EXHIBIT 10.2
EMPLOYMENT AGREEMENT
Agreement, dated and effective as of October 4, 2000 by and between Rockland
Trust Company, a Massachusetts trust company (the "Company") and Xxxxxx X.
Xxxxxx of Cohasset, Massachusetts (the "Executive), (the "Employment
Agreement").
W I T N E S S E T H
WHEREAS, the Executive is willing to serve in such executive capacity
for the Company as is hereinafter described and the Company desires to retain
the Executive in such capacity;
NOW THEREFORE, in consideration of mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT; POSITION AND DUTIES; EXCLUSIVE SERVICES.
(a) EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company, for the Term provided in Section
2 hereof and upon the other terms and conditions hereinafter provided.
(b) POSITION AND DUTIES/COMPANY. During the Term as defined in Section 2
hereof, the Executive (i) agrees to act as in-house legal counsel for the
Company and Independent Bank Corp. ("IBC") and hold the title of General Counsel
of the Company and of IBC and to perform such reasonable duties as may be
assigned to him from time to time by the President and Chief Executive Officer
of the Company, and (ii) shall report to the President and Chief Executive
Officer of the Company.
(c) EXCLUSIVE SERVICES. During the Term, and except for illness or
incapacity, the Executive shall devote all of his business time, attention,
skill and efforts exclusively to the business and affairs of the Company, and
it's affiliates, shall not engage in any other business activity, and shall
perform and discharge well and faithfully the duties which may be assigned to
him from time to time by the President and Chief Executive; provided, however,
that nothing in this Agreement shall preclude the Executive from devoting
reasonable time during reasonable periods required for any or all of the
following:
(i) serving, in accordance with the Company's policies and with the
prior approval of the President and Chief Executive Officer of the Company, as a
director or member of a committee of any other company or organization involving
no actual or potential conflict of interest with the Company, or any of its
subsidiaries or affiliates;
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(ii) investing his personal assets in businesses in which his
participation is solely that of a passive investor in such form or manner as
will not require any services on the part of the Executive in the operation or
affairs of such businesses and in such form or manner which will not create any
conflict of interest with or create the appearance of any conflict of interest
with, his duties at the Company;
(iii) acting as Executor under a will or as Attorney In Fact
pursuant to any Power Of Attorney;
(iv) acting as counsel to the plaintiff Xxxxxxx St. Germain in the
case commonly known as XXXXXXX M ST XXXXXXX x. THE BOSTON POPCORN COMPANY, INC.,
Middlesex Superior Court Civil Action No. 96-2404-F;
provided, however, that such activities in the aggregate shall not materially
adversely affect or interfere with the performance of the Executive's duties and
obligations to the Company hereunder.
2. TERM OF EMPLOYMENT.
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to accept such employment in the capacity set forth herein, for a period
commencing on the date hereof ("Commencement Date") and ending "at will" by
either party upon written notice of termination by one party given to the other
at least fourteen (14) days prior to the termination date specified in such
notice, except as provided by Section 5 hereof. The term of this Agreement, as
the same may be terminated pursuant to Section 5, shall hereinafter be referred
to as the "Term."
3. CASH COMPENSATION. As compensation to the Executive for all services to
be rendered by him in any capacity hereunder, the Company shall pay during the
Term an annual base salary at the current rate of One Hundred Seventy-five
Thousand and 00/100 Dollars ($175,000.00) per annum, payable no less frequently
than bi-weekly ("Base Salary"). The Board of Directors (the "Board") may from
time to time at its discretion review the compensation provisions of this
Agreement and shall have the authority to pay an increased base salary, or bonus
or other additional compensation to the Executive.
4. BENEFITS.
(a) TRAVEL AND BUSINESS-RELATED EXPENSES. During the Term, the Executive
shall be reimbursed in accordance with the policies of the Company as in effect
from time to time for travel and other reasonable expenses incurred in the
performance of the business of the Company.
(b) GROUP LIFE INSURANCE. The Company agrees to include the Executive under
the Company's group life insurance policy in accordance with the policies of the
Company as in effect from time to time. The Company shall pay all premiums for
such coverage.
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(c) SICK LEAVE/DISABILITY. The Executive will enjoy the same sick leave and
short term and long term disability coverage as in effect from time to time for
employees of the Company generally.
(d) RETIREMENT PLANS. The Executive will be eligible to participate in the
Company's retirement benefit plans each in accordance with the terms of such
plans as in effect from time to time.
(e) VACATION/HOLIDAYS. The Executive will receive four (4) weeks paid
vacation, on an "as earned" basis each year and will receive ten (10) holidays
each year.
(f) INSURANCE. During the Term, the Executive shall participate in all
insurance programs (medical, dental, surgical, hospital) adopted by the Company,
including dependent coverage, to the same extent as other executives of the
Company from time to time.
(g) INCENTIVE COMPENSATION PLAN. The Executive shall be eligible to
participate in the Company's Executive Incentive Compensation Plan, in
accordance with the terms of such plan as in effect from time to time.
(h) TAXES. Except as otherwise specifically provided herein, the Executive
recognizes that some or all of the foregoing benefits and those set forth in
Section 3 may give rise to a federal and/or state income tax liability, and
agrees to be responsible for such liability.
(i) SPLIT DOLLAR AGREEMENT. The Company agrees to use all reasonable
efforts to obtain life insurance on the life of the Executive and enter into
either, at the option of the Company, a split dollar insurance agreement (the
"Split Dollar Agreement") or another non-qualified plan for the Executive with
respect thereto on terms and conditions and with benefits comparable to those
applicable and available to similarly situated executives of the Company. The
Executive agrees to cooperate with the Company, its representatives and agents
and any insurance companies and their respective agents and representatives, in
order to execute such an agreement or plan and obtain such insurance.
Notwithstanding the foregoing, the Company shall not be required to expend
amounts in excess of 125 percent of the average premium cost for a person of the
Executive's gender and age in order to obtain such insurance. Notwithstanding
anything to the contrary contained herein, in the event a Split Dollar Agreement
is entered into by the parties, the Company agrees to gross-up the compensation
of the Executive in an amount determined by the Company's accountants as
necessary to reimburse the Executive for (A) the sum of federal and
Massachusetts income tax incurred by the Executive on account of the X.X.- 00
benefit in the insurance policy described under a Split Dollar Agreement, and
(B) the cost of any rider that the Executive purchases on the insurance policy
described in such Split Dollar Agreement for the waiver of premiums in the event
of his disability, and (C) the tax effect of the reimbursements set
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forth in (A) and (B) hereof, and to pay such amounts to the Executive in a lump
sum payment no later than three (3) business days prior to the earliest date on
which any federal or Massachusetts income taxes are due on account of such
P.S.-58 benefit and/or the cost for the waiver of premiums. This clause (i) of
Section 4 shall remain in full force and effect and shall survive any
termination of this Agreement by reason of the disability of the Executive.
5. TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON.
(i) If the Executive's employment is terminated by the Company for
Cause or if the Executive resigns from his employment for any reason other
than for Good Reason, as defined below in Section 5(a)(iii), the Executive
shall have no right to receive compensation or other benefits for any period
after such Termination for Cause or resignation for any reason other than for
Good Reason, except as may be required by law and except that the Executive's
rights to exercise his stock options in the event his employment terminates
shall be governed by the Independent Bank Corp. 1987 Incentive Stock Option
Plan and/or any other relevant stock option plan, as appropriate (the
"Plans") and the relevant stock option agreement.
(ii) Termination for "Cause" shall refer to the Company's termination
of the Executive's service with the Company at any time because the Executive
has: (A) refused or failed to devote his full normal working time, skills,
knowledge, and abilities to the business of the Company, its subsidiaries and
affiliates, and in promotion of their respective interests pursuant to Section 1
hereof; or (B) engaged in (1) activities involving his personal profit as a
result of his dishonesty, incompetence, willful misconduct, willful violation of
any law, rule or regulation or breach of fiduciary duty, or (2) dishonest
activities involving the Executive's relations with the Company, its
subsidiaries and affiliates or any of their respective employees, customers or
suppliers; or (C) committed larceny, embezzlement, conversion or any other act
involving 1l1e misappropriation of Company or customer funds in the course of
his employment; or (D) been convicted of any crime which reasonably could affect
in an adverse manner the reputation of the Company or the Executive's ability to
perform the duties required hereunder; or (E) committed an act involving gross
negligence on the part of the Executive in the conduct of his duties hereunder;
or (F) evidenced a drug addiction or dependency; or (G) materially breached this
Agreement; provided, however, that, in the case of any termination pursuant to
clauses (A), (E), (F), or (G) above, the Company shall give the Executive thirty
(30) business days' written notice thereof during which period the Employee, at
the discretion of the Company, may be placed on administrative leave, and the
Company shall give the Executive an opportunity to cure within such thirty-day
period, and a reasonable opportunity to be heard by the Compensation Committee
of the Board to show just cause for his actions, and to have the Compensation
Committee of the Board, in its discretion, reverse or rescind the prior action
of the Company under the clause(s).
(iii) Resignation for "Good Reason" shall mean the resignation of the
Executive after (A) the Company without the express written consent of the
Executive, materially breaches this Agreement to the substantial detriment of
the Executive; or (B) the Board or the President and Chief Executive Officer,
without Cause (as defined in Section 5(a)(ii) above), substantially changes the
Executive's core duties or removes the Executive's responsibility for those core
duties, so as to effectively cause the Executive to no longer be performing the
duties of an executive in the capacity for which the
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Executive was hired; provided, however, that, in the case of resignation
pursuant to this subsection (iii), the Executive shall give the Company thirty
(30) business days' written notice thereof and, during such thirty day period,
an opportunity to cure. Anything to the contrary in this Agreement
notwithstanding, a termination by the Executive for any reason during the 30-day
period immediately following the first anniversary of the effective date of a
Change of Control (as defined in Section 5(c) hereof) shall be deemed to be a
resignation for Good Reason for all purposes of this Agreement.
(iv) The date of termination of employment by the Company for purposes
of Section 5 hereof shall be the date that the written notice of termination
from the Company to the Executive is written, and the Company agrees to use all
good faith efforts to deliver the written notice to the Executive as soon as
possible after the notice is written. The date of a resignation by the Executive
for purposes of Section 5 hereof shall be the date specified in the written
notice of resignation from the Executive to the Company.
(b) TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON. If during the
term of this Agreement, either (A) the Executive's employment with the Company
and/or any of its parent, subsidiaries or affiliates is terminated for any
reason other than death, disability (as defined in Section 5(e) hereof) or for
Cause (as such term is defined in Section 5(a)(ii) hereof), or (B) the Executive
resigns for Good Reason (as such term is defined in Section 5(a)(iii) hereof)
from employment with the Company and/or any of its parent, subsidiaries or
affiliates, the Executive shall be entitled (C)(x) to receive his then current
Base Salary for a period of twelve (12) months from the termination or
resignation date, payable at such times as such Base Salary would be payable as
if no such termination or resignation had occurred, (C)(y)(1) to continue
participation in the plans and arrangements described in clauses (b) and (f) of
Section 4 hereof (to the extent permissible by law and the terms of such plans
and arrangements) for a period of twelve (12) months after such termination or
resignation (the "Continuation Period"), or (C)(y)(2) to the extent at any time
following termination of this Agreement and during the Continuation Period that
the plans and arrangements described in clauses (b) and (f) of Section 4 hereof
are discontinued or terminated and no comparable plans in which the Executive is
permitted to continue participation are established in their place, then to
receive a gross bonus payment in an amount which after payment therefrom of all
applicable federal and state income and employment taxes, will equal the cost to
the Company at the time of the termination, resignation or discontinuation of
any such plans, attributable to the Executive's participation in the plans and
arrangements described in clauses (b) and (f) of Section 4 hereof for the
Continuation Period less any portion thereof in which the Executive has
continued his participation in such plans and arrangements described in clauses
(b) and (f) of Section 4 hereof in accordance with subsection 5(b)(C)(y)(l)
above; which payment shall be due following termination or resignation of the
Executive's employment immediately upon the date of termination, resignation or
discontinuation of any such plan, and (C)(z) to have all stock options which
have been granted to the Executive to immediately become fully exercisable and
to remain exercisable for a period of three (3) months after the employment
termination date in accordance with the terms of the Plans and the relevant
stock options agreement, provided, however, that if the provisions of Section
5(c) are applicable to such termination or resignation of employment, the
Executive's rights shall be governed by Section 5(c).
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(c) CHANGE IN CONTROL.
(i) If during the term of this Agreement, any of the events
constituting a Change of Control (as such term is defined in Section 5(c)(ii)
hereof), shall be deemed to have occurred, and following such Change of Control,
either (A) the Executive's employment with the Company and/or any of its parent,
subsidiaries, affiliates, or successors by merger or otherwise as a result of
the Change of Control, is terminated for any reason other than death, disability
(as defined in Section 5(e) hereof) or for Cause (as such term is defined in
Section 5(a)(ii) hereof), or (B) the Executive resigns for Good Reason (as such
term is defined in Section 5(a)(iii) hereof) from employment with the Company
and/or any of its parent, subsidiaries, affiliates, or successors by merger or
otherwise as a result of the Change of Control, the Executive shall be entitled
(C)(x) to receive his then current Base Salary for a period of twenty four (24)
months from the date of termination of this Agreement without Cause or
resignation for Good Reason and to receive an amount equal to two (2) times the
greater of (a) the aggregate amount of payments made to the Executive during the
twelve (12) months preceding the date of termination of this Agreement without
Cause or resignation for Good Reason, or (b) the aggregate amount of payments
made to the Executive during the twelve (12) months preceding the Change of
Control, in each case pursuant to any bonus or incentive compensation plan,
including without limitation, the Rockland Trust Company Officer and Executive
Incentive Compensation Plan, as amended from time to time, in each case payable
in a lump sum cash payment immediately following such termination, and (C)(y)(l)
to continue participation in the plans and arrangements described in clauses (b)
and (f) of Section 4 hereof (to the extent permissible by law and the terms of
such plans and arrangements) for the period of twenty four (24) months after
such termination or resignation (the "Benefits Period"), or (C)(y)(2) at the
election of the Executive at any time following termination of this Agreement
and during the Benefits Period, to receive a gross bonus payment in an amount
which after payment therefrom of all applicable federal and state income and
employment taxes, will equal the cost to the Company at the time of the
Executive's election, attributable to the Executive's participation in the plans
and arrangements described in clauses (b) and (f) of Section 4 hereof for the
Benefits Period less any portion thereof in which the Executive has continued
his participation in such plans and arrangements described in clauses (b) and
(f) of Section 4 hereof in accordance with subsection 5(c)(i)(C)(y)(1) above;
which payment shall be due following termination or resignation of the
Executive's employment immediately upon the Executive's delivery of written
notice to the Company of his election pursuant to subsection 5(c)(i)(C)(y)(2),
and (C)(z) to have all stock options which have been granted to the Executive to
immediately become fully exercisable and to remain exercisable for a period of
three (3) months after the termination or resignation date (as the case may be),
in accordance with the terms of the Plan and the relevant stock option
agreement.
(ii) A "Change of Control" shall be deemed to have occurred if,
subsequent to the date hereof and during the term of this Agreement (A) any
"person" (as such term is defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended) is or becomes the beneficial owner, directly or
indirectly, of either (x) a majority of the outstanding common stock of IBC or
the Company, or (y) securities of either IBC or the Company representing a
majority of the combined voting power of the then outstanding voting securities
of either IBC or the Company, respectively, or (B) during any period of two
consecutive years following the date hereof, individuals who at the beginning of
any such two year period constitute the Board of Directors of IBC cease, at any
time after the beginning of such period, for any reason to constitute a majority
of the Board of Directors of IBC, unless the election of each new director was
nominated or approved by at least two thirds of the directors of the Board then
still in office who were either directors at the beginning of such two year
period or whose election or whose nomination for election was previously so
approved.
