EMPLOYMENT AGREEMENT
Agreement dated as of the 1st day of June, 2001 by and between
Enterprise Bancorp, Inc., a Massachusetts corporation (hereinafter referred to
as the "Corporation") and its wholly owned subsidiary Enterprise Bank and Trust
Company with its principal office at 222 Merrimack Street in Lowell,
Massachusetts 01852 (the "Bank"), the Corporation and the Bank may hereafter be
collectively referred to as the ("Corporation") and George L. Duncan residing at
710 Andover Street in Lowell, Massachusetts 01852 (hereinafter referred to as
"Duncan") .
W I T N E S S E T H
WHEREAS, Duncan is a highly regarded expert in the field of bank
management;
WHEREAS, the Corporation acknowledges that Duncan's abilities and
services are unique and essential to the future prospects of the Corporation;
WHEREAS, in light of the foregoing, the Corporation and Duncan have
negotiated the terms and conditions of the employment of Duncan as the Chief
Executive Officer of the Bank, and;
WHEREAS, the Corporation and Duncan have, in addition to duties, salary
and benefits, attempted to define the rights and obligations of Duncan and the
Corporation with respect to change in control and non competition.
WHEREAS, in light of the foregoing, the Bank desires to employ Duncan
as its Chief Executive Officer and Duncan desires to accept such employment,
and;
WHEREAS, Duncan is presently employed by the Bank pursuant to an
employment Agreement dated February, 1996 ("Old Employment Agreement"); and
WHEREAS, the Corporation and Duncan acknowledge that in his capacity as
Chief Executive Officer of the Bank that Duncan is extensively involved in
servicing the customers of the Bank many of whom have a long standing
relationship with the Bank and Duncan, and;
WHEREAS, the Corporation and Duncan each acknowledge that as Chief
Executive Officer of the Bank that Duncan has access to confidential information
which is not known otherwise to competitors of the Bank; and
WHEREAS, Duncan agrees that the Corporation has a legitimate interest
in protecting its customer relations and its confidential information; and
WHEREAS, the Corporation, the Bank, and Duncan desire to terminate the
old Employment Agreement and enter into a new Agreement based on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties mutually agree as follows:
1. Duncan, the Bank, and the Corporation agree that any and all
provisions of the Old Employment Agreement shall be terminated concurrently with
the execution of this Agreement and it shall be of no further force or effect.
The parties waive and release all rights they may have under the Old Employment
Agreement as of the date hereof.
2. The Bank hereby employs Duncan as the Chief Executive Officer of the
Bank and Duncan hereby agrees to be employed by the Bank as its Chief Executive
Officer upon the terms and conditions hereinafter set forth.
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3. The initial term of this Agreement shall commence on June 1, 2001
and shall terminate on May 31, 2004. On the anniversary date of each year of the
agreement, the agreement shall be extended for an additional one (1) year, so
that the remaining term shall be three (3) years. The minimum term of this
agreement shall at all times be three (3) years unless otherwise set forth in
this Agreement. Upon notice to Duncan given on or before any anniversary date,
the Corporation may terminate this agreement in which case this agreement will
terminate three (3) years from the anniversary date (unless otherwise set forth
in this agreement). This Agreement shall be reviewed annually by the Board of
Directors of the Bank or by its Compensation Committee. The Agreement may be
terminated at any time by Duncan, upon six (6) months notice provided to the
Bank, provided however that such termination shall be subject to the terms,
conditions and restrictions set forth in paragraph 42 of this Agreement.
4. Duncan agrees to serve during the term or terms of this Agreement as
the Chief Executive Officer of the Bank for so long as he may be elected by the
Board of Directors of the Bank and he agrees to devote his full time and best
efforts in the performance of his designated duties to the furtherance of the
business of the Corporation.
5. All services which Duncan shall perform for the Corporation and its
subsidiaries while this Agreement is in effect shall be deemed to be services
covered by this Agreement and by the compensation herein provided, and Duncan
shall not be entitled to any additional compensation for additional duties. It
is understood that the activities referenced in this Agreement shall include
services rendered in connection with any insurance and trust and investment
management activities engaged in by the Corporation.
