Exhibit 10.2.2


 


EMPLOYMENT
AGREEMENT


 


This EMPLOYMENT
AGREEMENT made and entered into on the 19th day of December, 2008,
by and between Enterprise Bancorp, Inc.,
a Massachusetts corporation with a principal office at 222 Merrimack Street,
Lowell, Massachusetts 01852  (“Company”)  and its wholly owned
subsidiary, Enterprise Bank and Trust Company,
a Massachusetts trust company with its main office at 222 Merrimack Street,
Lowell, Massachusetts  01852 (“Bank”)
(Bank and Company being collectively referred to herein as “Employer”), and Richard W. Main, who resides at 1
Overlook Drive, Chelmsford, Massachusetts 
01824 (the “Executive”), amends and restates the Employment Agreement
dated as of January 1, 2004, as amended. 
The provisions of this Restatement are effective as of April 1,
2008 (the “Effective Date”).


 


W  I  T  N  E
S  S  E  T  H :


 


WHEREAS, Executive has been employed by Employer for
a substantial length of time and the services of Executive, his experience, and
his knowledge of the affairs of Employer are of great value to Employer and
Employer desires to continue to employ Executive as the President of the
Company and President and Chief Lending Officer of the Bank under the terms and
conditions set forth below; and


 


WHEREAS, Executive
desires to continue to be employed by Employer as President of Company and
President and Chief Lending Officer of Bank upon the terms and conditions
hereinafter set forth;


 


NOW, THEREFORE, in consideration of the premises and
the mutual covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, and
intending to be legally bound hereby, it is hereby agreed as follows:


 


1. Employment; Position; Term.  Employer hereby employs Executive, and
Executive agrees to be employed as President of Company and President and Chief
Lending Officer of Bank for a term commencing as of the Effective Date and
ending on the second anniversary of the Effective Date, April 1, 2010 (“Term of Employment”); provided, however, that,
commencing on the date one year after the Effective Date, and on each annual
anniversary of such date (such date and each annual anniversary thereof, the “Renewal
Date”), unless previously terminated, the Term of Employment shall be
automatically extended so as to terminate two years from such Renewal Date,
unless, at least 60 days prior to the Renewal Date, either Employer or
Executive gives notice to the other that the Term of Employment shall not be so
extended (“Notice of Non-Renewal”).  By
way of example, on April 1, 2009, the Term of Employment shall be extended
from a term ending on April 1, 2010 
to a term ending on April 1,


 


GALLAGHER &
CAVANAUGH, LLP, 100 FOOT OF JOHN STREET, LOWELL, MASSACHUSETTS 01852


 

















 


2011. Upon the timely delivery by either party of a Notice of
Non-Renewal, the Term of Employment shall no longer be subject to the automatic
extension provided for herein, but rather shall expire upon the conclusion of
the then Term of Employment (“Expiration of Term Due to Non-Renewal”).  By way of example, if a Notice of Non-Renewal
were first delivered on November 1, 2009, the Term of Employment would
expire on April 1, 2011. A Notice of Non-Renewal may not be delivered by
Employer during the two year period immediately following a Change in Control
event (as hereinafter defined).  Executive’s service as a director of Employer and/or any Affiliate (as
hereafter defined) shall be without any further compensation in addition to
that set forth herein.


 


2. Duties;
Place of Employment; Time and Efforts.


 


2.1          Duties.  During the Term of
Employment, Executive shall exercise and assume such duties, responsibilities
and authorities as are provided in the bylaws of Employer with respect to
holding the office of President of Company and President and Chief Lending
Officer of Bank.  Notwithstanding the
above, Executive shall not be required to perform any duties and
responsibilities which would result in Employer’s or Executive’s noncompliance
with, or any other violation of, any applicable law, regulation, regulatory
policy or other regulatory requirement.


 


2.2          Place of Employment.  Executive shall render his services primarily
at Employer’s office in Lowell, Massachusetts. Executive shall travel as
reasonably required for the performance of his duties hereunder.


 


2.3          Time and Efforts.  During the Term of Employment, Executive
shall, except for periods of absence occasioned by illness, vacation, and any
other reasonable leaves of absence in accordance with applicable policies,
programs, procedures or practices of Employer, diligently and conscientiously
devote his full business time and attention and best efforts, business skills,
ability and fidelity to the business of Employer and the discharge of his
duties hereunder; provided, however, that Executive may, so long
as such activities (individually and collectively) do not conflict or
materially interfere with the performance of Executive’s duties hereunder (a) continue
to serve on any boards and committees on which Executive is presently serving
or in a position which Executive currently holds provided same has been
disclosed to Employer on a schedule attached to this Agreement; (b) manage
his personal financial affairs, including his personal passive
investments;  (c) serve on boards of
directors or trustees or committees of civic or charitable organizations or
trade associations, and (d) with the written consent of the Board of
Directors, as evidenced by a formally adopted vote or resolution and subject to
such terms and conditions specified in any such vote or resolution, serve as a
non-employee director, trustee, manager or partner of any business entity.


 


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3. Compensation
and Other Benefits.


 


3.1          Base Salary.
In consideration of the services of Executive, Employer shall pay to Executive
a base salary of $193,919.96 per annum, together with such increases as
the Board of Directors of Employer may from time to time approve in its sole
discretion (but such shall be reviewed by the Board at least annually), in
equal installments in accordance with the customary payroll practices of
Employer (“Base Salary”).


 


3.2          Annual Cash Bonus.
During the Term of Employment, Executive shall be entitled to participate in an
equitable manner with other executive officers of Employer in such
discretionary bonus payment or awards as may be authorized, declared and/or paid by the Board of Directors to Employer’s
executive employees.  Nothing in this
Agreement, however, shall be construed to require Employer to establish, maintain
or continue any bonus plan, program or arrangement.  Except as otherwise expressly provided by
their terms, such bonus plan, programs or arrangements are subject to
modification or termination by Employer at any time in its sole
discretion.  No other compensation or
additional benefits provided for in this Agreement shall be deemed to be
a substitute for Executive’s right to receive such bonuses if, when and as
declared and paid by the Board of Directors.


 


3.3          Incentive, Retirement, and Savings
Plans.  During the
Term of Employment, Executive shall be
entitled to participate in all incentive, pension, retirement, savings, stock
option and other stock grant and equity compensation plans, as well as all
other nonseverance related benefits, plans and programs, which may be
maintained from time to time by Employer for the benefit of senior executives
and/or other employees of Employer.


 


3.4          Welfare Benefit Plans.  During the Term of Employment, Executive and
his spouse and other eligible dependents shall be entitled to participate in,
and be covered by, all of the health and other welfare benefit plans and
programs that may be maintained from time to time by Employer for the benefit
of senior executives and/or other employees of Employer. In the case of any group
disability plan maintained by Employer, Employer shall provide Executive the
opportunity to pay directly by payroll deduction or otherwise all or any
portion of the premium on any policy or policies providing such coverage.


 


3.5          Expense
Reimbursement. 
During the Term of Employment, Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses, including reasonable business
travel expenses, incurred by Executive in performing his duties and
responsibilities under this Agreement, in accordance
with the policies, programs, procedures and practices of Employer as in effect
at the time the expense was incurred. To the extent necessary to avoid
characterizing any reimbursement to Executive as deferred compensation under Section 409A
of the Internal Revenue Code of 1986, as amended (“Code”) and the United States
Treasury regulations then in effect (“Treas. Regs.”), such 


 


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reimbursements shall be paid on or before March 1 following the
close of the calendar year in which the expense was incurred by Executive.  Amounts which are not submitted within the
required timeframe shall not be eligible for reimbursement hereunder.


