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As filed with the Securities and Exchange Commission on May 30, 2003
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BERKSHIRE HILLS BANCORP, INC.
(exact name of registrant as specified in its charter)
DELAWARE 04-3510455
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
24 NORTH STREET
PITTSFIELD, MASSACHUSETTS 01201
(413) 443-5601
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
BERKSHIRE HILLS BANCORP, INC.
2003 EQUITY COMPENSATION PLAN
(Full Title of the Plan)
COPIES TO:
MICHAEL P. DALY
PRESIDENT AND CHIEF EXECUTIVE OFFICER LAWRENCE M.F. SPACCASI, ESQ.
BERKSHIRE HILLS BANCORP, INC. SUZANNE A. WALKER, ESQ.
24 NORTH STREET MULDOON MURPHY & FAUCETTE LLP
PITTSFIELD, MASSACHUSETTS 01201 5101 WISCONSIN AVENUE, N.W.
(413) 443-5601 WASHINGTON, D.C. 20016
(Name, address, including zip code, and telephone (202) 362-0840
number, including area code, of agent for service)
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Title of each Class of Amount Proposed Maximum Proposed Maximum Amount of
Securities to be to be Offering Price Aggregate Offering Registration
Registered Registered(1) Share(3) Price Fee
Common Stock 300,000
$.01 par Value Shares(2) $25.71 $7,713,000 $624
=====================-= ============= ================== ================== ============
(1) Together with an indeterminate number of additional shares which may be necessary to
adjust the number of shares to be issued pursuant to the Berkshire Hills Bancorp, Inc.
2003 Equity Compensation Plan (the "Plan") as the result of a stock split, stock dividend
or similar adjustment of the outstanding common stock of Berkshire Hills Bancorp, Inc.,
as permitted by Rule 416(a) under the Securities Act of 1933, as amended (the "Securities
Act").
(2) Represents the shares which may be issued as stock awards or upon the exercise of options
to purchase shares of Berkshire Hills Bancorp, Inc. common stock granted or to be granted
under the Plan.
(3) Estimated solely for the purpose of calculating the amount of the registration fee. Pursuant
to Rule 457(c) under the Securities Act, the price per share is the average of the bid and
ask price of the Berkshire Hills Bancorp, Inc. common stock, as reported on May 28, 2003.
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE IMMEDIATELY UPON FILING IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") AND 17 C.F.R. SS.230.462.
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BERKSHIRE HILLS BANCORP, INC.
PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEMS 1 & 2. The documents containing the information for the Berkshire Hills
Bancorp, Inc. (The "Corporation") 2003 Equity Compensation Plan (the "Plan")
required by Part I of the Registration Statement will be sent or given to the
participants in the Plan as specified by Rule 428(b)(1). Such documents are not
filed with the Securities and Exchange Commission (the "SEC") either as a part
of this Registration Statement or as a prospectus or prospectus supplement
pursuant to Rule 424 in reliance on Rule 428. Such documents and the information
incorporated by reference pursuant to Item 3 of Part II of this Registration
Statement constitute the prospectus for the Registration Statement.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the SEC are incorporated by
reference in this Registration Statement:
(a) The Form 10-K, Annual Report, filed by the Registrant for the fiscal
year ended December 31, 2002 (File No. 001-15781), which includes the
consolidated balance sheets of the Registrant as of December 31, 2002 and 2001,
and the related consolidated statements of income, changes in stockholders'
equity and cash flows for each of the years in the three-year period ended
December 31, 2002, filed with the SEC on March 17, 2003.
(b) The Form 10-Q, Quarterly Report, for the quarter ended March 31,
2003 (File No. 001-15781), filed with the SEC on May 14, 2003.
(c) Description of the Registrant's common stock contained in Registrant's
Form 8-A (File No. 001-15781), as filed with the SEC pursuant to Section 12(g)
of the Securities Exchange Act of 1934 (the "Exchange Act"), and rule 12b-15
promulgated thereunder and declared effective May 12, 2000, as incorporated by
reference from the Company's Form S-1 (File No. 333-32146) declared effective on
May 12, 2000.
(d) All documents filed by the Registrant pursuant to Section 13(a) and
(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
filing of a post-effective amendment which deregisters all securities then
remaining unsold.
