EX-10.4


    Exhibit
      10.4

    
 

    
      BERKSHIRE
        HILLS BANCORP, INC.

      THREE
        YEAR CHANGE IN CONTROL AGREEMENT

      


      


      This
        AGREEMENT is made effective as of October 31, 2006, by and between Berkshire
        Hills Bancorp, Inc. (the
        "Holding Company"), a corporation organized under the laws of the state of
        Delaware, with its principal administrative offices at 24 North Street,
        Pittsfield, Massachusetts 01201, and John
        J. Howard
        ("Executive"). Any reference to the “Institution” herein shall mean Berkshire
        Bank or any successor to Berkshire Bank.

      


      WHEREAS,
        the Holding Company recognizes the substantial contributions Executive has
        made
        to the Holding Company and wishes to protect Executive's position with the
        Holding Company for the period provided in this Agreement; and

      


      WHEREAS,
        Executive has agreed to serve in the employ of the Holding Company.

      


      NOW,
        THEREFORE, in consideration of the contributions and responsibilities of
        Executive, and upon the other terms and conditions hereinafter provided,
        the
        parties hereto agree as follows:

      


      
        	
                1.

              	
                TERM
                  OF AGREEMENT.

              


      

      


      The
        period of this Agreement shall be deemed to have commenced as of the date
        first
        above written and shall continue for a period of thirty-six (36) full calendar
        months thereafter. Commencing on the first anniversary date of this Agreement,
        and continuing on each anniversary thereafter, the Board of Directors (the
        “Board”) may act to extend the term of this Agreement for an additional year,
        such that the remaining term of this Agreement would be three years, unless
        Executive elects not to extend the term of this Agreement by giving written
        notice to the Holding Company, in which case the term of this Agreement will
        expire on the third anniversary of this Agreement.

      


      
        	
                2.

              	
                CHANGE
                  IN CONTROL.

              


      

      


      (a)
        Upon
        the
        occurrence of a Change in Control of the Institution or the Holding Company
        (as
        herein defined) followed at any time during the term of this Agreement by
        the
        involuntary termination of Executive’s employment or the voluntary termination
        of Executive’s employment in accordance with the terms of this Agreement, other
        than for Cause, as defined in Section 2(c) of this Agreement, the provisions
        of
        Section 3 of this Agreement shall apply.

      


      
        	 	
                (i)

              	
                Upon
                  the occurrence of a Change in Control, Executive shall have the
                  right to
                  elect to voluntarily terminate his employment at any time during
                  the term
                  of this Agreement following any demotion, loss of title, office
                  or
                  significant authority, reduction in annual compensation or benefits,
                  or
                  relocation of his principal place of employment by more than twenty-five
                  (25) miles from its location immediately prior to the Change in
                  Control.
                  

              


      


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      
        	 	
                (ii)

              	
                Notwithstanding
                  the foregoing clause (i), in the event, however, that the Chief
                  Executive
                  Officer of the Institution immediately prior to the Change in Control
                  is
                  the Chief Executive Officer of the resulting entity with similar
                  responsibilities and duties and Executive’s position with the resulting
                  entity does not result in: (A) a reduction in annual compensation
                  or
                  benefits, (B) a material change in work schedule, or (C) relocation
                  of his
                  principal place of employment by more than fifty (50) miles, then
                  Executive may not voluntarily terminate his employment during the
                  one-year
                  period following the Change in Control and receive any payments
                  or
                  benefits under this Agreement. For the avoidance of doubt, with
                  respect to
                  the immediately foregoing limitation on voluntary termination,
                  Executive
                  may voluntarily terminate employment in accordance with this Section
                  2(a)
                  effective upon the expiration of said one-year period, and for
                  a period of
                  30 days thereafter, if one of the events set forth in clause (i)
                  has
                  occurred, either at the time of the Change in Control or during
                  the
                  one-year period following the time of the Change in Control. If
                  one of the
                  events described in clause (i) occurs more than one year following
                  the
                  date of the Change in Control, but during the remaining term of
                  the
                  Agreement, then Executive may terminate his employment in accordance
                  with
                  the provisions of this Agreement, notwithstanding this clause (ii).
                  

