As filed with the Securities and Exchange
Commission on March 20, 2020
Registration No. 333- ·
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
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
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
|
60 State Street
Boston, Massachusetts 02109
(800) 773-5601, ext. 133773
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Richard M. Marotta
President and Chief Executive Officer
Berkshire Hills Bancorp, Inc.
60 State Street
Boston, Massachusetts 02109
(800) 773-5601, ext. 133773
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Lawrence M. F. Spaccasi, Esq.
Marc P. Levy, Esq.
Luse Gorman, PC
5335 Wisconsin Avenue, N.W., Suite 780
Washington, D.C. 20015
(202) 274-2000
Approximate date of commencement of
proposed sale to the public: From time to time after the effective date of this registration statement
as determined by market conditions and other factors.
If the only securities being
registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. ¨
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective
amendment Filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the
registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an
emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule12b-2 of the Exchange Act.
Large accelerated filer
|
x
|
Accelerated filer
|
¨
|
Non-accelerated filer
|
¨
|
Smaller reporting company
|
¨
|
|
Emerging growth company
|
¨
|
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of Section Act. ¨
CALCULATION OF REGISTRATION FEE
Title of each Class of
Securities to be Registered*
|
Amount to be
Registered (1)
|
|
Proposed Maximum
Offering Price Per Unit (1)
|
|
Proposed Maximum
Aggregate Offering Price (1)
|
|
Amount of
Registration Fee (2)
|
Debt Securities of Berkshire Hills Bancorp, Inc.
|
|
|
|
|
|
|
|
Common Stock of Berkshire Hills Bancorp, Inc.
|
|
|
|
|
|
|
|
Preferred Stock of Berkshire Hills Bancorp, Inc.
|
|
|
|
|
|
|
|
Depositary Shares(3)
|
|
|
|
|
|
|
|
Warrants or Other Rights
|
|
|
|
|
|
|
|
Purchase Contracts
|
|
|
|
|
|
|
|
Units(4)
|
|
|
|
|
|
|
|
Subscription Rights
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
*
|
Additional securities may be added by automatically effective post-effective amendment pursuant to Rule 413(b) of the Securities Act.
|
(1)
|
The securities covered by this registration statement may be sold or otherwise distributed separately or together as units with any other securities covered by this registration statement.
|
(2)
|
An indeterminate amount of securities are being registered as may from time to time be sold at indeterminate prices. In accordance with Rule 456(b) and 457(r) under the Securities Act, Berkshire Hills Bancorp, Inc. hereby defers payment of the registration fee required in connection with this registration statement. In connection with the securities offered hereby, Berkshire Hills Bancorp, Inc. will pay “pay-as-you-go” registration fees in accordance with Rule 456(b) and the exact registration fee owed, if any, will be paid at that time.
|
(3)
|
Each depositary share will be issued under a deposit agreement, will represent an interest in a fractional share or multiple shares of preferred stock and will be evidenced by a depositary receipt.
|
(4)
|
Any securities registered hereunder may be sold as units with other securities registered hereunder. Each unit will be issued under a unit agreement or indenture and will represent an interest in two or more securities, which may not be separable from one another. Because units will consist of a combination of other securities registered hereunder, no additional registration fee is required for the units.
|
PROSPECTUS
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants or Other Rights
Purchase Contracts
Units
Subscription Rights
Berkshire Hills Bancorp, Inc. and/or
one or more selling security holders to be identified in the future may offer to sell, from time to time, shares of our common
stock or preferred stock, either separately or represented by depositary shares, rights or warrants exercisable for our common
stock, preferred stock or depositary shares representing preferred stock, stock purchase contracts, debt securities and units or
subscription rights to purchase common stock, preferred stock, depositary shares or debt securities that we may offer to our stockholders
(together, the “Securities”). Such Securities may be offered separately or together, in separate series or classes
and in amounts, at prices and on terms described in one or more prospectus supplements. The preferred stock and warrants may be
convertible into or exercisable for common or preferred stock.
This prospectus provides you with a general
description of the Securities that may be offered. Each time Securities are sold, we will provide one or more supplements to this
prospectus that will contain additional information about the specific offering and the terms of the Securities being offered.
The supplements may also add to, update or change information contained in this prospectus. You should carefully read this prospectus
and any accompanying prospectus supplement before you invest in any of our Securities.
The Securities may be offered and sold in
any combination or amounts, at prices and on terms that we will determine at the time of any particular offering, to or through
one or more agents, dealers or underwriters, or directly to purchasers, including through subscription rights offerings, on a continuous
or delayed basis.
Our common stock is traded on the New York
Stock Exchange under the symbol “BHLB.”
You should read this prospectus and any
supplements carefully before you invest. Investing in our securities involves a high degree of risk. See the section entitled “Risk
Factors,” on page 4 of this prospectus, in any prospectus supplement and in the documents we file with the Securities
and Exchange Commission that are incorporated in this prospectus by reference for certain risks and uncertainties you should consider.
You should rely only on the information
contained or incorporated by reference in this prospectus or any supplement. We have not authorized anyone to provide you with
different information. You should not assume that the information in this prospectus or any supplement is accurate as of any date
other than the date on the front of such documents. We are not making an offer to sell these Securities in any jurisdiction where
the offer or sale is not permitted.
Neither the Securities and Exchange Commission,
nor any bank regulatory agency, nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is accurate or complete. Any representation to the contrary is a criminal offense. The securities are not savings
or deposit accounts and are not insured by the FDIC or any other governmental agency.
The date of this prospectus is March 20, 2020
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission (the “SEC”), using a “shelf” registration
process for the delayed offering and sale of securities pursuant to Rule 415 under the Securities Act of 1933, as amended
(the “Securities Act”). Under the shelf process, we may, from time to time, sell any of the Securities described in
this prospectus in one or more offerings. Additionally, under the shelf process, we may provide a prospectus supplement that will
contain specific information about the terms of a particular offering by us. We may also provide a prospectus supplement to add
information to, or update or change information contained in, this prospectus.
We have filed with the SEC a registration
statement on Form S-3, of which this prospectus is a part, under the Securities Act, with respect to the Securities. This
prospectus does not contain all of the information set forth in the registration statement, portions of which we have omitted as
permitted by the rules and regulations of the SEC. Statements contained in this prospectus as to the contents of any contract
or other document are not necessarily complete. You should refer to the copy of each contract or document filed as an exhibit to
the registration statement for a complete description.
Because we are a well-known seasoned issuer,
as defined in Rule 405 under the Securities Act, we may add to and offer additional securities including secondary securities
by filing a prospectus supplement or term sheet with the SEC at the time of the offer.
You should read this prospectus together
with any additional information you may need to make your investment decision. You should also read and carefully consider the
information in the documents we have referred you to in “Where You Can Find More Information” and “Incorporation
of Certain Documents by Reference” below. Information incorporated by reference after the date of this prospectus may add
to, update or change information contained in this prospectus. Any information in such subsequent filings that is inconsistent
with this prospectus will supersede the information in this prospectus or any earlier prospectus supplement.
Unless otherwise indicated or unless the
context requires otherwise, all references in this prospectus to “Berkshire Hills Bancorp,” the “Company,”
“we,” “us,” “our” or similar references mean Berkshire Hills Bancorp, Inc. and references
to the “Bank” mean Berkshire Bank.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration
statement under the Securities Act that registers, among other securities, the offer and sale of the securities that we may offer
under this prospectus. The registration statement, including the attached exhibits and schedules included or incorporated by reference
in the registration statement, contains additional relevant information about us. The rules and regulations of the SEC allow
us to omit certain information included in the registration statement from this prospectus. In addition, we file reports, proxy
statements and other information with the SEC under the Securities Exchange Act of 1934 (the “Exchange Act”). These
documents are available at the Internet site that the SEC maintains, http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC allows us to “incorporate
by reference” information we file with the SEC into this prospectus. This means that we can disclose important information
to you by referring you to another document that we file separately with the SEC. The information incorporated by reference is
considered to be a part of this prospectus, except for any information that is superseded by information that is included directly
in this document or in a more recent incorporated document.
This prospectus incorporates by reference
the documents listed below that we have previously filed with the SEC.
