Beacon Financial Corp 8-K, filed Sep 2, 2025
Beacon Financial Corp (BBT)
About this 8-K
Beacon Financial Corp filed this 8-K on September 2, 2025, reporting on events of September 1, 2025.
Items reported
- Item 2.01: Completed an acquisition or sale of assets
- Item 2.03: New debt or off-balance-sheet obligation
- Item 3.01: Delisting notice or listing transfer
- Item 5.02: Director or officer change, or executive pay
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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| Item 2.01 | Completion of Acquisition or Disposition of Assets |
On September 1, 2025, Beacon Financial Corporation, a Delaware corporation previously known as “Berkshire Hills Bancorp, Inc.” (the “Company” or “Beacon Financial”), completed its previously announced merger of equals transaction with Brookline Bancorp, Inc., a Delaware corporation (“Brookline”), pursuant to the Agreement and Plan of Merger, dated as of December 16, 2024, by and among the Company, Commerce Acquisition Sub, Inc. and Brookline (the “Merger Agreement”). On September 1, 2025, Commerce Acquisition Sub, Inc. merged with and into Brookline (the “Merger”), immediately followed by the merger of Brookline with and into the Company (the “Holdco Merger”), with the Company as the resulting corporation. The Company also changed its name from “Berkshire Hills Bancorp, Inc.” to “Beacon Financial Corporation.” Immediately following the closing of the Holdco Merger, the Company changed its New York Stock Exchange ticker symbol for its common stock, par value $0.01 per share (the “Company Common Stock”), from “BHLB” to “BBT.” Immediately following the closing of the Holdco Merger, the Company had approximately 84,272,242 shares of common stock outstanding.
Pursuant to the terms of the Merger Agreement, as of the closing of the Holdco Merger, each share of Brookline common stock, par value $0.01 per share, was converted into the right to receive 0.42 shares (the “Exchange Ratio”) of Company Common Stock, with cash to be paid in lieu of fractional shares. Each previously outstanding share of Company Common Stock remained outstanding and was unaffected by the Merger.
Immediately following the Holdco Merger, Berkshire Bank, a wholly owned subsidiary of the Company, Bank Rhode Island, a wholly owned subsidiary of Brookline, and PCSB Bank, a wholly owned subsidiary of Brookline, each merged with and into Brookline Bank, a wholly owned subsidiary of Brookline, with Brookline Bank as the surviving bank (the “Bank Mergers” and, together with the Merger and the Holdco Merger, the “Transaction”). Additionally, Brookline Bank changed its name to “Beacon Bank & Trust,” although it will be more commonly referred to as “Beacon Bank.”
The foregoing description of the Transaction and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated by reference into this Item 2.01.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant |
In connection with the Holdco Merger, the Company assumed $75.0 million of 6.000% Fixed-to-Floating Rate Subordinated Debentures due September 15, 2029 (the “Notes”) of Brookline. The terms of the Notes are set forth in an Indenture dated September 16, 2014, a First Supplemental Indenture, including the form of the Notes, dated September 16, 2014, and a Second Supplemental Indenture dated September 1, 2025, copies of which are included as Exhibits 4.1, 4.2 and 4.3 to this Current Report on Form 8-K and are incorporated by reference into this Item 2.03.
In addition, the Company assumed Brookline’s obligations with respect to Brookline’s outstanding trust preferred securities and subordinated notes, consisting of (i) $4.9 million of floating rate junior subordinated deferrable interest debenture due March 17, 2034 (the “2034 Debenture”) and (ii) $4.9 million of fixed/floating rate junior subordinated deferrable interest debentures due June 26, 2033 (the “2033 Debenture” and together with the 2034 Debenture, the “Debentures”). The supplemental indentures pursuant to which the Company assumed each of the Debentures, as well as the original indentures pursuant to which each Debenture was issued, have not been filed herewith pursuant to Item 601(b)(4)(v) of Regulation S-K under the Securities Act. The Company agrees to furnish a copy of such indentures to the SEC upon request.
| Item 3.01 | Material Modifications of Rights of Security Holders |
In connection with the consummation of the Holdco Merger, the Company filed a Certificate of Merger with the Delaware Secretary of State (the “Certificate of Merger”). As of the closing of the Holdco Merger, the Certificate of Merger effected several amendments to the Certificate of Incorporation of the Company, including to increase the total number of authorized shares of the Company’s capital stock from 102,000,000 to 202,000,000, of which 200,000,000 shares are designated as shares of common stock, par value $0.01, and 2,000,000 shares are designated as shares of preferred stock, par value $0.01. A description of the Company’s capital stock is included in the joint proxy statement/prospectus filed by the Company with the Securities and Exchange Commission on April 8, 2025 (the “Joint Proxy Statement/Prospectus”) in the section entitled “Description of Berkshire Capital Stock” and is incorporated by reference into this Item 3.01.
The information set forth in Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
Appointment of Directors
As of the closing of the Transaction, Beacon Financial increased the size of its Board of Directors to 16 members and each of Joanne B. Chang, Margaret Boles Fitzgerald, Willard I. Hill, Jr., Thomas J. Hollister, Bogdan Nowak, John M. Pereira, Paul A. Perrault and Merrill W. Sherman (collectively the “Legacy Brookline Directors”) were appointed to serve as directors of Beacon Financial. There are no arrangements between the Legacy Brookline Directors and any other person pursuant to which the Legacy Brookline Directors were selected as directors. There are no transactions in which any Legacy Brookline Director has an interest requiring disclosure under Item 404(a) of Regulation S-K with the exception of a lease agreement between Brookline Bank and Flour Bakery, a related interest of Ms. Chang. The lease agreement was entered into before Ms. Chang joined the Brookline board of directors and provides for incremental rent adjustments which are consistent with market terms. In 2023, these lease payments exceeded $120,000 annually for the first time and are anticipated to exceed this amount in subsequent years. In 2024, this amount was $175,495.
Each of David M. Brunelle, Mary Anne Callahan, Nina M. Charnley, Mihir A. Desai, William H. Hughes; II, Sylvia Maxfield, Karyn Polito, and Eric S. Rosengren will continue to serve as directors of Beacon Financial following the closing of the Transaction.
Accordingly, as of September 1, 2025, the Board of Directors of Beacon Financial had the following members:
David M. Brunelle (Board Chair); Mary Anne Callahan; Joanne B. Chang; Nina M. Charnley; Mihir A. Desai; Margaret Boles Fitzgerald; Willard I. Hill, Jr.; Thomas J. Hollister; William H. Hughes; II; Sylvia Maxfield; Bogdan Nowak; John M. Pereira; Paul A. Perrault; Karyn Polito; Eric S. Rosengren; and Merrill W. Sherman.
As of September 1, 2025, the Board of Directors committees listed below consisted of the following members:
| Audit Committee | Compensation Committee |
Corporate Governance and Nominating Committee |
Risk Committee |
Sylvia Maxfield (Chair) Mary Anne Callahan Joanne B. Chang Nina A. Charnley Willard I. Hill, Jr. Thomas J. Hollister |
Bogdan Nowak (Chair) David M. Brunelle Willard I. Hill, Jr. John M. Pereira Karyn Polito Eric Rosengren |
Thomas J. Hollister (Chair) David M. Brunelle Joanne B. Chang William H. Hughes, III Bogdan Nowak Karyn Polito |
Eric Rosengren (Chair) Margaret Boles-Fitzgerald Mihir A. Desai Sylvia Maxfield John M. Pereira Merrill W. Sherman |
Executive Officers
As previously disclosed, effective as closing of the Transaction, the following individuals were appointed as executive officers of the Company:
Paul A. Perrault, President and Chief Executive Officer
Carl M. Carlson, Chief Financial and Strategy Officer
Michael McCurdy, Chief Banking Officer
Mark Meiklejohn, Chief Credit Officer
Accordingly, effective as of September 1, 2025, the executive officers of Beacon Financial and Beacon Bank are:
Paul A. Perrault, President and Chief Executive Officer
Carl M. Carlson, Chief Financial and Strategy Officer
Jacqueline Courtwright, Chief Human Resources Officer
Sean A. Gray, Chief Operations Officer
Michael McCurdy, Chief Banking Officer
Mark Meiklejohn, Chief Credit Officer
Wm. Gordon Prescott, General Counsel and Corporate Secretary
As previously disclosed, in connection with the Merger: (i) Mr. Perrault entered into an amendment to his preexisting employment agreement with Beacon Financial and Beacon Bank which became effective as of September 1, 2025, (ii) Messrs. Carlson and McCurdy each entered into a retention bonus agreement which became effective as of February 26, 2025, (iii) Messrs. Gray and Meiklejohn each entered into an employment agreement with Beacon Financial and Beacon Bank which became effective as of September 1, 2025, and (iv) Ms. Courtwright and Mr. Prescott each entered into a retention agreement with Beacon Financial and Beacon Bank which became effective as of September 1, 2025, copies of which are included as Exhibits 10.1 and 10.2 to this Current Report on Form 8-K and are incorporated by reference into this Item 5.02. The material terms of each agreement are described in detail in Beacon Financial’s Joint Proxy Statement/Prospectus filed with the SEC on April 8, 2025 and are incorporated herein by reference. The Transaction constitutes a “change in control” pursuant to the Three-Year Employment Agreement by and among the Company, Berkshire Bank and Nitin J. Mhatre, who is no longer associated with the Company as a director or officer.
