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 Richard W. Main residing at
1 Overlook Drive in Chelmsford, Massachusetts 01824 (hereinafter referred to as
"Main") .
W I T N E S S E T H
WHEREAS, Main is a highly regarded expert in the field of bank
management;
WHEREAS, the Corporation acknowledges that Main's abilities and
services are unique and essential to the future prospects of the Corporation;
WHEREAS, in light of the foregoing, the Corporation and Main have
negotiated the terms and conditions of the employment of Main as the President
of the Bank, and;
WHEREAS, the Corporation and Main have, in addition to duties, salary
and benefits, attempted to define the rights and obligations of Main and the
Corporation with respect to change in control and non competition.
WHEREAS, in light of the foregoing, the Bank desires to employ Main as
its President and Main desires to accept such employment, and;
WHEREAS, Main is presently employed by the Bank pursuant to an
employment Agreement dated February, 1996 ("Old Employment Agreement"); and
WHEREAS, the Corporation and Main acknowledge that in his capacity as
President of the Bank that Main is extensively involved in servicing the
customers of the Bank many of whom have a long standing relationship with the
Bank and Main, and;
WHEREAS, the Corporation and Main each acknowledge that as President of
the Bank that Main has access to confidential information which is not known
otherwise to competitors of the Bank; and
WHEREAS, Main agrees that the Corporation has a legitimate interest in
protecting its customer relations and its confidential information; and
WHEREAS, the Corporation, the Bank, and Main 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. Main, 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 Main as the President of the Bank and Main
hereby agrees to be employed by the Bank as its President 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, 2003. 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 two (2) years. The minimum term of this
agreement shall at all times be two (2) years unless otherwise set forth in this
Agreement. Upon notice to Main given on or before any anniversary date, the
Corporation may terminate this agreement in which case this agreement will
terminate two (2) 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 Main, 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. Main agrees to serve during the term or terms of this Agreement as
the President 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 Main 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 Main
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 Main 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 Main, and approval
thereof shall not unreasonably be withheld.
7. For all of Main's services and covenants under this Agreement, the
Bank shall pay Main an initial annual salary at the rate of One Hundred Sixty
One Thousand Six Hundred Dollars ($161,600.00) 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. Main shall be entitled to use of a corporate vehicle and to
reimbursement for expenses reasonably incurred in connection with the
performance of Main'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, Main 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 Main 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," Main 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 Main terminates this agreement, the Corporation shall pay Main
within sixty (60) days following the receipt by the Corporation of the Notice of
Termination in a lump sum payment, an amount equal to two (2) times Main's
previous Highest Annual Earnings. If Main 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 Main 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, Main'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 Main for the
earnings period, and (ii) the annual incentive compensation or bonus
compensation paid by the Bank to Main which are not included in clause (i) of
this paragraph, (or which would have been paid but for an election by Main 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 Main while this Agreement
is in effect, or if there is a change in control, the Bank agrees that Donna
Main, the wife of Main, 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 Main 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 President and may elect to be relieved of the obligation to
pay Main his annual earnings and, upon notice to Main of such election, to pay
Main 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 Main 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 Main is replaced as President 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 Main 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. Main 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, Main 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 Main 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 Main 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 Main for a period of two (2)
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 Main 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, Main
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. Main 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
Main. To assist the Board in making any such decision, Main 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
Main as a result of a "change in control," Main shall be under no obligation to
seek other employment or to mitigate damages and there shall be no offset
against any amount due Main under this Agreement for any reason, including,
without limitation, in any remuneration or benefits attributable to any
subsequent employment that Main may obtain.
21. Main, 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, Main shall cease to be elected by the Board of
Directors of the Bank to serve the Bank as its President, or if the Board of
Directors makes a material change in the duties or functions or responsibilities
of Main (called "change in duties") other than for disability, then, beginning
on the date on which the change in duties occurred, Main 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, Main 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 Main elects to terminate this Agreement in accordance
with paragraph 22, Main shall receive payments of his Highest Annual Earnings
from the Corporation for two (2) 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,
Main shall be entitled to receive all other benefits referred to in this
Agreement. Main 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. Main 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. Main 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, Main 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
Main 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, Main 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, Main 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 Main 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"), Main shall devote approximately half his time to the business and
affairs of the Corporation. Main 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 President. In addition, Main shall be
deemed to be an employee of the Corporation and, as such, Main 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, Main shall be
restricted in his activities as set out in paragraph 27. In addition, Main 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, Main 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 Main to serve or to continue to serve as a member of
the Board of Directors of the Corporation.
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30. Main 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, Main 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 Main
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. Main'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 Main 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 Main are of a
personal, special, unique and extraordinary nature and cannot be replaced by the
Bank and that the violation by Main 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 Main
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
period, Main 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.
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33. Upon the expiration of this Agreement or other termination in
accordance with the provisions of this Agreement, all obligations of the
Corporation to Main hereunder shall forthwith terminate, except for any
obligation to pay any sum or sums of money to Main 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 Main which may have accrued and are due and payable
under any corporate benefit plan or plans but the obligations of Main shall not
be so terminated except and unless set forth specifically in this Agreement.
34. Termination for Cause. Main's employment hereunder may be
terminated for cause without further liability on the part of the Bank by
written notice to Main 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 Main
with respect to the Corporation or any subsidiary or affiliate thereof,
including the Bank; or (iii) conviction of a felony by Main; or (iv) an order
from a regulatory body directing the Bank to terminate Main 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 Main
shall be terminated for cause under this paragraph of the Agreement, the
Corporation shall be relieved of its obligations to make any payments to Main
under this Agreement and Main shall be relieved of any obligations not to
compete, but he shall not be relieved of his obligations to disclose
confidential information.
35. Any notice hereunder shall be effective when mailed by registered
or certified mail, postage and other charges prepaid, in the case of Main,
addressed to him at 1 Overlook Drive; Chelmsford, Massachusetts 01824, 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.
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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 Main or be
deemed a waiver by the Corporation of any of Main's obligations hereunder or
release Main 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 Main 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
Main, but its economic benefits shall inure to the benefit of Main, 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.
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 Main shall not voluntarily abide by
said provisions in all respects, then this Agreement shall ipso facto terminate.
38. The employment of Main shall terminate on the first to occur of
the following:
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a. Twenty-four (24) months after notice is given by the corporation to
Main that it no longer desires to extend this Agreement;
b. The death of Main;
c. The termination of Main by the Bank for cause as defined in this
Agreement;
d. Sixty (60) days after notice is given by Main to the Corporation
after the existence of a "Change of Control" under this Agreement;
e. Sixty (60) days after notice is given by Main to the Bank in the
event of the inaction of the Corporation pursuant to a change in duties.
f. The retirement or resignation of Main.
g. Six (6) months after Main 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.
42. In the event Main 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, Main 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). Main 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 Main 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 Main 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 Main 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.
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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
------------------------------------
Its Vice Chairman
Enterprise Bancorp, Inc.
By /s/ Arnold S. Lerner
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Its Vice Chairman
/s/ Richard W. Main
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Richard W. Main
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