[LETTERHEAD OF BERKSHIRE HILLS BANCORP, INC.]
November 13, 2002
Xxxxxxx X. Xxxxxxx. Jr.
0 Xxxxxxx Xxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Dear Xxxxxxx:
This letter agreement (the "Agreement") sets forth the agreement that we have
reached regarding your resignation from your regular, full-time employment and
all offices and positions you hold with Berkshire Bank ("Berkshire Bank") and
Berkshire Hills Bancorp, Inc. (the "Holding Company") and their related and
affiliated entities (collectively, "Berkshire").
In exchange for the promises set forth below, you and Berkshire agree as
follows:
1. Resignation
You agree to resign effective as of February 28, 2003 or on such earlier
date as Berkshire may determine to be appropriate after year-end financial
reporting is completed (the "Resignation Date") as Senior Vice President,
Treasurer and Chief Financial Officer of the Holding Company and of Berkshire
Bank and from all other positions, including any offices, directorships or
employment that you hold with Berkshire or any subsidiary or affiliate of
Berkshire. Berkshire shall pay your base salary through your Resignation Date
and will credit you with pro rata vacation to reflect the number of days that
you work in 2003 in calculating the amount of pay that you are due for accrued
but unused vacation as of the Resignation Date.
2. Continued Employment; Payments Prior to Resignation Date
You agree to continue to serve in your capacity as Senior Vice President,
Treasurer and Chief Financial Officer of the Holding Company and of Berkshire
Bank and in all other positions, including any offices, directorships or
employment that you hold with Berkshire or any subsidiary or affiliate of
Berkshire until the Resignation Date. You agree to work diligently and in good
faith on behalf of Berkshire until your Resignation Date and understand that
Berkshire's obligations to you under this Agreement are conditioned upon your
faithful performance of duties through the Resignation Date. Berkshire will
continue to provide you with your base salary as well as regular benefits,
including an annual contribution to the ESOP for 2002 which will be made in the
ordinary course until your Resignation Date. You will receive a bonus for 2002
equal to $12,237 when bonuses are paid to other employees.
3. Post Resignation Payment
Berkshire will make a lump sum payment within thirty (30) days of the
Resignation Date equal to the sum of the amounts set forth or determined
pursuant to Sections 3(a) through (d).
(a) Severance Pay. Berkshire shall pay you $502,815 which is the total
of (i) three times your base salary rate of $152,967 and (ii) three times
your most recent bonus payment of $14,638.
(b) 401(k) and ESOP. In addition to the annual contribution to the
ESOP for 2002 which will be made in the ordinary course as set forth in
Section 2 above, Berkshire will also pay you $76,005.42, which represents
the total of (i) three times the total annual contribution of $10,707.69
that it made to your 401(k) and (ii) three times the total annual
contribution of $14,627.45 that it made to the ESOP.
(c) Stock Options. Berkshire shall pay you $89,015.50 which equals the
difference between $24.00 and the option exercise price of $16.75
multiplied by 12,278 which is the number of shares of stock which you had
an unvested option to purchase as of the Resignation Date. You agree that
notwithstanding any provisions of the January 30, 2001 Incentive Stock
Option Award Agreement between you and the Holding Company, any unvested
options are hereby cancelled as of the Effective Date (as defined in
Section 16(c) hereof) and any rights you may have with respect to your
vested options will be determined by the terms of the Incentive Stock
Option Award Agreement.
(d) Restricted Stock. Berkshire shall pay you $412,512 which equals
$24.00 multiplied by 17,188, which is the number of shares of unvested
restricted stock in the Holding Company that have been issued to you.
Berkshire will also pay you $17,703.64 which represents an amount equal to
the value of the accumulated dividends for the unvested shares from the
date of the initial award of the restricted stock through your Resignation
Date. You agree that notwithstanding any provisions of the January 30, 2001
Restricted Stock Award Agreement between you and the Holding Company, any
unvested restricted stock award outstanding as of the Effective Date shall
be forfeited and cancelled on the Effective Date.
