MERGER TERMINATION AGREEMENT
Exhibit
10.1
This Merger Termination Agreement (this
“Agreement”) is entered into as of June 25, 2009 by and between Berkshire Hills
Bancorp, Inc. (“Berkshire Hills Bancorp”), a Delaware corporation, and CNB
Financial Corp. (“CNB Financial”), a Massachusetts corporation.
RECITALS
WHEREAS, Berkshire Hills Bancorp and
CNB Financial have entered into an Agreement and Plan of Merger, dated April 29,
2009, as amended on May 21, 2009 (the “Merger Agreement”); and
WHEREAS, capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned to such
terms in the Merger Agreement; and
WHEREAS, Section 7.1(a) of the Merger
Agreement provides that the Merger Agreement may be terminated at any time prior
to the Effective Time of the Merger by mutual written consent of Berkshire Hills
Bancorp and CNB Financial; and
WHEREAS, Berkshire Hills Bancorp and
CNB Financial intend to terminate the Merger Agreement effective upon the
receipt by Berkshire Hills Bancorp of the Fee provided for in Section 2(b) of
this Agreement; and
WHEREAS, the Boards of Directors of
Berkshire Hills Bancorp and CNB Financial have each authorized the termination
of the Merger Agreement pursuant to the terms of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the
promises and the agreements set forth herein, the parties agree as
follows:
1. Termination of Merger
Agreement. Effective immediately upon receipt by Berkshire
Hills Bancorp of the Fee described in Section 2(b) below, Berkshire Hills
Bancorp and CNB Financial hereby terminate the Merger Agreement pursuant to
Section 7.1(a) of the Merger Agreement by the mutual consent of the parties
thereto. If the Fee is not received by Berkshire Hills Bancorp by the
date specified in Section 2(b) below, this Agreement shall become null and void
and have no effect, and the Merger Agreement shall continue in full force and
effect as if this Agreement had not been entered into.
2. Effect of Termination;
Mutual Discharge and Waiver.
(a) Except
as expressly provided in this Agreement, including Section 4 hereto, as a result
of the termination of the Merger Agreement pursuant to this Agreement, the
Merger Agreement shall become void, and there shall be no liability under the
Merger Agreement on the part of any party hereto or any of their respective
affiliates, subsidiaries,
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directors,
officers, shareholders, employees, agents, financial and legal advisors and
other representatives, and all rights and obligations of each party thereto
shall cease, except that no party shall be relieved or released from any
liabilities or damages arising out of a willful breach as provided in Section
7.3 of the Merger Agreement.
(b) CNB
Financial shall pay to Berkshire Hills Bancorp the $970,000 termination fee (the
“Fee”) provided for in Section 7.2(a) of the Merger Agreement on or before the
business day following the date of this Agreement. Payment of the Fee
shall be made by wire transfer of immediately available funds to the account
designated by Berkshire Hills Bancorp on Exhibit A
hereto. In the event CNB Financial has paid the Fee by wire transfer
to the account designated on Exhibit A before the execution of this Agreement,
the Fee shall be deemed to be received by Berkshire Hills Bancorp concurrently
with the execution of this Agreement. Berkshire Hills Bancorp
acknowledges that payment of the Fee shall constitute full and final
satisfaction of any and all obligations of CNB Financial under Section 7.2 of
the Merger Agreement.
(c) Effective
upon receipt by Berkshire Hills Bancorp of the Fee described in Section 2(b)
above, each party hereto, on behalf of itself and, to the extent permitted by
law, its affiliates, subsidiaries, directors, officers, shareholders, employees,
agents, financial and legal advisors and other representatives, and the
successors and assigns of each of them (each, a “Releasing Party”), hereby
releases the other party hereto and each of its respective affiliates,
subsidiaries, directors, officers, shareholders, employees, agents, financial
and legal advisors and other representatives, and the successors and assigns of
each of them, from any and all liabilities and obligations, claims, causes of
action and suits, at law or in equity, whether now known or unknown, whether
arising under any federal, state, local or foreign law or otherwise, that any
Releasing Party has, has had or may have in the future arising out of, relating
to, or in connection with the Merger Agreement, the CNB Financial Voting
Agreements and the transactions contemplated thereby, including, without
limitation, any liability or obligation set forth in Section 7.2 of the Merger
Agreement and any liability or obligation arising out of any breach or alleged
breach of any representation, warranty, covenant or agreement contained in the
Merger Agreement, provided that nothing in this Section 2 shall impair the
survival and full force of the Confidentiality Agreements (as defined in Section
4 below).