              


      

      


      
        	 	
                (iii)

              	
                Notwithstanding
                  any other provision of this Agreement to the contrary, Executive
                  may
                  consent in writing to any demotion, loss, reduction or relocation
                  and
                  waive his ability to voluntarily terminate his employment under
                  the terms
                  of this Agreement. The effect of any written consent of Executive
                  under
                  this Section 2(a) shall be strictly limited to the terms specified
                  in such
                  written consent.

              


      

      


      (b)
        For
        purposes of this Agreement, a "Change in Control" of the Institution or Holding
        Company shall mean an event of a nature that: (i) would be required to be
        reported in response to Item 1(a) of the current report on Form 8-K, as in
        effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
        Exchange Act of 1934 (the “Exchange Act”); or (ii) results in a Change in
        Control of the Institution or the Holding Company within the meaning of the
        Bank
        Change in Control Act and the Rules and Regulations promulgated by the Federal
        Deposit Insurance Corporation (“FDIC”) at 12 C.F.R. § 303.4(a) with respect to
        the Bank and the Board of Governors of the Federal Reserve System (“FRB”) at 12
        C.F.R. § 225.41(b) with respect to the Holding Company, as in effect on the date
        hereof; or (iii) results in a transaction requiring prior FRB approval under
        the
        Bank Holding Company Act of 1956 and the regulations promulgated thereunder
        by
        the FRB at 12 C.F.R. § 225.11, as in effect on the date hereof except for the
        Holding Company’s acquisition of the Institution; or (iv) without limitation
        such a Change in Control shall be deemed to have occurred at such time as
        (A)
        any “person” (as the term is used in Sections 13(d) and 14(d) of the Exchange
        Act) is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the
        Exchange Act), directly or indirectly, of securities of the Institution or
        the
        Holding Company representing 20% or more of the Institution’s or the Holding
        Company’s outstanding securities except for any securities of the Institution
        purchased by the Holding Company in connection with the conversion of the
        Institution to the stock form and any securities purchased by any tax-qualified
        employee benefit plan of the Institution; or (B) individuals who constitute
        the
        Board of Directors on the date hereof (the “Incumbent Board”) 


      
        
          
          

        

        
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      cease
        for
        any reason to constitute at least a majority thereof, provided that any person
        becoming a director subsequent to the date hereof whose election was approved
        by
        a vote of at least three quarters (3/4) of the directors comprising the
        Incumbent Board, or whose nomination for election by the Holding Company’s
        stockholders was approved by the same Nominating Committee serving under
        an
        Incumbent Board, shall be, for purposes of this clause (B), considered as
        though
        he were a member of the Incumbent Board; or (C) a plan of reorganization,
        merger, consolidation, sale of all or substantially all the assets of the
        Institution or the Holding Company or similar transaction occurs in which
        the
        Institution or Holding Company is not the resulting entity; or (D) solicitations
        of shareholders of the Holding Company, by someone other than the current
        management of the Holding Company, seeking stockholder approval of a plan
        of
        reorganization, merger or consolidation of the Holding Company or Institution
        or
        similar transaction with one or more corporations as a result of which the
        outstanding shares of the class of securities then subject to the plan or
        transaction are exchanged for or converted into cash or property or securities
        not issued by the Institution or the Holding Company shall be distributed;
        or
        (E) a tender offer is made for 20% or more of the voting securities of the
        Institution or the Holding Company.

