As filed with the Securities and Exchange Commission on June 15, 2005
File No. 333-122522
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8
TO REGISTRATION STATEMENT
ON FORM S-4
UNDER
THE SECURITIES ACT OF 1933
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BERKSHIRE HILLS BANCORP, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 04-3510455
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
24 NORTH STREET, PITTSFIELD, MA 01201
(Address of Principal Executive Offices) (Zip Code)
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Amendment to Supplemental Executive Retirement Agreement
Woronoco Bancorp, Inc. 1999 Stock Based Incentive Plan
Woronoco Bancorp, Inc. 2001 Stock Option Plan
Woronoco Bancorp, Inc. 2004 Equity Compensation Plan
Woronoco Savings Bank Supplemental Executive Retirement Plan
(Full Title of the Plans)
GERALD A. DENMARK
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
BERKSHIRE HILLS BANCORP, INC.
24 NORTH STREET
PITTSFIELD, MA 01201
(Name and Address of Agent For Service)
(413) 443-5601
(Telephone Number, Including Area Code, of Agent For Service)
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COPIES OF ALL COMMUNICATIONS TO:
GERALD A. DENMARK
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
BERKSHIRE HILLS BANCORP, INC.
24 NORTH STREET
PITTSFIELD, MA 01201
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This Post-Effective Amendment No. 1 covers shares of the Registrant's common
stock originally registered on its Registration Statement on Form S-4 (File No.
333-122522), to which this is an amendment. The registration fees in respect of
such shares of common stock were paid at the time of the original filing of such
Registration Statement on Form S-4. In addition, pursuant to Rule 416(c) under
the Securities Act of 1933, this Post-Effective Amendment No. 1 also covers an
indeterminate amount of interests to be offered or sold pursuant to the Plans
described herein.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission (the
"Commission") by Berkshire Hills Bancorp, Inc. ("Berkshire Hills Bancorp" or the
"Registrant") are incorporated herein by reference:
(a) Annual Report on Form 10-K for the year ended December 31,
2004;
(b) Quarterly Report on Form 10-Q for the quarter ended March 31,
2005;
(c) Current Reports on Form 8-K filed on April 1, 2005, April 12,
2005, April 28, 2005, May 25, 2005 and June 1, 2005 and on
Form 8-K/A on June 2, 2005 (other than the portions of those
documents not deemed to be filed); and
(d) The description of Berkshire Hills Bancorp's common stock
contained in its registration statement filed under Section 12
of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and any amendment or report filed for the
purpose of updating that description.
All documents filed by Berkshire Hills Bancorp or the Named Benefit Plan with
the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act (other than the portions of those documents not deemed to be filed)
subsequent to the date hereof and prior to the filing of a post-effective
amendment hereto indicating that all securities offered hereunder have been sold
or which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents. Any statement contained in a document
incorporated by reference 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 in any other subsequently
filed document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any 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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Gerald A. Denmark, Esq., who is providing an opinion on the legality of the
shares of the common stock being registered hereby, is a Senior Vice President,
General Counsel and Corporate Secretary of Berkshire Hills Bancorp. In addition,
Mr. Denmark owns, and/or has options to acquire pursuant to Berkshire Hills
Bancorp's employee benefit plans, an aggregate of less than 1% of the
outstanding shares of common stock of Berkshire Hills Bancorp.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 145 of the Delaware General Corporation Law ("DGCL"), a
corporation may indemnify any person in connection with any threatened, pending
or completed action, suit or
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proceeding, whether civil, criminal, administrative or investigative (other than
a derivative action by or in the right of such corporation) who is or was a
director, officer, employee or agent of such corporation, or serving at the
request of such corporation in such capacity for another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred in connection with such action, suit or
proceeding, if such person acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of such
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful.
The DGCL also permits indemnification by a corporation under similar
circumstances for expenses (including attorneys' fees) actually and reasonably
incurred by such persons in connection with the defense or settlement of a
derivative action, except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable to such corporation unless the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine upon application that
such person is fairly and reasonably entitled to indemnity for such expenses
which such court shall deem proper.
