<PAGE>
As filed with the Securities and Exchange Commission on May 10, 2000
Registration No. 333-32146
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 2
TO THE
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
BERKSHIRE HILLS BANCORP, INC.
BERKSHIRE BANK
401(k) Plan
(Exact name of registrant as specified in its charter)
DELAWARE 6036 Being applied for
(State or Other (Primary Standard (IRS Employer
Jurisdiction of Industrial Identification No.)
Incorporation or Classification Code Number)
Organization)
24 North Street
Pittsfield, Massachusetts 01201
(413) 443-5601
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
James A. Cunningham, Jr.
President and Chief Executive Officer
Berkshire Bank
24 North Street
Pittsfield, Massachusetts 01201
(413) 443-5601
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Douglas P. Faucette, Esquire
Lawrence M. F. Spaccasi, Esquire
Muldoon, Murphy & Faucette LLP
5101 Wisconsin Avenue, N.W.
Washington, D.C. 20016
(202) 362-0840
Approximate date of commencement of proposed sale to public: As soon as
practicable after this Registration Statement becomes effective.
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, 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, 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 number of the earlier effective registration statement for the same
offering. [_]
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. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
<TABLE>
<CAPTION>
===============================================================================================================
Calculation of Registration Fee
- ---------------------------------------------------------------------------------------------------------------
Title of each Class of Amount to Proposed Maximum Proposed Maximum Amount of
Securities to be Registered be Registered Offering Price Aggregate Offering Registration
Per Unit Price (2) Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 10,326,609
$.01 par value Shares(1) $10.00 $103,266,090 (3)
- ---------------------------------------------------------------------------------------------------------------
Participation (4) _______ $ 5,929,249 (5)
Interests
===============================================================================================================
</TABLE>
(1) Includes shares of Common Stock to be issued to Berkshire Hills Foundation,
Inc., a private foundation.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) The registration fee of $27,263 was previously paid upon the initial filing
of the Form S-1 on March 10, 2000.
(4) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
(5) The securities of Berkshire Hills Bancorp, Inc. to be purchased by Berkshire
Bank 401(k) Plan are included in the amount shown for Common Stock.
Accordingly, no separate fee is required for the participation interests. In
accordance with Rule 457(h) of the Securities Act, as amended, the
registration fee has been calculated on the basis of the number of shares of
Common Stock that may be purchased with the current assets of such
Plan.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
SEC filing(1)................................................... $ 27,263
OTS filing fee.................................................. 2,000
Massachusetts filing fee........................................ 5,000
NASD filing fee(1).............................................. 10,827
Stock market listing fee(1)..................................... 42,500
Printing, postage and mailing................................... 500,000
Legal fees and expenses (including underwriter's
counsel).................................................... 500,000
Accounting fees and expenses.................................... 150,000
Appraisers' fees and expenses (including
business plan).............................................. 50,000
Marketing fees and selling commissions(1)....................... 1,279,000
Underwriter's expenses (excluding counsel's fees)............... 100,000
Conversion agent fees and expenses.............................. 45,000
Transfer agent fees and expenses................................ 20,000
Certificate printing............................................ 10,000
Telephone, temporary help and other equipment................... 25,000
Edgarization expenses........................................... 25,000
Miscellaneous................................................... 37,410
----------
TOTAL........................................................... $2,829,000
==========
</TABLE>
______________________
(1) Unless otherwise noted, based upon the registration and issuance of
10,326,609 shares at $10.00 per share.
Item 14. 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 the
registrant'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)
<PAGE>
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.
<PAGE>
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.
Item 15. Recent Sales of Unregistered Securities
None.
<PAGE>
Item 16. Exhibits and Financial Statement Schedules.
The exhibits and financial statement schedules filed as a part of this
registration statement are as follows:
(a) List of Exhibits (filed herewith unless otherwise noted)
1.1 Engagement Letters between Berkshire Bancorp, Berkshire Bank and Sandler
O'Neill & Partners, L.P.*
1.2 Form of Agency Agreement between Berkshire Bank and Sandler O'Neill &
Partners, L.P.*
2.1 Amended Plan of Conversion (including the Amended and Restated Articles
of Organization and Stock Bylaws of Berkshire Bank)*
3.1 Certificate of Incorporation of Berkshire Hills Bancorp, Inc.*
3.2 Bylaws of Berkshire Hills Bancorp, Inc.*
3.3 Amended and Restated Articles of Organization and Stock Bylaws of
Berkshire Bank (See Exhibit 2.1 hereto)*
4.0 Draft Stock Certificate of Berkshire Hills Bancorp, Inc.*
5.0 Opinion of Muldoon, Murphy & Faucette LLP re: legality*
8.0 Opinion of Muldoon, Murphy & Faucette LLP re: Federal Tax Matters
8.1 Opinion of Wolf & Company, P.C. re: State Tax Matters*
10.1 Draft ESOP Loan Commitment Letter and ESOP Loan Documents*
10.2 Form of Employment Agreement between Berkshire Bank and certain executive
officers*
10.3 Form of Employment Agreement between Berkshire Hills Bancorp, Inc. and
certain executive officers*
10.4 Form of Berkshire Bank Employee Severance Compensation Plan*
10.5 Form of Berkshire Bank Supplemental Executive Retirement Plan*
10.6 Form of Change in Control Agreement between Berkshire Bank and certain
executive officers*
23.1 Consent of Wolf & Company, P.C.*
23.2 Consent of Muldoon, Murphy & Faucette LLP*
23.3 Consent and Subscription Rights Opinion of FinPro, Inc.*
24.1 Powers of Attorney*
27.0 Financial Data Schedule*
99.1 Appraisal Report of FinPro, Inc. (P)*
99.2 Draft of Berkshire Hills Foundation Gift Instrument*
99.3 Draft Stock Order Form
- ---------------------
* Previously filed
(P) Filed pursuant to Rule 202 of Regulation S-T.
<PAGE>
(b) Financial Statement Schedules
All schedules have been omitted as not applicable or not required under the
rules of Regulation S-X.
