Exhibit 10.3.1


 


CHANGE IN CONTROL/NONCOMPETITION AGREEMENT


 


This
Change in Control/Noncompetition Agreement (this “Agreement”) entered into on
the 19th day of December, 2008, by and among Enterprise Bancorp, Inc., a
Massachusetts corporation (the “Company”), and its wholly owned subsidiary,
Enterprise Bank and Trust Company, a Massachusetts bank and trust company with
its main office in Lowell, Massachusetts (the “Bank”) (the Bank and the Company
shall be hereinafter collectively referred to as the “Employers”), and Robert
R. Gilman of Lowell, Massachusetts (the “Executive”), amends and restates the
Change In Control/Noncompetition Agreement dated as of August, 2001, as amended
on July 15, 2005 (Amendment 1) and December 13, 2006 (Amendment
2).  The provisions of this Restatement
are effective as of January 1, 2008 (the “Effective Date”).


 


1.                                       Purpose.  To allow the
Executive to consider the prospect of a Change in Control (as defined in Section 2
hereof) in an objective manner and in consideration of the Executive’s
agreement to abide by the confidentiality and noncompetition provisions set
forth in Section 8 hereof and the services to be rendered by the Executive
to the Bank, and in order to protect the ongoing business interests and
competitiveness of the Employers and in consideration of the Employers’
agreement to provide the severance benefits to protect the Executive in the
event of a Change in Control as set forth in this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the Executive and the Employers, the parties have entered into
this Agreement and have mutually agreed to be bound by the terms and conditions
hereof.


 


2.                                       Change in Control. 
For purposes of this Agreement, a “Change in Control event” means any
event that may qualify as a “Change in Control” under Company’s 2003 Stock
Incentive Plan, as the same may be amended and continue in effect from time to
time hereafter.


 


3.                                       Terminating Event. 
For purposes of this Agreement, the term “Terminating Event” shall mean
any termination of the employment of the Executive with the Bank for any
reason, whether or not such termination is initiated by the Bank, including
without limitation termination for cause or by reason of the Executive’s death
or disability, or by the Executive, including without limitation resignation by
reason of retirement or for no reason at all.


 


4.                                       Severance
Payments.


 


(a)                                  If a Terminating Event occurs within two (2) years
after the date on which a Change in Control has occurred, then the Executive
shall be entitled to receive the following:


 


(i)                                     an aggregate
amount equal to 1.5 times the Executive’s “Highest Annual Compensation” (as
defined in paragraph (c) of this Section 4) (hereinafter “Lump Sum
Payment”), payable within thirty (30) days of the date on which the Executive’s
employment with the Bank terminates (the “Date of Termination”);


 


(ii)                                  any base salary,
commissions or other compensation accrued or earned, but not yet paid, as of
the Date of Termination and any annual or other bonus actually awarded, but not
yet paid, as of the Date of Termination, such amounts to be paid on the Date of
Termination;


 

















 


(iii)                               reimbursement for all
business expenses for which the Executive would ordinarily be reimbursed by the
Employers in the ordinary course of business in accordance with the Employers’
policies, programs, procedures or practices incurred, but not yet paid, as of
the Date of Termination, such amount to be paid on the Date of Termination;


 


(iv)                              payment of the per diem
value of any unused vacation days, whether deemed to be accrued or unaccrued,
that would be available to the Executive through the end of the calendar year
(but not beyond) in which the Date of Termination occurs;


 


(v)                                 continuation of the
Employers’ employee welfare benefit plans, programs and practices in which the
Executive and his spouse and any other eligible dependents participate or are
eligible to participate as of the Date of Termination or, if more favorable to
the Executive, as of the date of a Change in Control, at the levels in effect
on, and at the same out-of-pocket costs to the Executive as of, the Date of
Termination or, if more favorable to the Executive, as of the date of a Change
in Control, for the eighteen-month period commencing on the Date of
Termination; and


 


(vi)                              any other compensation
and benefits as may be provided in accordance with the terms and provisions of
any other agreements between the Executive and either of the Employers and of
any applicable plans, programs, policies, procedures or practices of the
Employers.