In addition, the Beacon Financial Corporation 2025 Stock Option and Incentive Plan, which was approved at the 2025 Annual Meeting of Stockholders of the Company, became effective as of September 1, 2025. The material terms of the Beacon Financial Corporation 2025 Stock Option and Incentive Plan are described in detail in Beacon Financial’s Joint Proxy Statement/Prospectus filed with the SEC on April 8, 2025 and are incorporated herein by reference.
| Item 5.03 | Amendments to Amended and Restated Certificate of Incorporation or Bylaws; Change in Fiscal Year |
As of the closing of the Holdco Merger, pursuant to the Merger Agreement, the filing of the Certificate of Merger effected several amendments to the Certificate of Incorporation of the Company, including changing the name of the Company to “Beacon Financial Corporation” and increasing the number of shares of authorized capital stock of the Company. The information set forth under Item 3.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
Additionally, as of the closing of the Holdco Merger, the Company’s Bylaws were amended. Pursuant to the Merger Agreement, the amendment to the Amended and Restated Bylaws (the “Bylaws Amendment”) effect the following corporate governance arrangements:
| · | Composition of the Board of Directors. The boards of directors of the Beacon Financial and Beacon Bank each are comprised of 16 directors, with eight directors designated by each of Berkshire (which will include David M. Brunelle) and Brookline (which will include Paul A. Perrault). As of the closing of the Mergers, (i) David M. Brunelle will serve as the Chairman of the board of directors of the surviving corporation and of the board of directors of the surviving bank for a term of two years (assuming Mr. Brunelle is elected for a second term), and (ii) Paul A. Perrault will serve as the President and Chief Executive Officer of the surviving corporation and a member of the board of directors of the surviving corporation and the board of directors of the surviving bank for a term of two years (assuming Mr. Perrault is elected for a second term). |
| · | Executive Management. In addition to Mr. Perrault, the senior executive officers of Beacon Financial and Beacon Bank are (in alphabetical order) (i) Carl M. Carlson who will serve as Chief Financial and Strategy Officer; (ii) Jacqueline Courtwright who will serve as Chief Human Resources Officer; (iii) Sean A. Gray who will serve as Chief Operations Officer; (iv) Michael McCurdy who will serve as Chief Banking Officer; (v) Mark Meiklejohn who will serve as Chief Credit Officer; and (vi) Wm. Gordon Prescott who will serve as General Counsel and Corporate Secretary. |
| · | Corporate Name and Headquarters. The headquarters and main office of Beacon Financial and Beacon Bank is located at 131 Clarendon Street, Boston, Massachusetts 02116. |
The Bylaws Amendment provides that for a two-year period following closing of the Transaction, (i) Mr. Brunelle will serve as chair of the board of directors of Beacon Financial (ii) the affirmative vote of at least two-thirds of the members of Beacon Financial’s board of directors will be required to remove Mr. Perrault, Mr. Carlson, Mr. Gray, Mr. McCurdy or Mr. Meiklejohn from their respective offices or to approve a merger of Beacon Financial with and into any other corporation. The Bylaw Amendments also clarify the ability of stockholders to call annual or special meetings of stockholders, and clarify the bylaws advance notice and stockholder proposal and director nominee provisions, among other items.
The foregoing descriptions of the amendments to the Company’s Amended and Restated Certificate of Incorporation and the Bylaws Amendment do not purport to be complete and are qualified in their entirety by reference to the full text of paragraph 6 of the Certificate of Merger, a copy of which is included as Exhibit 3.1 to this Current Report on Form 8-K, and the full text of the Bylaws Amendment, a copy of which is included as Exhibit 3.2 to this Current Report on Form 8-K, each of which is incorporated by reference into this Item 5.03.
| Item 8.01 | Other Events |
As noted above, in connection with the Merger, the Company changed its name from “Berkshire Hills Bancorp, Inc.” to “Beacon Financial Corporation.” The Company’s Common Stock will continue to trade on the New York Stock Exchange, but its ticker symbol changed from “BHLB” to “BBT” effective September 1, 2025. The Company’s common stock certificates that were outstanding immediately before the closing of the Holdco Merger are not affected by the name change; they continue to be valid and do not need to be exchanged.
On September 2, 2025, the Company issued a press release announcing the completion of the Transaction. The press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits |
| (a) | Financial statements of businesses acquired. |
The information required by Item 9.01(a) of Form 8-K will be filed by amendment no later than 71 calendar days following the date that this Current Report on Form 8-K is required to be filed.
| (b) | Pro forma financial information. |
The information required by Item 9.01(b) of Form 8-K will be filed by amendment no later than 71 calendar days following the date that this Current Report on Form 8-K is required to be filed.
| (c) | Shell company transactions. None. |
| (d) | Exhibits. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
| BEACON FINANCIAL CORPORATION | ||
| DATE: September 2, 2025 | By: | /s/ Wm. Gordon Prescott |
| Wm. Gordon Prescott | ||
| General Counsel and Corporate Secretary | ||
Exhibit 3.1
CERTIFICATE OF MERGER
OF
BROOKLINE BANCORP, INC.
INTO
BERKSHIRE HILLS BANCORP, INC.
(Pursuant to Title 8, Section 251 of the Delaware General Corporation Law)
Berkshire Hills Bancorp, Inc. does hereby certify to the following facts relating to the merger of Brookline Bancorp, Inc. with and into Berkshire Hills Bancorp, Inc. (the “Merger”):
FIRST: The name and state or jurisdiction of incorporation of each of the constituent corporations to the Merger are:
(a) Brookline Bancorp, Inc., a Delaware corporation (“Brookline”); and
(b) Berkshire Hills Bancorp, Inc., a Delaware corporation (“Berkshire” or the “Surviving Corporation”).
SECOND: An Agreement and Plan of Merger (the “Merger Agreement”) of Brookline with and into Berkshire, has been approved, adopted, certified, executed and acknowledged by each of the constituent corporations in accordance with the requirements of Title 8, Section 251 of the Delaware General Corporation Law (the “DGCL”).
THIRD: The name of the Surviving Corporation is Berkshire Hills Bancorp, Inc., a Delaware corporation, which shall herewith be changed to Beacon Financial Corporation upon the effective time of the Merger.
FOURTH: The Certificate of Incorporation of the Surviving Corporation upon the effective time of the merger shall be the Certificate of Incorporation of Berkshire, amended and restated as attached hereto.
FIFTH: This Certificate of Merger, and the Merger provided for herein between the constituent corporations, shall be effective at 12:01 a.m., Eastern Time, on September 1, 2025.
SIXTH: The executed Merger Agreement is on file at the following office of the Surviving Corporation: 131 Clarendon Street, Boston Massachusetts 02116.
SEVENTH: A copy of the Merger Agreement will be furnished by the Surviving Corporation, on request and without cost, to any stockholder of Brookline or Berkshire.
IN WITNESS WHEREOF, this Certificate of Merger has been signed on behalf of the surviving corporation to the Merger by a duly authorized officer on the 26th day of August, 2025.
| BERKSHIRE HILLS BANCORP, INC. | ||
| By: | /s/ Wm. Gordon Prescott | |
| Wm. Gordon Prescott | ||
| General Counsel and Corporate Secretary | ||
-2-
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BEACON FINANCIAL CORPORATION
FIRST: The name of the Corporation is Beacon Financial Corporation (hereinafter sometimes referred to as the “Corporation”).
SECOND: The address of the registered office of the Corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 New Castle County. The name of the registered agent at that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware.
FOURTH:
A. The total number of shares of all classes of stock which the Corporation shall have authority to issue is Two hundred two million (202,000,000) consisting of:
| 1. | Two million (2,000,000) shares of Preferred Stock, par value one cent ($.01) per share (the “Preferred Stock”); and |
| 2. | Two hundred million (200,000,000) shares of Common Stock, par value one cent ($.01) per share (the “Common Stock”). |
B. The Board of Directors is authorized, subject to any limitations prescribed by law, to provide for the issuance of the shares of Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware (such certificate being hereinafter referred to as a “Preferred Stock Designation”), to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences, and rights of the shares of each such series and any qualifications, limitations or restrictions thereof. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the Common Stock, without a vote of the holders of the Preferred Stock, or of any series thereof, unless a vote of any such holders is required pursuant to the terms of any Preferred Stock Designation.
C. 1. Notwithstanding any other provision of this Certificate of Incorporation, in no event shall any record owner of any outstanding Common Stock which is beneficially owned, directly or indirectly, by a person who, as of any record date for the determination of stockholders entitled to vote on any matter, beneficially owns in excess of 10% of the then-outstanding shares of Common Stock (the “Limit”), be entitled, or permitted to any vote in respect of the shares held in excess of the Limit. The number of votes which may be cast by any record owner by virtue of the provisions hereof in respect of Common Stock beneficially owned by such person beneficially owning shares in excess of the Limit shall be a number equal to the total number of votes which a single record owner of all Common Stock beneficially owned by such person would be entitled to cast, (subject to the provisions of this Article FOURTH) multiplied by a fraction, the numerator of which is the number of shares of such class or series which are both beneficially owned by such person and owned of record by such record owner and the denominator of which is the total number of shares of Common Stock beneficially owned by such person owning shares in excess of the Limit.
