BERKSHIRE HILLS BANCORP, INC. THREE YEAR CHANGE IN CONTROL AGREEMENT
Exhibit
10.14
BERKSHIRE
HILLS BANCORP, INC.
THREE
YEAR CHANGE IN CONTROL AGREEMENT
This
AGREEMENT is made effective as of
August 1, 2007, by and between Berkshire Hills Bancorp,
Inc.
(the "Holding Company"), a corporation organized under the laws of the
state of Delaware, with its principal administrative offices at 00 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000, and Xxxxx X. Xxxxx
("Executive"). Any reference to the “Institution” herein shall mean
Berkshire Bank or any successor to Berkshire Bank.
WHEREAS,
the Holding Company recognizes
the substantial contributions Executive has made to the Holding Company and
wishes to protect Executive's position with the Holding Company for the period
provided in this Agreement; and
WHEREAS,
Executive has agreed to serve
in the employ of the Holding Company.
NOW,
THEREFORE, in consideration of the
contributions and responsibilities of Executive, and upon the other terms and
conditions hereinafter provided, the parties hereto agree as
follows:
1.
TERM OF
AGREEMENT.
The
period of this Agreement shall be
deemed to have commenced as of the date first above written and shall continue
for a period of thirty-six (36) full calendar months
thereafter. Commencing on the first anniversary date of this
Agreement, and continuing on each anniversary thereafter, the Board of Directors
(the “Board”) may act to extend the term of this Agreement for an additional
year, such that the remaining term of this Agreement would be three years,
unless Executive elects not to extend the term of this Agreement by giving
written notice to the Holding Company, in which case the term of this Agreement
will expire on the third anniversary of this Agreement.
2.
CHANGE IN
CONTROL.
(a) Upon the
occurrence of a Change in Control of the Institution or the Holding Company
(as
herein defined) followed at any time during the term of this Agreement by the
involuntary termination of Executive’s employment or the voluntary termination
of Executive’s employment in accordance with the terms of this Agreement, other
than for Cause, as defined in Section 2(c) of this Agreement, the provisions
of
Section 3 of this Agreement shall apply.
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(i)
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Upon
the occurrence of a Change in Control, Executive shall have the right
to
elect to voluntarily terminate his employment at any time during
the term
of this Agreement following any demotion, loss of title, office or
significant authority, reduction in annual compensation or benefits,
or
relocation of his principal place of employment by more than twenty-five
(25) miles from its location immediately prior to the Change in Control.
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(ii)
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Notwithstanding
the foregoing clause (i), in the event, however, that the Chief Executive
Officer of the Institution immediately prior to the Change in Control
is
the Chief Executive Officer of the resulting entity with similar
responsibilities and duties and Executive’s position with the resulting
entity does not result in: (A) a reduction in annual compensation
or
benefits, (B) a material change in work schedule, or (C) relocation
of his
principal place of employment by more than fifty (50) miles, then
Executive may not voluntarily terminate his employment during the
one-year
period following the Change in Control and receive any payments or
benefits under this Agreement. For the avoidance of doubt, with respect
to
the immediately foregoing limitation on voluntary termination, Executive
may voluntarily terminate employment in accordance with this Section
2(a)
effective upon the expiration of said one-year period, and for a
period of
30 days thereafter, if one of the events set forth in clause (i)
has
occurred, either at the time of the Change in Control or during the
one-year period following the time of the Change in Control. If
one of the events described in clause (i) occurs more than one year
following the date of the Change in Control, but during the remaining
term
of the Agreement, then Executive may terminate his employment in
accordance with the provisions of this Agreement, notwithstanding
this
clause (ii).
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(iii)
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Notwithstanding
any other provision of this Agreement to the contrary, Executive
may
consent in writing to any demotion, loss, reduction or relocation
and
waive his ability to voluntarily terminate his employment under the
terms
of this Agreement. The effect of any written consent of Executive
under
this Section 2(a) shall be strictly limited to the terms specified
in such
written consent.