 


(b)                                 If a Terminating Event occurs within one (1) year
prior to the date on which a Change in Control occurs, then the Executive shall
be entitled to receive, as provided in this paragraph (b), all of the payments
and benefits that he would have been entitled to receive under paragraph (a) of
this Section 4, unless such Terminating Event occurs as a result of a
termination for Cause (as such term is defined in paragraph (k) of Section 8
below), in which case no increase or adjustments to the amounts paid or
benefits provided to the Executive in connection with such Terminating Event
shall be made under this paragraph (b). 
If required in accordance with the immediately preceding sentence, the
amounts paid and benefits provided to the Executive in connection with a
Terminating Event that occurs within one (1) year prior to the date on
which a Change in Control occurs shall be increased or otherwise adjusted to
ensure that the Executive receives the full payments and benefits contemplated
by paragraph (a) of this Section 4. 
If the payments and/or benefits to be received by the Executive in
connection with a Terminating Event that has occurred within one (1) year
prior to the date on which a Change in Control occurs are required to be
increased or adjusted under this paragraph (b), then the Executive shall be
paid on the first ordinary payroll payment date of the Bank following the
occurrence of such Change in Control the cash amount necessary to ensure that
the Executive shall have received the full amounts of the payments and benefits
that the Executive would have received as of such date under paragraph (a) of
this Section 4.


 


(c)                                  Highest Annual Compensation Defined.  For purposes of this Section 4, the Executive’s
“Highest Annual Compensation” shall mean, as determined as of any Date of
Termination, the sum of (i) the highest per annum rate of base salary paid
by the Employers to the Executive at any time during the three-year period
prior to such Date of Termination, (ii) the highest amount of commission
or other compensation (which is not otherwise included in the base 


 


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salary and bonus amounts referred in clauses (i) and
(iii) of this paragraph (c)) paid by the Employers to the Executive with
respect to any of the three most recently completed fiscal years of the Bank
prior to such Date of Termination, and (iii) the highest annual incentive
compensation or other bonus amount paid by the Employers to the Executive (or
which would have been paid but for an election by the Executive to defer
payment to a later period) with respect to any of the three most recently
completed fiscal years of the Bank prior to such Date of Termination.


 


(d)                                 Payments Pending Resolution of Dispute.  In the event of any dispute concerning payments or
other benefits to be received by the Executive under this Section 4, the
Executive shall be entitled until the resolution of such dispute to be paid in
accordance with the Bank’s ordinary payroll practices his then current base
salary and to continue to receive all other welfare benefits then being
provided to him by the Employers, and there shall be no reduction whatsoever of
any amounts subsequently paid to the Executive upon resolution of such dispute
as a result of, or in respect to, such interim payments or coverage.


 


(e)                                  No Obligation to Mitigate.  In the event that any payments or benefits are to be
received by the Executive under this Section 4, the Executive shall be
under no obligation to seek other employment or to mitigate damages and there
shall be no offset against any amount due the Executive under this Agreement
for any reason, including, without limitation, on account of any remuneration
or benefits attributable to any subsequent employment that the Executive may
obtain.


 


(f)                                    Code Section 280G Reduction. Anything in this Agreement or in any
other agreement, contract, understanding, plan or program entered into or
maintained by the Employers to the contrary notwithstanding, in the event it
shall be determined that any payment or distribution by the Employers 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
(collectively, the “Payments”), would be subject to the excise tax imposed by Section 4999
of the Internal Revenue Code of 1986, as amended (the “Code”), and/or any
successor provision or section thereto (such excise tax, together with any
interest or penalties incurred by the 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 the 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 the executive being provided with the amount of each
payment and benefit as calculated by the Employers 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(f),
(i) no portion of the Payments, the receipt or enjoyment of which the
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 the Employers, 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 


 


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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 Code or are otherwise not subject to disallowance as deductions, in the
opinion of the tax counsel referred to 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
the Employers’ 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(f),
the foregoing calculations and determinations shall be made in good faith by
the Employers and shall be conclusive and binding upon the parties.  The Employers shall pay all costs and
expenses incurred in connection with any such calculations or determinations.


 


(g)                                 Section 409A.  Payments to which Executive shall be entitled
to under this Section 4 shall be made subject to the following:


 


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


 


(ii)                                  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 


 


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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.