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6. During the term or any extensions of the term of this Agreement,
nothing herein shall preclude Duncan from remaining involved in any business,
including any limited or general partnership, in which he currently
participates, or any future like venture in which he may participate, as a
passive investor. Any future business involvement such as a general partnership
for real estate purposes or other like active investment must be first approved
by the Board of Directors of the Bank or by its Compensation Committee. The
Board or Committee shall act within a reasonable time regarding a request for
approval of an investment when such request is made of it by Duncan, and
approval thereof shall not unreasonably be withheld.
7. For all of Duncan's services and covenants under this Agreement, the
Bank shall pay Duncan an initial annual salary at the rate of Two Hundred Three
Thousand Nine Hundred Dollars ($203,900.00) per annum, to be paid in equal
weekly installments, which shall be subject to periodic annual upward
adjustments as determined by the Board of Directors of the Bank. The payments
under this paragraph are hereafter referred to as ("Annual Base Salary").
8. Duncan shall be entitled to use of a corporate vehicle and to
reimbursement for expenses reasonably incurred in connection with the
performance of Duncan's duties hereunder, in accordance with such procedures as
the Board of Directors of the Bank or the Compensation Committee of the Bank may
establish from time to time.
9. In addition to his annual base salary, Duncan shall be entitled (i)
to participate in the Corporation's Benefit Plans, Stock Option Plans, 401(k)
Plans, Employee Stock Ownership Plan, Bonus Plans, and any other incentive or
benefit plans of the Corporation established for the benefit of its officers or
employees from time to time in effect (subject to the terms of such plans and
subject to the applicable votes of the Board of Directors in effect from time to
time), and (ii) to receive all such other fringe benefits and privileges as the
Corporation shall from time to time make available to its officers.
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10. In addition to his Annual Base Salary and in addition to the other
benefits set forth in this Employment Agreement, the annual payments to be made
by the Bank under the SPLIT-DOLLAR Agreement between the Bank and Duncan shall
continue to be made during the time periods set forth in the SPLIT-DOLLAR
Agreement as from time to time amended, and as extended by the terms of this
Agreement.
11. If, during the term or any extended term of this Agreement, there
is a "Change in Control" of Enterprise Bancorp, Inc., then beginning on the
effective date of the "change in control," Duncan shall have the option,
exercisable by him at any time during the term or any extended term of this
agreement, upon sixty (60) days advance written notice to the Corporation, to
terminate this agreement.
If Duncan terminates this agreement, the Corporation shall pay Duncan
within sixty (60) days following the receipt by the Corporation of the Notice of
Termination in a lump sum payment, an amount equal to three (3) times Duncan's
previous Highest Annual Earnings. If Duncan shall die following a "change in
control" of Enterprise Bancorp, Inc., then upon notice sent by his estate
representative, all the payments to have been paid Duncan while he was alive,
shall be paid to his estate within sixty (60) days following receipt by the
Corporation of said notice.
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12. For purposes of this Agreement, Duncan's "Highest Annual Earnings"
shall be computed from the average of the Total Annual Earnings paid or to be
paid during the three (3) highest calendar years of his last five (5) years of
employment prior to any Date of Termination of employment with the Corporation
(hereinafter referred to as "The Earnings Period"). Total Annual Earnings shall
mean, as determined as of any Date of Termination, and computed for the earnings
period, the sum of (i) the annual base salary paid by the Bank to Duncan for the
earnings period, and (ii) the annual incentive compensation or bonus
compensation paid by the Bank to Duncan which are not included in clause (i) of
this paragraph, (or which would have been paid but for an election by Duncan to
defer payment to a later period), and (iii) Highest Annual Earnings, shall also
include but not be limited to annual base salary, bonus payments, incentive
bonus payments, 401(k) match payments and ESOP payments. In addition, any
deferred compensation payments shall be accelerated and paid in a lump sum.