      


      (c)
        Executive
        shall not have the right to receive termination benefits pursuant to Section
        3
        of this Agreement upon Termination for Cause. The term "Termination for Cause"
        shall mean termination because of: (i) Executive's personal dishonesty, willful
        misconduct, breach of fiduciary duty involving personal profit, intentional
        failure to perform stated duties, willful violation of any law, rule, regulation
        (other than traffic violations or similar offenses), final cease and desist
        order or material breach of any provision of this Agreement which results
        in a
        material loss to the Institution or the Holding Company, or (ii) Executive's
        conviction of a crime or act involving moral turpitude or a final judgement
        rendered against Executive based upon actions of Executive which involve
        moral
        turpitude. For the purposes of this Section, no act, or the failure to act,
        on
        Executive's part shall be "willful" unless done, or omitted to be done, not
        in
        good faith and without reasonable belief that the action or omission was
        in the
        best interests of the Holding Company or its affiliates. Notwithstanding
        the
        foregoing, Executive shall not be deemed to have been Terminated for Cause
        unless and until there shall have been delivered to him a Notice of Termination
        which shall include a copy of a resolution duly adopted by the affirmative
        vote
        of not less than a majority of the members of the Board at a meeting of the
        Board called and held for that purpose (after reasonable notice to Executive
        and
        an opportunity for him, together with counsel, to be heard before the Board),
        finding that in the good faith opinion of the Board, Executive was guilty
        of
        conduct justifying Termination for Cause and specifying the particulars thereof
        in detail. Executive shall not have the right to receive compensation or
        other
        benefits for any period after Termination for Cause. During the period beginning
        on the date of the Notice of Termination for Cause pursuant to Section 5
        of this
        Agreement through the Date of Termination, stock options granted to Executive
        under any stock option plan shall not be exercisable nor shall any unvested
        stock awards granted to Executive under any stock-based incentive plan of
        the
        Institution, the Holding Company or any subsidiary or affiliate thereof vest.
        At
        the Date of Termination, such stock options and such unvested stock awards
        shall
        become null and void and shall not be exercisable by or delivered to Executive
        at any time subsequent to such Date of Termination for Cause. 


      
        
          
          

        

        
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                3.

              	
                TERMINATION
                  BENEFITS.

              


      

      


      (a)
        Upon
        the
        occurrence of a Change in Control, followed at any time during the term of
        this
        Agreement by the involuntary termination of Executive's employment (other
        than
        for Termination for Cause), or voluntary termination during the term of this
        Agreement as provided by Section 2(a) of this Agreement, the Holding Company
        shall be obligated to pay Executive, or in the event of his subsequent death,
        his beneficiary or beneficiaries, or his estate, as the case may be, a sum
        equal
        to three (3) times Executive's average annual compensation for the five most
        recent taxable years that Executive has been employed by the Holding Company
        or
        such lesser number of years in the event that Executive shall have been employed
        by the Holding Company for less than five years. For this purpose, such annual
        compensation shall include base salary and any other taxable income, including,
        but not limited to, amounts related to the granting, vesting or exercise
        of
        restricted stock or stock option awards, commissions, bonuses, pension and
        profit sharing plan contributions or benefits (whether or not taxable),
        severance payments, retirement benefits, and fringe benefits paid or to be
        paid
        to Executive or paid for Executive's benefit during any such year. At the
        election of Executive, which election is to be made prior to a Change in
        Control, such payment shall be made in a lump sum or on an annual basis in
        approximately equal installments over a three (3) year period.

      


      (b)
        Upon
        the
        occurrence of a Change in Control of the Institution or the Holding Company
        followed at any time during the term of this Agreement by Executive's voluntary
        or involuntary termination of employment in accordance with paragraph (a)
        of
        this Section 3, other than for Termination for Cause, the Holding Company
        shall
        cause to be continued life, medical and disability coverage substantially
        identical to the coverage maintained by the Institution or Holding Company
        for
        Executive prior to his severance, except to the extent such coverage may
        be
        changed in its application to all Institution or Holding Company employees
        on a
        nondiscriminatory basis. Such coverage and payments shall cease upon the
        expiration of thirty-six (36) full calendar months from the Date of
        Termination.

      


      
        	
                4.

              	
                CHANGE
                  IN CONTROL-RELATED PROVISIONS.