 


3.6          Fringe Benefits; Automobile.  During the Term of
Employment, Executive shall be eligible to benefit from such fringe benefits
and perquisites, in accordance with the policies, programs, procedures and
practices of Employer, as may be in effect and provided from time to time to
senior executives and/or other employees of Employer, and shall be entitled to
the use of an automobile, of a type commensurate with Executive’s office and
standing, at Employer’s expense.


 


3.7          Vacation.  Executive shall earn and accrue thirty-one
(31) days of vacation for each twelve month period served during the Term of
Employment.  Executive shall be entitled
to the continuation of his Base Salary and benefits during vacations to be
scheduled at the reasonable convenience of the parties hereto.  Vacation will be earned ratably over the
course of each such twelve month period and shall be used in accordance with
Employer’s policies.


 


3.8          Salary Continuation Agreement.  The parties acknowledge that Executive and
Bank are parties to a Salary Continuation Agreement dated as of July 15,
2005.  Each of the Employer and Executive
agrees to fulfill its obligations under such Salary Continuation Agreement in
accordance with the terms thereof.


 


4. Termination. Unless
Executive’s employment is terminated pursuant to this Section 4, Employer
will continue to employ Executive and Executive will continue to serve Employer
throughout the Term of Employment. Termination
of Executive’s employment will constitute an automatic termination of all other
positions held by Executive including service as a director, unless otherwise
requested by Employer.


 


4.1          Expiration of the Term Due to
Non-Renewal.  Upon
Expiration of Term Due to Non-Renewal, Executive’s employment with Employer
will be terminated (herein “date of termination”) without further action by
Executive or Employer and Executive will be entitled to receive the following:


 


(a)           earned
and accrued but previously unpaid Base Salary through the date of termination,


 


(b)           payment
in respect of any vacation days accrued but unused through the date of
termination,


 


(c)           reimbursement
of any remaining expense properly incurred in accordance with Employer’s policy
prior to the date of termination and not yet reimbursed by Employer,


 


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(d)           any
bonus actually awarded or earned, but not yet paid as of the date of
termination,  and


 


(e)           any
vested benefits under any insurance policy, pension, retirement, savings, stock
option and other stock grant and equity compensation plans, together with any
other non-severance related compensation and benefits as may be provided in
accordance with the terms and provisions of any other agreements between
Executive and either Company or Bank and any applicable plans, programs,
procedures and practices of Employer.


 


The aggregate benefits payable
pursuant to clauses (a), (b), (c) and (d) are hereafter referred to
as the “Accrued Obligations.”  The vested
benefits referenced in clause (e) are hereafter referred to as the “Additional
Benefits.”


 


4.2          Death. The employment of Executive hereunder shall terminate
immediately upon his death; provided, however, that in the event of death,
the Employer will pay to the beneficiary named on the Designation of
Beneficiary form completed by Executive the following:


 


(a)                                  the
Accrued Obligations,


 


(b)                                 the
Additional Benefits,


 


(c)           a lump sum amount equal to six month’s
of Base Salary at the rate in effect on the date of death, payable within
thirty (30) days of the date of death (“Lump Sum Payment”), and


 


 (d)          continuation, at no cost to Executive’s
spouse and other eligible dependents, of all health and other welfare benefits
provided under Section 3.4 of this Agreement for the benefit of Executive’s
spouse and other eligible dependents for a period commencing on the date of
death and ending, with respect to Executive’s spouse, on the earlier of her
death or remarriage and, with respect to any other eligible dependent of
Executive, the date such dependent is no longer eligible for such coverage in
accordance with the terms of any applicable plan.


 


4.3          Disability.  Employer will have the right to
suspend Executive’s employment hereunder in the event Executive becomes
disabled (“Disability Suspension”), by giving written notice of same to
Executive (“Notice of Disability Suspension”). 
Executive’s Disability Suspension shall become effective upon the 30th
day following the date of the Notice of Disability Suspension (“Disability
Suspension Effective Date”).  For
purposes of this Agreement, disability shall mean (1) Executive is unable
to engage in any substantial gainful activity by reason of any medically
determined physical or mental impairment that can be expected to result in
death or to last for a continuous period of not less than twelve (12) months,
or (2) Executive is, by reason of any medically determinable physical or
mental impairment that can be 


 


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expected to result in death or can be expected to last
for a continuous period of not less than twelve (12) months, receiving income
replacement or disability  benefits for a
period of not less than three (3) months under any group long-term
disability plan or accident and health plan then maintained by Employer.  In the event that Executive returns to
full-time employment with Employer following the Notice of Disability
Suspension but prior to the Disability Suspension Effective Date, the Notice of
Disability Suspension shall be deemed automatically withdrawn.  In any event, the period of Disability
Suspension will end on the earliest to occur of the following (“Disability
Termination Date”):  (A) the date on
which Executive returns to full-time employment with Employer; (B) Executive’s
death, in which event the provisions of Section 4.2 shall govern; or (C) the
termination by either party or the expiration of the Term of Employment, in
each case in accordance with the terms of this Agreement.


 


Employer shall pay to
Executive, as of the Disability Suspension Effective Date, the Accrued
Obligations.  During the period of
Disability Suspension up until the Disability Termination Date Executive shall:


 


(a)           receive
an amount equal, on a per annum basis, to seventy-five percent (75%) of
Executive’s Highest Annual Compensation, as hereafter defined, as determined on
the Disability Suspension Effective Date. 
Such amount shall be paid by Employer, commencing on the first ordinary
payroll payment date following the Disability Suspension Effective Date, in
equal periodic installments in accordance with Employer’s ordinary payroll
practices in effect at the time of such payments are made.  The payments made pursuant to this provision
shall be in addition to any payments or other benefits payable to Executive
under any qualified or nonqualified retirement plans or programs maintained by
Employer but shall be reduced by any payments received by Executive during such
Disability Suspension under any group long-term disability plan maintained by
Employer;


 


(b)           continue
to accrue and participate in all incentive, pension, retirement, savings, stock
option and other stock grant and equity compensation plans, as well as all
other employee benefit plans and programs, which are referenced in Section 3.3;
and


 


(c)           continue
to receive all life, health and other welfare coverage and benefits as set
forth in Section 3.4, including those for the benefit of Executive’s
spouse and other eligible dependents.


 


From and after the
Disability Suspension Effective Date, Employer shall be free to fill Executive’s
positions; provided, however, that if Executive is able
to return to full-time employment with Employer at any time during the period
of Disability Suspension prior to the Disability Termination Date, Executive
shall resume his positions and duties with Employer unless Employer has filled
either of those positions and does not reappoint Executive to both such
positions, in 


 


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which event, Executive may, at his option:


 


(i)            assume
the position(s) and duties that Employer may assign to him at the same
Base Salary as was in effect on the Disability Suspension Effective Date and,
otherwise, on the same terms and conditions as set forth herein; or


 


(ii)           in
the event that the position and duties assigned to him would constitute a
material diminution in his authority, duties or responsibilities or otherwise
constitute Good Reason, as hereinafter defined, Executive may exercise his
right to terminate this Agreement for Good Reason pursuant to Section 4.5.


 


In the event that
Executive refuses to assume the position and duties assigned to him pursuant to
Clause (i) under circumstances that do not constitute Good Reason, such
shall constitute a Voluntary Termination by Executive subject to Section 4.6
below.


