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. 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, as amended, 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 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