13. In the event of a change in control, the Corporation shall
accelerate all of its payment obligations under the SPLIT-DOLLAR PLAN, and shall
make all of the annual payments due (until age 65) in one lump sum payment
during the aforementioned sixty (60) day period,
14. Intentionally Omitted.
15. In addition, in the event of the death of Duncan while this
Agreement is in effect, or if there is a change in control, the Bank agrees that
Carol Duncan, the wife of Duncan, and his children (the "beneficiaries") shall
remain covered by the health plan of the Corporation, as the same may be amended
from time to time, and the premium payment shall be made by the Corporation. The
obligation of the Corporation shall terminate for the children upon their
emancipation; and shall terminate for the wife when she shall remarry or die,
whichever shall first occur. A child who is a full time student and who has not
attained age 25 years shall not be deemed emancipated.
16. During the term or any extended term of this Agreement, if Duncan
is unable to perform the services required of him hereunder because of sickness
or other disability (hereafter called the "Disability Period"), the Bank may
elect to replace him as Chief Executive Officer and may elect to be relieved of
the obligation to pay Duncan his annual earnings and, upon notice to Duncan of
such election, to pay Duncan during the period of his disability at the rate
equal to seventy-five percent (75%) of the Highest Annual Earnings paid him
during the term of this Agreement, which occurred prior to his disability less
any amounts payable to him under any group disability plan.
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The payments under this paragraph shall terminate when Duncan is no
longer eligible to receive payments under the group disability plan or program
sponsored by the Corporation.
The provisions of this paragraph shall not prevent the Corporation from
exercising its rights under paragraph 3 of this agreement.
17. The existence of a disability shall not entitle the Corporation to
terminate this Agreement for cause, nor to terminate his status as an employee
of the Corporation. If Duncan is replaced as Chief Executive Officer of the Bank
during the Disability Period according to this paragraph or pursuant to any
other paragraph of this Agreement relating to disability, then the obligations
of the parties under those paragraphs shall remain in effect. It is expressly
agreed and understood that the existence of a disability shall not be deemed
cause for termination as the term "cause" is defined in this Agreement.
18. For the purposes of this agreement Duncan shall be deemed to be
disabled if he shall qualify to receive disability benefits under the group long
term disability insurance policy (the "policy") then in force and effect at the
corporation. Duncan shall be deemed to have recovered from any such disability
when he is no longer eligible to receive full disability benefits under the
aforementioned policy.
The foregoing notwithstanding, Duncan shall not be deemed to have
recovered from any such disability when he is no longer eligible to receive full
disability benefits under the aforementioned policy if this lack of eligibility
is due solely to an age requirement in the policy,
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If Duncan is then deemed disabled by the Board of Directors of the Bank
in accordance with the procedure as set out in the following paragraphs, then
the Board of Directors in its sole option may pay to Duncan the disability
benefits to which he would have been entitled under the long term disability
policy less any other payments made by the Bank to Duncan for a period of three
(3) years commencing from the date of his lack of eligibility under the policy
or the Board in its sole option may terminate the employment of Duncan and make
payments to him, as if he was terminated under paragraph 3 of the Agreement.
If there is no such policy in force and effect at the corporation,
Duncan shall be deemed to be disabled if he in the reasonable judgment of the
Board of Directors shall be unable to perform his duties hereunder. Duncan shall
be deemed to have recovered from any such disability if he shall in the
reasonable judgment of the Board of Directors be able to perform all such
duties. Any such determination or determinations by the Board of Directors shall
be binding upon Duncan. To assist the Board in making any such decision, Duncan
agrees that he will submit to a medical examination at any reasonable time or
times, by any qualified physician designated by the Board.
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19. A "Change in Control" or a "Change of Control" for the purposes of
this Agreement shall be collectively referred to as ("Change of Control") is
deemed to have occurred in either of the following events: (i) if there has
occurred a change in control that the Corporation would be required to report in
response to Item I of a Current Report on Form 8-K as filed by the Corporation
with the SEC pursuant to the requirements of Section 13 or Section 15(d) of the
Exchange Act or, if such reporting obligation is no longer in effect, any
regulations promulgated by the SEC or any successor agency pursuant to the
Exchange Act or any successor statute that are intended to serve similar
purposes; or (ii) when any person (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act) becomes a beneficial owner (as that term is
defined in Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Corporation representing fifteen percent (15%)
or more of the total number of votes that may be cast for the election of
Directors of the Corporation, and in the case of either (i) or (ii) above, the
Corporation's Board of Directors has not consented to such event by a two-thirds
vote of all of its members (unless there exists at such time an Interested
Stockholder, as that term is defined in the Corporation's Articles of
Organization or the Corporation's Restated Articles of Organization, in which
case the affirmative vote of two-thirds of the Continuing Directors, as that
term is defined in the Corporation's Articles of Organization or Restated
Articles of Organization, is also required. In addition, a Change in Control or
Change of Control is also deemed to have occurred if as the result of, or in
connection with, any tender or exchange offer, merger or other business
combination, sale or other-disposition of assets or contested election or any
combination of the foregoing transactions, the persons who were Directors of the
Corporation before such transaction or related series of transactions cease to
constitute a majority of the Board of Directors of the Corporation or of any
successor institution.