 


Notwithstanding any other
provision contained in this Agreement to the contrary, the occurrence of a Disability
Suspension shall not in any way prevent or otherwise limit the parties from
exercising any of their respective rights to terminate the Term of Employment
at any time in accordance with the terms of this Agreement or from delivering
Notice of Non-Renewal pursuant to Section 1.


 


Further, nothing in this Section shall
be deemed as a waiver by Executive of his right to unpaid leave under the
Family and Medical Leave Act of 1993, the Americans with Disabilities Act of
1990, or any analogous provision of state law.


 


4.4          For Cause.  Subject to compliance with the procedure set forth herein, Employer
will have the right to terminate Executive’s employment for Cause. For purposes
of this Agreement, “Cause” means: (i) Executive’s willful and continued
failure to substantially perform his employment duties (other than any such
failure resulting from Executive’s illness or disability, which shall be
subject to the provisions of the preceding Section), or (ii) Executive’s
willfully engaging in conduct (other than conduct related to the operation of
an automobile) which is demonstrably and materially injurious to Employer,
monetarily or otherwise; provided, however, that no act or failure to
act, on the part of Executive shall be deemed “willful” unless done, or omitted
to be done, by Executive not in good faith and without reasonable belief that
Executive’s act or failure to act, was in the best interest of Employer. Upon
such termination, Executive will thereafter be entitled to receive only the
compensation and benefits set forth in Section 4.1 (a) through (e) hereinabove
applicable to Expiration of the Term Due to Non-Renewal.


 


(a) Procedure.  At a
meeting of the applicable Employer’s Board of Directors, duly called for the
purpose of determining whether Cause exists (“Determination Meeting”), the
alleged acts or omissions of Executive must be found by two-thirds of the
disinterested directors present at the 


 


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meeting to have been established beyond reasonable doubt. For purposes
of this Section 4.4, “disinterested” shall mean those directors other than
the Executive and any other directors who are alleged to have been involved or
otherwise to have an interest in any of such alleged acts or omissions of the
Executive.  If said Board determines, as
set forth in the preceding sentence, that Cause exists, said Employer shall
deliver, within ten (10) days of the Determination Meeting, written notice
to Executive of same which shall set forth, in reasonable detail, the findings
of the Board as to the act(s) and/or omission(s), including the dates,
facts and circumstances, constituting Cause (“Notice of Termination For
Cause”).  The Notice of Termination For
Cause shall also advise Executive that unless an Opportunity Notice, as
hereinafter defined, is delivered by Executive as hereinafter provided,
Executive’s employment shall terminate for Cause effective on the eleventh (11th) day after the receipt by
Executive of the Notice of Termination For Cause.  Executive may, within ten (10) days of
his receipt of the Notice of Termination For Cause, request, by written notice
delivered to said Employer, that a special meeting of the Board be called for
the purpose of providing Executive an opportunity to appear before the Board, with
counsel, to discuss such act(s) or omission(s) (“Opportunity
Notice”).  Upon receipt of the
Opportunity Notice, a special meeting of the Board shall be duly called to take
place on a date selected by the Board, which is not less than ten (10) nor
more than thirty (30) days after Employer’s receipt of the Opportunity Notice,
at the principal office of Employer or such other locations as has been
mutually agreed upon by Employer and Executive (“Final Meeting”).  If the Board does not, by vote of greater than
one-third of the disinterested directors present at the meeting, rescind its
Notice of Termination For Cause at the Final Meeting or Executive fails to
attend the Final Meeting for any reason other than either a valid medical
reason or a reason that is deemed credible and sufficient by the acting
Chairman of the Board in his or her sole and absolute discretion (in which
event, the Chairman shall reschedule the Final Meeting to a date selected by
him or her that is practical in light of the reason for Executive’s failure to
attend), Executive’s employment shall be terminated for Cause effective
immediately as of the conclusion of the Final Meeting, without further
notice.  The procedure set forth herein
shall at all times be subject to the requirements of applicable law,
regulation, regulatory policy or other regulatory requirements.


 


(b) Suspension.  Notwithstanding anything to the contrary in
this Agreement, during the period commencing on the date on which notice of the
Determination Meeting is duly given to the Board and ending the earliest of the
date of (i) the Determination Meeting, if no determination of Cause is
made at said meeting as hereinabove provided, 
(ii) the date of 


 


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termination (which may be either the eleventh day following Executive’s
receipt of the Notice of Termination For Cause if an Opportunity Notice is not
delivered by Executive as hereinabove provided or the date of the Final Meeting
if an Opportunity Notice is provided and the Notice of Termination of Cause is
not rescinded at such meeting), or (iii) the date of the Final Meeting if
the Notice of Termination For Cause is rescinded as set forth in Subsection (c) below:


 


(1)  Executive, in the sole discretion of the
Board, may be suspended from employment with Employer and the Board may, during
such period, reasonably limit Executive’s access to the principal offices and
any other premises of Employer and/or Executive’s access to any of Employer’s
assets or personnel; and


 


(2)  Executive shall continue to receive his Base
Salary and all benefits in accordance with Section 3 of this Agreement to
the extent such payments and benefits are not prohibited by applicable law,
regulation, regulatory policy or other regulatory requirement.


 


(c)           Rescission
of Notice of Termination For Cause.  In the event that the Final Meeting is not
called as provided for herein, or a quorum of the Board fails to appear for the
Final Meeting, or the Board votes to rescind its Notice of Termination for
Cause then such Notice shall be deemed rescinded and Executive shall be
returned to his duties as of the date of such rescission.


 


(d)           Timeliness.  No event shall constitute grounds for a “Cause”
termination in the event that Employer fails to take action within 90 days
after Employer’s Chairman or the Chairman of Employer’s Audit Committee obtains
knowledge of the occurrence of such event.


 


(e)           Payment upon Termination For Cause.  If Executive’s employment shall be terminated
for Cause as set forth herein, Employer shall pay Executive:


 


(i)            the
Accrued Obligations, and


 


(ii)           the
Additional Benefits, in accordance with the terms of the applicable plan,
program or arrangement.


 


4.5          Involuntary Termination.


 


4.5.1       Termination by Employer Without
Cause.  Employer
may, unilaterally, terminate Executive’s employment for any reason and without
Cause or for no reason at all at any time during the Term of Employment upon
sixty (60) days prior written notice to Executive.  If Employer terminates Executive’s employment
pursuant to this Section 4.5.1, then the Term of Employment shall
thereupon end (“Date of Involuntary Termination”) and Executive shall, subject
to Bank Regulatory Limitations as referenced in 


 


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Section 4.14,
only be entitled to receive the following:


 


(a)           the
Accrued Obligations; provided, however, that in addition to the
payment of the per diem value of any unused vacation days that have accrued
during the Term of Employment prior to the Date of Involuntary Termination,
Executive shall receive the unused, unaccrued portion of any vacation days
available through the end (but not beyond) the calendar year in which the Date
of Involuntary Termination occurs,


 


(b)                                 the
Additional Benefits,


 


(c)           an aggregate amount equal to two
times Executive’s Highest Annual Compensation, as hereinafter defined (“Severance
Payment”), such amount shall be paid no later than two and one-half (2 1⁄2)
months after the close of the taxable year of Executive or Employer in which
the Date of Involuntary Termination occurs,


 


(d)           to have Employer pay the full
premiums (employer and employee portions) for Executive’s and any covered
beneficiary’s coverage under COBRA health continuation benefits over the
eighteen (18) month period immediately following the date of termination.  Notwithstanding the foregoing, if Executive
accepts post-employment with another entity that provides comparable
healthcare, during such period, Employer shall not provide Executive with such
health continuation benefits, and


 


(e)           reimbursement for the reasonable fees
of a professional out-placement service selected by Executive; provided,
however, that only expenses incurred by Executive no later than the end of the
second taxable year following the year in which the Date of Involuntary
Termination occurs shall be reimbursed and such reimbursement shall be paid by
the end of the third taxable year following the year in which the Date of
Involuntary Termination occurs.