 


(h)                                 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
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 matters covered by provisions of this
Agreement that expressly survive the termination of this Agreement,  (ii) rights to which Executive is
entitled by virtue of his participation in the employee benefit plans, policies
and arrangements of Employer, and (iii) as otherwise excluded by
applicable law.


 


5.                                       Employment Status. 
This Agreement is not an agreement for the employment of the Executive
and shall confer no rights on the Executive except as herein expressly
provided.


 


6.                                       Term.  This
Agreement shall take effect on and as of the Effective Date and shall
terminate, subject to the applicability of paragraph (b) of Section 4
above, upon the earlier of (a) termination of the employment of the
Executive for reason of the Executive’s death or permanent disability, in which
case any amounts due to the Executive or the beneficiary named on the
Designation of Beneficiary form completed by Executive or his legal
representative, as the case may be, shall be determined in accordance with Section 4
of this Agreement, if applicable, or otherwise in accordance with the
Employers’ applicable plans, programs, policies, procedures or practices then
in effect, (b) the resignation or termination of the Executive for any
reason prior to a Change in Control, or (c) the second anniversary of the
date on which a Change in Control shall have occurred; provided, however, that
in any event the provisions of Section 8 hereof shall remain in full force
and effect in accordance with their terms.


 


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


 


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8.                                       Confidential
Information; Noncompetition.


 


(a)                                  Confidentiality. 
The Executive shall not, during or after the period during which he is
employed by the Bank, make use of or disclose any Confidential Information (as
defined herein) to any natural person or entity, other than the Employers or
any of their affiliates or any of the Employers’ or their affiliates’
employees, consultants, advisors, agents or other representatives who have a
need to know any such information, for any reason or purpose whatsoever.  The term “Confidential Information” shall
mean all confidential information of or relating to the Employers and any of
their affiliates, including without 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 the
Executive’s breach or nonobservance of his obligations described in this
paragraph (a).  Notwithstanding the
foregoing, the 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 the Executive shall
provide the Employers with prior written notice of any such required or
potentially required disclosure and shall cooperate with the Employers 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.  The Executive’s obligation to refrain from
disclosing any Confidential Information under this paragraph (a) shall
continue in effect in accordance with its terms following any termination of
this Agreement pursuant to Section 6 above.


 


(b)                                     Noncompetition.  If the Executive’s employment with the Bank
is terminated for any reason prior to a Change in Control (whether or not such
termination is initiated by the Bank or by the Executive), then during the
period of one (1) year following the date of such termination (and
assuming no Change in Control occurs at any time during such one-year period),
the Executive shall not:  (i) 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),
consultant, agent, employee or otherwise, engage in competition with the
Employers or any of their affiliates within a ten (10) mile radius of any
city or town in which the 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 8(b) 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.


 


(c)                                  Non-solicitation.  Without
prior written consent of Employers, Executive agrees that he will not, at any
time during the one-year period following the termination of Executive’s
employment for any reason prior to a Change in Control (whether or not such
termination is initiated by the Bank or by the Executive):


 


(i)                                     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


 


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(ii)                                  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.


 


(d)                                 Payment
Following Termination by Employer Without Cause.  In consideration of the restrictive covenants
set forth herein, in the event that Employer unilaterally terminates
Executive’s employment for any reason (as distinguished from a termination
initiated by the Executive) other than a termination for Cause (as defined in
paragraph (k) of this Section 8), then the Executive shall receive,
subject to Bank Regulatory Limitations as referenced in Section 18, an
aggregate amount equal to seventy-five percent (75%) of the sum of (i) the
per annum rate of base salary paid by the Employers to the Executive as of the
date on which the Executive’s employment with the Bank is terminated, (ii) the
amount of commission or other compensation (which is not otherwise included in
the base salary and bonus amounts referenced in clauses (i) and (iii) of
this paragraph (c)) paid by the Employers to the Executive with respect to the
most recently completed fiscal year prior to such date on which the Executive’s
employment with the Bank is terminated, and (iii) the annual incentive or
other bonus amount paid by the Employers to the Executive (or which would have
been paid but for an election by the Executive to defer payment to a later
period) with respect to the most recently completed fiscal year prior to such
date on which the Executive’s employment with the Bank is terminated.  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
Employers in which Executive’s employment is terminated as provided in this Section 8(d).