Item 17. Undertakings.
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) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
PAGE>
CONFORMED
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Pittsfield, Commonwealth
of Massachusetts, May 8, 2000.
Berkshire Hills Bancorp, Inc.
By: /s/ James A. Cunningham, Jr.
----------------------------------------------
James A. Cunningham, Jr.
President, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ James A. Cunningham, Jr. President, Chief Executive Officer May 8, 2000
- ---------------------------- and Director
James A. Cunningham, Jr. (principal executive officer)
/s/ Charles F. Plungis, Jr. Senior Vice President, Treasurer May 8, 2000
- ---------------------------- and Chief Financial Officer
Charles F. Plungis, Jr. (principal accounting
and financial officer)
* Chairman of the Board
- ----------------------------
Robert A. Wells
* Director
- ----------------------------
Thomas O. Andrews
* Director
- ----------------------------
Thomas R. Dawson
* Director
- ----------------------------
Henry D. Granger
* Director
- ----------------------------
A. Allen Gray
* Director
- ----------------------------
John Kittredge
* Director
- ----------------------------
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
* Director
- ----------------------------
Edward G. McCormick
* Director
- ----------------------------
Catherine B. Miller
* Director
- ----------------------------
Michael G. Miller
* Director
- ----------------------------
Raymond B. Murray, III
* Director
- ----------------------------
Louis J. Oggiani
* Director
- ----------------------------
Robert S. Raser
* Director
- ----------------------------
Corydon L. Thurston
* Director
- -------------------------------
Ann H. Trabulsi
* Director
- -------------------------------
William E. Williams
* Director
- ------------------------------
Anne Everest Wojtkowski
</TABLE>
*Pursuant to the Power of Attorney filed as Exhibit 24.1 to the Registration
Statement on Form S-1 for Berkshire Hills Bancorp, Inc. filed on March 10,
2000.
<TABLE>
<S> <C> <C>
/s/ James A. Cunningham, Jr. President, Chief Executor Officer May 8, 2000
- ------------------------------ and Director
James A. Cunningham, Jr.
</TABLE>
<PAGE>
As filed with the Securities and Exchange Commission on May 10, 2000
Registration No. 333-32146
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
EXHIBITS
TO THE
PRE-EFFECTIVE AMENDMENT No.2
TO THE
FORM S-1
Registration Statement
Under
THE SECURITIES ACT OF 1933
----------------
Berkshire Hills Bancorp, Inc.
(Exact name of registrant as specified in its charter)
================================================================================
<PAGE>
TABLE OF CONTENTS
List of Exhibits (filed herewith unless otherwise noted)
1.1 Engagement Letters between Berkshire Bancorp, Berkshire Bank and Sandler
O'Neill & Partners, L.P.*
1.2 Form of Agency Agreement between Berkshire Bank and Sandler O'Neill &
Partners, L.P.*
2.1 Amended Plan of Conversion (including the Amended and Restated Articles of
Organization and Stock Bylaws of Berkshire Bank)*
3.1 Certificate of Incorporation of Berkshire Hills Bancorp, Inc.*
3.2 Bylaws of Berkshire Hills Bancorp, Inc.*
3.3 Amended and Restated Articles of Organization and Stock Bylaws of
Berkshire Bank (See Exhibit 2.1 hereto)*
4.0 Draft Stock Certificate of Berkshire Hills Bancorp, Inc.*
5.0 Opinion of Muldoon, Murphy & Faucette LLP re: legality*
8.0 Opinion of Muldoon, Murphy & Faucette LLP re: Federal Tax Matters
8.1 Opinion of Wolf & Company, P.C. re: State Tax Matters*
10.1 Draft ESOP Loan Commitment Letter and ESOP Loan Documents*
10.2 Form of Employment Agreement between Berkshire Bank and certain executive
officers*
10.3 Form of Employment Agreement between Berkshire Hills Bancorp, Inc. and
certain executive officers*
10.4 Form of Berkshire Bank Employee Severance Compensation Plan*
10.5 Form of Berkshire Bank Supplemental Executive Retirement Plan*
10.6 Form of Change in Control Agreement between Berkshire Bank and certain
executive officers*
23.1 Consent of Wolf & Company, P.C.*
23.2 Consent of Muldoon, Murphy & Faucette LLP*
23.3 Consent and Subscription Rights Opinion of FinPro, Inc.*
24.1 Powers of Attorney*
27.0 Financial Data Schedule*
99.1 Appraisal Report of FinPro, Inc. (P)*
99.2 Draft of Berkshire Hills Foundation Gift Instrument*
99.3 Draft Stock Order Form
_________________
*Previously filed
(P) Filed pursuant to Rule 202 of Regulation S-T.
<PAGE>
Exhibit 8.0
[Letterhead of Muldoon, Murphy & Faucette LLP]
May 8, 2000
Boards of Trustees and Directors
Berkshire Bank
Berkshire Bancorp
Berkshire Hills Bancorp, Inc.
24 North Street
Pittsfield, Massachusetts 01201
Dear Board Members:
You have requested our opinion regarding the federal income tax
consequences of the conversion of Berkshire Bancorp (the "MHC") and its wholly-
owned subsidiary, Berkshire Bank (the "Bank"), from the mutual holding company
structure to the stock holding company form, as effectuated pursuant to the
integrated transactions described below. Our opinion is based upon the existing
provisions of the Internal Revenue Code of 1986, as amended (the "Code") and
regulations thereunder (the "Treasury Regulations"), and upon current Internal
Revenue Service published rulings and existing court decisions, any of which
could be changed at any time. Any such changes may be retroactive and could
significantly modify the statements and opinions expressed herein. Similarly,
any change in the facts and assumptions stated below, upon which this opinion is
based, could modify the conclusions. This opinion is as of the date hereof, and
we disclaim any obligation to advise you of any change in any matter considered
herein after the date hereof. Since our opinion is rendered in advance of the
closing of the transactions described below, we have assumed that the
transactions will be consummated in accordance with such description, as well as
all of the information and representations referred to herein. Any changes in
the transaction could cause us to modify our opinion.