 


4.5.2       Termination by Executive For Good Reason.
Executive may terminate his employment for Good Reason.  Upon a termination by Executive for Good
Reason, Executive shall be entitled to the same payments and benefits as
provided in Section 4.5.1 above.  In
no event shall a termination of Executive’s employment for Good Reason occur
unless and until Executive provides Employer, within ninety (90) calendar days
following the date on which the facts and circumstances underlying the finding
of Good Reason reasonably could have been known by Executive, with written notice
thereof stating with specificity the facts and circumstances underlying the
finding of Good Reason and, if the basis for such finding of Good Reason is
capable of being cured by Employer, providing Employer with an opportunity to
cure the same within thirty (30) calendar days after receipt of such
notice.  If Executive terminates his
employment pursuant to this Section 4.5.2, then the Term of Employment
shall end upon the receipt by Employer of the notice required by this Section 4.5.2;


 


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provided, however, that if the basis for such
finding of Good Reason is capable of being cured but Employer fails to cure as
hereinabove provided, the Term of Employment shall end  on the thirty-first calendar day following
such notice (“Date of Involuntary Termination”).


 


“Good Reason”
shall mean, without Executive’s prior written consent, the occurrence of any of
the following events or actions:


 


(a)           material diminution
of Base Salary ;


 


(b)           material
diminution in Executive’s authority, duties or responsibilities;


 


(c)           material
diminution in the authority, duties or responsibilities of the supervisor to
whom Executive is required to report, including a requirement that Executive
report to a corporate officer or employee instead of directly to the Board of
Directors;


 


(d)           material
diminution in the budget over which Executive retains authority;


 


(e)           material
change in geographic location at which Executive must perform the services; or


 


(f)            any
other action or inaction that constitutes a material breach of the terms of an
applicable employment agreement including, but not limited to Employer’s
failure to obtain a satisfactory agreement from any successor(s) to assume
and agree to perform Employer’s obligations under this Agreement.


 


In order to constitute an Involuntary Termination
under this Section 4.5.2, Executive must actually terminate his employment
pursuant to this Section 4.5.2 within six (6) months following the
date on which the facts and circumstances underlying the finding of Good Reason
reasonably could have been known by Executive.


 


4.6          Voluntary Termination.  Executive shall give
Employer not less than sixty (60) days’ prior written notice of his intention
voluntarily to terminate his employment by Employer other than for Good Reason.
If Executive terminates his employment on his own initiative without Good
Reason and under circumstances other than (i) a termination due to death, (ii) a
termination due to Retirement, or (iii) an Expiration of the Term due to
Non-Renewal, then Executive upon such termination (“Voluntary Termination”),
will only be entitled to receive the following:


 


(a)           the Accrued
Obligations, and


 


(b)           the Additional Benefits, in
accordance with the terms of the applicable plan, program or arrangement.


 


4.7          Termination Due to Retirement.  During the Term of 


 


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Employment, Executive may, upon reaching sixty-three
(63) years of age, voluntarily terminate his employment hereunder by giving not
less than sixty (60) days prior written notice to Employer (“Retirement”).  Upon expiration of said sixty (60) day notice
period (“Retirement Effective Date”), Executive will only be entitled to
receive the following:


 


(a)           the Accrued
Obligations,


 


(b)           the Additional Benefits, in
accordance with the terms of the applicable plan, program or arrangement,


 


(c)           any
rights to indemnification in accordance with Section 6 of this Agreement,


 


(d)           to
continue, together with his spouse and eligible dependents, participation in
the welfare benefits described in Section 3.4 (collectively, the “Continuing
Benefit Plans”); provided, however, that coverage (with regard
to medical and dental benefits for the period after the end of the eighteen
(18) month period following the date of termination) shall, unless same is a
nontaxable benefit excludible from income under Section 105 of the Code,
be deemed to be monthly, in-kind payments of the premiums and will be taxable
income to Executive; and provided, further, that the participation by
Executive (and, to the extent applicable, Executive’s spouse and dependents) in
any Continuing Benefit Plan shall cease on the date, if any, on which Executive
becomes eligible for comparable benefits under a similar plan, policy  or program of a subsequent employer (“End
Date”).  Executive’s participation in the
Continuing Benefit Plans will be on the same terms and conditions that would
have applied had Executive continued to be employed by Employer through the End
Date.  To the extent any such benefits
cannot be provided under the terms of the applicable plan, policy or program,
Employer shall provide (or shall cause to be provided) a comparable benefit
under another plan.


 


4.8          Highest Annual Compensation.  “Highest Annual
Compensation” means, as determined as of the date of termination of Executive’s
Term of Employment under the applicable termination provision set forth above,
the sum of (a) the highest per annum rate of base salary paid by Employer
to Executive at any time during the Term of Employment prior to such date of termination,
and (b) the highest annual cash performance bonus or other annual cash
incentive compensation paid by Employer to Executive, including all such cash
amounts paid to Executive individually and as part of an employee or executive
compensation group (or which would have been paid but for an election by
Executive to defer payment to a later period) with respect to any fiscal year
of Employer during the Term of Employment prior to such date of termination.


 


4.9          Change in Control.   A “Change in Control event” means 


 


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any event that may
qualify as a “Change in Control” under Company’s 2003 Stock Incentive Plan,
as may be amended and in effect from time to time.


 


(a)           Termination pursuant to certain provisions prior to a Change in Control
event.  If the Term of
Employment has been terminated pursuant to Sections 4.2, 4.6 or 4.7 at any time
during the twelve month period prior to a Change in Control event, Executive or
the named beneficiary or other legal representative, as the case may be, shall
be entitled  to receive, in addition to
payments and benefits set forth in  the
applicable Section, the Severance Payment as set forth in Section 4.5.1(c) above
subject to the provisions of Section 4.11 (“Change in Control Payment”); provided, however,
that any sums previously paid to the Executive’s named beneficiary or other
legal representative pursuant to Section 4.2(c) providing for a Lump
Sum Payment shall reduce the amount of the Change in Control  Payment. 
In any such case, the Change in Control Payment shall be paid on the
earliest date during the first taxable year of Executive following the taxable
year of Executive in which Executive’s employment terminates on which such
payment can be made in compliance with Section 409A of the Code.


 


(b)           Termination pursuant to certain provisions following a Change in
Control event. (i) If, during the period beginning on the date
of the Change in Control event and ending on the date two (2) years after
a Change in Control event, Executive’s Term of Employment is terminated
pursuant to Section 4.2, Executive’s named beneficiary or other legal
representative, as the case may be, shall be entitled to receive, in addition
to payments and benefits set forth in Section 4.2, the Change in Control
Payment; provided, however,
that payment of the Change in Control Payment shall be in lieu of the Lump Sum
Payment.  In such case, the Change in
Control Payment will be paid immediately within thirty (30) days of the date of
death; (ii) If, during the period beginning on the date of the Change in
Control Event and ending on the date that is one (1) year after a Change
in Control Event, Executive either voluntarily terminates his employment
pursuant to Section 4.6, or retires pursuant to Section 4.7, then
Executive shall be entitled to receive the Change in Control Payment, such
Payment to be paid within thirty (30) days following the date Executive
employment terminates.