SEC Filings
|
|
Period or Filing Date (as applicable)
|
Annual Report on Form 10-K
|
|
Year ended December 31, 2019
|
|
|
|
Current
Reports on Form 8-K (other than information furnished under Items 2.02 or 7.01 of Form 8-K)
|
|
January 3, 2020, January 28, 2020, January 29, 2020, February 13, 2020 and February 24, 2020
|
|
|
|
The description of Berkshire Hills Bancorp common stock and preferred stock set forth in the registration statement on Form 8-A (No. 1-15781) and any amendment or report filed with the SEC for the purpose of updating this description
|
|
November 13, 2012
|
In addition, we also incorporate by reference
all future documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date
of our initial registration statement relating to the securities until the completion of the distribution of the debt securities,
preferred stock, common stock, depositary shares, warrants, purchase contracts or units covered by this prospectus. These documents
include periodic reports, such as annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on
Form 8-K (other than current reports furnished under Items 2.02 or 7.01 of Form 8-K), as well as proxy statements.
The information incorporated by reference
contains information about us and our financial condition and is an important part of this prospectus.
You can obtain any of the documents incorporated
by reference in this document through us, or from the SEC through the SEC’s website at www.sec.gov. Documents incorporated
by reference are available from us without charge, excluding any exhibits to those documents, unless the exhibit is specifically
incorporated by reference as an exhibit in this prospectus. You can obtain documents incorporated by reference in this prospectus
by requesting them in writing or by telephone from us at the following address:
Berkshire Hills Bancorp, Inc.
60 State Street
Boston, Massachusetts 02109
Attention: Investor Relations Department
(800) 773-5601, ext. 133773
In addition, we maintain a corporate website,
ir.berkshirebank.com. We make available, through our website, our annual reports on Form 10-K, quarterly reports on
Form 10-Q, current reports on Form 8-K, and any amendments to those reports filed or furnished pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 as soon as reasonably practicable after we electronically file such material
with, or furnish it to, the SEC. This reference to our website is for the convenience of investors as required by the SEC and shall
not be deemed to incorporate any information on the website into this Registration Statement.
We have not authorized anyone to give any
information or make any representation about us that is different from, or in addition to, those contained in this prospectus or
in any of the materials that we have incorporated into this prospectus. If anyone does give you information of this sort, you should
not rely on it. If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase, the securities offered
by this document are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer
presented in this document does not extend to you. The information contained in this document speaks only as of the date of this
document unless the information specifically indicates that another date applies.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the other documents
we incorporate by reference in this prospectus, may include forward-looking statements within the meaning of Section 27A of
the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
Forward-looking statements, which are based
on certain assumptions and describe future plans, strategies, and expectations of the Company, are generally identified by use
of the words “anticipate,” “believe,” “estimate,” “expect,” “intend,”
“plan,” “project,” “seek,” “strive,” “try,” or future or conditional
verbs such as “will,” “would,” “should,” “could,” “may,” or similar
expressions. The Company’s ability to predict results or the actual effects of its plans or strategies is inherently uncertain.
Although we believe that our plans, intentions and expectations, as reflected in these forward-looking statements are reasonable,
we can give no assurance that these plans, intentions or expectations will be achieved or realized. Our ability to predict results
or the actual effects of our plans and strategies is inherently uncertain. Actual results, performance or achievements could differ
materially from those contemplated, expressed or implied by the forward-looking statements contained in this prospectus. Important
factors that could cause actual results to differ materially from our forward-looking statements are set forth under Item 1A—“Risk
Factors” in our most recent annual report on Form 10-K and in other reports filed with the Securities and Exchange Commission.
There are a number of factors, many of which are beyond our control, that could cause actual conditions, events, or results to
differ significantly from those described in the forward-looking statements. These factors include, but are not limited to: general
economic conditions, either nationally or locally in some or all of the areas in which we conduct our business; conditions in the
securities markets or the banking industry; changes in interest rates, which may affect our net income or future cash flows; changes
in deposit flows, and in demand for deposit, loan, and investment products and other financial services in our local markets; changes
in real estate values, which could impact the quality of the assets securing our loans; changes in the quality or composition of
the loan or investment portfolios; changes in competitive pressures among financial institutions or from non-financial institutions;
the ability to successfully integrate any assets, liabilities, customers, systems, and management personnel we may acquire into
our operations and our ability to realize related revenue synergies and cost savings within expected time frames; our timely development
of new and competitive products or services in a changing environment, and the acceptance of such products or services by our customers;
the outcome of pending or threatened litigation or of other matters before regulatory agencies, whether currently existing or commencing
in the future; changes in accounting principles, policies, practices, or guidelines; changes in legislation and regulation; operational
issues and/or capital spending necessitated by the potential need to adapt to industry changes in information technology systems,
on which we are highly dependent; changes in the monetary and fiscal policies of the U.S. Government, including policies of the
U.S. Treasury and the Board of Governors of the Federal Reserve System (the “Federal Reserve”); war or terrorist activities;
and other economic, competitive, governmental, regulatory, and geopolitical factors affecting the Company’s operations, pricing,
and services. Additionally, the timing and occurrence or non-occurrence of events may be subject to circumstances beyond our control.
You should not place undue reliance on these
forward-looking statements, which reflect our expectations only as of the date of this prospectus. We do not assume any obligation
to revise forward-looking statements except as may be required by law.
PROSPECTUS SUMMARY
This summary highlights selected information
about Berkshire Hills Bancorp, Inc. and a general description of the Securities we may offer. This summary is not complete
and does not contain all of the information that may be important to you. For a more complete understanding of Berkshire Hills
Bancorp, Inc. and the terms of the Securities we will offer, you should read carefully this entire prospectus, including the
applicable prospectus supplement for the Securities and the other documents we refer to and incorporate by reference. In particular,
we incorporate important business and financial information into this prospectus by reference.
RISK FACTORS
Before making an investment decision, you
should carefully consider the risks described under “Risk Factors” in the applicable prospectus supplement and
in our most recent Annual Report on Form 10-K, and in our updates to those Risk Factors in our Quarterly Reports on Form 10-Q,
together with all of the other information appearing in this prospectus or incorporated by reference into this prospectus, the
prospectus supplement or any applicable pricing supplement, in light of your particular investment objectives and financial circumstances.
In addition to those risk factors, there may be additional risks and uncertainties of which management is not aware. Our business,
financial condition or results of operations could be materially affected by any of these risks. The trading price of our securities
could decline due to any of these risks, and you may lose all or part of your investment.
BERKSHIRE HILLS BANCORP, INC.
Berkshire Hills Bancorp (the
“Company” or “Berkshire”) is headquartered in Boston, Massachusetts. It had approximately
$13.2 billion in assets as of December 31, 2019 and is the parent of Berkshire Bank — America’s Most
Exciting BankSM (the “Bank”). Berkshire Bank, a Massachusetts-chartered trust company, was
established in 1846.
In addition to Berkshire Bank, Berkshire
Hills Bancorp owns an insurance agency named Berkshire Insurance Group. Berkshire Hills Bancorp is regulated as a financial holding
company under the supervision of the Federal Reserve. Berkshire Bank is regulated under the supervision of the FDIC and the Commonwealth
of Massachusetts.
Our common stock currently
trades on the New York Stock Exchange under the symbol “BHLB.”
Our principal executive offices are located
at 60 State Street, Boston, Massachusetts 02109, and our telephone number is (800) 773-5601, ext. 133773.
Additional information about us and our
subsidiaries is included in documents incorporated by reference in this prospectus. See “Where You Can Find More Information”
on page 1 of this prospectus.
USE OF PROCEEDS
We intend to use the net proceeds from the
sale of the securities for general corporate purposes unless otherwise indicated in the prospectus supplement relating to a specific
issue of securities. Our general corporate purposes may include repurchasing our outstanding common stock, financing possible acquisitions
of branches, other financial institutions, other businesses that are related to banking or diversification into other banking-relating
businesses, extending credit to, or funding investments in, our subsidiaries and repaying, reducing or refinancing indebtedness.
The precise amounts and the timing of our
use of the net proceeds will depend upon market conditions, our subsidiaries’ funding requirements, the availability of other
funds and other factors. Until we use the net proceeds from the sale of any of our securities for general corporate purposes, we
will use the net proceeds to reduce our indebtedness or for temporary investments. We expect that we will, on a recurrent basis,
engage in additional financings as the need arises to finance our corporate strategies, to fund our subsidiaries, to finance acquisitions
or otherwise.
The prospectus supplement with respect to
an offering of any Security may identify different or additional uses for the proceeds of that offering.
The
Securities We May Offer
The descriptions of the Securities contained
in this prospectus, together with the applicable prospectus supplements, summarize certain material terms and provisions of the
various types of Securities that we or selling security holders may offer. The particular material terms of the Securities offered
by a prospectus supplement will be described in that prospectus supplement. If indicated in the applicable prospectus supplement,
the terms of the offered Securities may differ from the terms summarized below. The prospectus supplement will also contain information,
where applicable, about material U.S. federal income tax considerations relating to the offered Securities, and the securities
exchange, if any, on which the offered Securities will be listed. The descriptions in this prospectus and the applicable prospectus
supplement do not contain all of the information that you may find useful or that may be important to you. You should refer to
the provisions of the actual documents whose terms are summarized herein and in the applicable prospectus supplement, because those
documents, and not the summaries, define your rights as holders of the relevant Securities. For more information, please review
the forms of these documents, which will be filed with the SEC and will be available as described under the heading “Where
You Can Find More Information” above.
