Exhibit 10.1
MERGER TERMINATION
AGREEMENT
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,
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, age
