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Agreement and Plan of Merger

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Title:

Agreement and Plan of Merger

Entities:

Berkshire Hills Bancorp Inc.

Date:

2007

Size:

Preview shows 70KB of 212KB total

Price:

$73

ID:

#2869036

► Plans ► Agreements ► Agreements & Plans of Merger
► Financial ► S&Ls/Savings Banks

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AGREEMENT AND PLAN OF MERGER

DATED AS OF MAY 14, 2007

BY AND BETWEEN

BERKSHIRE HILLS BANCORP, INC.

AND

FACTORY POINT BANCORP, INC.

TABLE OF CONTENTS


		Page No.
Introductory Statement		1

ARTICLE I - DEFINITIONS		1

ARTICLE II - THE MERGER		6
2.1	The Merger	6
2.2	Closing	6
2.3	Effective Time	7
2.4	Effects of the Merger	7
2.5	Effect on Outstanding Shares of Factory Point Bancorp Common Stock	7
2.6	Election and Proration Procedures	8
2.7	Exchange Procedures	10
2.8	Effect on Outstanding Shares of Berkshire Hills Bancorp Common Stock	13
2.9	Directors of Surviving Corporation After Effective Time	13
2.10	Certificate of Incorporation and Bylaws	13
2.11	Treatment of Stock Options and Restricted Stock	13
2.12	Dissenters Rights	14
2.13	Bank Merger	14
2.14	Alternative Structure	15
2.15	Absence of Control	15

ARTICLE III - REPRESENTATIONS AND WARRANTIES		15
3.1	Disclosure Letters	15
3.2	Representations and Warranties of Factory Point Bancorp	15
3.3	Representations and Warranties of Berkshire Hills Bancorp	31

ARTICLE IV - CONDUCT PENDING THE MERGER		42
4.1	Forbearances by Factory Point Bancorp	42
4.2	Forbearances by Berkshire Hills Bancorp	45

ARTICLE V - COVENANTS		46
5.1	Acquisition Proposals	46
5.2	Advice of Changes	47
5.3	Access and Information	47
5.4	Applications; Consents	49
5.5	Anti-takeover Provisions	49
5.6	Additional Agreements	49
5.7	Publicity	49
5.8	Shareholder Meetings	50
5.9	Registration of Berkshire Hills Bancorp Common Stock	51
5.10	Notification of Certain Matters	52
5.11	Employee Benefit Matters	52
5.12	Indemnification	54
5.13	Affiliate Letters	55


5.14	Board of Directors	55
5.15	Section 16 Matters	55
5.16	Dividends	55

ARTICLE VI - CONDITIONS TO CONSUMMATION		55
6.1	Conditions to Each Partys Obligations	55
6.2	Conditions to the Obligations of Berkshire Hills Bancorp	57
6.3	Conditions to the Obligations of Factory Point Bancorp	57

ARTICLE VII - TERMINATION		58
7.1	Termination	58
7.2	Termination Fee	60
7.3	Effect of Termination	61

ARTICLE VIII - CERTAIN OTHER MATTERS		61
8.1	Interpretation	61
8.2	Survival	62
8.3	Waiver; Amendment	62
8.4	Counterparts	62
8.5	Governing Law	62
8.6	Expenses	62
8.7	Notices	62
8.8	Entire Agreement; etc.	63
8.9	Successors and Assigns; Assignment	63
8.10	Specific Performance	63

EXHIBITS


Exhibit A		Form of Voting Agreement
Exhibit B		Plan of Bank Merger
Exhibit C		Form of Consulting and Non-Competition Agreement
Exhibit D		Form of Retention Agreement
Exhibit E		Form of Affiliate Letter

Agreement and Plan of Merger

This is an Agreement and Plan of Merger, dated as of the 14^th day of May, 2007 (Agreement), by and between Berkshire Hills Bancorp, Inc., a Delaware corporation (Berkshire Hills Bancorp), and Factory Point Bancorp, Inc., a Delaware corporation (Factory Point Bancorp).

