BERKSHIRE HILLS BANCORP, INC. THREE YEAR CHANGE IN CONTROL AGREEMENT
Exhibit
10.4
BERKSHIRE
HILLS BANCORP, INC.
This
AGREEMENT is made effective as of October 31, 2006, 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 Xxxx
X. Xxxxxx
("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:
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1.
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TERM
OF AGREEMENT.
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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.
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2.
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CHANGE
IN CONTROL.
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(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”)
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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 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.
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TERMINATION
BENEFITS.
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(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.
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4.
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CHANGE
IN CONTROL-RELATED PROVISIONS.
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(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.
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(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 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
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all
costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and indemnify and hold Executive harmless, on
an
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.
(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.
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5.
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NOTICE
OF TERMINATION.
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(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
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Executive's
termination exists, the "Date of Termination" shall be determined in accordance
with Section 5(c) of this Agreement.
(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.
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6.
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SOURCE
OF PAYMENTS.
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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.
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7.
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EFFECT
ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.
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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.
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8.
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NON-COMPETITION
AND NON-DISCLOSURE.
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(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
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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 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.
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9.
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NO
ATTACHMENT.
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(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.
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MODIFICATION
AND WAIVER.
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(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.
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11.
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REQUIRED
REGULATORY PROVISIONS.
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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.
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12.
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SEVERABILITY.
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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.
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13.
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HEADINGS
FOR REFERENCE ONLY.
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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.
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14.
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GOVERNING
LAW.
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The
validity, interpretation, performance, and enforcement of this Agreement
shall
be governed by the laws of the state of Delaware.
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15.
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ARBITRATION.
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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.
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PAYMENT
OF COSTS AND LEGAL FEES.
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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.
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17.
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INDEMNIFICATION.
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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.
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18.
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SUCCESSOR
TO THE HOLDING COMPANY.
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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 31st day of October, 2006.
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ATTEST:
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BERKSHIRE
HILLS BANCORP, INC.
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| /s/ Xxxxx X. Chavary |
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:
|
EXECUTIVE
|
||
| /s/ Xxxxxx X. Xxxxxx | /s/ Xxxx X. Xxxxxx | ||
|
Xxxx
X. Xxxxxx
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11
