EXHIBIT NO. 10.1
Third Amended and Restated Employment Agreement between the Company,
Rockland and Xxxxxxx X. Xxxxxxxxx, dated June 25, 1997 ("Xxxxxxxxx Employment
Agreement").
(Management contract under Item 601(10) (iii) (A)).
THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AGREEMENT, dated and effective as of December 12, 1991 by and between
Rockland Trust Company, a Massachusetts trust company (the "Company"), Xxxxxxx
X. Xxxxxxxxx, of Duxbury, Massachusetts, (the "Executive"), and Independent Bank
Corp., a Massachusetts corporation ("IBC"), as amended by a certain Amendment to
Employment Agreement dated as of February 3, 1993 and as amended and restated as
of June 21, 1994, and as further amended by a certain Amendment No. 1 to Amended
and Restated Employment Agreement dated as of January 12, 1995, and as further
amended by Amendment No. 2 to Amended and Restated Employment Agreement dated as
of October 17, 1995 and as further amended and restated the Second Amended and
Restated Employment Agreement dated February 21, 1996 (the "Employment
Agreement") and as further amended and restated as of this 25 day of June, 1997.
W I T N E S S E T H:
WHEREAS, the Executive, the Company and IBC are desirous of amending
certain provisions of the Employment Agreement to provide an additional benefit
to the Executive relating to the Split Dollar Agreement; and
WHEREAS, the Executive, the Company and IBC are desirous of amending
the Employment Agreement as set forth above and restating for the third time the
amended Employment Agreement as herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Employment; Position and Duties; Exclusive Services.
(a) Employment. The Company and IBC agree to employ the Executive,
and the Executive agrees to be employed by the Company and IBC for the Term
provided in Section 2 below and upon the other terms and conditions hereinafter
provided.
(b) Position and Duties/Company. So long as the Executive is
employed by the Company, the Executive (i) agrees to serve as the President and
Chief Executive Officer of the Company and to perform such reasonable duties
consistent with such position as may be delineated in the By-Laws of the Company
and as may be assigned to him from time to time by the Board of Directors of the
Company (the "Board"), (ii) shall report, as President and Chief Executive
Officer of the Company, only to the
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Board and its duly appointed committees (iii) shall serve as a member of the
Board and of any executive or other committee thereof, if applicable, (iv) shall
be given such authority as is appropriate to carry out the duties described
above, it being understood that, in his capacities as President and Chief
Executive Officer of the Company, his duties shall be consistent in scope,
prestige and authority with the customary duties of a President and Chief
Executive Officer of a comparable corporation, and (v) agrees to serve, if
elected, at no additional compensation (if the other officers or directors who
are officers of the Company also serve at no additional compensation) in the
position of officer or director of any subsidiary or affiliate of the Company.
No other employee will hold the title of "Chief Operating Officer" without the
Executive's express permission.
(c) Position and Duties/IBC. So long as the Executive is employed by
the Company, the Executive agrees to serve as the President of IBC and to
perform such reasonable duties consistent with such position as may be
delineated in the By-Laws of IBC and as may be assigned to him from time to time
by the Board of Directors of IBC (the "IBC Board"). In the event at any time
during the term Xxxx X. Xxxxxx, Xx. shall cease to serve as Chief Executive
Officer of IBC, the Executive shall succeed to such position and shall serve in
such position during the remainder of the Term at no additional compensation. It
is acknowledged by the parties hereto that as President of IBC (and as Chief
Executive Officer, if such becomes the case), the Executive shall report only to
the IBC Board and its duly appointed committees and not to any other officer
regardless of title.
(d) Exclusive Services. So long as the Executive is employed by the
Company, and except for illness or incapacity, the Executive shall devote all of
his business time, attention, skill and efforts exclusively to the business and
affairs of the Company, IBC and its affiliates, shall not be engaged in any
other business activity, and shall perform and discharge well and faithfully the
duties which may be assigned to him from time to time by the Board and the IBC
Board; provided, however, that nothing in this Agreement shall preclude the
Executive from devoting reasonable time during reasonable periods required for
any or all of the following:
(i) serving, in accordance with the Company's policies and with
the prior approval of the Board, as a director or member of a committee of any
other company or organization involving no actual or potential conflict of
interest with the Company, IBC or any of their subsidiaries or affiliates;
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(ii) investing his personal assets in businesses in which his
participation is solely that of a passive investor in such form or manner as
will not require any services on the part of the Executive in the operation or
affairs of such businesses;
(iii) managing the commercial farming activities of the
Executive's Xxxxxxx, Vermont farm property, provided the scope of such
activities are consistent with current operations;
provided, however, that such activities in the aggregate shall not materially
and adversely affect or interfere with the performance of the Executive's duties
and obligations to the Company or IBC hereunder.