4. Benefit Continuation
To the extent permitted by the respective benefit plans, you will be
permitted to participate in medical and dental insurance plans for a period of
three years after the Resignation Date or until you become eligible for
comparable benefits, whichever is earlier. Since the terms of the life insurance
and disability plans do not permit you to participate after the Resignation
Date, Berkshire will pay you $4,043.16, an amount equal to three times the
annual premiums of $1,347.72 for such benefits. Your rights to medical and
dental coverage under COBRA will run
concurrently with the coverage provided under this Agreement from the
Resignation Date. Your co-payment obligation for the continuation of medical and
dental coverage will be withheld from the lump sum payment. The co-payment
obligation that will be withheld is $4,444.44 which represents three times your
annual co-payment of $1,481.48. In the event that you become eligible for
comparable benefits prior to three years after the Resignation Date, Berkshire
shall reimburse you appropriately to the extent that the co-payment amount
withheld proves to have been excessive.
5. Tax Treatment
Berkshire shall undertake to make deductions, withholdings and tax reports
with respect to payments and benefits under this Agreement to the extent that it
reasonably and in good faith determines that it is required to make such
deductions, withholdings and tax reports. Payments under this Agreement shall be
in amounts net of any such deductions or withholdings. Nothing in this Agreement
shall be construed to require Berkshire to make any payments to compensate you
for any adverse tax effect associated with any payments or benefits or for any
deduction or withholding from any payment or benefit.
6. Return of Property
You agree to return to Berkshire, on or before the Resignation Date, all of
its property, including, without limitation, computer equipment, software, keys
and access cards, credit cards, files and any other documents (including
computerized data and any copies made of any computerized data or software)
containing information concerning Berkshire, its business or its business
relationships (in the latter two cases, actual or prospective). In the event
that you discover that you continue to retain any such property after the
Resignation Date, you shall return it to Berkshire immediately.
7. Confidential Information
You recognize and acknowledge that knowledge of the business activities and
plans for business activities of Berkshire is a valuable, special and unique
asset of Berkshire's business. You agree that you will not disclose at any time
any knowledge of the past, present, planned or considered business activities of
Berkshire 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, you 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
Berkshire. In the event that you breach or threaten to breach this Section 7,
Berkshire will be entitled to an injunction restraining you from disclosing, in
whole or in part, the knowledge of the past, present, planned or considered
business activities of Berkshire or from rendering any services to any person,
firm, corporation
or other entity to whom such knowledge, in whole or in part, has been disclosed
or is threatened to be disclosed. Nothing herein will be construed as
prohibiting Berkshire from pursuing any other remedies available to Berkshire
for such breach or threatened breach, including the recovery of damages from
you.
8. Noncompetition
You agree not to compete with Berkshire for a period of one (1) year
following the Resignation Date in any city, town or county in which your normal
business office is located or in which Berkshire has an office or has filed an
application for regulatory approval to establish an office, determined as of the
Resignation Date, except as agreed to pursuant to a resolution duly adopted by
the Board of Directors. You agree that during such period and within said
cities, towns and counties, you 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
Berkshire. Recognizing that irreparable injury will result to Berkshire, its
business and property in the event of your breach of this Section 8, you agree
that in the event of any such breach by you, Berkshire will be entitled, in
addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by you, your partners, agents, servants, employees
and all persons acting for or under your direction. You represent and admit that
your experience and capabilities are such that you can obtain employment in a
business engaged in other lines and/or of a different nature than Berkshire, and
that the enforcement of a remedy by way of injunction will not prevent you from
earning a livelihood. Nothing herein will be construed as prohibiting Berkshire
or its subsidiaries from pursuing any other remedies available to it for such
breach or threatened breach, including the recovery of damages from you.
