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EXHIBIT 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 13th day of August, 1997, by and
among C. Xxxxxxx Xxxxxx, an individual (the "Employee"), Westfield Capital
Management Company, Inc., a Massachusetts corporation ("Westfield") and Boston
Private Bancorp, Inc., a Massachusetts corporation ("BPB").
WHEREAS, simultaneously with execution and delivery of this Agreement BPB,
Boston Private Investment Management, Inc. ("BPIM"), Westfield and all of the
stockholders of Westfield have entered into an Agreement and Plan of Merger (the
"Acquisition Agreement") dated as of the date hereof;
WHEREAS, BPB has adopted the Boston Private Bancorp, Inc. 1997 Long-Term
Stock Incentive Plan (the "Stock Plan"), providing, among other things, for the
grant to employees of BPB or certain of its affiliates (i) shares (the
"Restricted Stock") of BPB common stock, par value $1.00 per share (the "Common
Stock"), and (ii) options (the "Options") to purchase from BPB shares of Common
Stock;
WHEREAS, Westfield, BPIM and BPB desire to have the benefit of the
Employee's services after the closing of the transactions contemplated by
the Acquisition Agreement (the "Closing"); and
WHEREAS, the parties desire to set forth the terms and conditions under
which the Employee shall be employed by Westfield and upon which Westfield shall
compensate the Employee following the Closing.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises and agreements hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Westfield, BPB and the Employee agree as follows:
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ARTICLE I
EMPLOYMENT
1.1 OFFICE; EFFECTIVENESS. Westfield hereby employs, engages and hires
the Employee, and the Employee agrees to serve Westfield as Chairman, Chief
Executive Officer, Chief Investment Officer and Portfolio Manager. This
Agreement and the commencement of the Employee's employment hereunder shall
become effective at the time of the Closing.
1.2 RESPONSIBILITIES. The Employee shall serve as Chairman, Chief
Executive Officer, Chief Investment Officer and Portfolio Manager of Westfield,
subject to the direction and supervision of the Board of Directors of Westfield
(the "Westfield Board"). Employee will report directly to the BPB CEO (as
defined below).
1.3 FULL-TIME COMMITMENT. The Employee hereby accepts such employment
hereunder, and agrees that he will devote all of his working time, attention,
knowledge, and skills, faithfully, diligently, and to the best of his ability in
furtherance of the business of Westfield and as otherwise reasonably necessary
to such employment. During the term of his employment hereunder, the Employee
will not, without the prior written approval of the Chief Executive Officer of
BPB (the "BPB CEO"), accept employment or compensation from or perform services
of any nature for any business enterprise other than Westfield or one of its
Affiliates. As used herein the term "Affiliate" means any corporation,
partnership or other entity that directly or indirectly through one or more
intermediaries, controls, is controlled by or is under common control with the
person specified.
ARTICLE II
TERM OF EMPLOYMENT
2.1 TERM. The employment of the Employee pursuant to the terms hereof
shall commence as of the
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Closing and remain in effect for an initial term expiring on the 4th anniversary
of the Closing (the "Initial Term") unless sooner terminated pursuant to the
provisions hereof. The term of employment hereunder may be extended upon the
mutual agreement of the parties hereto. Upon any extension of the term hereof,
employment of the Employee hereunder shall continue for the extended term unless
terminated pursuant to the provisions hereof. Such employment term in effect at
any given time (without giving effect to any termination pursuant to the
provisions hereof) is referred to herein as the "Term".
ARTICLE III
COMPENSATION OF EMPLOYEE
3.1 SALARY AND BONUS. As full compensation for his services hereunder,
Westfield will pay to the Employee the following:
(i) an annual base salary equal to $431,037.16; and
(ii) commencing with fiscal year ending December 31, 1998, an
annual performance fee share bonus payable not later than 90 days after the
fiscal year end representing the Employees' allocation of the annual
limited partnership bonus pool of Westfield for the fiscal year just ended.
The limited partnership bonus pool shall be determined by the Chief
Executive Officer of Westfield (the "Westfield CEO") and approved by the
Westfield Board in accordance with the procedures set forth in the
Supplemental Executive Compensation Memo. The Employee's allocation of the
limited partnership bonus pool for any year shall be a percentage
determined in respect of such year by the Westfield CEO and approved by the
Westfield Board.