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| 2. | The following definitions shall apply to this Section C of this Article FOURTH: |
| a. | “Affiliate” shall have the meaning ascribed to it in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, as in effect on the date of filing of this Certificate of Incorporation. |
| b. | “Beneficial ownership” shall be determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended (or any successor rule or statutory provision), or, if said Rule 13d-3 shall be rescinded and there shall be no successor rule or provision thereto, pursuant to said Rule 13d-3 as in effect on the date of filing of this Certificate of Incorporation; provided, however, that a person shall, in any event, also be deemed the “beneficial owner” of any Common Stock: |
| (1) | which such person or any of its affiliates beneficially owns, directly or indirectly; or |
| (2) | which such person or any of its affiliates has: (i) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding (but shall not be deemed to be the beneficial owner of any voting shares solely by reason of an agreement, contract, or other arrangement with this Corporation to effect any transaction which is described in any one or more of clauses 1 through 5 of Section A of Article EIGHTH of this Certificate of Incorporation (“Article EIGHTH”)), or upon the exercise of conversion rights, exchange rights, warrants, or options or otherwise, or (ii) sole or shared voting or investment power with respect thereto pursuant to any agreement, arrangement, understanding, relationship or otherwise (but shall not be deemed to be the beneficial owner of any voting shares solely by reason of a revocable proxy granted for a particular meeting of stockholders, pursuant to a public solicitation of proxies for such meeting, with respect to shares of which neither such person nor any such Affiliate is otherwise deemed the beneficial owner); or |
| (3) | which are beneficially owned, directly or indirectly, by any other person with which such first mentioned person or any of its Affiliates acts as a partnership, limited partnership, syndicate or other group pursuant to any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of capital stock of this Corporation; and provided further, however, that: (1) no Director or Officer of this Corporation (or any Affiliate of any such Director or Officer) shall, solely by reason of any or all of such Directors or Officers acting in their capacities as such, be deemed, for any purposes hereof, to beneficially own any Common Stock beneficially owned by any other such Director or Officer (or any Affiliate thereof); and (2) neither any employee stock ownership or similar plan of this Corporation or any subsidiary of this Corporation, nor any trustee with respect thereto or any Affiliate of such trustee (solely by reason of such capacity of such trustee), shall be deemed, for any purposes hereof, to beneficially own any Common Stock held under any such plan. For purposes only of computing the percentage of beneficial ownership of Common Stock of a person, the outstanding Common Stock shall include shares deemed owned by such person through application of this subsection but shall not include any other Common Stock which may be issuable by this Corporation pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise. For all other purposes, the outstanding Common Stock shall include only Common Stock then outstanding and shall not include any Common Stock which may be issuable by this Corporation pursuant to any agreement, or upon the exercise of conversion rights, warrants or options, or otherwise. |
| c. | The “limit” shall mean 10% of the then-outstanding shares of Common Stock. |
| d. | A “person” shall include an individual, a firm, a group acting in concert, a corporation, a partnership, an association, a joint venture, a pool, a joint stock company, a trust, an unincorporated organization or similar company, a syndicate or any other group formed for the purpose of acquiring, holding or disposing of securities or any other entity. |
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| 3. | The Board of Directors shall have the power to construe and apply the provisions of this section and to make all determinations necessary or desirable to implement such provisions, including but not limited to matters with respect to: (i) the number of shares of Common Stock beneficially owned by any person; (ii) whether a person is an affiliate of another; (iii) whether a person has an agreement, arrangement, or understanding with another as to the matters referred to in the definition of beneficial ownership; (iv) the application of any other definition or operative provision of the section to the given facts; or (v) any other matter relating to the applicability or effect of this section. |
| 4. | The Board of Directors shall have the right to demand that any person who is reasonably believed to beneficially own Common Stock in excess of the Limit (or holds of record Common Stock beneficially owned by any person in excess of the Limit) supply the Corporation with complete information as to: (i) the record owner(s) of all shares beneficially owned by such person who is reasonably believed to own shares in excess of the Limit; and (ii) any other factual matter relating to the applicability or effect of this section as may reasonably be requested of such person. |
| 5. | Except as otherwise provided by law or expressly provided in this Section C, the presence, in person or by proxy, of the holders of record of shares of capital stock of the Corporation entitling the holders thereof to cast a majority of the votes (after giving effect, if required, to the provisions of this Section C) entitled to be cast by the holders of shares of capital stock of the Corporation entitled to vote shall constitute a quorum at all meetings of the stockholders, and every reference in this Certificate of Incorporation to a majority or other proportion of capital stock (or the holders thereof) for purposes of determining any quorum requirement or any requirement for stockholder consent or approval shall be deemed to refer to such majority or other proportion of the votes (or the holders thereof) then entitled to be cast in respect of such capital stock. |
| 6. | Any constructions, applications, or determinations made by the Board of Directors pursuant to this section in good faith and on the basis of such information and assistance as was then reasonably available for such purpose shall be conclusive and binding upon the Corporation and its stockholders. |
| 7. | In the event any provision (or portion thereof) of this Section C shall be found to be invalid, prohibited or unenforceable for any reason, the remaining provisions (or portions thereof) of this Section shall remain in full force and effect, and shall be construed as if such invalid, prohibited or unenforceable provision had been stricken herefrom or otherwise rendered inapplicable, it being the intent of this Corporation and its stockholders that each such remaining provision (or portion thereof) of this Section C remain, to the fullest extent permitted by law, applicable and enforceable as to all stockholders, including stockholders owning an amount of stock over the Limit, notwithstanding any such finding. |
FIFTH: The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its Directors and stockholders:
A. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon them by statute or by this Certificate of Incorporation or the Bylaws of the Corporation, the Directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.
B. The Directors of the Corporation need not be elected by written ballot unless the Bylaws so provide.
C. Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.
D. Special meetings of stockholders of the Corporation may be called only by the Board of Directors pursuant to a resolution adopted by a majority of the Whole Board or as otherwise provided in the Bylaws. The term “Whole Board” shall mean the total number of authorized directorships (whether or not there exist any vacancies in previously authorized directorships at the time any such resolution is presented to the Board for adoption).
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SIXTH:
A. The number of Directors shall be fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted by a majority of the Whole Board. The Directors shall be divided into three classes, as nearly equal in number as reasonably possible, with each Director to hold office until his or her successor shall have been duly elected and qualified. At each annual meeting of stockholders following such initial classification and election, held before the 2017 annual meeting of stockholders, the class of directors selected to succeed those Directors whose terms expire shall be elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. At each annual meeting of stockholders commencing with the 2017 annual meeting of stockholders, Directors elected to succeed those Directors whose terms then expire shall be elected for a term expiring at the next annual meeting of stockholders. Beginning with the 2020 annual meeting of stockholders, the foregoing classification of the Board of Directors shall cease. If the number of Directors is changed prior to the 2017 annual meeting of stockholders, any increase or decrease shall be apportioned among the classes so as to maintain the number of Directors in each class as nearly equal as possible, and any additional Director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class. If the number of Directors is increased at or following the 2020 annual meeting of stockholders, any additional Director elected to fill a vacancy resulting from such increase shall hold office for a term expiring at the next annual meeting of stockholders. In no case shall a decrease in the number of Directors remove or shorten the term of any incumbent Director. Each Director shall hold office for the term for which elected and until his or her successor shall have been duly elected and qualified.
B. Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of Directors or any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office, or other cause may be filled only by a majority vote of the Directors then in office, though less than a quorum, and Directors so chosen shall hold office for a term expiring at the annual meeting of stockholders at which the term of office of the class to which they have been chosen expires, except that Directors elected to fill vacancies after the 2020 annual meeting of stockholders shall hold office for a term expiring at the next annual meeting of stockholders. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director.
C. Advance notice of stockholder nominations for the election of Directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws of the Corporation.
D. Subject to the rights of holders of any series of Preferred Stock then outstanding, any Director, or the entire Board of Directors, may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least 80% of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors (after giving effect to the provisions of Article FOURTH of this Certificate of Incorporation (“Article FOURTH”)), voting together as a single class.
SEVENTH: The Board of Directors is expressly empowered to adopt, amend or repeal Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of the Corporation by the Board of Directors shall require the approval of a majority of the Whole Board. The stockholders shall also have power to adopt, amend or repeal the Bylaws of the Corporation; provided, however, that, in addition to any vote of the holders of any class or series of stock of this Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least 80% of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of Directors (after giving effect to the provisions of Article FOURTH), voting together as a single class, shall be required to adopt, amend or repeal any provisions of the Bylaws of the Corporation.
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EIGHTH:
A. In addition to any affirmative vote required by law or this Certificate of Incorporation, and except as otherwise expressly provided in this Article EIGHTH:
| 1. | any merger or consolidation of the Corporation or any Subsidiary (as hereinafter defined) with: (i) any Interested Stockholder (as hereinafter defined); or (ii) any other corporation (whether or not itself an Interested Stockholder) which is, or after such merger or consolidation would be, an Affiliate (as hereinafter defined) of an Interested Stockholder; or |
| 2. | any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with any Interested Stockholder, or any Affiliate of any Interested Stockholder, of any assets of the Corporation or any Subsidiary having an aggregate Fair Market Value (as hereinafter defined) equaling or exceeding 25% or more of the combined assets of the Corporation and its Subsidiaries; or |
| 3. | the issuance or transfer by the Corporation or any Subsidiary (in one transaction or a series of transactions) of any securities of the Corporation or any Subsidiary to any Interested Stockholder or any Affiliate of any Interested Stockholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate Fair Market Value (as hereinafter defined) equaling or exceeding 25% of the combined Fair Market Value of the outstanding common stock of the Corporation and its Subsidiaries, except for any issuance or transfer pursuant to an employee benefit plan of the Corporation or any Subsidiary thereof; or |
| 4. | the adoption of any plan or proposal for the liquidation or dissolution of the Corporation proposed by or on behalf of an Interested Stockholder or any Affiliate of any Interested Stockholder; or |
| 5. | any reclassification of securities (including any reverse stock split), or recapitalization of the Corporation, or any merger or consolidation of the Corporation with any of its Subsidiaries or any other transaction (whether or not with or into or otherwise involving an Interested Stockholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the Corporation or any Subsidiary which is directly or indirectly owned by any Interested Stockholder or any Affiliate of any Interested Stockholder; |
shall require the affirmative vote of the holders of at least 80% of the voting power of the then-outstanding shares of stock of the Corporation entitled to vote in the election of Directors (the “Voting Stock”) (after giving effect to the provisions of Article FOURTH), voting together as a single class. Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser percentage may be specified, by law or by any other provisions of this Certificate of Incorporation or any Preferred Stock Designation in any agreement with any national securities exchange or otherwise.
The term “Business Combination” as used in this Article EIGHTH shall mean any transaction which is referred to in any one or more of paragraphs 1 through 5 of Section A of this Article EIGHTH.
