executive").
INTRODUCTION
The Boards of Directors of the Company have determined that it is in
the best interests of the Company to retain the Executive's services and to
reinforce and encourage the continued attention and dedication of the Executive
to his assigned duties without distraction in potentially disturbing
circumstances arising from the possibility of a change in control of the Company
or the assertion of claims and actions against employees.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. EMPLOYMENT. Upon the terms and subject to the conditions contained in this
Agreement, the Executive agrees to provide full-time services for the Company
during the term of this Agreement. The Executive agrees to devote his best
efforts to the business of the Company and shall perform his duties in a
diligent, trustworthy, and business-like manner, all for the purpose of
advancing the business of the Company.
2. DUTIES. The duties of the Executive shall be those duties which can
reasonably be expected to be performed by a person who is a senior executive of
a national chartered bank. The Executive shall report as directed by the Board
of Directors of the Company. The Executive's duties may, from time to time, be
changed or modified at the discretion of the Board of Directors or the CEO of
the Company.
3. EMPLOYMENT TERM. Subject to the terms and conditions hereof, the Company
agrees to employ the Executive for a term of two years and four months,
commencing as of September 1, 2000 (the "Effective Date") and continuing through
December 31, 2002, unless renewed under this Section 3. The Company may
terminate the Executive's employment prior to the end of the two-year term
through a Termination Due to Disability under Section 5(a), a Termination With
Cause under Section 5(b) or Termination Without Cause under Section 5(c).
The term of this Agreement shall be automatically extended for an additional
year each December 31, commencing December 31, 2001, unless either the Company
or the Executive provides written notice of election not to renew, at least 45
days before the applicable December 31.
4. SALARY AND BENEFITS.
(a) Base Salary. The Company shall, during the term of this Agreement, pay the
Executive an annual base salary in effect as of the date of the Agreement
through December 31, 2000. Thereafter, base salary shall be reviewed by the
Company at least annually and any base salary increase shall be effective each
January 1, beginning January 1, 2001. The Company may not, however, reduce the
Executive's base salary at any time during the term of this Agreement.
(b) Annual Incentive Payment. Each year during this Agreement, the Executive
shall be eligible to receive an annual incentive payment (the "Annual Incentive
Payment). The amount actually awarded to the Executive will be determined by the
Company's or the Bank's Compensation Committee. Any applicable bonus shall be
paid by February 28 of each year (with the first bonus payable by February 28,
2001, relating to the 2000 year).
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(c) Stock Options. The Company shall provide a stock option program to the
Executive in accordance with the 1998 and 2000 Executive Incentive Plans, as
amended or replaced by a successor plan approved by the Company's Board of
Directors and, if necessary, its shareholders. The Executive will not be
eligible to participate in any stock option plans reserved for outside
directors.
(d) Life Insurance. The Company shall provide life insurance coverage on the
life of the Executive in accordance with the Company's Group Term Life Insurance
Plan. The life insurance benefit will be paid upon death according to the
following schedule; however, the death benefit is limited to a maximum of
$350,000.
Years of Service Death Benefit
---------------- -------------
1-5 2 x Salary
5-10 3 x Salary
10-15 4 x Salary
15+ 5 x Salary
(e) Vacation. The Executive shall be entitled to the number of weeks of paid
vacation during each full year of his employment hereunder in accordance with
the vacation policy adopted by the Company. In addition, upon any Termination
under Section 5, except for Termination for Cause, the Executive will be paid
any vacation earned in the calendar year of the termination but not taken
through the date of the termination.
(f) Reimbursement of Expenses. The Company shall reimburse the Executive for all
reasonable out-of-pocket expenses incurred by the Executive in the course of his
duties, in accordance with any business conducted on behalf of the Company.
(g) Employee Benefits. The Executive shall be entitled to participate in the
employee benefit programs generally available to employees of the Company, and
to all normal perquisites provided to senior executive officers of the Company.
(h) Benefits Not in Lieu of Compensation. No benefit or perquisite provided to
the Executive shall be deemed to be in lieu of base salary, bonus, or other
compensation.
5. TERMINATION OF EMPLOYMENT. The Board of Directors of the Company may
terminate the employment of the Executive at any time as it deems appropriate.