2. Term of Employment.
The Company hereby agrees to employ the Executive, and the Executive
hereby agrees to accept such employment in the capacity set forth herein, for a
period commencing December 16, 1991 ("Commencement Date") and ending thirty-six
(36) months from the date of termination or resignation (as defined in Section
6(a)(v) hereof). The term of this Agreement, as hereinabove defined shall
hereinafter be referred to as the "Term."
3. Cash Compensation.
Except as otherwise specifically provided herein, as compensation to
the Executive for all services to be rendered by him in any capacity hereunder,
the Company shall pay during the Term an annual base salary at the current rate
of Three Hundred Twenty Thousand Six Hundred and Sixty and no/100 Dollars
($320,660) per annum Salary"), payable no less frequently than bi-weekly. The
Board may from time to time at its discretion review the compensation provisions
of this Agreement and shall have the authority to pay an increased base salary,
and/or bonus and/or other additional compensation to the Executive, but in no
event shall any such compensation adjustment reduce the base salary below the
rate hereinabove specified.
4. INTENTIONALLY OMITTED
5. Benefits.
Except as otherwise specifically provided herein, so long as the
Executive is employed by the Company, the Executive shall be entitled to the
following benefits:
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(a) Travel and Business Related Expenses. Until the earlier of the
end of the Term or the Executive's purchase pursuant to Section 5(b)(i)(E)
hereof, the Executive shall be provided with a Company owned automobile and
reimbursed in accordance with the policies of the Company as in effect from time
to time for travel and other reasonable expenses incurred in the performance of
the business of the Company.
(b) Group Life Insurance. The Company agrees to include the
Executive under the Company's group term life insurance policy in accordance
with the policies of the Company as in effect from time to time. The Company
shall pay all premiums for such coverage.
(c) Sick Leave/Disability. The Executive will enjoy the same sick
leave and short term and long term disability coverage as employees of the
Company generally.
(d) Retirement Plans. The Executive will be eligible to participate
in the Company's retirement benefit plans (collectively the "Plans") each in
accordance with the terms of the Plans.
(e) Vacation/Holidays. The Executive will receive four (4) weeks
paid vacation, on an "as earned" basis each year and will receive ten (10)
holidays each year.
(f) Insurance. The Executive shall participate in all insurance
programs (medical, dental, surgical, hospital) adopted by the Company, including
dependent coverage, to the same extent as other executives of the Company.
(g) 401K Profit Sharing Plan and Other Incentive Compensation Plans.
The Executive will be eligible to participate in the Company's profit sharing
and other management incentive compensation plans each in accordance with their
respective terms.
(h) Taxes. Except as otherwise specifically provided herein, the
Executive recognizes that some or all of these benefits may give rise to a
federal and/or state income tax liability, and agrees to be responsible for such
liability.
(i) Split Dollar Agreement. Notwithstanding anything to the contrary
contained herein, the Company agrees to gross-up the compensation of the
Executive in an amount determined by the Company as necessary to reimburse the
Executive for (A) an amount equal to the sum of all applicable federal and state
income and employment tax incurred by the Executive and attributable to the
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value of the economic benefit provided to the Executive by the insurance policy
described under a certain Split Dollar Agreement dated as of December 23, 1994
by and between the Company and the Executive, as amended from time to time (the
"Split Dollar Agreement") less the amount contributed by the Executive toward
the premium payment relating to such policy, as measured by (I) the lower of (1)
the applicable then current P.S. - 58 rates published from time to time by the
U.S. government, and (2) the applicable then current premium rates published
from time to time by the insurer of such insurance policy for individual one
year term life insurance available to all standard risks, or (II) any other then
commonly accepted methodology for determining the value of such economic
benefit, (B) the cost of any insurance policy that the Executive purchases for
the waiver of premiums on the insurance policy described in the Split Dollar
Agreement in the event of his disability, and (C) the tax effect of the
reimbursements set forth in (A), (B) and (C) hereof, and to pay such amounts to
the Executive in a lump sum payment no later than three (3) business days prior
to the earliest date on which any such federal or state income and employment
taxes are due with respect to the economic benefit of such insurance policy
and/or the cost of waiver of premiums. The Company shall also promptly estimate
the amount necessary to fund its obligations under (A), (B) and (C) above for
the period following a termination of employment of the Executive (other than a
termination for Cause, as defined in this Agreement)(the "Post Termination
Period"). In determining such estimate, the Company may initially assume that
the Executive's employment shall terminate upon retirement at age 65, that the
Executive shall live until age 85, that current tax rates will apply in the
future, that current waiver of premium elections will apply, that the fund will
have net earnings at an annual rate of eight percent(8%) and may use such other
reasonable actuarial and other assumptions as are appropriate to provide
adequate funding. The Company shall secure its Post Termination Period payment
obligations hereunder by making contributions on an annual basis to the Rabbi
Trust under the Employment Agreement among Rockland Trust Company, Xxxxxxx X.