B. The provisions of Section A of this Article EIGHTH shall not be applicable to any particular Business Combination, and such Business Combination shall require only the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote after giving effect to the provisions of Article FOURTH, or such vote (if any), as is required by law or by this Certificate of Incorporation, if, in the case of any Business Combination that does not involve any cash or other consideration being received by the stockholders of the Corporation solely in their capacity as stockholders of the Corporation, the condition specified in the following paragraph 1 is met or, in the case of any other Business Combination, all of the conditions specified in either of the following paragraphs 1 or 2 are met:
| 1. | The Business Combination shall have been approved by a majority of the Disinterested Directors (as hereinafter defined). |
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| 2. | All of the following conditions shall have been met: |
| a. | The aggregate amount of the cash and the Fair Market Value as of the date of the consummation of the Business Combination of consideration other than cash to be received per share by the holders of Common Stock in such Business Combination shall at least be equal to the higher of the following: |
| (1) | (if applicable) the Highest Per Share Price (as hereinafter defined), including any brokerage commissions, transfer taxes and soliciting dealers’ fees, paid by the Interested Stockholder or any of its Affiliates for any shares of Common Stock acquired by it: (i) within the two-year period immediately prior to the first public announcement of the proposal of the Business Combination (the “Announcement Date”); or (ii) in the transaction in which it became an Interested Stockholder, whichever is higher; or |
| (2) | the Fair Market Value per share of Common Stock on the Announcement Date or on the date on which the Interested Stockholder became an Interested Stockholder (such latter date is referred to in this Article EIGHTH as the “Determination Date”), whichever is higher. |
| b. | The aggregate amount of the cash and the Fair Market Value as of the date of the consummation of the Business Combination of consideration other than cash to be received per share by holders of shares of any class of outstanding Voting Stock other than Common Stock shall be at least equal to the highest of the following (it being intended that the requirements of this subparagraph (b) shall be required to be met with respect to every such class of outstanding Voting Stock, whether or not the Interested Stockholder has previously acquired any shares of a particular class of Voting Stock): |
| (1) | (if applicable) the Highest Per Share Price (as hereinafter defined), including any brokerage commissions, transfer taxes and soliciting dealers’ fees, paid by the Interested Stockholder for any shares of such class of Voting Stock acquired by it: (i) within the two-year period immediately prior to the Announcement Date; or (ii) in the transaction in which it became an Interested Stockholder, whichever is higher; or |
| (2) | (if applicable) the highest preferential amount per share to which the holders of shares of such class of Voting Stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation; or |
| (3) | the Fair Market Value per share of such class of Voting Stock on the Announcement Date or on the Determination Date, whichever is higher. |
| c. | The consideration to be received by holders of a particular class of outstanding Voting Stock (including Common Stock) shall be in cash or in the same form as the Interested Stockholder has previously paid for shares of such class of Voting Stock. If the Interested Stockholder has paid for shares of any class of Voting Stock with varying forms of consideration, the form of consideration to be received per share by holders of shares of such class of Voting Stock shall be either cash or the form used to acquire the largest number of shares of such class of Voting Stock previously acquired by the Interested Stockholder. The price determined in accordance with subparagraph B.2 of this Article EIGHTH shall be subject to appropriate adjustment in the event of any stock dividend, stock split, combination of shares or similar event. |
| d. | After such Interested Stockholder has become an Interested Stockholder and prior to the consummation of such Business Combination: (1) except as approved by a majority of the Disinterested Directors (as hereinafter defined), there shall have been no failure to declare and pay at the regular date therefor any full quarterly dividends (whether or not cumulative) on any outstanding stock having preference over the Common Stock as to dividends or liquidation; (2) there shall have been: (i) no reduction in the annual rate of dividends paid on the Common Stock (except as necessary to reflect any subdivision of the Common Stock), except as approved by a majority of the Disinterested Directors; and (ii) an increase in such annual rate of dividends as necessary to reflect any reclassification (including any reverse stock split), recapitalization, reorganization or any similar transaction which has the effect of reducing the number of outstanding shares of the Common Stock, unless the failure to so increase such annual rate is approved by a majority of the Disinterested Directors, and (3) neither such Interested Stockholder or any of its Affiliates shall have become the beneficial owner of any additional shares of Voting Stock except as part of the transaction which results in such Interested Stockholder becoming an Interested Stockholder. |
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| e. | After such Interested Stockholder has become an Interested Stockholder, such Interested Stockholder shall not have received the benefit, directly or indirectly (except proportionately as a stockholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided, directly or indirectly, by the Corporation, whether in anticipation of or in connection with such Business Combination or otherwise. |
| f. | A proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (or any subsequent provisions replacing such Act, and the rules or regulations thereunder) shall be mailed to stockholders of the Corporation at least 30 days prior to the consummation of such Business Combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act or subsequent provisions). |
C. For the purposes of this Article EIGHTH:
| 1. | A “Person” shall include an individual, a firm, a group acting in concert, a corporation, a partnership, an association, a joint venture, a pool, a joint stock company, a trust, an unincorporated organization or similar company, a syndicate or any other group formed for the purpose of acquiring, holding or disposing of securities or any other entity. |
| 2. | “Interested Stockholder” shall mean any person (other than the Corporation or any Holding Company or Subsidiary thereof) who or which: |
| a. | is the beneficial owner, directly or indirectly, of more than 10% of the voting power of the outstanding Voting Stock; or |
| b. | is an Affiliate of the Corporation and at any time within the two-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then outstanding Voting Stock; or |
| c. | is an assignee of or has otherwise succeeded to any shares of Voting Stock which were at any time within the two-year period immediately prior to the date in question beneficially owned by any Interested Stockholder, if such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933, as amended. |
| 3. | For purposes of this Article EIGHTH, “beneficial ownership” shall be determined in the manner provided in Article FOURTH hereof. |
| 4. | “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on the date of filing of this Certificate of Incorporation. |
| 5. | “Subsidiary” means any corporation of which a majority of any class of equity security is owned, directly or indirectly, by the Corporation; provided, however, that for the purposes of the definition of Interested Stockholder set forth in Paragraph 2 of this Section C, the term “Subsidiary” shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the Corporation. |
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| 6. | “Disinterested Director” means any member of the Board of Directors who is unaffiliated with the Interested Stockholder and was a member of the Board of Directors prior to the time that the Interested Stockholder became an Interested Stockholder, and any Director who is thereafter chosen to fill any vacancy of the Board of Directors or who is elected and who, in either event, is unaffiliated with the Interested Stockholder and in connection with his or her initial assumption of office is recommended for appointment or election by a majority of Disinterested Directors then on the Board of Directors. |
| 7. | “Fair Market Value” means: |
| a. | in the case of stock, the highest closing sales price of the stock during the 30-day period immediately preceding the date in question of a share of such stock on the National Association of Securities Dealers Automated Quotation System or any system then in use, or, if such stock is admitted to trading on a principal United States securities exchange registered under the Securities Exchange Act of 1934, as amended, Fair Market Value shall be the highest sale price reported during the 30-day period preceding the date in question, or, if no such quotations are available, the Fair Market Value on the date in question of a share of such stock as determined by the Board of Directors in good faith, in each case with respect to any class of stock, appropriately adjusted for any dividend or distribution in shares of such stock or any stock split or reclassification of outstanding shares of such stock into a greater number of shares of such stock or any combination or reclassification of outstanding shares of such stock into a smaller number of shares of such stock; and |
| b. | in the case of property other than cash or stock, the Fair Market Value of such property on the date in question as determined by the Board of Directors in good faith. |
| 8. | Reference to “Highest Per Share Price” shall in each case with respect to any class of stock reflect an appropriate adjustment for any dividend or distribution in shares of such stock or any stock split or reclassification of outstanding shares of such stock into a greater number of shares of such stock or any combination or reclassification of outstanding shares of such stock into a smaller number of shares of such stock. |
| 9. | In the event of any Business Combination in which the Corporation survives, the phrase “consideration other than cash to be received” as used in Subparagraphs (a) and (b) of Paragraph 2 of Section B of this Article EIGHTH shall include the shares of Common Stock and/or the shares of any other class of outstanding Voting Stock retained by the holders of such shares. |
D. A majority of the Disinterested Directors of the Corporation shall have the power and duty to determine for the purposes of this Article EIGHTH, on the basis of information known to them after reasonable inquiry: (a) whether a person is an Interested Stockholder; (b) the number of shares of Voting Stock beneficially owned by any person; (c) whether a person is an Affiliate or Associate of another; and (d) whether the assets which are the subject of any Business Combination have, or the consideration to be received for the issuance or transfer of securities by the Corporation or any Subsidiary in any Business Combination has an aggregate Fair Market Value equaling or exceeding 25% of the combined Fair Market Value of the Common Stock of the Corporation and its Subsidiaries. A majority of the Disinterested Directors shall have the further power to interpret all of the terms and provisions of this Article EIGHTH.
E. Nothing contained in this Article EIGHTH shall be construed to relieve any Interested Stockholder from any fiduciary obligation imposed by law.
Notwithstanding any other provisions of this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the Voting Stock required by law, this Certificate of Incorporation or any Preferred Stock Designation, the affirmative vote of the holders of at least 80% of the voting power of all of the then-outstanding shares of the Voting Stock (after
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NINTH: The Board of Directors of the Corporation, when evaluating any offer of another Person (as defined in Article EIGHTH hereof) to: (A) make a tender or exchange offer for any equity security of the Corporation; (B) merge or consolidate the Corporation with another corporation or entity; or (C) purchase or otherwise acquire all or substantially all of the properties and assets of the Corporation, may, in connection with the exercise of its judgment in determining what is in the best interest of the Corporation and its stockholders, give due consideration to all relevant factors, including, without limitation, those factors that Directors of any subsidiary of the Corporation may consider in evaluating any action that may result in a change or potential change in the control of the subsidiary, and the social and economic effect of acceptance of such offer: on the Corporation’s present and future customers and employees and those of its Subsidiaries (as defined in Article EIGHTH hereof); on the communities in which the Corporation and its Subsidiaries operate or are located; on the ability of the Corporation to fulfill its corporate objective as a savings and loan holding company under applicable laws and regulations; and on the ability of its subsidiary savings institution to fulfill the objectives of a stock form savings institution under applicable statutes and regulations.
TENTH:
A. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a Director or an Officer of the Corporation or is or was serving at the request of the Corporation as a Director, Officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a Director, Officer, employee or agent or in any other capacity while serving as a Director, Officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section C hereof with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
B. The right to indemnification conferred in Section A of this Article TENTH shall include the right to be paid by the Corporation the expenses incurred in defending any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a Director or Officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, services to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this Section or otherwise. The rights to indemnification and to the advancement of expenses conferred in Sections A and B of this Article TENTH shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a Director, Officer, employee or agent and shall inure to the benefit of the indemnitee’s heirs, executors and administrators.
C. If a claim under Section A or B of this Article TENTH is not paid in full by the Corporation within sixty days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expenses of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) in any suit by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article TENTH or otherwise shall be on the Corporation.
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D. The rights to indemnification and to the advancement of expenses conferred in this Article TENTH shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation, Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.
E. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer, employee or agent of the Corporation or subsidiary or Affiliate or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law.
F. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article TENTH with respect to the indemnification and advancement of expenses of Directors and Officers of the Corporation.
ELEVENTH: A Director of this Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a Director, except for liability: (i) for any breach of the Director’s duty of loyalty to the Corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the Delaware General Corporation Law; or (iv) for any transaction from which the Director derived an improper personal benefit. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of Directors, then the liability of a Director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a Director of the Corporation existing at the time of such repeal or modification.
TWELFTH: The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided, however, that, notwithstanding any other provision of this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of this Corporation required by law or by this Certificate of Incorporation, the affirmative vote of the holders of at least 80% of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of Directors (after giving effect to the provisions of Article FOURTH), voting together as a single class, shall be required to amend or repeal this Article TWELFTH, Section C of Article FOURTH, Sections C or D of Article FIFTH, Article SIXTH, Article SEVENTH, Article EIGHTH or Article TENTH.
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Exhibit 3.2
Amendment to the Amended and Restated Bylaws of
Berkshire Hills Bancorp, Inc.
The Amended and Restate Bylaws of Berkshire Hills Bancorp, Inc. (the “Bylaws”) are hereby amended as follows:
1. Article I, Section 1 of the Bylaws is hereby deleted in its entirety and replaced with the following:
Annual Meeting.
An annual meeting of the stockholders, for the election of Directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as the Board of Directors shall each year fix, which place, date and time may subsequently be changed at any time by vote of the Board of Directors. If no annual meeting has been held for a period of thirteen (13) months after the Corporation’s last annual meeting, a special meeting in lieu thereof may be held, and such special meeting shall have, for the purposes of these Bylaws or otherwise, all the force and effect of an annual meeting. Any and all references hereafter in these Bylaws to an annual meeting or annual meetings also shall be deemed to refer to any special meeting(s) in lieu thereof.
