CHANGE IN CONTROL,
SEVERANCE AND EMPLOYMENT AGREEMENT
FOR X. XXXX VAN BORKULO-XXXXX
(Double Trigger; Gross-Up)
THIS CHANGE IN CONTROL SEVERANCE AND EMPLOYMENT AGREEMENT (the
"Agreement"), is made as of this 1st day of January, 1997, among HUBCO, Inc.
("HUBCO"), a New Jersey corporation which maintains its principal office at 1000
MacArthur Boulevard., Mahwah, New Jersey, XXXXXX UNITED BANK (the "Bank"), a New
Jersey chartered commercial bank, with an office at 0000 XxxXxxxxx Xxxxxxxxx.,
Xxxxxx, Xxx Xxxxxx (HUBCO and the Bank collectively are referred to herein as
the "Company") and X. XXXX VAN BORKULO-XXXXX (the "Executive").
BACKGROUND
WHEREAS, the Executive has been employed by HUBCO and the Bank for
many years, most recently as Executive Vice President and Corporate Secretary of
HUBCO and the Bank;
WHEREAS, the Executive throughout her tenure has worked diligently
in her position in the business of HUBCO and the Bank;
WHEREAS, the Board of Directors of HUBCO and the Bank believe that
the future services of the Executive are of great value to HUBCO and the Bank
and that it is important for the growth and development of HUBCO and the Bank
that the Executive continue in her position;
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WHEREAS, if HUBCO receives any proposal from a third person
concerning a possible business combination with, or acquisition of equities
securities of, the Company, the Board of Directors of HUBCO (the "Board")
believes it is imperative that HUBCO and the Bank and the Board be able to rely
upon the Executive to continue in her position, and that they be able to receive
and rely upon her advice, if they request it, as to the best interests of the
Company and its shareholders, without concern that the Executive might be
distracted by the personal uncertainties and risks created by such a proposal;
WHEREAS, to achieve that goal, and to retain the Executive's
services prior to any such activity, the Board of Directors and the Executive
have agreed to enter into this Agreement to provide the Executive with certain
termination benefits in the event of a Change in Control, as hereinafter
defined;
NOW, THEREFORE, to assure the Company that it will have the
continued dedication of the Executive and the availability of her advice and
counsel notwithstanding the possibility, threat or occurrence of a bid to take
over control of the Company, and to induce the Executive to remain in the employ
of the Company, and for other good and valuable consideration, the Company and
the Executive, each intending to be legally bound hereby agree as follows:
1. Definitions
a. Cause. For purposes of this Agreement "Cause" with respect
to the termination by the Company of Executive's employment shall mean (i)
willful and continued failure by the Executive to materially perform her duties
for the Company under this Agreement after at least one warning in writing from
the Company's Board of Directors identifying specifically
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any such material failure and offering a reasonable opportunity to cure such
failure; (ii) the willful engaging by the Executive in material misconduct which
causes material injury to the Company as specified in a written notice to the
Executive from the Board of Directors; or (iii) conviction of a crime (other
than a traffic violation), habitual drunkenness, drug abuse, or excessive
absenteeism other than for illness, after a warning (with respect to drunkenness
or absenteeism only) in writing from the Board of Directors to refrain from such
behavior. No act or failure to act on the part of the Executive shall be
considered willful unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the action or omission was in the
best interest of the Company. The Company shall have the burden of proving cause
by clear and convincing evidence.
b. Change in Control.