DESCRIPTION OF DEBT SECURITIES
General
We may issue senior debt securities or subordinated
debt securities. Senior debt securities will be issued under an indenture, referred to as the “senior indenture,” and
subordinated debt securities will be issued under a separate indenture, referred to in this section as the “subordinated
indenture.” The senior indenture and the subordinated indenture are referred to in this section as the “indentures.”
The senior debt securities and the subordinated debt securities are referred to in this section as the “debt securities.”
The debt securities will be our direct unsecured general obligations.
This prospectus describes the general terms
and provisions of the debt securities. When we offer to sell a particular series of debt securities, we will describe the specific
terms of the securities in a supplement to this prospectus. The prospectus supplement will also indicate whether the general terms
and provisions described in this prospectus apply to a particular series of debt securities.
The following briefly describes the general
terms and provisions of the debt securities and the indentures. We have not restated these indentures in their entirety in this
description. We have filed the forms of the indentures, including the forms of debt securities, as exhibits to the registration
statement of which this prospectus is a part. We urge you to read the indentures, because they, and not this description, control
your rights as holders of the debt securities. The following description of the indentures is not complete and is subject to, and
qualified in its entirety by reference to, all the provisions in the respective indentures. Capitalized terms used in the summary
have the meanings specified in the indentures.
Neither indenture limits the amount of debt
securities that we may issue under the indenture from time to time in one or more series. We may in the future issue debt securities
under either indenture. At the date of this prospectus, we had not issued any debt securities under either indenture.
Neither indenture contains provisions that
would afford holders of debt securities protection in the event of a sudden and significant decline in our credit quality or a
takeover, recapitalization or highly leveraged or similar transaction. Accordingly, we could in the future enter into transactions
that could increase the amount of indebtedness outstanding at that time or otherwise adversely affect our capital structure or
credit rating.
The debt securities will be our exclusive
obligations. Neither indenture requires our subsidiaries to guarantee the debt securities. As a result, the holders of debt securities
will generally have a junior position to claims of all creditors and preferred shareholders of our subsidiaries.
Terms of Each Series of Debt Securities Provided in
the Prospectus Supplement
A prospectus supplement and any supplemental
indenture relating to any series of debt securities being offered will include specific terms relating to the offering. These terms
will include some or all of the following:
|
•
|
the form and title of the debt securities;
|
|
•
|
whether the debt securities are senior debt securities or subordinated debt securities and the terms of subordination;
|
|
•
|
the principal amount of the debt securities;
|
|
•
|
the denominations in which the debt securities will be issued;
|
|
•
|
the portion of the principal amount which will be payable if the maturity of the debt securities is accelerated;
|
|
•
|
the currency or currency unit in which the debt securities will be paid, if not U.S. dollars;
|
|
•
|
any right we may have to defer payments of interest by extending the dates payments are due and whether interest on those deferred
amounts will be payable as well;
|
|
•
|
the place where the principal of, and premium, if any, and interest on any debt securities will be payable;
|
|
•
|
the date or dates on which the debt securities will be issued and the principal, and premium, if any, of the debt securities
will be payable;
|
|
•
|
the rate or rates which the debt securities will bear interest and the interest payment dates for the debt securities;
|
|
•
|
any mandatory or optional redemption provisions;
|
|
•
|
the terms, if any, upon which the debt securities are convertible into other securities of ours and the terms and conditions
upon which any conversion will be effected, including the initial conversion price or rate, the conversion period and any other
provisions in addition to or instead of those described in this prospectus;
|
|
•
|
any sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the debt securities;
|
|
•
|
any deletion from, changes of or additions to the covenants or the Events of Default (as defined below) under “Provisions
in Both Indentures – Events of Default and Remedies”;
|
|
•
|
any changes to the terms and condition upon which the debt securities can be defeased or discharged;
|
|
•
|
any restriction or other provision with respect to the transfer or exchange of the debt securities;
|
|
•
|
the identity of any other trustee, paying agent and security registrar, if other than the trustee; and
|
|
•
|
any other terms of the debt securities.
|
We will maintain in each place specified
by us for payment of any series of debt securities an office or agency where debt securities of that series may be presented or
surrendered for payment, where debt securities of that series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon us in respect of the debt securities of that series and the related indenture may be served.
Debt securities may be issued under an indenture
as original issue discount securities to be offered and sold at a substantial discount below their principal amount. Material federal
income tax, accounting and other considerations applicable to any such original issue discount securities will be described in
any related prospectus supplement. “Original issue discount security” means any security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof as a result
of the occurrence of an Event of Default and the continuation thereof.
Provisions Only in the Senior Indenture
Payment of the principal, premium, if any,
and interest on the senior debt securities will rank equally in right of payment with all of our other unsecured senior debt.
Provisions Only in the Subordinated Indenture
Payment of the principal, premium, if any,
and interest on the subordinated debt securities will be subordinate and junior in priority of payment to prior payment in full
of all of our senior indebtedness, including senior debt securities and other debt to the extent described in a prospectus supplement.
Subordinated Debt Securities Intended to Qualify as Tier
2 Capital
Unless otherwise stated in the applicable
prospectus supplement, it is currently intended that the subordinated debt securities will qualify as Tier 2 Capital under the
regulations issued by the Federal Reserve Board for bank holding companies. The regulations set forth specific criteria for subordinated
debt to qualify as Tier 2 Capital. Among other things, the subordinated debt must:
|
•
|
have a minimum original maturity of at least five years;
|
|
•
|
be subordinated in right of payment;
|
|
•
|
not contain provisions permitting the holders of the debt to accelerate payment of principal prior to maturity except in the
event of bankruptcy of the issuer or of a major subsidiary depository institution of the issuing holding company;
|
|
•
|
not contain provisions permitting the issuer of the debt to redeem the security prior to the maturity date without prior approval
of the Federal Reserve; and
|
|
•
|
not contain provisions that would adversely affect liquidity or unduly restrict management’s flexibility to operate the
organization, particularly in times of financial difficulty, such as limitations on additional secured or senior borrowings, sales
or dispositions of assets or changes in control.
|
Provisions in Both Indentures
Consolidation, Merger or Asset Sale
Each indenture generally allows us to consolidate
or merge with a domestic person, association or entity. Each also allows us to sell, lease or transfer our property and assets
substantially as an entirety to a domestic person, association or entity. If this happens, the remaining or acquiring person, association
or entity must assume all of our responsibilities and liabilities under the indentures including the payment of all amounts due
on the debt securities and performance of the covenants in the indentures.
However, we will only consolidate or merge
with or into any other person, association or entity or sell, lease or transfer our assets substantially as an entirety according
to the terms and conditions of the indentures, which require that:
|
•
|
the remaining or acquiring person, association or entity is organized under the laws of the United States, any state within
the United States or the District of Columbia;
|
|
•
|
the remaining or acquiring person, association or entity assumes our obligations under the indentures; and
|
|
•
|
immediately after giving effect to the transaction, no Default or Event of Default, as defined below, shall have occurred and
be continuing.
|
The remaining or acquiring person, association
or entity will be substituted for us in the indentures with the same effect as if it had been an original party to the indentures.
Thereafter, the successor may exercise our rights and powers under the indentures, in our name or in its own name. If we sell or
transfer all or substantially all of our assets, we will be released from all our liabilities and obligations under any indenture
and under the debt securities. If we lease all or substantially all of our assets, we will not be released from our obligations
under the indentures.
Events of Default and Remedies
In the indentures, Default with respect
to any series of debt securities means any event which is, or after notice or lapse of time or both would become, an Event of Default.
In the indentures, Event of Default with
respect to any series of debt securities means any of the following:
|
•
|
failure to pay the principal of or any premium on any debt security of that series when due;
|
|
•
|
failure to pay interest on any debt security of that series for 30 days;
|
|
•
|
subject to certain exceptions, failure to perform any other covenant in the indenture, other than a covenant default in the
performance of which has expressly been included in the indenture solely for the benefit of series of debt securities other than
that series, that continues for 90 days after being given written notice as specified in the indenture;
|
|
•
|
our bankruptcy, insolvency or reorganization; or
|
|
•
|
any other Event of Default included in any indenture or supplemental indenture.
|
If an Event of Default with respect to a
series of debt securities occurs and is continuing, the trustee or the holders of at least 25% in principal amount of all of the
outstanding debt securities of a particular series may declare the principal of all the debt securities of that series to be due
and payable. When such declaration is made, such amounts will be immediately due and payable. The holders of a majority in principal
amount of the outstanding debt securities of such series may rescind such declaration and its consequences if all existing Events
of Default have been cured or waived, other than nonpayment of principal or interest that has become due solely as a result of
acceleration.