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(b)
For purposes of this Agreement, a "Change in Control" of the Institution or
Holding Company shall mean an event of a nature that: (i) would be required
to
be reported in response to Item 1(a) of the current report on Form 8-K, as
in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (the “Exchange Act”); or (ii) results in a Change in
Control of the Institution or the Holding Company within the meaning of the
Bank
Change in Control Act and the Rules and Regulations promulgated by the Federal
Deposit Insurance Corporation (“FDIC”) at 12 C.F.R. § 303.4(a) with respect to
the Bank and the Board of Governors of the Federal Reserve System (“FRB”) at 12
C.F.R. § 225.41(b) with respect to the Holding Company, as in effect on the date
hereof; or (iii) results in a transaction requiring prior FRB approval under
the
Bank Holding Company Act of 1956 and the regulations promulgated thereunder
by
the FRB at 12 C.F.R. § 225.11, as in effect on the date hereof except for the
Holding Company’s acquisition of the Institution; or (iv) without limitation
such a Change in Control shall be deemed to have occurred at such time as (A)
any “person” (as the term is used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Institution or
the
Holding Company representing 20% or more of the Institution’s or the Holding
Company’s outstanding securities except for any securities of the Institution
purchased by the Holding Company in connection with the conversion of the
Institution to the stock form and any securities purchased by any tax-qualified
employee benefit plan of the Institution; or (B) individuals who constitute
the
Board of Directors on the date hereof (the “Incumbent Board”) cease for any
reason to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the date hereof whose election was approved
by
a vote of at least three
2
quarters
(3/4) of the directors comprising the Incumbent Board, or whose nomination
for
election by the Holding Company’s stockholders was approved by the same
Nominating Committee serving under an Incumbent Board, shall be, for purposes
of
this clause (B), considered as though he were a member of the Incumbent Board;
or (C) a plan of reorganization, merger, consolidation, sale of all or
substantially all the assets of the Institution or the Holding Company or
similar transaction occurs in which the Institution or Holding Company is not
the resulting entity; or (D) solicitations of shareholders of the Holding
Company, by someone other than the current management of the Holding Company,
seeking stockholder approval of a plan of reorganization, merger or
consolidation of the Holding Company or Institution or similar transaction
with
one or more corporations as a result of which the outstanding shares of the
class of securities then subject to the plan or transaction are exchanged for
or
converted into cash or property or securities not issued by the Institution
or
the Holding Company shall be distributed; or (E) a tender offer is made for
20%
or more of the voting securities of the Institution or the Holding
Company.
(c)
Executive shall not have the right to receive termination benefits pursuant
to
Section 3 of this Agreement upon Termination for Cause. The term "Termination
for Cause" shall mean termination because of: (i) Executive's personal
dishonesty, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of
any
law, rule, regulation (other than traffic violations or similar offenses),
final
cease and desist order or material breach of any provision of this Agreement
which results in a material loss to the Institution or the Holding Company,
or
(ii) Executive's conviction of a crime or act involving moral turpitude or
a
final judgement rendered against Executive based upon actions of Executive
which
involve moral turpitude. For the purposes of this Section, no act, or the
failure to act, on Executive's part shall be "willful" unless done, or omitted
to be done, not in good faith and without reasonable belief that the action
or
omission was in the best interests of the Holding Company or its affiliates.
Notwithstanding the foregoing, Executive shall not be deemed to have been
Terminated for Cause unless and until there shall have been delivered to him
a
Notice of Termination which shall include a copy of a resolution duly adopted
by
the affirmative vote of not less than a majority of the members of the Board
at
a meeting of the Board called and held for that purpose (after reasonable notice
to Executive and an opportunity for him, together with counsel, to be heard
before the Board), finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying Termination for Cause and specifying
the particulars thereof in detail. Executive shall not have the right to receive
compensation or other benefits for any period after Termination for Cause.
During the period beginning on the date of the Notice of Termination for Cause
pursuant to Section 5 of this Agreement through the Date of Termination, stock
options granted to Executive under any stock option plan shall not be
exercisable nor shall any unvested stock awards granted to Executive under
any
stock-based incentive plan of the Institution, the Holding Company or any
subsidiary or affiliate thereof vest. At the Date of Termination, such stock
options and such unvested stock awards shall become null and void and shall
not
be exercisable by or delivered to Executive at any time subsequent to such
Date
of Termination for Cause.