We express no opinion on the state or local income tax consequences of the
transactions described herein. We understand that Wolf & Company, P.C. will
address such matters in a separate letter.
<PAGE>
Boards of Trustees and Directors
Berkshire Bank
Berkshire Bancorp
Berkshire Hills Bancorp, Inc.
May 8, 2000
Page 2
We have made such other investigations as we have deemed relevant or
necessary for the purpose of this opinion. In our examination, we have assumed
the authenticity of original documents, the accuracy of copies and the
genuineness of signatures. We have further examined and have relied upon the
accuracy of the factual matters set forth in the Plan of Conversion (the "Plan")
and the Registration Statement on Form S-1 filed by Berkshire Hills Bancorp,
Inc. (the "Company") with the Securities and Exchange Commission (the "SEC")
under the Securities Act of 1933, as amended, and the Application for Conversion
(the "Application") filed with the Massachusetts Division of Banks (the
"Division").
The Proposed Transactions
- -------------------------
The MHC, a Massachusetts-chartered mutual holding company, and the Bank, a
Massachusetts-chartered stock savings bank, were created in a reorganization of
a Massachusetts-chartered mutual savings bank, at that time named Berkshire
County Savings Bank (the "Mutual Bank"), in 1996 (the "MHC Reorganization"). In
the MHC Reorganization, the Mutual Bank organized the MHC and the MHC organized
the Bank. In connection with the reorganization, the Bank issued shares of its
common stock ("Bank Common Stock") to the MHC. The Mutual Bank then merged with
and into the Bank under a plan of reorganization in which all of the Mutual
Bank's equity interests were exchanged for liquidation interests in the MHC. No
other shares of Bank Common Stock were issued in connection with the MHC
Reorganization. The MHC will own 100% of the outstanding Bank Common Stock
immediately prior to the Conversion.
Subsequently, on October 22, 1999, the MHC adopted the Plan, providing for
the conversion of the MHC into the capital stock form of organization.
The Board of Trustees of the MHC and the Board of Directors of the Bank
believe that the reorganization of the MHC and the Bank in the stock holding
company form of organization pursuant to the Plan is in the best interests of
the MHC and the Bank, as well as in the best interests of the Bank's depositors.
Accordingly, the following transactions will occur in the Conversion (as defined
in the Plan) pursuant to the Plan:
1. The Bank will incorporate the Company, a Delaware corporation, for the
purpose of holding all of the capital stock of the Bank and in order to
facilitate the Conversion.
<PAGE>
Boards of Trustees and Directors
Berkshire Bank
Berkshire Bancorp
Berkshire Hills Bancorp, Inc.
May 8, 2000
Page 3
2. Subscription rights ("Subscription Rights") to purchase shares of the
common stock of the Company ("Company Common Stock") will be issued without
payment therefor to Eligible Account Holders, Supplemental Eligible Account
Holders and Tax-Qualified Employee Stock Benefit Plans (as such persons are
defined in the Plan). In addition, Subscription Rights will be issued to
directors, trustees, officers and employees of the Bank in a fourth priority
category who do not otherwise qualify as Eligible or Supplemental Eligible
Account Holders.
3. Upon the effective date (the "Effective Date") of the Conversion, the
MHC will merge with and into the Bank pursuant to a plan of merger, with the
Bank being the surviving institution (the "MHC Merger"). As a result of the MHC
Merger, (a) the shares of Bank Common Stock currently held by the MHC will be
extinguished, and (b) the Eligible and Supplemental Eligible Account Holders
will be granted interests in a liquidation account (the "Liquidation Account")
to be established by the Bank pursuant to the Plan.
4. Upon the Effective Date, the Company will sell shares of Company
Common Stock in a subscription offering (the "Subscription Offering") in order
of priority to Eligible Account Holders, Supplemental Eligible Account Holders,
Tax-Qualified Employee Stock Benefit Plans and directors, trustees, officers and
employees of the Bank. Any shares of Company Common Stock remaining unsold after
the Subscription Offering will be sold to the public through a Community
Offering (as defined in the Plan), a Syndicated Community Offering (as defined
in the Plan), and/or Public Offering (as defined in the Plan) as determined by
the Boards of Trustees and Directors of the MHC, the Company and the Bank in
their sole discretion. Collectively, the Subscription Offering, the Community
Offering, the Syndicated Community Offering and the Public Offering are referred
to herein as the Offerings.
5. The Company will contribute to the Bank 50% of the net proceeds
received by the Company in the Offerings (the "Contributed Offering Proceeds")
in exchange for 100% of the Bank Common Stock.
The Liquidation Account will be established by the Bank for the benefit of
the Eligible and Supplemental Eligible Account Holders who maintain Deposit
Accounts (as defined in the Plan) in the Bank after the Conversion. The
Liquidation Account balance will initially be an amount equal to 100% of the
Bank's net worth as reflected in its latest statement of financial condition
contained in the final prospectus utilized in the Conversion. Each Eligible and
Supplemental Eligible Account Holder will have an undivided interest in the
Liquidation Account balance (referred to as a "subaccount balance"). The
proportionate interest of an Eligible or Supplemental Eligible Account Holder in
the Liquidation Account will never increase, but will, however, decrease to
reflect
<PAGE>
Boards of Trustees and Directors
Berkshire Bank
Berkshire Bancorp
Berkshire Hills Bancorp, Inc.
May 8, 2000
Page 4
subsequent withdrawals from the Deposit Account of such Eligible or Supplemental
Eligible Account Holders. In the sole event of a complete liquidation of the
Bank after the Conversion, each Eligible or Supplemental Eligible Account Holder
will be entitled to receive a liquidation distribution from the Liquidation
Account in the amount of their then current interest before any liquidation
distribution may be made with respect to the capital stock of the Bank.
Each Deposit Account in the Bank at the time of the consummation of the
Conversion will become a Deposit Account in the Bank equivalent in withdrawable
amount to the withdrawal value (as adjusted to give effect to any withdrawal
made for the purchase of Company Common Stock purchased in the Offerings) and
subject to the same terms and conditions (except as to liquidation rights) as
such Deposit Account in the Bank immediately preceding consummation of the
Conversion.