 


(e)                                  Claw-back.  To the fullest
extent permitted by law, in the event that Executive breaches any of the
provisions of Sections 8(a), (b) or (c), Employers shall be entitled
to recoup payments made to Executive pursuant to Section 8 (d) hereof,
provided, however, that, in the event of a breach of Section 8(a), such
recoupment shall be limited to the reasonable damages incurred by Employers as
a result of such breach and, in the event of a breach of Section 8(b) or
Section 8(c), such recoupment shall be equal to the total payments made to
Executive pursuant to Section 8(d) multiplied by a fraction, the
numerator of which is the number of months remaining from the date of such
breach to the first anniversary of the date such Executive’s employment was terminated
as set forth in Section 8(d), and the denominator of which is twelve (12)
months


 


(f)                                    Intellectual
Property.  Executive will, during the
period of his employment, disclose to Employers 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 Employers or result from work
performed by him for Employers. All Intellectual Property and all records
related to Intellectual Property, whether or not patentable, shall be and
remain the sole and exclusive property of Employers and Employers 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 Employers 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 Employers, 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 


 


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Employers. Executive and Employers agree that
this Section 8(f)  shall not apply to any Intellectual Property for
which no equipment, supplies, facilities, trade secret, or other confidential
information of Employers was used and which was developed entirely on his own
time, provided that it does not relate to the business of Employers or and does
not result from any work performed by him for Employers.


 


(g)                                 Return of
Materials.  Upon the termination of Executive’s
employment, Executive will return to Employers all property of Employers,
including all materials furnished to Executive during his 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
Employers with all passwords and similar information which are reasonably
necessary for Employers to access materials on which Executive worked or to
otherwise continue in its business.


 


(h)                                 Injunctive Relief. 
The Executive acknowledges and agrees that the Employers will have no
adequate remedy at law, and would be irreparably harmed, if the Executive
breaches or threatens to breach any of the provisions of this Section 8.  The Executive agrees that the Employers shall
be entitled to equitable and/or injunctive relief to prevent any breach or
threatened breach of this Section 8, and to specific performance of each
of the terms of this Section 8 in addition to any other legal or equitable
remedies that the Employers may have. 
The Executive further agrees that he shall not, in any equity proceeding
relating to the enforcement of the terms of this Section 8, raise the
defense that the Employers have an adequate remedy at law.


 


(i)                                     Special Severability. 
The terms and provisions of this Section 8 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.


 


(k)                                  Cause Defined. 
Termination by the Bank of the Executive’s employment for “Cause” shall
mean termination on the basis of (i) the Executive’s willful and continued
failure to substantially perform his employment duties (other than any such
failure resulting from the Executive’s death or incapacity due to physical or
mental illness) after (A) a written demand for substantial performance is
delivered to the Executive by the Bank’s Chief Executive Officer, which demand
specifically identifies the manner in which the Chief Executive Officer
believes that the Executive has not substantially performed his employment
duties, and (B) the Executive has been afforded a reasonable opportunity
to meet with the Chief Executive Officer regarding such assertions of
nonperformance, or (ii) the Executive’s willfully engaging in conduct
(other than conduct related to the operation of an automobile) which is
demonstrably and materially injurious to the Bank, monetarily or
otherwise.  For purposes of this
paragraph (h), no act, or failure to act, on the part of the Executive shall be
deemed “willful” unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that his action or omission was in the
best interests of the Bank.  The
Executive shall be deemed to have been terminated for Cause only at such time
as there shall have been delivered to him a written notice of termination by
the Bank, which specifies in detail the particulars of the Executive’s conduct
that serve as the basis for such termination for Cause.


 


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9.                                       Arbitration Disputes. 
Any controversy or claim arising out of or relating to this Agreement or
the breach hereof, other than an action brought by the Employers for injunctive
or other equitable relief in the enforcement of the Employers’ rights under Section 8
above, in which case such action may be brought in any court of competent
jurisdiction, shall be settled by arbitration in accordance with the laws of
the Commonwealth of Massachusetts by three arbitrators, one of whom shall be
appointed by the Employers, one by the Executive and the third by the first two
arbitrators.  If the first two
arbitrators cannot agree on the appointment of a third arbitrator, then the
third arbitrator shall be appointed by the American Arbitration Association in
the City of Boston, Massachusetts.  Such
arbitration shall be conducted in the City of Boston, Massachusetts in
accordance with the rules of the American Arbitration Association, except
with respect to the selection of arbitrators which shall be as provided in this
Section 9.  Judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof.


