As filed with the Securities and Exchange Commission
on March 2, 2023
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)
Nitin J. Mhatre
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. ¨
PROSPECTUS
![](https://content.edgar-online.com/edgar_conv_img/2023/03/02/0001104659-23-027900_tm237502d1_s3img01.jpg)
Common Stock
Preferred Stock
Debt Securities
Depositary
Shares
Warrants or
Other Rights
Purchase Contracts
Units
Subscription
Rights
This prospectus
contains summaries of the general terms of the following securities that 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; |
| • | shares
of our preferred stock; |
| • | debt
securities, in one or more series; |
| • | warrants
or other rights to purchase any of the other securities that may be sold under this Prospectus;
and |
| • | purchase
contracts, units or subscription rights to purchase any of the other securities that may
be sold under this Prospectus. |
Each time securities
are offered pursuant to this prospectus, 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. This prospectus may not be used to offer or sell securities
without a supplement describing the terms of the offering. 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.
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 7 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.
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 Federal Deposit Insurance Corporation or any other governmental agency.
The date of this
prospectus is March 2, 2023
IMPORTANT NOTICE
ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND
THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We may provide information
to you about the securities we offer in three separate documents that progressively provide more detail:
| • | this
prospectus, which provides general information about Berkshire Hills Bancorp, Inc. and
the securities being registered, some of which may not apply to your securities; |
| • | a
prospectus supplement, which describes the terms of a particular issuance of securities,
some of which may not apply to your securities and which may not include information relating
to the prices of the securities being offered; and |
| • | if
necessary, a pricing supplement that describes the pricing terms of your securities. |
If the terms of
your securities vary among the pricing supplement, the prospectus supplement and the prospectus, you should rely on the information in
the following order of priority:
| • | the
pricing supplement, if any; |
| • | the
prospectus supplement; and |
We include cross-references
in this prospectus and the prospectus supplement to captions in these materials where you can find further related discussions. The following
Table of Contents and the Table of Contents included in a prospectus supplement provide the pages on which these captions are located.
Unless indicated
in the applicable prospectus supplement, we have not taken any action that would permit us to publicly sell these securities in any jurisdiction
outside the United States. If you are an investor outside the United States, you should inform yourself about, and comply with, any restrictions
as to the offering of the securities and the distribution of this prospectus.
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, (provided,
however, that this prospectus does not incorporate by reference any documents, reports or filings, or portions of any documents,
reports or filings, that are deemed to be furnished and not filed under applicable SEC rules).
SEC Filings | |
Period or Filing Date
(as applicable) |
Annual Report on Form 10-K | |
Year ended December 31, 2022 |
| |
|
Current Reports on Form 8-K (other than information furnished under Items 2.02 or 7.01 of Form 8-K) | |
January 17,
2023, January 25,
2023, January 25,
2023, January 26, 2023, February 2,
2023, February 3,
2023, February 6,
2023, and February 15,
2023. |
| |
|
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 common
stock, preferred stock, debt securities, 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 “may,” “will,” “should,” “could,” “would,”
“outlook,” “plan,” “potential,” “estimate,” “project,” “believe,”
“intend,” “anticipate,” “expect,” “remain,” “target,” “potential,”
“seek,” “strive,” “try” 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
subsequent 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:
| • | changes
in general economic and business conditions, including inflation, 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, the value of our financial instruments,
demand for our products and future cash flows; |
| • | changes
in deposit flows, and in demand for deposit, loan, and investment products and other financial
services in our local markets; |
| • | the
effects of the COVID-19 pandemic, including impacts on the Company, its customers, and the
communities where it operates; |
| • | international
conflict in Europe and elsewhere; |
| • | 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”); |
| • | conflict,
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.
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 subsequent 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 $11.7
billion in assets as of December 31, 2022 and is the holding company for Berkshire Bank. Established in 1846, Berkshire Bank
operates as a commercial bank under a Massachusetts trust company charter. Berkshire Bank seeks to be a high-performing,
leading socially responsible community bank in New England, Upstate New York and beyond. The Bank provides business and consumer
banking, mortgage, wealth management, and investment services and operates 100 branch offices in New England and New
York.
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. The Bank owns Firestone Financial, LLC, which is a Massachusetts limited
liability company that originates equipment loans, as well as consolidated subsidiaries operated as Massachusetts securities corporations
and other subsidiary entities. The Company also owns all of the common stock of two Delaware statutory business trusts, Berkshire Hills
Capital Trust I and SI Capital Trust II. The capital trusts are unconsolidated and their only material assets are trust preferred securities
related to the Company’s junior subordinated debentures.