(i) Definition. For purposes of this Agreement, a
"Change in Control" shall mean the occurrence of any of the following
events with respect to HUBCO:
(A) The acquisition of the beneficial ownership,
as defined under the Exchange Act, of 25% or more of HUBCO's voting
securities or all or substantially all of the assets of HUBCO by a
single person or entity or group of affiliated persons or entities;
(B) The merger, consolidation or combination of
HUBCO with an unaffiliated corporation in which the directors of
HUBCO as applicable immediately prior to such merger, consolidation
or combination constitute less than a majority of the board of
directors of the surviving, new or
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combined entity unless one-half of the board of directors of the
surviving, new or combined entity were directors of HUBCO
immediately prior to such transaction and HUBCO's chief executive
officer immediately prior to such transaction continues as the chief
executive officer of the surviving, new or combined entity; or
(C) During any period of two consecutive calendar
years, individuals who at the beginning of such period constitute
the Board of Directors of HUBCO cease for any reason to constitute
at least two-thirds thereof, unless the election or nomination for
the election by HUBCO's stockholders of each new director was
approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period;
or
(D) The transfer of all or substantially all of
HUBCO's assets or all or substantially all of the assets of its
primary subsidiaries.
(ii) Time of Change in Control. For purposes of this
Agreement, a Change in Control of HUBCO shall be deemed to occur on the
earlier of:
(A) The first date on which a single person or
entity or group of affiliated persons or entities acquire the
beneficial ownership of 25% or more of HUBCO's voting securities; or
(B) Forty-five (45) days prior to the date HUBCO
enters into a definitive agreement to merge, consolidate, combine or
sell the assets of HUBCO; provided however, that for purposes of any
resignation by the
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Executive, the Change in Control shall not be deemed to occur until
the consummation of the merger, consolidation, combination or sale,
as the case may be, except if this Agreement is not expressly
assumed in writing by the acquiring company, then the Change in
Control shall be deemed to occur the day before the consummation;
and further provided that if any definitive agreement to merge,
consolidate, combine or sell assets is terminated without
consummation of the acquisition, then no Change in Control shall
have been deemed to have occurred; or
(C) The date upon which the election of directors
occurs qualifying under Section b(i)(C) above.
c. Contract Period. "Contract Period" shall mean the period
commencing the day immediately preceding a Change in Control and ending on the
earlier of (i) two years after the consummation of any event giving rise to the
Change in Control or (ii) the date the Executive would attain age 65.
d. Exchange Act. "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
e. Good Reason. When used with reference to a voluntary
termination by Executive of her employment with the Company, "Good Reason" shall
mean any of the following, if taken without Executive's express written consent:
(i) The assignment to Executive of any duties
inconsistent with, or the reduction of authority, powers or
responsibilities associated with, Executive's position,
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title, duties, responsibilities and status with the Company immediately
prior to a Change in Control or any removal of Executive from, or any
failure to re-elect Executive to, any position(s) or office(s) Executive
held immediately prior to such Change in Control. A change in position,
title, duties, responsibilities and status or position(s) or office(s)
resulting from a Change in Control or from a merger or consolidation of
the Company into or with another bank or company shall not meet the
requirements of this paragraph if, and only if, the Executive's new title,
duties and responsibilities are accepted in writing by the Executive, in
the sole discretion of the Executive.
(ii) A reduction by the Company in Executive's annual
base compensation as in effect immediately prior to a Change in Control or
the failure to award Executive any annual increases in accordance
herewith;
(iii) A failure by the Company to continue any bonus
plan in which Executive participated immediately prior to the Change in
Control or a failure by the Company to continue Executive as a participant
in such plan on at least the same basis as Executive participated in such
plan prior to the Change in Control;
(iv) The Company's transfer of Executive to another
geographic location outside of New Jersey or more than 25 miles from her
present office location, except for required travel on Company's business
to an extent substantially consistent with Executive's business travel
obligations immediately prior to such Change in Control;
(v) The failure by the Company to continue in effect any
employee benefit plan, program or arrangement (including, without
limitation the Company's 401(k)
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plan, the Company's pension plan, life insurance plan, health and accident
plan, disability plan, or stock option plan) in which Executive is
participating immediately prior to a Change in Control (except that the
Company may institute or continue plans, programs or arrangements
providing Executive with substantially similar benefits); the taking of
any action by the Company which would adversely affect Executive's
participation in or materially reduce Executive's benefits under, any of
such plans, programs or arrangements; the failure to continue, or the
taking of any action which would deprive Executive, of any material fringe
benefit enjoyed by Executive immediately prior to such Change in Control;
or the failure by the Company to provide Executive with the number of paid
vacation days to which Executive was entitled immediately prior to such
Change in Control;
(vi) The failure by the Company to obtain an assumption
in writing of the obligations of the Company to perform this Agreement by
any successor to the Company and to provide such assumption to the
Executive prior to any Change in Control; or
(vii) Any purported termination of Executive's
employment by the Company during the term of this Agreement which is not
effected pursuant to all of the requirements of this Agreement; and, for
purposes of this Agreement, no such purported termination shall be
effective.
