NON-SOLICITATION AND NON-COMPETITION AGREEMENT
This Non-Solicitation and
Non-Competition Agreement (this “Agreement”) dated October 21, 2010 between
BERKSHIIRE HILLS BANCORP, INC., a Delaware corporation with a principal place of
business located in Pittsfield, Massachusetts and XXXXXX X. XXXXXX of
Longmeadow, Massachusetts (“Barney”).
PRELIMINARY
STATEMENT
The Company (defined for purposes of
this Agreement to mean and include Berkshire Hills Bancorp, Inc., together with
its primary subsidiaries Berkshire Bank and Berkshire Insurance Group, Inc.,
their predecessors and successors, all of their past, present, and future
shareholders, trustees, directors, officers, employees, representatives,
attorneys, agents and assigns, and all of their parent or controlling
corporations, and their affiliates and subsidiaries, or any other legal entity
describing Berkshire Bank, Berkshire Insurance Group, Inc. and Berkshire Hills
Bancorp Inc.'s organization or through which they conduct business) and Barney
are parties to a Letter Agreement of even date herewith (the “Separation
Agreement”), which is incorporated herein by reference; and
Pursuant
to the terms of the Separation Agreement, the Company has agreed to pay Barney
Separation Pay in the gross amount of $230,000, less customary payroll taxes and
deductions; and
Pursuant to the terms of the Separation
Agreement, Barney has agreed to enter into a this Agreement in partial
consideration for the Company’s agreement to pay Barney the Separation Pay;
and
The duration of this Agreement is one
(1) year from the Termination Date set forth in the Separation Agreement;
provided, however, that notwithstanding anything else herein to the contrary
Barney’s obligations under Section 3 of this Agreement shall continue in
perpetuity; and
Barney agrees and acknowledges that by
virtue of his position in the Company, he is familiar with and in possession of
the Company's trade secrets, customer information, and other confidential
information which are valuable to the Company, and that their goodwill,
protection, and maintenance constitute a legitimate business interest of the
Company, to be protected by the non-competition restrictions set forth herein.
Barney agrees and acknowledges that the non-competition restrictions set forth
in this Agreement are reasonable and necessary and do not impose undue hardship
or burdens on him.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Non-Competition.
(a) Barney
hereby agrees that, beginning on January 8, 2011 and for a period of
approximately 1 year thereafter - until December 31, 2011 – (the
“Non-Competition Period”), Barney shall not, directly or indirectly own, manage,
operate, join, be employed by, perform services, consulting or other work for,
or provide any assistance to (the “Prohibited Activities”), any corporation,
partnership, or other entity or person which owns, manages, operates, controls,
participates in the ownership, management, operation or control of, is employed
by, performs services or other work for, provides any assistance to, is engaged
with respect to any banking, insurance, wealth management or financial services
business including, but not limited to, banks, insurance businesses or credit
unions, which engages in such banking, insurance, wealth management or financial
services business and has an office or offices located within Berkshire County,
Massachusetts (a “Competitor Employer”).
(b) Barney
acknowledges that he has carefully read and considered the provisions of this
Agreement and, having done so, agrees that the restrictions set forth herein and
the geographic areas of restriction are fair and reasonable and are reasonably
required for the protection of the interests of the Company.
(c) In
the event that the provisions of this Agreement relating to the time periods
and/or geographic areas of restriction shall be declared by a court of competent
jurisdiction to exceed the maximum time period or areas that such court deems
reasonable and enforceable, the time period and/or geographic areas of
restriction deemed reasonable and enforceable by the court shall become and
thereafter be the maximum time period and/or geographic areas under this
Agreement.
(d) In
the event that a Competitor Employer contacts Barney for the purpose of
requesting that Barney engage in Prohibited Activities with a Competitor
Employer during the Non-Competition Period, Barney may request that the Company
waive the provisions of Section 1(a) of this Agreement. The Company
shall consider Barney’s request for a waiver, but is under no obligation to
grant the waiver. The Company shall have absolute and sole discretion
to decide whether or not to grant the waiver. If, in its absolute and
sole discretion, the Company decides to grant the waiver request, the waiver
shall not become effective until Barney and the Company shall have entered into
a written modification of this Agreement, signed by both parties.
2. Non-Solicitation. Barney
hereby agrees that, beginning on January 8, 2011 and for a period of
approximately 1 year thereafter - until December 31, 2011 - Barney will not,
directly or indirectly, on his own behalf or on behalf of any third person or
entity, and whether through his own efforts or through the efforts or assistance
of any other person or entity (including, without limitation, any person
employed by or associated with any entity with whom he is or may become employed
or associated):
(a) Solicit
or accept any banking, insurance, wealth management or financial services
business from (i) any individual or entity that was a client or customer of the
Company at any time during the six (6) months immediately prior to the end of
Barney’s employment with the Company, or (ii) any individual or entity that was
a prospect of the Company at any time during the twelve (12) months immediately
prior to the end of Barney’s employment with the Company, if he directly
solicited such prospect or if he directly or indirectly, in whole or in part,
supervised or participated in solicitation activities related to such prospect;
provided, however, that Barney may accept employment with a Company client or
customer or prospect that is not a Competitor Employer; or
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(b) Participate
in hiring, hire or employ an employee or consultant of the Company, or solicit,
encourage or induce any such employee or consultant to terminate his or her
employment or other relationship with the Company;
(c) Interfere with any
relationship, contractual or otherwise, between the Company and any other party,
including, without limitation, any supplier or vendor of the Company, or solicit such party to
discontinue or reduce its business with the Company.
Barney
also agrees that for a period of six (6) months after his employment with the
Company ends, he will inform his potential and actual future employers of his
obligations under this Agreement.
