BERKSHIRE HILLS BANCORP, INC.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made effective as of June
27, 2000 (the "Effective Time"), by and between Berkshire Hills Bancorp, Inc.
(the "Holding Company"), a corporation organized under the laws of Delaware,
with its principal offices at 24 North Street, Pittsfield, Massachusetts, 01202,
and James A. Cunningham, Jr. ("Executive"). Any reference to the "Bank" herein
shall mean Berkshire Bank or any successor to Berkshire Bank.
WHEREAS, the Holding Company believes that the assurance of Executive's
employment by the Holding Company for the term of this Agreement and the benefit
of his business experience are of material importance; and
WHEREAS, Executive desires to serve in the employ of the Holding
Company 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 President and
Chief Executive Officer of the Holding Company. Executive shall render
administrative and management services to the Holding Company such as are
customarily performed by persons in a similar executive capacity. During the
term of this Agreement, Executive also agrees to serve, if elected or appointed,
as an officer and/or director of any subsidiary of the Holding Company and in
such capacity will carry out such duties and responsibilities reasonably
appropriate to that office.
(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 his business time,
attention, skill, and efforts to the faithful performance of his duties under
this Agreement, including activities and services related to the organization,
operation and management of the Holding Company and its subsidiaries, as well as
participation in community, professional and civic organizations; provided,
however, that, with the approval of the Board of Directors of the Holding
Company (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 Holding Company or its subsidiaries,
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 Holding
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Company may terminate Executive's employment with the Holding Company at any
time during the term of this Agreement, subject to the terms and conditions of
this Agreement.
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 $320,000 ("Base Salary"). Executive's Base Salary shall be payable in
accordance with the normal payroll practices of the Holding Company. 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 Holding Company
or 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 his Base Salary, Executive shall be
entitled to participate in and shall receive payments under any incentive
compensation bonus program sponsored by the Holding Company or 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) Supplemental Pension and Life Insurance. The Holding Company or the Bank
shall continue to provide to Executive, without cost, the supplemental pension
and life insurance arrangements in place at the Effective Time. The supplemental
pension and life insurance arrangements shall be governed by the terms of the
specific agreements in effect at the Effective Time.
(d) Club Dues. In addition to any other compensation provided for under this
Agreement, the Holding Company or the Bank shall pay Executive an amount
sufficient, on an after-tax basis, to maintain his membership at the Country
Club of Pittsfield.
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(e) Automobile and Cellular Phone. The Holding Company or the Bank shall provide
Executive with, and Executive shall have the primary use of, an automobile owned
or leased by the Holding Company or the Bank and the Holding Company or the Bank
shall pay (or reimburse Executive) for all expenses of insurance, registration,
operation and maintenance of the automobile. Executive shall comply with
reasonable reporting and expense limitations on the use of such automobile, as
the Board of Directors may establish from time to time, and the Holding Company
or the Bank shall annually include on Executive's Form W-2 any amount
attributable to Executive's personal use of such automobile. The Holding Company
or the Bank shall also provide Executive with a cellular phone and shall pay (or
reimburse Executive) for all reasonable expenses related to the business use of
such phone.
(f) Vacation; Holidays; Sick Time. Executive shall be entitled to vacation in
accordance with the standard vacation policies of the Holding Company or 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 Holding Company or the Bank and Executive. Executive
shall receive his 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 Holding Company or the Bank. Executive shall also be entitled to
sick leave in accordance with the policies of the Holding Company or 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.
(g) 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
Holding Company or the Bank in which he participates or is eligible to
participate at the Effective Time. Executive shall also be entitled to
participate in any employee benefits or perquisites the Holding Company or the
Bank offers to full-time employees or executive management in the future. The
Holding Company or the Bank will not, without Executive's prior written consent,
make any changes in such plans, arrangements 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. 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, supplemental
retirement, group life insurance, medical and other health and welfare coverage
that are made available by the Holding Company or 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.
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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 Holding Company for
any reason other than a termination governed by Section 7 of this Agreement; or
(ii) Executive's resignation from his employment with the Holding Company upon,
any (A) failure to elect or re-elect or to appoint or re-appoint Executive to
his 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 Holding Company 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 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 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 his
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 his
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 Holding Company shall be obligated to pay Executive, or, in
the event of his death following the Date of Termination, his beneficiary or
beneficiaries, or his 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 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.
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(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 his employment (each being a "Welfare Plan"), Executive and his 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) his death (ii) his
employment by another employer other than one of which he 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 Holding Company shall provide Executive with a payment
equal to the premiums for such benefits for the period which runs until the
earlier of (i) his death (ii) his employment by another employer other than one
of which he 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 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 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 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
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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 his 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 his 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 his 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
Holding Company shall pay Executive, or in the event of his subsequent death,
his beneficiary or beneficiaries, or his 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 Holding Company or 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), 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 him under or contributed by the Bank or the
Holding Company on his behalf pursuant to any
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retirement, incentive, profit sharing or other retirement, bonus, performance,
disability or other employee benefit plan maintained by the Holding Company or
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 his 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 he would have earned for vesting and benefit accrual
purposes for the remaining term of the Agreement had his employment not
terminated.
