SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT, dated and effective as of December 12, 1991
by and between Rockland Trust Company, a Massachusetts trust
company (the "Company"), Douglas H. Philipsen, of Duxbury,
Massachusetts, (the "Executive"), and Independent Bank
Corp., a Massachusetts corporation ("IBC"), as amended by a
certain Amendment to Employment Agreement dated as of
February 3, 1993 and as amended and restated as of June 21,
1994, and as further amended by a certain Amendment No. 1 to
Amended and Restated Employment Agreement dated as of
January 12, 1995, and as further amended by Amendment No. 2
to Amended and Restated Employment Agreement dated as of
October 17, 1995 (the "Employment Agreement") and as amended
and restated as of this 21st day of February, 1996.
W I T N E S S E T H:
WHEREAS, the Executive, the Company and IBC are
desirous of amending certain provisions of the Employment
Agreement to change the term of the Employment Agreement to
a rolling thirty-six (36) month term, on the terms and
conditions herein set forth; and
WHEREAS, the Executive, the Company and IBC are
desirous of setting forth provisions relating to the
benefits to which the Executive will be entitled upon his
death or disability; and
WHEREAS, the Executive, the Company and IBC are
desirous of amending the Employment Agreement as set forth
above and restating for the second time 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 and IBC agree to
employ the Executive, and the Executive agrees to be
employed by the Company and IBC for the Term provided in
Section 2 below and upon the other terms and conditions
hereinafter provided.
(b) Position and Duties/Company. So long as the
Executive is employed by the Company, the Executive (i)
agrees to serve as the President and Chief Executive
Officer of the Company and to perform such reasonable duties
consistent with such position as may be delineated in the By-
Laws of the Company and as may be assigned to him from time
to time by the Board of Directors of the Company (the
"Board"), (ii) shall report, as President and Chief
Executive Officer of the Company, only to the Board and its
duly appointed committees (iii) shall serve as a member of
the Board and of any executive or other committee thereof,
if applicable, (iv) shall be given such authority as is
appropriate to carry out the duties described above, it
being understood that, in his capacities as President and
Chief Executive Officer of the Company, his duties shall be
consistent in scope, prestige and authority with the
customary duties of a President and Chief Executive Officer
of a comparable corporation, and (v) agrees to serve, if
elected, at no additional compensation (if the other
officers or directors who are officers of the Company also
serve at no additional compensation) in the position of
officer or director of any subsidiary or affiliate of the Company.
No other employee will hold the title of "Chief Operating Officer"
without the Executive's express permission.
(c) Position and Duties/IBC. So long as the Executive
is employed by the Company, the Executive agrees to serve as
the President of IBC and to perform such reasonable duties
consistent with such position as may be delineated in the By-
Laws of IBC and as may be assigned to him from time to time
by the Board of Directors of IBC (the "IBC Board"). In the
event at any time during the term John F. Spence, Jr. shall
cease to serve as Chief Executive Officer of IBC, the
Executive shall succeed to such position and shall serve in
such position during the remainder of the Term at no
additional compensation. It is acknowledged by the parties
hereto that as President of IBC (and as Chief Executive
Officer, if such becomes the case), the Executive shall
report only to the IBC Board and its duly appointed
committees and not to any other officer regardless of title.
(d) Exclusive Services. So long as the Executive is
employed by the Company, 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, IBC 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 Board
and the IBC Board; 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 Board,
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, IBC or any of their 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;
(iii) managing the commercial farming
activities of the Executive's Johnson, Vermont farm
property, provided the scope of such activities are
consistent with current operations; provided, however, that
such activities in the aggregate shall not materially and
adversely affect or interfere with the performance of the
Executive's duties and obligations to the Company or IBC 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
December 16, 1991 ("Commencement Date") and ending thirty-
six (36) months from the date of termination or resignation
(as defined in Section 6(a)(v) hereof). The term of this
Agreement, as hereinabove defined shall hereinafter be
referred to as the "Term."