3.2 RESERVED.
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3.3 FUTURE RESTRICTED STOCK AND OPTIONS. The Employee shall be
entitled to participate in the Stock Plan as contemplated by the Supplemental
Executive Compensation Memo subject to and on a basis consistent with the terms,
conditions and overall administration of such Stock Plan.
3.4 BENEFITS: OTHER COMPENSATION. The Employee shall be entitled to
participate in the Westfield Profit Sharing Plan, as in effect on the date
hereof, and to such health, life, and disability insurance benefits, paid
vacation and other fringe benefits available to employees of Westfield from time
to time as contemplated by the Supplemental Executive Compensation Memo.
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3.5 EXPENSES. During the term of this Agreement, the Employee shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Employee in performing services hereunder, provided such expenses are
properly accounted for in accordance with BPB policy.
ARTICLE IV
TERMINATION
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4.1 DISCHARGE FOR CAUSE. The Employee may be terminated from his
employment by the BPB CEO for Cause upon written notice. Discharge for Cause
shall mean the termination of such Employee's employment with Westfield by
reason of any one or more of the following events: (i) the charge or indictment
of Employee of any crime (whether or not involving Westfield) which constitutes
a felony in the jurisdiction involved, excluding driving while under the
influence of alcohol or drugs, (ii) such Employee's embezzlement or intentional
misappropriation of any property of Westfield, any Affiliate of Westfield or any
clients of any of them or the commission by such Employee of any other crime of
moral turpitude, (iii) the commission by such Employee of an act that would
cause such Employee, Westfield or any Affiliate of Westfield to be disqualified
in any manner under Section 9 of the Investment Company Act of 1940, as amended,
if the Securities and Exchange Commission (the "Commission") were not to grant
an exemptive order under Section 9(c) thereof (irrespective of whether such
order is granted), that would constitute grounds for the Commission to deny,
revoke or suspend registration of Westfield or any Affiliate thereof as an
investment advisor, broker/dealer or transfer agent with the Commission or that
would constitute grounds for any court, federal or state regulatory body or
self-regulatory organization to deny, revoke, suspend or limit the authority of
Westfield or any Affiliate thereof or the Employee to engage in any activity in
or incidental to the securities, commodities, banking or trust business, (iv)
continued insubordination or dereliction of duties after written notice
specifying in reasonable detail the nature of the insubordination or dereliction
of duties and an opportunity to cure of not less than 30 days have been given to
such Employee or (v) continued alcohol or other substance abuse or addiction
that renders such Employee incapable of satisfactorily performing his duties
after written notice and an opportunity to cure such condition have been given
to such Employee.
4.2 RESIGNATION OR RETIREMENT. The Employee's employment hereunder
shall automatically terminate upon his Retirement during the Term. Retirement
shall mean
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the termination by the Employee of his full-time employment hereunder after
reaching the age of 70, or any Resignation of the Employee designated as
Retirement by the BPB CEO. Resignation shall mean the termination of the
Employee's full-time employment with Westfield other than by reason of a
Disabling Event (as defined below), termination for Good Reason, Retirement,
termination Without Cause (as defined below) or Discharge for Cause.
4.3 DISABLING EVENT. In the event of a Disabling Event with respect to
the Employee, the BPB CEO may terminate the Employee's employment
hereunder. Disabling Event shall mean the Employee's death or the Employee's
physical or mental disability, as certified by a physician satisfactory to the
Employee or his legal representative and to the BPB CEO, which renders such
Employee incapable of performing his material duties and services as an employee
of Westfield and which continues for more than six consecutive months during any
one-year period or more than twelve months during any two-year period.
4.4 GOOD REASON. The Employee may terminate his employment hereunder
for Good Reason (as defined below) during the 60 day period after the occurrence
of the circumstances constituting Good Reason if the Employee has notified the
BPB CEO in writing of the specific circumstances constituting Good Reason and,
in the case of a Diminished Responsibility, a Westfield Breach or a Governance
Event, during the 30 days following such notification Westfield and BPB have
failed to eliminate such Employee's Good Reason. As used herein, the following
events constitute "Good Reason":
(i) a material, adverse diminution, at a time when the BPB CEO
would not be entitled to terminate such Employee's employment hereunder for
Cause or as a result of a Disabling Event, of the Employee's title or
responsibilities from that which is in effect as of the effectiveness of
this Agreement, where the BPB CEO or BPB has requested such decision or
diminution (a "Diminished Responsibility");
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(ii) any change in the business of Westfield after the
effectiveness of this Agreement or any request by Westfield relating to the
employment activities of Employee, as to which Employee gives written
notice of objection ("Notice of Objection") to the BPB CEO within 30 days
of such change or request containing sufficient detail to identify such
change or request and the reason for the objection, provided that a
committee consisting of one person selected by the Westfield CEO from the
Westfield Board, one person selected by the BPB CEO from the Westfield
Board and the BPB CEO (a "Review Committee") finds within 15 days of the
BPB CEO's receipt of such Notice of Objection that such objection is
sufficient to entitle Employee to terminate his or her employment for Good
Reason (an "Operational Dispute") and fails to find on or before the 30th
day after the BPB CEO's receipt of such Notice of Objection that the change
or request constituting such Operational Dispute has been eliminated.