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(iii) In the event any amount payable as compensation to the Executive
under this Agreement when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement would
constitute a Parachute Payment (as hereinafter defined), the amount payable as
compensation under Section 5(c)(i) of this Agreement shall be reduced (but not
below zero) to the largest amount which is not a Parachute Payment (as
hereinafter defined) when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement. For
purposes hereof, the term Parachute Payment shall have the meaning given to
parachute payments set out in Internal Revenue Code of 1986 Section
280G(b)(2)(A) (relating to the quantification of parachute payments) as then in
effect determined without regard to the provisions of Internal Revenue Code of
1986 Section 280G(b)(4) (relating to the exclusion of reasonable compensation
from parachute payments) as then in effect. Notwithstanding the foregoing, if
the Executive proves to the satisfaction of the Compensation Committee of the
Company's Board of Directors (if no such Compensation Committee then is in
existence, then any other committee of the Board of Directors of Company then
performing the functions of a compensation committee) with clear and convincing
evidence that all or any portion of the amount of the reduction provided in the
preceding sentence would not constitute a parachute payment within the meaning
of such term as defined in Internal Revenue Code of 1986 Section 280G(b)(2)(A)
as then in effect determined with regard to the provisions of Internal Revenue
Code of 1986 Section 280G(b)(4) as then in effect and that the Company's tax
reporting position in regard to the payment is overwhelmingly likely to be
sustained, then the reduction provided in the preceding sentence shall be
adjusted to permit payment of so much of such reduction as the said Compensation
Committee determines will result in the largest amount which would not
constitute a parachute payment within the meaning of such term as defined in
Internal Revenue Code of 1986 Section 280G(b)(2)(A) as then in effect
determined with regard to the provisions of Internal Revenue Code of 1986
Section 280G(b)(4) as then in effect.
(d) MITIGATION; LEGAL FEES. The Executive shall not be required to mitigate
the amount of any payment provided for in either Section 5(b) or Section 5(c)(i)
by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in Section 5(b) or Section 5(c)(i) be reduced by any
compensation earned by the Executive as a result of self-employment or
employment by another employer, by retirement benefits or by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
Following a Change of Control, the Company agrees to pay, as incurred, all legal
fees and expenses which the Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement) plus in each case interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986 as then in effect.
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(e) TERMINATION BY REASON OF DEATH OR DISABILITY.
(i) Notwithstanding anything to the contrary contained in this
Agreement, the employment hereunder of the Executive shall be automatically
terminated upon the death of the Executive after which time the Company shall
have no further obligation to the Executive or his estate for any compensation
or benefits hereunder, except to the extent any compensation or benefits are due
to the Executive or his estate for any period prior to his death, provided,
however, that this Section 5(e)(i) shall not affect in any manner any other
benefits to which the Executive or his estate may be entitled or which may vest
or accrue upon his death under any arrangement, plan or program (other than this
Agreement) with the Company, by law or otherwise.
(ii) Notwithstanding anything to the contrary contained in this
Agreement, the employment hereunder of the Executive may be terminated by reason
of disability, upon written notice to the Executive, in the event of the
inability of the Executive to perform his duties hereunder by reason of
disability, whether by reason of injury (physical or mental), illness (physical
or mental) or otherwise, incapacitating the Executive for a continuous period
exceeding one hundred and eighty (180) days, as certified by a physician
selected by the Company in good faith, and the Company shall have no further
obligation under this Agreement to the Executive for any compensation or
benefits hereunder, except to the extent any compensation or benefits are due to
the Executive for any period prior to his termination by reason of disability,
provided, however, that this Section 5(e)(ii) shall not affect in any manner
other benefits to which the Executive may be entitled or which may accrue or
vest upon his disability and the Executive shall be entitled to receive such
compensation and benefits during and after such period of disability as the
Company's policies and procedures in effect from time to time provide for
similarly situated executives, as if the Executive and the Company had not
entered into this Agreement.
(iii) The Executive's rights to exercise his stock options in the
event of termination of his employment by reason of his death or disability
shall be governed by the Plans and the relevant stock option agreement.
6. CONFIDENTIALITY AND NON-COMPETITION.
(a) CONFIDENTIALITY. The Executive recognizes and acknowledges as an
employee of the Company, he will have access to, become acquainted with, and
obtain financial information and knowledge relating to the business, financial
condition, methods of operation and other aspects of the Company, its parent,
subsidiaries and affiliates ("Affiliated Companies") and their customers,
employees and suppliers, some of which information and knowledge is confidential
and proprietary and that the Executive could substantially detract from the
value and business prospects of the Affiliated Companies in the event, while
employed by the Company or any time thereafter, the Executive were to disclose
to any person not related to the Affiliated Companies or use such information
and knowledge for his or such other person's advantage. Accordingly, the
Executive hereby agrees that he will not disclose to any person, other than
directors, officers, employees, accountants, lawyers, consultants, advisors,
agents and
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representative of, or other persons related to, the Affiliated Companies on a
need to know basis in the course of carrying out his duties hereunder, any
knowledge or information of a confidential nature pertaining to the Affiliated
Companies, or their successors and assigns, including without limitation, all
unpublished matters relating to the business, properties, accounts, books and
records, business plan and customers of the said corporations, or their
successors and assigns, except with the prior written approval of the Board, or
except as may be required by law.
(b) EQUITABLE RELIEF. The Executive acknowledges and agrees (i) that the
provisions of this Section 6 are reasonable and necessary for the protection of
the Company, its subsidiaries and affiliates or its or their successors and
assigns, and (ii) that the remedy at law for any breach by him of the provisions
of this Section 6 will be inadequate and, accordingly, the Executive hereby
agrees that in the case of any such breach (x) the Company or its successors and
assigns shall be entitled to injunctive relief, in addition to any other remedy
they may have, and (y) the Executive shall forfeit any future payments or
benefits to which he might be entitled hereunder.
(c) NON-SOLICITATION. For a period of one (1) year after the Executive
receives any compensation pursuant to this Agreement he will not (i) solicit,
divert or take away, directly or indirectly, any Major Customer of the Company,
its parent, subsidiaries or affiliates, or its or their successors and assigns,
or (ii) directly or indirectly induce or attempt to influence any employee of
the Company, its parent or any of its subsidiaries, or affiliates, or their
successors and assigns, to terminate his employment with the Company, its parent
or ally of its subsidiaries or affiliates or their successors or assigns. As
used herein, "Major Customer" shall mean any customer of the Company who has
maintained an average deposit balance of at least $100,000 during the last six
months of the Term or who has maintained or obtained a credit facility of at
least $100,000 from the Company during the last six months of the Term.
(d) ENFORCEABILITY. The covenants on the part of the Executive contained in
this Section 6 shall be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
by the Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
said covenants. This Section shall survive the termination of this Agreement.
The period, geographical area and the scope of the restrictions on the Executive
set forth herein are divisible so that if any provision of this Section 6 is
invalid, that provision shall be automatically modified to the extent necessary
to make it valid.
(e) JURISDICTION. Employee hereby submits to the exclusive jurisdiction of
the courts of Massachusetts and the Federal courts of the United States of
America located in such state in respect to the interpretation and enforcement
of the provisions of this Section 6, and Employee hereby waives, and agrees not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement of this Section 6, that Employee is not subject thereto or that
such action, suit or proceeding may not be brought or is not maintainable in
said courts or that this Agreement may not be enforced in or by said courts or
that Employee's property is exempt or immune from execution, that the suit,
action or proceeding is brought in an inconvenient forum, or that venue is
improper.
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7. DISPUTES.
(a) Any dispute relating to this Agreement, or to the breach of this
Agreement, except such as may concern Section 6, arising between the Executive
and the Company shall be settled by arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA"),
which arbitration may be initiated by any party hereto by written notice to the
other of such party's desire to arbitrate the dispute. The arbitration
proceedings, including the rendering of an award, shall take place in Boston,
Massachusetts, and shall be administered by the AAA.
(b) The arbitrator shall be appointed within thirty (30) days of the notice
of dispute, and shall be chosen by the parties from the names of available
arbitrators furnished to the parties in list form by the AAA. The parties may
review and reject names of available arbitrators from up to an aggregate of
three lists furnished to the parties by the AAA. If, after having been furnished
three lists of arbitrators, the parties cannot agree on one available
arbitrator, either party may request that the AAA appoint an arbitrator to
arbitrate the dispute.
(c) The award of the arbitrator shall be final except as otherwise provided
by the laws of the Commonwealth of Massachusetts and the federal laws of the
United States, to the extent applicable. Judgment upon such award may be entered
by the prevailing party in any state or federal court sitting in Boston,
Massachusetts.
(d) No arbitration proceedings hereunder shall be binding upon or in any
way affect the interests of any party other than the Company, or its successors
and the Executive, with respect to such arbitration.
8. INDEMNIFICATION.
The Company shall indemnify the Executive to the fullest extent permitted
by Massachusetts law, which indemnification may require the advance of expenses
to the Executive, if and to the extent permitted by such law. In the event of
any claim for indemnification by the Executive, the Executive shall deliver
written notice of any such claim promptly upon such a claim being made known to
the Executive, which notice shall set forth the basis for such claim. The
Company shall have the right to undertake the defense of such claim with counsel
of its choice.
9. NON-COMPETITION AND NON-DISCLOSURE COMMITMENTS.
The Executive hereby represents and warrants that he is not a party to or
otherwise bound by any contracts, agreements or arrangements which contain
covenants limiting the freedom of the Executive to compete in any line of
business or with any person or entity, or which provide that the Executive must
maintain the confidentiality of, or prohibit the Executive from using, any
information in the context of his professional or personal activities. The
Executive further represents and warrants that neither the execution or delivery
of this Agreement nor the performance by the Executive of his duties hereunder
will cause any breach of any contract, agreement or arrangement to which he is a
party or by which he is bound.
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10. ARM'S LENGTH NEGOTIATIONS; REPRESENTATION BY COUNSEL.
The parties to this Agreement further agree that this Agreement has been
negotiated by each in an arm's length transaction. The Executive acknowledges
that he has had the opportunity to be represented by legal counsel in connection
with this Agreement.
11. TAX WITHHOLDINGS.
Payments to the Executive of all compensation contemplated under this
Agreement shall be subject to all applicable legal requirements with respect to
the withholding of taxes and other deductions required by law.
12. NON-ASSIGNABILITY; BINDING AGREEMENT.
Neither this Agreement nor any right, duty, obligation or interest
hereunder shall be assignable or delegable by the Executive without the
Company's prior written consent; provided, however, that (i) nothing in this
Section shall preclude the Executive from designating any of his beneficiaries
to receive any benefits payable thereunder upon his death or disability, or his
executors, administrators, or other legal representatives, from assigning any
rights hereunder to the person or persons entitled thereto, and (ii) any
successor to the Company pursuant to any merger or consolidation involving the
Company, and any purchaser of all or substantially all the assets of the
Company, shall succeed to the rights and assume the obligations of the Company
under this Agreement, and the Company covenants that it will not enter into or
consummate any such transaction which does not make express provision for such
succession and assumption. Subject to the foregoing, this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto, any successors to
or assigns of the Company, the Executive's heirs and the personal
representatives of the Executive's estate.
13. AMENDMENT; WAIVER.
This Agreement may not be mollified, amended or waived in any manner except
by an instrument in writing signed by the parties hereto. The waiver by any
party of compliance with any provision of this Agreement by the other party
shall not operate or be construed as a waiver of any provision of this Agreement
11
14. NOTICES.
Any notice hereunder by either party to the other shall be given in writing
by personal delivery, telex, telecopy or certified mail, return receipt
requested, to the applicable address set forth below:
(i) To the Company: Rockland Trust Company
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn.: President
(ii) To the Executive: Xxxxxx X. Xxxxxx, Esquire
00 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
(or such other address as may from time to time be designated by notice by
either party hereto for such purpose). Notice shall be deemed given, if by
personal delivery, on the date of such delivery or, if by telex or telecopy, on
the business day following receipt of answer back or telecopy confirmation or if
by certified mail, on the date shown on the applicable return receipt.
15. GOVERNING LAW.
This Agreement is to be governed by and interpreted in accordance with the
laws of The Commonwealth of Massachusetts. If, under such law, any portion of
this Agreement is at any time deemed to be in conflict with any applicable
statute, rule, regulation or ordinance, such portion shall be deemed to be
modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement, and the invalidity of any such portion shall not
affect the force, effect and validity of the remaining portion thereof.
16. SUPERSEDES PREVIOUS AGREEMENTS.
This Agreement constitutes the entire understanding between the Company and
the Executive relating to the employment of the Executive by the Company and
supersedes and cancels all prior written and oral agreements and understandings
with respect to the subject matter of this Agreement.
17. COUNTERPARTS.
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed to be an original, but such counterparts shall together
constitute one and the same instrument.
12
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date first above written.
ROCKLAND TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Its: Chairman, President & CEO
INDEPENDENT BANK CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------
Its: Chairman, President & CEO
/s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
AMENDMENT NO. 1 TO SECOND AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
Reference is made to the Agreement dated and effective as of February 1,
1993 by and between Rockland Trust Company, a Massachusetts trust company (the
"Company") and Xxxxxxxxx X. Xxxxxx of Duxbury, Massachusetts (the "Executive"),
as amended and restated as of October 31, 1994 and as further amended and
restated as of January 19, 1996 (the "Employment Agreement"). Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Employment Agreement.
W I T N E S S E T H
WHEREAS, the Executive and the Company are desirous of amending certain
provisions of the Employment Agreement to provide that certain additional
benefits be paid to the Executive upon the occurrence of a change of control of
Independent Bank Corp. ("IBC"), the parent bank holding company of the Company,
where such occurrence
13
is followed by a termination of the Executive's employment without cause or the
Executive's resignation with good reason as such terms are defined in the
Employment Agreement;
WHEREAS, the Executive and the Company are desirous of amending the
Employment Agreement as set forth above.
NOW THEREFORE, in consideration of mutual covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Section 5(c)(i) of the Employment Agreement is hereby amended and
restated to read as follows:
(c) CHANGE IN CONTROL.
