Form SC 13D BERKSHIRE HILLS BANCORP Filed by: TUCHMAN MARTIN

UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION

Washington, D.C. 20549

Schedule 13D

Under the Securities Exchange Act of 1934

Berkshire Hills Bancorp, Inc.

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(Name of Issuer)

Common stock, par value $0.01 per share

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(Title of Class of Securities)

084680107

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(CUSIP Number)

Martin Tuchman
633 Prospect Avenue
Princeton, NJ  08540

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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

December 2, 2016

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(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box.  ☐

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

 

 

 

This statement relates to shares of common stock, par value $0.01 per share ("common stock"), of Berkshire Hills Bancorp, Inc. (the "Issuer").  The principal executive offices of the Issuer are located at 24 North Street, Pittsfield, Massachusetts  01201.

(a)-(c) Martin Tuchman, who is sometimes referred to in this statement as the "Reporting Person," is Chief Executive Officer of the Tuchman Group, which oversees holdings in real estate, banking and international shipping.  The Reporting Person has an address at 633 Prospect Avenue, Princeton, NJ  08540.  The Tuchman Group has an address at 4422 Route 27, Bldg A, PO Box 582, Kingston NJ 08258.

(d) During the last five years, the Reporting Person has not been convicted in a criminal proceeding (excluding traffic violations and similar misdemeanors).

(e) During the last five years, the Reporting Person has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws, and which judgment, decree or final order was not subsequently vacated.

(f) The Reporting Person is a citizen of the United States of America.

On December 2, 2016, the Issuer, the holding company of Berkshire Bank, completed the acquisition of First Choice Bank, Lawrenceville, New Jersey, through the closing of the merger of First Choice Bank with and into Berkshire Bank (the "Merger"), pursuant to an Agreement and Plan of Merger by and among Issuer, Berkshire Bank and First Choice Bank, dated June 24, 2016 (the "Merger Agreement").  The Reporting Person received 2,530,373 shares of common stock, and The Tuchman Foundation, Inc. received 57,730 shares of common stock, in each case subject to adjustment for fractional shares, from Issuer in accordance with the Merger Agreement, in exchange for his shares of common and preferred stock of First Choice Bank.  The Reporting Person acquired his First Choice Bank stock and the call options described below in Item 5 with personal funds.  If the Reporting Person exercises any of the call options described below in Item 5, he anticipates paying the exercise price from personal funds.

The Reporting Person acquired the common stock reported in this statement through the Merger for investment purposes and, except for potential dispositions of common stock within the timing and volume limitations set forth in the agreement described in Item 6 and filed herewith as Exhibit 1 and potential acquisitions of common stock pursuant to the call options described below in Item 5, has no plans or proposals which relate to or would result in any action described in paragraphs (a) through (j) of Item 4 of Schedule 13D.

The Reporting Person expects to evaluate on an ongoing basis his investment in Issuer, and may from time to time in the future, subject to applicable legal and contractual restrictions and constraints, acquire or dispose of shares of common stock or derivative securities to the extent deemed advisable in light of market conditions and other factors.  Any such acquisitions or dispositions may be made, subject to the Reporting Person's agreement with Issuer and applicable law, in open market or privately negotiated transactions or otherwise.

 

 

 

(a)

See Items 11 and 13 of the cover page to this Schedule 13D.

(b)

See Items 7 through 10 on the cover pages to this Schedule 13D.  The Reporting Person is a member, trustee and officer of The Tuchman Foundation, Inc., a New Jersey nonprofit corporation (the "Foundation") and, in his capacity as such, shares the power to vote and the power to dispose of the 57,730 shares of common stock held by Foundation with the Foundation.  The Foundation is a section 501(c)(3) charitable organization and has an address at 4422 Route 27, Bldg A, PO Box 582, Kingston NJ 08258.  During the last five years, the Foundation has not been convicted in a criminal proceeding and has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws, or finding any violation with respect to such laws, and which judgment, decree or final order was not subsequently vacated.

(c)

Other than through the Merger, as set forth in Item 3 above, the Reporting Person has affected the following transactions in the shares of common stock of the Issuer during the past 60 days.

All of the above listed sales were affected by the Reporting Person in open market transactions through a broker.

 

All of the above listed purchases were affected by the Reporting Person in open market transactions through a broker.

 

 

(d)

None.

(e)

Not applicable.

Item 6.   Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

 

Concurrent with the execution of the Merger Agreement, the Reporting Person entered into an agreement with Issuer.  Such agreement provides that for a term of up to 36 months from the date of the closing of the Merger, the Reporting Person generally may not: (i) with certain exceptions, transfer common stock beneficially owned unless such transfers are within certain timing and volume limits, and if outside those timing or volume limitations, Issuer is provided the right of first refusal on any sale, (ii) influence corporate transactions or management of Issuer, or (iii) otherwise initiate or support actions or shareholder proposals unless such actions or proposals are approved or recommended by Issuer's board of directors. Additionally, during the term of this agreement, the Reporting Person must vote all common stock beneficially owned in a manner consistent with the recommendations of the board of directors of Issuer.  The foregoing description of the agreement is qualified in its entirety by the text of the agreement, which is filed herewith as Exhibit 1 and which is incorporated by reference.