Decisions of the Review Committee shall be made by a majority of its
members (acting by written consent or at a meeting); provided, however,
that if a Review Committee shall have at any time during the 12 month
period prior to receipt by the BPB CEO of such Notice of Objection made a
determination that any employee of Westfield was entitled to terminate his
or her employment for Good Reason relating to an Operational Dispute
pursuant to this Section 4.4(ii), the finding of an Operational Dispute in
response to such Notice of Objection by Employee shall require the
unanimous consent of the members of the Review Committee. If all members of
the Review Committee are members of the Westfield Board, the Review
Committee shall operate as a Committee of the Westfield Board;
(iii) a material breach by Westfield or BPB of any of their
respective
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obligations to the Employee under this Agreement (a "Westfield Breach"); or
(iv) (A) until the earlier to occur of the fifth anniversary
hereof or the date that the Employee ceases to be an employee of Westfield,
BPB shall fail to nominate the Employee for election as a member of the
Board of Directors of BPB, (B) until the earlier to occur of the third
anniversary hereof or the date that Xx. Xxxxxx Xxxxxxxxxxx ceases to be an
employee of Westfield other than as a result of a termination Without
Cause, BPB shall fail to nominate Xx. Xxxxxx Xxxxxxxxxxx for election as a
member of the Board of Directors of BPB, (C) commencing on the date that
Xx. Xxxxxx Xxxxxxxxxxx ceases to be a member of the BPB Board of Directors
and ending on a date that is the earlier to occur of the fourth anniversary
of such date that Xx. Xxxxxx Xxxxxxxxxxx ceases to be a member of the BPB
Board of Directors and the date that Mr. Xxxxxxx Xxxxxxx ceases to be an
employee of Westfield other than as a result of a termination Without
Cause, BPB shall fail to nominate Mr. Xxxxxxx Xxxxxxx for election as a
member of the Board of Directors of BPB, (D) until the fifth anniversary
hereof, BPB shall cause a majority of the Westfield Board to be composed of
persons who are not at the time of election or appointment professional
employees of Westfield or (E) until the sixth anniversary hereof, BPB or
the Westfield Board shall cause the position of the Westfield CEO to be
filled by any person who is not a professional investment management
employee of Westfield (each of the foregoing events being referred to as a
"Governance Event"), it being understood and agreed that, notwithstanding
that such action may result in a Governance Event, the power to elect
members of the Westfield Board and the power to select and to terminate the
Westfield CEO shall be vested
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exclusively in the controlling stockholder of Westfield.
ARTICLE V
EFFECT OF TERMINATION
5.1 CAUSE, RESIGNATION, RETIREMENT OR DISABLING EVENT. (a) If the
Employee's employment is terminated (i) by the BPB CEO by a Discharge for Cause,
(ii) by the Employee by his Resignation or (iii) by reason of Retirement or a
Disabling Event, the Employee's salary, bonus, and other benefits specified in
Sections 3.1, 3.4 and 3.5 shall cease at the time of such termination except as
provided in Section 5.1(b) below.
(b) If the Employee's employment is terminated by reason of Retirement
or a Disabling Event, the Employee shall be eligible for a bonus provided for in
Section 3.1 hereof for the year of termination. The bonus amount shall be
prorated for the period of employment during the applicable bonus period.