f. Voting Securities. "Voting securities" means HUBCO's common
stock, together with any preferred stock entitled to vote generally in elections
for directors or other matters. With respect to preferred stock, in determining
the percentage of beneficial ownership of
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voting securities, the number of votes to which the holder is entitled in the
election of directors with the common holders, and not the number of shares,
shall be the basis of the calculation.
2. Employment. During the Contract Period, the Company hereby agrees
to employ the Executive, and the Executive hereby accepts employment upon the
terms and conditions set forth herein.
3. Position. During the Contract Period the Executive shall be
employed as the Executive Vice President and Corporate Secretary of HUBCO and
the Bank, or such other corporate or divisional profit center as shall then be
the principal successor to the business, assets and properties of the Company,
with substantially the same titles and the same duties and responsibilities as
before the Change in Control. The Executive shall devote her full time and
attention to the business of the Company, and shall not during the Contract
Period be engaged in any other business activity. This paragraph shall not be
construed as preventing the Executive from managing any of her investments which
do not require any substantial service on her part in the operation of such
investments.
4. Cash Compensation. The Company shall pay to the Executive
compensation for her services during the Contract Period as follows:
a. Annual Salary. An annual salary equal to the annual salary
in effect as of the Change in Control. The annual salary shall be payable in
installments in accordance with the Company's usual payroll method. The annual
salary shall not be reduced during the Contract Period.
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b. Annual Bonus. An annual cash bonus equal to the highest of
the bonuses paid to the Executive for the three fiscal years prior to the Change
in Control. The bonus shall be payable at the time and in the manner which the
Company paid such bonuses prior to the Change in Control.
c. Annual Review. The Board of Directors of the Company during
the Contract Period shall review annually, or at more frequent intervals which
the Board determines is appropriate, the Executive's compensation and shall
award her additional compensation to reflect the Executive's performance, the
performance of the Company and competitive compensation levels, all as
determined in the discretion of the Board of Directors.
5. Expenses and Fringe Benefits.
a. Expenses. During the Contract Period, the Executive shall
be entitled to reimbursement for all business expenses incurred by her with
respect to the business of the Company in the same manner and to the same extent
as such expenses were previously reimbursed to her immediately prior to the
Change in Control.
b. Supplemental Executive Retirement Plan. During the Contract
Period, if the Executive was entitled to benefits under the Company's
Supplemental Executive Retirement Plan ("SERP") prior to the Change in Control,
the Executive shall be entitled to continued benefits under the SERP after the
Change in Control and such SERP may not be modified to reduce or eliminate the
accrual of or vesting of such benefits during the Contract Period.
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c. Club Membership and Automobile. If prior to the Change in
Control, the Executive was entitled to membership in a country club and/or the
use of an automobile, he shall be entitled to the same membership and/or use of
an automobile at least comparable to the automobile provided to her prior to the
Change in Control during the Contract Period.
d. Other Benefits. The Executive also shall be entitled to
vacations and sick days, in accordance with the practices and procedures of the
Company, as such existed immediately prior to the Change in Control. During the
Contract Period, the Executive also shall be entitled to hospital, health,
medical and life insurance, and any other benefits enjoyed, from time to time,
by senior officers of the Company, all upon terms as favorable as those enjoyed
by other senior officers of the Company. Notwithstanding anything in this
paragraph 5(d) to the contrary, if the Company adopts any change in the benefits
provided for senior officers of the Company, and such policy is uniformly
applied to all officers of the Company (and any successor or acquirer of the
Company, if any), including the chief executive officer of such entities, then
no such change shall be deemed to be contrary to this paragraph.