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3.
TERMINATION
BENEFITS.
(a)
Upon the occurrence of a Change in Control, followed at any time during the
term
of this Agreement by the involuntary termination of Executive's employment
(other than for Termination for Cause), or voluntary termination during the
term
of this Agreement as provided by Section 2(a) of this Agreement, the Holding
Company shall be obligated to pay Executive, or in the event of his subsequent
death, his beneficiary or beneficiaries, or his estate, as the case may be,
a
sum equal to three (3) times Executive's average annual compensation for the
five most recent taxable years that Executive has been employed by the Holding
Company or such lesser number of years in the event that Executive shall have
been employed by the Holding Company for less than five years. For this purpose,
such annual compensation shall include base salary and any other taxable income,
including, but not limited to, amounts related to the granting, vesting or
exercise of restricted stock or stock option awards, commissions, bonuses,
pension and profit sharing plan contributions or benefits (whether or not
taxable), severance payments, retirement benefits, and fringe benefits paid
or
to be paid to Executive or paid for Executive's benefit during any such year.
At
the election of Executive, which election is to be made prior to a Change in
Control, such payment shall be made in a lump sum or on an annual basis in
approximately equal installments over a three (3) year period.
(b)
Upon the occurrence of a Change in Control of the Institution or the Holding
Company followed at any time during the term of this Agreement by Executive's
voluntary or involuntary termination of employment in accordance with paragraph
(a) of this Section 3, other than for Termination for Cause, the Holding Company
shall cause to be continued life, medical and disability coverage substantially
identical to the coverage maintained by the Institution or Holding Company
for
Executive prior to his severance, except to the extent such coverage may be
changed in its application to all Institution or Holding Company employees
on a
nondiscriminatory basis. Such coverage and payments shall cease upon the
expiration of thirty-six (36) full calendar months from the Date of
Termination.
4.
CHANGE
IN CONTROL-RELATED PROVISIONS.
(a)
Anything in this Agreement to
the
contrary notwithstanding and except as set forth below, in the event it shall
be
determined that any payment, benefit or distribution made or provided by the
Holding Company or the Institution to or for the benefit of Executive (whether
made or provided pursuant to the terms of this Agreement or otherwise) (each
referred to herein as a “Payment”), would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or
any interest or penalties are incurred by Executive with respect to such excise
tax (the excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax”), Executive shall be
entitled to receive an additional payment (a “Gross-Up Payment”) in an amount
such that, after payment by Executive of all taxes (including any interest
or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties imposed with respect thereto)
and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount
of
the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
(b)
Determination
of Gross-Up Payment. Subject to the provisions
of Section 4(c), all determinations required to be made under this Section
4,
including whether and when a
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Gross-Up
Payment is required, the amount
of such Gross-Up Payment and the assumptions to be utilized in arriving at
such
determination, shall be made by a certified public accounting firm reasonably
acceptable to the Holding Company as may be designated by Executive (the
“Accounting Firm”) which shall provide detailed supporting calculations to the
Holding Company and Executive within fifteen (15) business days of the receipt
of notice from Executive that there has been a Payment, or such earlier time
as
is requested by the Holding Company. All fees and expenses of the
Accounting Firm shall be borne solely by the Holding Company. Any
Gross-Up Payment, as determined pursuant to this Section 4, shall be paid by
the
Holding Company to Executive within five business days of the later of (i)
the
due date for the payment of any Excise Tax, or (ii) the receipt of the
Accounting Firm’s determination. Any determination by the Accounting Firm shall
be binding upon the Holding Company and Executive. As a result of the
uncertainty in the application of Section 4999 of the Code, at the time of
the
initial determination by the Accounting Firm hereunder, it is possible that
a
Gross-Up Payment will not have been made by the Holding Company which should
have been made (an “Underpayment”), consistent with the calculations required to
be made hereunder. In the event that the Holding Company exhausts its
remedies pursuant to Section 4(c) and Executive thereafter is required to make
a
payment of any Excise Tax, the Accounting Firm shall determine the amount of
the
Underpayment that has occurred and any such Underpayment shall be promptly
paid
by the Holding Company to or for the benefit of Executive.