5.2 WITHOUT CAUSE; GOOD REASON. (a) If the Employee's employment is
terminated by the BPB CEO for any reason other than those set forth in Section
5.1(a)(i) and (iii) ("Without Cause"), (A) the Employee's salary provided for in
Section 3.1 hereof and benefits provided for in Section 3.4 hereof, other than
profit sharing plan participation, shall continue to be paid or provided to the
Employee for the remainder of the Term (the "Severance Period"), provided,
however, that if the Employee obtains employment of any kind during the
Severance Period, (1) the amount payable to the Employee under this Section
5.2(a)(A) shall be reduced by 50% of the total W-2 income received or deferred
by the Employee with respect to the Severance Period from such other employment,
provided, further, that the amount payable to Employee under this Section
5.2(a)(A) during the Severance Period shall not be reduced to less than 50% of
the Employee's salary provided for in Section 3.1 hereof multiplied by the
number of full and fractional years in
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the Severance Period and (2) the Employee shall no longer be entitled to receive
any benefits provided for in Section 3.4 hereof to the extent that substantially
similar benefits are available to the Employee from such other employment, (B)
the Employee shall be eligible for a bonus provided for in Section 3.1 hereof
for the year of termination, prorated for the period of employment during the
applicable bonus period and (C) the Employee shall be released from the
restrictions of Section 6.5(a)(i). The provisions of this Section 5.2(a) shall
constitute the Employee's sole remedy in the event of a termination Without
Cause.
(b) (i) If the Employee's employment is terminated by the
Employee for Good Reason occasioned by Diminished Responsibility or
Westfield Breach, (A) the Employee's salary provided for in Section 3.1
hereof and benefits provided for in Section 3.4 hereof, other than profit
sharing plan participation, shall continue to be paid or provided to the
Employee for the shorter of (x) the remainder of the Term and (y) the
remainder of the Term less two years (the "Good Reason Severance Period"),
provided, however, that if the Employee obtains employment of any kind
during the Good Reason Severance Period, (1) the amount payable to the
Employee under this Section 5.2 shall be reduced by 50% of the total W-2
income received or deferred by the Employee with respect to the Good Reason
Severance Period from such other employment, provided, further, that the
amount payable to the Employee under this Section 5.2(b)(i)(A) during the
Good Reason Severance Period shall not be reduced to less than 50% of the
Employee's salary provided for in Section 3.1 hereof multiplied by the
number of full and fractional years in the Good Reason Severance Period and
(2) the Employee shall no longer be entitled to receive any benefits
provided for in Section 3.4 hereof to the extent that substantially similar
benefits are available to
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the Employee from such other employment, and (B) the Employee shall be
released from the restrictions of Section 6.5(a)(i).
(ii) If the Employee's employment is terminated by the Employee
for Good Reason occasioned by an Operational Dispute or a Governance
Event, (A) the Employee's salary, bonus, and other benefits specified
in Sections 3.1, 3.4 and 3.5 shall cease at the time of such
termination and (B) the Employee shall be released from the
restrictions of Section 6.5(a)(i).
(iii) The provisions of this Section 5.2(b) shall constitute the
Employee's sole remedy in the event of a Good Reason termination.
(c) As a condition to the receipt of any salary or benefits
required to be paid or provided to the Employee pursuant to this Section 5.2,
Westfield or BPB may require the Employee to provide appropriate documentation
verifying the Employee's employment status and related compensation and
benefits, including annual federal income tax returns.
ARTICLE VI
CONFIDENTIAL INFORMATION
6.1 ACKNOWLEDGEMENT. The Employee agrees and acknowledges that in the
course of rendering services to Westfield and its clients and customers he has
had and shall have access to and has become and shall become acquainted with
confidential information about the professional, business and financial affairs
of Westfield and its Affiliates and their respective clients and customers and
potential clients and customers and may have contributed to or may in the future
contribute to such information. The Employee acknowledges that Westfield and its
Affiliates are engaged in a highly competitive
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business and that the success of Westfield and its Affiliates in the marketplace
depends upon its good will and reputation. The Employee agrees and acknowledges
that reasonable limits on his ability to engage in activities competitive with
Westfield and its Affiliates are warranted to protect Westfield's substantial
investment in developing and maintaining its status in the marketplace,
reputation and goodwill and to protect the substantial premium paid by BPB for
the equity interest in Westfield. The Employee recognizes that in order to guard
the legitimate interests of Westfield and its Affiliates it is necessary to
protect all such confidential information, goodwill and reputation and
explicitly acknowledges the reasonableness of the provisions of Sections 6.2
through 6.6 in light thereof.
6.2 PROPRIETARY INFORMATION. In the course of his service to West
field, the Employee has had and shall have access to confidential know-how,
business documents or information, marketing data, client lists, contact lists
and trade secrets regarding Westfield and its Affiliates which are confidential.
