Exhibit 2.2
SEPTEMBER 1, 2004
VOTING AGREEMENT
VOTING AGREEMENT ("AGREEMENT"), dated as of September 1, 2004, by and
between Benjamin Franklin Bancorp, M.H.C., a Massachusetts mutual holding
company ("BANCORP"), and the undersigned ("STOCKHOLDER") holder of common stock,
par value $1.00 per share ("SHARES"), of Chart Bank, A Cooperative Bank, a
Massachusetts-chartered cooperative bank in stock form ("CHART").
WHEREAS, Bancorp, Benjamin Franklin Savings Bank ("BFSB") and Chart have
entered into an Agreement and Plan of Merger, dated as of the date hereof (as
such agreement may be subsequently amended or modified, the "AGREEMENT AND PLAN
OF MERGER"), providing for the merger of Chart with BFSB (the "MERGER");
WHEREAS, Stockholder beneficially owns and has sole or shared voting power
with respect to the number of Shares, and holds stock options or other rights to
acquire the number of Shares indicated opposite Stockholder's name on Schedule 1
attached hereto;
WHEREAS, it is a condition to the consummation of the Merger that
Stockholder execute and deliver this Agreement on the date hereof; and
WHEREAS, all capitalized terms used in this Agreement without definition
herein shall have the meanings ascribed to them in the Agreement and Plan of
Merger.
NOW, THEREFORE, in consideration of, and as a condition to, Bancorp
entering into the Agreement and Plan of Merger and proceeding with the
transactions contemplated thereby, and in consideration of the expenses incurred
and to be incurred by Bancorp in connection therewith, Stockholder and Bancorp
agree as follows:
1. AGREEMENT TO VOTE SHARES. Stockholder agrees that, prior to the
Expiration Date (as defined in Section 2), at any meeting of the stockholders of
Chart, or in connection with any written consent of the stockholders of Chart,
with respect to the Merger, the Agreement and Plan of Merger or any Acquisition
Proposal or any Unsanctioned Agreement (as such term is defined in Section 1(b))
or any adjournment thereof, Stockholder shall:
(a) Appear at such meeting or otherwise cause the Shares to be
counted as present thereat for purposes of calculating a quorum; and
(b) From and after the date hereof until the Expiration Date, vote
(or cause to be voted) or deliver a written consent (or cause a written
consent to be delivered) covering all of the Shares that such Stockholder
shall be entitled to so vote, whether such Shares are beneficially owned
by such Stockholder on the date of this Agreement or are subsequently
acquired, (i) in favor of adoption and approval of the Agreement and Plan
of Merger and the transactions contemplated thereby, including the Merger;
(ii) against any action or agreement that would result in a breach in any
material respect of any covenant, representation, or warranty or any other
obligation or agreement of Chart
contained in the Agreement and Plan of Merger or of Stockholder contained
in this Agreement; and (iii) against any Acquisition Proposal or any
agreement or transaction that is intended, or could reasonably be
expected, to materially impede, interfere with, delay, postpone,
discourage or materially and adversely affect the consummation of the
Merger or any of the transactions contemplated by the Agreement and Plan
of Merger ("UNSANCTIONED AGREEMENT").
2. EXPIRATION DATE. As used in this Agreement, the term "EXPIRATION DATE"
shall mean the earlier of (i) the Special Payment Termination Date or (ii) the
mutual written agreement of the parties hereto to terminate this Agreement. Upon
termination or expiration of this Agreement, no party shall have any further
obligations or liabilities under this Agreement; provided, however, that such
termination or expiration shall not relieve any party from liability for any
willful breach of this Agreement prior to termination hereof.