Representations
- ---------------
You have made the following representations to us with regard to the
Conversion. We have not independently investigated these representations, but,
we are relying on them as an integral part of our opinion.
a. The aggregate fair market value of the interest in the Liquidation
Account and the Subscription Rights received by each Eligible or Supplemental
Eligible Account Holder pursuant to the MHC Merger will be approximately equal
to the fair market value of the equity interest in the MHC surrendered by the
Eligible or Supplemental Eligible Account Holder in exchange therefor.
b. To the best of the knowledge of the management of the MHC and the
Bank, there is no plan or intention on the part of the Eligible or Supplemental
Eligible Account Holders to withdraw from their Deposit Accounts subsequent to
the Conversion such that the withdrawals would reduce their aggregate interests
in the Liquidation Account to an amount having a value at the Effective Date of
less than fifty percent of the value of the aggregate interests which the
Eligible and Supplemental Eligible Account Holders of the MHC will have in the
residual equity of the MHC immediately prior to the Conversion.
c. The Bank has no plan or intention to reacquire any of the interests in
the Liquidation Account issued in the MHC Merger.
<PAGE>
Boards of Trustees and Directors
Berkshire Bank
Berkshire Bancorp
Berkshire Hills Bancorp, Inc.
May 8, 2000
Page 5
d. The liabilities of the MHC assumed by the Bank in the MHC Merger and
the liabilities to which the transferred assets of the MHC are subject were
incurred by the MHC in the ordinary course of its business.
e. The Company, the Bank, the MHC and the Eligible and Supplemental
Eligible Account Holders will pay their respective expenses, if any, incurred in
connection with the Conversion, except that the Company, the Bank, and the MHC
may pay fees to brokers and investment bankers for assisting Eligible and
Supplemental Eligible Account Holders and other eligible subscribers in
completing and/or submitting Order Forms (as defined in the Plan). The expenses
for brokers and investment bankers to assist Eligible and Supplemental Eligible
Account Holders and other eligible subscribers are solely and directly related
to the Conversion and will be paid by the Company, the Bank, and the MHC
directly to the brokers and investment bankers.
f. There is no intercorporate indebtedness existing (i) between the MHC
and the Bank, or (ii) between the Company and the Bank that was issued,
acquired, or will be settled at a discount in the Conversion.
g. Neither the Company, the Bank or the MHC has 50% or more of the value
of its assets in stock and securities or has 80% or more of the value of its
assets held for investment.
h. Neither the MHC nor the Bank is insolvent or under the jurisdiction of
a bankruptcy or similar court, a receivership, foreclosure or similar proceeding
in a federal or state court.
i. The fair market value of the assets of the MHC transferred to the Bank
in the MHC Merger will equal or exceed the sum of the liabilities assumed by the
Bank plus the amount of liabilities, if any, to which the transferred assets are
subject.
j. The total adjusted basis of the assets of the MHC transferred to the
Bank in the MHC Merger will equal or exceed the sum of the liabilities assumed
by the Bank, plus the amount of liabilities, if any, to which the transferred
assets are subject.
k. The Bank has no plan or intention to issue additional shares of its
stock that would result in the Company owning less than all of the outstanding
stock of the Bank.
l. The Company has no plan or intention to liquidate the Bank; to merge
the Bank with or into another corporation; to sell or otherwise dispose of the
stock of the Bank except for transfers of stock to corporations controlled by
the Company; or to cause the Bank to sell or otherwise dispose
<PAGE>
Boards of Trustees and Directors
Berkshire Bank
Berkshire Bancorp
Berkshire Hills Bancorp, Inc.
May 8, 2000
Page 6
of any of its assets, except for dispositions made in the ordinary course of
business or transfers of assets to a corporation controlled by the Bank.
m. The Company does not own, nor has it owned during any period of its
existence, any shares of stock of the Bank.
n. On the Effective Date, the fair market value of the assets of the Bank
will exceed the sum of its liabilities, plus the amount of liabilities, if any,
to which the assets are subject.
Opinions
- --------
Based on the foregoing description of the Conversion, and subject to the
qualifications and limitations set forth in this letter, we are of the opinion
that, if the Conversion were to be consummated as described above as of the date
hereof, then:
1. The MHC Merger will constitute a tax-free reorganization within the
meaning of Section 368(a)(1)(A) of the Code. (Section 368(a)(1)(A) of the Code.)
2. The exchange, as a result of the the MHC Merger, of the equity
interests of the Eligible and the Supplemental Eligible Account Holders in the
MHC for interests in the Liquidation Account established by the Bank in the MHC
Merger will satisfy the continuity of interest requirement of Section 1.368-1(b)
of the Treasury Regulations (cf. Rev. Rul. 69-3, 1969-1 C.B. 103, and Rev. Rul.
69-646, 1969-2 C.B. 54).
3. Neither the MHC nor the Bank will recognize any gain or loss as a
result of the MHC Merger or upon the transfer of the MHC's assets to the Bank in
exchange for an interest in the Liquidation Account established in the Bank for
the benefit of the Eligible and the Supplemental Eligible Account Holders who
remain depositors of the Bank. (Section 361 of the Code.)
4. No gain or loss will be recognized by the Bank as a result of the MHC
Merger or upon the receipt of the assets of the MHC in the MHC Merger in
exchange for the transfer to the Eligible and the Supplemental Eligible Account
Holders of an interest in the Liquidation Account. (Section 1032(a) of the
Code.)
5. The basis of the assets of the MHC to be received by the Bank will be
the same as the basis of such assets in the hands of the MHC immediately prior
to the transfer. (Section 362(b) of the Code.)
<PAGE>
Boards of Trustees and Directors
Berkshire Bank
Berkshire Bancorp
Berkshire Hills Bancorp, Inc.
May 8, 2000
Page 7
6. The holding period of the assets of the MHC to be received by the Bank
will include the holding period of those assets in the hands of the MHC.