Such information shall hereinafter be called "Proprietary Information" and shall
include any and all items enumerated in the preceding sentence to which the
Employee has had or may have access, whether previously existing, now existing
or arising hereafter, whether or not conceived or developed by others or by the
Employee alone or with others during the period of his service to Westfield, and
whether or not conceived or developed during regular working hours; PROVIDED,
HOWEVER, that "Proprietary Information" shall not include (i) any information
which is in the public domain, provided such information is not in the public
domain as a consequence of disclosure by the Employee in violation of this
Agreement and (ii) any information that becomes available to the Employee after
he ceases to be an employee of Westfield on a nonconfidential basis from a
source other than Westfield.
6.3 FIDUCIARY OBLIGATIONS. The Employee agrees and acknowledges that
Proprietary Information is of critical importance to Westfield and BPB and a
violation of this Article VI would seriously and irreparably impair
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and damage the business of Westfield and its Affiliates. The Employee therefore
agrees to, at all times that the Employee is employed by Westfield, keep all
Proprietary Information in a fiduciary capacity for the sole benefit of
Westfield and its Affiliates.
6.4 NON-DISCLOSURE. The Employee shall not at any time whether during
the Term or thereafter disclose, directly or indirectly (except as required by
law and after consultation with the BPB CEO), any Proprietary Information to any
person other than (a) BPB and its Affiliates, (b) authorized employees thereof
with a legitimate need to know related to the business of Westfield or its
Affiliates at the time of such disclosure or (c) at the direction of the BPB
CEO, and in all such cases only in the course of the Employee's service to
Westfield. Immediately upon any termination of his employment, the Employee
shall deliver to Westfield or BPB all notes, letters, documents, and records
which may contain Proprietary Information which are then in his possession or
control and shall not retain or use any copies or summaries thereof.
6.5 COMPETITIVE ACTIVITIES. (a) Except as otherwise expressly
consented to, approved or otherwise permitted by the BPB CEO in writing, and to
the fullest extent permitted under applicable law, the Employee shall not,
directly or indirectly:
(i) accept any employment or engage in any business, trade or
other enterprise substantially similar to, or directly or indirectly in
competition with, the investment advisory or trust business of Westfield or
any of its Affiliates, or extend credit to or assist in arranging credit to
establish or conduct any such business, or permit his name, reputation or
affiliations to be used in connection with any such business;
(ii) request, induce or attempt to influence any then current or
prospective clients or customers of Westfield or its Affiliates
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to limit, curtail or cancel its business with Westfield or any Affiliate of
Westfield or solicit such party for such business; or
(iii) request, induce or attempt to influence any current or
future officer, director, employee, consultant, agent or representative of
Westfield or any Affiliate of Westfield or any prospective officer,
director or employee of Westfield or any Affiliate of Westfield to (A)
terminate his employment or business relationship with Westfield or any
Affiliate of Westfield or (B) commit any act that, if committed by such
Employee, would constitute a breach of any provision hereof.
Notwithstanding any provision of this Section 6.5(a) to the contrary, nothing
herein shall prohibit an Employee from providing investment management services
with respect to his own personal assets or the personal assets of members of his
immediate family.
As applied to Employee after termination of employment, (i)
"then current client or customer" means any client or customer as of the date of
termination of employment, (ii) "prospective client or customer" means any
person as to whom an in-person presentation has been made within 12 months prior
to or 4 months after such termination, provided that any restriction as to such
person under Section 6.5(a)(ii) shall terminate as of the first anniversary of
such termination of employment unless as of such anniversary the person has
become an actual client of Westfield or any of its Affiliates and (iii)
"prospective officer, director or employee" means any person as to whom an
in-person interview has been held within 12 months prior to or 4 months after
such termination, provided that any restriction as to such person under Section
6.5(a)(iii) shall terminate as of the first anniversary of such termination of
employment unless as of such anniversary the person has become an actual
officer, director or employee of Westfield or any of its Affiliates.
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(b) Except as provided in Section 5.2, the provisions of Section
6.5(a)(i) hereof shall continue in effect through the end of the Term.
(c) The provisions of Section 6.5(a)(ii) and (iii) shall continue in
effect until the latter of the fifth anniversary of termination of employment or
the end of the Term.
(d) The provisions of clauses (i), (ii) and (iii) of Section 6.5(a),
Section 6.5(b) and Section 6.5(c) are separate and distinct commitments
independent of each of the other such clauses.