3. Acknowledgement of
Termination of CNB Financial Voting Agreements. Berkshire
Hills Bancorp and CNB Financial each acknowledge that, effective upon and by
virtue of the termination of the Merger Agreement pursuant to Section 1 hereof,
the CNB Financial Voting Agreements executed in connection with the Merger
Agreement shall be simultaneously terminated in accordance with their terms and
no obligations, rights, responsibilities or other encumbrances or restrictions
of any kind shall result or arise therefrom.
4. Survival of Confidentiality
Agreement. Notwithstanding anything contained in this
Agreement or in the Merger Agreement to the contrary, the provisions of the
Confidentiality Agreements dated February 23, 2009 and April 9, 2009 between
Berkshire Hills Bancorp and CNB Financial (the “Confidentiality Agreements”)
shall survive and remain in full force and effect in accordance with its
terms. On or before July 10, 0000, Xxxxxxxxx Xxxxx Bancorp and CNB
Financial agree to return to the other party all Confidential Information (as
such term is
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defined
in the Confidentiality Agreements) held by it or any of its affiliates,
directors, officers, employees, agents, financial advisors, legal advisors,
accountants or controlling persons (the “Representatives’), and to destroy all
other documents, memoranda, notes, summaries, analyses, extracts, compilations,
studies or other material prepared by or in the possession of the other party of
their Representatives, based on the Confidential Information. Each
party acknowledges that the Confidentiality Agreements apply to any respective
successor(s) thereof.
5. Representations of Berkshire
Hills Bancorp. Each of Berkshire Hills Bancorp and its
subsidiaries is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has requisite power
and authority to operate its business as it is now currently
conducted. Berkshire Hills Bancorp has full corporate power and
authority to execute and deliver this Agreement. This Agreement has
been duly and validly executed and delivered by Berkshire Hills Bancorp and
constitutes a valid binding obligation of Berkshire Hills Bancorp enforceable
against Berkshire Hills Bancorp in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditor’s rights generally and by general equitable
principles.
6. Representations of CNB
Financial. Each of CNB Financial and its subsidiaries is an
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has requisite power and authority to
operate its business as it is now currently conducted. CNB Financial
has full corporate power and authority to execute and deliver this
Agreement. This Agreement has been duly and validly executed and
delivered by CNB Financial and constitutes a valid binding obligation of CNB
Financial enforceable against CNB Financial in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditor’s rights generally and by general equitable
principles.
7. Public
Announcement. Berkshire Hills Bancorp and CNB Financial
acknowledge that each intends to issue a press release promptly after the
execution of this Agreement with respect to this Agreement and the termination
of the Merger Agreement. Each of Berkshire Hills Bancorp and CNB
Financial shall consult with the other before issuing such press
release.
8. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to conflicts
of laws principles. This Agreement shall be binding upon any
successor to Berkshire Hills Bancorp or CNB Financial.
9. Specific
Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
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10. Headings. The
descriptive headings contained in this Agreement are included for convenience of
reference only and shall not effect in any way the meaning or interpretation of
this Agreement.
11. Amendment;
Counterparts. This Agreement may be modified or amended only
by a writing signed by the parties hereto. This Agreement may be
executed and delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same
agreement.
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of page intentionally blank]
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IN WITNESS WHEREOF, the parties hereto
have caused this Agreement to be executed by their duly authorized officers as
of the date first written above.
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Berkshire
Hills Bancorp, Inc.
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By:
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/s/ Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx
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President
and Chief Executive Officer
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By:
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/s/ Xxxx X. Xxxxxx
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Xxxx
X. Xxxxxx
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Chairman
of the Board of
Directors
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