(a) Disability. The Company may terminate the Executive's employment for
Disability if the Executive is incapacitated or absent and unable to perform
substantially all the regular Duties of his employment as defined under the
Total Disability From Your Own Occupation under the Company's Long Term
Disability Plan. If, during the term of this Agreement, the Executive's
employment terminates due to Disability, the Company shall provide long term
disability insurance that provides for an annual benefit of 2/3 of the
Executive's Base Salary; however, this benefit is limited to the maximum allowed
under the Company's Long Term Disability Plan in effect from time to time, but
not less than $6,000 per month.
(b) Voluntary Resignation or Termination for Cause. If the Executive shall
voluntarily terminate his employment for other than Good Reason or if the
Company shall discharge the Executive for Cause, as defined herein, this
Agreement shall terminate immediately and the Company shall have no further
obligation to make any payment under this Agreement which has not already become
payable, but has not yet been paid, provided, however, that with respect to any
stock options, restricted stock, incentive plans, deferred compensation
arrangements, or other plans or programs in which the Executive is participating
at the time of termination of his employment, the Executive's rights and
benefits under each such plan shall be determined in accordance with the terms,
conditions, and limitations of the plan and any separate agreement executed by
the Executive which may then be in effect.
For the purposes of this Agreement, the Company shall have "Cause" to terminate
the Executive's employment hereunder upon:
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(i) the willful and continued failure by the Executive to perform his
duties with the Company (other than any such failure resulting from
incapacity due to Disability), after a demand for specific performance
is delivered to the Executive by the Board which identifies individual
goals and objectives which must be accomplished to remedy the
Executive's performance, as well as provides rationale as to the reason
the Board believes that he has not historically performed his duties;
(ii) the willful engaging by the Executive in gross misconduct materially
and demonstrably injurious to the Company. For purposes of this
paragraph, no act, or failure to act, on the Executive's part shall be
considered "willful" unless done, or omitted to be done, by him not in
good faith and without reasonable belief that his action or omission
was in the best interest of the Company.
(c) Termination Without Cause or Resignation for Good Reason. If during the term
of the Agreement, the Executive's employment is terminated by the Company
without Cause or the Executive voluntarily terminates his employment for Good
Reason, as defined herein:
(i) Base Salary. The Company shall pay the Executive in a lump sum an
amount equal to the remaining term of this Agreement times the current
annual base salary as provided in Section 4(a) in effect at the date of
termination;
(ii) Annual Incentive. To compensate the Executive for the current year's
annual incentive, the Company shall pay to the Executive in a lump sum
an amount equal to two times the aggregate amount paid to the Executive
under Sections 4(b) for the most recently completed calendar year
multiplied by a ratio whose numerator is the number of the current
month as of the date of termination and the denominator is twelve.
(iii) (iii) Nonqualified Retirement Plans and Stock Options. The Company
shall pay to the Executive any amounts due under Section 4(c) according
with the terms, conditions and limitations of the plans and any
separate agreements under Section 4(c) without regard to "vesting"
thereunder.
For purposes of this Agreement, the term "Good Reason" shall mean:
(i) Without his express written consent, the assignment to the Executive of
any duties inconsistent with his positions, duties, responsibilities
and status with the Company, or a change in his reporting
responsibilities, titles or offices, or any removal of the Executive
from or any failure to re-elect the Executive to any of such positions,
except in connection with the termination of his employment for Cause,
Disability or retirement or as a result of his death or by the
Executive other than for Good Reason;
(ii) A reduction by the Company in the Executive's base salary as in effect
on the date hereof or as the same may be increased from time to time;
(iii) Without his express written consent the failure by the Company to
continue in effect any Stock Options under Section 4(c), the Life
Insurance under Section 4(d) in which the Executive is participating
(or plans providing substantially similar benefits), the taking of any
action by the Company which would adversely affect the Executive's
participation in or materially reduce his benefits under any of such
plans or deprive him of any material fringe benefit enjoyed by him, or
the failure by the Company to provide the Executive with the number of
paid vacation days to which he is then entitled on the basis of years
of service with the Company in accordance with the Company's normal
vacation policy in effect on the date hereof; or
(iv) Any failure of the Company to obtain the assumption of, or the
agreement to perform, this Agreement by any successor as contemplated
in Section 16(a) hereof.
6. PERFORMANCE BONUS UPON CERTAIN CHANGES OF CONTROL. If a Change of Control
occurs during the term of this Agreement and if the compensation paid upon such
Change of Control on a per share basis equals or exceeds the closing price of a
share of the Company's common stock on the date hereof plus twenty percent
thereof, the Executive shall be paid a performance bonus equal to the
Executive's compensation paid by the Company and its affiliates which was
includible in the Executive's gross income during the most recent taxable year
ending before the date of the Change of Control, provided, however, if a Change
of Control occurs prior to December 31, 2001, the Executive shall be paid a
performance bonus equal to the Executive's annualized calendar year 2000
compensation paid by the Company in the last quarter of calendar year 2000.