2. Article I, Section 2 of the Bylaws is hereby deleted in its entirety and replaced with the following:
Special Meetings.
Subject to the rights of the holders of any class or series of preferred stock of the Corporation, special meetings of stockholders of the Corporation may be called only by the Board of Directors pursuant to a resolution adopted by a majority of the total number of Directors which the Corporation would have if there were no vacancies on the Board of Directors (hereinafter the “Whole Board”). Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders of the Corporation. Nominations of persons for election to the Board of Directors of the Corporation and stockholder proposals of other business shall not be brought before a special meeting of stockholders to be considered by the stockholders unless such special meeting is held in lieu of an annual meeting of stockholders in accordance with Article I, Section 1 of these Bylaws, in which case such special meeting in lieu thereof shall be deemed an annual meeting for purposes of these Bylaws and the provisions of Article I, Section 6 of these Bylaws shall govern such special meeting.
3. Article I, Section 6(b) of the Bylaws is hereby deleted in its entirety and replaced with the following:
(b) At any annual meeting of the stockholders, only such business shall be conducted as shall have been brought before the meeting (x) by or at the direction of the Board of Directors or (y) by any stockholder of the Corporation who is entitled to vote with respect thereto, who is present (in person or by proxy) at the meeting and who complies with the notice procedures set forth in this Section 6(b) as to such business. For business to be properly brought before an annual meeting by a stockholder pursuant to this Section 6(b), (1) the business must relate to a proper subject matter for stockholder action under Delaware law, (2) the stockholder must have given Timely Notice (as defined below) thereof in writing to the Secretary of the Corporation, (3) the stockholder must have provided updates or supplements to such Timely Notice at the times and in the forms required by Section 6(d) and (4) together with the beneficial owner(s), if any, on whose behalf the business proposal is made, the stockholder must have acted in accordance with the representations set forth in the New Business Solicitation Statement (as defined below) required by this Bylaw. To be timely, a stockholder’s notice must be delivered or mailed to and received at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred twentieth (120th) prior to the one-year anniversary of the preceding year’s annual meeting; provided, however, that in the event the annual meeting is first convened more than thirty (30) days before or more than sixty (60) days after such anniversary date, or if no annual meeting were held in the preceding year, notice by the stockholder to be timely must be received by the Secretary of the Corporation not later than the close of business on the later of the ninetieth (90th) day prior to the scheduled date of such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made (such notice within such time periods shall be referred to as “Timely Notice”). A stockholder’s Timely Notice to the Secretary shall set forth:
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as to each matter such stockholder proposes to bring before the annual meeting, a brief description of the business desired to be brought before the annual meeting, the reasons for conducting such business at the annual meeting, and any material interest in such business of each New Business Proposing Person (as defined below);
the name and address of the stockholder giving the notice, as they appear on the Corporation’s books, and the names and addresses of the other Proposing Persons (if any);
as to each Proposing Person, the following information: (A) the class or series and number of all shares of capital stock of the Corporation which are, directly or indirectly, owned beneficially or of record by such Proposing Person or any of its affiliates or associates (as such terms are defined in Rule 12b-2 promulgated under the Exchange Act), including any shares of any class or series of capital stock of the Corporation as to which such Proposing Person or any of its affiliates or associates has a right to acquire beneficial ownership at any time in the future, (B) any proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person has or shares a right to, directly or indirectly, vote any shares of any class or series of capital stock of the Corporation, (C) any rights to dividends or other distributions on the shares of any class or series of capital stock of the Corporation, directly or indirectly, owned beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation, and (D) any performance-related fees (other than an asset based fee) that such Proposing Person, directly or indirectly, is entitled to based on any increase or decrease in the value of shares of any class or series of capital stock of the Corporation (the disclosures to be made pursuant to the foregoing clauses (A) through (D) are referred to, collectively, as “Material Ownership Interests”);
a description of the material terms of all agreements, arrangements or understandings (whether or not in writing) entered into by any Proposing Person or any of its affiliates or associates with any other person for the purpose of acquiring, holding, disposing or voting of any shares of any class or series of capital stock of the Corporation;
(A) a description of all agreements, arrangements or understandings by and among any of the Proposing Persons, or by and among any Proposing Persons and any other person, pertaining to the other business proposed to be brought before the meeting of stockholders (which description shall identify the name of each other person who is party to such an agreement, arrangement or understanding), and (B) identification of the names and addresses of other stockholders (including beneficial owners) known by any of the Proposing Persons to support such other business proposal(s), and to the extent known the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholder(s) or other beneficial owner(s); and
a statement whether or not the stockholder giving the notice and/or the other Proposing Person(s), if any, will deliver a proxy statement and form of proxy to holders of, in the case of a business proposal, at least the percentage of voting power of all of the shares of capital stock of the Corporation required under applicable law to approve the proposal (such statement, the “New Business Solicitation Statement”).
For purposes of this Section 6(b) and Section 6(c) below, the term “Proposing Person” shall mean the following persons: (i) the stockholder of record providing the notice of nominations or business proposed to be brought before a stockholders’ meeting, and (ii) the beneficial owner(s), if different, on whose behalf the nominations or business proposed to be brought before a stockholders’ meeting is made.
Notwithstanding anything in these Bylaws to the contrary, no business shall be brought before or conducted at an annual meeting except in accordance with the provisions of this Section 6(b) or in accordance with Rule 14a-8 under the Exchange Act (or any successor provision thereto). The officer of the Corporation or other person presiding over the annual meeting shall, if the facts so warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Section 6(b) and, if he should so determine, he shall so declare to the meeting and any such business so determined to be not properly brought before the meeting shall not be transacted.
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At any special meeting of the stockholders, only such business shall be conducted as shall have been brought before the meeting by or at the direction of the Board of Directors.
4. Article I, Section 6(c) of the Bylaws is hereby deleted in its entirety and replaced with the following:
Only persons who are nominated in accordance with the procedures and qualifications set forth in these Bylaws shall be eligible for election as Directors. Nominations of persons for election to the Board of Directors of the Corporation may be made at a meeting of stockholders at which directors are to be elected only (x) by or at the direction of the Board of Directors or (y) by any stockholder of the Corporation entitled to vote for the election of Directors at the meeting, who is present (in person or by proxy) at the meeting and who complies with the notice procedures set forth in this Section 6(c) as to such nomination. For nominations to be properly brought before an annual meeting by a stockholder pursuant to this Section 6(c), (1) the stockholder must have given Timely Notice thereof in writing to the Secretary of the Corporation, (2) the stockholder must have provided updates or supplements to such Timely Notice at the times and in the forms required by Section 6(d) and (3) together with the beneficial owner(s), if any, on whose behalf the nomination is made, the stockholder must have acted in accordance with the representations set forth in the Nomination Solicitation Statement (as defined below) required by this Bylaw. A stockholder’s Timely Notice to the Secretary shall set forth:
as to each person whom the stockholder proposes to nominate for election or reelection as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected);
the name and address of the stockholder giving the notice, as they appear on the Corporation’s books, and the names and addresses of the other Proposing Persons (if any);
as to each Proposing Person, any Material Ownership Interests;
a description of the material terms of all agreements, arrangements or understandings (whether or not in writing) entered into by any Proposing Person or any of its affiliates or associates with any other person for the purpose of acquiring, holding, disposing or voting of any shares of any class or series of capital stock of the Corporation;
(A) a description of all agreements, arrangements or understandings by and among any of the Proposing Persons, or by and among any Proposing Persons and any other person (including with any proposed nominee(s)), pertaining to the nomination(s) proposed to be brought before the meeting of stockholders (which description shall identify the name of each other person who is party to such an agreement, arrangement or understanding), and (B) identification of the names and addresses of other stockholders (including beneficial owners) known by any of the Proposing Persons to support such nomination(s), and to the extent known the class and number of all shares of the Corporation’s capital stock owned beneficially or of record by such other stockholder(s) or other beneficial owner(s); and
a statement whether or not the stockholder giving the notice and/or the other Proposing Person(s), if any, will deliver a proxy statement and form of proxy to holders of at least the percentage of voting power of all of the shares of capital stock of the Corporation reasonably believed by such Proposing Person to be sufficient to elect the nominee or nominees proposed to be nominated by such stockholder (such statement, the “Nomination Solicitation Statement”).
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No person shall be eligible for election as a Director of the Corporation unless nominated in accordance with the provisions of this Section 6(c). The officer of the Corporation or other person presiding at the meeting shall, if the facts so warrant, determine that a nomination was not made in accordance with such provisions and, if he or she shall so determine, he or she shall so declare to the meeting and the defective nomination shall be disregarded.
5. A new Article IX in is hereby inserted in its entirety:
ARTICLE IX
CERTAIN GOVERNANCE MATTERS
Section 1. Interpretations; Definitions.
The provisions of this Article IX shall apply notwithstanding anything to the contrary set forth in these Bylaws. In the event of any inconsistency between any provision of this Article IX and any other provision of these Bylaws, such provision of this Article IX shall control.
The following definitions shall apply to this Article IX and otherwise as applicable in these Bylaws:
“Effective Date” shall mean the effective date of the merger of the Brookline Bancorp, Inc. with and into the Corporation.
“Specified Period” shall mean the period beginning on the Effective Date and ending on the two-year anniversary of the Effective Date.
Chairman of the Board.
David M. Brunelle shall serve as the Chairman of the Board during the Specified Period (assuming Mr. Brunelle is elected for a second term following the Effective Date).
Section 2. Certain Executive Officers.
(a) Paul A. Perrault shall serve as President and Chief Executive Officer of the Corporation effective as of the Effective Date.
Carl M. Carlson shall serve as the Chief Financial and Strategy Officer of the Corporation effective as of the Effective Date.
Sean A. Gray shall serve as the Chief Operations Officer of the Corporation effective as of the Effective Date.
Michael W. McCurdy shall serve as the Chief Banking Officer of the Corporation effective as of the Effective Date.
Mark Meiklejohn shall serve as the Chief Credit Officer of the Corporation effective as of the Effective Date.
Board Actions.
During the Specified Period, the affirmative vote of at least two-thirds of the members of the Board of Directors shall be required to:
remove Mr. Perrault, Mr. Carlson, Mr. Gray, Mr. McCurdy or Mr. Meiklejohn from their respective offices; and
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approve any merger or consolidation of the Corporation with and into any other corporation.
Section 3. Amendment.
During the Specified Period, the provisions of this Article IX shall not be modified, amended or repealed and any Bylaws provision inconsistent with such provisions may be adopted, except upon the affirmative vote of at least two-thirds of the members of the Board of Directors.
