Enterprise Bancorp (EBTC)

amounts shall constitute liquidated damages with respect to any and all such rights and claims and, upon Executive’s receipt of such amounts, Employer shall be released and discharged from any and all liability to Executive in connection with this Agreement or otherwise in connection with Executive’s employment by Employer. Notwithstanding the foregoing, Executive shall retain all rights (i) with respect to Employer’s continuing obligations to indemnify Executive as a former officer or director of Employer as set forth in Section 6,  (ii) matters covered by provisions of this Agreement that expressly survive the termination of this Agreement,  (iii) rights to which Executive is entitled by virtue of his participation in the employee benefit plans, policies and arrangements of Employer, and (iv) as otherwise excluded by applicable law.

4.11        Code Section 280G Reduction.  Anything in this Agreement or in any other agreement, contract, understanding, plan or program, entered into or maintained by Employer to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by Employer to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, and/or any successor provision or section thereto (such excise tax, together with any interest or penalties incurred by Executive with respect to such excise tax, collectively, the “Excise Tax”), and if the Payments less the Excise Tax would be less than the amount of the Payments that would otherwise be payable to Executive without imposition of the Excise Tax, then, to the extent necessary to eliminate the imposition of the Excise Tax (and taking into account any reduction in the Payments provided by reason of Section 280G of the Code in any such other agreement, contract, understanding, plan or program), the cash and non-cash payments and benefits payable to the Executive shall be reduced (with Executive being provided with the amount of each payment and benefit as calculated by the Employer and given ten (10) business days in which to prioritize the order of reduction of each such payment or benefit); but only if, by reason of any such reduction, the Payments with any such reduction shall exceed the Payments less the Excise Tax without any such reduction.  For purposes of this Section 4.11, (i) no portion of the Payments, the receipt or enjoyment of which Executive shall have effectively waived in writing prior to the date of termination, shall be taken into account, (ii) no portion of the Payments shall be taken into account that, in the opinion of tax counsel selected in good faith by Employer, does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code, including without limitation by reason of Section 280G(b)(4)(A) of the Code, (iii) any payments and/or benefits under this Agreement or otherwise for services to be rendered on or after the effective date of a Change in Control shall be reduced only to the extent necessary so that such payments and/or benefits in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4)(B) of the

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Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred in the immediately preceding clause (ii) of this sentence, and (iv) the value of any non-cash payment or benefit or any deferred payment or benefit included in the Payments shall be determined by Employer’s independent auditors in accordance with the principles of Sections 280G(d)(3) and 280G(d)(4) of the Code and the applicable regulations or proposed regulations under the Code.  Except as otherwise provided in this Section 4.11, the foregoing calculations and determinations shall be made in good faith by Employer and shall be conclusive and binding upon the parties.  Employer shall pay all costs and expenses incurred in connection with any such calculations or determinations.

4.12        Timing of Payment; Section 409A.  All Accrued Obligations payable under this Agreement shall be paid in cash in single lump sum within fourteen (14) days following the date of termination (or at such earlier date required by law). The Additional Benefits shall be paid in accordance with the terms of the applicable plan, program or arrangement.  Except to the extent prohibited by applicable law or the terms of this Agreement, all other payments to which Executive shall be entitled to under this Section 4 shall be made within thirty (30) days following the date of termination, subject to the following:

(a)           Payments to Executive under this Section 4 shall be bifurcated into two portions, consisting of a portion that does not constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code and a portion that does constitute nonqualified deferred compensation. Payments hereunder shall first be made from the portion, if any, that does not consist of nonqualified deferred compensation until it is exhausted and then shall be made from the portion that does constitute nonqualified deferred compensation. However, anything in this Agreement to the contrary notwithstanding, if at the time of Executive’s termination of employment, Executive is considered a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code, then to the extent required by Section 409A of the Code, no payments that constitute nonqualified deferred compensation shall be payable prior to the date that is the earlier of (i) six months and a day after Executive’s date of termination, or (ii) Executive’s death (“Earliest Payment Date”).  Any payments that are delayed pursuant to the preceding sentence shall be paid on the Earliest Payment Date. The determination of whether, and the extent to which, any of the payments to be made to Executive hereunder are nonqualified deferred compensation shall be made after the application of all applicable exclusions under Treas. Reg. § 1.409A-1(b)(9). Any payments that are intended to qualify for the exclusion for separation pay due to involuntary separation from service set forth in Treas. Reg. § 1.409A-1(b)(9)(iii) must be paid no later

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