The term "Change of Control" as used in this Agreement shall have the following
meaning:
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(i) A reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case, with respect to
which persons who were the shareholders of the Company immediately
prior to such reorganization, merger or consolidation or other
transaction do not, immediately thereafter, directly or indirectly, own
more than 80% of the combined voting power entitled to vote generally
in the election of director of the reorganized, merged or consolidated
entity's then outstanding voting securities;
(ii) A liquidation or dissolution of the Company;
(iii) The sale of more than 50% of the assets of the Company to any person or
entity not controlled by or under common control with the Company
(unless such reorganization, merger, consolidation or other corporate
transaction, liquidation, dissolution or sale is subsequently
abandoned); or
(iv) The acquisition by any person, entity or "group", within the meaning of
Section 13 (d) (3) or 14 (d) (2) of the Securities Exchange Act,
(excluding any employee benefit plan of the Company or its subsidiaries
which acquires beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act)) of more than twenty
percent (20%) of either the then outstanding shares of common stock or
the combined voting power of the Company's then outstanding voting
securities entitled to vote generally in the election of directors.
7. TERMINATION AFTER CHANGE OF CONTROL BENEFIT.
(a) Termination. If within 24 months after a Change of Control, the Company
shall terminate the Executive's employment other than pursuant to Section 5(a)
or 5(b) hereof or if the Executive shall terminate his employment for Good
Reason, then the Company shall pay to the Executive a benefit as defined in
Section 7(b).
(b) Amount. Upon a termination after a Change of Control as provided in Section
7(a), the Executive will receive a Change of Control Benefit equal to the
greater of (i) two (2) times the Executive's Base Annual Compensation as defined
in Section 7(c) at the date of the Change of Control assuming the individual is
in good employment or (ii) the amount payable to the Executive as provided in
Section 5(c).
(c) Base Annual Compensation. The Executive's compensation paid by the Company
and its affiliates which was includible in the Executive's gross income during
the most recent taxable year ending before the date of the Change of Control
(including, amounts includible in compensation, i.e., the base salary and cash
annual incentive prior to any deferred arrangements) provided, however, that
such amount shall not exceed an amount equal to three (3) times the Executive's
average annualized compensation paid by the Company and its affiliates which was
includible in the Executive's gross income during the most recent five taxable
years ending before the date of the Change of Control (defined as the
individual's "base amount" under Section 280G of the Internal Revenue Code of
1986, as amended).
(d) Nonqualified Retirement Plans and Stock Options. The Company shall also pay
to the Executive any amounts due under Section 4(c) according with the terms,
conditions and limitations of the plans and any separate agreements under
Section 4(c) without regard to "vesting" thereunder.
(e) Consideration of Benefit. As consideration for the benefit paid in Section
7, the Executive agrees to work with the new organization for a period of no
less than six months. If the organization, however, terminates the employment of
the Executive except under Termination for Cause, the Executive is still
entitled to the benefit specified under this section 7.
(f) Limitation of Benefit: Notwithstanding anything to the contrary in this
Agreement, if there are payments to the Employee which constitute "parachute
payments," as defined in Section 280G of the Code, then the payments made to the
Executive shall be the maximum of (x) one dollar ($1.00) less than the amount
which would cause the payments to the Employee (including payments to the
Employee which are not included in this Agreement) to be subject to the excise
tax imposed by Section 4999 of the Code, and (y) the payments to the Employee
(including payments to the Employee which are not included in the Agreement)
after taking into account the excise tax imposed by Section 4999 of the Code.
(g) Payment of Benefit. The Company shall pay any Change of Control Benefit
payable as provided in this Section 7 in a lump sum upon the Executive's
Termination of Employment.
8. CONFIDENTIAL INFORMATION. The Executive recognizes and acknowledges that he
will have access to certain
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information of the Company and that such information is confidential and
constitutes valuable, special and unique property of the Company. The Executive
shall not at any time, either during or subsequent to the term of this
Agreement, disclose to others, use, copy or permit to be copied, except in
pursuance of his duties for and on behalf of the Company, it successors, assigns
or nominees, any Confidential Information of the Company (regardless of whether
developed by the Executive) without the prior written consent of the Company.