(i) If during the term of this Agreement, any of the events
constituting a Change of Control (as such term is defined in Section 5(c)
(ii) hereof), shall be deemed to have occurred and following such Change of
Control, either (A) the Executive's employment with the Company and/or any of
its parent, subsidiaries, affiliates, or successors by merger or otherwise as
a result of the Change of Control, is terminated for any reason other than
death, disability (as defined in Section 5(e) hereof) or for Cause (as such
term is defined in Section 5(a)(ii) hereof), or (B) the Executive resigns for
Good Reason (as such term is defined in Section 5(a)(iii) hereof) from
employment with the Company and/or any of its parent, subsidiaries,
affiliates, or successors by merger or otherwise as a result of the Change of
Control, the Executive shall be entitled (C)(x) to receive
14
his then current Base Salary for a period of twenty four (24) months from the
date of termination of this Agreement without Cause or resignation for Good
Reason and to receive an amount equal to two (2) times the greater of (a) the
aggregate amount of payments made to the Executive during the twelve (12) months
preceding the date of termination of this Agreement without Cause or resignation
for Good Reason, or (b) the aggregate amount of payments made to the Executive
during the twelve (12) months preceding the Change of Control, in each case
pursuant to any bonus or incentive compensation plan, including without
limitation, the Rockland Trust Company Officer and Executive Incentive
Compensation Plan, as amended from time to time, in each case payable in a lump
sum cash payment immediately following such termination, and (C)(y)(1) to
continue participation in the plans and arrangements described in clauses (b)
and (f) of Section 4 hereof (to the extent permissible by law and the terms of
such plans and arrangements) for the period of twenty-four (24) months after
such termination or resignation (the "Benefits Period"), or (C)(y)(2) at the
election of the Executive at any time following termination of this Agreement
and during the Benefits Period, to receive a gross bonus payment in an amount
which after payment therefrom of all applicable federal and state income and
employment taxes, will equal the cost to the Company at the time of the
Executive's election, attributable to the Executive's participation in the plans
and arrangements described in clauses (b) and (f) of Section 4 hereof for the
Benefits Period less any portion thereof in which the Executive has continued
his participation in such plans and arrangements described in clauses (b) and
(f) of Section 4 hereof in accordance with subsection 5(c)(i)(C)(y)(1) above;
which payment shall be due following termination or resignation of the
Executive's employment immediately upon the Executive's delivery of written
notice to the Company of his election pursuant to subsection 5(c)(i)(C)(y)(2) ,
and (C)(z) to have all stock options which have been granted to the Executive to
immediately become fully exercisable and to remain exercisable for a period of
three (3) months after the termination or resignation date (as the case may be),
in accordance with the terms of the Plan and the relevant stock
15
option agreement, and (C)(zz) upon his written notice to the Company during a
period of three months following the termination or resignation date (as the
case may be), to purchase his Company owned automobile at a purchase price equal
to the book value of said automobile as carried on the books and records of the
Company, plus all applicable excise taxes.
2. RATIFICATION.
All other provisions of the Employment Agreement shall remain unchanged and
in full force and effect, and are hereby ratified and confirmed by the parties
hereto.
3. COUNTERPARTS.
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed to be an original, but such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Amendment No.1 to Second
Amended and Restated Employment Agreement as of July 9, 1998.
ROCKLAND TRUST COMPANY
By: /S/ XXXXXXX X. XXXXXXXXX
-------------------------
CEO
-------------------------
INDEPENDENT BANK CORP.
By: /S/ XXXXXXX X. XXXXXXXXX
-------------------------
Its: CEO
------------------------
/S/ XXXXXXXXX X. XXXXXX
-----------------------------
XXXXXXXXX X. XXXXXX
16
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Agreement dated and effective as of February 1, 1993 by and between
Rockland Trust Company, a Massachusetts trust company (the "Company") and
Xxxxxxxxx X. Xxxxxx of Duxbury, Massachusetts (the "Executive"), as amended and
restated as of October 31, 1994 and as further amended and restated as of this
19th day of January, 1996 (the "Employment Agreement").
W I T N E S S E T H
WHEREAS, the Executive and the Company are desirous of amending certain
provisions of the Employment Agreement to provide that certain additional
benefits be paid to the Executive upon (a) the occurrence of a change of
control of Independent Bank Corp. ("IBC"), the parent bank holding company of
the Company, where such occurrence is followed by a termination of the
Executive's employment without cause or the Executive's resignation with good
reason as such terms are defined herein, or (b) termination of the
Executive's employment for any reason during a thirty (30) day period
following the one year anniversary of a change of control, on the terms and
conditions herein set forth;
WHEREAS, the Executive and the Company are desirous of amending certain
provisions of the Employment Agreement to provide for certain additional
compensation benefits to the Executive; and
WHEREAS, the Executive and the Company are desirous of amending the
Employment Agreement as set forth above and restating the amended Employment
Agreement as herein set forth.
NOW THEREFORE, in consideration of mutual covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. EMPLOYMENT; POSITION AND DUTIES; EXCLUSIVE SERVICES.
(a) EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company, for the Term provided in Section
2 hereof and upon the other terms and conditions hereinafter provided.
17
(b) POSITION AND DUTIES/COMPANY. During the Term as defined in Section 2
hereof, the Executive (i) agrees to oversee and manage all the operations and
functions of the Company's commercial loan division and hold the title of
Executive Vice President of the Company and to perform such reasonable duties as
may be assigned to him from time to time by the President and Chief Executive
Officer of the Company, and (ii) shall report to the President and Chief
Executive Officer of the Company.
(c) Exclusive Services. During the Term, and except for illness or
incapacity, the Executive shall devote all of his business time, attention,
skill and efforts exclusively to the business and affairs of the Company, and
its affiliates, shall not be engaged in any other business activity, and shall
perform and discharge well and faithfully the duties which may be assigned to
him from time to time by the President and Chief Executive; provided, however,
that nothing in this Agreement shall preclude the Executive from devoting
reasonable time during reasonable periods required for any or all of the
following:
(i) serving, in accordance with the Company's policies and with the
prior approval of the President and Chief Executive Officer of the Company, as a
director or member of a committee of any other company or organization involving
no actual or potential conflict of interest with the Company, or any of its
subsidiaries or affiliates;
(ii) investing his personal assets in businesses in which his
participation is solely that of a passive investor in such form or manner as
will not require any services on the part of the Executive in the operation or
affairs of such businesses and in such form or manner which will not create any
conflict of interest with or create the appearance of any conflict of interest
with, his duties at the Company;
provided, however, that such activities in the aggregate shall not
materially adversely affect or interfere with the performance of the Executive's
duties and obligations to the Company hereunder.
2. TERM OF EMPLOYMENT.
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to accept such employment in the capacity set forth herein, for a period
commencing on the date hereof ("Commencement Date") and ending "at will" by
either party upon written notice of termination by one party given to the other
at least fourteen (14) days prior to the termination date
18
specified in such notice, except as provided by Section 5 hereof. The term of
this Agreement, as the same may be terminated pursuant to Section 5, shall
hereinafter be referred to as the "Term."
3. CASH COMPENSATION.
As compensation to the Executive for all services to be rendered by him in
any capacity hereunder, the Company shall pay during the Term an annual base
salary at the current rate of One Hundred Fifty Eight Thousand Six Hundred and
00/lOO Dollars ($158,600.00) per annum, payable no less frequently than bi-
weekly ("Base Salary"). The Board of Directors (the "Board") may from time to
time at its discretion review the compensation provisions of this Agreement and
shall have the authority to pay an increased base salary, or bonus or other
additional compensation to the Executive.
4. BENEFITS.
(a) TRAVEL AND BUSINESS-RELATED EXPENSES. The Executive shall be provided
with a Company owned automobile in accordance with the policies of the Company
regarding automobiles as in effect from time to time. During the Term, the
Executive shall be reimbursed in accordance with the policies of the Company as
in effect from time to time for travel and other reasonable expenses incurred in
the performance of the business of the Company.
(b) GROUP LIFE INSURANCE. The Company agrees to include the Executive under
the Company's group term life insurance policy in accordance with the policies
of the Company as in effect from time to time. The Company shall pay all
premiums for such coverage.
(c) SICK LEAVE/DISABILITY. The Executive will enjoy the same sick leave and
short term and long term disability coverage as in effect from time to time for
employees of the Company generally.
(d) RETIREMENT PLANS. The Executive will be eligible to participate in the
Company's retirement benefit plans each in accordance with the terms of such
plans as in effect from time to time.
(e) VACATION/HOLIDAYS. The Executive will receive four (4) weeks paid
vacation, on an "as earned" basis each year and will receive ten (10) holidays
each year.
19
(f) INSURANCE. During the Term, the Executive shall participate in all
insurance programs (medical, dental, surgical, hospital) adopted by the Company,
including dependent coverage, to the same extent as other executives of the
Company from time to time.
(g) INCENTIVE COMPENSATION PLAN. The Executive shall be eligible to
participate in the Company's Executive Incentive Compensation Plan, in
accordance with the terms of such plan as in effect from time to time.
(h) TAXES. Except as otherwise specifically provided herein, the Executive
recognizes that some or all of the foregoing benefits and those set forth in
Section 3 may give rise to a federal and/or state income tax liability, and
agrees to be responsible for such liability.
(i) SPLIT DOLLAR AGREEMENT. Notwithstanding anything to the contrary
contained herein, the Company agrees to gross-up the compensation of the
Executive in an amount determined by the Company as necessary to reimburse the
Executive for (A) the sum of federal and state income and employment tax
incurred by the Executive on account of the P.S.-58 benefit in the insurance
policy described under a Split Dollar Agreement dated as of January 19. 1996 by
and between the Company and the Executive (the "Split Dollar Agreement"), and
(B) the cost of any rider that the Executive purchases on the insurance policy
described in the Split Dollar Agreement for the waiver of premiums in the event
of his disability, and (C) the tax effect of the reimbursements set forth in (A)
and (B) hereof, and to pay such amounts to the Executive in a lump sum payment
no later than three (3) business days prior to the earliest date on which any
federal or state income and employment taxes are due on account of such P.S.-58
benefit and/or the cost for the waiver of premiums.
5. TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON.
(i) If the Executive's employment is terminated by the Company for
Cause or if the Executive resigns from his employment for any reason other than
for Good Reason, as defined below in Section 5(a)(iii), the Executive shall have
no right to receive compensation or other benefits for any period after such
Termination for Cause or resignation for any reason other than
20
for Good Reason, except as may be required by law and except that the
Executive's rights to exercise his stock options in the event his employment
terminates shall be governed by the Independent Bank Corp. 1987 Incentive Stock
Option Plan and/or any other relevant stock option plans, as appropriate (the
"Plans") and the relevant stock option agreement.
(ii) Termination for "Cause" shall refer to the Company's termination
of the Executive's service with the Company at any time because the Executive
has: (A) refused or failed to devote his full normal working time, skills,
knowledge, and abilities to the business of the Company, its subsidiaries and
affiliates, and in promotion of their respective interests pursuant to Section 1
hereof; or (B) engaged in (1) activities involving his personal profit as a
result of his dishonesty, incompetence, willful misconduct, willful violation of
any law, rule or regulation or breach of fiduciary duty, or (2) dishonest
activities involving the Executive's relations with the Company, its
subsidiaries and affiliates or any of their respective employees, customers or
suppliers; or (C) committed larceny, embezzlement, conversion or any other act
involving the misappropriation of Company or customer funds in the course of his
employment; or (D) been convicted of any crime which reasonably could affect in
an adverse manner the reputation of the Company or the Executive's ability to
perform the duties required hereunder; or (E) committed an act involving gross
negligence on the part of the Executive in the conduct of his duties hereunder;
or (F) evidenced a drug addiction or dependency; or (G) materially breached this
Agreement; provided, however, that, in the case of any termination pursuant to
clauses (A), (E), (F), or (G) above, the Company shall give the Executive thirty
(30) business days' written notice thereof, an opportunity to cure within such
thirty-day period, and a reasonable opportunity to be heard by the Board to show
just cause for his actions, and to have the Board, in its discretion, reverse or
rescind the prior action of the Company under the clause(s).
(iii) Resignation for "Good Reason" shall mean the resignation of the
Executive after (A) the Company without the express written consent of the
Executive, materially breaches this Agreement to the substantial detriment of
the Executive; or (B) the Board or the President and Chief Executive Officer,
without Cause (as defined in Section 5(a) (ii) above), substantially changes the
Executive's core duties or removes the Executive's responsibility for those core
duties, so as to effectively cause the Executive to no longer be performing the
duties of an executive in the capacity for which the Executive was hired;
provided, however, that, in the case of resignation pursuant to this subsection
(iii), the Executive shall give the Company thirty (30) business days' written
notice thereof and, during such thirty-day period, an opportunity to cure.
Anything to the contrary in this Agreement notwithstanding, a termination by the
Executive for any reason
21
during the 30-day period immediately following the first anniversary of the
effective date of a Change of Control (as defined in Section 5(c) hereof)
shall be deemed to be a resignation for Good Reason for all purposes of this
Agreement.
(iv) The date of termination of employment by the Company for purposes
of Section 5 hereof shall be the date that the written notice of termination
from the Company to the Executive is written, and the Company agrees to use all
good faith efforts to deliver the written notice to the Executive as soon as
possible after the notice is written. The date of a resignation by the Executive
for purposes of Section 5 hereof shall be the date specified in the written
notice of resignation from the Executive to the Company.
(b) TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON. If during
the term of this Agreement; either (A) the Executive's employment with the
Company and/or any of its parent, subsidiaries or affiliates is terminated
for any reason other than death, disability (as defined in Section 5(e)
hereof) or Cause (as such term is defined in Section 5(a)(ii) hereof), or (B)
the Executive resigns for Good Reason (as such term is defined in Section
5(a)(iii) hereof) from employment with the Company and/or any of its parent,
subsidiaries or affiliates, the Executive shall be entitled (C)(x) to receive
his then current Base Salary for a period of twelve (12) months from the
termination or resignation date, payable at such times as such Base Salary
would be payable as if no such termination or resignation had occurred, and
(C)(y)(1) to continue participation in the plans and, arrangements described
in clauses (b) and (f) of Section 4 hereof (to the extent permissible by law
and the terms of such plans and arrangements) for a period of twelve (12)
months after such termination or resignation (the "Continuation Period"), or
(C)(y)(2) to the extent at any time following termination of this Agreement
and during the Continuation Period that the plans and arrangements described
in clauses (b) and (f) of Section 4 hereof are discontinued or terminated and
no comparable plans in which the Executive is permitted to continue
participation are established in their place, then to receive a gross bonus
payment in an amount which after payment therefrom of all applicable federal
and state income and employment taxes, will equal the cost to the Company at
the time of the termination, resignation or discontinuation of any such
plans, attributable to the Executive's participation in the plans and
arrangements described in clauses (b) and (f) of Section 4 hereof for the
Continuation Period less any portion thereof in which the Executive has
continued his participation in such plans and arrangements described in
clauses (b) and (f) of Section 4 hereof in accordance with subsection
5(b)(G)(y)(1) above; which payment shall be due following termination or
resignation of the Executive's employment immediately upon the date
22
of termination, resignation or discontinuation of any such plan, and (C) (z) to
have all stock options which have been granted to the Executive to immediately
become fully exercisable and to remain exercisable for a period of three (3)
months after the employment termination date in accordance with the terms of the
Plans and the relevant stock option agreement, provided, however, that if the
provisions of Section 5(c) are applicable to such termination or resignation of
employment, the Executive's rights shall be governed by Section 5 (c).
(c) CHANGE IN CONTROL.
(i) If during the term of this Agreement any of the events
constituting a Change of Control (as such term is defined in Section 5(c)(ii)
hereof), shall be deemed to have occurred, and following such Change of
Control, either (A) the Executive's employment with the Company and/or any of
its parent, subsidiaries, affiliates, or successors by merger or otherwise as
a result of the Change of Control, is terminated for any reason other than
death, disability (as defined in Section 5(e) hereof) or for Cause (as such
term is defined in Section 5(a)(ii) hereof), or (B) the Executive resigns for
Good Reason (as such term is defined in Section 5(a)(iii) hereof) from
employment with the Company and/or any of its parent, subsidiaries,
affiliates, or successors by merger or otherwise as a result of the Change of
Control, the Executive shall be entitled (C)(x) to receive his then current
Base Salary for a period of twenty four (24) months from the date of
termination of this Agreement without Cause or resignation for Good Reason,
payable in a lump sum cash payment immediately following such termination or
resignation, and (C)(y)(1) to continue participation in the plans and
arrangements described in clauses (b) and (f) of Section 4 hereof (to the
extent permissible by law and the terms of such plans and arrangements) for
the period of twenty four (24) months after such termination or resignation
(the "Benefits Period"), or (C)(y)(2) at the election of the Executive at any
time following termination of this Agreement and during the Benefits Period,
to receive a gross bonus payment in an amount which after payment therefrom
of all applicable federal and state income and employment taxes, will equal
the cost to the Company at the time
23
of the Executive's election, attributable to the Executive's participation in
the plans and arrangements described in clauses (b) and (f) of section 4 hereof
for the Benefits Period less any portion thereof in which the Executive has
continued his participation in such plans and arrangements described in clauses
(b) and (f) of Section 4 hereof in accordance with subsection 5(c)(i)(C)(y)(1)
above; which payment shall be due following termination or resignation of the
Executive's employment immediately upon the Executive's delivery of written
notice to the Company of his election pursuant to subsection 5(c)(i)(C)(y)(2),
and (C)(z) to have all stock options which have been granted to the Executive to
immediately become fully exercisable and to remain exercisable for a period of
three (3) months after the termination or resignation date (as the case may be)
in accordance with the terms of the Plans and the relevant stock option
agreement, and (C)(zz) upon his written notice to the Company during a period of
three (3) months following the termination or resignation date (as the case may
be), to purchase his Company owned automobile at a purchase price equal to the
book value of said automobile as carried on the books and records of the
Company, plus all applicable excise taxes.
