AMENDED AND RESTATED
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
FOR THE
CHIEF EXECUTIVE OFFICER OF BERKSHIRE BANK
Article 1
Description, Purpose and Definitions
1.1 Name. The name of this Plan is the “Berkshire
Bank Supplemental Executive Retirement Plan.”
1.2 Purpose. The purpose of the Plan is to promote the
retention of Michael P. Daly, the Chief Executive Officer of the
Company, by providing an additional source of retirement income to
supplement that available to him from other sources.
1.3 Definitions. For purposes of the Plan, the following words
and phrases shall have the meanings indicated, unless the context
clearly indicates otherwise.
“Bank” means Berkshire Bank, Pittsfield,
Massachusetts.
“Cause” means termination of employment because of
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 or
regulation (other than traffic violations or similar infractions)
or a final cease-and-desist order.
“Change in Control”
means an event of a nature that:
(i) would be required to be reported in response to Item 1(a)
of the current report on Form 8-K, as in effect on the date hereof,
pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 (the “Exchange Act”); or (ii) results in a
Change in Control of the Bank or the 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 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 Company’s acquisition of the
Bank; or (iv) without limitation such a Change in Control
shall be deemed to have occurred at such time as (A) any
“person” (as the term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Bank or the
Company representing 20% or more of the Bank’s or the
Company’s outstanding securities except for any securities of
the Bank purchased by the Company in connection with the conversion
of the Bank to the stock form and any securities purchased by any
tax-qualified employee benefit plan of the Bank; or
(B) individuals who constitute the Board of Directors on the
date hereof (the “Incumbent Board”) cease for any
reason to constitute at least a majority thereof, provided that any
person becoming a director subsequent to the date hereof whose
election was approved by a vote of at least three-quarters (3/4) of
the directors comprising the Incumbent Board, or whose nomination
for election by the Company’s stockholders was approved by
the same Nominating Committee serving under an Incumbent Board,
shall be, for purposes of this clause (B), considered as though he
were a member of the Incumbent Board; or (C) a plan of
reorganization, merger, consolidation, sale of all or substantially
all the assets of the Bank or the Company or similar transaction
occurs in which the Bank or Company is not the resulting entity; or
(D) solicitations of shareholders of the Company, by someone other
than the current management of the Company, seeking stockholder
approval of a plan of reorganization, merger or consolidation of
the Company or Bank or similar transaction with one or more
corporations as a result of which the outstanding shares of the
class of securities then subject to the plan or transaction are
exchanged for or converted into cash or property or securities not
issued by the Bank or the Company shall be distributed; or
(E) a tender offer is made for 20% or more of the voting
securities of the Bank or the Company.
“Company” means Berkshire Hills Bancorp, Inc., a Delaware
corporation.
“Disability” means Executive’s absence from employment
which: (i) is due to his inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or can be expected to last for a continuous period
of not less than twelve (12) months; or (ii) results from
a medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months, and
causes Executive to receive income replacement benefits for a
period of not less than three (3) months under an accident and
health plan covering the Bank’s employees; or (iii) is
based on a determination by the Social Security Administration that
Executive is totally disabled.
“Executive” means Michael P. Daly, Chief Executive Officer
of the Bank.
“Final Average Earnings”
means the highest average of the
total salary and bonus paid to executive for any three consecutive
completed calendar years preceding termination.
“Separation from Service
” shall mean the Executive has
experienced a termination of employment with the Bank and its
affiliates due to death, Disability, retirement or other
termination of employment. Executive will not be deemed to have
experienced a Separation from Service if he is on military leave,
sick leave, or other bona fide leave of absence, to the extent such
leave doe not exceed a period of six months or, if longer, such
longer period of time as is protected by either statute or
contract. For purposes of this Plan, Executive will be presumed to
have a Separation from Service where the level of services
performed by the Executive is less than 50 percent of the
average level of services performed during the immediately
preceding 36-month period. For all purposes hereunder, whether the
Executive has had a Separation from Service will be determined in
accordance with Treasury Regulation Section 1.409A-1(h)
and subsequent guidance.
“Specified Employee”
shall have the meaning required
under Treasury Regulation Section 1.409A-1(b)(i).
2
2.1 Entitlement to Benefits.
Except to the extent provided in
Sections 3.2, 3.3 and 3.4, Executive shall become entitled to
receive a benefit under the Plan only if his employment with the
Bank terminates for reasons other than Cause after he has attained
age 62. Notwithstanding anything in this Plan to the contrary, no
benefit shall be payable to Executive if his employment is
terminated for Cause.
Article 3
Supplemental Retirement Benefits
3.1 Basic Benefit. Subject to the succeeding provisions of this
Article, Executive shall be entitled to an annual benefit equal to
46.6% of his Final Average Earnings upon his separation from
service (other than for Cause) at or after attaining age
62.
3.2 Early Retirement Benefit.
If Executive’s separation from
service occurs prior to the date he attains age 62 but after
attaining age 55, other than by reason of his death or Disability
or following a Change in Control, he shall be entitled to a
percentage of the basic benefit determined under Section 3.
The percentage of Executive’s benefit under this
Section 3.2 shall be determined as follows:
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(i)
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If he retires during the calendar
year in which he attains age 55, the benefit otherwise determined
under Section 3.1 shall be reduced by 50%.
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(ii)
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If he retires during the calendar
year in which he attains age 56, the benefit otherwise determined
under Section 3.1 shall be reduced by 40%.
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(iii)
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If he retires during the calendar
year in which he attains age 57, the benefit otherwise determined
under Section 3.1 shall be reduced by 30%.
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(iv)
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If he retires during the calendar
year in which he attains age 58, the benefit otherwise determined
under Section 3.1 shall be reduced by 20%.
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(v)
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If he retires during the calendar
year in which he attains age 59, the benefit otherwise determined
under Section 3.1 shall be reduced by 15%.
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(vi)
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If he retires during the calendar
year in which he attains age 60, the benefit otherwise determined
under Section 3.1 shall be reduced by 10%.
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(vii)
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If he retires during the calendar
year in which he attains age 61, the benefit otherwise determined
under Section 3.1 shall be reduced by 5%.
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Such benefit shall be paid in accordance with
Executive’s election under Section 3.5 at the time
specified in Section 3.6.
3
3.3 Death
and Disability Benefits.
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A.
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If Executive dies while employed by
the Bank or his separation from service occurs by reason of his
Disability, there shall be paid to him or his designated
beneficiary an amount equal to the benefit he would have received
under Section 3.1 if he had retired on the date immediately
preceding his date of death or termination of employment and, as of
such date, was deemed to satisfy the age requirement of
Section 3.1. Such benefit shall be paid in accordance with his
election under Section 3.5 at the time specified in Section
3.6.
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B.
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If Executive dies after his
entitlement to a benefit has been established by reason of his
termination of employment but prior to the time that benefit
payment(s) have commenced, such payment(s) shall be made to his
beneficiary in accordance with his election.
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C.
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Executive may, on a form prescribed
by and filed with the Administrator, designate a beneficiary to
receive any death benefit payable under this section. If no
effective beneficiary designation is on file at the time of his
death, the death benefit under this section shall be paid as
follows:
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(1)
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To his surviving spouse;
or
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(2)
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If no spouse survives, to his
surviving children in equal shares, with the descendants of a child
who has predeceased him taking such child’s share by
representation; or
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(3)
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If none of his spouse and
descendants is living, to the representative of his
estate.
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D.
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The automatic beneficiaries set
forth in Subsection C and, except as otherwise provided
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