3. Cash Compensation.
Except as otherwise specifically provided herein,
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 Two Hundred Seventy-Five Thousand and No/100 Dollars
($275,000) per annum ("Base Salary"), payable no less
frequently than bi-weekly. 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, and/or bonus and/or other additional
compensation to the Executive, but in no event shall any
such compensation adjustment reduce the base salary below
the rate hereinabove specified.
4. INTENTIONALLY OMITTED
5. Benefits.
Except as otherwise specifically provided herein,
so long as the Executive is employed by the Company, the
Executive shall be entitled to the following benefits:
(a) Travel and Business Related Expenses. Until
the earlier of the end of the Term or the Executive's
purchase pursuant to Section 5(b)(i)(E) hereof, the
Executive shall be provided with a Company owned automobile
and 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 employees of the Company generally.
(d) Retirement Plans. The Executive will be
eligible to participate in the Company's retirement benefit
plans (collectively the "Plans") each in accordance with the
terms of the Plans.
(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. 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.
(g) 401K Profit Sharing Plan and Other Incentive
Compensation Plans. The Executive will be eligible to
participate in the Company's profit sharing and other
management incentive compensation plans each in accordance
with their respective terms.
(h) Taxes. Except as otherwise specifically
provided herein, the Executive recognizes that some or all
of these benefits 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)
an amount equal to the sum of all applicable 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
December 23, 1994 by and between the Company and the
Executive, as amended from time to time, (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 such 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. This clause (i) of Section 5
shall remain in full force and effect and shall survive any
termination of the Executive and of this Agreement by reason
of the disability of the Executive, provided however that
the Company's obligation to gross up the compensation of the
Executive under this Section 5(i) for the amounts described
above in Section 5(i)(A) and (C) at any time following
termination of the Executive and this Agreement by reason of
disability, shall be limited to such number of years for
which premiums on the Split Dollar Agreement continue to be
payable by the Company under the terms of the Split Dollar
Agreement.
6. Termination of Employment.
(a) Termination for Cause; Resignation Without Good
Reason.
(i) If the Executive is terminated by the
Board for any reason other than for Cause, as defined below
in Section 6(a)(iii), such termination shall be deemed to be
without Cause, or if the Executive should resign for Good
Reason, as defined below in Section 6(a)(iv), prior to the
expiration of the Term, the Executive shall be entitled to
the payments and benefits provided in Section 6(b)(i).
Notwithstanding anything to the contrary contained in this
Agreement, the Executive shall be entitled to the payments
and benefits set forth in Section 6(b)(i) hereof in all
cases in the event the Executive ceases to be an employee of
the Company for any reason (other than death or disability
(as defined in Section 6(e) hereof)) at any time following a
Change of Control.
(ii) 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 death,
disability (as defined in Section 6(e) hereof) or for Good
Reason, as defined below in Section 6(a)(iv), prior to the
expiration of the Term, 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 death, disability or 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.
(iii) Termination for "Cause" shall mean
action by the Board to terminate the service of the
Executive with the Company at any time because of: (A) the
Executive's conviction of, or plea of nolo contendre to, a
felony or crime involving moral turpitude; (B) activities
involving the Executive's personal profit as a result of his
dishonesty, incompetence, willful misconduct, willful violation
of any law, rule, or regulation, or breach of fiduciary duty; (C)
the Executive's commission of an act involving gross negligence on
the part of the Executive in the conduct of his duties hereunder; (D)
drug addiction on the part of the Executive; or (E) the
Executive's material breach of any provision of this
Agreement; provided, however, that, in the case of any
termination pursuant to clauses (C), (D), or (E) above, the
Company shall give the Executive thirty (30) business days'
written notice thereof, an opportunity to cure within such
thirty (30) 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 Board under the clause(s).