1.

Agreement dated June 24, 2016, by and between Berkshire Hills Bancorp, Inc. and Martin Tuchman.

 

 

 

Signature

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

 

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EXECUTION VERSION

AGREEMENT

THIS AGREEMENT (the "Agreement"), dated this 24th day of June, 2016, is by and between Berkshire Hills Bancorp, Inc. ("Berkshire"), and Martin Tuchman, an individual (the "Shareholder").

RECITALS

WHEREAS, Berkshire and the Shareholder have agreed that it is in their mutual interests to enter into this Agreement, pursuant to the Agreement and Plan of Merger by and among Berkshire Hills Bancorp, Inc., Berkshire Bank and First Choice Bank, dated as of June 24, 2016 (the "Merger Agreement"); and

WHEREAS, as an inducement to enter into the Merger Agreement, Shareholder agrees to the terms and conditions of this Agreement.

NOW THEREFORE, in consideration of the recitals and the representations, warranties, covenants and agreements contained herein and other good and valuable consideration, and intending to be legally bound hereby, the parties hereto agree as follows:

Berkshire hereby represents and warrants to the Shareholder that Berkshire has full power and authority to enter into and perform its obligations under this Agreement and that the execution and delivery of this Agreement by Berkshire has been duly authorized by the Board of Directors of Berkshire. This Agreement constitutes a valid and binding obligation of Berkshire and the performance of its terms will not constitute a violation of any agreement or instrument to which Berkshire is a party; and

 

 

 

 

The parties expressly agree that an actual or threatened breach of this Agreement by any party will give rise to irreparable injury that cannot adequately be compensated by damages. Accordingly, in addition to any other remedy to which it may be entitled, each party shall be entitled to seek a temporary restraining order or injunctive relief to prevent a breach of the provisions of this Agreement or to secure specific enforcement of its terms and provisions.

The Shareholder expressly agrees that he will not be excused or claim to be excused from performance under this Agreement as a result of any material breach by Berkshire unless and until Berkshire is given written notice of such breach and allowed thirty (30) business days either to cure such breach or seek relief in court. If Berkshire seeks relief in court, the Shareholder irrevocably stipulates that any failure to perform by the Shareholder or any assertion by the Shareholder that he is excused from performing their obligations under this Agreement because it would cause Berkshire irreparable harm, then Berkshire shall not be required to provide further proof of irreparable harm in order to obtain equitable relief and that the Shareholder shall not deny or contest that such circumstances would cause Berkshire irreparable harm. If, after such thirty (30) business day period, Berkshire has not either reasonably cured such material breach or obtained relief in court, the Shareholder may terminate this Agreement by delivery of written notice to Berkshire.

 

 

Berkshire expressly agrees that it will not be excused or claim to be excused from performance under this Agreement as a result of any material breach by the Shareholder unless and until the Shareholder is given written notice of such breach and allowed thirty (30) business days either to cure such breach or seek relief in court. If the Shareholder seeks relief in court, Berkshire irrevocably stipulates that any failure to perform by Berkshire or any assertion by Berkshire that it is excused from performing its obligations under this Agreement because it would cause the Shareholder irreparable harm, then the Shareholder shall not be required to provide further proof of irreparable harm in order to obtain equitable relief and that Berkshire shall not deny or contest that such circumstances would cause the Shareholder irreparable harm. If, after such thirty (30) business day period, the Shareholder has not either reasonably cured such material breach or obtained relief in court, Berkshire may terminate this Agreement by delivery of written notice to the Shareholder.

Shareholder:

Martin Tuchman 4422 Route 27, Building A PO Box 582 Kingston, NJ  08528

Berkshire Hills Bancorp, Inc.

Michael P. Daly Chief Executive Officer Berkshire Hills Bancorp, Inc. 24 North Street Pittsfield, Massachusetts  01201

With a copy to:

Wm. Gordon Prescott Senior Vice President and General Counsel Berkshire Hills Bancorp, Inc. 24 North Street Pittsfield, Massachusetts 01201   Lawrence Spaccasi, Esq. Mare Levy, Esq. Luse Gorman, PC 5335 Wisconsin Avenue, NW Suite 780 Washington, DC 20015

 

 

 

 

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IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned and is effective as of the day and year first above written.

BERKSHIRE HILLS BANCORP, INC.
By:	/s/Sean A. Gray
	Sean A. Gray
	Senior Executive Vice President
SHAREHOLDER
By:	/s/Martin Tuchman
	Martin Tuchman

EXHIBIT A

* Includes 100,000 common shares owned by The Tuchman Foundation, Inc.

 

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