(ii) A "Change of Control" shall be deemed to have occurred if,
subsequent to the date hereof and during the term of this Agreement (A) any
"person" (as such term is defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended) is or becomes the beneficial owner, directly or
indirectly, of either (x) a majority of the outstanding common stock of IBC
or the Company, or (y) securities of either IBC or the Company representing a
majority of the combined voting power of the then outstanding voting
securities of either IBC or the Company, respectively, or (B) during any
period of two consecutive years following the date hereof, individuals who at
the beginning of any such two year period constitute the Board of Directors
of IBC cease, at any time after the beginning of such period, for any reason
to constitute a majority of the Board of Directors of IBC, unless the
election of each new director was nominated or approved by at least two
thirds of the directors of the Board then still in office who were either
directors at the beginning of such two year period or whose election or whose
nomination for election was previously so approved.
(iii) In the event any amount payable as compensation to the Executive
under this Agreement when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement would
constitute a Parachute Payment (as hereina(pound)ter defined), the amount
payable as compensation under Section 5(c)(i) of this Agreement shall be reduced
(but not below zero) to the largest
24
amount which is not a Parachute Payment (as hereinafter defined) when aggregated
with any other amounts payable as compensation to the Executive other than
pursuant to this Agreement. For purposes hereof, the term Parachute Payment
shall have the meaning given to parachute payments set out in Internal Revenue
Code of 1986 Section 280G(b)(2)(A) (relating to the quantification of parachute
payments) as then in effect determined without regard to the provisions of
Internal Revenue Code of 1986 Section 280G(b)(4) (relating to the exclusion of
reasonable compensation from parachute payments) as then in effect.
Notwithstanding the foregoing, if the Executive proves to the satisfaction of
the Compensation Committee of the Company's Board of Directors (if no such
Compensation Committee then is in existence, then any other committee of the
Board of Directors of Company then performing the functions of a compensation
committee) with clear and convincing evidence that all or any portion of the
amount of the deduction provided in the preceding sentence would not constitute
a parachute payment within the meaning of such term as defined in Internal
Revenue Code of 1986 Section 280G(b)(2)(A) as then in effect determined with
regard to the provisions of Internal Revenue Code of 1986 Section 280G(b)(4) as
then in effect and that the Company's tax reporting position in regard to the
payment is overwhelmingly likely to be sustained, then the reduction provided in
the preceding sentence shall be adjusted to permit payment of so much of such
reduction as the said Compensation Committee determines will result in the
largest amount which would not constitute a parachute payment within the meaning
of such term as defined in Internal Revenue Code of 1986 Section 280G(b)(2)(A)
as then in effect determined with regard to the provisions of Internal Revenue
Code of 1986 Section 280G(b)(4) as then in effect.
(d) MITIGATION; LEGAL FEES. The Executive shall not be required to mitigate
the amount of any payment provided for in either Section 5(b) or Section 5(c)(i)
by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided fot in Section 5(b) or Section 5(c)(i) be reduced by any
compensation earned by the Executive as a result of self-employment or
employment by another employer, by retirement benefits or by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
Following a Change of Control, the Company agrees to pay, as incurred, all legal
fees and expenses which the Executive may reasonable incur as a result of any
contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement) plus in each case interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986 as then in effect.
25
(e) TERMINATION BY REASON OF DEATH OR DISABILITY.
(i) Notwithstanding anything to the contrary contained in this
Agreement, the employment hereunder of the Executive shall be automatically
terminated upon the death of the Executive after which time the Company shall
have no further obligation to the Executive or his estate for any compensation
or benefits hereunder, except to the extent any compensation or benefits are due
to the Executive or his estate for any period prior to his death, provided,
however, that this Section 5(e)(i) shall not affect in any manner any other
benefits to which the Executive or his estate may be entitled or which may vest
or accrue upon his death under any arrangement, plan or program (other than this
Agreement) with the Company, by law or otherwise.
(ii) Notwithstanding anything to the contrary contained in this
Agreement, the employment hereunder of the Executive may be terminated by reason
of disability, upon written notice to the Executive, in the event of the
inability of the Executive to perform his duties hereunder by reason of
disability, whether by reason of injury (physical or mental), illness (physical
or mental) or otherwise, incapacitating the Executive for a continuous period
exceeding one hundred and eighty (180) days, as certified by a physician
selected by the Company in good faith, and the Company shall have no further
obligation under this Agreement to the Executive for any compensation or
benefits hereunder, except to the extent any compensation or benefits are due to
the Executive for any period prior to his disability termination by reason of
disability, provided, however, that this Section 5(e)(ii) shall not affect in
any manner other benefits to which the Executive may be entitled or which may
accrue or vest upon his disability and the Executive shall be entitled to
receive such compensation and benefits during and after such period of
disability as the Company's policies and procedures in effect from time to time
provide for similarly situated executives, as if the Executive and the Company
had not entered into this Agreement.
(iii) The Executive's rights to exercise his stock options in the
event of termination of his employment by reason of his death or disability
shall be governed by the Plans and the relevant stock option agreement.
26
6. CONFIDENTIALITY AND NON-COMPETITION.
(a) CONFIDENTIALITY. The Executive recognizes and acknowledges as an
employee of the Company, he will have access to, become acquainted with, and
obtain financial information and knowledge relating to the business, financial
condition, methods of operation and other aspects of the Company, its parent,
subsidiaries and affiliates ("Affiliated Companies") and their customers,
employees and suppliers, some of which information and knowledge is confidential
and proprietary and that the Executive could substantially detract from the
value and business prospects of the Affiliated Companies in the event, while
employed by the Company or anytime thereafter, the Executive were to disclose to
any person not related to the Affiliated Companies or use such information and
knowledge for his or such other person's advantage. Accordingly, the Executive
hereby agrees that he will not disclose to any person, other than directors,
officers, employees, accountants, lawyers, consultants, advisors, agents and
representative of, or other persons related to, the Affiliated Companies on a
need to know basis in the course of carrying out his duties hereunder, any
knowledge or information of a confidential nature pertaining to the Affiliated
Companies, or their successors and assigns, including without limitation, all
unpublished matters relating to the business, properties, accounts, books and
records, business plan and customers of the said corporations, or their
successors and assigns, except with the prior written approval of the Board, or
except as may be required by law.
(b) EQUITABLE RELIEF. The Executive acknowledges and agrees (i) that the
provisions of this Section 6 are reasonable and necessary for the protection of
the Company, its subsidiaries and affiliates or its or their successors and
assigns, and (ii) that the remedy at law for any breach by him of the provisions
of this Section 6 will be inadequate and, accordingly, the Executive hereby
agrees that in the case of any such breach (x) the Company or its successors and
assigns shall be entitled to injunctive relief, in addition to any other remedy
they may have, and (y) the Executive shall forfeit any future payments or
benefits to which he might be entitled hereunder.
(c) NON-SOLICITATION. For a period of one (1) year after the Executive
receives any compensation pursuant to this Agreement he will not (i) solicit,
divert or take away, directly or indirectly, any Major Customer of the Company,
its parent, subsidiaries or affiliates, or its or their successors and assigns,
or (ii) directly or indirectly induce or attempt to influence any employee of
the Company, its parent or any of its
27
subsidiaries or affiliates, or their successors and assigns, to terminate his
employment with the Company, its parent or any of its subsidiaries or affiliates
or their successors or assigns. As used herein, "Major Customer" shall mean any
customer of the Company who has maintained an average deposit balance of at
least $100,000 during the last six months of the Term or who has maintained or
obtained a credit facility of at least $100,000 from the Company during the last
six months of the Term.
(d) ENFORCEABILITY. The covenants on the part of the Executive contained in
this Section 6 shall be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
by the Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
said covenants. This Section shall survive the termination of this Agreement.
The period, geographical area and the scope of the restrictions on the Executive
set forth herein are divisible so that if any provision of this Section 6 is
invalid, that provision shall be automatically modified to the extent necessary
to make it valid.
(e) JURISDICTION. Employee hereby submits to the exclusive jurisdiction of
the courts of Massachusetts and the Federal courts of the United States of
America located in such state in respect to the interpretation and enforcement
of the provisions of this Section 6, and Employee hereby waives, and agrees not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement of this Section 6, that Employee is not subject thereto or that
such action, suit or proceeding may not be brought or is not maintainable in
said courts or that this Agreement may not be enforced in or by said courts or
that Employee's property is exempt or immune from execution, that the suit,
action or proceeding is brought in an inconvenient forum, or that venue is
improper.
7. DISPUTES.
(a) Any dispute relating to this Agreement, or to the breach of this
Agreement, except such as may concern Section 6, arising between the Executive
and the Company shall be settled by arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA"),
which arbitration may be initiated by any party hereto by written notice to the
other of such party's desire to arbitrate the dispute. The arbitration
proceedings, including the rendering of an award, shall take place in Boston,
Massachusetts, and shall be administered by the AAA.
28
(b) The arbitrator shall be appointed within thirty (30) days of the
notice of dispute, and shall be chosen by the parties from the names of
available arbitrators furnished to the parties in list form by the AAA. The
parties may review and reject names of available arbitrators from up to an
aggregate of three lists furnished to the parties by the AAA. If, after
having been furnished three lists of arbitrators, the parties cannot agree on
one available arbitrator, either party may request that the AAA appoint an
arbitrator to arbitrate the dispute.
(c) The award of the arbitrator shall be final except as otherwise provided
by the laws of The Commonwealth of Massachusetts and the federal laws of
the-United States, to the extent applicable. Judgment upon such award may be
entered by the prevailing party in any state or federal court sitting in Boston,
Massachusetts.
(d) No arbitration proceedings hereunder shall be binding upon or in any
way affect the interests of any party other than the Company, or its successors
and the Executive, with respect to such arbitration.
8. INDEMNIFICATION.
The Company shall indemnify the Executive to the fullest extent permitted
by Massachusetts law, which indemnification may require the advance of expenses
to the Executive, if and to the extent permitted by such law. In the event of
any claim for indemnification by the Executive, the Executive shall deliver
written notice of any such claim promptly upon such a claim being made known to
the Executive, which notice shall set forth the basis for such claim. The
Company shall have the right to undertake the defense of such claim with counsel
of its choice.
9. NON-COMPETITION AND NON-DISCLOSURE COMMITMENTS.
The Executive hereby represents and warrants that he is not a party to or
otherwise bound by any contracts, agreements or arrangements which contain
covenants limiting the freedom of the Executive to compete in any line of
business or with any person or entity, or which provide that the Executive must
maintain the confidentiality of, or prohibit the Executive from using, any
information in the context of his professional or personal activities. The
Executive further
29
represents and warrants that neither the execution or delivery of this Agreement
nor the performance by the Executive of his duties hereunder will cause any
breach of any contract, agreement or arrangement to which he is a party or by
which he is bound.
10. ARM'S LENGTH NEGOTIATIONS; REPRESENTATION BY COUNSEL.
The parties to this Agreement further agree that this Agreement has been
negotiated by each in an arm's length transaction. The Executive acknowledges
that he has had the opportunity to be represented by legal counsel in connection
with this Agreement.
11. TAX WITHHOLDINGS.
Payments to the Executive of al1 compensation contemplated under this
Agreement shall be subject to all applicable legal requirements with respect to
the withholding of taxes and other deductions required by law.
12. NON-ASSIGNABILITY; BINDING AGREEMENT.
Neither this Agreement nor any right, duty, obligation or interest
hereunder shall be assignable or delegable by the Executive without the
Company's prior written consent; provided, however, that (i) nothing in this
Section shall preclude the Executive from designating any of his beneficiaries
to receive any benefits payable thereunder upon his death or disability, or his
executors, administrators, or other legal representatives, from assigning any
rights hereunder to the person or persons entitled thereto, and (ii) any
successor to the Company pursuant to any merger or consolidation involving the
Company, and any purchaser of all or substantially all the assets of the
Company, shall succeed to the rights and assume the obligations of the Company
under this Agreement, and the Company covenants that it will not enter into or
consummate any such transaction which does not make express provision for such
succession and assumption. Subject to the foregoing, this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto, any successors to
or assigns of the Company, the Executive's heirs and the personal
representatives of the Executive's estate.
13. AMENDMENT; WAIVER.
This Agreement may not be modified, amended or waived in any manner except
by an instrument in writing signed by the parties hereto. The waiver by any
party of compliance with any provision of this Agreement by the other party
shall not operate or be construed as a waiver of any provision of this
Agreement.
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14. NOTICES.
Any notice hereunder by either party to the other shall be given in writing
by personal delivery, telex, telecopy or certified mail, return receipt
requested, to the applicable address set forth below:
(i) To the Company: Rockland Trust Company
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: President
(ii) To the Executive: Xxxxxxxxx X. Xxxxxx
00 Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
(or such other address as may from time to time be designated by notice by
either party hereto for such purpose). Notice shall be deemed given, if by
personal delivery, on the date of such delivery or, if by telex or telecopy,
on the business day following receipt of answer back or telecopy confirmation
or if by certified mail, on the date shown on the applicable return receipt.
15. GOVERNING LAW.
This Agreement is to be governed by and interpreted in accordance with the
laws of the Commonwealth of Massachusetts. If, under such law, any portion of
this Agreement is at any time deemed to be in conflict with any applicable
statute, rule, regulation or ordinance, such portion shall be deemed to be
modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement, and the invalidity of any such portion shall not
affect the force, effect and validity of the remaining portion thereof.
16. SUPERSEDES PREVIOUS AGREEMENTS.
This Agreement and the Split Dollar Agreement and related collateral
assignment constitute the entire understanding between the Company and the
Executive relating to the employment of the Executive by the Company and
supersede and cancel all prior written and oral agreements and understandings
with respect to the subject matter of this Agreement. Except as otherwise
specifically provided herein, all amounts payable to the
31
Executive or the Company under the Split Dollar Agreement shall be
exclusively governed by the terms of the Split Dollar Agreement and related
collateral assignment.
17. COUNTERPARTS.
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed to be an original, but such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Employment Agreement as of the date first above written.
ROCKLAND TRUST COMPANY
By: /s/ XXXXXXX X. XXXXXXXXX
--------------------
/S/ XXXXX X. XXXXXXX, CLERK Its: PRESIDENT & CEO
--------------------------- ---------------
Xxxxx X. Xxxxxxx, Clerk
INDEPENDENT BANK CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
Its: PRESIDENT
---------
/S/ XXXXXXXXX X. XXXXX
------------------
Xxxxxxxxx X. Xxxxxx
EMPLOYMENT AGREEMENT
Agreement, dated and effective as of April 14, 2000 by and between Rockland
Trust Company, a Massachusetts trust company (the "Company") and Xxxxx X.
