BERKSHIRE BANK
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of June
27, 2000 (the "Effective Time"), by and between Berkshire Bank (the "Bank"), a
state-chartered savings institution, with its principal offices at 24 North
Street, Pittsfield, Massachusetts, 01202, Berkshire Hills Bancorp, Inc. (the
"Holding Company"), a corporation organized under the laws of the state of
Delaware and the holding company of the Bank, and Susan M. Santora
("Executive").
WHEREAS, the Bank believes that the assurance of Executive's employment
by the Bank for the term of this Agreement and the benefit of her business
experience are of material importance; and
WHEREAS, Executive desires to serve in the employ of the Bank on a
full-time basis for the term of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties to this Agreement hereby agree as follows:
1. POSITIONS AND RESPONSIBILITIES
(a) During the term of this Agreement Executive agrees to serve as Executive
Vice President - Retail Banking of the Bank. Executive shall render
administrative and management services to the Bank such as are customarily
performed by persons in a similar executive capacity.
(b) During the term of Executive's employment under this Agreement, except for
periods of absence occasioned by illness, vacation, and other reasonable leaves
of absence, Executive shall devote substantially all her business time,
attention, skill, and efforts to the faithful performance of her duties under
this Agreement, including activities and services related to the organization,
operation and management of the Bank, as well as participation in community,
professional and civic organizations; provided, however, that, with the approval
of the Board of Directors of the Bank (the "Board of Directors"), as evidenced
by a resolution of the Board of Directors, from time to time, Executive may
serve, or continue to serve, on the boards of directors of, and hold any other
offices or positions in, companies or organizations, which, in the judgment of
the Board of Directors, will not present any conflict of interest with the Bank
or materially affect the performance of Executive's duties pursuant to this
Agreement.
(c) Notwithstanding anything herein contained to the contrary, either Executive
or the Bank may terminate Executive's employment with the Bank at any time
during the term of this Agreement, subject to the terms and conditions of this
Agreement.
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2. TERM OF EMPLOYMENT
Executive's employment under this Agreement shall be deemed to have commenced as
of the Effective Time and shall continue for a period of thirty-six (36) full
calendar months from the Effective Time. Commencing on the date of execution of
this Agreement, the term of this Agreement shall extend for one day each day
until such time as the Board of Directors or Executive elects not to extend the
term of the Agreement by giving written notice to the other party, in which case
the term of this Agreement shall become fixed and shall end on the third
anniversary of the date of such written notice.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT
(a) Base Salary. The Holding Company shall pay Executive an annual salary of not
less than $125,510 ("Base Salary"). Executive's Base Salary shall be payable in
accordance with the normal payroll practices of the Bank. Whenever used in this
Agreement, Base Salary shall include any amounts of compensation deferred by
Executive under any tax-qualified retirement or welfare benefit plan or any
other deferred compensation arrangement maintained by the Bank. During the term
of this Agreement, the Board of Directors or a committee appointed by the Board
of Directors shall review Executive's Base Salary at least annually and the
Board of Directors or the committee may increase Executive's Base Salary at any
time. Any increase in Executive's Base Salary shall become a term of this
Agreement and shall be the new "Base Salary" for purposes of this Agreement.
(b) Incentive Compensation. In addition to her Base Salary, Executive shall be
entitled to participate in and shall receive payments under any incentive
compensation bonus program sponsored by the Bank. Executive's incentive
compensation shall be determined by the Board of Directors or a committee
appointed by the Board of Directors at a level appropriate for executive
officers.
(c) Vacation; Holidays; Sick Time. Executive shall be entitled to vacation in
accordance with the standard vacation policies of the Bank for senior executive
officers, but in no event less than four (4) weeks vacation during each year of
employment. Executive shall take vacation at a time mutually agreed upon by the
Bank and Executive. Executive shall receive her Base Salary and other benefits
during periods of vacation. Executive shall also be entitled to paid legal
holidays in accordance with the policies of the Bank. Executive shall also be
entitled to sick leave in accordance with the policies of the Bank for senior
executive officers, but in no event less than the number of days of sick leave
per year to which Executive was entitled at the Effective Time.