The DGCL provides that the indemnification described above shall not be deemed
exclusive of any other indemnification that may be granted by a corporation
pursuant to its by-laws, disinterested directors' vote, stockholders' vote,
agreement or otherwise.
The DGCL also provides corporations with the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
in a similar capacity for another corporation, partnership, joint venture, trust
or other enterprise, against any liability asserted against him or her in any
such capacity, or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such liability
as described above.
Pursuant to Section 102(b)(7) of the DGCL, Article Eleventh of Berkshire Hills
Bancorp's certificate of incorporation provides that, to the fullest extent that
the DGCL as from time to time in effect permits the limitation or elimination of
the liability of directors, no director of Berkshire Hills Bancorp shall be
personally liable to Berkshire Hills Bancorp or its stockholders for monetary
damages for breach of fiduciary duty as a director.
Article Tenth of Berkshire Hills Bancorp's certificate of incorporation empowers
Berkshire Hills Bancorp to indemnify any director or officer of Berkshire Hills
Bancorp or any other person who is serving at Berkshire Hills Bancorp's request
in any such capacity with or as an employee or agent of another corporation,
partnership, joint venture, trust or other enterprise (including, without
limitation, an employee benefit plan) to the fullest extent permitted under the
DGCL as from time to time in effect, and any such indemnification may continue
as to any person who has ceased to be a director, officer, employee or agent and
may inure to the benefit of the heirs, executors and administrators of such a
person.
Article Tenth of Berkshire Hills Bancorp's certificate of incorporation also
empowers Berkshire Hills Bancorp by action of its board of directors,
notwithstanding any interest of the directors in the action, to purchase and
maintain insurance in such amounts as the Board of Directors deems
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appropriate to protect any director, officer, employee or agent of Berkshire
Hills Bancorp or a subsidiary or an affiliate or another corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss to the fullest extent permitted under the DGCL as from time to
time in effect, whether or not Berkshire Hills Bancorp would have the power to
indemnify any such individual under the terms of any agreement or by-law or the
DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
Exhibit Number Document Description
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4.1 Certificate of Incorporation of Berkshire Hills Bancorp, Inc.
(incorporated by reference to Exhibit 3.1 to the Annual Report on Form
10-K of Berkshire Hills Bancorp, Inc. (File No. 1-15781) for the year
ended December 31, 2004)
4.2 By-laws of Berkshire Hills Bancorp, Inc., as amended and restated
(incorporated by reference to Exhibit 3.2 to the Annual Report on Form
10-K of Berkshire Hills Bancorp, Inc. (File No. 1-15781) for the year
ended December 31, 2004)
5.1 Opinion of Gerald A. Denmark.
23.3 Consent of Gerald A. Denmark, Esq. (included in Exhibit 5.1)
23.4 Consent of Wolf & Company, P.C., independent registered public
accounting firm for Berkshire Hills Bancorp, Inc.
23.5 Consent of Wolf & Company, P.C., independent registered public
accounting firm for the Woronoco Bancorp, Inc.
24.1 Powers of Attorney (included on signature page of registration
statement)
The Registrant will submit or has submitted the plan documents as amended and
restated and all amendments thereto to the Internal Revenue Service ("IRS") in a
timely manner and will make all changes required by the IRS in order to qualify
each plan named herein.
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ITEM 9. UNDERTAKINGS
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The Registrant hereby undertakes:
(1) To file, during any period in which 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 and 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;
(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;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such 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 registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination 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 Section 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
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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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing this Post-Effective Amendment No. 1 on Form S-8
and has duly caused this Post-Effective Amendment No. 1 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, on June 15, 2005.
BERKSHIRE HILLS BANCORP, INC.