20. In the event that any payments or benefits are to be received by
Duncan as a result of a "change in control," Duncan shall be under no obligation
to seek other employment or to mitigate damages and there shall be no offset
against any amount due Duncan under this Agreement for any reason, including,
without limitation, in any remuneration or benefits attributable to any
subsequent employment that Duncan may obtain.
21. Duncan, if he exercises the option to terminate under any change in
control, notwithstanding the obligation to compensate him, shall be relieved of
any restrictions with respect to his activities in engaging in competitive
employment as set forth elsewhere in this Agreement.
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22. If, during the term or any extended term of this Agreement and
prior to any Change In Control, Duncan shall cease to be elected by the Board of
Directors of the Bank to serve the Bank as its Chief Executive Officer, or if
the Board of Directors makes a material change in the duties or functions or
responsibilities of Duncan (called "change in duties") other than for
disability, then, beginning on the date on which the change in duties occurred,
Duncan shall have the following options, exercisable by him at any time during
the remainder of the term or any extended term of this Agreement. Upon sixty
(60) days advance written notice to the Bank, Duncan may elect to (i) remain as
a full-time employee of the Bank under the terms of this Agreement, in his new
capacity; or (ii) terminate this Agreement; or (iii) serve the Bank as a
consultant for the remainder of the term, or any extended term in lieu of
serving in another capacity.
23. In the event Duncan elects to terminate this Agreement in
accordance with paragraph 22, Duncan shall receive payments of his Highest
Annual Earnings from the Corporation for three (3) years from the date the
Corporation is notified of his election to terminate. The said payments are as
defined in this agreement. The payments shall be made in equal weekly
installments. In addition, Duncan shall be entitled to receive all other
benefits referred to in this Agreement. Duncan agrees that during the period he
is receiving payments under this paragraph, and in consideration of the
compensation to be paid to him hereunder, that he will not compete, directly or
indirectly, with the business of the Bank (including any parent or subsidiary
entity thereof) or of that of its successors or assigns, nor will he disclose
any confidential information, nor will he solicit or interfere with any
contractual relations.
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24. The phrase "compete, directly or indirectly, with the business of
the Corporation or of that of its successors or assigns," as used herein, shall
be deemed to include (without thereby limiting the generality of the same)
engaging or having any interest directly or indirectly as an employee through
the rendering of services or otherwise either alone or in association with
others in the operation of any financial institution with a branch office in
Lowell or in any town contiguous to Lowell, which shall include Billerica,
Chelmsford, Westford, Dracut, Tewksbury, Tyngsboro, or in Leominster, or
Fitchburg and/or any town contiguous to either of them and engaging or having
any interest directly or indirectly as an employee through the rendering of
services or otherwise either alone or in association with others in the
operation of any financial institution in any City or Town in which Enterprise
Bank and Trust Company has a branch.
25. Duncan further agrees, during the payment period of paragraph 23,
not to own an interest exceeding one percent (1%), directly or indirectly as an
owner, partner through stock ownership, investment of capital, lending of money
or property, in any financial institution with a branch in Lowell or any town
contiguous to Lowell, which shall include Billerica, Chelmsford, Westford,
Dracut, Tewksbury, Tyngsboro, or in Leominster or Fitchburg and/or in any City
or Town contiguous to either of them or in which Enterprise Bank and Trust
Company has a branch.