(d) Other Employee Benefits. In addition to any other compensation or benefits
provided for under this Agreement, Executive shall be entitled to continue to
participate in any employee benefit plans, arrangements and perquisites of the
Bank in which she participates or is eligible to participate at the Effective
Time. Executive shall also be entitled to participate in any employee benefits
or perquisites the Bank offers to full-time employees or executive management in
the future. The Bank will not, without Executive's prior written consent, make
any changes in such plans, arrangements
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or perquisites which would adversely affect Executive's rights or benefits
thereunder without separately providing for an arrangement that ensures
Executive receives or will receive the economic value that Executive would
otherwise lose as a result of such adverse effect, unless such change is general
in nature and applies in a nondiscriminatory manner to all employees covered by
the plan, arrangement or perquisite. Without limiting the generality of the
foregoing provisions of this paragraph, Executive shall be entitled to
participate in or receive benefits under all plans relating to stock options,
restricted stock awards, stock purchases, pension, profit sharing, employee
stock ownership, group life insurance, medical and other health and welfare
coverage that are made available by the Bank at the Effective Time or at any
time in the future during the term of this Agreement, subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. Nothing paid to Executive under any such plans or arrangements
will be deemed to be in lieu of other compensation to which Executive is
entitled under this Agreement.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION
(a) Upon the occurrence of an Event of Termination (as defined herein below)
during Executive's term of employment under this Agreement, the provisions of
this Section 4 shall apply. As used in this Agreement, an "Event of Termination"
shall mean and include any one or more of the following: (i) the termination of
Executive's full-time employment under this Agreement by the Bank for any reason
other than a termination governed by Section 7 of this Agreement; or (ii)
Executive's resignation from her employment with the Bank upon, any (A) failure
to re-appoint Executive to her positions set forth in Section 1 of this
Agreement, unless Executive consents to such event, (B) material change in
Executive's functions, duties, or responsibilities with the Bank or its
subsidiaries, which change would cause Executive's position(s) to become one of
lesser responsibility, importance, or scope, unless Executive consents to such
event, (C) relocation of Executive's principal place of employment by more than
twenty-five (25) miles from its location at the Effective Time, unless Executive
consents to such event, (D) material reduction (except to the extent provided
for in Section 3(d) of this Agreement) in the benefits and perquisites provided
to Executive from those being provided as of the Effective Time of this
Agreement, unless Executive consents to such event, (E) liquidation or
dissolution of the Holding Company or the Bank, or (F) breach of this Agreement
by the Bank or the Holding Company. Upon the occurrence of any event described
in clauses (A), (B), (C), (D), (E) or (F), above, Executive shall have the right
to terminate her employment under this Agreement by resignation upon not less
than sixty (60) days prior written notice given within six (6) full calendar
months after the applicable event giving rise to Executive's right to elect to
terminate her employment.
(b) Upon Executive's termination from employment in accordance with paragraph
(a) of this Section 4, on the Date of Termination, as defined in Section 8 of
the Agreement, the Bank shall be obligated to pay Executive, or, in the event of
her death following the Date of Termination, her beneficiary or beneficiaries,
or her estate, as the case may be, an amount equal to the sum of: (i) the Base
Salary and incentive compensation that would have been paid to Executive for the
remaining term of this Agreement had the Event of Termination not occurred
(based on Executive's then
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current Base Salary and most recently paid or accrued bonus at the time of the
Event of Termination); plus (ii) the value, as calculated by a recognized firm
customarily performing such valuation, of any stock options which as of the Date
of Termination, have been granted to Executive but are not exercisable by
Executive and the value of any restricted stock awards which have been granted
to Executive, but in which Executive does not have a non-forfeitable or
fully-vested interest as of the Date of Termination; plus (iii) the value of all
employee benefits that would have been provided to Executive for the remaining
term of this Agreement had an Event of Termination not occurred, based on the
most recent level of contribution, accrual or other participation by or on
behalf of Executive. At the election of Executive, which election is to be made
prior to the Date of Termination, such payments shall be made in a lump sum. In
the event that no election is made, payment to Executive will be made on a
monthly basis in approximately equal installments during the remaining unexpired
term of the Agreement. Such payments shall not be reduced in the event Executive
obtains other employment following termination of employment.