The term "Confidential Information" with respect to any person means any secret
or confidential information or know-how and shall include, but shall not be
limited to, the plans, customers, costs, prices, uses, and applications of
products and services, results of investigations, studies owned or used by such
person, and all products, processes, compositions, computer programs, and
servicing, marketing or operational methods and techniques at any time used,
developed, investigated, made or sold by such person, before or during the term
of this Agreement, that are not readily available to the public or that are
maintained as confidential by such person. The Executive shall maintain in
confidence any Confidential Information of third parties received as a result of
his employment with the Company in accordance with the Company's obligations to
such third parties and the policies established by the Company.
9. DELIVERY OF DOCUMENTS UPON TERMINATION. The Executive shall deliver to the
Company or its designee at the termination of his employment all correspondence,
memoranda, notes, records, drawings, sketches, plans, customer lists, product
compositions, and other documents and all copies thereof, made, composed or
received by the Executive, solely or jointly with others, that are in the
Executive's possession, custody, or control at termination and that are related
in any manner to the past, present, or anticipated business or any member of the
Company.
10. NO TAMPERING. Throughout the term of the Agreement and through the second
anniversary of the expiration thereof, the Executive shall not (a) request,
induce or attempt to influence any customers of the Company to curtail or cancel
any business they may transact with the Company; or (b) request, induce or
attempt to influence any employee of the Company to terminate his employment
with the Company.
11. RELOCATION. The Company's requiring the Executive to be based anywhere other
than Miami, Florida except for required travel on the Company's business to an
extent substantially consistent with his present business travel obligations,
or, in the event the Executive consents to any relocation, the failure by the
Company to pay (or reimburse the Executive) for all reasonable moving expenses
incurred by him relating to a change of his principal residence in connection
with such relocation and to indemnify the Executive against any loss (defined as
the difference between the actual sale price of such residence and the higher of
(a) his aggregate investment in such residence or (b) the fair market value of
such residence as determined by a real estate appraiser designated by the
Executive and reasonably satisfactory to the Company) realized on the sale of
the Executive's principal residence in connection with any such change of
residence, shall constitute Good Reason for the Executive to voluntarily
terminate his employment.
12. PUBLICITY AND ADVERTISING. The Executive agrees that the Company may use his
name, picture, or likeness for any advertising, publicity, or other business
purpose at any time, during the term of the Agreement and may continue to use
materials generated during the term of the Agreement for a period of six months
thereafter. The Executive shall receive no additional consideration if his name,
picture or likeness is so used. The Executive further agrees that any negatives,
prints or other material for printing or reproduction purposes prepared in
connection with the use of his name, picture or likeness by the Company shall be
and are the sole property of the Company.
13. REMEDIES. The Executive acknowledges that a remedy at law for any breach or
attempted breach of the Executive's obligations under Sections 8 through 10 may
be inadequate, agrees that the Company may be entitled to specific performance
and injunctive and other equitable remedies in case of any such breach or
attempted breach, and further agrees to waive any requirement for the securing
or posting of any bond in connection with the obtaining of any such injunctive
or other equitable relief. The Company shall have the right to offset against
amounts to be paid to the Executive pursuant to the terms hereof any amounts
from time to time owing by the Executive to the Company. The termination of the
Agreement pursuant to Section 3, 5(a) or 5(b) shall not be deemed to be a waiver
by the Company of any breach by the Executive of this Agreement or any other
obligation owed the Company, and notwithstanding such a termination the
Executive shall be liable for all damages attributable to such a breach.
14. DISPUTE RESOLUTION. Subject to the Company's right to seek injunctive relief
in court as provided in Section 13 of this Agreement, any dispute, controversy
or claim arising out of or in relation to or connection to this Agreement,
including without limitation any dispute as to the construction, validity,
interpretation, enforceability or breach of this Agreement, shall be exclusively
and finally settled by arbitration, and any party may submit such dispute,
controversy or
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claim, including a claim for indemnification under this Section 14, to
arbitration.
(a) Arbitrators. The arbitration shall be heard and determined by one
arbitrator, who shall be impartial and who shall be selected by mutual agreement
of the parties; provided, however, that if the dispute involves more than
$1,000,000, then the arbitration shall be heard and determined by three (3)
arbitrators. If three (3) arbitrators are necessary as provided above, then (i)
each side shall appoint an arbitrator of its choice within thirty (30) days of
the submission of a notice of arbitration and (ii) the party-appointed
arbitrators shall in turn appoint a presiding arbitrator of the tribunal within
thirty (30) days following the appointment of the last party-appointed
arbitrator.