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26. Duncan agrees not to compete with the Corporation during a two (2)
year non-compete period following termination as that term is defined in this
agreement. During each year of the two (2) year non-compete period, as further
detailed below, Duncan shall receive salary payments at least equal to seventy
percent (70%) of the highest annual earnings paid to him during any year of the
term of this Agreement or any year of any extended term of this Agreement. If
Duncan is employed during the two (2) year non-compete period, by another
employer outside of the non-compete area, or by an employer approved by the
Corporation within the non-compete area, Duncan shall receive salary payments
from the Corporation equal to one-hundred percent (100%) of the Highest Annual
Earnings paid to him during the term of this Agreement less any renumeration
paid by his new employer. For a period of two (2) years from the date this
Agreement is terminated (the "Non Compete Period"), and subject to the
provisions of this Agreement which specifically set forth a contrary intent,
Duncan further agrees, in consideration of the compensation to be paid to him
hereunder that, during any non compete period he will not compete, directly or
indirectly, with the business of the Corporation or of that of its successors or
assigns. The phrase "compete, directly or indirectly, with the business of the
Corporation or of that of its successors or assigns", as used herein, shall be
deemed to include (without thereby limiting the generality of the same) engaging
or having any interest, directly or indirectly, as an employee, through the
rendering of services, or otherwise, either alone or in association with others,
in the operation of any financial institution engaging or having any interest
directly or indirectly as an employee through the rendering of services or
otherwise either alone or in association with others in the operation of any
financial institution engaging or having any interest directly or indirectly as
an employee through the rendering of services or otherwise either alone or in
association with others in the operation of any financial institution in any
City or Town in which Enterprise Bank and Trust Company has a branch. The
restrictions as to non-competition of this paragraph shall be in lieu of any
restrictions set forth elsewhere in this agreement. The non-compete period shall
commence following the two (2) year period referenced in paragraph 26.
27. In the event Duncan elects to serve as a consultant, in accordance
with Paragraph 22 he shall render such services of an advisory or consultative
nature as the Corporation may reasonably require of him from time to time and he
shall assist the Corporation in its relations with its employees and its
customers in order that the Corporation may have the benefit of his experience
and knowledge of its business, his reputation and contacts in the industry, and
his general business experience.
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28. During such time (hereinafter referred to as the "Consultation
Period"), Duncan shall devote approximately half his time to the business and
affairs of the Corporation. Duncan shall receive as compensation during the
consulting period a salary at the rate which shall be equal to fifty percent
(50%) of the Highest Annual Earnings paid to him during the period in which he
served the Corporation in the capacity of Chief Executive Officer. In addition,
Duncan shall be deemed to be an employee of the Corporation and, as such, Duncan
shall participate in the plans and receive the fringe benefits and perquisites
referred to in paragraph 7 through 11 inclusive above subject to the provisions
of said paragraph. Upon the termination of the consultation period, Duncan shall
be restricted in his activities as set out in paragraph 27. In addition, Duncan
shall not solicit any present customers of the Corporation without the consent
of the Corporation, nor will he interfere with any contractual relations nor
disclose confidential information.
29. During the two (2) year period ("post consultation period")
following the termination of the consultation period, Duncan shall receive
annual salary payments equal to fifty percent (50%) of the Highest Annual
Earnings paid to him during any year of the term or extended term of this
Agreement, notwithstanding the salary payment provisions set forth elsewhere in
this agreement. If the provisions of this paragraph become operable there shall
be no obligation on the part of Duncan to serve or to continue to serve as a
member of the Board of Directors of the Corporation.
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30. Duncan shall not, during or after the period during which he is
employed by the Corporation, or is receiving payments from the corporation
except for change in control, nor during any non compete period disclose any
Confidential Information (as defined herein) to any Person for any reason or
purpose whatsoever. The term "Confidential Information" shall mean all
confidential information of or relating to the Corporation and any of their
affiliates, including without limitation, financial information and data,
business plans and information regarding prospects and opportunities (such as,
by way of example only, client and customer lists and acquisition, disposition,
expansion, product development and other strategic plans), but does not include
any information that is or becomes public knowledge by means other than the
Executive's breach or non observance of his obligations described in this
paragraph 30. Notwithstanding the foregoing, Duncan may disclose such
Confidential Information as he may be legally required to do so on the advice of
counsel in connection with any legal or regulatory proceeding; provided,
however, that Duncan shall provide the Corporation with prior written notice of
any such required or potentially required disclosure and shall cooperate with
the Corporation and use his best efforts under such circumstances to obtain
appropriate confidential treatment of any such Confidential Information that may
be so required to be disclosed in connection with any such legal or regulatory
proceeding. Duncan's obligation to refrain from disclosing any Confidential
Information under this paragraph shall continue in effect in accordance with its
terms following any termination of this Agreement. The foregoing
notwithstanding, there is nothing in this Agreement which prohibits Duncan from
communicating directly with all Federal and State regulatory authorities
concerning the activities of the Corporation or the Bank.