(c)
Treatment
of
Claims. Executive shall notify
the
Holding Company in writing of any claim by the Internal Revenue Service that,
if
successful, would require a Gross-Up Payment to be made. Such
notification shall be given as soon as practicable, but no later than ten
business days, after Executive is informed in writing of such claim and shall
apprise the Holding Company of the nature of such claim and the date on which
such claim is requested to be paid. Executive shall not pay such
claim prior to the expiration of the thirty (30) day period following the date
on which it gives such notice to the Holding Company (or any shorter period
ending on the date that payment of taxes with respect to such claim is
due). If the Holding Company notifies Executive in writing prior to
the expiration of this period that it desires to contest such claim, Executive
shall:
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(i)
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give
the Holding Company any
information reasonably requested by the Holding Company relating
to such
claim;
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(ii)
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take
such action in connection
with contesting such claim as the Holding Company shall reasonably
request
in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Holding
Company;
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(iii)
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cooperate
with the Holding Company
in good faith in order to effectively contest such claim;
and
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(iv)
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permit
the Holding Company to
participate in any proceedings relating to such claim; provided,
however,
that the Holding Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in
connection with such contest and indemnify and hold Executive harmless,
on
an
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after-tax
basis, for any Excise
Tax or related taxes, interest or penalties imposed as a result of
such
representation and payment of costs and expenses. Without
limitation on the foregoing provisions of this Section 4(c), the
Holding
Company shall control all proceedings taken in connection with such
contest and, at its option, may pursue or forgo any and all administrative
appeals, proceedings, hearings and conferences with the taxing authority
with respect to such claim and may, at its option, either direct
Executive
to pay the tax claimed and xxx for a refund or contest the claim
in any
permissible manner. Further, Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in
a court
of initial jurisdiction and in one or more appellate courts, as the
Holding Company shall determine; provided, however, that if the Holding
Company directs Executive to pay such claim and xxx for a refund,
the
Holding Company shall advance the amount of such payment to Executive,
on
an interest-free basis (including interest or penalties with respect
thereto). Furthermore, the Holding Company’s control of the
contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and Executive shall be entitled
to
settle or contest, as the case may be, any other issues raised by
the
Internal Revenue Service or any other taxing
authority.
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(d)
Adjustments
to the Gross-Up Payment. If, after the receipt
by
Executive of an amount advanced by the Holding Company pursuant to Section
4(c),
Executive becomes entitled to receive any refund with respect to such claim,
Executive shall (subject to the Holding Company’s compliance with the
requirements of Section 4(c)) promptly pay to the Holding Company the amount
of
such refund (together with any interest paid or credited thereon after
applicable taxes). If, after the receipt by Executive of an amount
advanced by the Holding Company pursuant to Section 4(c), a determination is
made that Executive shall not be entitled to any refund with respect to such
claim and such denial of refund occurs prior to the expiration of thirty (30)
days after such determination, then such advance shall be forgiven and shall
not
be required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of the Gross-Up Payment required to be
paid.
5.
NOTICE OF
TERMINATION.
(a)
Any purported termination by the Holding Company or by Executive in connection
with a Change in Control shall be communicated by a Notice of Termination to
the
other party. For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which indicates the specific termination provision in
this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b)
"Date of Termination" shall mean the date specified in the Notice of Termination
(which, in the instance of Termination for Cause, shall not be less than thirty
(30) days from the date such Notice of Termination is given); provided, however,
that if a dispute regarding the Executive's termination exists, the "Date of
Termination" shall be determined in accordance with Section 5(c) of this
Agreement.
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(c)
If, within thirty (30) days after any Notice of Termination is given, the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be the date
on
which the dispute is finally determined, either by mutual written agreement
of
the parties, by a binding arbitration award, or by a final judgment, order
or
decree of a court of competent jurisdiction (the time for appeal therefrom
having expired and no appeal having been perfected) and provided further that
the Date of Termination shall be extended by a notice of dispute only if such
notice is given in good faith and the party giving such notice pursues the
resolution of such dispute with reasonable diligence. Notwithstanding the
pendency of any such dispute in connection with a Change in Control, in the
event that the Executive is terminated for reasons other than Termination for
Cause, the Holding Company will continue to pay Executive the payments and
benefits due under this Agreement in effect when the notice giving rise to
the
dispute was given (including, but not limited to his annual salary) until the
earlier of: (i) the resolution of the dispute in accordance with this Agreement;
or (ii) the expiration of the remaining term of this Agreement as determined
as
of the Date of Termination.