Introductory Statement

The Board of Directors of each of Berkshire Hills Bancorp and Factory Point Bancorp has determined that this Agreement and the business combination and related transactions contemplated hereby are advisable and in the best interests of Berkshire Hills Bancorp or Factory Point Bancorp, as the case may be, and in the best long-term interests of the shareholders of Berkshire Hills Bancorp or Factory Point Bancorp, as the case may be.

The parties hereto intend that the Merger as defined herein shall qualify as a reorganization under the provisions of Section 368(a) of the IRC for federal income tax purposes.

Berkshire Hills Bancorp and Factory Point Bancorp each desire to make certain representations, warranties and agreements in connection with the business combination and related transactions provided for herein and to prescribe various conditions to such transactions.

As a condition and inducement to Berkshire Hills Bancorps willingness to enter into this Agreement, certain of the members of the Board of Directors of Factory Point Bancorp have entered into an agreement dated as of the date hereof in the form of Exhibit A pursuant to which he or she will vote his shares of Factory Point Bancorp Common Stock in favor of this Agreement and the transactions contemplated hereby.

In consideration of their mutual promises and obligations hereunder, the parties hereto adopt and make this Agreement and prescribe the terms and conditions hereof and the manner and basis of carrying it into effect, which shall be as follows:

ARTICLE I

DEFINITIONS

The following terms are defined in this Agreement in the Section indicated:


Defined Term		Location of Definition
Articles of Merger		Section 2.3
Average Index Price		Section 7.1(h)
Bank Merger		Section 2.13
Berkshire Hills Bancorp		Section 3.3(q)
Berkshire Hills Bancorp Employee Plan		Section 3.3(q)
Berkshire Hills Bancorp Pension Plan		preamble


Berkshire Hills Bancorp Qualified Plan		Section 3.3(q)
Berkshire Hills Bancorp Ratio		Section 7.1(h)
Berkshire Hills Bancorps Reports		Section 3.3(g)
Cash Consideration		Section 2.5(a)
Cash Election		Section 2.6(b)
Cash Election Shares		Section 2.6(b)
Certificate(s)		Section 2.6(c)
Change in Recommendation		Section 5.8
Closing		Section 2.2
Closing Date		Section 2.2
Continuing Employee		Section 5.11(a)
Converted Options		Section 2.11
Disclosure Letter		Section 3.1
Dissenters Shares		Section 2.12
Effective Time		Section 2.3
Election Deadline		Section 2.6(c)
Election Form		Section 2.6(a)
Exchange Agent		Section 2.6(c)
Exchange Ratio		Section 2.5(a)
Factory Point Bancorp		preamble
Factory Point Bancorp Employee Plans		Section 3.2(r)(i)
Factory Point Bancorp Option		Section 2.11
Factory Point Bancorp Pension Plan		Section 3.2(r)(iii)
Factory Point Bancorp Qualified Plan		Section 3.2(r)(iv)
Factory Point Bancorps Reports		Section 3.2(g)
Factory Point National		Section 2.13
Fee		Section 7.2(a)
Indemnified Party		Section 5.12(a)
Index Group		Section 7.1(h)
Index Ratio		Section 7.1(h)
Intellectual Property		Section 3.2(p)
Letter of Transmittal		Section 2.7(a)
Mailing Date		Section 2.6(a)
Maximum Insurance Amount		Section 5.12(c)
Measurement Period		Article I
Merger		Section 2.1
Merger Consideration		Section 2.5(a)
Mixed Election		Section 2.6(b)
Non-Election		Section 2.6(b)
Non-Election Shares		Section 2.6(b)
Proxy Statement-Prospectus		Section 5.9(a)
Registration Statement		Section 5.9(a)
Representative		Section 2.6(b)
Shareholder Meeting		Section 5.8
Shortfall Number		Section 2.6(e)(ii)
Starting Index Price		Section 7.1(h)


