CHANGE IN CONTROL,
SEVERANCE AND EMPLOYMENT AGREEMENT
FOR XXXXXX X. XXXXXX
(DOUBLE TRIGGER; CUTBACK)
THIS CHANGE IN CONTROL SEVERANCE AND EMPLOYMENT AGREEMENT (the
"Agreement"), is made this 30th day of January, 1998, between HUBCO, Inc. and
Xxxxxx United Bank (collectively "HUBCO"or the ACompany@), a New Jersey
corporation which maintains its principal office at 0000 XxxXxxxxx Xxxxxxxxx.,
Xxxxxx, Xxx Xxxxxx and Xxxxxx X. Xxxxxx (the "Executive").
BACKGROUND
WHEREAS, the Executive is presently employed by HUBCO as Executive Vice
President and President of the Shoppers Charge Division of Xxxxxx United Bank,
and;
WHEREAS, the Board of Directors of HUBCO believes that the future services
of the Executive are of great value to HUBCO and that it is important for the
growth and development of HUBCO that the Executive continue in his position,
and;
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 Board
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be able to rely upon the Executive to continue in his position, and that they be
able to receive and rely upon his 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, and;
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 continued employment
or 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 his 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 his duties for the
Company under this Agreement after at least one warning in writing from the
Company's Board of Directors identifying specifically 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)
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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 combined entity unless
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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 Executive,
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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 his 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; 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 unless the elimination of bonus programs is applied
consistently throughout the Surviving Company following a Change in
Control;
(iv) The Company's transfer of Executive to a geographic location
other than the corporate headquarters of the Company or the main office of
the Bank or more than 25 miles from his present office location, except
for required travel on Company's
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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) 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,
unless the elimination of such programs is applied consistently throughout
the Surviving Company following 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
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(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. AVoting 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 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 and prior to a Change in Control
the Executive shall be employed as an Executive Vice President and President of
the Shoppers Division of the Company. Upon a Change in Control as herein
defined, the Executive's position shall be governed by his title, position,
status, duties and authority as in effect immediately prior to the Change in
Control. The Executive shall devote his 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 investments of his which do not require any
substantial service on his part in the operation of such investments.
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4. Cash Compensation. The Company shall pay to the Executive compensation
for his 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.
b. Annual Bonus. An annual cash bonus equal to higher of a) the
highest bonus paid to the Executive during the three fiscal years prior to
the Change in Control or b) the highest full year bonus to which the
Executive would have been entitled during 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 Company during the Contract Period shall
review annually, or at more frequent intervals which the Company
determines is appropriate, the Executive's compensation and shall award
his 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 Company.
5. Expenses and Fringe Benefits.
a. Expenses. During the Contract Period, the Executive shall be
entitled to reimbursement for all business expenses incurred by him with
respect to the business of the
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Company in the same manner and to the same extent as such expenses were
previously reimbursed to him immediately prior to the Change in Control.
b. 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 him prior to the Change in Control during the Contract Period.
c. 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(c) 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 him 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 his 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 his 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 ALump
Sum@) equal to 2.0 times the sum of (i) the annual salary of the Executive
immediately prior to the Change in Control and the higher of, (ii) the
highest bonus paid to the Executive during the three
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fiscal years prior to the Change in Control or, (iii) the highest full
year bonus to which the Executive would have been entitled during the
three fiscal years prior to the Change in Control. For these purposes, any
deferral of salary by the Executive under the Company's 401(k) plan or
otherwise shall be included in salary. The Company also shall continue to
provide the Executive, his spouse and eligible dependents for a period of
one year 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. The Lump Sum and the benefits
provided hereunder shall be subject to Section 10 hereof.
d. No Duty to Mitigate. The Executive shall not have a duty to
mitigate the damages suffered by him in connection with the termination by
the Company of his 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 him under this Agreement or to provide him with
the health, hospitalization and medical insurance benefits due under this
Agreement, 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 his legal fees and
other expenses incurred in connection with his enforcement against the
Company of the terms of this Agreement.