6.
SOURCE OF
PAYMENTS.
It
is intended by the parties hereto
that all payments provided in this Agreement shall be paid in cash or check
from
the general funds of the Holding Company.
7.
EFFECT ON PRIOR
AGREEMENTS AND EXISTING BENEFIT PLANS.
This
Agreement contains the entire
understanding between the parties hereto and supersedes any prior agreement
between the Holding Company or the Institution and Executive, except that this
Agreement shall not affect or operate to reduce any benefit or compensation
inuring to Executive of a kind elsewhere provided. No provision of
this Agreement shall be interpreted to mean that Executive is subject to
receiving fewer benefits than those available to him without reference to this
Agreement.
Nothing
in this Agreement shall confer
upon Executive the right to continue in the employ of the Holding Company or
shall impose on the Holding Company any obligation to employ or retain Executive
in its employ for any period.
8.
NON-COMPETITION
AND
NON-DISCLOSURE.
(a)
For a period of one (1) year following the payment of termination benefits
to
Executive under this agreement, Executive agrees not to compete with the Holding
Company or its subsidiaries in any city, town or county in which Executive's
normal business office is located and the Holding Company or its subsidiaries
has an office or has filed an application for regulatory approval to establish
an office, determined as of the effective date of such termination, except
as
agreed to pursuant to a resolution duly adopted by the Board of Directors.
Executive agrees that during such one (1) year period and within said cities,
towns and counties, Executive shall not work for or advise, consult or otherwise
serve with, directly or indirectly, any entity whose business materially
competes with the depository, lending or other business activities of the
Holding Company or its subsidiaries. The parties hereto, recognizing that
irreparable injury
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will
result to the Holding Company, its business and property in the event of
Executive's breach of this Section 8(a), agree that in the event of any such
breach by Executive, the Holding Company will be entitled, in addition to any
other remedies and damages available, to an injunction to restrain the violation
hereof by Executive, Executive's partners, agents, servants, employees and
all
persons acting for or under the direction of Executive. Executive
represents and admits that in the event of the termination of his employment
following a Change in Control, Executive's experience and capabilities are
such
that Executive can obtain employment in a business engaged in other lines and/or
of a different nature than the Holding Company or its subsidiaries, and that
the
enforcement of a remedy by way of injunction will not prevent Executive from
earning a livelihood. Nothing herein will be construed as prohibiting
the Holding Company from pursuing any other remedies available for such breach
or threatened breach, including the recovery of damages from
Executive.
(b)
Executive recognizes and acknowledges that the knowledge of the business
activities and plans for business activities of the Holding Company or its
subsidiaries, as it may exist from time to time, is a valuable, special and
unique asset of the business of the Holding Company. Executive will not, during
or after the term of his employment, disclose any knowledge of the past,
present, planned or considered business activities of the Holding Company or
its
subsidiaries to any person, firm, corporation, or other entity for any reason
or
purpose whatsoever, unless expressly authorized by the Board of Directors or
required by law. Notwithstanding the foregoing, Executive may disclose any
knowledge of banking, financial and/or economic principles, concepts or ideas
which are not solely and exclusively derived from the business plans and
activities of the Holding Company or its subsidiaries. In the event of a breach
or threatened breach by Executive of the provisions of this Section 8, the
Holding Company will be entitled to an injunction restraining Executive from
disclosing, in whole or in part, the knowledge of the past, present, planned
or
considered business activities of the Holding Company or its subsidiaries or
from rendering any services to any person, firm, corporation or other entity
to
whom such knowledge, in whole or in part, has been disclosed or is threatened
to
be disclosed. Nothing herein will be construed as prohibiting the Holding
Company from pursuing other remedies available for such breach or threatened
breach, including the recovery of damages from Executive.
9.
NO
ATTACHMENT.