(Section 1223(2) of the Code.)
7. The Eligible and Supplemental Eligible Account Holders will recognize
no gain or loss as a result of the MHC Merger or upon the receipt of Deposit
Accounts and interests in the Liquidation Account in the Bank in exchange for
their Deposit Accounts in the Bank and liquidation interests in the MHC.
(Section 354(a) of the Code.)
8. The Company will recognize no gain or loss upon the receipt of cash in
the Offerings in exchange for shares of Company Common Stock. (Section 1032 of
the Code.)
9. The Company will recognize no gain or loss upon the transfer of the
Contributed Offering Proceeds to the Bank in exchange for common stock of the
Bank. (Section 351(a) of the Code.)
10. The Bank will recognize no gain or loss upon the receipt of the
Contributed Offering Proceeds from the Company in exchange for common stock of
the Bank. (Section 1032 of the Code.)
11. No gain or loss will be recognized by the Company, or by the Eligible
or Supplemental Eligible Account Holders and other persons described in the Plan
who will receive Subscription Rights, as a result of the distribution to the
Eligible and Supplemental Eligible Account Holders and such other persons of
Subscription Rights relating to Company Common Stock. Eligible and Supplemental
Eligible Account Holders and other recipients of Subscription Rights will not
recognize gain or loss as a result of the exercise of such Subscription Rights
to purchase shares of Company Common Stock, provided that the amount to be paid
for the Company Common Stock is equal to the fair market value of the Company
Common Stock. The basis of the Company Common Stock to the Company's
stockholders will be the purchase price thereof plus the basis, if any, of the
Subscription Rights (which, as described below, we have assumed is zero).
We note that you have received an opinion of FinPro, Inc. which concludes
that the Subscription Rights have no value. Under past rulings of the Internal
Revenue Service, gain may be recognized by a recipient of Subscription Rights to
the extent of the fair market value of the Subscription Rights received. The
opinion of FinPro, Inc. has no binding effect on the Internal Revenue Service.
We express no opinion on the fair market value of the Subscription Rights and,
insofar as our opinion in paragraph 16 relates to the federal income tax
consequences of the distribution of Subscription Rights, we are relying upon the
opinion of FinPro, Inc. regarding the valuation of the subscription rights.
<PAGE>
Boards of Trustees and Directors
Berkshire Bank
Berkshire Bancorp
Berkshire Hills Bancorp, Inc.
May 8, 2000
Page 8
We hereby consent to the filing of the opinion as an exhibit to the
Application filed with the Division and to the Company's Registration Statement
on Form S-l as filed with the SEC. We also consent to the references to our firm
in the Prospectus contained in the Application and S-l under the captions "The
Conversion--Tax Effects" and "Legal Opinions."
Very truly yours,
/s/ Muldoon, Murphy & Faucette LLP
MULDOON, MURPHY & FAUCETTE LLP
<PAGE>
<TABLE>
<S> <C>
LOGO: BERKSHIRE HILL BANCORP, INC.
Subscription & Direct Community Offering Stock Order Form
------------------------------------ -------------------------------
Bank Use Berkshire Bank
Conversion Center
------------------------------------ 244 Main Street
IMPORTANT-PLEASE NOTE: A properly Great Barrington, MA 01230
completed original stock order form (800) 220-6956
must be used to subscribe for Common --------------------------------
Stock. Copies of this form are not Expiration Date
required to be accepted. Please read for Stock Order Forms:
the Stock Ownership Guide and _______, ____________, 2000
Stock Order Form instructions as 4:00 p.m., Eastern Time,
you complete this form. unless extended
====================================================================================================================================
(1) Number of Shares (2) Total Payment Due The minimum number of shares that may be subscribed for is
- ------------------------- Subscription Price ---------------------- 25. The maximum number of shares that may be subscribed for
X $ 10.00 = in the Subscription Offering is 25,000 shares. The maximum
- ------------------------- ---------------------- number of shares that may be subscribed for in the Direct
Community offering by any person, together with associates
or persons acting in concert, is 25,000 shares. See
instructions.
====================================================================================================================================
[_] (3) Employee/Officer/Director/Trustee/Corporator Information
Check here if you are an employee, officer, director, trustee (6) Purchaser Information
or corporator of Berkshire Bancorp or Berkshire Bank or a a [_] Check here if you are an Eligible Account Holder with
member of such person's immediate family living in the same a deposit account(s) totalling $50.00 or more as of
household. the close of business on September 30, 1998. List
- ----------------------------------------------------------------- account(s) below.
(4) Method of Payment/Check ----------------
Enclosed is a check, bank draft or money Check Amount b [_] Check here if you are a Supplemental Eligible
order made payable to Berkshire Hills Account Holder with a deposit account(s) totalling
Bancorp, Inc. in the amount indicated ---------------- $50.00 or more as of the close of business on
in this box. September 30, 1999. List account(s) below.
c [_] Check here if you are a director, trustee, officer,
or employee of Berkshire Bancorp or Berkshire Bank
who is not entitled to a higher priority subscription
right.
================================================================= -----------------------------------------------------------------
(5) Method of Payment/Withdrawal Account Title (Names on Accounts) Account Number(s) Bank Use
The undersigned authorizes withdrawal from the following _________________________________________________________________
account(s) at Berkshire Bank. Individual Retirement
Accounts maintained at Berkshire Bank cannot be _________________________________________________________________
used unless special transfer arrangements are made.
There is no early withdrawal penalty for this form of _________________________________________________________________
payment.
- ----------------------------------------------------------------- _________________________________________________________________
Account Number(s) Withdrawal Amount(s) Bank Use
_________________________________________________________________ ________________________________________________________________
_________________________________________________________________ PLEASE NOTE: FAILURE TO LIST ALL YOUR ACCOUNTS ABOVE MAY RESULT
IN THE LOSS OF PART OR ALL OF YOUR SUBSCRIPTION RIGHTS.
_________________________________________________________________ IF ADDITIONAL SPACE IS NEEDED, PLEASE UTILIZE SPACE PROVIDED
ON THE BACK OF THIS STOCK ORDER FORM.