              


      

      


      (a) Anything
        in this Agreement to the contrary notwithstanding and except as set forth
        below,
        in the event it shall be determined that any payment, benefit or distribution
        made or provided by the Holding Company or the Institution to or for the
        benefit
        of Executive (whether made or provided pursuant to the terms of this Agreement
        or otherwise) (each referred to herein as a “Payment”), would be subject to the
        excise tax imposed by Section 4999 of the Internal Revenue Code of 1986,
        as
        amended (the “Code”) or any interest or penalties are incurred by Executive with
        respect to such excise tax (the excise tax, together with any such interest
        and
        penalties, are hereinafter collectively referred to as the “Excise Tax”),
        Executive shall be entitled to receive an additional payment (a “Gross-Up
        Payment”) in an amount such that, after payment by Executive of all taxes
        (including any interest or penalties imposed with respect to such taxes),
        including, without limitation, any income taxes (and any interest and penalties
        imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
        Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
        imposed upon the Payments.


      
        
          
          

        

        
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      (b) Determination
        of Gross-Up Payment.
        Subject
        to the provisions of Section 4(c), all determinations required to be made
        under
        this Section 4, including whether and when a Gross-Up Payment is required,
        the
        amount of such Gross-Up Payment and the assumptions to be utilized in arriving
        at such determination, shall be made by a certified public accounting firm
        reasonably acceptable to the Holding Company as may be designated by Executive
        (the “Accounting Firm”) which shall provide detailed supporting calculations to
        the Holding Company and Executive within fifteen (15) business days of the
        receipt of notice from Executive that there has been a Payment, or such earlier
        time as is requested by the Holding Company. All fees and expenses of the
        Accounting Firm shall be borne solely by the Holding Company. Any Gross-Up
        Payment, as determined pursuant to this Section 4, shall be paid by the Holding
        Company to Executive within five business days of the later of (i) the due
        date
        for the payment of any Excise Tax, or (ii) the receipt of the Accounting
        Firm’s
        determination. Any determination by the Accounting Firm shall be binding
        upon
        the Holding Company and Executive. As a result of the uncertainty in the
        application of Section 4999 of the Code, at the time of the initial
        determination by the Accounting Firm hereunder, it is possible that a Gross-Up
        Payment will not have been made by the Holding Company which should have
        been
        made (an “Underpayment”), consistent with the calculations required to be made
        hereunder. In the event that the Holding Company exhausts its remedies pursuant
        to Section 4(c) and Executive thereafter is required to make a payment of
        any
        Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
        that has occurred and any such Underpayment shall be promptly paid by the
        Holding Company to or for the benefit of Executive.

      


      (c) Treatment
        of Claims.
        Executive shall notify the Holding Company in writing of any claim by the
        Internal Revenue Service that, if successful, would require a Gross-Up Payment
        to be made. Such notification shall be given as soon as practicable, but
        no
        later than ten business days, after Executive is informed in writing of such
        claim and shall apprise the Holding Company of the nature of such claim and
        the
        date on which such claim is requested to be paid. Executive shall not pay
        such
        claim prior to the expiration of the thirty (30) day period following the
        date
        on which it gives such notice to the Holding Company (or any shorter period
        ending on the date that payment of taxes with respect to such claim is due).
        If
        the Holding Company notifies Executive in writing prior to the expiration
        of
        this period that it desires to contest such claim, Executive shall:

      


      
        	 	
                (i)

              	
                give
                  the Holding Company any information reasonably requested by the
                  Holding
                  Company relating to such claim;

              


      

      


      
        	 	
                (ii)

              	
                take
                  such action in connection with contesting such claim as the Holding
                  Company shall reasonably request in writing from time to time,
                  including,
                  without limitation, accepting legal representation with respect
                  to such
                  claim by an attorney reasonably selected by the Holding
                  Company;

              


      

      


      
        	 	
                (iii)

              	
                cooperate
                  with the Holding Company in good faith in order to effectively
                  contest
                  such claim; and

              


      

      


      
        	 	
                (iv)

              	
                permit
                  the Holding Company to participate in any proceedings relating
                  to such
                  claim; provided, however, that the Holding Company shall bear and
                  pay
                  directly