3. AGREEMENT TO RETAIN CHART EQUITY INTERESTS. From and after the date
hereof until the Expiration Date, Stockholder shall not, except as contemplated
by this Agreement or the Agreement and Plan of Merger, directly or indirectly,
sell, assign, transfer, assign, or otherwise dispose of (including, without
limitation, by the creation of a Lien (as defined below)), or enter into any
contract, option, commitment or other arrangement or understanding with respect
to the sale, transfer, assignment or other disposition of, any Shares or option
or right to obtain Shares or any interest convertible into, or exercisable for,
Shares or the right to obtain Shares (Shares and such rights, collectively, the
"CHART EQUITY INTERESTS") owned by Stockholder, whether such Chart Equity
Interests are held by Stockholder on the date of this Agreement or are
subsequently acquired prior to any meeting (or written consent in lieu thereof)
of Stockholders prior to the Expiration Date, whether by the exercise of any
option or right to obtain Chart Equity Interests or otherwise. Notwithstanding
the foregoing, Stockholder may make (a) transfers by will, or by operation of
law, in which case this Agreement shall bind the transferee, (b) transfers in
connection with estate and charitable planning purposes, including transfers to
relatives, trusts and charitable organizations, subject to the transferee
agreeing in writing to be bound by the terms of, and perform the obligations of
Stockholder under, this Agreement, and (c) as Bancorp may otherwise agree in
writing in its sole discretion.
4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. Stockholder hereby
represents and warrants to Bancorp as follows:
(a) Stockholder has the complete and unrestricted power and the
unqualified right to enter into and perform the terms of this Agreement;
(b) This Agreement (assuming this Agreement constitutes a valid and
binding agreement of Bancorp) is a valid and legally binding agreement
with respect to Stockholder, enforceable in accordance with its terms
(except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar
laws of general applicability relating to or affecting creditors' rights
or by general equity principles);
(c) Except as set forth on Schedule 1, Stockholder beneficially owns
the number of Shares indicated opposite such Stockholder's name on
Schedule 1, free and clear of any
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liens, claims, charges or other encumbrances or restrictions of any kind
whatsoever ("LIENS"), and has sole or shared, and otherwise unrestricted,
voting power with respect to such Shares;
(d) Stockholder understands that at the Effective Time of the
Merger, (i) each outstanding Share listed on Schedule 1 shall be cancelled
and converted into the right to receive either (A) 3.075 shares of Bancorp
Common Stock or (B) a cash amount equal to $30.75 per share of Chart
Common Stock (subject to the terms and provisions of the Agreement and
Plan of Merger), and (ii) to the extent not exercised or otherwise
terminated in accordance with the terms of the Agreement and Plan of
Merger prior to the Effective Time, each option or other right to acquire
the number of Shares indicated opposite Stockholder's name on Schedule 1
shall be terminated and the grantee thereof shall be entitled to receive
an amount of cash computed by multiplying (i) the difference between (x)
the Per Share Cash Consideration and (y) the per share exercise price
applicable to such Chart Option, by (ii) the number of such shares of
Chart Common Stock subject to such Chart Option, as set forth in the
Agreement and Plan of Merger;
(e) The execution and delivery of this Agreement by Stockholder does
not, and the performance by Stockholder of his, her or its obligations
hereunder and the consummation by Stockholder of the transactions
contemplated hereby will not, violate or conflict with, or constitute a
default under, any agreement, instrument, contract or other obligation or
any order, arbitration award, judgment or decree to which Stockholder is a
party or by which Stockholder is bound, or any statute, rule or regulation
to which Stockholder is subject or, in the event that Stockholder is a
corporation, partnership, trust or other entity, any by-law or other
organizational document of Stockholder; and
(f) Stockholder is not aware of any claim (or any basis therefor),
whether in Stockholder's capacity as a stockholder or former stockholder,
option holder or former option holder, warrant holder or former warrant
holder, of Chart, in any way arising out of or based upon: (i) ownership
or rights to ownership of any Shares other than the Chart Equity Interests
listed on Schedule 1 that would not be resolved completely upon
Stockholder's receipt of the Merger Consideration and any other amounts
described in Section 4(d); (ii) any rights to obtain additional Chart
Equity Interests; or (iii) any claim that any Chart Equity Interests were
wrongfully repurchased by Chart.
5. IRREVOCABLE PROXY. Subject to the last sentence of this Section 5, by
execution of this Agreement, Stockholder does hereby appoint Bancorp with full
power of substitution and resubstitution, as Stockholder's true and lawful
attorney an irrevocable proxy, to the full extent of the undersigned's rights
with respect to the Shares, to vote, if Stockholder is unable to perform his,
her or its obligations under this Agreement, each of such Shares solely with
respect to the matters set forth in Section 1 hereof. Stockholder intends this
proxy to be irrevocable and coupled with an interest hereafter until the
Expiration Date and hereby revokes any proxy previously granted by Stockholder
with respect to the Shares. Notwithstanding anything contained herein to the
contrary, this irrevocable proxy shall automatically terminate upon the
Expiration Date of this Agreement.