6.6 EQUITABLE REMEDIES. Notwithstanding any other provision of this
Agreement to the contrary, the Employee acknowledges and agrees that the
services to be rendered by Employee hereunder are of irreplaceable value and
Westfield and its Affiliates will suffer irreparable injury and damage and will
have no adequate remedy at law and could not be reasonably or adequately
compensated in damages for any breach or threatened or attempted breach by him
of the provisions of this Article VI. Accordingly, the Employee expressly agrees
that Westfield and BPB shall be entitled, in addition to the other rights or
remedies that may be available to it under this Agreement or at law, to a
temporary or permanent order enjoining or restraining the Employee from engaging
in any conduct in violation or threatened violation of the provisions of this
Article VI. The Employee hereby consents to the issuance of any such injunction.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 NOTICES. All notices hereunder, to be effective, shall be in
vriting and shall be deemed delivered when delivered by hand, upon confirmation
of receipt by telecopy or when sent by first-class, certified mail, postage, and
fees prepaid, as follows:
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(a) For notices and communications to Westfield:
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: C. Xxxxxxx Xxxxxx
(b) For notices and communications to BPB:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
(c) For notices and communications to the Employee:
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: C. Xxxxxxx Xxxxxx
By notice complying with the foregoing provisions of this Section, each party
shall have the right to change the address for future notices and communications
to such party.
7.2 MODIFICATION. As of the Closing this Agreement (and the other
agreements and documents referred to herein) shall constitute the entire
agreement between the parties hereto with regard to the subject matter hereof,
superseding all prior understandings and agreements, whether written or oral.
Any amendment or modification shall require the written agreement of all parties
hereto.
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7.3 ASSIGNMENT. This Agreement and all rights hereunder are personal
to the Employee and may not, unless otherwise specifically permitted herein, be
assigned by him. Notwithstanding anything else in this Agreement to the
contrary, Westfield and BPB may not assign their rights and obligation under
this Agreement, except that the rights of Westfield hereunder may be assigned
to, and shall inure to the benefit of, any person, firm or corporation
succeeding to all or substantially all of the business or assets of Westfield
whether by purchase, merger or consolidation.
7.4 CAPTIONS. Captions herein have been inserted solely for
convenience of reference and in no way define, limit or describe the scope or
substance of any provision of this Agreement.
7.5 SEVERABILITY. The provisions of this Agreement are severable, and
the invalidity of any provision shall not affect the validity of any other
provision. In the event that any provision of this Agreement or the application
thereof is held to be unenforceable because of the duration or scope thereof,
the parties hereto agree that the panel of arbitrators or court making such
determination shall have the power to reduce the duration and scope of such
provision to the extent necessary to make it enforceable, and that the Agreement
in its reduced form shall be valid and enforceable to the full extent permitted
by law.
7.6 ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts, in accordance with the rules of the American
Arbitration Association then in effect. Arbitration shall be conducted before a
panel of three arbitrators, one designated by the Employee, one by BPB and one
by mutual agreement of the Employee and BPB. In the event the Employee and BPB
are unable to agree on a third arbitrator, such arbitrator shall be designated
by the two arbitrators previously designated. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Westfield or XXX
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xxxxx xx entitled to seek a restraining order or injunction in any court of
competent jurisdiction to prevent any violation (or any continuation thereof) of
the provisions of Article VI of this Agreement and the Employee hereby consents
that such restraining order or injunction may be granted without the necessity
of Westfield or BPB posting any bond. Except to the extent determined otherwise
by the arbitrators, the expense of the arbitrators in such arbitration shall be
borne equally by the Employee, on the one hand, and Westfield, on the other
hand.
7.7 GOVERNING LAW. This Agreement shall be construed under and
governed by the laws of the Commonwealth of Massachusetts (without giving
effect to the principles of conflicts of law thereunder).
7.8 SURVIVAL. The provisions of Articles VI and VII hereof shall
survive the expiration of the Term and any other termination of the Employee's
employment. This Section 7.8 shall not be deemed to negate the Employee's rights
upon termination of employment under Article V.
7.9 OTHER INTERESTS. Neither Employee's existing position as of the
date hereof as a director of, nor Employee's existing interest as of the date
hereof as a stockholder in X.X. Xxxxxx & Co. shall in and of (themselves)
constitute a violation of any provision of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as a binding contract as of the day and year first above written.
/s/ C. Xxxxxxx Xxxxxx
-------------------------------------
Name: C. Xxxxxxx Xxxxxx
WESTFIELD CAPITAL MANAGEMENT
COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: President
BOSTON PRIVATE BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President and CEO
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