(iv) Resignation for "Good Reason" shall mean
the resignation of the Executive after (A) the Company or
IBC, without the express written consent of the Executive,
materially breaches this Agreement to the substantial
detriment of the Executive; (B) the Board or the IBC Board,
without Cause (as defined in Section 6(a)(iii) 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 Chief Executive Officer and
President of the Company and the President of IBC; (C) the
Board or the IBC Board, without Cause (as defined in Section
6(a)(iii) above) places another executive above the
Executive in the Company or IBC (except for the current
designation of John F. Spence, Jr. as Chief Executive
Officer of IBC); or (D) a Change of Control as defined in
Section 6(c) below; provided, however, that, in the case of
resignation pursuant to clauses (A) through (C) above, the
Executive shall give the Company or IBC, as the case may be,
30 business days' written notice thereof and, during such 30
day period, an opportunity to cure.
(v) The date of termination of employment by
the Company pursuant to Section 6(a) (or pursuant to Section
6(b) below) 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 pursuant to this Section 6(a)
(or pursuant to Section 6(b) below) 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.
(i) If the Executive's employment is
terminated by the Company for any reason other than death,
disability (as defined in Section 6(e) hereof) or for Cause,
or, if the Executive should resign for Good Reason prior to
the expiration of the Term, he shall be entitled (A) to
receive a lump sum severance payment in an amount equal to
the Executive's then current base salary for the then
remaining portion of the Term, plus (B) all amounts due to
the Executive under Section 5(i) above shall be accelerated
and due and payable to the Executive, to the extent not paid
to the Executive as of the termination of this Agreement,
which payments shall be due immediately upon the termination
or resignation of the Executive's employment and, if not so
paid, shall bear interest at the rate of 15% per annum from
such date until paid, and (C) (1) to continue participation
in the plans and arrangements described in clauses (b) and
(f) of Section 5 hereof (to the extent permissible by law and the
terms of such plans and arrangements) for the then remaining
portion of the Term (the "Benefits Period"), or (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 5 hereof for the
Benefits Period less any portion thereof during which the
Executive has continued his participation in such plans and
arrangements described in clause (b) and (f) of Section 5
hereof in accordance with subsection 6(b)(i)(C)(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 6(b)(i)(C)(2), and if
not so paid, shall bear interest at the rate of 15% per
annum for such date until paid, and (D) to have all stock
options which have been granted to the Executive to
immediately become fully 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 (E) upon his
written notice to the Company at any time within 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) In the event of any dispute as to
whether the Executive's employment was terminated by the
Company for a reason other than for Cause or whether the
Executive resigned for Good Reason, the Executive shall
continue to be provided with the health insurance benefits
provided by the Company during the arbitration proceedings
provided for in Section 8 below. Further, any monies which
would be payable to the Executive pursuant to this Section
6(b) if the Executive were to prevail in such arbitration
proceedings shall be deposited promptly into interest
bearing escrow accounts to be established by the Company in
the name of the American Arbitration Association, as
trustee, in a federally insured depository institution
(other than the Company or any affiliated entity) for such
purpose, and the accounts shall be established at separate
institutions in amounts such that the principal plus
interest anticipated to accrue during the course of
arbitration proceedings shall not exceed the limit of
federal insurance applicable to each such account. The
total of the escrowed amounts, together with the accrued
interest thereon, shall be paid to the Executive or revert
to the Company, as the case may be, in accordance with the
final resolution of the dispute pursuant to Section 8.
(c) Change of Control.
(i) A "Change of Control" shall be deemed to
have occurred if, subsequent to the Commencement Date, (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 either the Company's outstanding
common stock or IBC's outstanding common stock, or (y)
securities of the Company or IBC representing a majority of
the combined voting power of either the Company's then
outstanding voting securities or IBC's then outstanding
voting securities, or (B) during any period of two
consecutive years, individuals who at the beginning of such
period constitute the Board cease, at any time after the
beginning of such period, for any reason to constitute a majority
of the Board unless the election of each new director was
nominated or approved by at least two-thirds of the
directors then still in office who were either directors at
the beginning of such two-year period or whose nomination
for election was previously approved.