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Exhibit 4.3
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of September 1, 2025, is by and among U.S. Bank Trust Company, National Association, a national banking association (as successor in interest to U.S. Bank National Association), as Trustee (herein, together with its successors in interest, the “Trustee”), Berkshire Hills Bancorp, Inc., a Delaware corporation (the “Successor Company”), and Brookline Bancorp, Inc., a Delaware corporation (the “Company”), under the Indenture referred to below.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the Trustee, the Company and the Successor Company hereby agree as follows:
PRELIMINARY STATEMENTS
The Trustee and the Company are parties to that certain Indenture dated as of September 16, 2014 (the “Indenture”) and First Supplemental Indenture dated as of September 16, 2014 (the “First Supplemental Indenture”), pursuant to which the Company issued $75,000,000 in aggregate principal amount of 6.000% Fixed-to-Floating Rate Subordinated Notes due September 15, 2029 (the “Notes”).
As permitted by the terms of the Indenture, the Company, effective simultaneously with the effectiveness of this Second Supplemental Indenture, a wholly-owned subsidiary of the Successor Company shall merge with and into the Company, with the Company as the surviving entity, immediately followed by the merger of the Company with and into the Successor Company, with the Successor Company as the surviving entity (the “Merger”). The parties hereto are entering into this Second Supplemental Indenture pursuant to, and in accordance with, Articles Eight and Nine of the Indenture.
SECTION 1. Definitions. All capitalized terms used herein that are defined in the Indenture, either directly or by reference therein, shall have the respective meanings assigned them in the Indenture except as otherwise provided herein or unless the context otherwise requires.
SECTION 2. Interpretation.
| (a) | In this Second Supplemental Indenture, unless a clear contrary intention appears: |
| (i) | the singular number includes the plural number and vice versa; |
| (ii) | reference to any gender includes all other genders; |
| (iii) | the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Second Supplemental Indenture as a whole and not to any particular Section or other subdivision; |
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| (iv) | reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are permitted by this Second Supplemental Indenture or the Indenture, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually provided that nothing in this clause (iv) is intended to authorize any assignment not otherwise permitted by this Second Supplemental Indenture or the Indenture; |
| (v) | reference to any agreement, document or instrument means such agreement, document or instrument as amended, supplemented or modified and in effect from time to time in accordance with the terms thereof and, if applicable, the terms hereof, as well as any substitution or replacement therefor and reference to any note includes modifications thereof and any note issued in extension or renewal thereof or in substitution or replacement therefor; |
| (vi) | reference to any Section means such Section of this Second Supplemental Indenture, unless the context otherwise requires; and |
| (vii) | the word “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term. |
| (b) | No provision in this Second Supplemental Indenture shall be interpreted or construed against any Person because that Person or its legal representative drafted such provision. |
SECTION 3. Assumption of Obligations.
| (a) | Pursuant to, and in compliance and accordance with, Article Eight of the Indenture, the Successor Company hereby expressly assumes the due and punctual payment of the principal of and premium, if any, and interest on all of the Notes in accordance with their terms, according to their tenor, and the due and punctual performance and observance of all of the other obligations, covenants and conditions under the Indenture and First Supplemental Indenture to be kept, performed, or observed by the Company under the Indenture and the First Supplemental Indenture, including, without limitation, under Section 606 of the Indenture. |
| (b) | Pursuant to, and in compliance and accordance with, Article Eight of the Indenture, the Successor Company succeeds to and is substituted for the Company, with the same effect as if the Successor Company had originally been named in the Indenture, the First Supplemental Indenture and the Notes as the Company, and the Company is hereby relieved of any further liability or obligation under the Indenture, the First Supplemental Indenture and the Notes. |
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SECTION 4. Representations and Warranties. The Successor Company represents and warrants that (a) it has all necessary power and authority to execute and deliver this Second Supplemental Indenture and to perform the Indenture and the First Supplemental Indenture, (b) that it is the successor of the Company pursuant to the Merger effected in accordance with applicable law, (c) that it is a corporation incorporated and existing under the laws of the State of Delaware, (d) that both immediately before and after giving effect to the Merger and this Second Supplemental Indenture, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, has occurred and is continuing and (e) that this Second Supplemental Indenture is executed and delivered pursuant to Article Eight and Section 901 of the Indenture and does not require the consent of the Holders.
SECTION 5. Conditions of Effectiveness. This Second Supplemental Indenture shall become effective simultaneously with the effectiveness of the Merger, provided, however, that:
| (a) | the Trustee shall have executed a counterpart of this Second Supplemental Indenture and shall have received one or more counterparts of this Second Supplemental Indenture executed by the Successor Company and the Company; |
| (b) | the Trustee shall have received an Officers’ Certificate and an Opinion of Counsel, each stating that the Merger and this Second Supplemental Indenture comply with Article Eight of the Indenture, and that all conditions precedent provided for in the Indenture relating to the Merger and the execution and delivery of this Second Supplemental Indenture have been complied with; and |
| (d) | the Certificate of Merger filed by the wholly-owned subsidiary of the Successor Company and the Company with the Secretary of State of the State of Delaware in connection with the Merger shall have become effective. |
SECTION 6. Reference to the Indenture and First Supplemental Indenture.
| (a) | Upon the effectiveness of this Second Supplemental Indenture, each reference in the Indenture to “this Indenture,” “hereunder,” “herein” or words of like import, and each reference in the First Supplemental Indenture to “this First Supplemental Indenture,” “hereunder,” “herein” or words of like import, shall mean and be a reference to the Indenture or First Supplemental Indenture as affected, amended and supplemented hereby. |
| (b) | Upon the effectiveness of this Second Supplemental Indenture, each reference in the Notes to the Indenture including each term defined by reference to the Indenture shall mean and be a reference to the Indenture or such term, as the case may be, as affected, amended and supplemented hereby. |
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| (c) | The Indenture, as amended and supplemented hereby, shall remain in full force and effect and is hereby ratified and confirmed. |
SECTION 7. Execution in Counterparts. This Second Supplemental Indenture may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, and all of which when taken together shall constitute but one and the same instrument. This Second Supplemental Indenture may be executed by facsimile or electronic signature, which shall have the same force and effect as an original signature. The Trustee shall have the right to accept and act upon any notice, instruction, or other communication, including any funds transfer instruction, (each, a “Notice”) received pursuant to this Agreement by electronic transmission (including by e-mail, facsimile transmission, web portal or other electronic methods) and shall not have any duty to confirm that the person transmitting such Notice is, in fact, a person authorized to do so. Electronic signatures reasonably believed by Trustee to comply with the ESIGN Act of 2000 or other applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign or any other digital signature provider identified by any other party hereto and acceptable to Trustee) shall be deemed original signatures for all purposes. Each other party to this Agreement assumes all risks arising out of the use of electronic signatures and electronic methods to send Notices to Trustee, including without limitation the risk of Trustee acting on an unauthorized Notice and the risk of interception or misuse by third parties. Notwithstanding the foregoing, Trustee may in any instance and in its sole discretion require that a Notice in the form of an original document bearing a manual signature be delivered to Trustee in lieu of, or in addition to, any such electronic Notice.
SECTION 8. Governing Law; Binding Effect. This Second Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York and shall be binding upon the parties hereto and their respective successors and assigns.
SECTION 9. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Second Supplemental Indenture or the due execution thereof by the Company or the Successor Company. The recitals of fact contained herein shall be taken as the statements solely of the Company or the Successor Company, and the Trustee assumes no responsibility for the correctness thereof. In acting hereunder, the rights, privileges, protections, immunities and benefits afforded to the Trustee under the Indenture, including, without limitation, its right to be indemnified, are deemed to be incorporated herein, and shall be enforceable by the Trustee hereunder, in each of its capacities hereunder as if set forth herein in full.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the day and year first written above.
| BROOKLINE BANCORP, INC. | ||
| By: | /s/ Paul A. Perrault | |
| Name: Paul A. Perrault | ||
| Title: President and Chief Executive Officer | ||
| BERKSHIRE HILLS BANCORP, INC. | ||
| By: | /s/ Nitin J. Mhatre | |
| Name: Nitin J. Mhatre | ||
| Title: President and Chief Executive Officer | ||
| U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION (as successor in interest to U.S. Bank National Association), not in its individual capacity, but solely as Trustee | ||
| By: | /s/ Carolina D. Altomare | |
| Name: | Carolina D. Altomare | |
| Title: | Vice President | |
[Signature Page to Second Supplemental Indenture]
Exhibit 10.1
EXECUTION VERSION
12/15/2024
December 15, 2024
Ms. Jacqueline Courtwright
Senior Executive Vice President, Chief Human Resources & Culture Officer
60 State Street, Boston, MA 02109
Dear Ms. Courtwright:
This retention agreement (this “Agreement”) is entered into by Jacqueline Courtwright (the “Executive”), Berkshire Hills Bancorp, Inc. (“Berkshire”) and Berkshire Bank in connection with the Agreement and Plan of Merger by and among Berkshire, Commerce Acquisition Sub, Inc., and Brookline Bancorp, Inc. (“Brookline”), dated as of December 16, 2024 (the “Merger Agreement”), pursuant to which: (i) Commerce Acquisition Sub, Inc. will merge with and into Brookline (the “Merger”), and, immediately following the Merger, Brookline will merge with and into Berkshire (the “Holdco Merger”) so that Berkshire is the surviving corporation in the Holdco Merger, and (ii) following the Holdco Merger, Berkshire Bank will merge with and into Brookline Bank, so that Brookline Bank is the surviving corporation (the “Bank Merger”) (references to the “Bank” herein refer to Berkshire Bank for periods prior to the Bank Merger and to Brookline Bank for periods following the Bank Merger).
| 1. | Effectiveness and Definitions |
Capitalized terms used but not defined in this Agreement have the meanings ascribed to them in the Merger Agreement. This Agreement shall be effective upon the Effective Time. If the Executive’s employment with Berkshire or the Bank, as the case may be, terminates for any reason before the Effective Time, this Agreement will automatically terminate and be of no further force or effect and neither of the parties will have any obligations hereunder. Furthermore, if the Merger is not consummated, this Agreement will be of no force and effect.
| 2. | Merger-Related Compensation |
As of the Closing Date, the Executive shall receive an amount equal to the total of $1,446,000, in full satisfaction of any payment obligations of the Bank under the Berkshire Bank Enhanced Change in Control Severance Plan, effective November 1, 2013 (the “CIC Plan”), less applicable tax withholdings (the total of such sum, the “CIC Agreement Amount”). The CIC Agreement Amount shall be paid to the Executive in a lump sum on the first regularly scheduled payroll cycle following the Closing Date.