Xxxxxxxxx and Independent Bank Corp.(the "Trust") in amounts such that level
annual payments commencing in December, 1997 and continuing in December of each
year until December, 2002, will provide sufficient funds to meet the Company's
obligations under (A), (B) and (C) above in the Post Termination Period. The
amounts to be contributed to the Trust each year will be adjusted to reflect the
investment performance of the funds in the Trust and such changes in the initial
actuarial and other assumptions as are necessary to reflect changes in tax rates
and other factors which would have been considered in the initial assumptions if
such facts had been known in December, 1997. In the event the Executive's
employment terminates prior to age 65
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and such termination is by reason other than for Cause, the Company shall
contribute, no later than ten (10) days following the date of termination, such
additional amounts as are necessary for the Company to be able to satisfy its
obligations hereunder in full in accordance with the then current funding
assumptions except that the actual date of termination shall be used instead of
age 65, if different. This clause (i) of Section 5 shall remain in full force
and effect and shall survive any termination of the Executive's service with the
Company and of this Agreement except a termination for Cause. Notwithstanding
the termination of the Executive's service with the Company and of this
Agreement except a termination for Cause, the Company shall thereafter continue
to review not less frequently than annually the adequacy of the amount in the
Trust to fund fully the Company's obligations under this clause (i) of Section 5
using then appropriate current funding assumptions and promptly make such
additional contributions as are appropriate to fund fully the Company's
obligations under this clause (i) of Section 5.
6. Termination of Employment.
(a) Termination for Cause; Resignation Without Good Reason.
(i) If the Executive is terminated by the Board for any reason
other than for Cause, as defined below in Section 6(a)(iii), such termination
shall be deemed to be without Cause, or if the Executive should resign for Good
Reason, as defined below in Section 6(a)(iv), prior to the expiration of the
Term, the Executive shall be entitled to the payments and benefits provided in
Section 6(b)(i). Notwithstanding anything to the contrary contained in this
Agreement, the Executive shall be entitled to the payments and benefits set
forth in Section 6(b)(i) hereof in all cases in the event the Executive ceases
to be an employee of the Company for any reason (other than death or disability
(as defined in Section 6(e) hereof)) at any time following a Change of Control.
(ii) If the Executive's employment is terminated by the Company
for Cause or if the Executive resigns from his employment for any reason other
than death, disability (as defined in Section 6(e) hereof) or for Good Reason,
as defined below in Section 6(a)(iv), prior to the expiration of the Term, the
Executive shall have no right to receive compensation or other benefits for any
period after such termination for Cause or resignation for any reason other than
death, disability or for Good Reason, except as may be required by law and
except that the Executive's rights to exercise his stock options in the event
his employment terminates shall be governed by the Independent Bank
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Corp. 1987 Incentive Stock Option Plan and/or any other relevant stock option
plans, as appropriate (the "Plans") and the relevant stock option agreement.