              


      


      
        
          
          

        

        
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      all
        costs
        and expenses (including additional interest and penalties) incurred in
        connection with such contest and indemnify and hold Executive harmless, on
        an
        after-tax basis, for any Excise Tax or related taxes, interest or penalties
        imposed as a result of such representation and payment of costs and expenses.
        Without limitation on the foregoing provisions of this Section 4(c), the
        Holding
        Company shall control all proceedings taken in connection with such contest
        and,
        at its option, may pursue or forgo any and all administrative appeals,
        proceedings, hearings and conferences with the taxing authority with respect
        to
        such claim and may, at its option, either direct Executive to pay the tax
        claimed and sue for a refund or contest the claim in any permissible manner.
        Further, Executive agrees to prosecute such contest to a determination before
        any administrative tribunal, in a court of initial jurisdiction and in one
        or
        more appellate courts, as the Holding Company shall determine; provided,
        however, that if the Holding Company directs Executive to pay such claim
        and sue
        for a refund, the Holding Company shall advance the amount of such payment
        to
        Executive, on an interest-free basis (including interest or penalties with
        respect thereto). Furthermore, the Holding Company’s control of the contest
        shall be limited to issues with respect to which a Gross-Up Payment would
        be
        payable hereunder and Executive shall be entitled to settle or contest, as
        the
        case may be, any other issues raised by the Internal Revenue Service or any
        other taxing authority.

      


      (d) Adjustments
        to the Gross-Up Payment.
        If,
        after the receipt by Executive of an amount advanced by the Holding Company
        pursuant to Section 4(c), Executive becomes entitled to receive any refund
        with
        respect to such claim, Executive shall (subject to the Holding Company’s
        compliance with the requirements of Section 4(c)) promptly pay to the Holding
        Company the amount of such refund (together with any interest paid or credited
        thereon after applicable taxes). If, after the receipt by Executive of an
        amount
        advanced by the Holding Company pursuant to Section 4(c), a determination
        is
        made that Executive shall not be entitled to any refund with respect to such
        claim and such denial of refund occurs prior to the expiration of thirty
        (30)
        days after such determination, then such advance shall be forgiven and shall
        not
        be required to be repaid and the amount of such advance shall offset, to
        the
        extent thereof, the amount of the Gross-Up Payment required to be
        paid.

      


      
        	
                5.

              	
                NOTICE
                  OF TERMINATION.

              


      

      


      (a) Any
        purported termination by the Holding Company or by Executive in connection
        with
        a Change in Control shall be communicated by a Notice of Termination to the
        other party. For purposes of this Agreement, a "Notice of Termination" shall
        mean a written notice which indicates the specific termination provision
        in this
        Agreement relied upon and shall set forth in reasonable detail the facts
        and
        circumstances claimed to provide a basis for termination of Executive's
        employment under the provision so indicated.

      


      (b) "Date
        of
        Termination" shall mean the date specified in the Notice of Termination (which,
        in the instance of Termination for Cause, shall not be less than thirty (30)
        days from the date such Notice of Termination is given); provided, however,
        that
        if a dispute regarding the


      
        
          
          

        

        
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      Executive's
        termination exists, the "Date of Termination" shall be determined in accordance
        with Section 5(c) of this Agreement.

      


      (c) If,
        within thirty (30) days after any Notice of Termination is given, the party
        receiving such Notice of Termination notifies the other party that a dispute
        exists concerning the termination, the Date of Termination shall be the date
        on
        which the dispute is finally determined, either by mutual written agreement
        of
        the parties, by a binding arbitration award, or by a final judgment, order
        or
        decree of a court of competent jurisdiction (the time for appeal therefrom
        having expired and no appeal having been perfected) and provided further
        that
        the Date of Termination shall be extended by a notice of dispute only if
        such
        notice is given in good faith and the party giving such notice pursues the
        resolution of such dispute with reasonable diligence. Notwithstanding the
        pendency of any such dispute in connection with a Change in Control, in the
        event that the Executive is terminated for reasons other than Termination
        for
        Cause, the Holding Company will continue to pay Executive the payments and
        benefits due under this Agreement in effect when the notice giving rise to
        the
        dispute was given (including, but not limited to his annual salary) until
        the
        earlier of: (i) the resolution of the dispute in accordance with this Agreement;
        or (ii) the expiration of the remaining term of this Agreement as determined
        as
        of the Date of Termination.

