FORM OF] Performance-based Restricted Stock Award
EXHIBIT 10.3
[FORM OF]
Performance-based
Restricted Stock Award
Granted by
BERKSHIRE HILLS BANCORP, INC.
under the
BERKSHIRE HILLS BANCORP, INC.
2022 EQUITY INCENTIVE PLAN
This Restricted Stock Award Agreement (the “Restricted Stock Award” or this “Agreement”) is and will
be subject in every respect to the provisions of the 2022 Equity Incentive Plan (the “Plan”) of Berkshire Hills Bancorp, Inc. (the “Company”) which are incorporated
herein by reference and made a part hereof, subject to the provisions of this Agreement. A copy of the Plan has been provided to each person granted a Restricted Stock Award pursuant to the Plan. The holder of this Restricted Stock Award (the “Participant”) hereby accepts this Restricted Stock Award, subject to all the terms and provisions of the Plan and this Agreement, and agrees that all decisions under and interpretations of the Plan and this
Agreement by the Committee appointed to administer the Plan (“Committee”) or the Board will be final, binding and conclusive upon the Participant and the Participant’s heirs, legal representatives, successors
and permitted assigns. Capitalized terms used herein but not defined will have the same meaning as in the Plan.
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1.
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Name of Participant: ___________________________________________________
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2.
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Date of Grant: ______ __, ____
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3.
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Total number of shares of Company common stock, $0.01 par value per share, covered by the Restricted Stock Award: ___________ (target award; final award is subject to
determination in accordance with Exhibit A attached hereto and subject to adjustment pursuant to Section 9 hereof).
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4.
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Vesting Schedule. Except as otherwise provided in this Agreement, this Restricted Stock Award will become
one-hundred percent (100%) cliff vested upon completion of a three-year period ending on _______ __, ______(e.g., and 0% vested before that date).
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5.
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Distribution of Shares. The shares of stock subject to the Restricted Stock Award will be distributed (if any) as soon as practicable after ______ __,
_____, and when the performance measurements are available and certified by the Company, which is expected to occur on or before ______ __, _______.
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| 6. |
Grant of Restricted Stock Award.
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The shares of Stock subject to the Restricted Stock Award may be held in trust until distributed.
The Restricted Stock Award will be in the form of issued and outstanding shares of Stock that will be either (i) held in trust until distributed, (ii) registered in the name of,
and delivered to, the Participant, which certificate will bear a legend restricting the transferability of the Restricted Stock, or (iii) the Company may, in its sole discretion, issue Restricted Stock in any other format (e.g., electronically) in
order to facilitate the paperless transfer of such Awards.
The Restricted Stock awarded to the Participant will not be sold, encumbered hypothecated or otherwise transferred except in accordance with the terms of the Plan and this
Agreement.
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Voting and Dividends.
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The Participant will have the right to vote the shares of Restricted Stock awarded hereunder.
Any cash dividends declared on the non-vested Restricted Stock (and any earnings thereon) shall be delayed and distributed to the Participant at the time
when the Restricted Stock is distributed to the Participant under Section 5 of this Agreement.
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Delivery of Shares.
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Delivery of shares of Stock under this Restricted Stock Award will comply with all applicable laws (including, the requirements of the Securities Act), and the applicable
requirements of any securities exchange or similar entity.
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Adjustment Provisions.
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This Restricted Stock Award, including the number of shares subject to the Restricted Stock Award, will be adjusted upon the occurrence of the events
specified in, and in accordance with the provisions of, Section 3.4 of the Plan.
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Effect of Termination of Service and a Change in Control on Restricted Stock Award.
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Notwithstanding Section 4 of this Restricted Stock Award Agreement, this Restricted Stock Award will vest as follows:
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(i)
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Death or Disability. In the event of the Participant’s Termination of Service by reason of the Participant’s death or Disability, Restricted Stock
Awards will vest at the date of death or Disability, pro-rata, by multiplying (i) the number of Restricted Stock Awards that would be obtained based on achievement at target (or if actual achievement of the performance
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measures is greater than the target level, at the actual achievement level) as of the date of Disability or death, by (ii) a fraction, the numerator of which is the number of whole
or partial months the Participant was in Service during the performance period and the denominator of which is the number of months in the performance period.
