EX-10.3


    Exhibit
      10.3

     

    

      BERKSHIRE
        BANK

      THREE
        YEAR CHANGE IN CONTROL AGREEMENT

      


      


      This
        AGREEMENT is made effective as of October 31, 2006, by and among Berkshire
        Bank
        (the
“Institution”), a state chartered savings institution with its principal
        administrative offices at 24 North Street, Pittsfield, Massachusetts 01201,
        Berkshire
        Hills Bancorp, Inc. (the
        “Holding Company”), a corporation organized under the laws of the state of
        Delaware, which is the stock holding company of the Institution, and
John
        J. Howard (“Executive”).
        

      


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

      


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

      


      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 Institution, 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 Institution.

      


      (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 judgment
        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 Institution 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 4
        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 Institution
        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 Institution or such
        lesser
        number of years in the event that Executive shall have been employed by the
        Institution 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 Institution shall
        cause to be continued life, medical and disability coverage substantially
        identical to the coverage maintained by the Institution for Executive prior
        to
        his severance, except to the extent such coverage may be changed in its
        application to all 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. 

      


      (c) Notwithstanding
        the provisions of this Section 3, in no event shall the aggregate payments
        or
        benefits to be made or afforded to Executive under said paragraphs (the
“Termination Benefits”) constitute an “excess parachute payment” under Section
        280G of the Internal Revenue Code of 1986, as amended, or any successor thereto,
        and in order to avoid such a result, Termination Benefits will be reduced,
        if
        necessary, to an amount (the “Non-Triggering Amount”), the value of which is one
        dollar ($1.00) less than an amount equal to three (3) times Executive’s “base
        amount,” as determined in accordance with said Section 280G. The allocation of
        the reduction required hereby among the Termination Benefits shall be determined
        by Executive.

      


      
        	
                4.

              	
                NOTICE
                  OF TERMINATION.

              


      

      


      (a) Any
        purported termination by the Institution 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.


      
        
          
          

        

        
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      (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 Executive’s termination exists, the “Date of
        Termination” shall be determined in accordance with Section 4(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 Institution 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.

      


      
        	
                5.

              	
                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 Institution.
        Further, the Holding Company guarantees such payments and provision of all
        amounts and benefits due hereunder to Executive and, if such amounts and
        benefits due from the Institution are not timely paid or provided by the
        Institution, such amounts and benefits shall be paid or provided by the Holding
        Company.

      


      
        	
                6.

              	
                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 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 Institution or shall impose on the Institution any obligation
        to
        employ or retain Executive in its employ for any period.


      
        
          
          

        

        
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                7.

              	
                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
        Institution or its affiliates in any city, town or county in which Executive’s
        normal business office is located and the Institution or its affiliates 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 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
        Institution. The parties hereto, recognizing that irreparable injury will
        result
        to the Institution, its business and property in the event of Executive’s breach
        of this Section 7(a), agree that in the event of any such breach by Executive,
        the Institution 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 Institution, 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 Institution 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 Institution, as it may exist from time
        to
        time, is a valuable, special and unique asset of the business of the
        Institution. 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 Institution or its affiliates 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 Institution
        or
        its affiliates. In the event of a breach or threatened breach by Executive
        of
        the provisions of this Section 7, the Institution 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
        Institution or its affiliates 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 Institution from pursuing other remedies available
        for such breach or threatened breach, including the recovery of damages from
        Executive.

      


      
        	
                8.

              	
                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,


      
        
          
          

        

        
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      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
        Institution and their respective successors and assigns.

      


      
        	
                9.

              	
                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.

      


      
        	
                10.

              	
                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.

      


      
        	
                11.

              	
                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.

      


      
        	
                12.

              	
                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. 

      


      
        	
                13.

              	
                GOVERNING
                  LAW.

              


      

      


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

      



      
        
          
          

        

        
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                14.

              	
                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 Institution’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.

      


      
        	
                15.

              	
                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 Institution if Executive is successful with respect
        to such
        dispute or question of interpretation pursuant to a legal judgment, arbitration
        or settlement.

      


      
        	
                16.

              	
                INDEMNIFICATION.

              


      

      


      The
        Institution 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
        Massachusetts 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
        Institution (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.

      


      
        	
                17.

              	
                SUCCESSOR
                  TO THE INSTITUTION.

              


      

      


      The
        Institution 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 Institution, to expressly and unconditionally assume
        and agree to perform the Institution’s obligations under this Agreement in the
        same manner and to the same extent that the Institution would be required
        to
        perform such obligations if no such succession or assignment had taken
        place.


      
        
          
          

        

        
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      SIGNATURES

      


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

      


        
          	
                  ATTEST:

                	 	
                  BERKSHIRE
                    BANK

                
	 	 	 	 
	 	 	 	 
	 /s/
                  Sally J. Chavarry	 	
                  By:

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

                
	 	 	 	 
	 	 	 	 
	
                  ATTEST:

                	 	
                  BERKSHIRE
                    HILLS BANCORP, INC.

                
	 	 	
                  (Guarantor)

                
	 	 	 	 
	 	 	 	 
	 /s/
                  Sally J. Chavarry	 	
                  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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