6. Termination for Cause. The Company shall have the right to
terminate the Executive for Cause, upon written notice to her of the termination
which notice shall specify the reasons for the termination and provide, if
practical, an opportunity for the Executive to cure such Cause. In the event of
a valid termination for Cause the Executive shall not be entitled to any further
benefits under this Agreement.
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7. Disability. During the Contract Period if the Executive becomes
permanently disabled, or is unable to perform her duties hereunder for 4
consecutive months in any 12 month period, the Company may terminate the
employment of the Executive. In such event, the Executive shall be entitled to
the payments and benefits provided under Section 9 hereof as if the Executive
had been terminated hereunder without Cause upon such date.
8. Death Benefits. Upon the Executive's death during the Contract
Period, the Executive shall be deemed to terminate without cause as of the date
of death and her estate shall be entitled to the payments and benefits provided
under Section 9 hereof as if the Executive had been terminated without cause
upon such date.
9. Termination Without Cause or Resignation.
a. Termination Without Cause. The Company may terminate the
Executive without Cause during the Contract Period by written notice to the
Executive.
b. Resignation For Good Reason. The Executive may resign for
Good Reason during the Contract Period upon prior written notice to the Company.
c. Payments and Benefits. If the Company terminates the
Executive's employment during the Contract Period without Cause or if the
Executive resigns for Good Reason under paragraph 9(b), the Company shall, as
promptly as practical but in no event later than 10 business days after the
termination of employment pay the Executive a lump sum (the "Lump Sum") equal to
3.0 times the sum of (i) the annual salary paid to the Executive immediately
prior to the Change in Control plus (ii) the highest annual incentive bonus paid
to the Executive for any fiscal year during each of the three fiscal years
immediately prior to the Change in Control. For
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these purposes, any deferral of salary or bonus by the Executive under the
Company's 401(k) plan or otherwise shall be included in salary and bonus. The
Company shall at the time of such payment also make any Gross-Up Payment due
under Section 10 hereof for the calendar year of the termination. The Company
also shall continue to provide the Executive, her spouse and eligible dependents
for a period of three years following the termination of employment, with
health, hospitalization and medical insurance, as were provided at the time of
the Change in Control, at the Company's cost, subject only to the responsibility
of the Executive to continue to pay a portion of the premium, as well as co-pays
or deductibles in such amounts as were paid by the Executive prior to the
termination.
d. No Duty to Mitigate. The Executive shall not have a duty to
mitigate the damages suffered by her in connection with the termination by the
Company of her employment without Cause under paragraph 9(a) or a resignation
under paragraph 9(b) during the Contract Period. The Company shall not be
entitled to offset from the payment due to the Executive hereunder any amounts
due from or claims against the Executive.
e. Legal Fees and Expenses. If the Company fails to pay the
Executive the Lump Sum due her under this Agreement or to provide her with the
health, hospitalization and medical insurance benefits due under this Agreement
or the Gross-Up Payment due under Section 10 hereof, the Executive, after giving
10 days' written notice to the Company identifying the Company's failure, shall
be entitled to recover from the Company, monthly upon demand, any and all of her
legal fees and other expenses incurred in connection with her enforcement
against the Company of the terms of this Agreement.
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10. Gross Up for Taxes.