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, or other businesses that are related to banking, diversification into
other banking-relating businesses, extending credit to, or funding investments in, our subsidiaries, or 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
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 44,469,516 shares were issued and outstanding as of February 21, 2023. Each
share of common stock has the same relative rights as, and is identical in all respects to, each other share of common stock. All of
our shares of common stock are duly authorized, fully paid and nonassessable. 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 the
common stock exclusively possess all voting power in the Company, subject to the authority of the board of directors to offer voting
rights to the holders of preferred stock and the limited voting rights of our Series B Non-Voting Preferred stockholders. The Series B
Non-Voting Preferred stock is not entitled to vote on any matter except as required by Delaware law. As to all matters for which voting
by class is specifically required by Delaware law, each outstanding share of Series B Non-Voting Preferred Stock is entitled to
one vote.
The holders of common
stock are entitled to one vote per share on all matters presented to stockholders. 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. Holders of common stock are not entitled to cumulate their votes in the election of directors.
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. No dividend may be declared or
paid on the common stock unless a dividend equal to 200% of the amount declared or paid on the common stock is also concurrently declared
or paid, as applicable, on the Series B Non-Voting Preferred Stock. 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. 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 and a related 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.
Restrictions
on Call of Special Meetings. The Company’s
bylaws provide that special meetings of stockholders can be called by the board of directors, subject to the rights of any holders of
preferred stock.
Board
of Directors. The Company’s board of directors is not classified. Subject to the rights
of holders of preferred stock, a director may be removed only for cause and only by the affirmative vote of the holders of at least 80%
of the voting power of all of the outstanding shares of capital stock of the Company entitled to vote generally in the election of directors.
Amendments
to Bylaws. The Company’s bylaws may
be adopted, amended or repealed by action of our board of directors. Stockholders may adopt, amend or repeal the bylaws of the Company
only by the affirmative vote of the holders of at least 80% of the voting power of all of the outstanding shares of the capital stock
of the Company entitled to vote generally in the election of directors, in addition to any vote of the holders of any class or series
of capital stock of the Company required by law or by the certificate of incorporation.
Amendments
to Certificate of Incorporation. The Company’s
certificate of incorporation provides that certain provisions may only be amended by the approval of 80% of the voting power of all of
the outstanding shares of the voting stock of the Company.
Action
by Stockholders without a Meeting. Action required or permitted to be taken at an annual
or special meeting of stockholders must be effected at a duly called meeting and may not be effected by written consent of stockholders.
10%
Vote Limitation. Any owner of any more than 10% of the outstanding shares of common stock
of the Company may not vote shares held in excess of 10%.
Business
Combinations Involving Interested Shareholders. At
least 80% of the outstanding shares of voting stock of the Company must approve certain business combinations involving an interested
stockholder or any affiliate of an interested stockholder. However, if a majority of directors not affiliated with the interested stockholder
approve the business combination or certain pricing criteria are satisfied, the affirmative vote of a majority of the outstanding shares
of the Company is sufficient to approve a business combination.
Evaluation
of Offers. The Company’s certificate of incorporation provides that the Board of Directors
may, in the context of opposing a tender offer, take into account all relevant factors, including, without limitation, the social and
economic effect of acceptance of such offer on the Company’s present and future customers and employees and those of its subsidiaries,
and the communities in which the Company and its subsidiaries operate or are located.
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% 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 2, 2023, there were no shares of Series B non-voting convertible preferred stock
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% 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
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 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 convey, 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 convey, lease or transfer our assets substantially
as an entirety according to the terms and conditions of the indentures, which require that:
| • | the
resulting 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
resulting or acquiring person, association or entity assumes our obligations under the indentures; |
| • | 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,
“Event of Default” with respect to any series of debt securities means our bankruptcy, insolvency or reorganization, and
any other Event of Default specified in any supplemental indenture relating to a series of debt securities.
If an Event of Default
relating to our bankruptcy, insolvency or reorganization 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, and the Company has deposited with the trustee amounts sufficient to pay any amounts then due.
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 stated maturity, principal or interest payment terms, place(s) of payment, reduction of the percentage consent
required for waivers or modifications, or impairment of the right to institute suit for the payment on debt securities of any series
when due, may be made without the consent of all holders of affected securities.