(ii) 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 6 (b)(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 Board (if no such Compensation
Committee then is in existence, then any other committee of
the Board of the 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 preced ing 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 of Damages; Legal Fees. The Executive
shall not be required to mitigate the amount of any payment
or benefit provided for in Section 6(b) by seeking other
employment or otherwise, nor shall the amount of any payment
or benefit provided for in Section 6(b) 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. 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 rate of fifteen
percent (15%) per annum.
(e) Termination by Reason of Death or Disability.
(i) Notwithstanding anything to the contrary
contained herein, in the event the Executive should die while
he is employed by the Company, the Executive's employment shall
be automatically terminated and the Company shall have no
further obligations under this Agreement to pay compensation
or benefits to the Executive or his estate, 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 6(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, program or plan with the
Company (other than this Agreement), by law or otherwise.
(ii) Except as set forth in Section 5(i)
hereof, notwithstanding anything to the contrary contained
herein, in the event the Executive should be unable 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, the Executive's employment may be
terminated by the Company upon written notice to the
Executive and upon such termination, the Company's only
obligations hereunder shall be to (A) pay to the Executive
an amount equal to fifty percent (50%) of the Executive's
Base Salary on the date of termination of employment for the
then remaining portion of the Term at such times as such
Base Salary would have been payable if the Executive had not
been terminated, less any benefits which the Executive
receives under any disability insurance program provided by
the Company and in effect at the date of such termination,
and (B) continue to permit the Executive to participate in
the plans and arrangements described in clause (b) and (f)
of Section 5 hereof (to the extent permissible by law and
the terms of such plans and arrangements) for the then
remaining portion of the Term; provided, however, that if
the Executive dies following a termination pursuant to this
Section 6(e)(ii), then the provisions of Section 6(e)(i)
shall supersede this Section 6(e)(ii) from and after the
date of death of the Executive.
(iii) The Executive's right to exercise his
stock options in the event of his death or disability shall
be governed by the terms of the Plans and the relevant stock
option agreement.
7. 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 of Directors of the Company, or except
as may be required by law.
(b) Equitable Relief. The Executive acknowledges
and agrees (i) that the provisions of this Section 7 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 7 will be
inadequate and, accordingly, the Executive hereby agrees
that in the case of any such breach (i) the Company or its
successors and assigns shall be entitled to injunctive
relief, in addition to any other remedy they may have, and
(ii) the Executive shall forfeit any future payments or
benefits to which he might be entitled hereunder.
(c) Non-Solicitation/Non Competition. 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 7 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 or IBC, 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 7 is
invalid, that provision shall be automatically modified to
the extent necessary to make it valid.
8. Disputes.
(a) Any dispute relating to this Agreement, or to
the breach of this Agreement, arising between the Executive
and the Company, IBC or any of their affiliates or
subsidiaries shall be settled by arbitration in accordance
with the commercial arbitration rules of the American
Arbitration Association ("AAA"). The arbitration
proceeding, including the rendering of an award, shall take
place in Boston, Massachusetts, and shall be administered by
the AAA.
(b) The arbitral tribunal shall be appointed
within 30 days of the notice of dispute, and shall consist
of three arbitrators, one of whom shall be appointed by the
Company or IBC, one by the Executive, and the third by both
the Company or IBC and the Executive jointly; provided,
however, if the Company or IBC and the Executive do not
select the third arbitrator within such 30 day period, such
third arbitrator shall be chosen by the AAA as soon as
practicable following notice to the AAA by the parties of
their inability to choose such third arbitrator.
(c) The award of any such arbitral tribunal 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, IBC and the Executive with respect
to such arbitration.