(c) In addition to the payments provided for in paragraph (b) of this Section 4,
upon Executive's termination of employment in accordance with the provisions of
paragraph (a) of this Section 4, to the extent that the Holding Company or the
Bank continues to offer any life, medical, health, disability or dental
insurance plan or arrangement in which Executive participates in on the last day
of her employment (each being a "Welfare Plan"), Executive and her covered
dependents shall continue participating in such Welfare Plans, subject to the
same premium contributions on the part of Executive as were required immediately
prior to the Event of Termination until the earlier of (i) her death (ii) her
employment by another employer other than one of which she is the majority owner
or (iii) the end of the remaining term of this Agreement. If the Holding Company
or Bank does not offer the Welfare Plans at any time after the Event of
Termination, then the Bank shall provide Executive with a payment equal to the
premiums for such benefits for the period which runs until the earlier of (i)
her death (ii) her employment by another employer other than one of which she is
the majority owner or (iii) the end of the remaining term of this Agreement.
5. CHANGE IN CONTROL
(a) For purposes of this Agreement, a "Change in Control" 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 Bank 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.
ss. 303.4(a) with respect to the Bank and the Board of Governors of the Federal
Reserve System ("FRB") at 12 C.F.R. ss. 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. ss. 225.11, as in
effect on the date hereof except for the Holding Company's acquisition of the
Bank; 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
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under the Exchange Act), directly or indirectly, of securities of the Bank or
the Holding Company representing 20% or more of the Bank's or the Holding
Company's outstanding securities except for any securities of the Bank purchased
by the Holding Company in connection with the conversion of the Bank to the
stock form and any securities purchased by any tax-qualified employee benefit
plan of the Bank; 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-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 she 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 Bank or the Holding Company or
similar transaction occurs in which the Bank 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 Bank 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 Bank or the Holding Company shall be
distributed; or (E) a tender offer is made for 20% or more of the voting
securities of the Bank or the Holding Company.
(b) If any of the events described in paragraph (a) of this Section 5,
constituting a Change in Control, have occurred or the Board of Directors
determines that a Change in Control has occurred, Executive shall be entitled to
the benefits provided in paragraphs (c), (d), (e), (f) and (g) of this Section 5
upon her termination of employment at any time during the term of this Agreement
on or after the date the Change in Control occurs due to (1) Executive's
dismissal or (2) Executive's resignation following any demotion, loss of title,
office or significant authority or responsibility, reduction in annual
compensation or benefits or relocation of her principal place of employment by
more than twenty-five (25) miles from its location immediately prior to the
Change in Control, unless such termination is because of her death or
Termination for Cause; provided, however, that such payments shall be reduced by
any payment made under Section 4 of this Agreement.
(c) Upon the occurrence of a Change in Control followed by Executive's
termination of employment, as provided in paragraph (b) of this Section 5, the
Bank shall pay Executive, or in the event of her subsequent death, her
beneficiary or beneficiaries, or her estate, as the case may be, as severance
pay or liquidated damages, or both, a sum equal to the greater of: 1) the
payments and benefits due for the remaining term of the Agreement or 2) three
(3) times Executive's average annual compensation from the Holding Company, the
Bank or their affiliates for the five (5) preceding taxable years or such lesser
number of years in the event that Executive shall have actually been employed by
the Bank for less than five (5) years. In determining Executive's average annual
compensation, 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 (whether paid or accrued for the applicable period),
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as well as, severance payments, retirement benefits, director or committee fees
and fringe benefits paid or to be paid to Executive or paid for Executive's
benefit during any such year, profit sharing, employee stock ownership plan and
other retirement contributions or benefits, including to any tax- qualified plan
or arrangement (whether or not taxable) made or accrued on behalf of Executive
of such year. At the election of Executive, which election is to be made prior
to or within thirty (30) days of the Date of Termination on or following a
Change in Control, such payment may be made in a lump sum (without discount for
early payment) on or immediately following the Date of Termination (which may be
the date a Change in Control occurs) or paid in equal monthly installments
during the sixty (60) months following Executive's termination. In the event
that no election is made, payment to Executive will be made on a monthly basis
during the sixty (60) months following Executive's termination.