Holders of a series of debt securities may
not enforce the indenture or the series of debt securities, except as provided in the indenture or a series of debt securities.
The trustee may require indemnity satisfactory to it before it enforces the indenture or such series of debt securities. Subject
to certain limitations, the holders of a majority in principal amount of the outstanding debt securities of a particular series
may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust
or power of the trustee. The trustee may withhold notice to the holders of debt securities of any default, except in the payment
of principal or interest, if it considers such withholding of notice to be in the best interests of the holders.
An Event of Default for a particular series
of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under an
indenture. Further, an Event of Default under the debt securities of any series will not necessarily constitute an event of default
under our other indebtedness or vice versa.
Modification of Indentures
Under each indenture, generally we and the
trustee may modify our rights and obligations and the rights of the holders with the consent of the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series affected by the modification, voting as one class. No modification
of the principal or interest payment terms, requirement that the Company maintain an office or agency for matters related to the
debt securities, reduction of the percentage consent required for modifications, or impairment of the right to institute suit for
the payment on debt securities of any series when due, is effective against any holder without consent of all holders.
In addition, we and the trustee may enter
into supplemental indentures without the consent of any holder of the debt securities to make certain technical changes, such as:
|
•
|
curing ambiguities or correcting defects or inconsistencies;
|
|
•
|
evidencing the succession of another person to us, and the assumption by that successor of our obligations under the applicable
indenture and the debt securities of any series;
|
|
•
|
providing for a successor trustee;
|
|
•
|
qualifying the indentures under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”); or
|
|
•
|
complying with the rules and regulations of any securities exchange or automated quotation system on which debt securities
of any series may be listed or traded.
|
Discharging Our Obligations
We may choose either to discharge our obligations
on the debt securities of any series in a legal defeasance, or to release ourselves from our covenant restrictions on the debt
securities of any series in a covenant defeasance. We may do so at any time on the 91st day after we deposit with the trustee sufficient
cash or government securities to pay the principal, interest, any premium and any other sums due to the stated maturity date or
a redemption date of the debt securities of the series. If we choose the legal defeasance option, the holders of the debt securities
of the series will not be entitled to the benefits of the indenture except for registration of transfer and exchange of debt securities,
replacement of lost, stolen or mutilated debt securities, conversion or exchange of debt securities, sinking fund payments and
receipt of principal and interest on the original stated due dates or specified redemption dates.
We may discharge our obligations on the
debt securities of any series or release ourselves from covenant restrictions only if we meet certain requirements. Among other
things, we must deliver an opinion of our legal counsel that the discharge will not result in holders having to recognize taxable
income or loss or subject them to different tax treatment. In the case of legal defeasance, this opinion must be based on either
an IRS letter ruling or change in federal tax law. We may not have a default on the debt securities discharged on the date of deposit.
The discharge may not violate any of our agreements. The discharge may not result in our becoming an investment company in violation
of the Investment Company Act of 1940.
Information Concerning the Indenture Trustee
Under provisions of the indentures and the
Trust Indenture Act, if a trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the
trustee shall either eliminate such interest or resign in the manner provided by the indentures. Any resignation will require the
appointment of a successor trustee under the applicable indenture in accordance with its terms and conditions.
The trustee may resign with respect to one
or more series of debt securities and a successor trustee may be appointed by us to act with respect to any such series. The trustee
may be removed with respect to a series of debt securities by the Company in accordance with the terms of the Indenture, or by
the holders of a majority in aggregate principal amount of such series at any time.
Each indenture contains certain limitations
on the right of the trustee thereunder, in the event that it becomes our creditor, to obtain payment of claims in some cases, or
to realize on property received in respect of any such claim, as security or otherwise.
The trustee is required to submit an annual
report to the holders of the debt securities regarding, among other things, the trustee’s eligibility to serve, the priority
of the trustee’s claims regarding certain advances made by it, and any action taken by the trustee materially affecting the
debt securities. However, no annual report is required to be submitted if no event described in Section 313(a) of the
Trust Indenture Act has occurred within the 12 months preceding the reporting date.
Each indenture provides that, in addition
to other certificates or opinions that may be specifically required by other provisions of an indenture, every application by us
for action by the trustee shall be accompanied by a certificate of our officers and an opinion of counsel, who may be our counsel,
stating that, in the opinion of the signers, we have complied with all conditions precedent to the action.
No Personal Liability of Officers, Directors, Employees
or Shareholders
Our officers, directors, employees and shareholders
will not have any liability for our obligations under the indentures or the debt securities by way of his or her status. Each holder
of debt securities, by accepting a debt security, waives and releases all such liability. The waiver and release are part of the
consideration for the issuance of the debt securities.
Form, Denominations and Registration; Global Securities;
Book Entry Only System
Unless otherwise indicated in a prospectus
supplement, the debt securities of a series will be issued only in fully registered form, without coupons, in minimum denominations
of $1,000 or integral multiples in excess thereof. You will not have to pay a service charge to transfer or exchange debt securities
of a series, but we may require you to pay for taxes or other governmental charges due upon a transfer or exchange.
Unless otherwise indicated in a prospectus
supplement, each series of debt securities will be deposited with, or on behalf of, The Depository Trust Company (“DTC”)
or any successor depositary, which we call a “depositary,” and will be represented by one or more global notes registered
in the name of Cede & Co., as nominee of DTC. The interests of beneficial owners in the global notes will be represented
through financial institutions acting on their behalf as direct or indirect participants in DTC. See “Global Securities”
for the procedures for transfer of interests in securities held in global form.
DESCRIPTION OF COMMON STOCK
The following summary contains a description
of the general terms of the common stock that we may issue. The specific terms of any common stock will be described in the prospectus
supplement. Certain provisions of the common stock described below and in any prospectus supplement are not complete. You should
refer to our Certificate of Incorporation and filings with the SEC with respect to the offering of such common stock.
General
Berkshire Hills Bancorp, which is
incorporated under the General Corporation Law of the State of Delaware, is authorized to issue 100,000,000 shares of its
common stock, $0.01 par value, of which 50,201,987 shares were issued and outstanding as of March 20, 2020. Berkshire
Hills Bancorp’s board of directors may at any time, without additional approval of the holders of preferred stock or
common stock, issue additional authorized shares of common stock. In a prospectus supplement, we will describe the aggregate
number of shares offered and the offering price or prices of the shares.
Voting Rights
The holders of common stock are entitled
to one vote per share on all matters presented to stockholders. Holders of common stock are not entitled to cumulate their votes
in the election of directors. However, Berkshire Hills Bancorp’s Certificate of Incorporation provides that a record owner
of Berkshire Hills Bancorp’s common stock who beneficially owns, either directly or indirectly, in excess of 10% of Berkshire
Hills Bancorp’s outstanding shares, is not entitled to any vote in respect of the shares held in excess of the 10% limit.
No Preemptive or Conversion Rights
The holders of common stock do not have
preemptive rights to subscribe for a proportionate share of any additional securities issued by Berkshire Hills Bancorp before
such securities are offered to others. The absence of preemptive rights increases Berkshire Hills Bancorp’s flexibility to
issue additional shares of common stock in connection with Berkshire Hills Bancorp’s acquisitions, employee benefit plans
and for other purposes, without affording the holders of common stock a right to subscribe for their proportionate share of those
additional securities. The holders of common stock are not entitled to any redemption privileges, sinking fund privileges or conversion
rights.
Dividends
Holders of common stock are entitled to
receive dividends ratably when, as and if declared by Berkshire Hills Bancorp’s board of directors from assets legally available
therefor, after payment of all dividends on preferred stock, if any is outstanding. Under Delaware law, Berkshire Hills Bancorp
may pay dividends out of surplus or net profits for the fiscal year in which declared and/or for the preceding fiscal year, even
if our surplus accounts are in a deficit position. Dividends paid by our subsidiary bank have historically been a significant source
of funds available to Berkshire Hills Bancorp. Berkshire Hills Bancorp expects to use these sources of funds in the future, as
well as proceeds it may obtain from the offering of common stock, preferred stock and/or debt securities for payment of dividends
to our stockholders, the repurchase of our common stock and for other needs. Berkshire Hills Bancorp’s board of directors
intends to maintain its present policy of paying regular quarterly cash dividends. The declaration and amount of future dividends
will depend on circumstances existing at the time, including Berkshire Hills Bancorp’s earnings, financial condition and
capital requirements, as well as regulatory limitations and such other factors as Berkshire Hills Bancorp’s board of directors
deems relevant.
