Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
BERKSHIRE ENERGY RESOURCES
(Exact Name of Registrant as Specified in its Charter)
Massachusetts 6719 04-3408946
(State or other jurisdiction (Primary standard (I.R.S. employer
of incorporation or industrial identification no.)
organization) classification code
number)
115 Cheshire Road, Pittsfield, MA 01201-1879, (413) 442-1511
(Address, including zip code, and telephone number,
including area code, of Registrant's
principal executive offices)
Cheryl M. Clark
Secretary
115 Cheshire Road, Pittsfield, MA 01201-1879, (413) 442-1511
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_____________________
With Copies To:
James M. Avery, Esq.
Rich, May, Bilodeau & Flaherty, P.C.
294 Washington Street
Boston, Massachusetts 02108
(617) 482-1360
_____________________
Approximate date of commencement of proposed sale of the securities to
the public: At the effective time of the merger of a wholly-owned
subsidiary of the Registrant with and into The Berkshire Gas Company, which
shall occur as soon as practicable after the effective date of this
Registration Statement and the satisfaction or waiver of all conditions to
closing of such merger as described in the Proxy Statement/Prospectus
enclosed with the earlier effective registration statement for the same
offering (No. 333-46799), as filed with the Securities and Exchange
Commission on February 24, 1998.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box: [ ]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) 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.
[X] No. 333-46799
If this form is a post-effective amendment filed pursuant to Rule 462
(d) under the Securities Act, check the following box and list the
Securities Act registration number of the earlier effective registration
statement for the same offering. [ ] _______________
____________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate Amount of
securities to be registered registered per share(1) offering price(1) registration fee
- --------------------------- ------------ ---------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, $2.50
par value................. 12,506 shares $22.59 $282,510.54 $78.54
_______________________________________________________________________________
<FN>
<F1> The Registration Fee was calculated in accordance with Rule 457(f)(1),
based on the average of the high and low sales prices for shares of Common
Stock of The Berkshire Gas Company as quoted in the NASDAQ National Market
System on December 28, 1998.
</FN>
</TABLE>
____________________
INCORPORATION BY REFERENCE
Pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act") and Instruction K to Form S-4, Berkshire Energy Resources, a
Massachusetts business trust, hereby incorporates by reference the contents
of its registration statement on Form S-4 (No. 333-46799), as filed with the
Securities and Exchange Commission on February 24, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-4 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto authorized, in the City of Pittsfield, Massachusetts, on the 29th
day of December, 1998.
BERKSHIRE ENERGY RESOURCES
BY: /s/ Scott S. Robinson
Scott S. Robinson,
President and Chief Executive Officer
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Scott S. Robinson and Michael J.
Marrone, and each of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done
in and about said matters, as fully to all intents and purposes as he might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirement of the Securities Act of 1933, this
registration statement has been signed below by the following persons and
in the capacities indicated on the 29th day of December, 1998.
(i) Principal Executive Officer:
/s/ Scott S. Robinson, President and Chief Executive
Scott S. Robinson Officer
(ii) Principal Financial Officer and
Principal Accounting Officer:
/s/ Michael J. Marrone, Vice President, Treasurer
Michael J. Marrone and Chief Financial Officer
(iii) Trustees:
/s/ Scott S. Robinson
Scott S. Robinson
/s/ Michael J. Marrone
Michael J. Marrone
/s/ Cheryl M. Clark
Cheryl M. Clark
EXHIBIT INDEX
Sequential
Exhibits* Description of Exhibit Page Number
- --------- ---------------------- -----------
Exhibit 5. Opinion regarding legality.
5 Opinion of Rich, May, Bilodeau & Flaherty, P.C.
Exhibit 8. Opinion regarding tax matters
8 Opinion of Rich, May, Bilodeau & Flaherty, P.C.
Exhibit 23. Consents of Experts and Counsel.
23(a) Consent of Deloitte & Touche LLP, independent
certified public accountants.
23(b) Consent of Rich, May, Bilodeau & Flaherty, P.C.
(included in opinions filed as Exhibits 5 and 8 to this
Registration Statement).