(b) Proceedings. Unless otherwise expressly agreed in writing by the parties to
the arbitration proceedings:
(i) The arbitration proceedings shall be held in Miami, Florida, at a site
chosen by mutual agreement of the parties, or if the parties cannot
reach agreement on a location within thirty (30) days of the
appointment of the last arbitrator, then at a site chosen by the
arbitrators;
(ii) The arbitrators shall be and remain at all times wholly independent and
impartial;
(iii) The arbitration proceedings shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association,
as amended from time to time;
(iv) Any procedural issues not determined under the arbitral rules selected
pursuant to item (iii) above shall be determined by the law of the
place of arbitration, other than those laws which would refer the
matter to another jurisdiction;
(v) The costs of the arbitration proceedings (including attorneys' fees and
costs) shall be borne in the manner determined by the arbitrators;
(vi) The decision of the arbitrators shall be reduced to writing; final and
binding without the right of appeal; the sole and exclusive remedy
regarding any claims, counterclaims, issues or accounting presented to
the arbitrators; made and promptly paid in United States dollars free
of any deduction or offset; and any costs or fees incident to enforcing
the award shall, to the maximum extent permitted by law, be charged
against the party resisting such enforcement;
(vii) The award shall include interest from the date of any breach or
violation of this Agreement, as determined by the arbitral award, and
from the date of the award until paid in full, at 6% per annum; and
(viii) Judgment upon the award may be entered in any court having jurisdiction
over the person or the assets of the party owing the judgment or
application may be made to such court for a judicial acceptance of the
award and an order of enforcement, as the case may be.
(c) Acknowledgment of Parties. Each party acknowledges that he or it has
voluntarily and knowingly entered into an agreement to arbitration under this
Section by executing this Agreement.
15. INDEMNIFICATION. The Executive shall be protected against any and all legal
actions when he is either a party, witness or a participant in any legal action
brought against the Company. He will be protected through any programs that
cover the outside directors or other executives of the Company.
16. MISCELLANEOUS PROVISIONS.
(a) Successors of the Company. The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, expressly to assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms as the Executive would be entitled hereunder if the Executive terminated
his employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which executes and delivers the agreement provided for in
this Section 16 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
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(b) Executive's Heirs, etc. The Executive may not assign his rights or delegate
his duties or obligations hereunder without the written consent of the Company.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder as if he had
continued to live, all such amounts, unless other provided herein, shall be paid
in accordance with the terms of this Agreement to his designee or, if there be
no such designee, to his estate.
(c) Notice. For the purposes of this Agreement, notices and all other
communications provide for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, provided that all notices
to the Company shall be directed to the attention of the Chief Executive Officer
of the Company with a copy to the Secretary of the Company, or to such other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(d) Amendment or Waiver. No provisions of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the Executive and such officer as may be specifically
designated by the Board of Directors of the Company (which shall in any event
include the Company's Chief Executive Officer). No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
(e) Invalid Provisions. Should any portion of this Agreement be adjudged or held
to be invalid, unenforceable or void, such holding shall not have the effect of
invalidating or voiding the remainder of this Agreement and the parties hereby
agree that the portion so held invalid, unenforceable or void shall, if
possible, be deemed amended or reduced in scope, or otherwise be stricken from
this Agreement to the extent required for the purposes of validity and
enforcement thereof.
(f) Survival of the Executive's Obligations. The Executive's obligations under
this Agreement shall survive regardless of whether the Executive's employment by
the Company is terminated, voluntarily or involuntarily, by the Company or the
Executive, with or without Cause.
(g) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
(h) Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Florida.
(i) Captions and Gender. The use of captions and Section headings herein is for
purposes of convenience only and shall not effect the interpretation or
substance of any provisions contained herein. Similarly, the use of the
masculine or feminine gender with respect to pronouns in this Agreement is for
purposes of convenience and includes either sex who may be a signatory.
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IN WITNESS WHEREOF, the Executive and duly authorized Company officers have
signed this Agreement.
EXECUTIVE: COMPANY:
HAMILTON BANCORP INC.
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John F. Stumpff By
-----------------------------------------
Title:
Address:
1540 N.W. 101 Avenue By
Plantation, Florida 33322 -----------------------------------------
Title:
HAMILTON BANK, N.A.
By
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Title:
By
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Title:
3750 N.W. 87th Avenue
Miami, Florida 33178
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