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EXHIBIT 5 OPINION OF MULDOON MURPHY & FAUCETTE LLP
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May 30, 2003
Board of Directors
Berkshire Hills Bancorp, Inc.
24 North Street
Pittsfield, Massachusetts 01201
Re: Issuance of 300,000 Shares of Common Stock Pursuant to the
Berkshire Hills Bancorp, Inc. 2003 Equity Compensation Plan
Ladies and Gentlemen:
We have been requested by Berkshire Hills Bancorp, Inc., a Delaware
corporation (the "Company"), to provide our opinion in connection with the
registration (the "Registration") of 300,000 shares of the Company's common
stock, $.01 par value, to be issued as awards of restricted stock or upon the
exercise of stock options granted or to be granted under the Berkshire Hills
Bancorp, Inc. 2003 Equity Compensation Plan (the "Plan"). The Registration of
the shares is being effected on Form S-8 under the Securities Act of 1933.
We have made such legal and factual examinations and inquiries as we have
deemed advisable for the purpose of rendering this opinion. In our examination,
we have assumed and have not verified (i) the genuineness of all signatures,
(ii) the authenticity of all documents submitted to us as originals, (iii) the
conformity with the originals of all documents supplied to us as copies, and
(iv) the accuracy and completeness of all corporate records and documents and of
all certificates and statements of fact, in each case given or made available to
us by the Company or its subsidiary.
Based on the foregoing and limited in all respects to Delaware law, it is
our opinion that the shares reserved for issuance under the Plan are duly
authorized. With respect to shares of Company common stock issuable upon the
exercise of stock options granted or to be granted under the Plan, upon payment
for and issuance of the common stock upon exercise of such stock options, such
shares of stock will be validly issued, fully paid and nonassessable. Further,
with respect to the awards of restricted stock under the Plan, upon issuance of
such shares of stock in the manner described in the Plan, they will be validly
issued, fully paid and nonassessable.
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Board of Directors
Berkshire Hills Bancorp, Inc.
May 30, 2003
Page 2
The following provisions of the Certificate of Incorporation may not be
given effect by a court applying Delaware law, but in our opinion the failure to
give effect to such provisions will not affect the duly authorized, validly
issued, fully paid and nonassessable status of the Common Stock:
(a) Subsections C.3 and C.6 of Article FOURTH which grant the Board the
authority to construe and apply the provisions of that Article and
subsection C.4 of Article FOURTH, to the extent that such section
obligates any person to provide the Board the information such
subsection authorizes the Board to demand, in each case to the
extent, if any, that a court applying Delaware law were to impose
equitable limitations upon such authority; and
(b) Article NINTH which authorizes the Board to consider the effect of
any offer to acquire the Company on constituencies other than
stockholders in evaluating any such offer.
We note that, although certain portions of the Registration Statement on
Form S-8 (the financial statements and schedules) have been included therein
(through incorporation by reference) on the authority of "experts" within the
meaning of the Securities Act, we are not experts with respect to any portion of
the Registration Statement, including without limitation, the financial
statements or schedules or the other financial information or data included
therein.
We hereby consent to the filing of this opinion as an exhibit to the
Company's Registration Statement on Form S-8, and we consent to the use of the
name of our firm under the heading "Interests of Named Experts and Counsel"
therein.
Very truly yours,
/s/ MULDOON MURPHY & FAUCETTE LLP