(iii) Termination for "Cause" shall mean action by the Board to
terminate the service of the Executive with the Company at any time because of:
(A) the Executive's conviction of, or plea of nolo contendre to, a felony or
crime involving moral turpitude; (B) activities involving the Executive's
personal profit as a result of his dishonesty, incompetence, willful misconduct,
willful violation of any law, rule, or regulation, or breach of fiduciary duty;
(C) the Executive's commission of an act involving gross negligence on the part
of the Executive in the conduct of his duties hereunder; (D) drug addiction on
the part of the Executive; or (E) the Executive's material breach of any
provision of this Agreement; provided, however, that, in the case of any
termination pursuant to clauses (C), (D), or (E) above, the Company shall give
the Executive thirty (30) business days' written notice thereof, an opportunity
to cure within such thirty (30) day period, and a reasonable opportunity to be
heard by the Board to show just cause for his actions, and to have the Board, in
its discretion, reverse or rescind the prior action of the Board under the
clause(s).
(iv) Resignation for "Good Reason" shall mean the resignation of
the Executive after (A) the Company or IBC, without the express written consent
of the Executive, materially breaches this Agreement to the substantial
detriment of the Executive; (B) the Board or the IBC Board, without Cause (as
defined in Section 6(a)(iii) above), substantially changes the Executive's core
duties or removes the Executive's responsibility for those core duties, so as to
effectively cause the Executive to no longer be performing the duties of Chief
Executive Officer and President of the Company and the President of IBC; (C) the
Board or the IBC Board, without Cause (as defined in Section 6(a)(iii) above)
places another executive above the Executive in the Company or IBC (except for
the current designation of Xxxx X. Xxxxxx, Xx. as Chief Executive Officer of
IBC); or (D) a Change of Control as defined in Section 6(c) below; provided,
however, that, in the case of resignation pursuant to clauses (A) through (C)
above, the Executive shall give the Company or IBC, as the case may be, 30
business days' written notice thereof and, during such 30 day period, an
opportunity to cure.
(v) The date of termination of employment by the Company
pursuant to Section 6(a) (or pursuant to Section 6(b) below) shall be the date
that the written notice of termination from the Company to the Executive is
written, and the Company agrees to use all good faith efforts to deliver the
written
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notice to the Executive as soon as possible after the notice is written. The
date of a resignation by the Executive pursuant to this Section 6(a) (or
pursuant to Section 6(b) below) shall be the date specified in the written
notice of resignation from the Executive to the Company.
(b) Termination Without Cause; Resignation for Good Reason.
(i) If the Executive's employment is terminated by the Company
for any reason other than death, disability (as defined in Section 6(e) hereof)
or for Cause, or, if the Executive should resign for Good Reason prior to the
expiration of the Term, he shall be entitled (A) to receive a lump sum severance
payment in an amount equal to the Executive's then current base salary for the
then remaining portion of the Term, plus (B) all amounts due to the Executive
under Section 5(i) above shall be accelerated and due and payable to the
Executive, to the extent not paid to the Executive as of the termination of this
Agreement, which payments shall be due immediately upon the termination or
resignation of the Executive's employment and, if not so paid, shall bear
interest at the rate of 15% per annum from such date until paid, and (C) (1) to
continue participation in the plans and arrangements described in clauses (b)
and (f) of Section 5 hereof (to the extent permissible by law and the terms of
such plans and arrangements) for the then remaining portion of the Term (the
"Benefits Period"), or (2) at the election of the Executive at any time
following termination of this Agreement and during the Benefits Period, to
receive a gross bonus payment in an amount which after payment therefrom of all
applicable federal and state income and employment taxes, will equal the cost to
the Company at the time of the Executive's election, attributable to the
Executive's participation in the plans and arrangements described in clauses (b)
and (f) of Section 5 hereof for the Benefits Period less any portion thereof
during which the Executive has continued his participation in such plans and
arrangements described in clause (b) and (f) of Section 5 hereof in accordance
with subsection 6(b)(i)(C)(1) above; which payment shall be due following
termination or resignation of the Executive's employment immediately upon the
Executive's delivery of written notice to the Company of his election pursuant
to subsection 6(b)(i)(C)(2), and if not so paid, shall bear interest at the rate
of 15% per annum for such date until paid, and (D) to have all stock options
which have been granted to the Executive to immediately become fully exercisable
for a period of three (3) months after the termination or resignation date (as
the case may be) in accordance with the terms of the Plans and the relevant
stock option agreement, and (E) to continue to have use of a Company owned
automobile and to receive all reimbursements
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associated therewith in accordance with the provisions of Section 5(a) hereof
for the balance of the Term, or upon his written notice to the Company at any
time within three months following the termination or resignation date (as the
case may be), to purchase his Company owned automobile at a purchase price equal
to the book value of said automobile as carried on the books and records of the
Company, plus all applicable excise taxes.
