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Amended And Restated Settlement Agreement

This is an actual contract by Berkshire Hills Bancorp.

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Sectors: Chemicals
Governing Law: Massachusetts, View Massachusetts State Laws
Effective Date: April 06, 2011
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This Amended and Restated Settlement Agreement (the " Settlement Agreement" ) is entered into as of April 6, 2011 and is effective as of the Closing Date (as defined below) by and between Berkshire Hills Bancorp, Inc., a Delaware corporation (" BHLB" ), Legacy Bancorp, Inc. (" Legacy" ), a Delaware corporation, Legacy Banks (the " Bank" ), a wholly-owned subsidiary of Legacy , and J. Williar Dunlaevy (the " Executive" ).

WHEREAS , the Executive, Legacy and the Bank are parties to an Amended and Restated Employment Agreement with an effective date of November 20, 2008 (the " Employment Agreement" ); and

WHEREAS , BHLB and Legacy have entered into an Agreement and Plan of Merger, dated as of December 21, 2010 (the " Merger Agreement" ), pursuant to which Legacy will be merged into BHLB (the " Merger" ); and

WHEREAS , Section 7.6.7 of the Merger Agreement provides that Legacy, subject to BHLB' s approval, shall enter into a Settlement Agreement which shall terminate the Employment Agreement as of the closing date of the Merger (the " Closing Date" ), and in lieu of any payment or benefits under the Employment Agreement, the Executive shall be entitled to the settlement benefits set forth in a Settlement Agreement; and

WHEREAS , BHLB, Legacy, Bank and the Executive previously entered into a settlement agreement, dated as of December 21, 2010 (the " Original Agreement" ); and

WHEREAS , BHLB, Legacy, Bank and the Executive desire to amend and restate the Original Agreement in order to make certain changes.

NOW, THEREFORE , in consideration of the premises and the mutual covenants contained in this Settlement Agreement, BHLB, Legacy, the Bank and the Executive hereby agree as follows:

Section 1. Effective Date of the Settlement Agreementnone . none

The Settlement Agreement shall be effective as of the effective time of the Merger (" Effective Time" ) on the Closing Date and the provisions contained herein shall survive the Merger.

Section 2. Termination of the Agreementnone .

The Executive, BHLB, Legacy, and the Bank hereby agree that the Agreement shall be terminated without any further action of any parties hereto, effective as of the Closing Date. The

Executive shall, in lieu of any payment or benefits under the Agreement, be entitled to the settlement benefits set forth in Section 3 of this Settlement Agreement.

Section 3. Settlement Benefitsnone .

(a) Cash Paymentnone . The parties hereto acknowledge that the Merger qualifies as a " change in control" as defined under the Agreement. In lieu of a payment under Section 7(a)(i) of the Agreement and in lieu of non-taxable medical and dental coverage under Section 7(a)(ii) of the Agreement on Executive' s termination of employment in connection with or following a Change in Control and in lieu of any payment under the Supplemental Executive Retirement Agreement for J. Williar Dunlaevy Amended and Restated as of November 20, 2008, BHLB (or any affiliate or subsidiary of BHLB) hereby agrees to pay Executive a cash lump payment equal to $2,986,697 (the " Cash Payment" ), unless prohibited from doing so by applicable regulatory authority. The Cash Payment shall, unless prohibited, be payable to the Executive on the Closing Date, and shall be subject to applicable withholding taxes.

(b) Payment Exempt from Section 409Anone . The payment to Executive required by Section 7 of the Agreement to be made within thirty (30) days of an involuntary termination of employment following a Change in Control, was intended to be exempt from Section 409A of the Internal Revenue Code (" Code" ) under the " short-term deferral rule" set forth in Treasury Regulation Section 1.409A-1(b)(4). The Cash Payment in lieu of the payment under Section 7, which Cash Payment shall occur on and is contingent on the occurrence of the Closing Date, is also exempt from Code Section 409A under the short-term deferral rule.

(c) Gross-Up Paymentnone . If any payment or benefit made or provided to the Executive under this agreement or under any plan, program, or other arrangement of the Employer or any affiliated entity, separately or in the aggregate with other such payments and benefits (a " Payment" ) results in the Executive being subject to the excise tax under Section 4999 of the Internal Revenue Code of 1986, as amended (" Code" ), or any successor or similar provision), then the Employer shall pay to the Executive, prior to the time that such tax is payable by the Executi
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