Executive agrees and acknowledges that she will cease to be a participant in the CIC Plan as of the date the CIC Agreement Amount is paid to Executive and Executive will not be entitled to any further payments under the CIC Plan. Berkshire, the Bank and Executive acknowledge that the CIC Agreement Amount will be paid to Executive as of the Closing Date even though the Executive is expected to continue employment after the Closing Date.
Payment of the CIC Agreement Amount will be in addition to, and not in lieu of, any compensation to which Executive is entitled under any other benefit plan (with the exception of the CIC Plan, as stated above), including but not limited to, annual bonuses, benefits under any tax-qualified plans, and equity grants.
Ms. Jacqueline Courtwright
December 15, 2024
Page 2
| 3. | Employment After Closing Date |
Berkshire and the Bank anticipate that Executive will be an at-will employee of Berkshire and the Bank following the Closing Date as Senior Executive Vice President, Chief Human Resources & Culture Officer at a base salary rate of $370,000 per year for a period ending no later than one year after the Closing Date (the “Anniversary Date”). In addition to base salary, Executive will be entitled to incentive compensation, equity awards and employee benefits as similarly situated executives. In the event of a termination of Executive’s employment without Cause (as defined below) or a termination of Executive’s employment for Good Reason (as defined in Section 4 of this Agreement), in either case before the Anniversary Date, the Executive will be entitled to a lump sum payment equal to the unpaid base salary for the remaining period until the Anniversary Date, to be paid on the first regularly scheduled payroll cycle following the date of such termination, less required tax withholding.
For purposes of this Agreement, “Cause” shall mean any of the following:
(a) conduct by Executive constituting a material act of misconduct in connection with the performance of Executive’s duties, including, without limitation, (i) willful failure or refusal to perform material responsibilities that have been requested by the CEO; (ii) dishonesty to the CEO with respect to any material matter; or (iii) misappropriation of funds or property of the Bank or any of its subsidiaries or affiliates other than the occasional, customary and de minimis use of Bank property for personal purposes;
(b) the commission by Executive of acts satisfying the elements of (i) any felony or (ii) a misdemeanor involving moral turpitude, deceit, dishonesty or fraud;
(c) any misconduct by Executive, regardless of whether or not in the course of the Executive’s employment, that would reasonably be expected to result in material injury or reputational harm to the Bank or any of its subsidiaries or affiliates if the Executive were to continue to be employed in the same position;
(d) continued failure by Executive to use his best efforts to perform his duties hereunder (other than by reason of Executive’s physical or mental illness, incapacity or disability) which has continued for more than 30 days following written notice of such failure to use best efforts from the CEO;
(e) a material violation by Executive of any of the Bank’s written employment policies; or
(f) Executive’s failure to cooperate with a bona fide internal investigation or an investigation by regulatory or law enforcement authorities, after being instructed by the Bank to cooperate, or the willful destruction or failure to preserve documents or other materials known to be relevant to such investigation or the inducement of others to fail to cooperate or to produce documents or other materials in connection with such investigation.
Ms. Jacqueline Courtwright
December 15, 2024
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| 4. | Good Reason |
By entering into this Agreement, Executive hereby acknowledges and agrees that for purposes of determining whether Executive has experienced “Good Reason” under this Agreement at any time following the Closing Date, all references in this Agreement to “Good Reason” shall mean (i) a material diminution in Executive’s responsibilities, authority or duties; (ii) a material diminution in Executive’s base salary, except for across-the-board salary reductions of not more than ten percent (10%) based on Berkshire’s financial performance similarly affecting all or substantially all senior management employees of the Bank; (iii) a material change in the geographic location of the principal office of the Bank to which the Executive is assigned, such that there is an increase of at least thirty (30) miles of driving distance to such location from Executive’s principal residence as of such change; or (iv) a material breach of any of the provisions of this Agreement by Berkshire and the Bank.
Notwithstanding the foregoing, prior to any termination of employment for Good Reason, the Executive must first provide written notice to the Bank within sixty (60) days of the initial existence of the condition, describing the existence of such condition, and the Bank shall thereafter have the right to remedy the condition within thirty (30) days of the date the Bank received the written notice from the Executive. If the Bank remedies the condition within such thirty (30) day cure period, then no Good Reason shall be deemed to exist with respect to such condition. If the Bank does not remedy the condition within such thirty (30) day cure period, then Executive may deliver a notice of termination for Good Reason at any time within sixty (60) days following the expiration of such cure period.
| 5. | Governing Law |
This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without reference to conflicts of law principles, except to the extent governed by federal law in which case federal law shall govern.
| 6. | Entire Agreement; Amendments |
This Agreement is the entire agreement of the parties with respect to its subject matter and supersedes any and all prior or contemporaneous discussions, representations, understandings or agreements regarding its subject matter. This Agreement may not be altered, modified or amended except by written instrument signed by the parties.
| 7. | Section 409A |
The parties intend that the benefits and rights provided under this Agreement be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations, guidance and other interpretative authority issued thereunder to the extent subject thereto (“Section 409A”), and the provisions of this Agreement shall be construed in a manner consistent with that intent and the requirements for avoiding taxes or penalties under Section 409A. If either party believes, at any time, that any such benefit or right that is subject to Section 409A does not so comply, it shall promptly advise the other parties and all parties shall negotiate reasonably and in good faith to amend or clarify the terms of such benefits and rights such that they do not violate Section 409A (with the intent and effect of avoiding any adverse economic effect for Executive). No party, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. To the extent required to comply with Section 409A, no payment or benefit required to be paid under this Agreement on account of termination of Executive’s employment shall be made unless and until Executive incurs a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “separation” or like terms shall have the meaning set forth in Section 409A.
Ms. Jacqueline Courtwright
December 15, 2024
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| 8. | Miscellaneous |
The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision hereof, and this Agreement will be construed as if the invalid and unenforceable provision were omitted (but only to the extent that such provision cannot be appropriately reformed or modified).
Notwithstanding anything herein contained to the contrary, any payments to Executive by Berkshire or the Bank, whether pursuant to this Agreement or otherwise, are subject to and conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359.
This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
[Signature Page Follows]
Ms. Jacqueline Courtwright
December 15, 2024
Page 5
If this Agreement correctly describes our understanding, please execute and deliver a counterpart of this signature page, which will become a binding agreement on our receipt.
| Sincerely, | |
| Berkshire Hills Bancorp, Inc. | |
| By: /s/ Nitin J. Mhatre | |
| Duly Authorized Officer | |
| Nitin J. Mhatre, Chief Executive Officer and President | |
| Berkshire Bank | |
| By: /s/ Nitin J. Mhatre | |
| Duly Authorized Officer | |
| Nitin J. Mhatre, Chief Executive Officer | |
| Accepted and Agreed | |
| I hereby agree with and accept the terms and conditions of this Agreement: | |
| /s/ Jacqueline Courtwright | |
| Name: Jacqueline Courtwright | |
| Date: December 15, 2024 |
[Signature Page to Courtwright Retention and Award Agreement]
Exhibit 10.2
EXECUTION VERSION
12/15/2024
December 15, 2024
Mr. Wm. Gordon Prescott
Senior Executive Vice President, General Counsel and Corporate Secretary
60 State Street, Boston, MA 02109
Dear Mr. Prescott:
This retention agreement (this “Agreement”) is entered into by Wm. Gordon Prescott (the “Executive”), Berkshire Hills Bancorp, Inc. (“Berkshire”) and Berkshire Bank in connection with the Agreement and Plan of Merger by and among Berkshire, Commerce Acquisition Sub, Inc., and Brookline Bancorp, Inc. (“Brookline”), dated as of December 16, 2024 (the “Merger Agreement”), pursuant to which: (i) Commerce Acquisition Sub, Inc. will merge with and into Brookline (the “Merger”), and, immediately following the Merger, Brookline will merge with and into Berkshire (the “Holdco Merger”) so that Berkshire is the surviving corporation in the Holdco Merger, and (ii) following the Holdco Merger, Berkshire Bank will merge with and into Brookline Bank, so that Brookline Bank is the surviving corporation (the “Bank Merger”) (references to the “Bank” herein refer to Berkshire Bank for periods prior to the Bank Merger and to Brookline Bank for periods following the Bank Merger).
| 1. | Effectiveness and Definitions |
Capitalized terms used but not defined in this Agreement have the meanings ascribed to them in the Merger Agreement. This Agreement shall be effective upon the Effective Time. If the Executive’s employment with Berkshire or the Bank, as the case may be, terminates for any reason before the Effective Time, this Agreement will automatically terminate and be of no further force or effect and neither of the parties will have any obligations hereunder. Furthermore, if the Merger is not consummated, this Agreement will be of no force and effect.
| 2. | Merger-Related Compensation |
As of the Closing Date, the Executive shall receive an amount equal to the total of $1,365,000, in full satisfaction of any payment obligations of the Bank under the Berkshire Bank Enhanced Change in Control Severance Plan, effective November 1, 2013 (the “CIC Plan”), less applicable tax withholdings (the total of such sum, the “CIC Agreement Amount”). The CIC Agreement Amount shall be paid to the Executive in a lump sum on the first regularly scheduled payroll cycle following the Closing Date.
Executive agrees and acknowledges that he will cease to be a participant in the CIC Plan as of the date the CIC Agreement Amount is paid to Executive and Executive will not be entitled to any further payments under the CIC Plan. Berkshire, the Bank and Executive acknowledge that the CIC Agreement Amount will be paid to Executive as of the Closing Date even though the Executive is expected to continue employment after the Closing Date.
Payment of the CIC Agreement Amount will be in addition to, and not in lieu of, any compensation to which Executive is entitled under any other benefit plan (with the exception of the CIC Plan, as stated above), including but not limited to, annual bonuses, benefits under any tax-qualified plans, and equity grants.
Mr. Wm. Gordon Prescott
December 15, 2024
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| 3. | Employment After Closing Date |
Berkshire and the Bank anticipate that Executive will be an at-will employee of Berkshire and the Bank following the Closing Date as Senior Executive Vice President, General Counsel at a base salary rate of $350,000 per year for a period ending no later than one year after the Closing Date (the “Anniversary Date”). In addition to base salary, Executive will be entitled to incentive compensation, equity awards and employee benefits as similarly situated executives. In the event of a termination of Executive’s employment without Cause (as defined below) or a termination of Executive’s employment for Good Reason (as defined in Section 4 of this Agreement), in either case before the Anniversary Date, the Executive will be entitled to a lump sum payment equal to the unpaid base salary for the remaining period until the Anniversary Date, to be paid on the first regularly scheduled payroll cycle following the date of such termination, less required tax withholding.