Xxxxxxx of Brighton, Massachusetts (the "Executive), (the "Employment
Agreement").
W I T N E S S E T H
WHEREAS, the Executive is willing to serve in such executive capacity for
the Company as is hereinafter described and the Company desires to retain the
Executive in such capacity;
NOW THEREFORE, in consideration of mutual covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
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1. EMPLOYMENT; POSITION AND DUTIES; EXCLUSIVE SERVICES.
(a) EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company, for the Term provided in Section
2 hereof and upon the other terms and conditions hereinafter provided.
(b) POSITION AND DUTIES/COMPANY. During the Term as defined in Section 2
hereof, the Executive (i) agrees to oversee and manage all financial, accounting
and bookkeeping operations and functions of the Company and Independent Bank
Corp. ("IBC") and hold the titles of Chief Financial Officer and Treasurer of
the Company and of IBC and to perform such reasonable duties as may be assigned
to him from time to time by the President and Chief Executive Officer of the
Company and IBC, and (ii) shall report to the President and Chief Executive
Officer of the Company and IBC.
(c) EXCLUSIVE SERVICES. During the Term, and except for illness or
incapacity, the Executive shall devote all of his business time, attention,
skill and efforts exclusively to the business and affairs of the Company, and
its affiliates, shall not be engaged in any other business activity, and shall
perform and discharge well and faithfully the duties which may be assigned to
him from time to time by the President and Chief Executive; provided, however,
that nothing in this Agreement shall preclude the Executive from devoting
reasonable time during reasonable periods required for any or all of the
following:
(i) serving, in accordance with the Company's policies and with the
prior approval of the President and Chief Executive Officer of the Company, as a
director or member of a committee of any other company or organization involving
no actual or potential conflict of interest with the Company, or any of its
subsidiaries or affiliates;
(ii) investing his personal assets in businesses in which his
participation is solely that of a passive investor in such form or manner as
will not require any services on the part of the Executive in the operation or
affairs of such businesses and in such form or manner which will not create any
conflict of interest with or create the appearance of any conflict of interest
with, his duties at the Company;
(iii) completing the program of education at Boston University leading
to the degree of Executive Master of Business Administration.
provided however, that such activities in the aggregate shall not materially
adversely affect or interfere with the performance of the Executive's duties and
obligations to the Company hereunder .
33
2. TERM OF EMPLOYMENT.
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to accept such employment in the capacity set forth herein, for a period
commencing on the date hereof ("Commencement Date") and ending "at will" by
either party upon written notice of termination by one party given to the other
at least fourteen (14) days prior to the termination date specified in such
notice, except as provided by Section 5 hereof. The term of this Agreement, as
the same may be terminated pursuant to Section 5, shall hereinafter be referred
to as the "Term."
3. CASH COMPENSATION.
As compensation to the Executive for all services to be rendered by him in
any capacity hereunder, the Company shall pay during the Term an annual base
salary at the current rate of One Hundred Forty Thousand and 00/l00 Dollars
($140,000.00) per annum, payable no less frequently than bi-weekly ("Base
Salary"). The Board of Directors (the "Board") may from time to time at its
discretion review the compensation provisions of this Agreement and shall have
the authority to pay an increased base salary, or bonus or other additional
compensation to the Executive.
4. BENEFITS.
(a) TRAVEL AND BUSINESS-RELATED EXPENSES. The Executive shall be provided
with a Company owned automobile in accordance with the policies of the Company
regarding automobiles as in effect from time to time. During the Term, the
Executive shall be reimbursed in accordance with the policies of the Company as
in effect from time to time for travel and other reasonable expenses incurred in
the performance of the business of the Company.
(b) GROUP LIFE INSURANCE. The Company agrees to include the Executive under
the Company's group term life insurance policy in accordance with the policies
of the Company as in effect from time to time. The Company shall pay all
premiums for such coverage.
(c) SICK LEAVE/DISABILITY. The Executive will enjoy the same sick leave and
short term and long term disability coverage as in effect from time to time for
employees of the Company generally.
(d) RETIREMENT PLANS. The Executive will be eligible to participate in the
Company's retirement benefit plans each in accordance with the terms of such
plans as in effect from time to time.
34
(e) VACATION/HOLIDAYS. The Executive will receive four (4) weeks paid
vacation, on an "as earned" basis each year and will receive ten (10) holidays
each year.
(f) INSURANCE. During the Term, the Executive shall participate in all
insurance programs (medical, dental, surgical, hospital) adopted by the Company,
including dependent coverage, to the same extent as other executives of the
Company from time to time.
(g) INCENTIVE COMPENSATION PLAN. The Executive shall be eligible to
participate in the Company's Executive Incentive Compensation Plan, in
accordance with the terms of such plan as in effect from time to time.
(h) TAXES. Except as otherwise specifically provided herein, the
Executive recognizes that some or all of the foregoing benefits and those set
forth in Section 3 may give rise to a federal and/or state income tax
liability, and agrees to be responsible for such liability .
(i) SPLIT DOLLAR AGREEMENT. The Company agrees to use all reasonable
efforts to obtain life insurance on the life of the Executive and enter into
either, at the option of the Company, a split dollar insurance agreement (the
"Split Dollar Agreement") or another non-qualified plan for the Executive with
respect thereto on terms and conditions and with benefits comparable to those
applicable and available to similarly situated executives of the Company. If
life insurance is utilized by the company, the Executive agrees to cooperate
with the Company, its representatives and agents and any insurance companies and
their respective agents and representatives, in order to execute such an
agreement or plan and obtain such insurance. Notwithstanding the foregoing, the
Company shall not be required to expend amounts in excess of 125 percent of the
average premium cost for a person of the Executive's gender and age in order to
obtain such insurance. Notwithstanding anything to the contrary contained
herein, in the event a Split Dollar Agreement is entered into by the parties,
the Company agrees to gross-up the compensation of the Executive in an amount
determined by the Company's accountants as necessary to reimburse the Executive
for (A) the sum of federal and Massachusetts income tax incurred by the
Executive on account of the P.S.-58 benefit in the insurance policy described
under a Split Dollar Agreement, and (B) the cost of any rider that the Executive
purchases on the insurance policy described in such Split Dollar Agreement for
the waiver of premiums in the event of his disability, and (C) the tax effect of
the reimbursements set forth in (A) and (B) hereof, and to pay such amounts to
the Executive in a lump sum payment no later than three (3) business days prior
to the earliest date on which any federal or Massachusetts income taxes are due
on account of such P.S.-58 benefit and/or the cost for the waiver of premiums.
This clause (i) of Section 4 shall remain in full force and effect and shall
survive any termination of this Agreement by reason of the disability of the
Executive.
35
5. TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON.
(i) If the Executive's employment is terminated by the Company for
Cause or if the Executive resigns from his employment for any reason other than
for Good Reason, as defined below in Section 5(a)(iii), the Executive shall have
no right to receive compensation or other benefits for any period after such
Termination for Cause or resignation for any reason other than for Good Reason,
except as may be required by law and except that the Executive's rights to
exercise his stock options in the event his employment terminates shall be
governed by the Independent Bank Corp. 1987 Incentive Stock Option Plan and/or
any other relevant stock option plan, as appropriate (the "Plans") and the
relevant stock option agreement.
(ii) Termination for "Cause" shall refer to the Company's termination
of the Executive's service with the Company at any time because the Executive
has: (A) refused or failed to devote his full normal working time, skills,
knowledge, and abilities to the business of the Company, its subsidiaries and
affiliates, and in promotion of their respective interests pursuant to Section 1
hereof; or (B) engaged in (1) activities involving his personal profit as a
result of his dishonesty, incompetence, willful misconduct, willful violation of
any law, rule or regulation or breach of fiduciary duty, or (2) dishonest
activities involving the Executive's relations with the Company, its
subsidiaries and affiliates or any of their respective employees, customers or
suppliers; or (C) committed larceny, embezzlement, conversion or any other act
involving the misappropriation of Company or customer funds in the course of his
employment; or (D) been convicted of any crime which reasonably could affect in
an adverse manner the reputation of the Company or the Executive's ability to
perform the duties required hereunder; or (E) committed an act involving gross
negligence on the part of the Executive in the conduct of his duties hereunder;
or (F) evidenced a drug addiction or dependency; or (G) materially breached this
Agreement; provided, however, that, in the case of any termination pursuant to
clauses (A), (E), (F), or (G) above, the Company shall give the Executive thirty
(30) business days' written notice thereof during which period the Employee, at
the discretion of the Company, may be placed on administrative leave, the
Company shall give the Executive an opportunity to cure within such thirty-day
period, and a reasonable opportunity to be heard by the Compensation Committee
of the Board to show just cause for his actions, and to have the Compensation
Committee of the Board, in its discretion, reverse or rescind the prior action
of the Company under the clause(s).
(iii) Resignation for "Good Reason" shall mean the resignation of the
Executive after (A) the Company without the express written consent of the
Executive materially breaches this Agreement to the substantial detriment of the
Executive; or (B) the Board or the President and Chief Executive Officer,
without Cause (as defined in
36
Section 5(a)(ii)above), substantially changes the Executive's core duties or
removes the Executive's responsibility for those core duties, so as to
effectively cause the Executive to no longer be performing the duties of an
executive in the capacity for which the Executive was hired; provided, however,
that, in the case of resignation pursuant to this subsection (iii), the
Executive shall give the Company thirty (30) business days' written notice
thereof and, during such thirty day period, an opportunity to cure. Anything to
the contrary in this Agreement not withstanding, a termination by the Executive
for any reason during the 30-day period immediately following the first
anniversary of the effective date of a Change of Control (as defined in Section
5(c) hereof) shall be deemed to be a resignation for Good Reason for all
purposes of this Agreement.
(iv) The date of termination of employment by the Company for purposes
of Section 5 hereof shall be the date that the written notice of termination
from the Company to the Executive is written, and the Company agrees to use all
good faith efforts to deliver the written notice to the Executive as soon as
possible after the notice is written. The date of a resignation by the Executive
for purposes of Section 5 hereof shall be the date specified in the written
notice of resignation from the Executive to the Company.
(b) TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON. If during the
term of this Agreement, either (A) the Executive's employment with the Company
and/or any of its parent, subsidiaries or affiliates is terminated for any
reason other than death, disability (as defined in Section 5(e) hereof) or for
Cause (as such term is defined in Section 5(a)(ii) hereof), or (B) the Executive
resigns for Good Reason (as such term is defined in Section 5 (a)(iii) hereof)
from employment with the Company and/or any of its parent, subsidiaries or
affiliates, the Executive shall be entitled (C)(x) to receive his then current
Base Salary for a period of twelve (12) months from the termination or
resignation date, payable at such times as such Base Salary would be payable as
if no such termination or resignation had occurred, (C)(y)(1) to continue
participation in the plans and arrangements described in clauses (b) and (f) of
Section 4 hereof (to the extent permissible by law and the terms of such plans
and arrangements) for a period of twelve (12) months after such termination or
resignation (the "Continuation Period"), or (C)(y)(2) to the extent at any time
following termination of this Agreement and during the Continuation Period that
the plans and arrangements described in clauses (b) and (f) of Section 4 hereof
are discontinued or terminated and no comparable plans in which the Executive is
permitted to continue participation are established in their place, then to
receive a gross bonus payment in an amount which after payment therefrom of all
applicable federal and state income and employment taxes, will equal the cost to
the Company at the time of the termination, resignation or discontinuation of
any such plans, attributable to the Executive's participation in the plans and
arrangements described in clauses (b) and (f) of Section 4 hereof for the
Continuation Period less any portion thereof in which the Executive has
continued his participation in such plans and
37
arrangements described in clauses (b) and (f) of Section 4 hereof in accordance
with subsection 5(b)(C)(y)(1) above; which payment shall be due following
termination or resignation of the Executive's employment immediately upon the
date of termination, resignation or discontinuation of any such plan, and (C)(z)
to have all stock options which have been granted to the Executive to
immediately become fully exercisable and to remain exercisable for a period of
three (3) months after the employment termination date in accordance with the
terms of the Plans and the relevant stock option agreement, provided, however,
that if the provisions of Section 5(c) are applicable to such termination or
resignation of employment, the Executive's rights shall be governed by Section
5(c).
(c) CHANGE IN CONTROL.
(i) If during the term of this Agreement, any of the events
constituting a Change of Control (as such term is defined in Section 5(c)(iii)
hereof), shall be deemed to have occurred, and following such Change of Control,
either (A) the Executive's employment with the Company and/or any of its parent,
subsidiaries, affiliates, or successors by merger or otherwise as a result of
the Change of Control, is terminated for any reason other than death, disability
(as defined in Section 5(e) hereof) or for Cause (as such term is defined in
Section 5(a)(ii) hereof), or (B) the Executive resigns for Good Reason (as such
term is defined in Section 5 (a)(iii) hereof) from employment with the Company
and/or any of its parent, subsidiaries, affiliates, or successors by merger or
otherwise as a result of the Change of Control, the Executive shall be entitled
(C)(x) to receive his then current Base Salary for a period of twenty four (24)
months from the date of termination of this Agreement without Cause or
resignation for Good Reason and to receive an amount equal to two (2) times the
greater of (a) the aggregate amount of payments made to the Executive during the
twelve (12) months preceding the date of termination of this Agreement without
Cause or resignation for Good Reason, or (b) the aggregate amount of payments
made to the Executive during the twelve (12) months preceding the Change of
Control, in each case pursuant to any bonus or incentive compensation plan,
including without limitation, the Rockland Trust Company Officer and Executive
Incentive Compensation Plan, as amended from time to time, in each case payable
in a lump sum cash payment immediately following such termination, and (C)(y)(l)
to continue participation in the plans and arrangements described in clauses (b)
and (f) of Section 4 hereof (to the extent permissible by law and the terms of
such plans and arrangements) for the period of twenty four (24) months after
such termination or resignation (the "Benefits Period"), or (C)(y)(2) at the
election of the Executive at any time following termination of this Agreement
and during the Benefits Period, to receive a gross bonus payment in an amount
which after payment therefrom of all applicable federal and state income and
employment taxes, will equal the cost to the Company at the time of the
Executive's election, attributable to the Executive's participation in the plans
and arrangements described in clauses (b) and (f) of Section 4 hereof for the
Benefits Period less any portion thereof in which the Executive has continued
his participation in such plans and arrangements described in clauses (b) and
(f) of Section 4 hereof in
38
accordance with subsection 5(c)(i)(C)(y)(1) above; which payment shall be due
following termination or resignation of the Executive's employment immediately
upon the Executive's delivery of written notice to the Company of his election
pursuant to sub-section 5(c)(i)(C)(y)(2), and (C)(z) to have all stock options
which have been granted to the Executive to immediately become fully exercisable
and to remain exercisable for a period of three (3) months after the termination
or resignation date (as the case may be), in accordance with the terms of the
Plan and the relevant stock option agreement, and (C)(zz) upon his written
notice to the Company during a period of three months following the termination
or resignation date (as the case may be), to purchase his Company owned
automobile at a purchase price equal to the book value of said automobile as
carried on the books and records of the Company, plus all applicable excise
taxes.