9. Release Claims
(a) By You. In consideration for, among other terms, the payments and
benefits described in Sections 3 and 4, you voluntarily release and forever
discharge Berkshire, its affiliated and related entities, its and their
respective predecessors, successors and assigns, its and their respective
employee benefit plans and fiduciaries of such plans, and the current and former
officers, directors, shareholders, employees, attorneys, accountants and agents
of each of the foregoing in their official and personal capacities (collectively
referred to as the "Releasees") generally from all claims, demands, debts,
damages and liabilities of every name and nature, known or unknown ("Claims")
that, as of the date when you sign this Agreement, you have, ever had, now claim
to have or ever claimed to have had against any or all of the Releasees. This
release includes, without limitation, all Claims:
o relating to your employment by and resignation from employment
with Berkshire;
o arising from or out of the June 27, 2000 employment agreement
between you and the Holding Company and/or the June 27, 2000
employment agreement between you and Berkshire Bank (collectively
referred to herein as the "Employment Agreements");
o of wrongful discharge;
o of breach of contract;
o of retaliation or discrimination under federal, state or local
law (including, without limitation, Claims of age discrimination
or retaliation under the Age Discrimination in Employment Act,
Claims of disability discrimination or retaliation under the
Americans with Disabilities Act, and Claims of discrimination or
retaliation under Title VII of the Civil Rights Act of 1964);
o under any other federal or state statute (including, without
limitation, Claims under the Family Medical Leave Act and Claims
under the Worker Adjustment and Retraining Notification Act);
o of defamation or other torts;
o of violation of public policy;
o for wages, bonuses, incentive compensation, vacation pay or any
other compensation or benefits; and
o for damages or other remedies of any sort, including, without
limitation, compensatory damages, punitive damages, injunctive
relief and attorney's fees;
provided, however, that this release shall not affect your rights under this
Agreement or your rights to receive a distribution of your vested account
balances under the 401(k) Plan and ESOP.
You agree that you shall not seek or accept damages of any nature, other
equitable or legal remedies for your own benefit, attorney's fees, or costs from
any of the Releasees with respect to any Claim. As a material inducement to
Berkshire to enter into this Agreement, you represent that you have not assigned
to any third party and you have not filed with any agency or court any Claim
released by this Agreement.
(b) By Berkshire. Berkshire, on behalf of itself and its predecessors,
successors, assign, directors (but only in their capacities as directors of
Berkshire) and officers
(but only in their capacities as officers of Berkshire) voluntarily and
irrevocably release and discharge you and your successors, assigns, heirs, and
survivors from any and all charges, complaints, claims, promises, agreements,
causes of action, damages and debts (including attorney's fees and costs
actually incurred) which any of them have, claim to have, ever had or ever
claimed to have had against you through the date hereof, known or unknown, which
relate to good faith acts or omissions by you during the course of your
employment with Berkshire undertaken or not undertaken in the reasonable belief
that such acts or omissions were in the best interest of Berkshire.
10. Nondisparagement
You agree not to make any disparaging statements concerning Berkshire or
any of its affiliates or current or former officers, directors, shareholders,
employees or agents. You further agree not to take any actions or conduct
yourself in any way that would reasonably be expected to affect adversely the
reputation or goodwill of Berkshire or any of its affiliates or any of its
current or former officers, directors, shareholders, employees or agents.
Berkshire will instruct the members of its Board of Directors and its executive
management not to take any action or make any statement, written or oral, which
disparages or criticizes you or your management and business practices. The
provisions of this Section 10 shall not apply to any truthful statement required
to be made by you or Berkshire, as the case may be, in any legal proceeding or
governmental or regulatory investigation or any truthful statements made by
Berkshire in connection with the public disclosure of your resignation from
Berkshire.
11. Future Cooperation
You agree to cooperate reasonably with Berkshire and all of its affiliates
(including its outside counsel) in connection with the contemplation,
prosecution and defense of all phases of existing, past and future litigation,
regulatory or administrative actions about which Berkshire believes you may have
knowledge or information. You further agree to make yourself available at
mutually convenient times during and outside of regular business hours as
reasonably deemed necessary by Berkshire's counsel. Berkshire shall not utilize
this Section 10 to require you to make yourself available to an extent that
would unreasonably interfere with full-time employment responsibilities that you
may have. You agree to appear without the necessity of a subpoena to testify
truthfully in any legal proceedings in which Berkshire calls you as a witness.
Berkshire shall also reimburse you for any pre-approved reasonable business
travel expenses that you incur on Berkshire's behalf as a result of your
litigation cooperation services, after receipt of appropriate documentation
consistent with Berkshire's business expense reimbursement policy. You further
agree that you shall not voluntarily provide information to or otherwise
cooperate with any individual or entity that is contemplating or pursuing
litigation against any of the Releasees or that is undertaking any investigation
or review of any of the Releasees' activities or
practices; provided, however, that you may participate in or otherwise assist in
any investigation or inquiry conducted by the EEOC or the Massachusetts
Commission Against Discrimination.