(ii) In the event of any dispute as to whether the Executive's
employment was terminated by the Company for a reason other than for Cause or
whether the Executive resigned for Good Reason, the Executive shall continue to
be provided with the health insurance benefits provided by the Company during
the arbitration proceedings provided for in Section 8 below. Further, any monies
which would be payable to the Executive pursuant to this Section 6(b) if the
Executive were to prevail in such arbitration proceedings shall be deposited
promptly into interest bearing escrow accounts to be established by the Company
in the name of the American Arbitration Association, as trustee, in a federally
insured depository institution (other than the Company or any affiliated entity)
for such purpose, and the accounts shall be established at separate institutions
in amounts such that the principal plus interest anticipated to accrue during
the course of arbitration proceedings shall not exceed the limit of federal
insurance applicable to each such account. The total of the escrowed amounts,
together with the accrued interest thereon, shall be paid to the Executive or
revert to the Company, as the case may be, in accordance with the final
resolution of the dispute pursuant to Section 8.
(c) Change of Control.
(i) A "Change of Control" shall be deemed to have occurred if,
subsequent to the Commencement Date, (A) any "person" (as such term is defined
in Section 13(d) of the Securities Exchange Act of 1934, as amended) is or
becomes the beneficial owner, directly or indirectly, of either (x) a majority
of either the Company's outstanding common stock or IBC's outstanding common
stock, or (y) securities of the Company or IBC representing a majority of the
combined voting power of either the Company's then outstanding voting securities
or IBC's then outstanding voting securities, or (B) during any period of two
consecutive years, individuals who at the beginning
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of such period constitute the Board cease, at any time after the beginning of
such period, for any reason to constitute a majority of the Board unless the
election of each new director was nominated or approved by at least two-thirds
of the directors then still in office who were either directors at the beginning
of such two-year period or whose nomination for election was previously
approved.
(ii) In the event any amount payable as compensation to the
Executive under this Agreement when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement would
constitute a Parachute Payment (as hereinafter defined), the amount payable as
compensation under Section 6 (b)(i) of this Agreement shall be reduced (but not
below zero) to the largest amount which is not a Parachute Payment (as
hereinafter defined) when aggregated with any other amounts payable as
compensation to the Executive other than pursuant to this Agreement. For
purposes hereof, the term Parachute Payment shall have the meaning given to
parachute payments set out in Internal Revenue Code of 1986 ss.280G(b)(2)(A)
(relating to the quantification of parachute payments) as then in effect
determined without regard to the provisions of Internal Revenue Code of 1986
ss.280G(b)(4) (relating to the exclusion of reasonable compensation from
parachute payments) as then in effect. Notwithstanding the foregoing, if the
Executive proves to the satisfaction of the Compensation Committee of the Board
(if no such Compensation Committee then is in existence, then any other
committee of the Board of the Company then performing the functions of a
compensation committee) with clear and convincing evidence that all or any
portion of the amount of the reduction provided in the preceding sentence would
not constitute a parachute payment within the meaning of such term as defined in
Internal Revenue Code of 1986 ss.280G(b)(2)(A) as then in effect determined with
regard to the provisions of Internal Revenue Code of 1986 ss.280G(b)(4) as then
in effect and that the Company's tax reporting position in regard to the payment
is overwhelmingly likely to be sustained, then the reduction provided in the
preceding sentence shall be adjusted to permit payment of so much of such
reduction as the said Compensation Committee determines will result in the
largest amount which would not constitute a parachute payment within the meaning
of such term as defined in Internal Revenue Code of 1986 ss.280G(b)(2)(A) as
then in effect determined with regard to the provisions of Internal Revenue Code
of 1986 ss.280G(b)(4) as then in effect.
(d) Mitigation of Damages; Legal Fees. The Executive shall not be
required to mitigate the amount of any payment or benefit provided for in
Section 6(b) by seeking other employment or otherwise, nor shall the amount of
any payment or benefit provided for in Section 6(b) be reduced by any
compensation earned by the Executive as a result of self-employment or
employment by another employer, by retirement benefits or by offset against any
amount claimed to be owed by the Executive to the Company or otherwise.
Following a Change of Control, the
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Company agrees to pay, as incurred, all legal fees and expenses which the
Executive may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement) plus in
each case interest on any delayed payment at the rate of fifteen percent (15%)
per annum.