(ii) A "Change of Control" shall be deemed to have occurred if,
subsequent to the date hereof and during the term of this Agreement (A) any
"person" (as such term is defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended) is or becomes the beneficial owner, directly or
indirectly, of either (x) a majority of the outstanding common stock of IBC
or the Company, or (y) securities of either IBC or the Company representing a
majority of the combined voting power of the then outstanding voting
securities of either IBC or the Company, respectively, or (B) during any
period of two consecutive years following the date hereof, individuals who at
the beginning of any such two year period constitute the Board of Directors
of IBC cease, at any time after the beginning of such period, for any reason
to constitute a majority of the Board of Directors of IBC, unless the
election of each new director was nominated or approved by at least two
thirds of the directors of the Board then still in office who were either
directors at the beginning of such two year period or whose election or whose
nomination for election was previously so approved.
(iii) In the event any amount payable as compensation to the Executive
under this Agreement when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement would
constitute a Parachute Payment (as hereinafter defined), the amount payable as
compensation under Section 5(c)(i) of this Agreement shall be reduced (but not
below zero) to the largest amount which is not a Parachute Payment (as
hereinafter defined) when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement. For
purposes hereof, the term Parachute Payment shall have the meaning given to
parachute payments set out in Internal Revenue Code of 1986 Section
280G(b)(2)(A) (relating to the quantification of parachute payments) as then in
effect determined without regard to the provisions of Internal Revenue Code of
1986 Section 280G(b)(4) (relating to the exclusion of reasonable compensation
from parachute payments) as then in effect. Notwithstanding the foregoing, if
the Executive proves to the satisfaction of the Compensation Committee of the
Company's Board of Directors (if no such Compensation Committee then is in
existence, then any other committee of the Board of Directors of Company then
performing the functions of a compensation committee) with clear and convincing
evidence that all or any portion of the amount of the reduction provided in the
preceding sentence would not constitute a parachute payment within the meaning
of such term as defined in Internal Revenue Code of 1986 Section 280G(b)(2)(A)
as then in effect determined with regard to the provisions of Internal Revenue
Code of 1986 Section 280G(b)(4) as then in
39
effect and that the Company's tax reporting position in regard to the payment is
overwhelmingly likely to be sustained, then the reduction provided in the
preceding sentence shall be adjusted to permit payment of so much of such
reduction as the said Compensation Committee determines will result in the
largest amount which would not constitute a parachute payment within the meaning
of such term as defined in Internal Revenue Code of 1986 Section 280G(b)(2)(A)
as then in effect determined with regard to the provisions of Internal Revenue
Code of 1986 Section 280G(b)(4) as then in effect.
(d) MITIGATION; LEGAL FEES. The Executive shall not be required to mitigate
the amount of any payment provided for in either Section 5(b) or Section 5(c)(i)
by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in Section 5(b) or Section 5(c)(i) be reduced by any
compensation earned by the Executive as a result of self-employment or
employment by another employer, by retirement benefits or by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
Following a Change of Control, the Company agrees to pay, as incurred, all legal
fees and expenses which the Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement) plus in each case interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986 as then in effect.
(e) TERMINATION BY REASON OF DEATH OR DISABILITY.
(i) Notwithstanding anything to the contrary contained in this
Agreement, the employment hereunder of the Executive shall be automatically
terminated upon the death of the Executive after which time the Company shall
have no further obligation to the Executive or his estate for any compensation
or benefits hereunder, except to the extent any compensation or benefits are due
to the Executive or his estate for any period prior to his death, provided,
however, that this Section 5(e)(i) shall not affect in any manner any other
benefits to which the Executive or his estate may be entitled or which may vest
or accrue upon his death under any arrangement, plan or program (other than this
Agreement) with the Company, by law or otherwise.
(ii) Notwithstanding anything to the contrary contained in this
Agreement, the employment hereunder of the Executive may be terminated by reason
of disability, upon written notice to the Executive, in the event of the
inability of the Executive to perform his duties hereunder by reason of
disability, whether by reason of injury (physical or mental), illness (physical
or mental) or otherwise, incapacitating the Executive for a continuous period
exceeding one hundred and eighty (180) days, as certified by a physician
selected by the Company in good faith, and the Company shall
40
have no further obligation under this Agreement to the Executive for any
compensation or benefits hereunder, except to the extent any compensation or
benefits are due to the Executive for any period prior to his termination by
reason of disability, provided, however, that this Section 5(e)(ii) shall not
affect in any manner other benefits to which the Executive may be entitled or
which may accrue or vest upon his disability and the Executive shall be entitled
to receive such compensation and benefits during and after such period of
disability as the Company's policies and procedures in effect from time to time
provide for similarly situated executives, as if the Executive and the Company
had not entered into this Agreement.
(iii) The Executive's rights to exercise his stock options in the
event of termination of his employment by reason of his death or disability
shall be governed by the Plans and the relevant stock option agreement.
6. CONFIDENTIALITY AND NON-COMPETITION.
(a) CONFIDENTIALITY. The Executive recognizes and acknowledges as an
employee of the Company, he will have access to, become acquainted with, and
obtain financial information and knowledge relating to the business, financial
condition, methods of operation and other aspects of the Company, its parent,
subsidiaries and affiliates ("Affiliated Companies") and their customers,
employees and suppliers, some of which information and knowledge is confidential
and proprietary and that the Executive could substantially detract from the
value and business prospects of the Affiliated Companies in the event, while
employed by the Company or any time thereafter, the Executive were to disclose
to any person not related to the Affiliated Companies or use such information
and knowledge for his or such other person's advantage. Accordingly, the
Executive hereby agrees that he will not disclose to any person, other than
directors, officers, employees, accountants, lawyers, consultants, advisors,
agents and representative of, or other persons related to, the Affiliated
Companies on a need to know basis in the course of carrying out his duties
hereunder, any knowledge or information of a confidential nature pertaining to
the Affiliated Companies, or their successors and assigns, including without
limitation, all unpublished matters relating to the business, properties,
accounts, books and records, business plan and customers of the said
corporations, or their successors and assigns, except with the prior written
approval of the Board, or except, as may be required by law.
(b) EQUITABLE RELIEF. The Executive acknowledges and agrees (i) that the
provisions of this Section 6 are reasonable and necessary for the protection of
the Company, its subsidiaries and affiliates or its or their successors and
assigns, and (ii) that the remedy at law for any breach by him of the provisions
of this Section 6 will be inadequate and, accordingly, the Executive hereby
agrees that in the case of any such breach (x) the Company or its successors and
assigns shall be entitled to injunctive relief, in addition to any
41
other remedy they may have, and (y) the Executive shall forfeit any future
payments or benefits to which he might be entitled hereunder .
(c) NON-SOLICITATION. For a period of one (1) year after the Executive
receives any compensation pursuant to this Agreement he will not (i) solicit,
divert or take away, directly or indirectly, any Major Customer of the Company,
its parent, subsidiaries or affiliates, or its or their successors and assigns,
or (ii) directly or indirectly induce or attempt to influence any employee of
the Company, its parent or any of its subsidiaries or affiliates, or their
successors and assigns, to terminate his employment with the Company, its parent
or any of its subsidiaries or affiliates or their successors or assigns. As used
herein, "Major Customer" shall mean any customer of the Company who has
maintained an average deposit balance of at least $100,000 during the last six
months of the Term or who has maintained or obtained a credit facility of at
least $100,000 from the Company during the last six months of the Term.
(d) ENFORCEABILITY. The covenants on the part of the Executive contained in
this Section 6 shall be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
by the Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
said covenants. This Section shall survive the termination of this Agreement.
The period, geographical area and the scope of the restrictions on the Executive
set forth herein are divisible so that if any provision of this Section 6 is
invalid, that provision shall be automatically modified to the extent necessary
to make it valid.
(e) JURISDICTION. Employee hereby submits to the exclusive jurisdiction
of the courts of Massachusetts and the Federal courts of the United States of
America located in such state in respect to the interpretation and enforcement
of the provisions of this Section 6, and Employee hereby waives, and agrees not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement of this Section 6, that Employee is not subject thereto or that
such action, suit or proceeding may not be brought or is not maintainable in
said courts or that this Agreement may not be enforced in or by said courts or
that employee's property is exempt or immune from execution, that the suit,
action or proceeding is brought in an inconvenient forum, or that venue is
improper.
7. DISPUTES.
(a) Any dispute relating to this Agreement, or to the breach of this
Agreement, except such as may concern Section 6, arising between the Executive
and the Company shall be settled by arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA"),
which arbitration may be initiated by any party hereto by written notice to the
other of such party's desire to arbitrate the dispute. The arbitration
proceedings, including the rendering of an award, shall take place in Boston,
Massachusetts, and shall be administered by the AAA.
42
(b) The arbitrator shall be appointed within thirty (30) days of the notice
of dispute, and shall be chosen by the parties from the names of available
arbitrators furnished to the parties in list form by the AAA. The parties may
review and reject names of available arbitrators from up to an aggregate of
three lists furnished to the parties by the AAA. If, after having been furnished
three lists of arbitrators, the parties cannot agree on one available
arbitrator, either party may request that the AAA appoint an arbitrator to
arbitrate the dispute.
(c) The award of the arbitrator shall be final except as otherwise provided
by the laws of the Commonwealth of Massachusetts and the federal laws of the
United States, to the extent applicable. Judgment upon such award may be entered
by the prevailing party in any state or federal court sitting in Boston,
Massachusetts.
(d) No arbitration proceedings hereunder shall be binding upon or in any
way affect the interests of any party other than the Company, or its successors
and the Executive, with respect to such arbitration.
8. INDEMNIFICATION.
The Company shall indemnify the Executive to the fullest extent permitted
by Massachusetts law, which indemnification may require the advance of expenses
to the Executive, if and to the extent permitted by such law. In the event of
any claim for indemnification by the Executive, the Executive shall deliver
written notice of any such claim promptly upon such a claim being made known to
the Executive, which notice shall set forth the basis for such claim. The
Company shall have the right to undertake the defense of such claim with counsel
of its choice.
9. NON-COMPETITION AND NON-DISCLOSURE COMMITMENTS.
The Executive hereby represents and warrants that he is not a party to or
otherwise bound by any contracts, agreements or arrangements which contain
covenants limiting the freedom of the Executive to compete in any line of
business or with any person or entity, or which provide that the Executive must
maintain the confidentiality of, or prohibit the Executive from using, any
information in the context of his professional or personal activities. The
Executive further represents and warrants that neither the execution or delivery
of this Agreement nor the performance by the Executive of his duties hereunder
will cause any breach of any contract, agreement or arrangement to which he is a
party or by which he is bound.
43
10. ARM'S LENGTH NEGOTIATIONS; REPRESENTATION BY COUNSEL.
The parties to this Agreement further agree that this Agreement has been
negotiated by each in an arm's length transaction. The Executive acknowledges
that he has had the opportunity to be represented by legal counsel in connection
with this Agreement.
11. TAX WITHHOLDINGS.
Payments to the Executive of all compensation contemplated under this
Agreement shall be subject to all applicable legal requirements with respect to
the withholding of taxes and other deductions required by law.
12. NON-ASSIGNABILITY; BINDING AGREEMENT.
Neither this Agreement nor any right, duty, obligation or interest
hereunder shall be assignable or delegable by the Executive without the
Company's prior written consent; provided, however, that (i) nothing in this
Section shall preclude the Executive from designating any of his beneficiaries
to receive any benefits payable thereunder upon his death or disability, or his
executors, administrators, or other legal representatives, from assigning any
rights hereunder to the person or persons entitled thereto, and (ii) any
successor to the Company pursuant to any merger or consolidation involving the
Company, and any purchaser of all or substantially all the assets of the
Company, shall succeed to the rights and assume the obligations of the Company
under this Agreement, and the Company covenants that it will not enter into or
consummate any such transaction which does not make express provision for such
succession and assumption. Subject to the foregoing, this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto, any successors to
or assigns of the Company, the Executive's heirs and the personal
representatives of the Executive's estate.
13. AMENDMENT; WAIVER.
This Agreement may not be modified, amended or waived in any manner except
by an instrument in writing signed by the parties hereto. The waiver by any
party of compliance with any provision of this Agreement by the other party
shall not operate or be construed as a waiver of any provision of this
Agreement.
14. NOTICES.
Any notice hereunder by either party to the other shall be given in writing
by personal delivery, telex, telecopy or certified mail, return receipt
requested, to the applicable address set forth below:
(i) To the Company: Rockland Trust Company
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn.: President
44
(ii) To the Executive: Xxxxx X. Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
(or such other address as may from time to time be designated by notice by
either party hereto for such purpose). Notice shall be deemed given, if by
personal delivery, on the date of such delivery or, if by telex or telecopy, on
the business day following receipt of answer back or telecopy confirmation or if
by certified mail, on the date shown on the applicable return receipt.
15. GOVERNING LAW.
This Agreement is to be governed by and interpreted in accordance with the
laws of The Commonwealth of Massachusetts. If, under such law, any portion of
this Agreement is at any time deemed to be in conflict with any applicable
statute, rule, regulation or ordinance, such portion shall be deemed to be
modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement, and the invalidity of any such portion shall not
affect the force, effect and validity of the remaining portion thereof.
16. SUPERSEDES PREVIOUS AGREEMENTS.
This Agreement constitutes the entire understanding between the Company and
the Executive relating to the employment of the Executive by the Company and
supersedes and cancels all prior written and oral agreements and understandings
with respect to the subject matter of this Agreement.
17. COUNTERPARTS.
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed to be an original, but such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as of
the date first above written.
ROCKLAND TRUST COMPANY
By: /s/ XXXXXXX X. XXXXXXXXX
--------------------
Its: CHAIRMAN, PRESIDENT & CEO
-------------------------
45
INDEPENDENT BANK CORP.
By: /s/ XXXXXXX X. XXXXXXXXX
Its: CHAIRMAN, PRESIDENT & CEO
/s/ XXXXX X. XXXXXXX
--------------------
Xxxxx X. Xxxxxxx
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Reference is made to the Agreement dated and effective as of October 31,
1994 by and between Rockland Trust Company, a Massachusetts trust company (the
"Company") and Xxxxxxx X. Xxxxxxxxxxx of North Marshfield, Massachusetts (the
"Executive"), as amended and restated as of January 19, 1996 and as further
amended and restated as of March 12, 1998 (the "Employment Agreement").
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Employment Agreement.
W I T N E S S E T H
WHEREAS, the Executive and the Company are desirous of amending certain
provisions of the Employment Agreement to provide that certain additional
benefits be paid to the Executive upon the occurrence of a change of control of
Independent Bank Corp. ("IBC"), the parent bank holding company of the Company,
where such occurrence is followed by a termination of the Executive's employment
without cause or the Executive's resignation with good reason as such terms are
defined in the Employment Agreement;
WHEREAS, the Executive and the Company are desirous of amending the
Employment Agreement as set forth above.
NOW THEREFORE, in consideration of mutual covenants herein contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Section 5(c) (i) of the Employment Agreement is hereby amended and
restated to read as follows:
(c) CHANGE IN CONTROL.