_________________________________________________________________
Total Withdrawal Amount
====================================================================================================================================
(7) Stock Registration/Form of Stock Ownership ------- ------- -------------
[_] Individual [_] Joint Tenants [_] Tenants in Common - -
------- ------- -------------
[_] Fiduciary (i.e. [_] Company/Corp/Partnership [_] Uniform Transfers to Minors Act [_] IRA or other Qualified Plan -
trust, estate, etc.) Beneficial Owner's SS#
(8) Name(s) in which stock is to be registered (PLEASE PRINT CLEARLY)- ADDING THE NAMES OF OTHER PERSON(S) WHO ARE NOT OWNERS OF
YOUR QUALIFYING ACCOUNT(S) WILL RESULT IN YOUR ORDER
BECOMING NULL AND VOID.
- ------------------------------------------------------------------------------------------------------------------------------------
Name(s) Social Security # or Tax ID
- ------------------------------------------------------------------------------------------------------------------------------------
Name(s) continued Social Security # or Tax ID
- ------------------------------------------------------------------------------------------------------------------------------------
Street Address County of Residence
------------------------------------------------------------------------------------------------------------------------------
City State Zip Code
------------------------------------------------------------------------------------
(9) Telephone - Daytime ( ) Evening ( )
- ------------------------------------------------------------------------------------------
====================================================================================================================================
[_] (10) NASD Affiliation - Check here if you are a member of the National Association [_] (11) Associates - Acting In Concert
of Securities Dealers, Inc. ("NASD"), a person associated with an NASD member, a Check here, and complete the reverse side of
member of the immediate family of any such person to whose support such person this form, if you or any associates or
contributes, directly or indirectly, or the holder of an account in which an NASD persons acting in concert with you (as
member or person associated with a NASD member has a beneficial interest. To defined on the reverse side of this form)
comply with conditions under which an exemption from the NASD's Interpretation have submitted other orders for shares in
With Respect to Free-Riding and Withholding is available, you agree, if you have the Subscription and/or Direct Community
checked the NASD Affiliation box, (i) not to sell, transfer or hypothecate the Offerings.
stock for a period of three months following issuance, and (ii) to report this
subscription in writing to the applicable NASD member within one day of payment
therefor.
====================================================================================================================================
(12) Acknowledgment - To be effective, this stock order form and accompanying certification form must be BANK USE ONLY
properly completed and physically received by Berkshire Bancorp no later than 4:00 p.m., Eastern time, ==================
on _________, _____________ __, 2000, unless extended; otherwise this stock order form and all
subscription rights will be void. The undersigned agrees that after receipt by Berkshire Bancorp,
this stock order form may not be modified, withdrawn or canceled without Berkshire Bancorp's consent
and if authorization to withdraw from deposit accounts at Berkshire Bank has been given as payment for
shares, the amount authorized for withdrawal shall not otherwise be available for withdrawal by the ==================
undersigned. Under penalty of perjury, I hereby certify that the Social Security or Tax ID number and
the information provided on this stock order form is true, correct and complete, that I am not subject
to back-up withholding, and that I am purchasing solely for my own account and that there is no agreement
or understanding regarding the sale or transfer of such shares, or my right to subscribe for shares
herewith. It is understood that this stock order form will be accepted in accordance with, and subject to,
the terms and conditions of the plan of conversion, as amended, described in the accompanying Prospectus. ------------------
The undersigned hereby acknowledges receipt of the Prospectus at least 48 hours prior to delivery of this BANK USE ONLY
stock order form to Berkshire Bancorp. ==================
Applicable regulations prohibit any person from transferring, or entering into any agreement, directly or
indirectly, to transfer the legal or beneficial ownership of subscription rights or the underlying
securities to the account of another. Berkshire Bank, Berkshire Bancorp and Berkshire Hills Bancorp, Inc.
will pursue any and all legal and equitable remedies in the event they become aware of the transfer of
subscription rights and will not honor orders known by them to involve such transfer.
------------------------------------------------------- --------------------------------------------------
Signature Date Signature Date
------------------------------------------------------- --------------------------------------------------
THE CERTIFICATION FORM ON THE REVERSE SIDE MUST BE SIGNED
====================================================================================================================================
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
Item (6) a,b - (continued)
- ---------------------------------------------------------------------- "Associate" is defined as: (i) any corporation or
Account Title (Names on Accounts) Account Number(s) Bank Use organization (other than Berkshire Bancorp, Berkshire Hills
______________________________________________________________________ Bancorp, Inc., the Bank or a majority-owned subsidiary of
Berkshire Bancorp, Berkshire Hills Bancorp, Inc., or the
______________________________________________________________________ Bank) of which such person is an officer or partner or is,
directly or indirectly, the beneficial owner of 10% or
______________________________________________________________________ more of any class of equity securities; (ii) any trust or
other estate in which such person has a substantial
______________________________________________________________________ beneficial interest or as to which such person serves as
a trustee or in a similar fiduciary capacity; provided,
______________________________________________________________________ however, such term shall not include Berkshire Hills
Bancorp, Inc.'s or Berkshire Bank's employee benefit plans
______________________________________________________________________ in which such person has a substantial beneficial interest
or serves as a trustee or in a similar fiduciary capacity;
______________________________________________________________________ and (iii) any relative or spouse of such person, or any
relative of such spouse, who either has the same home as
Item (11) - (continued) such person or who is a trustee, director or officer of
List below all other orders submitted by you or Associates Berkshire Bancorp, Berkshire Hills Bancorp, Inc., or the
(as defined) or by persons acting in concert with you. Bank or any subsidiaries thereof. Trustees, directors or
officers of Berkshire Bancorp, Berkshire Hills Bancorp,
- ----------------------------------------------------------------- Inc. or the Bank are not treated as associates solely
Number of Shares because of their Board memberships.
