Exhibit 2.2
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.
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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, agents,
financial and legal advisors and other representatives, and
the
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