(i) If during the term of this Agreement, any of the events
constituting a Change of Control (as such term is defined in Section 5(c)(ii)
hereof), shall be deemed to have occurred, and following such Change of
Control, either (A) the Executive's employment with the Company and/or any of
its parent, subsidiaries, affiliates, or successors by merger or otherwise as
a result of the Change of Control, is terminated for any reason other than
death, disability (as defined in Section 5 (e) hereof) or for Cause (as such
term is defined in Section 5(a)(ii) hereof), or (B) the Executive resigns for
46
Good Reason (as such term is defined in Section 5 (a) (iii) hereof) from
employment with the Company and/or any of its parent, subsidiaries,
affiliates, or successors by merger or otherwise as a result of the Change of
Control, the Executive shall be entitled (C)(x) to receive his then current
Base Salary for a period of twenty four (24) months from the date of
termination of this Agreement without Cause or resignation for Good Reason
and to receive an amount equal to two (2) times the greater of (a) the
aggregate amount of payments made to the Executive during the twelve (12)
months preceding the date of termination of this Agreement without Cause or
resignation for Good Reason, or (b) the aggregate amount of payments made to
the Executive during the twelve (12) months preceding the Change of Control,
in each case pursuant to any bonus or incentive compensation plan, including
without limitation, the Rockland Trust Company Officer and Executive
Incentive Compensation Plan, as amended from time to time, in each case
payable in a lump sum cash payment immediately following such termination,
and (C)(y)(1) to continue participation in the plans and arrangements
described in clauses (b) and (f) of Section 4 hereof (to the extent
permissible by law and the terms of such plans and arrangements) for the
period of twenty four (24) months after such termination or resignation (the
"Benefits Period"), or (C)(y)(2) at the election of the Executive at any time
following termination of this Agreement and during the Benefits Period, to
receive a gross bonus payment in as amount which after payment therefrom of
all applicable federal and state income and employment taxes, will equal the
cost to the Company at the time of the Executive's election, attributable to
the Executive's participation in the plans and arrangements described in
clauses (b) and (f) of Section 4 hereof for the Benefits Period less any
portion thereof in which the Executive has continued his participation in
such plans and arrangements described in clauses (b) and (f) of Section 4
hereof in accordance with subsection 5(c)(i)(C)(y)(1) above; which payment
shall be due following termination or resignation of the Executive's
employment immediately upon the Executive's delivery of written notice to the
Company of his election pursuant to subsection 5(c)(i)(C)(y)(2), and (C)(z)
to have all stock options which have been granted to the Executive to
immediately become fully exercisable and to remain exercisable for a period
of three (3) months after the termination or resignation date (as the case
may be), in accordance with the terms of the Plan and the relevant stock
option agreement, and (C)(zz) upon his written notice to the Company during a
period of three months following the termination or resignation date (as the
case may be), to purchase his Company owned automobile at a purchase price
equal to the book value of said automobile as carried on the books and
records of the Company, plus all applicable excise taxes.
2. RATIFICATION.
All other provisions of the Employment Agreement shall remain unchanged and
in full force and effect, and are hereby ratified and confirmed by the parties
hereto.
3. COUNTERPARTS.
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed to be an original, but such counterparts shall together
constitute one and the same instrument.
47
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
Second Amended and Restated Employment Agreement as of July 9, 1998.
ROCKLAND TRUST COMPANY
By: /S/ XXXXXXX X. XXXXXXXXX
-------------------------
Its: CEO
---
INDEPENDENT BANK CORP.
By: /S/ XXXXXXX X. XXXXXXXXX
------------------------
Its: CEO
---
/S/ XXXXXXXX X. XXXXXXXXXXX
-----------------------
XXXXXXX X. XXXXXXXXXXX
48
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT, dated and effective as of October 31, 1994 by and between
Rockland Trust Company, a Massachusetts trust company (the "Company") and
Xxxxxxx X. Xxxxxxxxxxx of North Marshfield, Massachusetts (the "Executive"), as
first amended and restated as of the 19th day of January, 1996 and amended and
restated for the second time as of this 12th day of March, 1998 (the "Employment
Agreement").
W I T N E S S E T H
The Executive and the Company are desirous of amending certain provisions
of the Employment Agreement to provide that the Executive be granted an
additional employee benefit in the form of a company car, on the terms and
conditions herein set forth.
WHEREAS, the Executive and the Company are desirous of amending the
Employment Agreement as set forth above and restating the amended Employment
Agreement as herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. EMPLOYMENT; POSITION AND DUTIES; EXCLUSIVE SERVICES.
(a) EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company, for the Term provided in Section
2 hereof and upon the other terms and conditions hereinafter provided.
(b) POSITION AND DUTIES/COMPANY. During the Term as defined in Section 2
hereof, the Executive (i) agrees to oversee and manage all the operations and
functions of the Company's human resources department and hold the titles of
Senior Vice President and Director of Human Resources of the Company and to
perform such reasonable duties as may be assigned to him from time to time by
the President and Chief Executive Officer of the Company, and (ii) shall report
to the President and Chief Executive Officer of the Company.
(c) EXCLUSIVE SERVICES. During the Term, and except for illness or
incapacity, the Executive shall devote all of his business time, attention,
skill and efforts exclusively to the business and affairs of the Company, and
its affiliates, shall not be engaged in any other business activity, and shall
perform and discharge well and faithfully the duties which may be assigned to
him from time to time by the President and Chief Executive; provided, however,
that nothing in this Agreement shall preclude the Executive from devoting
reasonable time during reasonable periods required for any or all of the
following:
(i) serving in accordance with the Company's policies and with the
prior approval of the President and Chief Executive Officer of the Company, as a
director or member of a committee of any other company or organization involving
no actual or potential conflict of interest with the Company, or any of its
subsidiaries or affiliates;
(ii) investing his personal assets in businesses in which his
participation is solely that of a passive investor in such form or manner as
will not require any services on the part of the Executive in the operation or
affairs of such businesses and in such form
49
or manner which will not create any conflict of interest with or create the
appearance of any conflict of interest with, his duties at the Company;
provided, however, that such activities in the aggregate shall not materially
adversely affect or interfere with the performance of the Executive's duties and
obligations to the Company hereunder.
2. TERM OF EMPLOYMENT.
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to accept such employment in the capacity set forth herein, for a period
commencing on the date hereof ("Commencement Date") and ending "at will" by
either party upon written notice of termination by one party given to the other
at least fourteen (14) days prior to the termination date specified in such
notice, except as provided by Section 5 hereof. The term of this Agreement, as
the same may be terminated pursuant to Section 5, shall hereinafter be referred
to as the "Term."
3. CASH COMPENSATION.
As compensation to the Executive for all services to be rendered by him
in any capacity hereunder, the Company shall pay during the Term an annual
base salary at the current rate of Eighty Four Thousand Six Hundred and
00/100 Dollars ($84,600) per annum, payable no less frequently than bi-weekly
("Base Salary"). The Board of Directors (the "Board") may from time to time
at its discretion review the compensation provisions of this Agreement and
shall have the authority to pay an increased base salary or bonus of other
additional compensation to the Executive.
4. BENEFITS.
(a) TRAVEL AND BUSINESS-RELATED EXPENSES. The Executive shall be provided
with a Company owned automobile in accordance with the policies of the Company
regarding automobiles as in effect from time to time. During the Term, the
Executive shall be reimbursed in accordance with the policies of the Company as
in effect from time to time for travel and other reasonable expenses incurred in
the performance of the business of the Company.
(b) GROUP LIFE INSURANCE. The Company agrees to include the Executive under
the Company's group term life insurance policy in accordance with the policies
of the Company as in effect from time to time. The Company shall pay all
premiums for such coverage.
(c) SICK LEAVE/DISABILITY. The Executive will enjoy the same sick leave and
short term and long term disability coverage as in effect from time to time for
employees of the Company generally.
(d) RETIREMENT PLANS. The Executive will be eligible to participate in the
Company's retirement benefit plans each in accordance with the terms of such
plans as in effect from time to time.
(e) VACATION/HOLIDAYS. The Executive will receive four (4) weeks paid
vacation, on an "as earned" basis each year and will receive ten (10) holidays
each year.
(f) INSURANCE. During the Term, the Executive shall participate in all
insurance programs (medical, dental, surgical, hospital) adopted by the Company,
including dependent coverage, to the same extent as other executives of the
Company from time to time.
(g) INCENTIVE COMPENSATION PLAN. The Executive shall be eligible to
participate in the Company's Executive Incentive Compensation Plan, in
accordance with the terms of such plan as in effect from time to time.
50
(h) TAXES. Except as otherwise specifically provided herein, the Executive
recognizes that some or all of the foregoing benefits and those set forth in
Section 3 may give rise to a federal and/or state income tax liability, and
agrees to be responsible for such liability.
(i) SPLIT DOLLAR AGREEMENT. Notwithstanding anything to the contrary
contained herein, the Company agrees to gross-up the compensation of the
Executive in an amount determined by the Company accountants as necessary to
reimburse the Executive for (A) the sum of federal and state income and
employment tax incurred by the Executive on account of the P.S.-58 benefit in
the insurance policy described under a Split Dollar Agreement dated as of
January 19, 1996 by and between the Company and the Executive (the "Split Dollar
Agreement"), and (B) the cost of any rider that the Executive purchases for the
waiver on the insurance policy described in the Split Dollar Agreement for the
waiver of premiums in the event of his disability, and (C) the tax effect of the
reimbursements set forth in (A) and (B) hereof, and to pay such amounts to the
Executive in a lump sum payment no later than three (3) business days prior to
the earliest date on which any federal or state income or employment taxes are
due on account of such P.S.-58 benefit and/or the cost for the waiver of
premiums.
5. TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE; RESIGNATION WITHOUT GOOD REASON.
(i) If the Executive's employment is terminated by the Company for
Cause or if the Executive resigns from his employment for any reason other than
for Good Reason, as defined below in Section 5(a)(iv), the Executive shall have
no right to receive compensation or other benefits for any period after such
Termination for Cause or resignation for any reason other than for Good Reason,
except as may be required by law and except that the Executive's rights to
exercise his stock options in the event his employment terminates shall be
governed by the Independent Bank Corp. 1987 Incentive Stock Option Plan and/or
any other relevant stock option plan, as appropriate (the "Plans") and the
relevant stock option agreement.
(ii) Termination for "Cause" shall refer to the Company's termination
of the Executive's service with the Company at any time because the Executive
has: (A) refused or failed to devote his full normal working time, skills,
knowledge, and abilities to the business of the Company, its subsidiaries and
affiliates, and in promotion of their respective interests pursuant to Section 1
hereof; or (B) engaged in (1) activities involving his personal profit as a
result of dishonesty, incompetence, willful misconduct, willful violation of any
law, rule or regulation or breach of fiduciary duty, or (2) dishonest activities
involving the Executive's relations with the Company, its subsidiaries and
affiliates or any of their respective employees, customers or suppliers; or (C)
committed larceny, embezzlement, conversion or any other act involving the
misappropriation of Company or customer funds in the course of his employment;
51
or (D) been convicted of any crime which reasonably could affect in an adverse
manner the reputation of the Company or the Executive's ability to perform the
duties required hereunder; or (E) committed an act involving gross negligence on
the part of the Executive in the conduct of his duties hereunder; or (F)
evidenced a drug addiction or dependency; or (G) materially breached this
Agreement; provided, however, that, in the case of any termination pursuant to
clauses (A), (E), (F), or (G) above, the Company shall give the Executive thirty
(30) business days' written notice thereof, an opportunity to cure within such
thirty-day period, and a reasonable opportunity to be heard by the Board to show
just cause for his actions, and to have the Board, in its discretion, reverse or
rescind the prior action of the Company under the clause(s).
(iii) Resignation for "Good Reason" shall mean the resignation of the
Executive after (A) the Company without the express written consent of the
Executive, materially breaches this Agreement to the substantial detriment of
the Executive; or (B) the Board or the President and Chief Executive Officer,
without Cause (as defined in Section 5(a)(ii) above), substantially changes the
Executive's core duties or removes the Executive's responsibility for those core
duties, so as to effectively cause the Executive to no longer be performing the
duties of an executive in the capacity for which the Executive was hired;
provided, however, that, in the case of resignation pursuant to this subsection
(iii), the Executive shall give the Company thirty (30) business days' written
notice thereof and, during such thirty day period, an opportunity to cure.
Anything to the contrary in this Agreement notwithstanding, a termination by the
Executive for any reason during the 30-day period immediately following the
first anniversary of the effective date of a Change of Control (as defined in
Section 5(c) hereof) shall be deemed to be a resignation for Good Reason for all
purposes of this Agreement.
(iv) The date of termination of employment by the Company for purposes
of Section 5 hereof shall be the date that the written notice of termination
from the Company to the Executive is written, and the Company agrees to use all
good faith efforts to deliver the written notice to the Executive as soon as
possible after the notice is written. The date of a resignation by the Executive
for purposes of Section 5 hereof shall be the date specified in the written
notice of resignation from the Executive to the Company.
(b) TERMINATION WITHOUT CAUSE; RESIGNATION FOR GOOD REASON.
If during the term of this Agreement, either (A) the Executive's employment
with the Company and/or any of its parent, subsidiaries or affiliates is
terminated for any reason other than death, disability (as defined in Section 5
(e) hereof) or for Cause (as such term is defined in Section 5(a)(ii) hereof),
or (B) the Executive resigns for Good Reason (as such term is defined in Section
5 (a)(iii) hereof) from employment with the Company and/or its parent,
subsidiaries or affiliates, the Executive shall be entitled (C)(x) to receive
his then current Base Salary for a period of twelve (12) months from the
termination or resignation date, payable at such times as such Base Salary would
be payable as if no such termination or resignation had occurred, (C)(y)(1) to
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continue participation in the plans and arrangements described in clauses (b)
and (f) of Section 4 hereof (to the extent permissible by law and the terms of
such plans and arrangements) for a period of twelve (12) months after such
termination or resignation (the "Continuation Period"), or (C)(y)(2) to the
extent at any time following termination of this Agreement and during the
Continuation Period that the plans and arrangements described in clauses (b) and
(f) of Section 4 hereof are discontinued or terminate and no comparable plans in
which the Executive is permitted to continue participation are established in
their place, then to receive a gross bonus payment in an amount which after
payment therefrom of all applicable federal and state income and employment
taxes, will equal the cost to the Company at the time of the termination,
resignation or discontinuation of any such plans, attributable to the
Executive's participation in the plans and arrangements described in clauses (b)
and (f) of Section 4 hereof for the Continuation Period less any portion thereof
in which the Executive has continued his participation in such plans and
arrangements described in clauses (b) and (f) of Section 4 hereof in accordance
with subsection 5 (b)(C)(y)(1) above; which payment shall be due following
termination or resignation of the Executive's employment immediately upon the
date of termination, resignation or discontinuation of any such plan, and (C)(z)
to have all stock options which have been granted to the Executive to
immediately become fully exercisable and to remain exercisable for a period of
three (3) months after the employment termination date in accordance with the
terms of the Plans and the relevant stock option agreement, provided, however,
that if the provisions of Section 5(c) are applicable to such termination or
resignation of employment, the Executive's rights shall be governed by Section
5(c).
(c) CHANGE IN CONTROL.
(i) If during the term of this Agreement, any of the events
constituting a Change of Control (as such term is defined in Section 5(c)(ii)
hereof), shall be deemed to have occurred, and following such Change of Control,
either (A) the Executive's employment with the Company and/or any of its parent,
subsidiaries, affiliates, or successors by merger or otherwise as a result of
the Change of Control, is terminated for any reason other than death, disability
(as defined in Section 5(e) hereof) or for Cause (as such term is defined in
Section 5(a)(ii) hereof), or (B) the Executive resigns for Good Reason (as such
term is defined in Section 5(a)(iii) hereof) from employment with the Company
and/or any of its parent, subsidiaries, affiliates, or successors by merger or
otherwise as a result of the Change of Control, the Executive shall be entitled
(C)(x) to receive his then current Base Salary for a period of twenty four (24)
months from the date of termination of this Agreement without Cause or
resignation for Good Reason, payable in a lump sum cash payment immediately
following such termination, and (C)(y)(1) to continue participation in the plans
and arrangements described in clauses (b) and (f) of Section 4 hereof (to the
extent permissible by law and the terms of such plans and arrangements) for the
period of twenty four (24) months after such termination or resignation (the
"Benefits Period"), or (C)(y)(2) at the election of the Executive at any time
following termination of this Agreement, and during the Benefits Period, to
receive a gross bonus payment in an amount which after payment therefrom of all
applicable federal and state income and employment taxes, will equal the cost to
the Company at the time of the Executive's election, attributable to the
Executive's participation in the plans and arrangements described in clauses (b)
and (f) of Section 4 hereof for the Benefits Period less any portion thereof in
which the Executive has continued his participation in such plans and
arrangements described in clauses (b) and (f) of Section 4 hereof in accordance
with subsection 5(c)(i)(C)(y)(1) above; which payment shall be due following
termination or resignation of the Executive's employment immediately upon the
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Executive's delivery of written notice to the Company of his election pursuant
to subsection 5(c)(i)(C)(y)(2), and (C)(z) to have all stock options which have
been granted to the Executive to immediately become fully exercisable and to
remain exercisable for a period of three (3) months after the termination or
resignation date (as the case may be), in accordance with the terms of the Plans
and the relevant stock option agreement.