(e) Termination by Reason of Death or Disability.
(i) Notwithstanding anything to the contrary contained herein,
in the event the Executive should die while he is employed by the Company, the
Executive's employment shall be automatically terminated and the Company shall
have no further obligations under this Agreement to pay compensation or benefits
to the Executive or his estate, except to the extent any compensation or
benefits are due to the Executive or his estate for any period prior to his
death, provided, however, that this Section 6(e)(i) shall not affect in any
manner any other benefits to which the Executive or his estate may be entitled
or which may vest or accrue upon his death under any arrangement, program or
plan with the Company (other than this Agreement), by law or otherwise.
(ii) Except as set forth in Section 5(i) hereof, notwithstanding
anything to the contrary contained herein, in the event the Executive should be
unable to perform his duties hereunder by reason of disability, whether by
reason of injury (physical or mental), illness (physical or mental) or
otherwise, incapacitating the Executive for a continuous period exceeding one
hundred and eighty (180) days, as certified by a physician selected by the
Company in good faith, the Executive's employment may be terminated by the
Company upon written notice to the Executive and upon such termination, the
Company's only obligations hereunder shall be to (A) pay to the Executive an
amount equal to fifty percent (50%) of the Executive's Base Salary on the date
of termination of employment for the then remaining portion of the Term at such
times as such Base Salary would have been payable if the Executive had not been
terminated, less any benefits which the Executive receives under any disability
insurance program provided by the Company and in effect at the date of such
termination, and (B) continue to permit the Executive to participate in the
plans and arrangements described in clause (b) and (f) of Section 5 hereof (to
the extent permissible by law and the terms of such plans and arrangements) for
the then remaining portion of the Term; provided, however, that if the Executive
dies following a
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termination pursuant to this Section 6(e)(ii), then the provisions of Section
6(e)(i) shall supersede this Section 6(e)(ii) from and after the date of death
of the Executive.
(iii) The Executive's right to exercise his stock options in the
event of his death or disability shall be governed by the terms of the Plans and
the relevant stock option agreement.
7. Confidentiality and Non Competition.
(a) Confidentiality. The Executive recognizes and acknowledges as an
employee of the Company, he will have access to, become acquainted with, and
obtain financial information and knowledge relating to the business, financial
condition, methods of operation and other aspects of the Company, its parent,
subsidiaries and affiliates ("Affiliated Companies") and their customers,
employees and suppliers, some of which information and knowledge is confidential
and proprietary and that the Executive could substantially detract from the
value and business prospects of the Affiliated Companies in the event, while
employed by the Company or any time thereafter, the Executive were to disclose
to any person not related to the Affiliated Companies or use such information
and knowledge for his or such other person's advantage. Accordingly, the
Executive hereby agrees that he will not disclose to any person, other than
directors, officers, employees, accountants, lawyers, consultants, advisors,
agents and representative of, or other persons related to, the Affiliated
Companies on a need to know basis in the course of carrying out his duties
hereunder, any knowledge or information of a confidential nature pertaining to
the Affiliated Companies, or their successors and assigns, including without
limitation, all unpublished matters relating to the business, properties,
accounts, books and records, business plan and customers of the said
corporations, or their successors and assigns, except with the prior written
approval of the Board of Directors of the Company, or except as may be required
by law.
(b) Equitable Relief. The Executive acknowledges and agrees (i) that
the provisions of this Section 7 are reasonable and necessary for the protection
of the Company, its subsidiaries and affiliates or its or their successors and
assigns, and (ii) that the remedy at law for any breach by him of the provisions
of this Section 7 will be inadequate and, accordingly, the Executive hereby
agrees that in the case of any such breach (i) the Company or its successors and
assigns shall be entitled to injunctive relief, in addition to any other remedy
they may have, and (ii) the Executive shall forfeit any future payments or
benefits to which he might be entitled hereunder.
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(c) Non-Solicitation/Non Competition. For a period of one (1) year
after the Executive receives any compensation pursuant to this Agreement he will
not (i) solicit, divert or take away, directly or indirectly, any Major Customer
of the Company, its parent, subsidiaries or affiliates, or its or their
successors and assigns, or (ii) directly or indirectly induce or attempt to
influence any employee of the Company, its parent or any of its subsidiaries or
affiliates, or their successors and assigns, to terminate his employment with
the Company, its parent or any of its subsidiaries or affiliates or their
successors or assigns. As used herein, "Major Customer" shall mean any customer
of the Company who has maintained an average deposit balance of at least
$100,000 during the last six months of the Term or who has maintained or
obtained a credit facility of at least $100,000 from the Company during the last
six months of the Term.