 


4.10        Release. 
In the event of termination of employment for any
reason, the payments and other benefits (if any) required to be provided to
Executive pursuant to this Section 4 (including those, if any, required
under this Section 4 to be paid pursuant to other sections of this
Agreement) will be in full and complete satisfaction of any and all obligations
owing to Executive pursuant to this Agreement
and, to the fullest extent permitted by law, any other claims Executive may
have in respect of Executive’s employment by Employer. Such 


 


13





















 


amounts shall constitute
liquidated damages with respect to any and all such rights and claims and, upon
Executive’s receipt of such amounts, Employer shall be released and discharged
from any and all liability to Executive in connection with this Agreement or
otherwise in connection with Executive’s employment by Employer.
Notwithstanding the foregoing, Executive shall retain all rights (i) with
respect to Employer’s continuing obligations to indemnify Executive as a former
officer or director of Employer as set forth in Section 6,  (ii) matters covered by
provisions of this Agreement that expressly survive the termination of this
Agreement,  (iii) rights to which
Executive is entitled by virtue of his participation in the employee benefit plans,
policies and arrangements of Employer, and (iv) as otherwise excluded by
applicable law.


 


4.11        Code Section 280G Reduction.  Anything in this
Agreement or in any other agreement, contract, understanding, plan or program,
entered into or maintained by Employer to the contrary notwithstanding, in the
event it shall be determined that any payment or distribution by Employer to or
for the benefit of Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise
(collectively, the “Payments”), would be subject to the excise tax imposed by Section 4999
of the Code, and/or any successor provision or section thereto (such excise
tax, together with any interest or penalties incurred by Executive with respect
to such excise tax, collectively, the “Excise Tax”), and if the Payments less
the Excise Tax would be less than the amount of the Payments that would
otherwise be payable to Executive without imposition of the Excise Tax, then,
to the extent necessary to eliminate the imposition of the Excise Tax (and
taking into account any reduction in the Payments provided by reason of Section 280G
of the Code in any such other agreement, contract, understanding, plan or
program), the cash and non-cash payments and benefits payable to the Executive
shall be reduced (with Executive being provided with the amount of each payment
and benefit as calculated by the Employer and given ten (10) business days
in which to prioritize the order of reduction of each such payment or benefit);
but only if, by reason of any such reduction, the Payments with any such
reduction shall exceed the Payments less the Excise Tax without any such
reduction.  For purposes of this Section 4.11,
(i) no portion of the Payments, the receipt or enjoyment of which
Executive shall have effectively waived in writing prior to the date of
termination, shall be taken into account, (ii) no portion of the Payments
shall be taken into account that, in the opinion of tax counsel selected in
good faith by Employer, does not constitute a “parachute payment” within the
meaning of Section 280G(b)(2) of the Code, including without
limitation by reason of Section 280G(b)(4)(A) of the Code, (iii) any
payments and/or benefits under this Agreement or otherwise for services to be
rendered on or after the effective date of a Change in Control shall be reduced
only to the extent necessary so that such payments and/or benefits in their
entirety constitute reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4)(B) of the 


 


14





















 


Code or are otherwise not subject to disallowance as
deductions, in the opinion of the tax counsel referred in the immediately
preceding clause (ii) of this sentence, and (iv) the value of any
non-cash payment or benefit or any deferred payment or benefit included in the
Payments shall be determined by Employer’s independent auditors in accordance
with the principles of Sections 280G(d)(3) and 280G(d)(4) of the Code
and the applicable regulations or proposed regulations under the Code.  Except as otherwise provided in this Section 4.11,
the foregoing calculations and determinations shall be made in good faith by
Employer and shall be conclusive and binding upon the parties.  Employer shall pay all costs and expenses
incurred in connection with any such calculations or determinations.


 


4.12        Timing of Payment; Section 409A.  All Accrued Obligations payable under this
Agreement shall be paid in cash in single lump sum within fourteen (14) days
following the date of termination (or at such earlier date required by law). The Additional Benefits shall be paid in
accordance with the terms of the applicable plan, program or arrangement.  Except to the extent prohibited by
applicable law or the terms of this Agreement, all other payments to which
Executive shall be entitled to under this Section 4 shall be made within
thirty (30) days following the date of termination, subject to the following:


 


(a)           Payments
to Executive under this Section 4 shall be bifurcated into two portions,
consisting of a portion that does not constitute “nonqualified deferred
compensation” within the meaning of Section 409A of the Code and a portion
that does constitute nonqualified
deferred compensation. Payments hereunder shall first be made from the portion,
if any, that does not consist of nonqualified deferred compensation until it is
exhausted and then shall be made from the portion that does constitute
nonqualified deferred compensation. However, anything in this Agreement to the contrary notwithstanding, if at the
time of Executive’s termination of employment, Executive is considered a
“specified employee” as defined in Section 409A(a)(2)(B)(i) of the
Code, then to the extent required by Section 409A of the Code, no payments that constitute nonqualified
deferred compensation shall be payable prior to the date that is the earlier of
(i) six months and a day after Executive’s date of termination, or (ii) Executive’s
death (“Earliest Payment Date”).  Any
payments that are delayed pursuant to the preceding sentence shall be paid on
the Earliest Payment Date. The determination of whether, and the extent to
which, any of the payments to be made to Executive hereunder are nonqualified
deferred compensation shall be made after the application of all applicable
exclusions under Treas. Reg. § 1.409A-1(b)(9). Any payments that are intended
to qualify for the exclusion for separation pay due to involuntary separation
from service set forth in Treas. Reg. § 1.409A-1(b)(9)(iii) must be paid
no later 


 


15





















 


than the last day of the second taxable year
of Executive following the taxable year of Executive in which the Date of
Termination occurs.


 


(b)           The intent of the parties is that payments and benefits
under this Agreement comply with Section 409A and, accordingly, to the
maximum extent permitted, this Agreement shall be interpreted to be in
compliance therewith. The parties acknowledge and agree that the interpretation
of Section 409A of the Code and its application to the terms of this
Agreement is uncertain and may be subject to change as additional guidance and
interpretations become available. Anything to the contrary herein
notwithstanding, all benefits or payments provided by Employer to Executive
that would be deemed to constitute “nonqualified deferred compensation” within
the meaning of Section 409A of the Code are intended to comply with Section 409A
of the Code. If, however, any such benefit or payment is deemed to not comply
with Section 409A of the Code, Employer and Executive agree that this
Agreement may be amended (and that any such amendment may be retroactive to the
extent permitted under Section 409A), as reasonably requested by either
party, and as may be necessary to fully comply with Section 409A of the
Code and all related rules and regulations in order to preserve the
payments and benefits provided hereunder without additional cost to either
party.


 


4.13        No Obligation to Mitigate; Set Off Under
Certain Circumstances.  In
the event of any termination of Executive’s employment under this Section 4,
Executive shall be under no obligation to seek other employment or to mitigate
damages, and no payment provided for in this Agreement shall be reduced by any
compensation earned by Executive as the result of employment by another
employer, or from self-employment, after the termination of his employment with
Employer.  Notwithstanding the foregoing,
nothing herein shall be deemed to prevent Employer from setting off against any
amounts due to Executive under this Agreement any amounts due from Executive to
Employer as of the date of such payment.