(d) Upon the occurrence of a Change in Control, Executive will be entitled to
receive benefits due her under or contributed by the Bank on her behalf pursuant
to any retirement, incentive, profit sharing or other retirement, bonus,
performance, disability or other employee benefit plan maintained by the Bank on
Executive's behalf to the extent such benefits are not otherwise paid to
Executive under a separate provision of this Agreement. In addition, for
purposes of determining her vested accrued benefit, Executive shall be credited
either under any defined benefit pension plan maintained by the Bank or, if not
permitted under such plan, under a separate arrangement, with the additional
"years of service" that she would have earned for vesting and benefit accrual
purposes for the remaining term of the Agreement had her employment not
terminated.
(e) Upon the occurrence of a Change in Control and Executive's termination of
employment in connection therewith, the Bank will cause to be continued life,
medical and disability coverage substantially identical to the coverage
maintained by the Bank for Executive and any of her dependents covered under
such plans prior to the Change in Control. Such coverage and payments shall
cease upon the expiration of thirty-six (36) full calendar months following the
Date of Termination. In the event Executive's participation in any such plan or
program is barred by reason of her not being an employee, the Bank shall arrange
to provide Executive and her dependents with benefits substantially similar to
those of which Executive and her dependents would otherwise have been entitled
to receive under such plans and programs from which their continued
participation is barred or provide their economic equivalent.
(f) The use or provision of any membership, license, automobile use, or other
perquisites shall be continued during the remaining term of the Agreement on the
same financial terms and obligations as were in place immediately prior to the
Change in Control. To the extent that any item referred to in this paragraph
will, at the end of the term of this Agreement, no longer be available to
Executive, Executive will have the option to purchase all rights then held by
the Bank to such item for a price equal to the then fair market value of the
item.
(g) In the event that Executive is receiving monthly payments pursuant to
Section 5(c) hereof, on an annual basis, thereafter, between the dates of
January 1 and January 31 of each year, Executive shall elect whether the balance
of the amount payable under the Agreement at that time shall be paid
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in a lump sum or on a pro rata basis pursuant to such section. Such election
shall be irrevocable for the year for which such election is made.
6. CHANGE IN CONTROL RELATED PROVISIONS
Notwithstanding the provisions of Section 5, in no event shall the
aggregate payments or benefits to be made or afforded to Executive under said
paragraphs (the "Termination Benefits") constitute an "excess parachute payment"
under Section 280G of the Internal Revenue Code of 1986, as amended, or any
successor thereto, and in order to avoid such a result, Termination Benefits
will be reduced, if necessary, to an amount (the "Non-Triggering Amount"), the
value of which is one dollar ($1.00) less than an amount equal to three (3)
times Executive's "base amount," as determined in accordance with said Section
280G. The allocation of the reduction required hereby among the Termination
Benefits provided by Section 5 shall be determined by Executive.
7. TERMINATION FOR CAUSE
The term "Termination for Cause" shall mean termination because of
Executive's personal dishonesty, willful misconduct, any 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. Notwithstanding the foregoing, Executive shall not
be deemed to have been terminated for cause unless and until there shall have
been delivered to her a Notice of Termination which shall include a copy of a
resolution duly adopted by the affirmative vote of not less than three-fourths
(3/4) of the members of the Board of Directors at a meeting of the Board of
Directors 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
of Directors), finding that in the good faith opinion of the Board of Directors,
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 pursuant to
Section 8 hereof through the Date of Termination, stock options granted to
Executive under any stock option plan shall not be exercisable nor shall any
unvested awards granted to Executive under any stock benefit plan of the Bank,
vest. At the Date of Termination, such stock options and any such unvested
awards shall become null and void and shall not be exercisable by or delivered
to Executive at any time subsequent to such Termination for Cause.