31. The parties hereto agree that the services of Duncan are of a
personal, special, unique and extraordinary nature and cannot be replaced by the
Bank and that the violation by Duncan of any of his covenants hereunder will
cause the Bank irreparable harm which could not reasonably or adequately be
compensated in damages in an action at law, and that the covenants of Duncan
hereunder shall therefore be enforceable both at law and in equity, by
injunction and otherwise. The remedies of the Corporation hereunder, and at law
and in equity, shall be cumulative and not alternative, and shall not be
exhausted by any one or more uses thereof.
32. During the term of this Agreement and during any non compete
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period, Duncan will not, unless acting with the express consent of the
Corporation, directly or indirectly solicit, entice away or interfere with the
contractual relationships of the Corporation with any customer, client, officer
or employee of the Corporation.
33. Upon the expiration of this Agreement or other termination in
accordance with the provisions of this Agreement, all obligations of the
Corporation to Duncan hereunder shall forthwith terminate, except for any
obligation to pay any sum or sums of money to Duncan which may have accrued and
are due and payable under this contract and except for any obligation to pay any
sum or sums of money to Duncan which may have accrued and are due and payable
under any corporate benefit plan or plans but the obligations of Duncan shall
not be so terminated except and unless set forth specifically in this Agreement.
34. Termination for Cause. Duncan's employment hereunder may be
terminated for cause without further liability on the part of the Bank by
written notice to Duncan setting forth in reasonable detail the nature of such
cause. The following shall constitute "cause" for such termination: (i) a
willful breach of this contract; or (ii) dishonesty or fraud committed by Duncan
with respect to the Corporation or any subsidiary or affiliate thereof,
including the Bank; or (iii) conviction of a felony by Duncan; or (iv) an order
from a regulatory body directing the Bank to terminate Duncan for cause. For the
purpose of this Section, any action taken by the Bank shall first require a
two-thirds vote of all the members of the Board of Directors. In the event
Duncan shall be terminated for cause under this paragraph of the Agreement, the
Corporation shall be relieved of its obligations to make any payments to Duncan
under this Agreement and Duncan shall be relieved of any obligations not to
compete, but he shall not be relieved of his obligations to disclose
confidential information.
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35. Any notice hereunder shall be effective when mailed by registered
or certified mail, postage and other charges prepaid, in the case of Duncan,
addressed to him at 710 Andover Street, Lowell, Massachusetts 01852, and in the
case of the Bank, addressed to it c/o Vice Chairman at 222 Merrimack Street,
Lowell, Massachusetts 01852 or at such other address as either of the parties
shall have last designated by notice given in like manner to the other of them.
36. No provision of this Agreement shall be modified or amended except
by an instrument in writing duly executed by the parties hereto, and no custom,
act, payment, favor or indulgence shall grant any additional right to Duncan or
be deemed a waiver by the Corporation of any of Duncan's obligations hereunder
or release Duncan therefrom or impose any additional obligations upon the
Corporation, nor shall any assent, express or implied, by the Corporation to,
waiver by the Corporation of, any breach by Duncan of any term or provision
hereof be deemed to be an assent or waiver by the Corporation to or of any
succeeding breach of the same or any other term or provision. Every term and
provision of this Agreement shall be deemed to be of the essence hereof and
every breach thereof material. This Agreement is personal to and shall not be
assignable by Duncan, but its economic benefits shall inure to the benefit of
Duncan, or his respective heirs, successors and legal representatives. The
Corporation shall not merge or consolidate into or with another organization or
recognize or sell substantially all of its assets to another organization, firm
or person unless and until such succeeding or continuing organization, firm or
person agrees to assume and discharge the obligations of the Corporation under
this Agreement.