(e) Upon the occurrence of a Change in Control and Executive's termination of
employment in connection therewith, the Holding Company will cause to be
continued life, medical and disability coverage substantially identical to the
coverage maintained by the Holding Company or the Bank for Executive and any of
his 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, the Holding Company shall
arrange to provide Executive and his dependents with benefits substantially
similar to those of which Executive and his 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 Holding Company or 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 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
(a) Notwithstanding the preceding provisions of Section 5 of this Agreement, for
any taxable year in which Executive shall be liable for the payment of an excise
tax under Section 4999 of the Code (or any successor provision thereto), with
respect to any payment in the nature of the compensation made by the Holding
Company or its subsidiaries to (or for the benefit of) Executive pursuant to
this Agreement or otherwise, the Holding Company (or any successor thereto)
shall pay to Executive an amount determined under the following formula:
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An amount equal to: (E x P) + X
WHERE:
X = E x P
-----------------------------------------
1 - [(FI x (1 - SLI)) + SLI + E + M + PO]
E = the rate at which the excise tax is assessed under
Section 4999 of the Code;
P = the amount with respect to which such excise tax is
assessed, determined without regard to this Section
6;
FI = the highest marginal rate of federal income,
employment, and other taxes (other than taxes imposed
under Section 4999 of the Code) applicable to
Executive for the taxable year in question (including
any effective increase in Executive's tax rate
attributable to the disallowance of any deduction);
SLI = the sum of the highest marginal rates of income and
payroll tax applicable to Executive under applicable
state and local laws for the taxable year in question
(including any effective increase in Executive's tax
rate attributable to the disallowance of any
deduction);
M = highest marginal rate of Medicare tax; and
PO = adjustment for phase out of or loss of deduction,
personal exemption or other similar items.
With respect to any payment in the nature of compensation that is made to (or
for the benefit of) Executive under the terms of this Agreement or otherwise and
on which an excise tax under Section 4999 of the Code may or will be assessed,
the payment determined under this Section 6 shall be made to Executive on the
earliest of (i) the date the Holding Company is required to withhold such tax,
(ii) the date the tax is required to be paid by Executive, or (iii) at the time
of the Change in Control. It is the intention of the parties that the Holding
Company provide Executive with a full tax gross-up under the provisions of this
Section 6, so that on a net after-tax basis, the result to Executive shall be
the same as if the excise tax under Section 4999 (or any successor provisions)
of the Code had not been imposed. The payment may be adjusted, as appropriate,
if alternative minimum tax rules under the Code are applicable to Executive.
(b) Notwithstanding the foregoing, if it is (i) initially determined by the
Holding Company's tax advisors that no excise tax under Section 4999 is due with
respect to any payment or benefit described in the first paragraph of Section
6(a) and, thereafter, it is determined in a final judicial determination or a
final administrative settlement that the Section 4999 excise tax is due with
respect to such payments or benefits or (ii) subsequently determined in a final
judicial determination or a
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final administrative settlement to which Executive is a party that the excise
tax under Section 4999 is due or that the excess parachute payment as defined in
Section 4999 of the Code is more than the amount determined as "P", above (such
revised determination under (i) or (ii) above being thereafter referred to as
the "Determinative Excess Parachute Payment"), then the tax advisors of the
Holding Company (or any successor thereto) shall determine the amount (the
"Adjustment Amount"), the Holding Company (or its successor) must pay to
Executive, in order to put Executive in the same position as Executive would
have been if the amount determined as "P" above had been equal to the
Determinative Excess Parachute Payment. In determining the Adjustment Amount,
the tax advisors shall take into account any and all taxes (including any
penalties of any nature and interest) paid or payable by Executive in connection
with such final judicial determination or final administrative settlement. As
soon as practicable after the Adjustment Amount has been so determined, the
Holding Company shall pay the Adjustment Amount to Executive.