(d) Enforceability. The covenants on the part of the Executive
contained in this Section 7 shall be construed as an agreement independent of
any other provision in this Agreement, and the existence of any claim or cause
of action by the Executive against the Company or IBC, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Company of said covenants. This Section shall survive the termination of
this Agreement. The period, geographical area and the scope of the restrictions
on the Executive set forth herein are divisible so that if any provision of this
Section 7 is invalid, that provision shall be automatically modified to the
extent necessary to make it valid.
8. Disputes.
(a) Any dispute relating to this Agreement, or to the breach of this
Agreement, arising between the Executive and the Company, IBC or any of their
affiliates or subsidiaries shall be settled by arbitration in accordance with
the commercial arbitration rules of the American Arbitration Association
("AAA"). The arbitration proceeding, including the rendering of an award, shall
take place in Boston, Massachusetts, and shall be administered by the AAA.
(b) The arbitral tribunal shall be appointed within 30 days of the
notice of dispute, and shall consist of three arbitrators, one of whom shall be
appointed by the Company or IBC, one by the Executive, and the third by both the
Company or IBC and the Executive jointly; provided, however, if the Company or
IBC and the Executive do not select the third arbitrator within such 30 day
period, such third arbitrator shall be chosen
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by the AAA as soon as practicable following notice to the AAA by the parties of
their inability to choose such third arbitrator.
(c) The award of any such arbitral tribunal shall be final except as
otherwise provided by the laws of the Commonwealth of Massachusetts and the
Federal laws of the United States, to the extent applicable. Judgment upon such
award may be entered by the prevailing party in any state or federal court
sitting in Boston, Massachusetts.
(d) No arbitration proceedings hereunder shall be binding upon or in
any way affect the interests of any party other than the Company, IBC and the
Executive with respect to such arbitration.
9. Indemnification.
IBC and the Company shall indemnify the Executive to the fullest extent
permitted by the Massachusetts General Corporation Law. This indemnification
requires the advance of expenses to the Executive, as permitted by such law. The
parties to this Agreement further agree that this Agreement has been negotiated
by each in an arm's length transaction, and that each has been represented by
counsel in the negotiation and execution of the Agreement.
10. Tax Withholding and Excessive Payments.
(a) Payments to the Executive of all compensation contemplated under
this Agreement shall be subject to all applicable legal requirements with
respect to the withholding of taxes and other deductions required by law.
(b) In the event the sum of (A) the amount payable to the Executive
hereunder which is characterized as applicable employee remuneration for federal
income tax purposes under Internal Revenue Code of 1986, ss.162(m)(4) for any
tax year of the Company and (B) the aggregate of all other amounts which are
characterized as applicable employee remuneration under Internal Revenue Code of
1986, ss.162(m)(4) paid by the Company in respect to the Executive for such tax
year exceeds (C) $1,000,000 (or such greater or lesser sum as equals the maximum
amount allowable as a deduction to the Company for federal income tax purposes
under Internal Revenue Code of 1986, ss.162(m) in respect to applicable employee
remuneration to the Executive for such tax year), the amount payable hereunder
in respect to such year shall be reduced (but not below zero) to the amount
which shall result in the sum of (D) the amount payable hereunder which is
characterized as applicable employee remuneration under said
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ss.162(m)(4) and (E) all other remuneration paid by the Company in respect to
the Executive for such tax year which is characterized as applicable employee
remuneration under said ss.162(m)(4) equaling (F) $1,000,000 (or such greater or
lesser sum as equals the maximum amount allowable as a deduction to the Company
for federal income tax purposes under said ss.162(m) in respect to applicable
employee remuneration under said ss.162(m)(4) to the Executive for such tax
year. If, after the maximum reduction in the preceding sentence, any other
amounts remain payable otherwise than under this Agreement which would, if paid,
be applicable employee remuneration (as defined above) in excess of the amount
which is allowable as a deduction for the same under said ss.162(m), such
amounts shall be reduced to the maximum amount allowable as a deduction to the
Company for federal income tax purposes under said ss.162(m) in respect to
applicable employee remuneration to the Executive for such tax year. So much of
the amount of the reductions provided in the two preceding sentences as may be
paid in the tax year of the Company next succeeding without resulting in a
disallowance of a federal income tax deduction under said ss.162(m) in respect
to the portion of such reduction so paid shall be paid on the first business day
in such succeeding tax year. If the full amount of such reductions is not paid
in such tax year of the Company next succeeding, the remainder of such reduction
shall be paid in installments equal to the lesser of (G) the unpaid balance of
such reduction or (H) the amount which may be paid in each successive tax year
without resulting in a disallowance of a federal income tax deduction under said
ss.162(m) in respect to the portion of such reduction so paid until the full
amount of such reductions have been paid. References to sections of the Internal
Revenue Code of 1986 shall refer to the successors (to the sections cited as
presently constituted) which are in effect when applied.