      


      
        	
                6.

              	
                SOURCE
                  OF PAYMENTS.

              


      

      


      It
        is
        intended by the parties hereto that all payments provided in this Agreement
        shall be paid in cash or check from the general funds of the Holding Company.
        

      


      
        	
                7.

              	
                EFFECT
                  ON PRIOR AGREEMENTS AND EXISTING BENEFIT PLANS.

              


      

      


      This
        Agreement contains the entire understanding between the parties hereto and
        supersedes any prior agreement between the Holding Company or the Institution
        and Executive, except that this Agreement shall not affect or operate to
        reduce
        any benefit or compensation inuring to Executive of a kind elsewhere provided.
        No provision of this Agreement shall be interpreted to mean that Executive
        is
        subject to receiving fewer benefits than those available to him without
        reference to this Agreement.

      


      Nothing
        in this Agreement shall confer upon Executive the right to continue in the
        employ of the Holding Company or shall impose on the Holding Company any
        obligation to employ or retain Executive in its employ for any
        period.

      


      
        	
                8.

              	
                NON-COMPETITION
                  AND NON-DISCLOSURE.

              


      

      


      (a) For
        a
        period of one (1) year following the payment of termination benefits to
        Executive under this agreement, Executive agrees not to compete with the
        Holding
        Company or its subsidiaries in any city, town or county in which Executive's
        normal business office is located and the Holding Company or its subsidiaries
        has an office or has filed an application for regulatory approval to establish
        an office, determined as of the effective date of such termination, except
        as
        agreed to pursuant to a resolution duly adopted by the Board of Directors.
        Executive agrees that during such one (1) year period and within said cities,
        towns and counties, Executive


      
        
          
          

        

        
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      shall
        not
        work for or advise, consult or otherwise serve with, directly or indirectly,
        any
        entity whose business materially competes with the depository, lending or
        other
        business activities of the Holding Company or its subsidiaries. The parties
        hereto, recognizing that irreparable injury will result to the Holding Company,
        its business and property in the event of Executive's breach of this Section
        8(a), agree that in the event of any such breach by Executive, the Holding
        Company will be entitled, in addition to any other remedies and damages
        available, to an injunction to restrain the violation hereof by Executive,
        Executive's partners, agents, servants, employees and all persons acting
        for or
        under the direction of Executive. Executive represents and admits that in
        the
        event of the termination of his employment following a Change in Control,
        Executive's experience and capabilities are such that Executive can obtain
        employment in a business engaged in other lines and/or of a different nature
        than the Holding Company or its subsidiaries, and that the enforcement of
        a
        remedy by way of injunction will not prevent Executive from earning a
        livelihood. Nothing herein will be construed as prohibiting the Holding Company
        from pursuing any other remedies available for such breach or threatened
        breach,
        including the recovery of damages from Executive.

      


      (b) Executive
        recognizes and acknowledges that the knowledge of the business activities
        and
        plans for business activities of the Holding Company or its subsidiaries,
        as it
        may exist from time to time, is a valuable, special and unique asset of the
        business of the Holding Company. Executive will not, during or after the
        term of
        his employment, disclose any knowledge of the past, present, planned or
        considered business activities of the Holding Company or its subsidiaries
        to any
        person, firm, corporation, or other entity for any reason or purpose whatsoever,
        unless expressly authorized by the Board of Directors or required by law.
        Notwithstanding the foregoing, Executive may disclose any knowledge of banking,
        financial and/or economic principles, concepts or ideas which are not solely
        and
        exclusively derived from the business plans and activities of the Holding
        Company or its subsidiaries. In the event of a breach or threatened breach
        by
        Executive of the provisions of this Section 8, the Holding Company will be
        entitled to an injunction restraining Executive from disclosing, in whole
        or in
        part, the knowledge of the past, present, planned or considered business
        activities of the Holding Company or its subsidiaries or from rendering any
        services to any person, firm, corporation or other entity to whom such
        knowledge, in whole or in part, has been disclosed or is threatened to be
        disclosed. Nothing herein will be construed as prohibiting the Holding Company
        from pursuing other remedies available for such breach or threatened breach,
        including the recovery of damages from Executive.