(ii) A "Change of Control" shall be deemed to have occurred if,
subsequent to the date hereof and during the term of this Agreement (A) any
"person" (as such term is defined in Section 13(d) of the Securities Exchange
Act of 1934, as amended) is or becomes the beneficial owner, directly or
indirectly, of either (x) a majority of the outstanding common stock of IBC or
the Company, or (y) securities of either IBC or the Company representing a
majority of the combined voting power of the then outstanding voting securities
of either IBC or the Company, respectively, or (B) during any period of two
consecutive years following the date hereof, individuals who at the beginning of
any such two year period constitute the Board of Directors of IBC cease, at any
time after the beginning of such period, for any reason to constitute a majority
of the Board of Directors of IBC, unless the election of each new director was
nominated or approved by at least two thirds of the directors of the Board then
still in office who were either directors at the beginning of such two year
period or whose election or whose nomination for election was previously so
approved.
(iii) In the event any amount payable as compensation to the Executive
under this Agreement when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement would
constitute a Parachute Payment (as hereinafter defined), the amount payable as
compensation under Section 5(c)(i) of this Agreement shall be reduced (but not
below zero) to the largest amount which is not a Parachute Payment (as
hereinafter defined) when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement. For
purposes hereof, the term Parachute Payment shall have the meaning given to
parachute payments set out in Internal Revenue Code of 1986 Section
280G(b)(2)(A) (relating to the quantification of parachute payments) as then in
effect determined without regard to the provisions of Internal Revenue Code of
1986 Section 280G(b)(4) (relating to the exclusion of reasonable compensation
from parachute payments) as then in effect. Notwithstanding the foregoing, if
the Executive proves to the satisfaction of the Compensation Committee of the
Company's Board of Directors (if no such Compensation Committee then is in
existence, then any other committee of the Board of Directors of Company then
performing the functions of a compensation committee) with clear and convincing
evidence that all or any portion of the amount of the reduction provided in the
preceding sentence would not constitute a parachute payment within the meaning
of such term as defined in Internal Revenue Code of 1986 Section 280G(b)(2)(A)
as then in effect determined with regard to the provisions of Internal Revenue
Code of 1986 Section 280G(b)(4) as then in effect and that the Company's tax
reporting position in regard to the payment is overwhelmingly likely to be
sustained, then the reduction provided in the preceding sentence shall be
adjusted to permit
54
payment of so much of such reduction as the said Compensation Committee
determines will result in the largest amount which would not constitute a
parachute payment within the meaning of such term as defined in Internal Revenue
Code of 1986 Section 280G(b)(2) (A) as then in effect determined with regard to
the provisions of Internal Revenue Code of 1986 Section 280G(b)(4) as then in
effect.
(d) MITIGATION; LEGAL FEES. The Executive shall not be required to mitigate
the amount of any payment provided for in either Section 5(b) or Section 5(c)(i)
by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in Section 5(b) or Section 5(c) (i) be reduced by any
compensation earned by the Executive as a result of self-employment or
employment by another employer, by retirement benefits or by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
Following a Change of Control, the Company agrees to pay, as incurred, all legal
fees and expenses which the Executive may reasonably incur as a result of any
contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement) plus in each case interest on any delayed payment at the applicable
federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986 as then in effect.
(e) TERMINATION BY REASON OF DEATH OR DISABILITY.
(i) Notwithstanding anything to the contrary contained in this
Agreement, the employment hereunder of the Executive shall be automatically
terminated upon the death of the Executive after which time the Company shall
have no further obligation to the Executive or his estate for any compensation
or benefits hereunder, except to the extent any compensation or benefits are due
to the Executive or his estate for any period prior to his death, provided,
however, that this Section 5 (e)(i) shall not affect in any manner any other
benefits to which the Executive or his estate may be entitled or which may vest
or accrue upon his death under any arrangement, plan or program (other than this
Agreement) with the Company, by law or otherwise.
(ii) Notwithstanding anything to the contrary contained in this
Agreement, the employment hereunder of the Executive may be terminated by reason
of disability, upon written notice to the Executive, in the event of the
inability of the Executive to perform his duties hereunder by reason of
disability, whether by reason of injury (physical or mental), illness (physical
or mental) or otherwise, incapacitating the Executive for a continuous period
exceeding one hundred and eighty (180) days, as certified by a physician
selected by the Company in good faith, and the Company shall have no further
obligation under this Agreement to the Executive for any compensation or
benefits hereunder, except to the extent any compensation or benefits are due to
the Executive for any period prior to his termination by reason of disability,
provided, however, that this Section 5 (e)(ii) shall not affect in any manner
other benefits to which the Executive may be entitled or which may accrue or
vest upon his disability and the Executive shall be entitled to receive such
compensation and benefits during and after such period of disability as the
Company's policies and procedures in effect from time to time provide for
similarly situated executives, as if the Executive and the Company had not
entered into this Agreement.
(iii) The Executive's rights to exercise his stock options in the
event of termination of his employment by reason of his death or disability
shall be governed by the Plans and the relevant shock option agreement.
55
6. CONFIDENTIALITY AND NON-COMPETITION.
(a) CONFIDENTIALITY. The Executive recognizes and acknowledges as an
employee of the Company, he will have access to, become acquainted with, and
obtain financial information and knowledge relating to the business, financial
condition, methods of operation and other aspects of the Company, its parent,
subsidiaries and affiliates ("Affiliated Companies") and their customers,
employees and suppliers, some of which information and knowledge is confidential
and proprietary and that the Executive could substantially detract from the
value and business prospects of the Affiliated Companies in the event, while
employed by the Company or any time thereafter, the Executive were to disclose
to any person not related to the Affiliated Companies or use such information
and knowledge for his or such other person's advantage. Accordingly, the
Executive hereby agrees that he will not disclose to any person, other than
directors, officers, employees, accountants, lawyers, consultants, advisors,
agents and representative of, or other persons related to, the Affiliated
Companies on a need to know basis in the course of carrying out his duties
hereunder, any knowledge or information of a confidential nature pertaining to
the Affiliated Companies, or their successors and assigns, including without
limitation, all unpublished matters relating to the business, properties,
accounts, books and records, business plan and customers of the said
corporations, or their successors and assigns, except with the prior written
approval of the Board, or except as may be required by law.
(b) EQUITABLE RELIEF. The Executive acknowledges and agrees (i) that the
provisions of this Section 6 are reasonable and necessary for the protection of
the Company, its subsidiaries and affiliates or its or their successors and
assigns, and (ii) that the remedy at law for any breach by him of the provisions
of this Section 6 will be inadequate and, accordingly, the Executive hereby
agrees that in the case of any such breach (x) the Company or its successors and
assigns shall be entitled to injunctive relief, in addition to any other remedy
they may have, and (y) the Executive shall forfeit any future payments or
benefits to which he might be entitled hereunder.
(c) NON-SOLICITATION. For a period of one (1) year after the Executive
receives any compensation pursuant to this Agreement he will not (i) solicit,
divert or take away, directly or indirectly, any Major Customer of the Company,
its parent, subsidiaries or affiliates, or its or their successors and assigns,
or (ii) directly or indirectly induce or attempt to influence any employee of
the Company, its parent or any of its subsidiaries or affiliates, or their
successors and assigns, to terminate his employment with the Company, its parent
or any of its subsidiaries or affiliates or their successors or assigns. As used
herein, "Major Customer" shall mean any customer of the Company who has
maintained an average deposit balance of at least $100,000 during the last six
months of the Term or who has maintained or obtained a credit facility of at
least $100,000 from the Company during the last six months of the Term.
(d) ENFORCEABILITY. The covenants on the part of the Executive contained in
this Section 6 shall be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
by the Executive against the Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
said covenants. This Section shall survive the termination of this Agreement.
The period, geographical area and the scope of the restrictions on the Executive
set forth herein are divisible so that if any provision of this Section 6 is
invalid, that provision shall be automatically modified to the extent necessary
to make it valid.
(e) JURISDICTION. Employee hereby submits to the exclusive jurisdiction of
the courts of Massachusetts and the Federal courts of the United States of
America located in such state in respect to the interpretation and enforcement
of the provisions of this Section 6, and Employee hereby waives, and agrees not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement of this Section 6, that Employee is not subject thereto or that
such action, suit or proceeding may not be brought or is not maintainable in
said courts or that this Agreement may not be enforced in or by said courts or
that Employee's property is exempt or immune from execution, that the suit,
action or proceeding is brought in an inconvenient forum, or that venue is
improper.
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7. DISPUTES.
(a) Any dispute relating to this Agreement, or to the breach of this
Agreement, except such as may concern Section 6, arising between the Executive
and the Company shall be settled by arbitration in accordance with the
commercial arbitration rules of the American Arbitration Association ("AAA"),
which arbitration may be initiated by any party hereto by written notice to the
other of such party's desire to arbitrate the dispute. The arbitration
proceedings, including the rendering of an award, shall take place in Boston,
Massachusetts, and shall be administered by the AAA.
(b) The arbitrator shall be appointed within thirty (30) days of the notice
of dispute, and shall be chosen by the parties from the names of available
arbitrators furnished to the parties in list form by the AAA. The parties may
review and reject names of available arbitrators from up to an aggregate of
three lists furnished to the parties by the AAA. If, after having been furnished
three lists of arbitrators, the parties cannot agree on one available
arbitrator, either party may request that the AAA appoint an arbitrator to
arbitrate the dispute.
(c) The award of the arbitrator shall be final except as otherwise provided
by the laws of The Commonwealth of Massachusetts and the federal laws of the
United States, to the extent applicable. Judgment upon such award may be entered
by the prevailing party in any state or federal court sitting in Boston,
Massachusetts.
(d) No arbitration proceedings hereunder shall be binding upon or in any
way affect the interests of any party other than the Company, or its successors
and the Executive, with respect to such arbitration.
8. INDEMNIFICATION.
The Company shall indemnify the Executive to the fullest extent permitted
by Massachusetts law, which indemnification may require the advance of expenses
to the Executive, if and to the extent permitted by such law. In the event of
any claim for indemnification by the Executive, the Executive shall deliver
written notice of any such claim promptly upon such a claim being made known to
the Executive, which notice shall set forth the basis for such claim. The
Company shall have the right to undertake the defense of such claim with counsel
of its choice.
9. NON-COMPETITION AND NON-DISCLOSURE COMMITMENTS.
The Executive hereby represents and warrants that he is not a party to or
otherwise bound by any contracts, agreements or arrangements which contain
covenants
57
limiting the freedom of the Executive to compete in any line of business or with
any person or entity, or which provide that the Executive must maintain the
confidentiality of, or prohibit the Executive from using, any information in the
context of his professional or personal activities. The Executive further
represents and warrants that neither the execution or delivery of this Agreement
nor the performance by the Executive of his duties hereunder will cause any
breach of any contract, agreement or arrangement to which he is a party or by
which he is bound.
10. ARM'S LENGTH NEGOTIATIONS; REPRESENTATION BY COUNSEL.
The parties to this Agreement further agree that this Agreement has been
negotiated by each in an arm's length transaction. The Executive acknowledges
that he has had the opportunity to be represented by legal counsel in connection
with this Agreement.
11. TAX WITHHOLDINGS.
Payments to the Executive of all compensation contemplated under this
Agreement shall be subject to all applicable legal requirements with respect to
the withholding of taxes and other deductions required by law.
12. NON-ASSIGNABILITY; BINDING AGREEMENT.
Neither this Agreement nor any right, duty, obligation or interest
hereunder shall be assignable or delegable by the Executive without the
Company's prior written consent; provided, however, that (i) nothing in this
Section shall preclude the Executive from designating any of his beneficiaries
to receive any benefits payable thereunder upon his death or disability, or his
executors, administrators, or other legal representatives, from assigning any
rights hereunder to the person or persons entitled thereto, and (ii) any
successor to the Company pursuant to any merger or consolidation involving the
Company, and any purchaser of all or substantially all the assets or the
Company, shall succeed to the rights and assume the obligations of the Company
under this Agreement, and the Company covenants that it will not enter into or
consummate any such transaction which does not make express provision for such
succession and assumption. Subject to the foregoing, this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto, any successors to
or assigns of the Company, the Executive's heirs and the personal
representatives of the Executive's estate.
13. AMENDMENT; WAIVER.
This Agreement may not be modified, amended or waived in any manner except
by an instrument in writing signed by the parties hereto. The waiver by any
party of compliance with any provision of this Agreement by the other party
shall not operate or be construed as a waiver of any provision of this
Agreement.
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14. NOTICES.
Any notice hereunder by either party to the other shall be given in writing
by personal delivery, telex, telecopy or certified mail, return receipt
requested, to the applicable address set forth below:
(i) To the Company: Rockland Trust Company
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn.: President
(ii) To the Executive: Xxxxxxx X. Xxxxxxxxxxx
Post Xxxxxx Xxx 000
000 Xxxxxxxx Xxxxxx
X. Xxxxxxxxxx, XX 00000
(or such other address as may from time to time be designated by notice by
either party hereto for such purpose) .Notice shall be deemed given, if by
personal delivery, on the date of such delivery or, if by telex or telecopy, on
the business day following receipt of answer back or telecopy confirmation or if
by certified mail, on the date shown on the applicable return receipt.
15. GOVERNING LAW.
This Agreement is to be governed by and interpreted in accordance with the
laws of The Commonwealth of Massachusetts. If, under such law, any portion of
this Agreement is at any time deemed to be in conflict with any applicable
statute, rule, regulation or ordinance, such portion shall be deemed to be
modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement, and the invalidity of any such portion shall not
affect the force, effect and validity of the remaining portion thereof.
16. SUPERSEDES PREVIOUS AGREEMENTS.
This Agreement and the Split Dollar Agreement and related collateral
assignment constitute the entire understanding between the Company and the
Executive relating to the employment of the Executive by the Company and
supersede and cancel all prior written and oral agreements and understandings
with respect to the subject matter of this Agreement. Except as otherwise
specifically provided herein, all amounts payable to the Executive or the
Company under the Split Dollar Agreement shall be exclusively governed by the
terms of the Split Dollar Agreement and related collateral assignment.
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17. COUNTERPARTS.
This Agreement may be executed by the parties hereto in counterparts, each
of which shall be deemed to be an original, but such counterparts shall together
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Second Amended and
Restated Employment Agreement as of the date first above written.
ROCKLAND TRUST COMPANY
By: /S/ XXXXXXX X. XXXXXXXXX
------------------------
Its: CEO
---
/S/ XXXXXXX X. XXXXXXXXXXX
Xxxxxxx X. Xxxxxxxxxxx
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