(Registrant)
By: *
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Name: Michael P. Daly
Title: President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Gerald A. Denmark, as his/her attorney-in-fact and
agent, with full power of substitution and resubstitution, for him/her and in
his/her name, place, and stead, in any and all capacities, to sign any and all
pre- or post-effective amendments to this Registration Statement, and to file
the same with all exhibits hereto, and other documents with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, and each of
them, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he/she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Post-Effective
Amendment No. 1 has been signed by the following persons in the capacities and
on the date indicated.
SIGNATURE TITLE
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* Director, President
and Chief Executive Officer
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(Michael P. Daly)
* Director, Non-Executive
Chairman
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(Lawrence A. Bossidy)
Director
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(John B. Davies)
Director
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(David B. Farrell)
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SIGNATURE TITLE
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* Director
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(Peter J. Lafayette)
Director
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(Cornelius D. Mahoney)
* Director
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(Edward G. McCormick, Esq.)
* Director
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(Catherine B. Miller)
Director
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(D. Jeffrey Templeton)
* Director
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(Corydon L. Thurston)
* Director
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(Ann H. Trabulsi)
* Director
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(Robert A. Wells)
* Gerald A. Denmark hereby signs this Post-Effective Amendment No. 1 on
behalf of each of the indicated persons for whom he is attorney-in-fact on
June 15, 2005 pursuant to a power of attorney filed as an exhibit to this
registration statement.
By: /s/ Gerald A. Denmark, Secretary
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(Gerald A. Denmark, Secretary)
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THE PLANS. Pursuant to the requirements of the Securities Act of 1933, the
trustee(s) (or other person(s) who administer the employee benefit plan) have
duly caused this Post-Effective Amendment No. 1 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on June 15, 2005.
(Plan) AMENDMENT TO SUPPLEMENTAL
EXECUTIVE RETIREMENT AGREEMENT
WORONOCO SAVINGS BANK EMPLOYEE STOCK
OWNERSHIP PLAN
By: /s/ Brian Ippensen
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Name: Brian Ippensen
Title: First Bankers Trust Services,
Inc., as Trustee
THE PLANS. Pursuant to the requirements of the Securities Act of 1933, the
trustee(s) (or other person(s) who administer the employee benefit plan) have
duly caused this Post-Effective Amendment No. 1 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on June 15, 2005.
(Plan) WORONOCO BANCORP, INC. 1999
STOCK BASED INCENTIVE PLAN
WORONOCO BANCORP, INC. 2004 EQUITY
COMPENSATION PLAN
By: /s/ Brian Ippensen
--------------------------------
Name: Brian Ippensen
Title: First Bankers Trust Services,
Inc., as Trustee
WORONOCO BANCORP, INC. 2001 STOCK
OPTION PLAN
By: /s/ Gerald A. Denmark
--------------------------------
Name: Gerald A. Denmark
Title: Sr. Vice President and
General Counsel Berkshire
Hills Bancorp, Inc.
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EXHIBIT INDEX
Exhibit Number Document Description
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4.1 Certificate of Incorporation of Berkshire Hills Bancorp, Inc.
(incorporated by reference to Exhibit 3.1 to the Annual Report on Form
10-K of Berkshire Hills Bancorp, Inc. (File No. 1-15781) for the year
ended December 31, 2004)
4.2 By-laws of Berkshire Hills Bancorp, Inc., as amended and restated
(incorporated by reference to Exhibit 3.2 to the Annual Report on Form
10-K of Berkshire Hills Bancorp, Inc. (File No. 1-15781) for the year
ended December 31, 2004)
5.1 Opinion of Gerald A. Denmark, Esq.
23.3 Consent of Gerald A. Denmark, Esq. (included in Exhibit 5.1)
23.4 Consent of Wolf & Company, P.C., independent registered public
accounting firm for Berkshire Hills Bancorp, Inc.
23.5 Consent of Wolf & Company, P.C., independent registered public
accounting firm for the Woronoco Bancorp, Inc.
24.1 Powers of Attorney (included on signature page of registration
statement)
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