      


      
        	
                9.

              	
                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,
        the
        Holding Company and their respective successors and assigns.


      
        
          
          

        

        
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                10.

              	
                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 or as to any act other than that specifically
        waived.

      


      
        	
                11.

              	
                REQUIRED
                  REGULATORY PROVISIONS.

              


      

      


      Any
        payments made to Executive pursuant to this Agreement, or otherwise, are
        subject
        to and conditioned upon compliance with 12 U.S.C. §1828(k) and any rules and
        regulations promulgated thereunder, including 12 C.F.R. Part 359.

      


      
        	
                12.

              	
                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.

      


      
        	
                13.

              	
                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. 

      


      
        	
                14.

              	
                GOVERNING
                  LAW.

              


      

      


      The
        validity, interpretation, performance, and enforcement of this Agreement
        shall
        be governed by the laws of the state of Delaware.

      


      
        	
                15.

              	
                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's main office, in accordance with
        the
        rules of the American Arbitration Association then in effect. Judgment may
        be
        entered on the arbitrator's award in any court having jurisdiction; provided,
        however, that Executive shall be entitled to seek specific performance of
        his
        right to be paid until the Date of Termination during the pendency of any
        dispute or controversy arising under or in connection with this
        Agreement.


      
        
          
          

        

        
          9

          
            

          

        

        
          
          

        

      


      


      
        	
                16.

              	
                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.

      


      
        	
                17.

              	
                INDEMNIFICATION.

              


      

      


      The
        Holding Company shall provide Executive (including his heirs, executors and
        administrators) with coverage under a standard directors' and officers'
        liability insurance policy at its expense and shall indemnify Executive (and
        his
        heirs, executors and administrators) to the fullest extent permitted under
        Delaware law against all expenses and liabilities reasonably incurred by
        him in
        connection with or arising out of any action, suit or proceeding in which
        he may
        be involved by reason of his having been a director or officer of the Holding
        Company (whether or not he continues to be a director or officer at the time
        of
        incurring such expenses or liabilities); such expenses and liabilities to
        include, but not to be limited to, judgments, court costs and attorneys'
        fees
        and the costs of reasonable settlements.

      


      
        	
                18.

              	
                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 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.


      
        
          
          

        

        
          10

          
            

          

        

        
          
          

        

      


      


      SIGNATURES

      


      IN
        WITNESS WHEREOF, Berkshire Hills Bancorp, Inc. has caused this Agreement
        to be
        executed by its duly authorized officer, and Executive has signed this
        Agreement, on the 31st day of October, 2006.

       

      

        
          	 	 	 
	
                  ATTEST:

                	 	
                  BERKSHIRE
                    HILLS BANCORP, INC.

                
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 /s/
                  Sally J. Chavary	 	
                  By:

                	 /s/
                  Michael P. Daly
	 	 	 	
                  Michael
                    P. Daly, President and CEO

                
	 	 	 	 
	 	 	 	 
	
                  SEAL

                	 	 	 
	 	 	 	 
	 	 	 	 
	 	 	 	 
	
                  WITNESS:

                	 	
                  EXECUTIVE

                
	 	 	 	 
	 	 	 	 
	 	 	 	 
	 /s/
                  Nicole M. Knight	 	 /s/
                  John J. Howard
	 	 	
                  John
                    J. Howard

                


        

      

    

     

     

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