a. Additional Payments. If, for any taxable year, Executive
shall be liable for the payment of an excise tax under Section 4999 or other
substitute or similar tax assessment (the "Excise Tax") of the Internal Revenue
Code of 1986, as amended (the "Code"), including the corresponding provisions of
any succeeding law, with respect to any payments under this Section 10 or any
payments and/or benefits under this Agreement or under any benefit plan of the
Company applicable to Executive individually or generally to executives or
employees of the Company, then, notwithstanding any other provisions of this
Agreement, the Company shall pay to the Executive an additional amount (the
"Gross-Up Payment") such that the net amount retained by the Executive, after
deduction of any Excise Tax on such payments and benefits and any federal, state
and local income tax and Excise Tax upon payments provided for in this Section
10, shall be equal to the payments due to the Executive hereunder and the
payments and/or benefits due to the Executive under any benefit plan of the
Company. Each Gross-Up Payment shall be made by domestic cashier's or
treasurer's check, certified check or wire transfer, upon the later of (i) five
(5) days after the date the Executive notifies the Company of its need to make
such Gross-Up Payment, or (ii) the date of any payment causing the liability for
such Excise Tax. The amount of any Gross-Up Payment under this section shall be
computed by a nationally recognized certified public accounting firm designated
jointly by the Company and the Executive. The cost of such services by the
accounting firm shall be paid by the Company. If the Company and the Executive
are unable to designate jointly the accounting firm, then the firm shall be the
accounting firm used by the Company immediately prior to the Change in Control.
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b. IRS Disputed Claims. The Executive shall notify the company
in writing of any claim by the Internal Revenue Service ("IRS") that, if
successful, would require the payment by the Company of a Gross-Up Payment in
addition to that payment previously paid by the Company pursuant to this
section. Such notification shall be given an soon as practicable but no later
than fifteen (15) business days after the Executive is informed in writing of
such claim and shall apprise the Company of the nature of such claim, the date
on which such claim is requested to be paid, and attach a copy of the IRS
notice. The Executive shall not pay such claim prior to the expiration of the
thirty (30) day period following the date on which the Executive gives such
notice to the Company (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Company notifies the
Executive in writing prior to the expiration of such period that it desires to
contest such claim, the Executive shall:
(i) Give the Company any information reasonably
requested by the Company relating to such claim;
(ii) Take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to
time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Company;
(iii) Cooperate with the Company in good faith in order
effectively to contest such claim; and
(iv) Permit the Company to participate in any
proceedings relating to such claim;
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provided, however that the Company shall pay directly all costs and expenses
(including legal and accounting fees, as well as other expenses and any
additional interest and penalties) incurred by the Executive and the Company in
connection with an IRS levy, contest or claim and provided further that the
Company shall not take any action or fail to make any Gross-Up Payment so as to
cause the assessment of any IRS levy and the Company shall cause any levy so
assessed to be immediately released by payment of the Gross-Up Amount, together
with all costs, interest and penalties.
11. Non-Disclosure of Confidential Information.
a. Non-Disclosure of Confidential Information. Except n the
course of her employment with the Company and in the pursuit of the business of
the Company or any of its subsidiaries or affiliates, the Executive shall not,
at any time during or following the Contract Period, disclose or use, any
confidential information or proprietary data of the Company or any of its
subsidiaries or affiliates. The Executive agrees that, among other things,
information concerning the identity of and the Company's relations with its
customers is confidential information.
b. Specific Performance. Executive agrees that the Company
does not have an adequate remedy at law for the breach of this section and
agrees that he shall be subject to injunctive relief and equitable remedies as a
result of the breach of this section. The invalidity or unenforceability of any
provision of this Agreement shall not affect the force and effect of the
remaining valid portions.
c. Survival. This section shall survive the termination of the
Executive's employment hereunder and the expiration of this Agreement.
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12. Term and Effect Prior to Change in Control.
a. Term. Except as otherwise provided for hereunder, this
Agreement shall commence on the date hereof and shall remain in effect for a
period of 3 years from the date hereof (the "Initial Term") or until the end of
the Contract Period, whichever is later. The Initial Term shall be automatically
extended for an additional one year period on the anniversary date hereof (so
that the Initial Term is always 3 years) unless on or before such date the Board
of Directors of HUBCO by resolution passed by a majority vote of the Directors
then in office, votes not to extend the Initial Term any further. The Company
shall promptly advise the Executive in writing of the passage of such resolution
and if it fails to do so, the passage of such resolution shall be ineffective.
b. No Effect Prior to Change in Control. Prior to a Change in
Control, this Agreement shall not affect any rights of the Company to terminate
the Executive or the benefits payable to the Executive. The rights and
liabilities provided hereunder shall only become effective upon a Change in
Control. If the employment of the Executive by the Company is ended for any
reason whatsoever prior to a Change in Control, this Agreement shall thereafter
be of no further force and effect.