 


4.14        Bank Regulatory Limitations.  Any payments made to
Executive pursuant to this Agreement, or otherwise, are subject to and
conditioned upon their compliance with 12 U.S.C. § 1818(k) and any
applicable regulations promulgated thereunder. 
In addition, to the extent required by applicable law, regulation,
regulatory policy or other regulatory requirement, the aggregate amount and/or
value of the compensation paid as a result of any termination of Executive’s
employment with Employer, regardless of the reason for any such termination of
employment, shall not exceed the limit prescribed by such applicable law,
regulation, regulatory policy or other regulatory requirement.


 


4.15  Option to Serve
as Consultant.  During the
Term of Employment and in lieu of a termination under Sections 4.5, 4.6 or 4.7,
the 


 


16





















 


parties
may mutually agree that Executive’s position under Section 1 and his
duties, as well as the time and effort required, under Section 2 be
modified and the compensation set forth in Section 3 be adjusted as set
forth in this Section 4.15 and, in such event, Executive shall continue in
the employ of Employer under the same terms and conditions, including but not
limited to benefits under sections 3.3 through 3.7, as is set forth in this
Agreement except as specifically modified by this Section 4.15.


 


(a)  Position
and Duties.  Executive shall
serve as a consultant to Employer and shall render such services of an advisory
or consultative nature as Employer may reasonably require of him from time to
time and he shall assist Employer in its relations with its employees and
customers, such that Employer shall have the benefit of Executive’s experience
and knowledge of Employer’s business and operations, his reputation and
contacts in the industry generally as well as Employers’ market area and his
general business experience. In the event that Executive was serving as a
director as referenced in Section 1, there shall be no affirmative
obligation on the part of Executive to serve or continue to serve as such and
service as a director shall be in accordance with the mutual agreement of
Executive and Employer.


 


(b) Time
and Effort.  Executive shall
perform such services at a level of at least fifty percent (50%) of the
services that Executive performed over the 36 month period occurring
immediately prior to the implementation of this Section 4.15.


 


(c) Compensation.  Upon implementation of this Section 4.15,
Executive shall receive, in equal installments in accordance with the customary
payroll practices of Employer, compensation, in lieu of the compensation set
forth in sections 3.1 and 3.2, in an amount equal, on a per annum basis, to
fifty percent (50%) of Executive’s Highest Annual Compensation as determined as
of the day immediately prior to the implementation of this Section 4.15
and such amount shall constitute Executive’s Base Salary amount for all
purposes of this Agreement.


 


5. Confidentiality/Non-competition/Non-solicitation/Intellectual
Property.


 


5.1      Confidentiality.  Executive shall not, during the Employment
Term or anytime thereafter, make use of or disclose any Confidential
Information to any person or entity (including, but not limited to any bank,
trust company, credit union, corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust estate, joint
venture or other business organization or entity) (“Person”) for any reason or
purpose whatsoever other than in furtherance of Employer’s business.  The term “Confidential Information” shall
mean all confidential information of or relating to Employer and any Person
effectively controlling, effectively controlled by or effectively under common
control with Employer (“Affiliate”) including, without 


 


17

















 


limitation,
financial information and data, business plans and information regarding
prospects and opportunities (such as, by way of example only, client and
customer lists and acquisition, disposition, expansion, product development and
other strategic plans), but does not include any information that is or becomes
public knowledge by means other than Executive’s breach or nonobservance of his
obligations described in this Section 5.1. 
Notwithstanding the foregoing, Executive may disclose such Confidential
Information as he may be legally required to do so on the advice of counsel in
connection with any legal or regulatory proceeding; provided,
however, that Executive shall
provide Employer with prior written notice of any such required or potentially
required disclosure and shall cooperate with Employer and use his best efforts
under such circumstances to obtain appropriate confidential treatment of any
such Confidential Information that may be so required to be disclosed in
connection with any such legal or regulatory proceeding.  Executive’s obligation to refrain from
disclosing Confidential Information under this Section 5.1 shall continue
in effect in accordance with its terms following any termination of this
Agreement pursuant to Section 4 above.


 


5.2      Non-competition.  Without
prior written consent of the Board of Directors of Employer, Executive agrees
that he will not, at any time during the Term of Employment and for the
two-year period following the Expiration of the Term of Employment for
Non-Renewal as set forth in Section 4.1 or the termination of the Term of
Employment for any reason as set forth above in Sections 4.4 through 4.7,
directly or indirectly, whether as owner, partner, shareholder (other than the
holder of 1% or less of the common stock of any company the common stock of
which is listed on a national stock exchange or quoted on the Nasdaq Stock
Market), or as consultant, agent, employee of any other Person or otherwise,
engage in competition (as to any service or product provided by Employer or for
which Employer had made substantial preparation to enter into or offer prior to
the termination of Executive’s employment) with Employer or any of its
Affiliates anywhere within a ten (10) mile radius of any city or town in
which Bank or any Affiliate has a branch or other office (or to such lesser
extent and for such lesser period as may be deemed enforceable, it being the
intention of the parties that this Section 5.2 shall be so enforced); provided, however,  that the restrictive covenant set forth
herein shall automatically terminate or expire upon a Change in Control event
and shall not be of any further force or effect whatsoever following said
Change in Control event.


 


5.3          Non-solicitation.  Without prior written
consent of the Board of Directors of Employer, Executive agrees that he will
not, at any time during the two-year period following the Expiration of the
Term of Employment for Non-Renewal as set forth in Section 4.1 or the
termination of the Term of Employment for any reason as set forth above in
Sections 4.4 through 4.7:


 


18





















 


(a)           hire
or attempt to hire, or assist in hiring, any employees of Employer or any of
its Affiliates, or solicit, encourage or induce any such employee to terminate
his or her relationship with Employer or any such Affiliate; or


 


(b)           solicit,
encourage or induce any customer or client of Employer or any of its Affiliates
to terminate his or its relationship with Employer or any such Affiliate or to
do business with anyone other than Employer and its Affiliates.


 


5.4          Intellectual Property.  Executive will, during the period of his
employment, disclose to Employer promptly and fully all Intellectual Property
(as defined below) made or conceived by Executive (either solely or jointly
with others) including but not limited to Intellectual Property which relate to
the business of Employer or result from work performed by him for Employer. All
Intellectual Property and all records related to Intellectual Property, whether
or not patentable, shall be and remain the sole and exclusive property of
Employer and Employer shall have the exclusive worldwide and perpetual right to
use, make, and sell products and/or services derived therefrom.  Intellectual Property means all copyrights,
trademarks, trade names, trade secrets, proprietary information, inventions,
designs, developments, and ideas, and all know-how related thereto. Executive
hereby assigns and agrees to assign to Employer all his rights to Intellectual
Property and any patents, trademarks, or copyrights which may be issued with
respect to Intellectual Property. 
Executive further acknowledges that all work shall be work made for
hire. During and after the Term of Employment, Executive agrees to assist
Employer, without charge to Employer but at its request and expense, to obtain
and retain rights in Intellectual Property, and will execute all appropriate
related documents at the request of Employer. Executive and Employer agree that
this Section 5.4 shall not apply to any Intellectual Property for which no
equipment, supplies, facilities, trade secret, or other confidential
information of Employer was used and which was developed entirely on his own
time, provided that it does not relate to the business of Employer or and does
not result from any work performed by him for Employer.