For purposes of this Agreement, “Cause” shall mean any of the following:
(a) conduct by Executive constituting a material act of misconduct in connection with the performance of Executive’s duties, including, without limitation, (i) willful failure or refusal to perform material responsibilities that have been requested by the CEO; (ii) dishonesty to the CEO with respect to any material matter; or (iii) misappropriation of funds or property of the Bank or any of its subsidiaries or affiliates other than the occasional, customary and de minimis use of Bank property for personal purposes;
(b) the commission by Executive of acts satisfying the elements of (i) any felony or (ii) a misdemeanor involving moral turpitude, deceit, dishonesty or fraud;
(c) any misconduct by Executive, regardless of whether or not in the course of the Executive’s employment, that would reasonably be expected to result in material injury or reputational harm to the Bank or any of its subsidiaries or affiliates if the Executive were to continue to be employed in the same position;
(d) continued failure by Executive to use his best efforts to perform his duties hereunder (other than by reason of Executive’s physical or mental illness, incapacity or disability) which has continued for more than 30 days following written notice of such failure to use best efforts from the CEO;
(e) a material violation by Executive of any of the Bank’s written employment policies; or
(f) Executive’s failure to cooperate with a bona fide internal investigation or an investigation by regulatory or law enforcement authorities, after being instructed by the Bank to cooperate, or the willful destruction or failure to preserve documents or other materials known to be relevant to such investigation or the inducement of others to fail to cooperate or to produce documents or other materials in connection with such investigation.
Mr. Wm. Gordon Prescott
December 15, 2024
Page 3
| 4. | Good Reason |
By entering into this Agreement, Executive hereby acknowledges and agrees that for purposes of determining whether Executive has experienced “Good Reason” under this Agreement at any time following the Closing Date, all references in this Agreement to “Good Reason” shall mean (i) a material diminution in Executive’s responsibilities, authority or duties; (ii) a material diminution in Executive’s base salary, except for across-the-board salary reductions of not more than ten percent (10%) based on Berkshire’s financial performance similarly affecting all or substantially all senior management employees of the Bank; (iii) a material change in the geographic location of the principal office of the Bank to which the Executive is assigned, such that there is an increase of at least thirty (30) miles of driving distance to such location from Executive’s principal residence as of such change; or (iv) a material breach of any of the provisions of this Agreement by Berkshire and the Bank.
Notwithstanding the foregoing, prior to any termination of employment for Good Reason, the Executive must first provide written notice to the Bank within sixty (60) days of the initial existence of the condition, describing the existence of such condition, and the Bank shall thereafter have the right to remedy the condition within thirty (30) days of the date the Bank received the written notice from the Executive. If the Bank remedies the condition within such thirty (30) day cure period, then no Good Reason shall be deemed to exist with respect to such condition. If the Bank does not remedy the condition within such thirty (30) day cure period, then Executive may deliver a notice of termination for Good Reason at any time within sixty (60) days following the expiration of such cure period.
| 5. | Governing Law |
This Agreement shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Massachusetts, without reference to conflicts of law principles, except to the extent governed by federal law in which case federal law shall govern.
| 6. | Entire Agreement; Amendments |
This Agreement is the entire agreement of the parties with respect to its subject matter and supersedes any and all prior or contemporaneous discussions, representations, understandings or agreements regarding its subject matter. This Agreement may not be altered, modified or amended except by written instrument signed by the parties.
| 7. | Section 409A |
The parties intend that the benefits and rights provided under this Agreement be exempt from or comply with Section 409A of the Internal Revenue Code of 1986, as amended, and the regulations, guidance and other interpretative authority issued thereunder to the extent subject thereto (“Section 409A”), and the provisions of this Agreement shall be construed in a manner consistent with that intent and the requirements for avoiding taxes or penalties under Section 409A. If either party believes, at any time, that any such benefit or right that is subject to Section 409A does not so comply, it shall promptly advise the other parties and all parties shall negotiate reasonably and in good faith to amend or clarify the terms of such benefits and rights such that they do not violate Section 409A (with the intent and effect of avoiding any adverse economic effect for Executive). No party, individually or in combination, may accelerate any payment or benefit that is subject to Section 409A, except in compliance with Section 409A and the provisions of this Agreement, and no amount that is subject to Section 409A shall be paid prior to the earliest date on which it may be paid without violating Section 409A. To the extent required to comply with Section 409A, no payment or benefit required to be paid under this Agreement on account of termination of Executive’s employment shall be made unless and until Executive incurs a “separation from service” within the meaning of Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “separation” or like terms shall have the meaning set forth in Section 409A.
Mr. Wm. Gordon Prescott
December 15, 2024
Page 4
| 8. | Miscellaneous |
The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision hereof, and this Agreement will be construed as if the invalid and unenforceable provision were omitted (but only to the extent that such provision cannot be appropriately reformed or modified).
Notwithstanding anything herein contained to the contrary, any payments to Executive by Berkshire or the Bank, whether pursuant to this Agreement or otherwise, are subject to and conditioned upon their compliance with Section 18(k) of the Federal Deposit Insurance Act, 12 U.S.C. Section 1828(k), and the regulations promulgated thereunder in 12 C.F.R. Part 359.
This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
[Signature Page Follows]
Mr. Wm. Gordon Prescott
December 15, 2024
Page 5
If this Agreement correctly describes our understanding, please execute and deliver a counterpart of this signature page, which will become a binding agreement on our receipt.
| Sincerely, | |
| Berkshire Hills Bancorp, Inc. | |
| By: /s/ Nitin J. Mhatre | |
| Duly Authorized Officer | |
| Nitin J. Mhatre, Chief Executive Officer and President | |
| Berkshire Bank | |
| By:/s/ Nitin J. Mhatre | |
| Duly Authorized Officer | |
| Nitin J. Mhatre, Chief Executive Officer | |
| Accepted and Agreed | |
| I hereby agree with and accept the terms and conditions of this Agreement: | |
| /s/ Wm. Gordon Prescott | |
| Name: Wm. Gordon Prescott | |
| Date: December 15, 2024 |
[Signature Page to Prescott Retention and Award Agreement]
Exhibit 99.1
Beacon Financial Corporation Completes Merger of Equals between Berkshire Hills Bancorp and Brookline Bancorp
Boston, September 2, 2025 – Beacon Financial Corporation, Inc. (NYSE: BBT) today announced the completion of the merger of equals between Berkshire Hills Bancorp, Inc., the parent company of Berkshire Bank, and Brookline Bancorp, Inc., the parent company of Brookline Bank, Bank Rhode Island, and PCSB Bank, effective September 1, 2025.
The merger of equals created Beacon Financial Corporation (the “Company”), the parent company of Beacon Bank & Trust, commonly known as Beacon Bank. Beacon Bank is a full-service, $24 billion regional banking franchise, headquartered in Boston with more than 145 branch offices throughout New England and New York. The Company has extensive wealth management and trust capabilities with more than $3 billion in assets under management, serving clients with best-in-class investment solutions and exceptional client service through its bank investment teams and its subsidiary, Clarendon Private. The Company trades on the New York Stock Exchange under the new ticker symbol “BBT”.
“We’re pleased to have successfully completed our merger of equals to form Beacon Financial Corporation and position the Company to be a predominant regional bank serving the Northeast. We thank the employees of both companies for their hard work and dedication to ensuring the timely completion of the merger. Our focus now turns to completing the integration of our banking systems to deliver a seamless client experience, provide additional service capabilities and generate enhanced financial performance for stockholders,” stated Paul A. Perrault, CEO of the Company.
Clients can continue banking just as they do today through their respective Berkshire Bank, Brookline Bank, Bank Rhode Island and PCSB Bank branches, websites, mobile apps, financial advisors and relationship managers operating as divisions of Beacon Bank. In addition, they can now enjoy fee-free ATM withdrawals at any Berkshire Bank, Brookline Bank, Bank Rhode Island or PCSB Bank ATM location. Over time, clients will begin to see updates such as the new name on statements, in online banking and at branches as the combined company prepares for a full transition to the Beacon Bank brand, along with integration of banking systems in the first quarter of 2026. Clients can find the latest merger integration information online at BeaconBank.com
Media inquiries or further information:
Media:
Gary R. Levante
Chief Communication & Sustainability Officer
413.447.1737
glevante@berkshirebank.com
Investor Relations:
Carl M. Carlson
Chief Financial and Strategy Officer
617.425.5331
About Beacon Financial Corporation & Beacon Bank & Trust
Beacon Financial Corporation (NYSE: BBT) is the holding Company for Beacon Bank & Trust, commonly known as Beacon Bank, a full-service regional bank serving the Northeast that was created on September 1, 2025 through the merger of equals between Berkshire Hills Bancorp and Brookline Bancorp. Headquartered in Boston, Massachusetts, the Company has $24 billion in assets and more than 145 branches throughout New England and New York. Beacon Bank offers a full suite of tailored banking solutions including commercial, cash management, asset-based lending, retail, consumer and residential products and services. The Bank operates through its banking divisions – Berkshire Bank, Brookline Bank, BankRI and PCSB Bank. The Company also provides equipment financing through its Eastern Funding subsidiary, SBA lending through its 44 Business Capital division and private wealth services through Clarendon Private. Learn more at BeaconFinancialCorporation.com.
Forward-Looking Statements
This press release contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 regarding the financial condition, results of operations, business plans and the future performance of Beacon Financial Corporation.
Words such as "anticipates," "believes," "estimates," "expects," "forecasts," "intends," "plans," "projects," "could," "may," "should," "will" or other similar words and expressions are intended to identify these forward-looking statements. These forward-looking statements are based on the Company's current expectations and assumptions regarding the Company’s business, the economy, and other future conditions. Because forward-looking statements relate to future results and occurrences, they are subject to inherent uncertainties, risks, and changes in circumstances that are difficult to predict. Any number of risks, uncertainties, or other factors could affect the Company's future financial results and performance and could cause actual results or performance to differ materially from anticipated results or performance. Such risks and uncertainties include, among others: the possibility that the anticipated benefits of the merger are not realized when expected or at all, including as a result of the impact of, or problems arising from, the integration of the two companies or as a result of the strength of the economy and competitive factors in the areas where the Company does business; the possibility that revenues following the merger may be lower than expected; the ability to complete the integration of the two companies successfully; and the potential impact of general economic, political or market factors on the Company and other factors that may affect future results of the Company. The foregoing list of factors is not exhaustive. Further information regarding the Company and factors which could affect the forward-looking statements contained herein can be found in the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 2024, its Quarterly Reports on Form 10-Q for the periods ended March 31, 2025 and June 30, 2025 and its other filings with the SEC. SEC filings are available free of charge on the SEC's website at www.sec.gov.