13. Compensation and Benefits Provided Not in Derogation of Other
Benefits. Anything to the contrary herein contained notwithstanding, the payment
or obligation to pay any monies, or granting of any benefits, rights or
privileges to Executive as provided in this Agreement shall not be in lieu or
derogation of the rights and privileges that the Executive now has or will have
under any plans or programs of or agreements with the Company, except that the
Executive shall
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not be entitled to the benefits of any other plan or program of the Company or
agreement with the Company expressly providing for severance or termination pay
or post-employment medical benefits. In furtherance of the foregoing, this
Agreement is not in derogation of, but rather supplemental to, the rights and
benefits of the Executive, if any, under any stock option plan, restricted stock
plan, pension plan, 401(k) plan and SERP.
14. Notice. During the Contract Period, any notice of termination of
the employment of the Executive by the Company or by the Executive to the
Company shall be communicated by written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a dated notice which shall (i) indicate the specific termination provision
in this Agreement relied upon; (ii) set forth, if necessary, in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the employment of the Executive or from the Company under the provision so
indicated; (iii) specify a date of termination, which shall be not less than two
weeks nor more than six weeks after such Notice of Termination is given, except
in the case of termination of employment by the Company of the Executive for
Cause pursuant to Section 6 hereof, in which case the Notice of Termination may
specify a date of termination as of the date such Notice of Termination is
given; and (iv) be given by personal delivery or, if the individual is not
personally available, by certified mail to the last known address of the
individual. Upon the death of the Executive, no Notice of Termination need be
given.
15. Payroll and Withholding Taxes. All payments to be made or
benefits to be provided hereunder by the Company shall be subject to applicable
federal and state payroll or withholding taxes. Any Gross-Up Payment shall be
made in the form of withholding taxes and
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shall not be paid to the Executive, but shall be sent to the IRS in the ordinary
course of the Company's payroll withholding.
16. Miscellaneous. This Agreement is the joint and several
obligation of HUBCO and the Bank. The terms of this Agreement shall be governed
by, and interpreted and construed in accordance with, the laws of New Jersey.
This Agreement supersedes all prior agreements and understandings with respect
to the matters covered hereby, including expressly the Change in Control
Agreement among HUBCO and the Bank and the Executive, dated November 13, 1990,
as amended January 1, 1995. The amendment or termination of this Agreement may
be made only in a writing executed by the Company and the Executive, and no
amendment or termination of this Agreement shall be effective unless and until
made in such a writing. This Agreement shall be binding upon any successor
(whether direct or indirect, by purchase, merger, consolidation, liquidation or
otherwise) to all or substantially all of the assets of the Company. This
Agreement is personal to the Executive and the Executive may not assign any of
her rights or duties hereunder but this Agreement shall be enforceable by the
Executive's legal representatives, executors or administrators. This Agreement
may be executed in two or more counterparts, each of which shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
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IN WITNESS WHEREOF, HUBCO, Inc. and Xxxxxx United Bank each have
caused this Agreement to be signed by their duly authorized representatives
pursuant to the authority of their Boards of Directors, and the Executive has
personally executed this Agreement, all as of the day and year first written
above.
ATTEST: HUBCO, INC.
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx F.X. Xxxxx
-------------------------- --------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx F.X. Xxxxx,
Chairman, President & CEO Chairman of the Compensation Committee
ATTEST: XXXXXX UNITED BANK
/s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx F.X. Xxxxx
-------------------------- --------------------------
Xxxxxxx X. Xxxxxxx Xxxxxxx F.X. Xxxxx,
Chairman, President & CEO Chairman of the Compensation Committee
WITNESS:
/s/ Xxxxxxx X. Xxxxxxx /s/ X. Xxxx Van Borkulo-Xxxxx
-------------------------- ------------------------------
Xxxxxxx X. Xxxxxxx X. Xxxx Van Borkulo-Xxxxx