9. Indemnification.
IBC and the Company shall indemnify the Executive
to the fullest extent permitted by the Massachusetts General
Corporation Law. This indemnification requires the advance
of expenses to the Executive, as permitted by such law. The
parties to this Agreement further agree that this Agreement
has been negotiated by each in an arm's length transaction,
and that each has been represented by counsel in the
negotiation and execution of the Agreement.
10. Tax Withholding and Excessive Payments.
(a) 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.
(b) In the event the sum of (A) the amount
payable to the Executive hereunder which is characterized as
applicable employee remuneration for federal income tax
purposes under Internal Revenue Code of 1986, 162(m)(4) for
any tax year of the Company and (B) the aggregate of all
other amounts which are characterized as applicable employee
remuneration under Internal Revenue Code of 1986, 162(m)(4)
paid by the Company in respect to the Executive for such tax
year exceeds (C) $1,000,000 (or such greater or lesser sum
as equals the maximum amount allowable as a deduction to the
Company for federal income tax purposes under Internal
Revenue Code of 1986, 162(m) in respect to applicable
employee remuneration to the Executive for such tax year),
the amount payable hereunder in respect to such year shall
be reduced (but not below zero) to the amount which shall
result in the sum of (D) the amount payable hereunder which
is characterized as applicable employee remuneration under
said 162(m)(4) and (E) all other remuneration paid by the
Company in respect to the Executive for such tax year which
is characterized as applicable employee remuneration under
said 162(m)(4) equaling (F) $1,000,000 (or such greater or
lesser sum as equals the maximum amount allowable as a
deduction to the Company for federal income tax purposes
under said 162(m) in respect to applicable employee
remuneration under said 162(m)(4) to the Executive for such
tax year. If, after the maximum reduction in the preceding
sentence, any other amounts remain payable otherwise than
under this Agreement which would, if paid, be applicable
employee remuneration (as defined above) in excess of the
amount which is allowable as a deduction for the same under
said 162(m), such amounts shall be reduced to the maximum
amount allowable as a deduction to the Company for federal
income tax purposes under said 162(m) in respect to
applicable employee remuneration to the Executive for such
tax year. So much of the amount of the reductions provided
in the two preceding sentences as may be paid in the tax year
of the Company next succeeding without resulting in a disallowance
of a federal income tax deduction under said 162(m) in respect to the
portion of such reduction so paid shall be paid on the first
business day in such succeeding tax year. If the full
amount of such reductions is not paid in such tax year of
the Company next succeeding, the remainder of such reduction
shall be paid in installments equal to the lesser of (G) the
unpaid balance of such reduction or (H) the amount which may
be paid in each successive tax year without resulting in a
disallowance of a federal income tax deduction under said
162(m) in respect to the portion of such reduction so paid
until the full amount of such reductions have been paid.
References to sections of the Internal Revenue Code of 1986
shall refer to the successors (to the sections cited as
presently constituted) which are in effect when applied.
11. 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 or
IBC pursuant to any merger or consolidation involving the
Company or IBC, and any purchaser of all or substantially
all the assets of the Company or IBC, shall succeed to the
rights and assume the obligations of the Company or IBC
under this Agreement, and the Company and IBC covenant that
they 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
and IBC, the Executive's heirs and the personal
representatives of the Executive's estate.
12. 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.
13. 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
or IBC
288 Union Street
Rockland, MA 02370
(ii) To the Executive: Douglas H. Philipsen
634 Chandler
Street Duxbury, MA 02332
(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.
14. 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.
15. Supersedes Previous Agreements.
This Agreement and the Split Dollar Agreement
constitute the entire understanding between the Company, IBC
and the Executive relating to the employment of the Executive
by the Company and supersedes 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.
16. 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.
17. Joint and Several Liability.
The obligations and liability of IBC and the Company
hereunder shall be joint and several.
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:____________________________
________________________________
DOUGLAS H. PHILIPSEN