SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Amended and restated employment agreement dated and
effective as of March 4, 1992 by and between Rockland Trust
Company, a Massachusetts trust company (the "Company") and
Richard F. Driscoll of Plymouth, Massachusetts (the "Executive"),
as amended by a certain amendment dated and effective as of
February 3, 1993, and as further 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 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.
(b) Position and Duties/Company. During the Term as
defined in Section 2 hereof, the Executive (i) agrees to oversee
and manage all the retail banking operations and functions of the
Company 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
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 00/100 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.
(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 insurance
policy that the Executive purchases for the waiver of premiums on
the insurance policy described in the Split Dollar Agreement 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)(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, 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 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)(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 oc
curred, 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 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 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 Sec
tion 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 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 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 280G(b)(2)(A) as then in effect determined with
regard to the provisions of Internal Revenue Code of 1986
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 280G(b)(2)(A) as then in effect
determined with regard to the provisions of Internal Revenue Code
of 1986 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 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 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 proceed
ing 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 execu
tion, 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.
(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 bind
ing 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.
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 ad
dress set forth below:
(i) To the Company: Rockland Trust Company
288 Union Street
Rockland, MA 02370
Attn.: President
(ii) To the Executive: Richard F. Driscoll
76 Ellisville Road
Plymouth, MA 02360
(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.
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:_____________________________
Its:____________________________
INDEPENDENT BANK CORP.
By:_____________________________
Its:____________________________
_____________________________
RICHARD F. DRISCOLL