ANY STATEMENT CONTAINED IN THIS REGISTRATION STATEMENT, OR IN A DOCUMENT
INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE HEREIN, SHALL BE DEEMED
TO BE MODIFIED OR SUPERSEDED FOR PURPOSES OF THIS REGISTRATION STATEMENT TO THE
EXTENT THAT A STATEMENT CONTAINED HEREIN, OR IN ANY OTHER SUBSEQUENTLY FILED
DOCUMENT WHICH ALSO IS INCORPORATED OR DEEMED TO BE INCORPORATED BY REFERENCE
HEREIN, MODIFIES OR SUPERSEDES SUCH STATEMENT. ANY SUCH STATEMENT SO MODIFIED OR
SUPERSEDED SHALL NOT BE DEEMED, EXCEPT AS SO MODIFIED OR SUPERSEDED, TO
CONSTITUTE A PART OF THIS REGISTRATION STATEMENT.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered pursuant to the Plan has been registered pursuant
to Section 12(g) of the Exchange Act. Accordingly, a description of the Common
Stock is not required herein.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
The validity of the Common Stock offered hereby has been passed upon for the
Registrant by the firm of Muldoon Murphy & Faucette LLP, Washington, D.C.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND PLAN ADMINISTRATOR.
Articles X and XI of the Registrant's Certificate of Incorporation provide as
follows:
TENTH:
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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.
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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.
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
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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
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into
this registration statement on Form S-8 (numbering corresponds generally to the
Exhibit Table in Item 601 of Regulation S-K).
(a) List of Exhibits (filed herewith unless otherwise noted)
4 Berkshire Hills Bancorp, Inc. 2003 Equity Compensation Plan1
5 Opinion of Muldoon Murphy & Faucette LLP
23.0 Consent of Muldoon Murphy & Faucette LLP (included in
Exhibit 5)
23.1 Consent of Wolf & Company, P.C.
24 Powers of Attorney (contained on the signature pages)
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1 Incorporated herein by reference from the Appendix A contained in the proxy
statement on Form DEF 14A (SEC No. 001-15781), filed with the SEC on March 27,
2003.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which it offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from by means of a post-effective amendment any of the
securities that remain unsold at the end of the Offering.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Pittsfield, Massachusetts, on
May 30, 2003.
BERKSHIRE HILLS BANCORP, INC.
By: /s/ Michael P. Daly
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Michael P. Daly
President, Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below (other than Mr. Daly) constitutes and appoints Michael P. Daly as the true
and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities to sign any or all amendments to the Form S-8 registration
statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the U.S. Securities and Exchange Commission,
respectively, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and things requisite and
necessary to be done as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Name Title Date
---- ----- ----
/s/ Michael P. Daly President, Chief Executive May 30, 2003
---------------------- Officer and Director
Michael P. Daly (principal executive officer)
/s/ Wayne F. Patenaude Senior Vice President, May 30, 2003
---------------------- Treasurer and Chief Financial
Wayne F. Patenaude Officer (principal accounting
and financial officer)
/s/ Robert A. Wells Chairman of the Board May 30, 2003
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Robert A. Wells
/s/ Lawrence A. Bossidy Non-Executive Chairman May 30, 2003
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Lawrence A. Bossidy
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/s/ Thomas O. Andrews Director May 30, 2003
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Thomas O. Andrews
/s/ Thomas R. Dawson Director May 30, 2003
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Thomas R. Dawson, CPA
/s/ A. Allen Gray Director May 30, 2003
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A. Allen Gray
/s/ Peter J. Lafayette Director May 30, 2003
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Peter J. Lafayette
/s/ Edward G. McCormick Director May 30, 2003
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Edward G. McCormick
/s/ Catherine B. Miller Director May 30, 2003
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Catherine B. Miller
/s/ Corydon L. Thurston Director May 30, 2003
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Corydon L. Thurston
/s/ Ann H. Trabulsi Director May 30, 2003
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Ann H. Trabulsi
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EXHIBIT INDEX
Sequentially
Numbered
Page
Exhibit No. Description Method of Filing Location
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4 Berkshire Hills Incorporated herein by reference from the
Bancorp, Inc. 2003 Appendix A contained in the proxy statement
Equity Compensation on Form DEF 14A (SEC No. 001-15781), filed
Plan with the SEC on March 27, 2003.
5 Opinion of Muldoon Filed herewith.
Murphy & Faucette
LLP
23.0 Consent of Muldoon Contained in Exhibit 5.
Murphy & Faucette
LLP
23.1 Consent of Wolf & Filed herewith.
Company, P.C.
24 Power of Attorney Located on the signature page.
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