 


5.5          Return of Materials.  Upon the termination of Executive’s
employment, Executive will return to Employer all Employer property, including
all materials furnished to Executive during the Term of Employment (including
but not limited to keys, computers, automobiles, electronic communication
devices, files, electronic storage devices and identification cards); provided,
however, that Executive may retain copies of materials relating to his
compensation or benefits. In addition, upon termination, Executive will provide
Employer with all passwords and similar information which are reasonably
necessary for Employer to access materials on which Executive worked or to
otherwise continue in its business.


 


19
















 


5.6                               Injunctive
Relief.  Executive acknowledges
and agrees that the protections of Employer set forth in this Section 5
are fair and reasonable and are necessary for Employer to protect its
legitimate business interests, including its Confidential Information and
business relationships, and that Employer will have no adequate remedy at law,
and would be irreparably harmed, if Executive breaches or threatens to breach
any of the provisions of this Section 5. 
Executive agrees that Employer shall be entitled to seek equitable
and/or injunctive relief to prevent any breach of threatened breach of this Section 5,
and to specific performance of each of the terms of this Section 5 in
addition to any other legal or equitable remedies that Employer may have,
without posting a bond.  Executive
further agrees that he shall not, in any equity proceeding relating to the
enforcement of the terms of this Section 5, raise the defense that
Employer has an adequate remedy at law.


 


5.7                               Claw-back.   To
the fullest extent permitted by law, in the event that Executive breaches any
of the provisions of Sections 5.1, 5.2 or 5.3:


 


(a)                                  Employer shall be entitled to recoup payments
made to Executive pursuant to Section 4 hereof, provided, however, that,
in the event of a breach of Section 5.1, such recoupment shall be limited
to the reasonable damages incurred by Employer as a result of such breach and,
in the event of a breach of Section 5.2 or Section 5.3, such
recoupment shall be equal to the total payments made to Executive pursuant to Section 4
multiplied by a fraction, the numerator of which is the number of months
remaining from the date of such breach to the second anniversary of the Term of
Employment or Expiration of the Term of Employment for Non-Renewal, as the case
may be, and the denominator of which is twenty-four (24) months; and


 


(b)                                 to the extent that any other benefits are
being provided to Executive pursuant to Section 4, such will cease
immediately, and Executive will not be entitled to any further compensation and
benefits from Employer pursuant to Section 4.


 


5.8                               Special
Severability.  The terms and
provisions of this Section 5 are intended to be separate and divisible
provisions and if, for any reason, any one or more of them is held to be
invalid or unenforceable, neither the validity nor the enforceability of any
other provision of this Agreement shall thereby be affected.


 


6.                                      Indemnification.  Executive (and his heirs, executors and
administrators) shall be indemnified and held harmless by Employer to the
fullest extent permitted by applicable law, regulation, regulatory policy or
other regulatory requirement, against all expenses, liabilities and losses
(including without limitation, all reasonable attorneys’ fees and all
judgments, fines, excise taxes or penalties and amounts paid or to be paid in
settlement) incurred or suffered by Executive as a consequence of Executive
being or having been made a party to, or being or having been involved in, any
threatened, pending or 


 


20





















 


completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that Executive
is or was a trustee, director or officer of Employer or is or was serving at
the request of Employer as a trustee, director or officer of Employer of is or
was serving at the request of Employer as a trustee, director or officer of
another corporation or other entity and such indemnification shall continue
after Executive shall cease to be an officer, director or trustee.  The right to indemnification conferred hereby
shall be a contract right and shall also include, to the extent permitted by
applicable law, regulation, regulatory policy or other regulatory requirement,
the right to be paid by Employer the expenses incurred in defending any such
proceeding in advance of the final disposition upon receipt by Employer of an
undertaking by or on behalf of Executive to repay such amount or a portion
thereof, if it shall ultimately be determined that Executive is not entitled to
be indemnified by Employer pursuant hereto or as otherwise authorized by law,
regulation, regulatory policy or other regulatory requirement, but such
repayment by Executive shall only be in an amount ultimately determined to
exceed the amount to which Executive was entitled to be indemnified.  Employer’s acceptance of any such undertaking
by or on behalf of Executive may not be conditioned upon any evidence or
demonstration by or on behalf of Executive of any financial capacity to make
any such repayment at the time such undertaking is delivered.  The provisions of this Section 6 shall
survive any termination of this Agreement.


 


7.                                      Notices.  Any notice given hereunder shall be in
writing and shall be deemed given when delivered in-hand to the other party, by
facsimile transmission, by overnight courier, or by registered or certified
mail (return receipt requested, postage prepaid) addressed to the appropriate
party at the address first set forth above, or at such other address as the
party shall designate from time to time in a notice.


 


8.                                      Disputes. Any dispute, claim or
controversy arising out of or relating to this Agreement or the breach,
termination, enforcement, interpretation or validity thereof hereof (other than an action brought by Employer
for injunctive or other equitable relief in the enforcement of Employer’s
rights under Section 5 above, in which case such action may be brought in
any court of competent jurisdiction), including the determination of the
scope or applicability of this Agreement to arbitrate, shall be determined by
arbitration in Boston, Massachusetts, before three neutral arbitrators (one of
whom shall be appointed by Employer, one by Executive and the third by the
first two arbitrators).  The arbitration
shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and
Procedures. Judgment on the Award may be entered in any court having
jurisdiction. This clause shall not preclude parties from seeking provisional
remedies in aid of arbitration from a court of appropriate jurisdiction.  In the event that it shall be necessary or
desirable for Executive to retain legal counsel and/or incur other costs and
expenses in 


 


21





















 


connection with the enforcement of any or all of
Executive’s rights under this Agreement, Employer shall pay (or Executive shall
be entitled to recover from Employer, as the case may be) Executive’s
reasonable attorneys’ fees and other reasonable costs and expenses in
connection with the enforcement of said rights (including the enforcement of
any arbitration award in court) regardless of the final outcome, unless and to
the extent that the arbitrators shall determine that Executive has not acted in
good faith or presented a bona fide claim
or dispute or that under the circumstances recovery by Executive of all or part
of any such fees and costs and expenses would be inequitable or otherwise
unjust.


 


The parties agree that any and
all disputes, claims or controversies arising out of or relating to this
Agreement shall first be submitted to JAMS, or its successor, for mediation,
and if the matter is not resolved through mediation, then it shall be submitted
to JAMS, or its successor, for final and binding arbitration pursuant to the
arbitration clause set forth above. Either party may commence mediation by
providing to JAMS and the other party a written request for mediation, setting
forth the subject of the dispute and the relief requested. The parties will
cooperate with JAMS and with one another in selecting a mediator from JAMS
panel of neutrals, and in scheduling the mediation proceedings. The parties
covenant that they will participate in the mediation in good faith. Employer
shall pay (or Executive shall be entitled to recover from Employer, as the case
may be) Executive’s reasonable attorneys’ fees and other reasonable costs of
such mediation.  All offers, promises,
conduct and statements, whether oral or written, made in the course of the
mediation by any of the parties, their agents, employees, experts and
attorneys, and by the mediator or any JAMS employees, are confidential,
privileged and inadmissible for any purpose, including impeachment, in any
arbitration or other proceeding involving the parties, provided that evidence
that is otherwise admissible or discoverable shall not be rendered inadmissible
or non-discoverable as a result of its use in the mediation. Either party may
initiate arbitration with respect to the matters submitted to mediation by
filing a written demand for arbitration at any time following the initial
mediation session or 45 days after the date of filing the written request for
mediation, whichever occurs first. The mediation may continue after the
commencement of arbitration if the parties so desire. Unless otherwise agreed
by the parties, the mediator shall be disqualified from serving as arbitrator
in the case. The provisions of this Clause may be enforced by any Court of
competent jurisdiction, and the party seeking enforcement shall be entitled to
an award of all costs, fees and expenses, including attorneys’ fees, to be paid
by the party against whom enforcement is ordered.