Berkshire Hills Bancorp’s principal
assets and sources of income consist of investments in our operating subsidiaries, which are separate and distinct legal entities.
Certain Certificate of Incorporation and Bylaw Provisions
Affecting Stock
Berkshire Hills Bancorp’s Certificate
of Incorporation and Bylaws contain several provisions that may make Berkshire Hills Bancorp a less attractive target for an acquisition
of control by anyone who does not have the support of Berkshire Hills Bancorp’s board of directors. Such provisions include,
among other things, the requirement of a supermajority vote of stockholders or directors to approve certain business combinations
and other corporate actions, a minimum price provision, several special procedural rules, a vote limitation provision and the limitation
that stockholder actions may only be taken at a meeting and may not be taken by unanimous written stockholder consent. The foregoing
is qualified in its entirely by reference to Berkshire Hills Bancorp’s Certificate of Incorporation and Bylaws, both of which
are on file with the SEC.
Restrictions on Ownership
Under the federal Change in Bank Control
Act, a notice must be submitted to the Federal Reserve if any person (including a company), or group acting in concert, seeks to
acquire “control” of a bank holding company or bank. An acquisition of “control” can occur upon the acquisition
of 10.0% or more of a class of voting securities of a bank holding company or savings institution or as otherwise defined by the
Federal Reserve. Under the Change in Bank Control Act, the Federal Reserve has 60 days from the filing of a complete notice to
act, taking into consideration certain factors, including the financial and managerial resources of the acquirer and the anti-trust
effects of the acquisition.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description
of the general terms of the preferred stock that we may issue. The specific terms of any series of preferred stock will be described
in the prospectus supplement relating to that series of preferred stock. The terms of any series of preferred stock may differ
from the terms described below. Certain provisions of the preferred stock described below and in any prospectus supplement are
not complete. You should refer to the amendment to our Certificate of Incorporation or the Certificate of Designation with respect
to the establishment of a series of preferred stock which will be filed with the SEC in connection with the offering of such series
of preferred stock.
General
Berkshire Hills Bancorp is authorized to
issue up to 2,000,000 shares of preferred stock, par value $0.01, in one or more series, without stockholder action. As of March 20,
2020, 260,907 shares of Series B non-voting convertible preferred stock are outstanding. The Certificate of Incorporation
provides that the board of directors can fix the designation, powers, preferences and rights of each series. Berkshire Hills Bancorp’s
board of directors may, at any time without additional approval of the holders of preferred or common stock, authorize the issuance
of preferred stock with voting, dividend, liquidation and conversion and other rights that could dilute the voting power of the
common stock and may assist management in impeding any unfriendly takeover or attempted change in control. In a prospectus supplement,
we will describe the aggregate number of shares offered relating to a particular series of the preferred stock and the specific
terms of the offering.
Rank
Any series of the preferred stock will,
with respect to the priority of the payment of dividends and the priority of payments upon liquidation, winding up and dissolution,
rank:
|
•
|
|
senior to all classes of common stock and all equity securities issued by us the terms of which specifically provide that the equity securities will rank junior to the preferred stock (the junior securities);
|
|
•
|
|
equally with all equity securities issued by us the terms of which specifically provide that the equity securities will rank equally with the preferred stock (the parity securities); and
|
|
•
|
|
junior to all equity securities issued by us the terms of which specifically provide that the equity securities will rank senior to the preferred stock.
|
Voting Rights
Unless otherwise described in the applicable
prospectus supplement, holders of the preferred stock will have no voting rights except as otherwise required by law or in our
certificate of incorporation.
Dividends
Holders of the preferred stock of each series
will be entitled to receive, when, as and if declared by our board of directors, cash dividends at such rates and on such dates
described, if any, in the prospectus supplement. Different series of preferred stock may be entitled to dividends at different
rates or based on different methods of calculation. The dividend rate may be fixed or variable or both. Dividends will be payable
to the holders of record as they appear on our stock books on record dates fixed by our board of directors, as specified in the
applicable prospectus supplement.
Dividends on any series of the preferred
stock may be cumulative or noncumulative, as described in the applicable prospectus supplement. If our board of directors does
not declare a dividend payable on a dividend payment date on any series of noncumulative preferred stock, then the holders of that
noncumulative preferred stock will have no right to receive a dividend for that dividend payment date, and we will have no obligation
to pay the dividend accrued for that period, whether or not dividends on that series are declared payable on any future dividend
payment dates. Dividends on any series of cumulative preferred stock will accrue from the date we initially issue shares of such
series or such other date specified in the applicable prospectus supplement.
No full dividends may be declared or paid
or funds set apart for the payment of any dividends on any parity securities unless dividends have been paid or set apart for payment
on the preferred stock. If full dividends are not paid, the preferred stock will share dividends pro rata with the parity securities.
No dividends may be declared or paid or funds set apart for the payment of dividends on any junior securities unless full cumulative
dividends for all dividend periods terminating on or prior to the date of the declaration or payment will have been paid or declared
and a sum sufficient for the payment set apart for payment on the preferred stock.
Our ability to pay dividends on our preferred
stock will depend on circumstances existing at the time, including Berkshire Hills Bancorp’s earnings, financial condition
and capital requirements, as well as regulatory limitations and such other factors as Berkshire Hills Bancorp’s board of
directors deems relevant.
Redemption
We may provide that a series of the preferred
stock may be redeemable, in whole or in part, at our option with prior approval of the Federal Reserve. In addition, a series of
preferred stock may be subject to mandatory redemption pursuant to a sinking fund or otherwise. The redemption provisions that
may apply to a series of preferred stock, including the redemption dates and the redemption prices for that series, will be described
in the prospectus supplement.
In the event of partial redemptions of preferred
stock, whether by mandatory or optional redemption, our board of directors will determine the method for selecting the shares to
be redeemed, which may be by lot or pro rata or by any other method determined to be equitable.
On or after a redemption date, unless we
default in the payment of the redemption price, dividends will cease to accrue on shares of preferred stock called for redemption.
In addition, all rights of holders of the shares will terminate except for the right to receive the redemption price.
Unless otherwise specified in the applicable
prospectus supplement for any series of preferred stock, if any dividends on any other series of preferred stock ranking equally
as to payment of dividends and liquidation rights with such series of preferred stock are in arrears, no shares of any such series
of preferred stock may be redeemed, whether by mandatory or optional redemption, unless all shares of preferred stock are redeemed,
and we will not purchase any shares of such series of preferred stock. This requirement, however, will not prevent us from acquiring
such shares pursuant to a purchase or exchange offer made on the same terms to holders of all such shares outstanding.
Restrictions on Ownership
Under regulations adopted by the Federal
Reserve, if the holders of any series of the preferred stock are or become entitled to vote for the election of directors, such
series may then be deemed a “class of voting securities.” Under the federal Change in Bank Control Act, a notice must
be submitted to the Federal Reserve if any person (including a company), or group acting in concert, seeks to acquire “control”
of a bank holding company or bank. An acquisition of “control” can occur upon the acquisition of 10.0% or more of a
class of voting securities of a bank holding company or savings institution or as otherwise defined by the Federal Reserve. Under
the Change in Bank Control Act, the Federal Reserve has 60 days from the filing of a complete notice to act, taking into consideration
certain factors, including the financial and managerial resources of the acquirer and the anti-trust effects of the acquisition.
Exchangeability
We may provide that the holders of shares
of preferred stock of any series may be required at any time or at maturity to exchange those shares for our debt securities. The
applicable prospectus supplement will specify the terms of any such exchange.
DESCRIPTION OF DEPOSITARY SHARES
This section describes the general terms
and provisions of the depositary shares offered by this prospectus. The applicable prospectus supplement will describe the specific
terms of any issuance of depositary shares. You should read the particular terms of any depositary shares we offer in any prospectus
supplement, together with the more detailed form of deposit agreement, including the form of depositary receipt relating to the
depositary shares, which will be filed as an exhibit to a document incorporated by reference in the registration statement of which
this prospectus forms a part. The prospectus supplement also will state whether any of the terms summarized below do not apply
to the depositary shares being offered.
General
We may offer fractional, rather than full
shares of preferred stock. If we exercise this option, we will provide for the issuance by a depositary to the public of depositary
receipts evidencing depositary shares, each of which will represent a fractional interest (to be stated in the applicable prospectus
supplement relating to a particular series of the preferred stock) in a share of a particular series of the preferred stock.
