Attached files
file | filename |
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8-K - LEGACY BANCORP, INC. - Legacy Bancorp, Inc. | b83887e8vk.htm |
EX-2.1 - EX-2.1 - Legacy Bancorp, Inc. | b83887exv2w1.htm |
EX-99.2 - EX-99.2 - Legacy Bancorp, Inc. | b83887exv99w2.htm |
EX-10.1 - EX-10.1 - Legacy Bancorp, Inc. | b83887exv10w1.htm |
EXHIBIT 99.1
December 21, 2010
Board of Directors
Berkshire Hills Bancorp, Inc.
24 North Street
Pittsfield, Massachusetts 02101
Berkshire Hills Bancorp, Inc.
24 North Street
Pittsfield, Massachusetts 02101
To the Board of Directors:
The undersigned (Shareholder) is an executive officer or director of Legacy Bancorp, Inc.
(Legacy) and the beneficial holder of shares of common stock of Legacy (the Legacy Common
Stock).
Berkshire Hills Bancorp, Inc. (Berkshire Hills Bancorp) and Legacy are considering the
execution of an Agreement and Plan of Merger (the Merger Agreement) pursuant to which Berkshire
Hills Bancorp will acquire Legacy (the Merger). The execution of the Merger Agreement by
Berkshire Hills Bancorp is subject to the execution and delivery of this letter agreement (the
Agreement). All terms used herein but not defined herein shall have the meaning set forth in the
Merger Agreement.
Shareholder, to induce Berkshire Hills Bancorp to execute and deliver to Legacy the Merger
Agreement, agrees and undertakes, solely in his or her capacity as a stockholder of Legacy, and not
in his or her capacity as a director or officer of Legacy, as follows:
1. This Agreement shall not apply to those shares of Legacy Common Stock, if any (the
Excluded Shares), that Shareholder (i) may exercise voting or investment power as a fiduciary for
others or (ii) as to which Shareholder does not have, directly or indirectly, voting power. As of
the date hereof, the undersigned has voting power with respect to shares of Legacy Common Stock,
other than Excluded Shares, if any.
2. While this Agreement is in effect Shareholder shall not, directly or indirectly, (a) sell
or otherwise dispose of or encumber before the record date of Legacys Shareholder Meeting, as
defined in the Merger Agreement, any or all of his or her shares of Legacy Common Stock, whether
such shares are beneficially owned by the Shareholder on the date of the Agreement or are
subsequently acquired, to any person other than (i) pursuant to the Merger or (ii) in a Permitted
Transfer (as hereinafter defined), or (b) deposit any shares of Legacy Common Stock into a voting
trust or enter into a voting agreement or arrangement with respect to any shares of Legacy Common
Stock or grant any proxy with respect thereto, other than to other members of the Board of
Directors of Legacy to vote to approve the Merger Agreement and the Merger and matters related
thereto. For the avoidance of doubt, no reference to beneficial ownership hereunder shall be
interpreted to require Shareholder to exercise Legacy Stock
Options at any time. For the purposes of this Agreement, Permitted Transfer means any of
the following transfers: (i) a transfer by will or operation of law, in which case this Agreement
shall bind the transferee, (ii) a transfer pursuant to any pledge agreement existing as of the date
of this Agreement, subject to the pledgee agreeing in writing to be bound by the terms of this
Agreement, (iii) a transfer for estate and tax planning purposes, including any transfer to
relatives, trusts and charitable organizations, subject in each case to the transferee agreeing in
writing to be bound by the terms of this Agreement, (iv) a transfer from Shareholder to one or more
other shareholders of Legacy who are bound by terms of a comparable voting agreement with Berkshire
Hills Bancorp, and (v) a Transfer made with the prior written consent of Berkshire Hills Bancorp.
3. While this Agreement is in effect Shareholder shall vote or cause to be voted all of the
shares of Legacy Common Stock that Shareholder shall be entitled to so vote, whether such shares
are beneficially owned by the Shareholder on the date of this Agreement or are subsequently
acquired, whether pursuant to the exercise of stock options or otherwise, (less any Legacy Common
Stock subsequently disposed of pursuant to a Permitted Transfer), for the approval of the Merger
Agreement and the Merger at Legacys Shareholder Meeting.
4. Shareholder acknowledges and agrees that any remedy at law for breach of the foregoing
provisions shall be inadequate and that, in addition to any other relief that may be available,
Berkshire Hills Bancorp shall be entitled to temporary and permanent injunctive relief without
having to prove actual damages.
5. This Agreement shall only apply to actions taken by Shareholder in his or her capacity as a
shareholder of Legacy and, if applicable, shall not in any way limit or affect actions the
undersigned may take in his or her capacity as a director, officer, or employee of Legacy. Nothing
contained in this Agreement shall be deemed to apply to, or limit in any manner, the obligations of
Shareholder to comply with whatever fiduciary duties he or she may have as a director, officer or
employee of Legacy and none of the terms of this Agreement shall be deemed to prohibit or prevent
any director or executive officer from exercising his or her fiduciary obligations in the context
of a Superior Proposal pursuant to Section 6.11 of the Merger Agreement.
6. This Agreement shall automatically terminate upon the earlier of (i) the favorable vote of
Legacys shareholders with respect to the approval of the Merger Agreement and the Merger, (ii) the
termination of the Merger Agreement in accordance with its terms, or (iii) upon mutual written
agreement of the parties to terminate this Agreement. Shareholder shall have the right to
terminate this Agreement unilaterally if the Merger Agreement is amended to decrease the Merger
Consideration, provided that Shareholder sends notice to Berkshire Hills Bancorp of Shareholders
election to terminate within three (3) Business Days after the public announcement of such
amendment, in which case this Agreement shall terminate on the date Berkshire Hills Bancorp
receives such notice.
7. Nothing contained in this Agreement shall be deemed to vest in Berkshire Hills Bancorp any
direct or indirect ownership or incidence of ownership of or with respect to any of the Legacy
Common Stock. All rights, ownership and economic benefits of and relating to the
Legacy Common Stock shall remain and belong to the applicable Shareholder and Berkshire Hills
Bancorp shall have no power or authority to direct any Shareholder in the voting of any of the
Legacy Common Stock or the performance by any Shareholder of its duties or responsibilities as a
shareholder of Legacy, except as otherwise provided herein.
8. Irrespective of negotiations among the parties or the exchanging of drafts of this
Agreement, this Agreement shall not constitute or be deemed to evidence a contract, agreement,
arrangement or understanding between the parties hereto unless and until (a) the Merger Agreement
is executed by all parties thereto, and (b) this Agreement is executed by Shareholder and Berkshire
Hills Bancorp.
IN WITNESS WHEREOF, Shareholder has executed this agreement as of the date first above
written.
Very truly yours, |
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Print Name | ||||
Accepted and agreed to as of
the date first above written:
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Berkshire Hills Bancorp, Inc. |
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Michael P. Daly |
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President and Chief Executive Officer |