11. Non-Assignability; Binding Agreement.
Neither this Agreement nor any right, duty, obligation or interest
hereunder shall be assignable or delegable by the Executive without the
Company's prior written consent; provided, however, that (i) nothing in this
Section shall preclude the Executive from designating any of his beneficiaries
to receive any benefits payable thereunder upon his death or disability, or his
executors, administrators, or other legal representatives, from assigning any
rights hereunder to the person or persons entitled thereto, and (ii) any
successor to the Company or IBC pursuant to any merger or consolidation
involving the Company or IBC, and any purchaser of all or substantially all the
assets of the Company or IBC, shall succeed to the rights and assume the
obligations of the Company or IBC under this Agreement, and the Company and IBC
covenant that they will not enter into or
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consummate any such transaction which does not make express provision for such
succession and assumption. Subject to the foregoing, this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto, any successors to
or assigns of the Company and IBC, the Executive's heirs and the personal
representatives of the Executive's estate.
12. Amendment; Waiver.
This Agreement may not be modified, amended or waived in any manner
except by an instrument in writing signed by the parties hereto. The waiver by
any party of compliance with any provision of this Agreement by the other party
shall not operate or be construed as a waiver of any provision of this
Agreement.
13. Notices.
Any notice hereunder by either party to the other shall be given in
writing by personal delivery, telex, telecopy or certified mail, return receipt
requested, to the applicable address set forth below:
(i) To the Company or IBC: Rockland Trust Company
or Independent Bank Corp.
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
(ii) To the Executive: Xxxxxxx X. Xxxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(or such other address as may from time to time be designated by notice by
either party hereto for such purpose). Notice shall be deemed given, if by
personal delivery, on the date of such delivery or, if by telex or telecopy, on
the business day following receipt of answer back or telecopy confirmation or if
by certified mail, on the date shown on the applicable return receipt.
14. Governing Law.
This Agreement is to be governed by and interpreted in accordance with
the laws of the Commonwealth of Massachusetts. If, under such law, any portion
of this Agreement is at any time deemed to be in conflict with any applicable
statute, rule, regulation or ordinance, such portion shall be deemed to be
modified or altered to conform thereto or, if that is not possible, to be
omitted from this Agreement, and the invalidity
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of any such portion shall not affect the force, effect and validity of the
remaining portion thereof.
15. Supersedes Previous Agreements.
This Agreement and the Split Dollar Agreement and the related
collateral assignment, the Trust and other related documents as amended from
time to time, shall constitute the entire understanding between the Company, IBC
and the Executive relating to the employment of the Executive by the Company and
supersede and cancel all prior written and oral agreements and understandings
with respect to the subject matter of this Agreement. Except as otherwise
specifically provided herein, all amounts payable to the Executive or the
Company under the Split Dollar Agreement shall be exclusively governed by the
terms of the Split Dollar Agreement and related collateral assignment.
16. Counterparts.
This Agreement may be executed by the parties hereto in counterparts,
each of which shall be deemed to be an original, but such counterparts shall
together constitute one and the same instrument.
17. Joint and Several Liability.
The obligations and liability of IBC and the Company hereunder shall be
joint and several.
IN WITNESS WHEREOF, the parties have executed this Third Amended and
Restated Employment Agreement as of the date first above written.
ROCKLAND TRUST COMPANY
By:_____________________________
Its:____________________________
INDEPENDENT BANK CORP.
By:_____________________________
Its:____________________________
--------------------------------
XXXXXXX X. XXXXXXXXX