We will deposit the shares of any series
of the preferred stock underlying the depositary shares under a separate deposit agreement between us and a bank or trust company
selected by us, known as a depositary, having its principal office in the United States, and having a combined capital and surplus
of at least $50 million. The applicable prospectus supplement will provide the name and address of the depositary. Subject to the
terms of the deposit agreement, each owner of a depositary share will have a fractional interest in all the rights and preferences
of the preferred stock underlying the depositary share. These rights include any dividend, voting, redemption, conversion and liquidation
rights.
While the final depositary receipts are
being prepared, we may order the depositary, in writing, to issue temporary depositary receipts substantially identical to the
final depositary receipts although not in final form. This will entitle the holders to all the rights relating to the final depositary
receipts. Final depositary receipts will be prepared without unreasonable delay, and the holders of the temporary depositary receipts
can exchange them for the final depositary receipts at our expense.
Dividends and Other Distributions
The depositary will distribute all cash
dividends or other cash distributions received for the preferred stock (less any taxes required to be withheld) to the record holders
of depositary shares representing the preferred stock in proportion to the number of depositary shares that the holders own on
the relevant record date. The depositary will distribute only the amount that can be distributed without attributing to any holder
of depositary shares a fraction of one cent. The balance not distributed will be added to and treated as part of the next sum that
the depositary receives for distribution to record holders of depositary shares.
If there is a distribution other than in
cash, the depositary will distribute property to the record holders of depositary shares that are entitled to it, unless the depositary
determines that it is not feasible to make this distribution. If this occurs, the depositary may, with our approval, sell the property
and distribute the net proceeds from the sale to the holders of depositary shares.
The deposit agreement will also contain
provisions relating to the manner in which any subscription or similar rights that we offer to holders of the preferred stock
will be made available to holders of depositary shares.
Conversion and Exchange
Unless the applicable prospectus supplement
indicates otherwise, the series of preferred stock underlying the depositary shares will not be convertible or exchangeable into
any other class or series of our capital stock.
Redemption of Deposited Preferred Stock
If a series of preferred stock underlying
the depositary shares is subject to redemption, we will redeem the depositary shares from the redemption proceeds received by the
depositary, in whole or in part, on the series of preferred stock held by the depositary. The redemption price per depositary share
will bear the same relationship to the redemption price per share of preferred stock that the depositary share bears to the underlying
preferred stock. When we redeem preferred stock held by the depositary, the depositary will redeem as of the same redemption date,
the number of depositary shares representing the preferred stock redeemed. If less than all the depositary shares are to be redeemed,
the redemption will be made in a manner that our board of directors decides is equitable.
From and after the date fixed for redemption,
the depositary shares called for redemption will no longer be outstanding. When the depositary shares are no longer outstanding,
all rights of the holders of depositary shares will cease, except the right to receive money or property that the holders of the
depositary shares were entitled to receive on redemption. The payments will be made when holders surrender their depositary receipts
to the depositary.
Voting of Deposited Preferred Stock
Upon receipt of notice of any meeting at
which the holders of the preferred stock are entitled to vote, the depositary will mail the information contained in the notice
to the record holders of the depositary shares relating to the preferred stock. Each record holder of the depositary shares on
the record date (which will be the same date as the record date for the preferred stock) will be entitled to instruct the depositary
on how the preferred stock underlying the holder’s depositary shares should be voted. The depositary will try, if practicable,
to vote the number of shares of preferred stock underlying the depositary shares according to the instructions received, and we
will take all action that the depositary may consider necessary to enable the depositary to do so. The depositary will not vote
any preferred stock if it does not receive specific instructions from the holders of depositary shares relating to the preferred
stock.
DESCRIPTION OF WARRANTS OR OTHER RIGHTS
We may issue warrants or other rights for
the purchase of common stock, preferred stock and debt securities. Warrants or other rights may be issued separately or together
with common stock, preferred stock or debt securities offered by any prospectus supplement and may be attached to or separate from
such common stock, preferred stock or debt securities. Each series of warrants or other rights will be issued under a separate
warrant agreement to be entered into between us and a bank or trust corporation, as warrant agent, all as set forth in the prospectus
supplement relating to the particular issue of offered warrants or other rights. In a prospectus supplement, we will inform you
of the exercise price and other specific terms of any such warrants or other rights, including whether our or your obligations,
if any, under any warrants or other rights may be satisfied by delivering or purchasing the underlying securities or their cash
value.
DESCRIPTION OF PURCHASE CONTRACTS
We may issue purchase contracts, including
purchase contracts issued as part of a unit with one or more other securities, for the purchase or sale of our debt securities,
preferred stock, depositary shares or common stock. The price of our debt securities or price per share of common stock, preferred
stock or depositary shares, as applicable, may be fixed at the time the purchase contracts are issued or may be determined by reference
to a specific formula contained in the purchase contracts. We may issue purchase contracts in such amounts and in as many distinct
series as we wish.
The applicable prospectus supplement may
contain, where applicable, the following information about the purchase contracts issued under it:
|
·
|
whether the purchase contracts obligate the holder to purchase or sell, or both, our debt securities, common stock, preferred
stock or depositary shares, as applicable, and the nature and amount of each of those securities, or method of determining those
amounts;
|
|
·
|
whether the purchase contracts are to be prepaid or not;
|
|
·
|
whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level
of our common stock or preferred stock;
|
|
·
|
any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts;
|
|
·
|
United States federal income tax considerations relevant to the purchase contracts; and
|
|
·
|
whether the purchase contracts will be issued in fully registered global form.
|
The applicable prospectus supplement will
describe the terms of any purchase contracts. The preceding description and any description of purchase contracts in the applicable
prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the purchase
contract agreement and, if applicable, collateral arrangements and depositary arrangements relating to such purchase contracts.
DESCRIPTION OF UNITS
We may issue units comprised of two or more
of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit
is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a
holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the
unit may not be held or transferred separately, at any time or at any time before a specified date.
The applicable prospectus supplement may
describe:
|
·
|
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances
those securities may be held or transferred separately;
|
|
·
|
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the
units;
|
|
·
|
the terms of the unit agreement governing the units;
|
|
·
|
United States federal income tax considerations relevant to the units; and
|
|
·
|
whether the units will be issued in fully registered or global form.
|
The preceding description and any description
of units in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety
by reference to the form of unit agreement which will be filed with the SEC in connection with the offering of such units, and,
if applicable, collateral arrangements and depositary arrangements relating to such units.
DESCRIPTION OF SUBSCRIPTION RIGHTS
General
We may distribute subscription rights, which
may or may not be transferable, to the holders of our common stock, holders of any series of our preferred stock, holders of depository
shares or holders of our debt securities as of a record date set by our board of directors, at no cost to such holders. Each holder
will be given the right to purchase a specified number of whole shares of our common stock, preferred stock, depository shares
or debt securities for every share of our common stock, share of a series of preferred stock, depository shares or our debt securities
that the holder thereof owned on such record date, as set forth in the applicable prospectus supplement. The subscription rights
will be evidenced by subscription rights certificates, which may be in definitive or book-entry form. Each right will entitle the
holder to purchase shares of our common stock, a series of preferred stock, depository shares or our debt securities at a rate
and price to be established by our board of directors, as set forth in the applicable prospectus supplement. If holders of rights
wish to exercise their subscription rights, they must do so before the expiration date of the subscription rights offering, as
set forth in the applicable prospectus supplement. Upon the expiration date, the subscription rights will expire and will no longer
be exercisable, unless, in our sole discretion prior to the expiration date, we extend the subscription rights offering.
Exercise Price
Our board of directors will determine the
exercise price or prices for the subscription rights based upon a number of factors, including, without limitation, our business
prospects; our capital requirements; the price or prices at which an underwriter or standby purchasers may be willing to purchase
securities that remain unsold in the subscription rights offering; and general conditions in the securities markets, especially
for securities of financial institutions.
The subscription price may or may not reflect
the actual or long-term fair value of the common stock, preferred stock, depository shares or debt securities offered in the subscription
rights offering. We provide no assurances as to the market values or liquidity of any subscription rights issued, or as to whether
or not the market prices of the common stock, preferred stock, depository shares or debt securities subject to the subscription
rights will be more or less than the subscription rights’ exercise price during the term of the rights or after the rights
expire.
Exercising Rights; Fees and Expenses
The manner of exercising subscription rights
will be set forth in the applicable prospectus supplement. Any subscription agent or escrow agent will be set forth in the applicable
prospectus supplement. We will pay all fees charged by any subscription agent and escrow agent in connection with the distribution
and exercise of subscription rights. Subscription rights holders will be responsible for paying all other commissions, fees, taxes
or other expenses incurred in connection with their transfer of subscription rights that are transferable. Neither we nor the subscription
agent will pay such expenses.