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37. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement or the application of such term
or provision to persons or circumstances other than those to which it is invalid
or unenforceable shall not be affected thereby, and each term and provision of
this Agreement shall be valid and be enforced to the fullest extent permitted by
law; provided, however, that if the provisions of Paragraphs 26, 30, and 32
shall be held to be unenforceable and if Duncan shall not voluntarily abide by
said provisions in all respects, then this Agreement shall ipso facto terminate.
38. The employment of Duncan shall terminate on the first to occur of
the following:
a. Twenty-four (24) months after notice is given by the corporation to
Duncan that it no longer desires to extend
this Agreement;
b. The death of Duncan;
c. The termination of Duncan by the Bank for cause as defined in this
Agreement;
d. Sixty (60) days after notice is given by Duncan to the Corporation
after the existence of a "Change of Control"
under this Agreement;
e. Sixty (60) days after notice is given by Duncan to the Bank in the
event of the inaction of the Corporation pursuant to a change in duties.
f. The retirement or resignation of Duncan.
g. Six (6) months after Duncan notifies the Corporation that he wishes
to terminate, such termination shall be subject to the terms, conditions and
restrictions set forth in paragraph 42 of this Agreement.
39. This Agreement shall be construed and enforced in all respects in
accordance with the laws of the commonwealth of Massachusetts.
40. The phrase "Bank" shall include Enterprise Bancorp, Inc. and any
parent or subsidiary thereof and any of their successors and assigns. The
phrase "Corporation" shall include Enterprise Bank and Trust Company and any
parent of subsidiary thereof and any of their successors or assigns.
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41. Neither party shall commence any legal proceeding to enforce the
terms and conditions of this Agreement until such party shall give a written
notice to the other party stating the nature of the dispute. The parties shall
attempt in good faith to resolve the dispute by mediation under the Commercial
Mediation Rules of the American Arbitration Association in effect on the date of
this Agreement. If the parties cannot agree on the selection of a mediator
within ten (10) days after the delivery of the dispute notice the mediator will
be selected by the Chief Judge of the Superior Court of the Commonwealth of the
Massachusetts. If the dispute has not been resolved by mediation within sixty
(60) days after delivery of the dispute notice, the dispute may be determined by
legal action in the courts of the Commonwealth of Massachusetts. All costs and
expenses, including the cost of the mediator and including the legal costs of
all parties shall be borne during the mediation process by the Corporation. This
clause shall not prohibit the Corporation from seeking equitable relief to
enforce this Agreement during the sixty (60) day period.
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42. In the event Duncan elects to terminate this Agreement for any
reason such as retirement, or to enrich the quality of his life, or for any
other personal reason, Duncan agrees from the date of such termination and for
two (2) years thereafter, not to engage in any activities prohibited by the
terms of paragraphs 26, 30,and 32 (Non-compete and Non-disclosure of
confidential information and Non-solicitation of customers and employees).
Duncan and the Corporation both agree that in consideration of the covenants of
this paragraph and in consideration of the covenants and agreements of the
parties to this Agreement that, so long as Duncan is not in violation of the
terms and conditions referenced and set out in this paragraph, the Corporation
agrees to continue to make the payments on behalf of Duncan required of the
Corporation under a Split Dollar Agreement referenced previously in this
Agreement, during the two (2) year period. It is understood and agreed by both
Duncan and the Corporation that in the event of a violation of the terms and
conditions of this Agreement that the Corporation may immediately terminate the
payments under the Split Dollar Agreement, and to take any and all other action
permitted it under the laws of the Commonwealth of Massachusetts and in
accordance with the terms and conditions of this Agreement to enforce the two
(2) year non-compete period specifically referenced in this paragraph.
WITNESS the execution hereof as an instrument under seal as of the day and year
first above written.
Enterprise Bank and Trust Company
By /s/ Arnold S. Lerner
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Its Vice Chairman
Enterprise Bancorp, Inc.
By /s/ Arnold S. Lerner
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Its Vice Chairman
/s/ George L. Duncan
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George L. Duncan
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