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(ii)
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Termination for Cause. In the event of the Participant’s Service has been terminated for Cause, all
Restricted Stock granted to a Participant that has not vested will expire and be forfeited.
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(iii)
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Change in Control. In the event of an Involuntary Termination at or following a Change in Control, the number of shares subject to the Restricted
Stock Award will vest at the greater of the target level of performance or actual annualized performance measured as of the most recent completed fiscal quarter. A “Change in Control” will be deemed to have occurred as provided in Section
4.2 of the Plan.
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(iv)
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Other Termination. In the event of a Participant Termination of Service for any reason
other than death, Disability, for Cause or following a Change in Control, all shares of Restricted Stock awarded to the Participant which have not vested as of the date of Termination of Service will expire and be forfeited.
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| 11. |
Non-Solicitation Agreement. In consideration of the rights and benefits extended to you by the Company under this Award Agreement, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by you, you agree that during your employment with Berkshire Bank, its parent Company, its affiliate Berkshire Insurance Group, Inc., or any of its other affiliates or subsidiaries,
or their successors (hereinafter collectively referred to as “Berkshire”), and continuing for a period of (i) twelve (12) months after your employment with Berkshire ends, if the term of your employment with Berkshire was for less than three
(3) years, or (ii) six (6) months after your employment with Berkshire ends, if your employment with Berkshire was for a term of three (3) years or more, you will not, directly or indirectly, on your own behalf or on behalf of any third
person or entity, and whether through your own efforts or through the efforts or assistance of any other person or entity (including, without limitation, any person employed by or associated with any entity with whom you are or may become
employed or associated):
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| a. |
Solicit or accept any banking, lending, wealth management, investment, insurance or financial services-related business from any individual or entity that was a client or customer or Berkshire at any time during
the three (3) months immediately prior to the end of your employment with Berkshire, if you were introduced to or interacted with such client or customer regarding Berkshire’s business; provided, however, that you may accept employment with a
Company client or customer or prospect; or
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| b. |
Participate in hiring, hire or employ an employee or consultant of Berkshire, or solicit, encourage or induce any such employee or consultant to terminate his or her employment or other relationship with Berkshire.
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It is expressly understood and agreed by the parties that the restrictions against solicitation of Company clients and customers set forth in subparagraph a. above shall apply in all
situations where your employment may be terminated by Berkshire for cause, or at your election, but shall not apply to a termination of your employment due to Berkshire’s downsizing or the elimination of your position; provided, however, that if you
enter into a separation agreement with Berkshire or receive a severance payment after a downsizing or position elimination, any non-solicitation terms and conditions that you may agree to in consideration of any such agreement or payment shall be
independently binding and enforceable against you.
If following a Change in Control (as defined in Berkshire’s Code of Business Conduct) of Berkshire you continue your employment with Berkshire for six (6) consecutive months, and you
thereafter voluntarily terminate your employment with Berkshire at any time up to the end of the ninth (9th) month following the Change in Control, the restrictions against solicitation of Berkshire’s clients and customers set forth in
subparagraph a. above shall not apply against you.
Notwithstanding anything else herein to the contrary, the restrictions against hiring or employing Berkshire employees or consultants set forth in subparagraph b. above shall apply
against you in all circumstances under which your employment with Berkshire ends.
You also agree that for a period of six (6) or twelve (12) months, whichever is applicable, after your employment with Berkshire ends, you will inform your potential and actual
future employers of your obligations under this Non-Solicitation Agreement. You agree and acknowledge that this Non-Solicitation Agreement is a material provision of this Award Agreement and your continuing employment with Berkshire. Accordingly,
in the event it is established in a court of competent jurisdiction that you have breached this Non-Solicitation Agreement, in addition to any other remedies, damages and relief that may be available to Berkshire at law or in equity, you agree that
you shall be required to reimburse Berkshire for the amount of any reasonable attorneys’ fees and costs incurred by it in connection with such breach or any action against you as a result thereof.