Stock Consideration		Section 2.5(a)
Stock Conversion Number		Section 2.6(d)
Stock Election		Section 2.6(b)
Stock Election Number		Section 2.6(b)
Stock Election Shares		Section 2.6(b)
Surviving Corporation		Section 2.1

In addition, for purposes of this Agreement:

Acquisition Proposal means any proposal or offer with respect to any of the following (other than the transactions contemplated hereunder): (i) any merger, consolidation, share exchange, business combination, or other similar transaction involving Factory Point Bancorp or any of its Subsidiaries; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 25% or more of Factory Point Bancorps consolidated assets in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 25% or more of the outstanding shares of Factory Point Bancorps capital stock or the filing of a registration statement under the Securities Act of 1933, as amended, in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in an any of the foregoing.

Agreement means this Agreement, as amended, modified or amended and restated from time to time in accordance with its terms.

Berkshire Hills Bancorp Common Stock means the common stock, par value $0.01 per share, of Berkshire Hills Bancorp.

Berkshire Hills Bancorp Price means the average of the closing sales price of Berkshire Hills Bancorp Common Stock, as reported on The Nasdaq Stock Market, for the ten consecutive trading days ending on the date that is ten business days prior to the Closing Date (the Measurement Period); provided, however, that any date on which fewer than 100 shares of Berkshire Hills Bancorp Common Stock trades shall be disregarded in computing the average closing sales price and the average shall be based upon the closing sales price and number of days on which 100 or more shares of Berkshire Hills Bancorp Common Stock traded during the ten consecutive trading days ending on a date that is ten business days prior to the Closing Date.

BHCA means the Bank Holding Company Act of 1956, as amended.

CRA means the Community Reinvestment Act.

DGCL means the Delaware General Corporation Law.

Environmental Law means any federal, state or local law, statute, ordinance, rule, regulation, code, license, permit, authorization, approval, consent, order, directive, executive or administrative order, judgment, decree, injunction, or agreement with any Governmental Entity relating to (i) the protection, preservation or restoration of the environment (which includes, without limitation, air, water vapor, surface water, groundwater, drinking water supply, soil,

surface land, subsurface land, plant and animal life or any other natural resource), or to human health or safety as it relates to Hazardous Materials, or (ii) the exposure to, or the use, storage, recycling, treatment, generation, transportation, processing, handling, labeling, production, release or disposal of, Hazardous Materials, in each case as amended and as now in effect. The term Environmental Law includes, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, the Federal Water Pollution Control Act of 1972, the Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource Conservation and Recovery Act of 1976, the Federal Solid Waste Disposal and the Federal Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Federal Occupational Safety and Health Act of 1970 as it relates to Hazardous Materials, the Federal Hazardous Substances Transportation Act, the Emergency Planning and Community Right-To-Know Act, the Safe Drinking Water Act, the Endangered Species Act, the National Environmental Policy Act, the Rivers and Harbors Appropriation Act or any so-called Superfund or Superlien law, each as amended and as now in effect.

ERISA means the Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate means any entity that is considered one employer with Factory Point Bancorp under Section 4001(b)(1) of ERISA or Section 414 of the IRC.

Exchange Act means the Securities Exchange Act of 1934, as amended.

Excluded Shares shall consist of (i) Dissenters Shares and (ii) shares held directly or indirectly by Berkshire Hills Bancorp (other than shares held in a fiduciary capacity or in satisfaction of a debt previously contracted).

Factory Point Bancorp Common Stock means the common stock, par value $1.00 per share, of Factory Point Bancorp.

FDIC means the Federal Deposit Insurance Corporation.

FRB means the Federal Reserve Board.

GAAP means generally accepted accounting principles.

Government Regulator means any federal or state governmental authority charged with the supervision or regulation of depository institutions or depository institution holding companies or engaged in the insurance of bank deposits.