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6. NO SOLICITATION. From and after the date hereof until the Expiration
Date, Stockholder, in his, her or its capacity as a stockholder of Chart, shall
not, nor to the extent applicable to Stockholder, shall he, she or it permit any
of his, her or its affiliates to, nor shall he, she or it authorize any partner,
officer, director, advisor or representative of Stockholder or any of its
affiliates to (a) solicit, initiate or knowingly encourage the submission of any
inquiries, proposals or offers from any person relating to a proposal regarding
an Acquisition Proposal or any Unsanctioned Agreement, (b) enter into any
agreement with respect to an Acquisition Proposal (other than the Agreement and
Plan of Merger) or any Unsanctioned Agreement, (c) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Acquisition Proposal or an
Unsanctioned Agreement (other than the Agreement and Plan of Merger), or
otherwise encourage or assist any party in taking or planning any action that
would compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms of the Agreement
and Plan of Merger, (d) initiate a stockholders' vote or action by consent of
Chart's stockholders with respect to an Acquisition Proposal or Unsanctioned
Agreement, or (e) except by reason of this Agreement, become a member of a
"group" (as such term is used in Section 13(d) of the Exchange Act) with respect
to any voting securities of Chart that takes any action in support of an
Acquisition Proposal or Unsanctioned Agreement.
7. SPECIFIC ENFORCEMENT. Stockholder has signed this Agreement intending
to be legally bound thereby. Stockholder expressly agrees that this Agreement
shall be specifically enforceable in any court of competent jurisdiction in
accordance with its terms against Stockholder. All of the covenants and
agreements contained in this Agreement shall be binding upon, and inure to the
benefit of, the respective parties and their permitted successors, assigns,
heirs, executors, administrators and other legal representatives, as the case
may be.
8. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same instrument.
9. NO WAIVERS. No waivers of any breach of this Agreement extended by
Bancorp to Stockholder shall be construed as a waiver of any rights or remedies
of Bancorp with respect to any other stockholder of Chart who has executed an
agreement substantially in the form of this Agreement with respect to Shares
held or subsequently held by such stockholder, or with respect to any subsequent
breach of Stockholder or any other such stockholder of Chart. No waiver of any
provisions hereof by either party shall be deemed a waiver of any other
provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
10. MISCELLANEOUS. This Agreement is to be governed by the laws of The
Commonwealth of Massachusetts, without giving effect to the principles of
conflicts of laws thereof. If any provision hereof is deemed unenforceable, the
enforceability of the other provisions hereof shall not be affected.
11. CAPACITY AS STOCKHOLDER. Stockholder signs this Agreement solely in
Stockholder's capacity as a stockholder of Chart, and not in Stockholder's
capacity as a director, officer or employee of Chart or any of its subsidiaries
or in Stockholder's capacity as a trustee or fiduciary
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of any ERISA plan or trust. Notwithstanding anything herein to the contrary,
nothing herein shall in any way restrict a director and/or officer of Chart in
the exercise of his or her fiduciary duties, consistent with the terms of the
Agreement and Plan of Merger, as a director and/or officer of Chart or in his or
her capacity as a trustee or fiduciary of any ERISA plan or trust, or prevent or
be construed to create any obligation on the part of any director and/or officer
of Chart or any trustee or fiduciary of any ERISA plan or trust from taking any
action in his or her capacity as a director of Chart.
12. NO AGREEMENT UNTIL EXECUTED. 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 the Agreement and Plan
of Merger is executed by all parties thereto and this Agreement is executed by
the parties whose names are set forth on the signature page hereof. Facsimile
execution and delivery of this Agreement by any of the parties shall be legal,
valid and binding execution and delivery of this Agreement for all purposes.
13. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written or oral, among the parties hereto with respect to the subject matter
hereof and contains the entire agreement among the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by each party hereto.
[SIGNATURE PAGE FOLLOWS]
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EXECUTED as of the date first above written.
STOCKHOLDER
_____________________________________
Name: _______________________________
BENJAMIN FRANKLIN BANCORP, M.H.C.
By:__________________________________
Name:________________________________
Title: ______________________________
SCHEDULE 1
STOCKHOLDER SHARES OPTIONS