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Agreement Regarding Confidential Information. In consideration of the rights and benefits extended to you by the Company under this Award Agreement, and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged by you, you acknowledge and agree that your employment with Berkshire creates a relationship of confidence and trust between you and Berkshire with respect to
Confidential Information. You hereby warrant and agree that (a) you have not used or disclosed any Confidential Information other than as necessary in the ordinary course of performing your duties as a Berkshire employee; and (b) you will
keep in confidence and trust, both during your continuing employment with Berkshire and at all times after such employment shall terminate for whatever reason, all Confidential Information known to
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you, and will not use or disclose such Confidential Information without the prior written consent of Berkshire. Nothing in this Agreement is intended to or shall preclude you from
providing truthful testimony or providing truthful information in response to a valid subpoena, court order or request of any federal, state or local regulatory or quasi-regulatory authority; provided, however, that, to the extent permitted by law,
you have first provided to Berkshire as much advance notice as practicable of any such compelled disclosure, and further that you agree to honor any order or ruling obtained by Berkshire quashing or barring any such subpoena, court order or request
for disclosure. As used in this Agreement, “Confidential Information” means any and all information belonging to Berkshire, which is of value to Berkshire and the disclosure of which could result in a competitive or other disadvantage to Berkshire.
Examples of Confidential Information are, without limitation, financial information, reports and forecasts; trade secrets, know-how and other intellectual property; software; market or sales information or plans; customer lists and information;
business plans, prospects and opportunities; and possible acquisitions or dispositions of businesses or facilities that have been discussed by the management of Berkshire. Confidential Information includes information you develop or have developed
in the course of your employment with Berkshire, as well as other information to which you may have access in connection with your employment. Confidential Information also includes the confidential information of others, including, but not limited
to, customers of Berkshire, with whom Berkshire has a business relationship. Notwithstanding the foregoing, Confidential Information does not include information in the public domain, unless such information entered the public domain due to a breach
of your obligations under this Agreement regarding Confidential Information or otherwise.
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Clawback. In the event the Company or Berkshire Bank is required to prepare an accounting restatement due to the material noncompliance of the Company with any financial
reporting requirement under the securities laws as a result of misconduct (as determined by the members of the Board of Directors who are considered “independent” for purposes of the listing standards of the NYSE), the Participant shall
reimburse Berkshire Bank for part or the entirety of any incentive awards made to such executive officer on the basis of having met or exceeded specific targets of performance periods. For purposes of this Section 13, (i) the term “incentive
awards” means awards under a Berkshire incentive plan with payment amounts determined by annual incentive compensation metrics and goals as approved by the Compensation Committee of the Board of Directors and the amounts of which are
determined in whole or in part upon specific performance targets relating to the financial results of the Company; and (ii) the term executive officer means the CEO and his direct and indirect reports at the level of EVP and above, who are
eligible to participate in the 2022 LTI Program/2022 LTI Goals (see Exhibit A attached).
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| 14. |
Miscellaneous.
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| 14.1 |
This Agreement may not be amended or otherwise modified unless evidenced in writing and signed by the Company and the Participant.
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| 14.2 |
Restricted Stock Awards are not transferable prior to the time such Awards vest in the Participant.
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| 14.3 |
This Restricted Stock Award and this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.
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This Restricted Stock Award and this Agreement is subject to all laws, regulations and orders of any governmental authority which may be applicable thereto and, notwithstanding any of the provisions hereof, the
Company will not be obligated to issue any shares of stock hereunder if the issuance of such shares would constitute a violation of any such law, regulation or order or any provision thereof.
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| 14.5 |
Nothing in this Agreement will interfere with or limit in any way the right of the Company or any Affiliate to terminate your employment or service at any time, nor confer upon you any right to continue in the
employ or service of the Company or any Affiliate.
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| 14.6 |
This Award Agreement shall be binding upon any successor of the Company, in accordance with the terms of this Agreement and the Plan.
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[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this instrument to be executed in its name and on its behalf as of the date of grant of this Restricted Stock Award set forth above.
BERKSHIRE HILLS BANCORP, INC.
By: _______________________________
PARTICIPANT’S ACCEPTANCE
The undersigned hereby accepts the foregoing Restricted Stock Award and agrees to the terms and conditions hereof, including the terms and provisions of the 2022
Equity Incentive Plan. The undersigned hereby acknowledges receipt of a copy of the Company’s 2022 Equity Incentive Plan.
PARTICIPANT
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EXHIBIT A
_____ LTI Performance Goals
[Berkshire to complete]
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