12. Suspension or Termination of Payments
In the event that you fail to comply with any of your obligations under
this Agreement, in addition to any other legal or equitable remedies it may have
for such breach Berkshire shall have the right to terminate or suspend its
payments to you under this Agreement. The termination or suspension of such
payments in the event of such breach by you will not affect your continuing
obligations under this Agreement. Notwithstanding the foregoing, this provision
shall not apply to the extent that your breach of this Agreement consists of
initiating a legal action in which you contend that the release set forth in
Section 9(a) is invalid, in whole or in part, due to the provisions of 29 U.S.C.
ss. 626(f).
13. Legal Representation
This Agreement is a legally binding document and your signature will commit
you to its terms. You acknowledge that you have been advised to discuss all
aspects of this Agreement with your attorney, that you have in fact retained a
personal attorney who has reviewed this Agreement and represented you concerning
it, that you have carefully read and fully understand all of the provisions of
this Agreement and that you are voluntarily entering into this Agreement.
Berkshire represents and warrants to you that all requisite company authority,
and all other consents necessary for the execution of this Agreement, have been
duly adopted and obtained, and Berkshire has the full right, power and authority
to execute, deliver, and carry out the terms and conditions of this Agreement
and all other documents to be executed pursuant to, or in connection with, this
Agreement.
14. Enforcement
(a) Jurisdiction. You and Berkshire hereby agree that the Superior Court of
the Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts shall have the exclusive jurisdiction to consider any
matters related to this Agreement, including without limitation any claim for
violation of this Agreement. With respect to any such court action, you (i)
submit to the jurisdiction of such courts, (ii) consent to service of process,
and (iii) waive any other requirement (whether imposed by statute, rule of court
or otherwise) with respect to personal jurisdiction or venue.
(b) Relief. You agree that it would be difficult to measure any harm caused
to Berkshire that might result from any breach by you of your promises set forth
in Sections 6, 7, 8 and 10 and that in any event money damages would be an
inadequate remedy for any such breach. Accordingly, you agree that if you
breach, or propose to breach, any portion of your
obligations under Sections 6, 7, 8 and 10, Berkshire shall be entitled, in
addition to all other remedies it may have, to an injunction or other
appropriate equitable relief to restrain any such breach, without showing or
proving any actual damage to Berkshire and without the necessity of posting a
bond. In the event that Berkshire prevails in any action to enforce Section 6,
7, 8 and 10, then you also shall be liable to Berkshire for attorney's fees and
costs incurred by Berkshire in enforcing such provision(s). In addition, in the
event that you breach any portion of Section 7, you agree that the restrictions
of Section 8 shall remain in effect for the period of such breach
notwithstanding the period of one (1) year set forth above and you further agree
that the same restrictions shall apply for a period of one (1) year commencing
effective upon the cessation of any such breach.
15. Indemnification
Berkshire shall indemnify you (and your heirs, executors and
administrators) to the fullest extent permitted under Delaware law against all
expenses and liabilities reasonably incurred by you in connection with or
arising out of any action, suit, or proceeding in which you may be involved by
reason of your having been a director or officer of Berkshire (whether or not
incurred before or after the Resignation Date). Such expenses and liabilities
will include, but will not be limited to, judgments, court costs and attorneys'
fees and the cost of reasonable settlements. Any payments made to you pursuant
to this Section 15 are subject to and conditioned on compliance with 12 U.S.C.
ss. 1828(k) and 12 C.F.R. Part 359 and any rules or regulations promulgated
thereunder.
16. Notices, Acknowledgments and Other Terms
(a) You are advised to consult with an attorney before signing this
Agreement.
(b) You acknowledge and agree that Berkshire's promises in this Agreement
constitute consideration in addition to anything of value to which you are
otherwise entitled by reason of your resignation from employment. The parties
agree that this Agreement and the payments set forth herein are derived from the
Employment Agreements and that this Agreement represents a compromise of
disputed claims that you could have made under the Employment Agreements,
including without implication of limitation, your claims under Section
4(a)(ii)(B) of the Employment Agreements as well as a compromise of the other
claims which you have released as set forth in Section 9(a) of this Agreement.
The parties agree that none of the payments herein are contingent upon any
change in the ownership or effective control of the Berkshire Bank or the
Holding Company or any change in ownership of any substantial portion of the
assets of the Berkshire Bank or the Holding Company.