Governmental Entity means any court, administrative agency or commission or other governmental authority or instrumentality.

Hazardous Material means any substance (whether solid, liquid or gas) which is or could be detrimental to human health or safety or to the environment, currently or hereafter listed, defined, designated or classified as hazardous, toxic, radioactive or dangerous, or

otherwise regulated, under any Environmental Law, whether by type or by quantity, including any substance containing any such substance as a component. Hazardous Material includes, without limitation, any toxic waste, pollutant, contaminant, hazardous substance, toxic substance, hazardous waste, special waste, industrial substance, oil or petroleum, or any derivative or by-product thereof, radon, radioactive material, asbestos, asbestos-containing material, urea formaldehyde foam insulation, lead and polychlorinated biphenyl.

HOLA means the Home Owners Loan Act, as amended.

IRC means the Internal Revenue Code of 1986, as amended.

knowledge means, with respect to a party hereto, actual knowledge of the members of the Board of Directors of that party or any officer of that party with the title ranking not less than vice president.

Lien means any charge, mortgage, pledge, security interest, claim, lien or encumbrance.

Loan means a loan, lease, advance, credit enhancement, guarantee or other extension of credit.

Loan Property means any property in which the applicable party (or a subsidiary of it) holds a security interest and, where required by the context, includes the owner or operator of such property, but only with respect to such property.

Material Adverse Effect means an effect which is material and adverse to the business, financial condition or results of operations of Factory Point Bancorp or Berkshire Hills Bancorp, as the context may dictate, and its Subsidiaries taken as a whole; provided, however, that any such effect resulting from any (i) changes in laws, rules or regulations or generally accepted accounting principles or regulatory accounting requirements or interpretations thereof that apply to both Berkshire Hills Bancorp and Factory Point Bancorp, or to financial and/or depository institutions generally, (ii) changes in economic conditions affecting financial institutions generally, including but not limited to, changes in the general level of market interest rates, (iii) actions and omissions of Berkshire Hills Bancorp or Factory Point Bancorp taken with the prior written consent of the other or (iv) direct effects of compliance with this Agreement on the operating performance of the parties, including expenses incurred by the parties in consummating the transactions contemplated by this Agreement, shall not be considered in determining if a Material Adverse Effect has occurred.

OCC means the Office of the Comptroller of the Currency.

OTS means the Office of Thrift Supervision.

Participation Facility means any facility in which the applicable party (or a Subsidiary of it) participates in the management (including all property held as trustee or in any

other fiduciary capacity) and, where required by the context, includes the owner or operator of such property, but only with respect to such property.

person means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization or other entity.

Securities Act means the Securities Act of 1933, as amended.

Subsidiary means a corporation, partnership, joint venture or other entity in which Factory Point Bancorp or Berkshire Hills Bancorp, as the case may be, has, directly or indirectly, an equity interest representing 50% or more of any class of the capital stock thereof or other equity interests therein.

Superior Proposal means an unsolicited, bona fide written offer made by a third party to consummate an Acquisition Proposal that (i) Factory Point Bancorps Board of Directors determines in good faith, after consulting with its outside legal counsel and its financial advisor, would, if consummated, result in a transaction that is more favorable to the shareholders of Factory Point Bancorp than the transactions contemplated hereby (taking into account all legal, financial, regulatory and other aspects of the proposal and the entity making the proposal), (ii) is not conditioned on obtaining financing (and with respect to which Berkshire Hills Bancorp has received written evidence of such persons ability to fully finance its Acquisition Proposal), (iii) is for 100% of the outstanding shares of Factory Point Bancorp Common Stock and (iv) is, in the written opinion of Factory Point Bancorps financial advisor, more favorable to the shareholders of Factory Point Bancorp from a financial point of view than the transactions contemplated hereby (including any adjustments to the terms and conditions of such transactions proposed by Berkshire Hills Bancorp in response to such Acquisition Proposal).

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