(c) The Holding Company (or its successor) shall indemnify and hold Executive
harmless from any and all losses, costs and expenses (including without
limitation, reasonable attorney's fees, reasonable accountant's fees, interest,
fines and penalties of any kind) which Executive incurs as a result of any
administrative or judicial review of Executive's liability under Section 4999 of
the Code by the Internal Revenue Service or any comparable state agency through
and including a final judicial determination or final administrative settlement
of any dispute arising out of Executive's liability for the Section 4999 excise
tax or otherwise relating to the classification for purposes of Section 280G of
the Code of any payment or benefit in the nature of compensation made or
provided to Executive by the Holding Company or any successor thereto. Executive
shall promptly notify the Holding Company in writing whenever Executive receives
notice of the commencement of any judicial or administrative proceeding, formal
or informal, in which the federal tax treatment under Section 4999 of the Code
of any amount paid or payable under this Supplemental Agreement is being
reviewed or is in dispute (including a notice of audit or other inquiry
concerning the reporting of Executive's liability under Section 4999). The
Holding Company (or its successor) may assume control at its expense over all
legal and accounting matters pertaining to such federal or state tax treatment
(except to the extent necessary or appropriate for Executive to resolve any such
proceeding with respect to any matter unrelated to amounts paid or payable
pursuant to this contract) and Executive shall cooperate fully with the Holding
Company in any such proceeding. Executive shall not enter into any compromise or
settlement or otherwise prejudice any rights the Holding Company (or its
successor) may have in connection therewith without prior consent to the Holding
Company (or its successor). In the event that the Holding Company (or any
successor thereto) elects not to assume control over such matters, the Holding
Company (or any successor thereto) shall promptly reimburse Executive for all
expenses related thereto as and when incurred upon presentation of appropriate
documentation relating thereto.
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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 him 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,
the Holding Company or any subsidiary or affiliate thereof, 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 Holding Company 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.
(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
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with reasonable diligence. Notwithstanding the pendency of any such dispute, the
Holding Company will continue to pay Executive his full compensation in effect
when the notice giving rise to the dispute was given (including, but not limited
to, Base Salary) and continue him as a participant in all compensation, benefit
and insurance plans in which he 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 Holding Company. Executive shall, upon reasonable notice,
furnish such information and assistance to the Holding Company as may reasonably
be required by the Holding Company 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 Holding Company or its
subsidiaries 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 Holding Company or any of 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 period
and within said cities, towns and counties, Executive shall not work for or
advise, consult or otherwise serve with, directly or indirectly, any entity
whose business materially competes with the depository, lending or other
business activities of the Holding Company or its subsidiaries. The parties
hereto, recognizing that irreparable injury will result to the Holding Company
or its subsidiaries, 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 Holding Company or its subsidiaries, 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 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 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 or its subsidiaries from
pursuing any other remedies available to the Holding Company or its subsidiaries
for such breach or threatened breach, including the recovery of damages from
Executive.
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(b) Executive recognizes and acknowledges that the knowledge of the business
activities and plans for business activities of the Holding Company and its
subsidiaries as it may exist from time to time, is a valuable, special and
unique asset of the business of the Holding Company and its subsidiaries.
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 and subsidiaries thereof 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. In the event of a
breach or threatened breach by Executive of the provisions of this Section 10,
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, 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 any other remedies available to the Holding Company 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 Holding Company shall immediately pay his estate any salary and bonus
accrued but unpaid as of the date of his death, and, for a period of six (6)
months after Executive's death, the Holding Company shall continue to provide
medical insurance benefits existing on the date of his death and shall pay
Executive's designated beneficiary all compensation that would otherwise be
payable to him pursuant to Section 3 of this Agreement. This provision shall not
negate any rights Executive or his beneficiaries may have to death benefits
under any employee benefit plan of the Holding Company or 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 Holding
Company's obligation to pay Executive his Base Salary shall, as of the date such
benefits first become payable under the Disability Policy on account of
Executive's disability, 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 Holding Company or 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
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the Holding Company ("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 Holding
Company's or 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 Holding Company shall continue to pay
Executive his 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. The Bank's or the Holding Company's obligation
to provide Executive with the benefits described in Section 3(c) shall not be
affected by an Incapacity Determination unless the terms of the separate
arrangements governing such benefits so provide.
(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 Holding Company or subject to Section 12(b).
(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
Bank, such compensation payments and benefits paid by the Bank will be
subtracted from any amount due simultaneously to Executive under similar
provisions of this Agreement. Payments pursuant to this Agreement and the Bank
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 Holding Company or any
predecessor of the Holding Company 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.
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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 Holding Company 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.
18. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Delaware without
regard to principles of conflicts of law of that state.
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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 Holding Company, 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.
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 Holding Company, 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 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 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 HOLDING COMPANY
The Holding Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank or 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.
SIGNATURES
IN WITNESS WHEREOF, Berkshire Hills Bancorp, Inc. 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 9th day of
August, 2000.
ATTEST: BERKSHIRE HILLS BANCORP, INC.
/s/Rose A. Borotto By: /s/Robert A. Wells
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Rose A. Borotto Robert A. Wells
Corporate Secretary For the Entire Board of Directors
[SEAL]
WITNESS: EXECUTIVE
/s/Rose A. Borotto By: /s/James A. Cunningham, Jr.
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Rose A. Borotto James A. Cunningham, Jr.
Corporate Secretary
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