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10. Certain Reduction of Payments and Benefits.
a. Reduction. Anything in this Agreement to the contrary
notwithstanding, prior to the payment of the Lump Sum or the benefits
payable hereunder in connection with the Executive's termination of
employment, the certified public accountants for the Company immediately
prior to a Change in Control (the ACertified Public Accountants@), shall
determine as promptly as practical and in any event within 20 business
days following the termination of employment of Executive whether any
payment or distribution by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise) (a APayment@) would
more likely than not be nondeductible by HUBCO for Federal income purposes
because of Section 280G of the Internal Revenue Code of 1986, as amended
(the ACode@), and if it is then the aggregate present value of amounts
payable or distributable to or for the benefit of the Executive pursuant
to this Agreement in connection with the Executive's termination of
employment (such payments or distributions pursuant to this Agreement are
hereinafter referred to as AAgreement Payments@) shall be reduced (but not
below zero) to the Reduced Amount. For purposes of this paragraph, the
AReduced Amount@ shall be an amount expressed in present value which
maximizes the aggregate present value of Agreement Payments without
causing any Payment to be nondeductible by HUBCO because of said Section
280G of the Code.
b. Executive Selection of Reductions. If under paragraph (a) of this
section the Certified Public Accountants determine that any payment would
more likely than not be
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nondeductible by HUBCO because of Section 280G of the Code, HUBCO shall
promptly give the Executive notice to that effect and a copy of the
detailed calculation thereof and of the Reduced Amount, and the Executive
may then elect, in his sole discretion, which and how much of the
Agreement Payments shall be eliminated or reduced (as long as after such
election the aggregate present value of the Agreement Payments equals the
Reduced Amount), and shall advise HUBCO in writing of his election within
5 business days of his receipt of notice. If no such election is made by
the Executive within such 5-day period, HUBCO may elect which and how much
of the Agreement Payments shall be eliminated or reduced (as long as after
such election the aggregate present value of the Agreement Payments equals
the Reduced Amount) and shall notify the Executive promptly of such
election. For purposes of this paragraph, present value shall be
determined in accordance with Section 280G(d)(4) of the Code. All
determinations made by the Certified Public Accountants shall be binding
upon HUBCO and the Executive and shall be made as promptly as practical
but in any event within 20 days of a termination of employment of the
Executive. HUBCO may suspend for a period of up to 30 days after
termination of employment the payment of the Lump Sum and any other
benefits due to the Executive under this Agreement until the Certified
Public Accountants finish the determination and the Executive (or HUBCO,
as the case may be) elect how to reduce the Agreement Payments, if
necessary. As promptly as practicable following such determination and the
elections hereunder, the Company shall pay to or distribute to or for the
benefit of the Executive such amounts as are then due to the Executive
under this Agreement and shall promptly pay to or distribute for the
benefit of the Executive in the future such amounts as they become due to
the Executive under this Agreement.
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c. Overpayments and Underpayments. As a result of the uncertainty in
the application of Section 280G of the Code, it is possible that Agreement
Payments may have been made by the Company which should not have been made
(AOverpayment@) or that additional Agreement Payments which will have not
been made by HUBCO could have been made (AUnderpayment@), in each case,
consistent with the calculation of the Reduced Amount hereunder. In the
event that the Certified Public Accountants, based upon the assertion of a
deficiency by the Internal Revenue Service against HUBCO or Executive
which said Certified Public Accountants believe has a high probability of
success, determines that an Overpayment has been made, any such
Overpayment shall be treated for all purposes as a loan to Executive which
Executive shall repay to HUBCO together with interest at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Code; provided,
however, that no amount shall be payable by Executive to HUBCO in and to
the extent such payment would not reduce the amount which is subject to
taxation under Section 4999 of the Code. In the event that the Certified
Public Accountants, based upon controlling precedent, determine that an
Underpayment has occurred, any such Underpayment shall be promptly paid by
the Company to or for the benefit of the Executive together with interest
at the applicable Federal rate provided for in Section 7872(f)(2)(A) of
the Code.
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11. Non-Disclosure of Confidential Information.
a. Non-Disclosure of Confidential Information. Except in the course
of his 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. No violation of this Section 11 shall
entitle the Company to withhold any payment or benefit due the Executive
hereunder.
c. Survival. This section shall survive the termination of the
Executive's employment hereunder and the expiration of this Agreement.
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 two (2) 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 two (2) years)
unless on or before such date the Board of
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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 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.
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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
four 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 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. 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. The amendment
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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 his 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.
IN WITNESS WHEREOF, HUBCO, Inc. has caused this Agreement to be signed by
its duly authorized representatives pursuant to the authority of their Board of
Directors, and the Executive has personally executed this Agreement, all as of
the day and year first written above. ATTEST: HUBCO, INC.
By: X. XXXX VAN BORKULO-XXXXX By: XXXXXXX X. XXXXXXX
------------------------------- ---------------------------------------
X. Xxxx Van Borkulo-Xxxxx, Esq. Xxxxxxx X. Xxxxxxx,
Corporate Secretary Chairman, President and Chief Executive
Officer
WITNESS:
XXXXX X. XXXXXX XXXXXX X. XXXXXX
---------------------------------- ---------------------------------------
Xxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
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