___________________
* Exhibit numbers designated in Regulation S-K
Exhibit 5
Opinion Regarding Legality
[RICH, MAY, BILODEAU & FLAHERTY, P.C. LETTERHEAD]
December 29, 1998
Berkshire Energy Resources
115 Cheshire Road
Pittsfield, MA 01201-1879
Re: Issuance of Shares of Beneficial Interest in Connection with the
Formation of a Holding Company Structure for The Berkshire Gas Company
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-4 (the "Registration Statement") in the form being filed by Berkshire
Energy Resources, a Massachusetts business trust ("Holdco"), with the
Securities and Exchange Commission ("SEC") relating to the registration
under the Securities Act of 1933, as amended (the "Act"), of 12,506 shares
of beneficial interest of Holdco (the "Holdco Common Shares") in connection
with a merger that will cause Holdco to become the parent holding company of
The Berkshire Gas Company, a Massachusetts gas company (the
"Restructuring").
We have also examined the Registration Statement on Form S-4 (No. 333-
46799) filed by Holdco with the SEC relating to the registration under the
Act of 2,385,252 Holdco Common Shares in connection with the Restructuring
(the "Prior Registration Statement"), which Prior Registration Statement was
incorporated by reference into the Registration Statement.
We have acted as counsel for Holdco in connection with the proposed
issue and sale of the Holdco Common Shares. We are familiar with the
proceedings taken by Holdco in respect thereof and have examined originals
or certified or attested copies of such certificates, records and documents
as we have deemed necessary for the purposes of this opinion.
Basing our opinion on the foregoing, we are of the opinion that:
(1) Holdco is a business trust validly organized and existing under
the laws of the Commonwealth of Massachusetts and is duly
qualified to carry on the business which it is now conducting;
and
(2) When the Registration Statement has been declared effective, the
issuance of the Holdco Common Shares has been duly authorized by
appropriate corporate action and by appropriate action of
regulatory authorities having jurisdiction, including the
Massachusetts Department of Telecommunications and Energy, and
the Holdco Common Shares have been issued in accordance with the
terms of the Registration Statement and the Agreement and Plan
of Merger constituting APPENDIX A to the Proxy
Statement/Prospectus contained in the Prior Registration
Statement and incorporated by reference into the Registration
Statement, the Holdco Common Shares will be validly issued,
fully paid and non-assessable.
We express no opinion as to matters of law in jurisdictions other than
the Commonwealth of Massachusetts and the federal law of the United States,
and express no opinion as to the applicability of the so-called "blue sky"
or securities laws of the several states, including Massachusetts.
We understand that this opinion is to be used in connection with the
above-referenced Registration Statement and consent to the filing of this
opinion with and as part of said Registration Statement and the use of our
name therein and in the related Proxy Statement/Prospectus in the Prior
Registration Statement under the captions "Legal Opinions" and "Experts."
Very truly yours,
/s/ Rich, May, Bilodeau & Flaherty, P.C.
Rich, May, Bilodeau & Flaherty, P.C.
Exhibit 8
Opinion Regarding Tax Matters
[RICH, MAY, BILODEAU & FLAHERTY, P.C. LETTERHEAD]
December 29, 1998
The Berkshire Gas Company
115 Cheshire Road
Pittsfield, MA 01201-1879
Re: Certain Federal Income Tax Consequences in Connection with the
Formation of a Holding Company Structure for The Berkshire Gas Company
Ladies and Gentlemen:
We have acted as counsel to The Berkshire Gas Company, a Massachusetts
gas company ("Berkshire Gas"), in connection with the contemplated formation
of a holding company structure for Berkshire Gas and a related Agreement and
Plan of Merger (the "Merger Agreement") among Berkshire Gas, Berkshire
Energy Resources, a Massachusetts business trust formed by Berkshire Gas
("Holdco"), and Berkshire Gas Mergeco Gas Company, Inc., a Massachusetts gas
company ("Mergeco"). All capitalized terms used herein, unless otherwise
specified, have the meanings assigned to them in the Merger Agreement.