(c) You acknowledge that you have been given the opportunity, if you so
desired, to consider this Agreement for twenty-one (21) days before executing
it. If not signed by you and returned to Xxxxxx X. Xxxxxxx so that it is
received by close of business on the twenty-second (22nd) day after your receipt
of the Agreement, this Agreement will not be valid. In addition, if you breach
any of the conditions of the Agreement within the twenty-one (21) day period,
the offer of this Agreement will be withdrawn and your execution of the
Agreement will not be valid. In the event that you execute and return this
Agreement within twenty-one (21) days or less of the date of its delivery to
you, you acknowledge that such decision was entirely voluntary and that you had
the opportunity to consider this letter agreement for the entire twenty-one (21)
day period. Berkshire acknowledges that for a period of seven (7) days from the
date of the execution of this Agreement, you shall retain the right to revoke
this Agreement by written notice delivered to Xxxxxx X. Xxxxxxx before the end
of such period. This Agreement shall become effective upon the expiration of
such revocation period (the "Effective Date"). You acknowledge that the Bank may
elect to accept your resignation and announce it publicly at any time after you
tender a signed copy of this Agreement.
(d) By signing this Agreement, you acknowledge that you are doing so
voluntarily and knowingly, fully intending to be bound by this Agreement. You
also acknowledge that you are not relying on any representations by us or any
other representative of Berkshire concerning the meaning of any aspect of this
Agreement. You understand that this Agreement shall not in any way be construed
as an admission by Berkshire of any liability or any act of wrongdoing
whatsoever by Berkshire against you and that Berkshire specifically disclaims
any liability or wrongdoing whatsoever against you on the part of itself and its
respective officers, directors, shareholders, employees and agents. You
understand that if you do not enter into this Agreement and bring any claims
against Berkshire, Berkshire will dispute the merits of those claims and contend
that it acted lawfully and for good business reasons with respect to you.
(e) In the event of any dispute, this Agreement will be construed as a
whole, will be interpreted in accordance with its fair meaning, and will not be
construed strictly for or against either you or Berkshire.
(f) Except to the extent that the law of Delaware will establish the scope
of Berkshire's obligations to indemnify you pursuant to Section 15 of this
Agreement, the law of the Commonwealth of Massachusetts will govern any dispute
about this Agreement, including any interpretation or enforcement of this
Agreement.
(g) In the event that any provision or portion of a provision of this
Agreement shall be determined to be illegal, invalid or unenforceable, the
remainder of this Agreement shall be enforced to the fullest extent possible and
the illegal, invalid or unenforceable provision or portion of a provision will
be amended by a court of competent jurisdiction to reflect the parties' intent
if possible. If such amendment is not possible, the illegal, invalid or
unenforceable
provision or portion of a provision will be severed from the remainder of this
Agreement and the remainder of this Agreement shall be enforced to the fullest
extent possible as if such illegal, invalid or unenforceable provision or
portion of a provision was not included.
(h) This Agreement may be modified only by a written agreement signed by
you and authorized representatives of Berkshire.
(i) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
between the parties with respect to any related subject matter.
(j) This Agreement shall be binding upon each of the parties and upon their
respective heirs, administrators, representatives, executors, successors and
assigns, and shall inure to the benefit of each party and to their heirs,
administrators, representatives, executors, successors, and assigns.
Please indicate your agreement to the terms of this Agreement by signing and
returning to me the original of this letter within the time period set forth
above.
Very truly yours,
BERKSHIRE BANK
By: /s/ Xxxxxxx X. Xxxx November 13, 2002
-------------------------------- -----------------------------
Xxxxxxx X. Xxxx Date
President and CEO
BERKSHIRE HILLS BANCORP, INC.
By: /s/ Xxxxxxx X. Xxxx November 13, 2002
-------------------------------- -----------------------------
Xxxxxxx X. Xxxx Date
President and CEO
You are advised to consult with an attorney before signing this Agreement. The
foregoing is agreed to and accepted by:
/s/ Xxxxxxx X. Xxxxxxx, Xx. November 13, 2002
--------------------------- -----------------------------
Xxxxxxx X. Xxxxxxx, Xx. Date