 


10.                                 Successors.


 


(a)                                  Each of the Company and the Bank will
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 expressly and agree to perform this Agreement in the
same manner and to the same extent as if no such succession had taken
place.  Failure of either the Company or
the 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 the
Executive to compensation in the same amount and on the same terms as he would
be entitled to hereunder if a Terminating Event were to occur within two (2) years
after 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  such
Terminating Event.  As used in this
Agreement, “Company,” “Bank” and “Employers” shall mean the Company, the Bank
and the Employers as hereinbefore defined and any successor to the business
and/or assets of either the Company or the Bank as aforesaid which successor
assumes and agrees to perform this Agreement by operation of law or otherwise.


 


(b)                                 This Agreement shall inure to the benefit
of and be binding upon the Employers and the Executive, their respective
successors, executors, administrators, heirs and permitted assigns.  In the event of the Executive’s death prior
to the payment of any sum due him under this Agreement, the Employers shall
make such payment to the Executive’s beneficiary designated in writing to the
Employers prior to his death (or to his estate, if he fails to make such
designation).


 


11.                                 Enforceability. 
If any portion or provision of this Agreement shall to any extent be
declared illegal or unenforceable 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 unenforceable, 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.


 


12.                                 Waiver.  No waiver of
any provision hereof shall be effective unless made in writing and signed by
the waiving party.  The failure of any
party to require the performance of any terms or obligation of this Agreement,
or the waiver by any party of any breach of this 


 


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Agreement, shall not prevent any subsequent
enforcement of such terms or obligation or be deemed a waiver of any subsequent
breach.


 


13.                                 Notices.  Any notices,
requests, demands and other communication provided for by this Agreement shall
be sufficient if in writing and delivered in person or sent by registered or
certified mail, postage prepaid, to the Executive at the last address the
Executive has filed in writing with the Employers or, in the case of the
Employers, at their executive offices, attention of the Chief Executive
Officer.


 


14.                                 Amendment.  This
Agreement may be amended or modified only by a written instrument signed by the
Executive and by duly authorized representatives of each of the Employers
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.


 


15.                                 Governing Law. 
This is a Massachusetts contract and shall be construed under and is
governed in all respect by the laws of the Commonwealth of Massachusetts.


 


16.                                 Captions.  The captions
of this Agreement are for convenience of reference only, are not part of the
terms of this Agreement and shall have no force or effect in the application or
interpretation thereof.


 


17.                                 Entire Agreement. 
This Agreement contains the entire agreement between the parties to this
Agreement concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the parties with respect thereto.


 


18.                                 Bank Regulatory Limitations. 
Any payments made to the Executive pursuant to this Agreement, or
otherwise, are subject to and conditioned upon their compliance with 12 U.S.C.
§ 1828(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 the Executive’s employment with the Employers, 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.


 


[Remainder
of Page Intentionally Blank]


 


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IN WITNESS WHEREOF, this
Agreement has been executed as a sealed instrument on behalf of the Employers
by their duly authorized officers and by the Executive as of the date first
above written.


 


	
  ATTEST:

  	
   

  	
  ENTERPRISE BANCORP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Richard W. Main

  	
   

  	
  By:

  	
  John P. Clancy, Jr.

  
	
   

  	
   

  	
   

  	
  John P. Clancy, Jr.

  
	
   

  	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  ENTERPRISE BANK AND TRUST COMPANY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Richard W. Main

  	
   

  	
  By:

  	
  /s/ John P. Clancy, Jr.

  
	
   

  	
   

  	
  John P. Clancy, Jr.

  
	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Richard W. Main

  	
   

  	
  /s/ Robert R. Gilman

  
	
   

  	
   

  	
  Robert R. Gilman

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  December 19, 2008

  
	
   

  	
   

  	
  Date

  



 


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