Name(s) listed on other Stock Order Forms Ordered
_________________________________________________________________ "Acting in Concert" (a) knowing participation in a joint
activity or interdependent conscious parallel action
_________________________________________________________________ towards a common goal whether or not pursuant to an express
agreement; or (b) a combination or pooling of voting or
_________________________________________________________________ other interests in the securities of an issuer for a common
purpose under any contract, understanding, relationship,
_________________________________________________________________ agreement or other arrangement, whether written or
otherwise. In general, a person who acts in concert with
_________________________________________________________________ another party shall also be deemed to be acting in concert
with any person who is also acting in concert with that
other party. Berkshire Hills Bancorp, Inc. and Berkshire
Bank may presume that certain persons are acting in concert
based upon, among other things, joint account relationships
and the fact that persons may have filed joint Schedules
13D with the Securities and Exchange Commission with
respect to other companies.
- ------------------------------------------------------------------------------------------------------------------------------------
YOU MUST SIGN THE FOLLOWING CERTIFICATION IN ORDER TO PURCHASE STOCK
CERTIFICATION FORM
I ACKNOWLEDGE THAT THIS SECURITY IS NOT A DEPOSIT OR ACCOUNT AND IS NOT FEDERALLY INSURED OR GUARANTEED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION, AND IS NOT INSURED OR GUARANTEED BY BERKSHIRE BANCORP, BERKHIRE BANK, BERKSHIRE HILLS BANCORP,
INC., THE FEDERAL GOVERNMENT, THE DEPOSITORS INSURANCE FUND OR BY ANY GOVERNMENT AGENCY. THE ENTIRE AMOUNT OF AN INVESTOR'S
PRINCIPAL IS SUBJECT TO LOSS.
I further certify that, before purchasing the Common Stock, par value $0.01 per share, of Berkshire Hills Bancorp, Inc.
(the "Company"), the proposed holding company for Berkshire Bank, I received a Prospectus of the Company
dated _______________ ___, 2000 relating to such offer of Common Stock.
The Prospectus that I received contains disclosure concerning the nature of the Common Stock being offered by the Company
and describes in the "Risk Factors" section beginning on page ____, the risks involved in the investment in this Common
Stock, including but not limited to the following:
</TABLE>
<TABLE>
<CAPTION>
<S> <C> <C>
1. Berkshire Bank's lower than average return on equity may decrease the market price of the common stock. (page )
2. Berkshire Bank's increased emphasis on commercial and consumer lending may hurt both asset quality and (page )
profits.
3. A decline in the stock market may hurt Berkshire Bank's profits and negatively impact its net worth. (page )
4. Recent market conditions may effect the market price of the common stock. (page )
5. Competition has hurt Berkshire Bank's net interest imcome. (page )
6. Declining interest rates could hurt Berkshire Bank's profits. (page )
7. Banking reform legislation restricts the activities in which Berkshire Hills may engage compared to (page )
existing unitary holding companies.
8. Management will have substantial discretion over investment of the offering proceeds and may make (page )
investments with which you may disagree.
9. Implementation of additional benefit plans will increase future compensation expense and lower (page )
Berkshire Bank's profits.
10. A downturn in the local economy could hurt Berkshire Bank's profits. (page )
11. Issuance of shares for benefit programs may lower your ownership interest. (page )
12. The contribution to Berkshire Hills Foundation means that a stockholder's total ownership interest will be (page )
7.4% less after the contribution.
13. Contribution to Berkshire Hills Foundation may not be tax deductible which could hurt Berkshire Hills' (page )
profits.
14. Establishment of Berkshire Hills Foundation will hurt Berkshire Hills' profits for the year 2000. (page )
15. Various factors could make takeover attempts that you need to occur more difficult to achieve. (page )
16. Berkshire Hills cannot assure or guarantee an active trading market for the common stock. (page )
BY EXECUTING THIS CERTIFICATION FORM, THE INVESTOR IS NOT WAIVING ANY RIGHTS UNDER THE FEDERAL SECURITIES LAWS, INCLUDING THE
SECURITIES ACT OF 1933 AND THE SECURITIES EXCHANGE ACT OF 1934.
------------------------------------------------------- --------------------------------------------------
Signature Date Signature Date
------------------------------------------------------- --------------------------------------------------
------------------------------------------------------- --------------------------------------------------
Name (Please Print) Name (Please Print)
------------------------------------------------------- --------------------------------------------------
THIS CERTIFICATION MUST BE SIGNED IN ORDER TO PURCHASE STOCK
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
[LOGO] Berkshire Hills Bancorp, Inc.
================================================================================
Stock Ownership Guide
Individual
Include the first name, middle initial and last name of the shareholder. Avoid
the use of two initials. Please omit words that do not affect ownership rights,
such as "Mrs.", "Mr.", "Dr.", "special account", "single person", etc.
- --------------------------------------------------------------------------------
Joint Tenants
Joint Tenants with right of survivorship may be specified to identify two or
more owners. When stock is held by joint tenants with right of survivorship,
ownership is intended to pass automatically to the surviving joint tenant(s)
upon the death of any joint tenant. All parties must agree to the transfer or
sale of shares held by joint tenants.
- --------------------------------------------------------------------------------
Tenants in Common
Tenants in common may also be specified to identify two or more owners. When
stock is held by tenants in common, upon the death of one co-tenant, ownership
of the stock will be held by the surviving co-tenant(s) and by the heirs of the
deceased co-tenant. All parties must agree to the transfer or sale of shares
held by tenants in common.
_______________________________________________________________________________
Uniform Transfers to Minors Act ("UTMA")
Stock may be held in the name of a custodian for a minor under the Uniform
Transfers to Minors Act of each state. There may be only one custodian and one
minor designated on a stock certificate. The standard abbreviation for
Custodian is "CUST", while the Uniform Transfers to Minors Act is "UTMA".
Standard U.S. Postal Service state abbreviations should be used to describe the
appropriate state. For example, stock held by John Doe as custodian for Susan
Doe under the Massachusetts Uniform Transfers to Minors Act will be abbreviated
John Doe, CUST Susan Doe UTMA MA (use minor's social security number).