 


In the event that
within thirty (30) calendar days after the date that Executive’s Term of
Employment has been terminated by Employer for Cause or by Executive for Good
Reason, Executive (in the case of termination for Cause), or Employer (in the
case of termination for Good Reason), notifies the other in writing that a
dispute exists concerning the termination of employment either for Cause or for
Good Reason, as the case may be (“Notice of Dispute”),


 


22

















 


(1)                Executive shall be
entitled, to the extent not prohibited by applicable law, regulation,
regulatory policy or other regulatory requirement, to be paid his Base Salary
pursuant to Section 3.1 and to continue to receive all other benefits set
forth in Section 3 until the earliest to occur of the following: (i) the
expiration of the then current Term of Employment, or (ii) the resolution,
pursuant to the provisions of Section 8, of such dispute; and


 


(2)                there shall be no
reduction whatsoever of any amounts subsequently paid to Executive upon
resolution of such dispute as a result of, or in respect to, such interim
payments or coverage;


 


provided, however,
that the Notice of Dispute is given in good faith, sets forth a bona fide claim or dispute and Executive pursues the
resolution of such dispute with reasonable diligence.  The Notice of Dispute hereunder shall in all
circumstances constitute (a) a Notice of Non-Renewal under Section 1
for purposes of determining the expiration of the then current Term of
Employment, and (b) a request for mediation and, therefore, a copy of such
Notice of Dispute shall be provided to JAMS as set forth above.


 


9.                                      Binding Effect; Successors.  This Agreement shall inure to the benefit of
and be binding upon Employer, its successors and assigns, and Executive and his
heirs, legal or personal representatives, but shall not inure to the benefit of
or be enforceable by any third party except as otherwise expressly provided
herein.  Except as otherwise expressly
provided herein, Employer and Executive agree on behalf of themselves and of
any other person or persons claiming any benefits by virtue of this Agreement,
that this Agreement and the rights, interests and benefits under it shall not
be assigned, transferred, pledged, or hypothecated in any way by Employer or
Executive or by any other person claiming under Employer or Executive by virtue
hereof; provided, however, that an assignment may be made to the extent that
the other party has consented to same in writing.


 


9.1                               Executive.  This Agreement is personal to Executive and, without the
prior written consent of Employer, shall not be assignable by Executive, except
that Executive’s rights to receive any compensation or benefits under this
Agreement may be transferred or disposed of pursuant to testamentary
disposition, intestate succession or pursuant to a qualified domestic relations
order.  In the event of Executive’s death
prior to the completion by Employer of all payments due to Executive under this
Agreement, Employer shall continue to make such payments to Executive’s
beneficiary(ies) as designated in writing by Executive to Employer prior to his
death (or to his estate, if he fails to make such designation).


 


9.2                               Employer. Both Company and Bank shall
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of its businesses
and/or assets to assume 


 


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expressly and agree to perform
this Agreement in the same manner and to the same extent as if no sucession had
taken place.  Failure of either Company
or Bank to obtain such assumption and agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle
Executive to compensation in the same amount and on the same terms as he would
be entitled to hereunder if he terminated this Agreement for Good Reason following
a Change in Control, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be deemed to be
the date of termination.  As used in this
Agreement, “Company,” “Bank” and “Employer” shall mean the Company, Bank and
Employer as hereinbefore defined and any sucessor to the business and/or assets
of either Company or Bank as aforesaid which successor assumes and agrees to
perform this Agreement by operation of law or otherwise.


 


10.                               Miscellaneous.


 


10.1                        Governing Law.  This Agreement is made and delivered in, and
shall be construed in accordance with the substantive laws of, the Commonwealth
of Massachusetts without regard to conflict of law principles.


 


10.2                        Amendments; Waiver.  No amendment, waiver or modification of this
Agreement shall be valid unless the same shall be in writing and signed by the
party sought to be charged therewith; provided, however, that no amendment that will
result in a violation of Section 409A of the Code, or any other provision
of applicable law, may be made to this Agreement and any such amendment shall
be void ab initio. Failure to
insist in any one or more instances on strict compliance with the terms of this
Agreement shall not be deemed a waiver. Waiver of a breach of any provision of
this Agreement shall not be construed as a waiver of any subsequent breach.


 


10.3                        Entire Agreement. The parties acknowledge and
agree that they are not relying on any representations, oral or written, other
than those expressly contained herein. 
This Agreement supersedes all proposals, oral or written, all
negotiations, conversations or discussions between the parties and all course
of dealing. All prior understandings and agreements between the parties are
hereby merged in this Agreement, which alone is the complete and exclusive
statement of their understanding.


 


10.4                        Withholdings; Reporting.  All payments to be made to Executive by
Employer shall be subject to withholding of such amounts, if any, relating to
tax and other payroll deductions as Employer may reasonably determine it should
withhold pursuant to any applicable law and regulation. Employer may withhold
from any amounts payable under this Agreement such taxes as shall be required
to be withehld pursuant to any applicable law or regulation. Executive
acknowledges that Employer may be required to report amounts deferred by or for
Executive under nonqualified deferred compensation plans on forms W-2 and
agrees that Employer shall comply with all such 


 


24

















 


requirements and Executive
agrees to pay and be solely responsible for all taxes, interest and penalties.


 


10.5                        Enforceability.  If any portion or provision of this Agreement
shall to any extent to be declared illegal or uneforceable by a court of
competent jurisdiction, then the remainder of this Agreement or the application
of such portion or provision in circumstances other than those as to which it
is so declared illegal or uneforceable, shall not be affected thereby, and each
portion and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.


 


10.6                        Captions.  Paragraph headings are for convenience of
reference only and are not intended to create substantive rights or
obligations.


 


10.7                        Survivorship.  The respective rights and oblitations of the
parties to this Agreement including, without limitation, any of their
respective rights and obligations under Section 6 of this Agreement, shall
survive any termination of this Agreement or any termination of Executive’s
employment hereunder for any reason to the extent necessary to accomplish the
intended preservation of such rights and obligations.


 


10.8                        Construction.  The parties acknowledge that they each
participated in drafting this Agreement, and there shall be no presumption
against any party on the ground that such party was responsible for preparing
this Agreement or any part hereof.


 


[Remainder of Page Intentionally
Blank]


 


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IN WITNESS WHEREOF, this
Agreement has been duly executed by the undersigned as of the day and year
first above written.


 


	
  ATTEST:

  	
  ENTERPRISE BANCORP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Tanya A. Hubanks

  	
   

  	
  By

  	
  /s/ James F. Conway, III

  
	
   

  	
  James F. Conway, III

  
	
   

  	
  Director, Chairman of Compensation

  
	
   

  	
  Committee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ATTEST:

  	
  ENTERPRISE BANK AND TRUST

  COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Tanya A. Hubanks

  	
   

  	
  By

  	
  /s/ James F. Conway, III

  
	
   

  	
  James F. Conway, III

  
	
   

  	
  Director, Chairman of Compensation

  
	
   

  	
  Committee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  WITNESS:

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Tanya A. Hubanks

  	
   

  	
  /s/ Richard W. Main

  
	
   

  	
  Richard W. Main

  



 


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