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; or |
| • | qualifying
the indentures under the Trust Indenture Act of 1939, as amended (the “Trust Indenture
Act”). |
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 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
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 common
stock, preferred stock, debt securities or depositary shares. 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 common stock,
preferred stock, debt securities 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,
debt securities or depository shares for every share of our common stock, share of a series of preferred stock, debt securities or depository
shares 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, debt securities or depository shares 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, debt securities or depository shares
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, debt securities or depository shares 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, debt securities or depository shares 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, debt securities or depository shares, 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, debt securities or depository shares 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, debt securities or depository shares 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
Unless
otherwise specified in the accompanying prospectus supplement, 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, 2022 and 2021 and for each of the
three years in the period ended December 31, 2022, and the effectiveness of Berkshire
Hills Bancorp, Inc.’s internal control over financial reporting as of December 31, 2022 have been audited by Crowe
LLP, an independent registered public accounting firm, as set forth in their reports appearing in our Annual Report on Form 10-K for the year ended December 31, 2022 and incorporated in this prospectus by reference. Such
consolidated financial statements have been so incorporated herein by reference in reliance upon the report of such firm given 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.
| 1 | Form of
Underwriting Agreement for any offering of securities.* |
| 4.5 | Form of Note for Senior Debt
Securities.* |
| 4.7 | Form of Note for Subordinated
Debt Securities.* |
| 4.8 | Form of Warrant Agreement
(Stock) (including form of warrant).* |
| 4.9 | Form of Warrant Agreement
(Debt) (including form of warrant).* |
| 4.12 | Form of Certificate of Designation
for series of Preferred Stock.* |
| 4.13 | Form of Preferred Stock Certificate.* |
| 4.14 | Form of Deposit Agreement.* |
| 4.15 | Form of Depositary Receipt.* |
| 4.16 | 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 2, 2023.
|
BERKSHIRE HILLS BANCORP, INC. |
|
|
|
By: |
/s/ Nitin J. Mhatre |
|
|
Nitin J. Mhatre |
|
|
President and Chief Executive Officer |
Each person whose
signature appears below hereby constitutes and appoints Nitin J. Mhatre or R. David Rosato, 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/ Nitin J. Mhatre |
|
Director, President and
Chief Executive Officer |
|
March 2, 2023 |
|
Nitin J. Mhatre |
|
(Principal Executive Officer) |
|
|
|
|
|
|
|
|
By: |
/s/ R. David Rosato |
|
Senior Executive Vice President and Chief Financial Officer |
|
March 2, 2023 |
R. David Rosato |
|
(Principal Financial Officer) |
|
|
|
|
|
|
|
|
By: |
/s/ Brett Brbovic |
|
Senior Managing Director and Chief Accounting Officer |
|
March 2, 2023 |
|
Brett Brbovic |
|
(Principal Accounting Officer) |
|
|
|
|
|
|
|
|
By: |
/s/ David M. Brunelle |
|
Chairperson |
|
March 2, 2023 |
|
David M. Brunelle |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Baye Adofo-Wilson |
|
Director |
|
March 2, 2023 |
|
Baye Adofo-Wilson |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Nina A. Charnley |
|
Director |
|
March 2, 2023 |
|
Nina A. Charnley |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ John B. Davies |
|
Director |
|
March 2, 2023 |
|
John B. Davies |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Mihir A. Desai |
|
Director |
|
March 2, 2023 |
|
Mihir A. Desai |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ William H. Hughes III |
|
Director |
|
March 2, 2023 |
|
William H. Hughes III |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Jeffrey W. Kip |
|
Director |
|
March 2, 2023 |
|
Jeffrey W. Kip |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Sylvia Maxfield |
|
Director |
|
March 2, 2023 |
|
Sylvia Maxfield |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Laurie Norton Moffatt |
|
Director |
|
March 2, 2023 |
|
Laurie Norton Moffatt |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Karyn Polito |
|
Director |
|
March 2, 2023 |
|
Karyn Polito |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Jonathan I. Shulman |
|
Director |
|
March 2, 2023 |
|
Jonathan I. Shulman |
|
|
|
|
|
|
|
|
|
|
By: |
/s/ Michael A. Zaitzeff |
|
Director |
|
March 2, 2023 |
|
Michael A. Zaitzeff |
|
|
|
|
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