Expiration of Rights
The applicable prospectus supplement will
set forth the expiration date and time (“Expiration Date”) for exercising subscription rights. If holders of subscription
rights do not exercise their subscription rights prior to such time, their subscription rights will expire and will no longer be
exercisable and will have no value. We will extend the Expiration Date as required by applicable law and may, in our sole discretion,
extend the Expiration Date. If we elect to extend the Expiration Date, we will issue a press release announcing such extension
prior to the scheduled Expiration Date.
Withdrawal and Termination
We may withdraw the subscription rights
offering at any time prior to the Expiration Date for any reason. We may terminate the subscription rights offering, in whole or
in part, at any time before completion of the subscription rights offering if there is any judgment, order, decree, injunction,
statute, law or regulation entered, enacted, amended or held to be applicable to the subscription rights offering that in the sole
judgment of our board of directors would or might make the subscription rights offering or its completion, whether in whole or
in part, illegal or otherwise restrict or prohibit completion of the subscription rights offering. We may waive any of these conditions
and choose to proceed with the subscription rights offering even if one or more of these events occur. If we terminate the subscription
rights offering, in whole or in part, all affected rights will expire without value, and all subscription payments received by
the subscription agent will be returned promptly without interest.
Rights of Subscribers
Holders of subscription rights will have
no rights as holders with respect to our common stock, preferred stock, depository shares or debt securities for which the rights
may be exercised until they have exercised their rights by payment in full of the exercise price and in the manner provided in
the applicable prospectus supplement, and such common stock, preferred stock, depository shares or debt securities, as applicable,
have been issued to such persons. Holders of subscription rights will have no right to revoke their subscriptions or receive their
monies back after they have completed and delivered the materials required to exercise their subscription rights and have paid
the exercise price to the subscription agent. All exercises of rights will be final and cannot be revoked by the holder of rights.
Regulatory Limitations
We will not be required to issue any person
or group of persons shares of our common stock, preferred stock, depository shares or debt securities pursuant to the subscription
rights offering if, in our sole opinion, such person would be required to give prior notice to or obtain prior approval from, any
state or federal governmental authority to own or control such securities if, at the time the rights offering is scheduled to expire,
such person has not obtained such clearance or approval in form and substance reasonably satisfactory to us.
Standby Agreements
We may enter into one or more separate agreements
with one or more standby underwriters or other persons to purchase, for their own account or on our behalf, our common stock, preferred
stock, depository shares or debt securities not subscribed for in the subscription rights offering. The terms of any such agreements
will be described in the applicable prospectus supplement.
GLOBAL SECURITIES
Unless otherwise indicated in the applicable
prospectus supplement, securities other than common stock will be issued in the form of one or more global certificates, or “global
securities,” registered in the name of a depositary or its nominee. Unless otherwise indicated in the applicable prospectus
supplement, the depositary will be DTC and the securities will be registered in the name of Cede & Co. No person that
acquires a beneficial interest in those securities will be entitled to receive a certificate representing that person’s interest
in the securities except as described herein or in the applicable prospectus supplement. Unless and until definitive securities
are issued under the limited circumstances described below, all references to actions by holders of securities issued in global
form will refer to actions taken by DTC upon instructions from its participants, and all references to payments and notices to
holders will refer to payments and notices to DTC or Cede & Co., as the registered holder of these securities.
DTC is a limited-purpose trust company organized
under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of
the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and
a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities
that DTC participants deposit with DTC. DTC also facilitates the settlement among DTC participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in DTC participants’
accounts, thereby eliminating the need for physical movement of certificates. DTC participants include securities brokers and dealers,
banks, trust companies and clearing corporations, and may include other organizations. DTC is a wholly owned subsidiary of the
Depository Trust & Clearing Corporation, or DTCC. DTCC, in turn, is owned by a number of DTC’s participants and
subsidiaries of DTCC as well as by the New York Stock Exchange, Inc., the American Stock Exchange, LLC and the Financial Industry
Regulatory Authority, Inc. Indirect access to the DTC system also is available to others such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. The
rules applicable to DTC and DTC participants are on file with the SEC.
Persons that are not participants or indirect
participants but desire to purchase, sell or otherwise transfer ownership of, or other interests in, securities may do so only
through participants and indirect participants. Under a book-entry format, holders may experience some delay in their receipt of
payments, as such payments will be forwarded by our designated agent to Cede & Co., as nominee for DTC. DTC will forward
such payments to its participants, who will then forward them to indirect participants or holders. Holders will not be recognized
by the relevant registrar, transfer agent, trustee or warrant agent as registered holders of the securities entitled to the benefits
of our certificate of incorporation or the applicable indenture, warrant agreement or other applicable security. Beneficial owners
that are not participants will be permitted to exercise their rights only indirectly through and according to the procedures of
participants and, if applicable, indirect participants.
Under the rules, regulations and procedures
creating and affecting DTC and its operations as currently in effect, DTC will be required to make book-entry transfers of securities
among participants and to receive and transmit payments to participants. DTC rules require participants and indirect participants
with which beneficial securities owners have accounts to make book-entry transfers and receive and transmit payments on behalf
of their respective account holders.
Because DTC can act only on behalf of participants,
who in turn act only on behalf of participants or indirect participants, and certain banks, trust companies and other persons approved
by it, the ability of a beneficial owner of securities issued in global form to pledge such securities to persons or entities that
do not participate in the DTC system may be limited due to the unavailability of physical certificates for these securities.
DTC will take any action permitted to be
taken by a registered holder of any securities under our certificate of incorporation or the relevant indenture, warrant agreement,
or other applicable security only at the direction of one or more participants to whose accounts with DTC such securities are credited.
Unless otherwise indicated in the applicable
prospectus supplement, a global security will be exchangeable for the relevant definitive securities registered in the names of
persons other than DTC or its nominee only if:
|
·
|
DTC notifies us that it is unwilling or unable to continue as depositary for that global security or if DTC ceases to be a
clearing agency registered under the Exchange Act when DTC is required to be so registered;
|
|
·
|
we execute and deliver to the relevant registrar, transfer agent, trustee and/or warrant agent an order complying with the
requirements of the applicable indenture, warrant agreement, or other security that the global security will be exchangeable for
definitive securities in registered form; or
|
|
·
|
there has occurred and is continuing a default in the payment of any amount due in respect of the securities or, in the case
of debt securities, an event of default or an event that, with the giving of notice or lapse of time, or both, would constitute
an event of default with respect to these debt securities.
|
Any global security that is exchangeable
under the preceding sentence will be exchangeable for securities registered in such names as DTC directs.
Upon the occurrence of any event described
in the preceding paragraph, DTC is generally required to notify all participants of the availability of definitive securities.
Upon DTC surrendering the global security representing the securities and delivery of instructions for re-registration, the registrar,
transfer agent, trustee or warrant agent, as the case may be, will reissue the securities as definitive securities, and then such
persons will recognize the holders of such definitive securities as registered holders of securities entitled to the benefits of
our certificate of incorporation or the relevant indenture, warrant agreement or other security.
Redemption notices will be sent to Cede &
Co. as the registered holder of the global securities. If less than all of a series of securities are being redeemed, DTC will
determine the amount of the interest of each direct participant to be redeemed in accordance with its then current procedures.
Except as described above, the global security
may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or
to a successor depositary we appoint. Except as described above, DTC may not sell, assign, transfer or otherwise convey any beneficial
interest in a global security evidencing all or part of any securities unless the beneficial interest is in an amount equal to
an authorized denomination for these securities.
The information in this section concerning
DTC and DTC’s book-entry system has been obtained from sources that we believe to be accurate, but we assume no responsibility
for the accuracy thereof. None of us, any trustees, any registrar and transfer agent or any warrant agent, or any agent of any
of them, will have any responsibility or liability for any aspect of DTC’s or any participant’s records relating to,
or for payments made on account of, beneficial interests in a global security, or for maintaining, supervising or reviewing any
records relating to such beneficial interests.
Secondary trading in notes and debentures
of corporate issuers is generally settled in clearing-house or next-day funds. In contrast, beneficial interests in a global security,
in some cases, may trade in the DTC’s same-day funds settlement system, in which secondary market trading activity in those
beneficial interests would be required by DTC to settle in immediately available funds. There is no assurance as to the effect,
if any, that settlement in immediately available funds would have on trading activity in such beneficial interests. Also, settlement
for purchases of beneficial interests in a global security upon the original issuance of the security may be required to be made
in immediately available funds.