(a)
Except as required by law, no right to receive payments under this Agreement
shall be subject to anticipation, commutation, alienation, sale, assignment,
encumbrance, charge, pledge, or hypothecation, or to execution, attachment,
levy, or similar process or assignment by operation of law, and any attempt,
voluntary or involuntary, to affect any such action shall be null, void, and
of
no effect.
(b)
This Agreement shall be binding upon, and inure to the benefit of, Executive,
the Holding Company and their respective successors and
assigns.
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10.
MODIFICATION AND
WAIVER.
(a)
This Agreement may not be modified or amended except by an instrument in writing
signed by the parties hereto.
(b)
No term or condition of this Agreement shall be deemed to have been waived,
nor
shall there be any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver
or
estoppel. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to
the
specific term or condition waived and shall not constitute a waiver of such
term
or condition for the future or as to any act other than that specifically
waived.
11.
REQUIRED REGULATORY
PROVISIONS.
Any
payments made to Executive pursuant
to this Agreement, or otherwise, are subject to and conditioned upon compliance
with 12 U.S.C. §1828(k) and any rules and regulations promulgated thereunder,
including 12 C.F.R. Part 359.
12.
SEVERABILITY.
If,
for any reason, any provision of
this Agreement, or any part of any provision, is held invalid, such invalidity
shall not affect any other provision of this Agreement or any part of such
provision not held so invalid, and each such other provision and part thereof
shall, to the full extent consistent with law, continue in full force and
effect.
13.
HEADINGS FOR REFERENCE
ONLY.
The
headings of sections and paragraphs
herein are included solely for convenience of reference and shall not control
the meaning or interpretation of any of the provisions of this
Agreement.
14.
GOVERNING
LAW.
The
validity, interpretation,
performance, and enforcement of this Agreement shall be governed by the laws
of
the state of Delaware.
15.
ARBITRATION.
Any
dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a panel of three arbitrators sitting in a location
selected by Executive within fifty (50) miles from the location of the Holding
Company's main office, in accordance with the rules of the American Arbitration
Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
Executive shall be entitled to seek specific performance of his right to be
paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
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16.
PAYMENT OF COSTS
AND
LEGAL FEES.
All
reasonable costs and legal fees
paid or incurred by Executive pursuant to any dispute or question of
interpretation relating to this Agreement shall be paid or reimbursed by the
Holding Company if Executive is successful with respect to such dispute or
question of interpretation pursuant to a legal judgment, arbitration or
settlement.
17.
INDEMNIFICATION.
The
Holding Company shall provide
Executive (including his heirs, executors and administrators) with coverage
under a standard directors' and officers' liability insurance policy at its
expense and shall indemnify Executive (and his heirs, executors and
administrators) to the fullest extent permitted under Delaware law against
all
expenses and liabilities reasonably incurred by him in connection with or
arising out of any action, suit or proceeding in which he may be involved by
reason of his having been a director or officer of the Holding Company (whether
or not he continues to be a director or officer at the time of incurring such
expenses or liabilities); such expenses and liabilities to include, but not
to
be limited to, judgments, court costs and attorneys' fees and the costs of
reasonable settlements.
18.
SUCCESSOR TO THE
HOLDING COMPANY.
The
Holding Company shall require any
successor or assignee, whether direct or indirect, by purchase, merger,
consolidation or otherwise, to all or substantially all the business or assets
of the Holding Company, to expressly and unconditionally assume and agree to
perform the Holding Company's obligations under this Agreement in the same
manner and to the same extent that the Holding Company would be required to
perform such obligations if no such succession or assignment had taken
place.
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SIGNATURES
IN
WITNESS WHEREOF, Berkshire Hills
Bancorp, Inc. has caused this Agreement to be executed by its duly authorized
officer, and Executive has signed this Agreement, on the 1st day of August,
2007.
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ATTEST:
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BERKSHIRE
HILLS BANCORP, INC.
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/s/
Xxxxx X. Xxxxxxxx
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By:
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/s/
Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx, President and CEO
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SEAL
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WITNESS:
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EXECUTIVE
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/s/
Xxxxx X. Xxxxxxxx
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/s/
Xxxxx
X. Xxxxx
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Xxxxx
X. Xxxxx
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