- --------------------------------------------------------------------------------
Fiduciaries
Information provided with respect to stock to be held in a fiduciary capacity
must contain the following:
. The name(s) of the fiduciary. If an individual, list the first name, middle
initial and last name. If a corporation, list the full corporate title(name).
If an individual and a corporation, list the corporation's title before the
individual.
. The fiduciary capacity, such as administrator, executor, personal
representative, conservator, trustee, committee, etc.
. A description of the document governing the fiduciary relationship, such as
a trust agreement or court order. Documentation establishing a fiduciary
relationship may be required to register your stock in a fiduciary capacity.
. The date of the document governing the relationship, except that
the date of a trust created by a will need not be included in the
description.
. The name of the maker, donor or testator and the name of the beneficiary.
An example of fidiciary ownership of stock in the case of a trust is: John Doe,
Trustee Under Agreement Dated 10-1-87 for Susan Doe.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Stock Order Form Instructions
Items 1 and 2-Number of Shares and Total Payments Due
Fill in the number of shares that you wish to purchase and the total payment
due. The amount due is determined by multiplying the number of shares by $10.00.
The minimum purchase in the Subscription Offering is 25 shares. As more fully
described in the Prospectus, the maximum purchase by each Eligible Account
Holder in the Subscription Offering is $250,000 (25,000 shares), and the maximum
purchase in the Direct Community Offering by any person, together with
associates or persons acting in concert, is $250,000 (25,000 shares). However,
no person, together with associates and persons acting in concert with such
person, may purchase in the aggregate more than 1.0% of the shares sold. Based
on the offering of 8,314,500 shares, 1.0% amounts to 83,145 shares. The
aggregate purchase price of the shares of common stock that will be ultimately
sold in the conversion has not yet been determined, but will be within the range
of prices set forth in the Prospectus or any supplement thereto.
- --------------------------------------------------------------------------------
Item 3-Employee/Officer/Director/Trustee Information
Please check this box to indicate whether you are an employee, officer, director
or trustee of Berkshire Bank, Berkshire Bancorp or a member of such person's
immediate family living in the same household.
- --------------------------------------------------------------------------------
Item 4-Method of Payment by Cash or Check
Payment for shares may be made in cash (only if delivered by you in person to a
full service banking office of Berkshire Bank) or by check, bank draft or money
order payable to Berkshire Hills Bancorp, Inc. Your funds will earn interest at
the Bank's passbook rate of interest until the conversion is completed. DO NOT
MAIL CASH TO PURCHASE STOCK! Please indicate the total check(s) amount in this
box if your method of payment is by check, bank draft or money order.
- --------------------------------------------------------------------------------
Item 5-Method of Payment By Withdrawal
If you pay for your stock by a withdrawal from a deposit account at Berkshire
Bank, indicate the account number(s) and the amount of your withdrawal
authorization for each account. The total amount withdrawn should equal the
amount of your stock purchase. There will be no penalty assessed for early
withdrawals from certificate accounts used for stock purchases. This form of
payment may not be used if your account at the Bank is an Individual Retirement
Account or Qualified Plan unless special transfer arrangements are made.
- --------------------------------------------------------------------------------
Item 6-Purchaser Information
a. Please check this box if you are an Eligible Account Holder with a deposit
account(s) totalling $50.00 or more as of the close of business on September 30,
1998.
b. Please check this box if you are a Supplemental eligible Account Holder with
a deposit account(s) totalling $50.00 or more as of the cloe of business on
September 30, 1999.
c. Please check this box if you are a director, trustee, officer or employee of
Berkshire Bancorp or Berkshire Bank who is not entitled to a higher priority
subscription right.
Please list all names and all account numbers on accounts you had as of the
close of business on September 30, 1998 and September 30, 1999 in order to
insure proper identification of your purchase rights.
Please note: Failure to list all your accounts may result in the loss of part or
all of your subscription rights.
- --------------------------------------------------------------------------------
Items 7,8,9-Stock Registration/Form of Stock Ownership, Names and Telephone
Number
The stock transfer industry has developed a uniform system of shareholder
registrations that will be used in the issuance of your Berkshire Hills Bancorp,
Inc. Common Stock. Please complete items 7, 8 and 9 as fully and accurately as
possible, and be certain to supply your social security or Tax I.D. number(s)
and your daytime and evening phone number(s). We may need to call you if we
cannot execute your order as given. If you have any questions regarding the
registration of your stock, please consult your legal advisor. Stock ownership
must be registered in one of the ways described above under "Stock Ownership
Guide". Adding the names of other persons who are not owners of your qualifying
account(s) will result in your order becoming null and void.
- --------------------------------------------------------------------------------
Item 10-NASD Affiliation
Please check this box if you are a member of the NASD or if this item otherwise
applies to you.
- --------------------------------------------------------------------------------
Item 11-Associates-Acting in Concert
Please check this box if you or any associate or person acting in concert with
you (as defined on the reverse side of the stock order form) has submitted
another order for shares and complete the reverse side of the stock order form.
- --------------------------------------------------------------------------------
Item 12-Acknowledgement
Please sign and date the stock order form and certification form where
indicated. Before you sign, review the stock order form, including the
acknowledgement, and the certification form. Normally, one signature is
required. An additional signature is required only when payment is to be made by
withdrawal from a deposit account that requires multiple signatures to withdraw
funds.
- --------------------------------------------------------------------------------
You may mail your completed stock order form and certification form in the
envelope that has been provided, or you may deliver your stock order form and
certification form to any full-service banking office of Berkshire Bank. Your
stock order form and certification form, properly completed, and payment in full
(or withdrawal authorization) at the subscription price must be physically
received by Berkshire Bancorp no later than 4:00 p.m., Eastern time, on _____
__________, 2000, unless extended, or it will become void. If you have any
remaining questions, or if you would like assistance in completing your stock
order form and certification form, you may call our conversion center at
(800)220-6958, Monday through Friday from 10:00 a.m. to 4:00 p.m. Please note
that the conversion center will be closed from 12:00 noon Fricay, May 26,
through 12:00 noon Tuesday, May 30, in observance of the Memorial Day holiday.
================================================================================