In rendering this opinion, we have examined and relied upon (without
any independent investigation or review thereof) the accuracy and
completeness of the facts, information, covenants and representations
contained in originals or copies, certified or otherwise identified to our
satisfaction, of the Merger Agreement, a Registration Statement of Holdco on
Form S-4 (No. 333-46799), another Registration Statement on Form S-4 in the
form being filed by Holdco with the Securities and Exchange Commission (the
"Registration Statement"), and such other documents as we have deemed
necessary or appropriate as a basis for the opinion set forth below. In
addition, we have relied upon certain statements and representations made
by executives of Berkshire Gas, as well as other statements, representations
and assumptions. Our opinion is conditioned on, among other things, the
initial and continuing accuracy of such facts, information, covenants,
representations and assumptions.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, the
authenticity of the originals of such documents and that there has been (or
will be by the Effective Time of the Merger) due execution and delivery of
all documents where due execution and delivery are prerequisites to
effectiveness thereof. We have assumed that the Merger will be consummated
pursuant to applicable state law in accordance with the Merger Agreement and
as described in the Registration Statement. We have also assumed that any
representation or statement made "to the best of knowledge" or similarly
qualified is correct without such qualification. As to all matters in which
a person or entity making a representation referred to above has represented
that such person or entity either is not a party to, does not have, or is
not aware of, any plan or intention, understanding or agreement, we have
assumed that there is in fact no such plan, intention, understanding or
agreement.
Based upon and subject to the foregoing, we are of the opinion that
the Merger will be tax-free under section 351 of the Internal Revenue Code
of 1986, as amended (the "Code"). As a result:
1. No gain or loss will be recognized by the holders of Berkshire
Gas Common Stock upon the exchange of their shares of Berkshire
Gas Common Stock solely for Holdco Common Shares pursuant to the
Merger.
2. The tax basis of the Holdco Common Shares received pursuant to
the Merger will be the same as the basis of the shares of
Berkshire Gas Common Stock exchanged therefor.
3. The holding period for Holdco Common Shares received pursuant to
the Merger will include the period that the shares of Berkshire
Gas Common Stock exchanged therefor were held by the holder,
provided such shares were a capital asset of the holder.
Our opinion is based upon the Code, Treasury Regulations, Internal
Revenue Service rulings, judicial decisions, and other applicable authority,
all as in effect on the date of this opinion. The legal authorities on
which this opinion is based may be changed at any time. Any such changes
may be retroactively applied and could modify the opinions expressed above.
We disclaim any obligation to notify you or any other person after the
date hereof if any change in fact and/or law should change our opinion with
respect to any matters set forth herein. This opinion does not address any
tax considerations under foreign, state or local laws, or any special tax
considerations applicable to certain holders of Berkshire Gas Common Stock
in light of their particular circumstances, including persons who are not
United States persons, dealers in securities, tax-exempt entities, and
stockholders who do not hold Berkshire Gas Common Stock as "capital assets"
within the meaning of Section 1221 of the Code.
This opinion is rendered solely for your benefit and for the benefit
of holders of Berkshire Gas Common Stock and shall not be relied upon,
circulated or quoted, in whole or in part, by any other party and shall not
be referred to in any report or document furnished to any other party
without our prior written consent. We hereby consent, however, to the
inclusion of this opinion as an exhibit to the Registration Statement and
the reference to this firm under the caption "Certain Federal Income Tax
Consequences" therein.
Very truly yours,
/s/ Rich, May, Bilodeau & Flaherty, P.C.
Rich, May, Bilodeau & Flaherty, P.C.
Exhibit 23(a)
Independent Auditors Consent
We consent to the incorporation by reference in this Registration
Statement of Berkshire Energy Resources on Form S-4 of our reports dated
August 12, 1998 and August 15, 1997, appearing in the Annual Report on Form
10-K of the Berkshire Gas Company for the years ended June 30, 1998 and
June 30, 1997, respectively, and The Berkshire Gas Company's Annual Report
to Shareholders for the years ended June 30, 1998 and June 30, 1997,
respectively, and to the reference to us under the heading "Experts" in the
Registration Statement (No. 333-46799) incorporated by reference into this
Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Hartford, Connecticut
December 18, 1998