8. NOTICE
(a) Any purported termination by the Bank or by Executive 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.
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(b) "Date of Termination" shall mean the date specified in the Notice of
Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
(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, except upon the occurrence of a
Change in Control and voluntary termination by Executive in which case the Date
of Termination shall be the date specified in the Notice, 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, the Bank will continue to pay
Executive her full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue her
as a participant in all compensation, benefit and insurance plans in which she
was participating when the notice of dispute was given, until the dispute is
finally resolved in accordance with this Agreement. Amounts paid under this
Section 8 are in addition to all other amounts due under this Agreement and
shall not be offset against or reduce any other amounts due under this
Agreement.
9. POST-TERMINATION OBLIGATIONS
All payments and benefits to Executive under this Agreement shall be subject to
Executive's compliance with this Section 9 for one (1) full year after the
earlier of the expiration of this Agreement or termination of Executive's
employment with the Bank. Executive shall, upon reasonable notice, furnish such
information and assistance to the Bank as may reasonably be required by the Bank
in connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party.
10. NON-COMPETITION AND NON-DISCLOSURE
(a) Upon any termination of Executive's employment hereunder pursuant to Section
4 hereof, Executive agrees not to compete with the Bank for a period of one (1)
year following such termination in any city, town or county in which Executive's
normal business office is located and the Bank 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 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 Bank. The parties hereto, recognizing that
irreparable injury will result to the Bank, its business and property in the
event of Executive's breach of this Subsection 10(a) agree that in the event of
any such breach by Executive, the Bank will be entitled, in addition
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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 her employment
pursuant to Section 4 of this Agreement, 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 Bank, 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
or its subsidiaries from pursuing any other remedies available to the Bank 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 Bank as it may exist from
time to time, is a valuable, special and unique asset of the business of the
Bank. Executive will not, during or after the term of her employment, disclose
any knowledge of the past, present, planned or considered business activities of
the Bank 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 Bank. In the event of a breach or threatened breach by
Executive of the provisions of this Section 10, the Bank 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
Bank or from rendering any services to any person, firm, corporation, 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
Bank from pursuing any other remedies available to the Bank for such breach or
threatened breach, including the recovery of damages from Executive.
11. DEATH AND DISABILITY
(a) Death. Notwithstanding any other provision of this Agreement to the
contrary, in the event of Executive's death during the term of this Agreement,
the Bank shall immediately pay her estate any salary and bonus accrued but
unpaid as of the date of her death, and, for a period of six (6) months after
Executive's death, the Bank shall continue to provide medical insurance benefits
existing on the date of her death and shall pay Executive's designated
beneficiary the Base Salary that would otherwise be payable to her pursuant to
Section 3 of this Agreement. This provision shall not negate any rights
Executive or her beneficiaries may have to death benefits under any employee
benefit plan of the Bank.
(b) Disability
(i) Disability. If during the term of Executive's employment Executive
begins to receive disability benefits under the long-term disability insurance
policy maintained by the Bank (the "Disability Policy"), then the Bank's
obligation to pay Executive her Base Salary shall, as of the date such benefits
first become payable under the Disability Policy on account of Executive's
disability,
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be reduced to equal the difference between Executive's Base Salary and amounts
received under all long-term disability policies, to the extent that such salary
payments do not result in a reduction in disability payments.
(ii) Incapacity. If, as a result of Disability, Executive is determined
by a physician chosen by the Bank and reasonably acceptable to Executive or
Executive's personal representatives not to be capable of fulfilling Executive's
responsibilities as an officer of the Bank ("Incapacity Determination"), (1)
Executive shall continue to be covered by the Bank's medical insurance and life
insurance policies until the third anniversary of the Incapacity Determination,
and (2) the Bank's obligation to provide Executive with other employment-related
fringe benefits hereunder shall cease as of the date of such Incapacity
Determination ("Incapacity Determination Date"). Prior to the Incapacity
Determination Date, the Bank shall continue to pay Executive her annual salary
in usual installments and Executive shall continue to receive all other
employment-related fringe benefits due to Executive in accordance with this
Agreement.