3. Protection and
Non-Disclosure of Confidential Information. Barney hereby
agrees and acknowledges that his employment with the Company has created a
continuing relationship of confidence and trust between Barney and the Company
with respect to Confidential Information. Barney hereby warrants and
agrees that he will keep in confidence and trust at all times after his
employment with the Company shall terminate all Confidential Information known
to him, and will not use or disclose such Confidential Information without the
prior written consent of the Company. Nothing in this Agreement is
intended to or shall preclude Barney from providing truthful testimony or
providing truthful information in response to a valid subpoena, court order or
request of any federal, state or local regulatory or quasi-regulatory authority;
provided, however, that, to the extent permitted by law, Barney has first
provided to the Company as much advance notice as practicable of any such
compelled disclosure, and further that Barney agrees to honor any order or
ruling obtained by the Company quashing or barring any such subpoena, court
order or request for disclosure. As used in this Agreement,
“Confidential Information” means any and all information belonging to the
Company, which is of value to the Company and the disclosure of which could
result in a competitive or other disadvantage to the
Company. Examples of Confidential Information are, without
limitation, financial information, reports and forecasts; trade secrets,
know-how and other intellectual property; software; market or sales information
or plans; customer lists and information; business plans, prospects and
opportunities; and possible acquisitions or dispositions of businesses or
facilities that have been discussed by the management of the
Company. Confidential Information includes information Barney
developed or learned in the course of his employment with and service as a
director of the Company, as well as other information to which Barney may have
had access in connection with his employment or service as a
director. Confidential Information also includes the confidential
information of others, including, but not limited to, customers of the Company,
with whom the Company has a business relationship. Notwithstanding
the foregoing, Confidential Information does not include information in the
public domain, unless such information entered the public domain due to a breach
of Barney’s obligations under this Agreement regarding Confidential Information
or otherwise.
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4. Consideration. As
consideration for the obligations of Barney hereunder, the Company shall satisfy
its obligations to Barney as described in the Separation Agreement.
5. Defaults. Barney
shall be deemed to be in default of his obligations under this Agreement (a
“Default”), if Barney shall have breached his obligations under Section 1 hereof
and such breach shall continue for 15 days after the Company has given Barney
notice of same. Notwithstanding anything to the contrary contained in
the foregoing sentence, Barney shall be deemed to be in default of his
obligations under this Agreement (also a “Default”) immediately upon any breach
of his obligations under Sections 2 and 3 hereof, and the Company shall not be
obligated to provide any notice thereof or cure period.
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6. Remedies.
(a) Barney
acknowledges that in the event of an actual or threatened Default, the Company’s
remedies at law will be inadequate. Accordingly, the Company shall be
entitled, at its election, to enjoin any actual or threatened Default, and/or to
obtain specific performance of Barney’s obligations under this Agreement without
the necessity of showing any actual damage or the inadequacy of monetary
damages. Any such equitable remedy shall not constitute the sole and
exclusive remedy for any such Default, and the Company shall be entitled to
pursue any other remedies at law or in equity. In the event of a
Default by Barney, the Company shall be entitled to (a) recover from Barney its
costs, including reasonable attorneys’ fees, incurred in enforcing its rights
under this Agreement and (b) cease making payments to Barney under paragraph 2
of the Separation Agreement without invalidating any portion of the Separation
Agreement or this Agreement.
(b) Any
court proceeding to enforce this Agreement may be commenced by either party in
the Berkshire Superior Court, Pittsfield, Commonwealth of
Massachusetts. The parties hereto submit to the exclusive
jurisdiction of such court and waive any objection which they may have to the
pursuit of any such proceeding in such court.
7. Entire
Agreement. This Agreement, together with the Separation
Agreement, constitutes the entire agreement between the parties relating to the
subject matter hereof and supersedes any and all previous agreements, oral and
written, between the parties with respect to the subject matter
hereof.
8. Non-Waiver. The
failure by a party in one or more instances to insist upon performance of any of
the terms, covenants or conditions of this Agreement, or to exercise any rights
or privileges conferred in this Agreement, or the seek enforcement of any of the
terms, covenants or conditions of this Agreement following any breach of any of
the terms, covenants, conditions, rights or privileges, shall non constitute,
nor be deemed to constitute, a waiver of any of the terms, covenants or
conditions of this Agreement, but the same shall continue and remain in full
force and effect as if no such failure or forbearance had
occurred. No waiver of the terms, covenants or conditions of this
Agreement shall be effective unless it is in writing and signed by an authorized
representative of the waiving party.
9. Applicable
Law. This Agreement shall be governed and controlled as to
validity, enforcement, interpretation, construction, effect and in all other
respects by the internal laws of the Commonwealth of Massachusetts applicable to
contracts made and wholly to be performed in the Commonwealth.
10. Binding Effect;
Benefit. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors, assigns, heirs
and personal representatives. Nothing in this Agreement, express or
implied, is intended to confer on any person other than the parties hereto and
their respective successors, assigns, heirs and personal representatives any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
11. Amendments. This
Agreement shall not be modified or amended except pursuant to an instrument in
writing executed and delivered on behalf of each of the parties
hereto.
12. Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making the determination
of invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
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13. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as a sealed instrument as of the date first above
written.
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/s/ Xxxxxx x. Xxxxxx | ||
| XXXXXX X. XXXXXX | |||
| BERKSHIRE HILLS BANCORP, INC., | |||
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By:
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/s/ Xxxxxxx X. Xxxx | |
| Print name: Xxxxxxx X. Xxxx | |||
| Its: President and CEO | |||
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