PLAN OF DISTRIBUTION
We may sell our securities through underwriters
or dealers, directly to purchasers, through agents, or through any combination thereof.
Each time that we use this prospectus to
sell our securities, we will also provide a prospectus supplement that contains the specific terms of the offering. The prospectus
supplement will set forth the terms of the offering of such stock, including:
|
·
|
the name or names of any underwriters, dealers or agents and the type and amounts of securities underwritten or purchased by
each of them;
|
|
·
|
the public offering price of the securities and the proceeds to us and any discounts, commissions or concessions allowed or
reallowed or paid to dealers; and
|
|
·
|
any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time
to time.
|
If underwriters are used in the sale of
any securities, the securities will be acquired by the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at
the time of sale. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters,
or directly by underwriters. Generally, the underwriters’ obligations to purchase the securities will be subject to certain
conditions precedent. The underwriters will be obligated to purchase all of the securities if they purchase any of the securities.
We may sell the securities through agents
from time to time. The prospectus supplement will name any agent involved in the offer or sale of our securities and any commissions
we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We may authorize underwriters, dealers or
agents to solicit offers by certain purchasers to purchase our securities at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts
will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any
commissions or discounts we pay for solicitation of these contracts.
Agents and underwriters may be entitled
to indemnification by us against certain civil liabilities, including liabilities under the Securities Act of 1933, as amended,
or to contribution with respect to payments which the agents or underwriters may be required to make in respect thereof. Agents
and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
We may enter into derivative transactions
with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If
the applicable prospectus supplement indicates in connection with those derivatives then the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party
may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of
securities. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus
supplement (or a post-effective amendment).
LEGAL OPINION
The validity of the securities that may
be offered will be passed upon for us by Luse Gorman, PC, Washington, D.C.
EXPERTS
The consolidated financial statements of
Berkshire Hills Bancorp, Inc. as of December 31, 2019 and 2018 and for each of the three years in the period ended December 31,
2019 have been audited by Crowe LLP, an independent registered public accounting firm, as set forth in their report appearing
in our Annual Report on Form
10-K for the year ended December 31, 2019 and incorporated in this registration statement by reference. Such consolidated
financial statements have been so incorporated in reliance upon their authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
|
Other Expenses of Issuance and Distribution.
|
The expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting compensation, are set forth in the following table
(all amounts except the registration fee are estimated):
Filing Fee — Securities and Exchange Commission
|
|
$
|
(1
|
)
|
Accounting fees and expenses
|
|
|
(2
|
)
|
Legal fees and expenses
|
|
|
(2
|
)
|
Printing and EDGAR fees
|
|
|
(2
|
)
|
Miscellaneous expenses
|
|
|
(2
|
)
|
Total expenses
|
|
$
|
(2
|
)
|
(1) Under Rules 456(b) and
457(r) under the Securities Act, the registration fee will be paid at the time of any particular offering of securities under
this registration statement.
(2) The amount of these
fees and expenses is not currently determinable.
Item 15.
|
Indemnification of Directors and Officers.
|
In accordance with the General Corporation
Law of the State of Delaware (being Chapter 1 of Title 8 of the Delaware Code), Articles 10 and 11 of Berkshire Hills Bancorp’s
Certificate of Incorporation provide as follows:
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.
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.
With respect to possible indemnification
of directors, officers and controlling persons of Berkshire Hills Bancorp for liabilities arising under the Securities Act of 1933
(the “Act”) pursuant to such provisions, Berkshire Hills Bancorp is aware that the Securities and Exchange Commission
has publicly taken the position that such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
|
1
|
Form of Underwriting Agreement for any offering of securities.*
|
|
4.2
|
Form of Note for Senior Debt Securities.*
|
|
4.4
|
Form of Note for Subordinated Debt Securities.*
|
|
4.5
|
Form of Warrant Agreement (Stock) (including form
of warrant).*
|
|
4.6
|
Form of Warrant Agreement (Debt) (including form
of warrant).*
|
|
4.9
|
Form of Certificate of Designation for series of
Preferred Stock.*
|
|
4.10
|
Form of Preferred Stock Certificate.*
|
|
4.11
|
Form of Deposit Agreement.*
|
|
4.12
|
Form of Depositary Receipt.*
|
|
4.13
|
Form of Unit Certificate.*
|
|
25.1
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, under the Indenture for Senior Debt
Securities.**
|
25.2
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, under the Indenture for Subordinated
Debt Securities.**
|
*
|
To be subsequently filed by an amendment to the Registration Statement or by a Current Report on Form 8-K and incorporated herein by reference.
|
**
|
To be incorporated herein by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939.
|
The undersigned 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) to the Securities Act of 1933, as amended (the “Securities Act”);
(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;
Provided, however, that the undertakings set
forth in paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if 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 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are incorporated
by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that
is part of the registration statement;
(2) That, for purposes 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;
(4) That, for purposes of
determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed
by the registrant pursuant to Rule 424(b)(3) and (h) shall be deemed to be part of the registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required
to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430D
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement
as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale
of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(5) That, for the purpose
of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities:
The undersigned undertakes that
in a primary offering of securities of undersigned pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, undersigned will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus
or prospectus of the undersigned relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus
relating to the offering prepared by or on behalf of the undersigned or used or referred to by the undersigned;
(iii) The portion of any other
free writing prospectus relating to the offering containing material information about the undersigned or its securities provided
by or on behalf of the undersigned; and
(iv) Any other communication
that is an offer in the offering made by the undersigned to the purchaser.
(6) The undersigned registrant
hereby undertakes that, for the 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 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.
(7) 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 Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
(8) (i) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(ii) For the purpose of determining
any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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
(9) To file an application
for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the
SEC under Section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe it meets all the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the
City of Boston, Commonwealth of Massachusetts on March 20, 2020.
|
BERKSHIRE HILLS BANCORP, INC.
|
|
|
|
By:
|
/s/ Richard M. Marotta
|
|
|
Richard M. Marotta
|
|
|
President and Chief Executive Officer
|
Each person whose signature appears below
hereby constitutes and appoints Richard M. Marotta or James M. Moses, or any of them, acting alone, as his or her true and lawful
attorney-in-fact, with full power and authority to execute in the name, place and stead of each such person in any and all capacities
and to file, an amendment or amendments to the Registration Statement (and all exhibits thereto) and any documents relating thereto,
which amendments may make such changes in the Registration Statement as said officer or officers so acting deem(s) advisable.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the
date indicated.
|
Name
|
|
Position
|
|
Date
|
By:
|
/s/ Richard M. Marotta
|
|
Director, President and Chief Executive Officer
|
March 20, 2020
|
|
Richard M. Marotta
|
|
(Principal Executive Officer)
|
|
|
|
|
|
|
By:
|
/s/ James M. Moses
|
|
Senior Executive Vice President and Chief Financial
Officer
|
March 20, 2020
|
|
James M. Moses
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ J. Williar Dunlaevy
|
|
Chairman
|
March 20, 2020
|
|
J. Williar Dunlaevy
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Baye Adofo-Wilson
|
|
Director
|
March 20, 2020
|
|
Baye Adofo-Wilson
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Rheo A. Brouillard
|
|
Director
|
March 20, 2020
|
|
Rheo A. Brouillard
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ David M. Brunelle
|
|
Director
|
March 20, 2020
|
|
David M. Brunelle
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Robert M. Curley
|
|
Director
|
March 20, 2020
|
|
Robert M. Curley
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ John B. Davies
|
|
Director
|
March 20, 2020
|
|
John B. Davies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ William H. Hughes III
|
|
Director
|
March 20, 2020
|
|
William H. Hughes III
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
Director
|
March 20, 2020
|
|
Cornelius D. Mahoney
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Pamela A. Massad
|
|
Director
|
March 20, 2020
|
|
Pamela A. Massad
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Sylvia Maxfield
|
|
Director
|
March 20, 2020
|
|
Sylvia Maxfield
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Laurie Norton Moffatt
|
|
Director
|
March 20, 2020
|
|
Laurie Norton Moffatt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ William J. Ryan
|
|
Director
|
March 20, 2020
|
|
William J. Ryan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ Jonathan I. Shulman
|
|
Director
|
March 20, 2020
|
|
Jonathan I. Shulman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
/s/ D. Jeffrey Templeton
|
|
Director
|
March 20, 2020
|
|
D. Jeffrey Templeton
|
|
|
|
Berkshire Hills Bancorp (NYSE:BHLB)
Historical Stock Chart
From Jul 2024 to Aug 2024
Berkshire Hills Bancorp (NYSE:BHLB)
Historical Stock Chart
From Aug 2023 to Aug 2024