(iii) Termination of Employment by Reason of Incapacity. At any time
from and after the Incapacity Determination Date, the Board of Directors, in its
discretion, may elect to terminate Executive's employment by reason of such
incapacity. Any such termination as a result of incapacity shall be considered
to be an Event of Termination in accordance with Section 4 of this Agreement.
12. SOURCE OF PAYMENTS
(a) All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank or subject to Section 12(b). The
Holding Company, however, unconditionally guarantees payment and provision of
all amounts and benefits due hereunder to Executive and, if such amount and
benefits due from the Bank are not timely paid or provided by the Bank, such
amounts and benefits shall be paid or provided by the Holding Company.
(b) Notwithstanding any provision herein to the contrary, to the extent that
payments and benefits, as provided by this Agreement, are paid to or received by
Executive under an employment agreement in effect between Executive and the
Holding Company, such compensation payments and benefits paid by the Holding
Company will be subtracted from any amount due simultaneously to Executive under
similar provisions of this Agreement. Payments pursuant to this Agreement and
the Holding Company agreement shall be allocated in proportion to the level of
activity and the time expended on such activities by Executive as determined by
the Holding Company and the Bank.
13. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS
This Agreement contains the entire understanding between the parties hereto and
supersedes any prior employment agreement between the Bank or any predecessor of
the Bank 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
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mean that Executive is subject to receiving fewer benefits than those available
to her without reference to this Agreement.
14. 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
and the Bank and their respective successors and assigns.
15. 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 as to any act other than that specifically waived.
16. 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.
17. 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.
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18. GOVERNING LAW
This Agreement shall be governed by the laws of the Commonwealth of
Massachusetts, without regard to principles of conflicts of law of that state.
19. 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 Bank, 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 her 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.
In the event any dispute or controversy arising under or in connection with
Executive's termination is resolved in favor of Executive, whether by judgment,
arbitration or settlement, Executive shall be entitled to the payment of all
back-pay, including salary, bonuses and any other cash compensation, fringe
benefits and any compensation and benefits due Executive under this Agreement.
20. 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 Bank, if Executive is successful with respect to such
dispute or question of interpretation pursuant to a legal judgment, arbitration
or settlement.
21. INDEMNIFICATION
(a) The Bank shall provide Executive (including her heirs, executors and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense and shall indemnify Executive (and her
heirs, executors and administrators) to the fullest extent permitted under
federal law against all expenses and liabilities reasonably incurred by her in
connection with or arising out of any action, suit or proceeding in which she
may be involved by reason of her having been a director or officer of the Bank
(whether or not she 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 cost of reasonable settlements.
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(b) Any payments made to Executive pursuant to this Section 21 are subject to
and conditioned upon compliance with 12 U.S.C. Section 1828(k) and 12 C.F.R.
Part 359 and any rules or regulations promulgated thereunder.
22. SUCCESSOR TO THE BANK
The Bank 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 Bank or the Holding Company, to expressly and
unconditionally assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank 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 Bank has caused this Agreement to be
executed and its seal to be affixed hereunto by its duly authorized officer and
Executive has signed this Agreement, on the 16th day of August, 2000.
ATTEST: BERKSHIRE BANK
/s/Rose A. Borotto By: /s/James A. Cunningham, Jr.
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Rose A. Borotto James A. Cunningham, Jr.
Corporate Secretary For the Entire Board of Directors
[SEAL]
ATTEST: BERKSHIRE HILLS BANCORP, INC.
(Guarantor)
/s/Rose A. Borotto By: /s/James A. Cunningham, Jr.
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Rose A. Borotto James A. Cunningham, Jr.
Corporate Secretary For the Entire Board of Directors
[SEAL]
WITNESS: EXECUTIVE
/s/Rose A. Borotto By: /s/Susan M. Santora
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Rose A. Borotto Susan M. Santora
Corporate Secretary
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