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 2nd day of January, 1998, between HUBCO, Inc.
("HUBCO" or the "Company"), 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 Chief Financial Officer;
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;
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
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;
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) conviction of a crime (other than a traffic violation),
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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 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
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(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, 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
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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, 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
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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 more
than 25 miles from his present office location, except for required travel
on Company 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
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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 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.
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3. POSITION. During the Contract Period the Executive shall be employed as
Executive Vice President and Chief Financial Officer 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.
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
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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 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.
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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.
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
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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 1.0 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
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
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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.
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
"Certified 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
"Payment") 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 "Code"), 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 "Agreement Payments") shall be reduced (but not below zero) to the Reduced
Amount. For purposes of this paragraph, the "Reduced 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.
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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 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
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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.
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
("Overpayment") or that additional Agreement Payments which will have not been
made by HUBCO could have been made ("Underpayment"), 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 one (1)
year 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 one (1) year) unless on or before such date the Board of
Directors of HUBCO by
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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.
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
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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 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
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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.
/s/ X. XXXX VAN BORKULO-XXXXX By: /s/ XXXXXXX X. XXXXXXX
----------------------------------- ----------------------------------
X. Xxxx Van Borkulo-Xxxxx, Esq. Xxxxxxx X. Xxxxxxx,
Corporate Secretary Chairman, President and
Chief Executive Officer
WITNESS:
/s/ XXXXXX X. XXXXXX
----------------------------------- ----------------------------------
Xxxxxx X. Xxxxxx
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