EXHIBIT
10.12


 


CHANGE IN
CONTROL/NONCOMPETITION AGREEMENT


 


This
Change in Control/Noncompetition Agreement (this “Agreement”) entered into on
the 18TH 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 Stephen
J. Irish of Humarock, Massachusetts (the “Executive”), amends and restates the
Change In Control/Noncompetition Agreement dated as of April, 2002, as
amended.  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 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 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 


 


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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 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 


 


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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
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 


 


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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


 


(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.


 


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(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 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.


 


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(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.


 


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 


 


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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 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 


 


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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.


 


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/ Alison M. Burns

  	
   

  	
  By:

  	
  /s/ John P. Clancy Jr.

  
	
   

  	
   

  	
   

  	
  John P.
  Clancy, Jr.

  
	
   

  	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ATTEST:

  	
   

  	
  ENTERPRISE BANK
  AND TRUST COMPANY

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ Alison M. Burns

  	
   

  	
  By:

  	
  /s/ John P. Clancy Jr

  
	
   

  	
   

  	
   

  	
  John P.
  Clancy, Jr.

  
	
   

  	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
  WITNESS:

  	
   

  	
  EXECUTIVE

  
	
   

  	
   

  	
   

  
	
  /s/ Janice R. Villanuci

  	
   

  	
  /s/ Stephen J. Irish

  
	
   

  	
   

  	
  Stephen J. Irish

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  12/18/08

  
	
   

  	
   

  	
  Date

  



 


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