AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 30, 2005
REGISTRATION NO. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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EVANS BANCORP, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
NEW YORK 16-1332767
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
14-16 NORTH MAIN STREET
ANGOLA, NEW YORK 14006
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
EVANS BANCORP, INC.
1999 STOCK OPTION AND LONG-TERM INCENTIVE PLAN
(FULL TITLE OF THE PLAN)
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JAMES TILLEY WITH A COPY TO:
PRESIDENT, CHIEF EXECUTIVE OFFICER AND DIRECTOR THOMAS E. WILLETT, ESQ.
EVANS BANCORP, INC. HARRIS BEACH PLLC
14-16 NORTH MAIN STREET 99 GARNSEY ROAD
ANGOLA, NEW YORK 14006 PITTSFORD, NEW YORK 14534
(NAME AND ADDRESS OF AGENT FOR SERVICE)
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(716) 549-1000
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) FEE
------------------------------------ ------------- ---------------- ----------------- ------------
Common Stock, $0.50 par value per share 275,000 $24.50 $6,737,500 $793.00
(1) This Registration Statement shall also cover any additional shares of
Evans Bancorp, Inc. common stock that become issuable under the Evans
Bancorp, Inc. 1999 Stock Option and Long-Term Incentive Plan by reason
of any stock dividend, stock split, recapitalization or other similar
transaction effected without the Registrant's receipt of consideration
which results in an increase in the number of the outstanding shares of
the Registrant's common stock.
(2) Estimated in accordance with Rules 457(c) and 457(h) under the
Securities Act of 1933, as amended, solely for the purpose of
calculating the registration fee. The computation is based upon the
average high and low sale prices of the common stock as reported on the
Nasdaq National Market on March 24, 2005.
TABLE OF CONTENTS
PART II
Item 3. Incorporation of Documents by Reference II-1
Item 4. Description of Securities II-1
Item 5. Interests of Named Experts and Counsel II-1
Item 6. Indemnification of Directors and Officers II-1
Item 7. Exemption from Registration Claimed II-2
Item 8. Exhibits II-2
Item 9. Undertakings II-2
SIGNATURES II-4
EXHIBIT INDEX
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Evans Bancorp, Inc. (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed with
the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2004 filed ( with the Commission on
March 28, 2005 pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the Registrant's Annual Report referred to in (a) above; and
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 10 (No.
000-18539) filed with the Commission on April 30, 1990,
together with any amendments or reports filed for the purpose
of updating such description.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing such documents. Unless expressly incorporated
into this Registration Statement, a report furnished on Form 8-K shall not be
incorporated by reference into this Registration Statement. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in any
subsequently filed document which also is deemed to be incorporated by reference
herein modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of the Registrant's common stock issuable
under the Evans Bancorp, Inc. 1999 Stock Option and Long-Term Incentive Plan
will be passed upon by Harris Beach PLLC, Rochester, New York. Phillip Brothman,
a partner of Harris Beach PLLC, serves as Chairman of the Registrant's Board of
Directors and owns shares of the Registrant's common stock and options to
purchase shares of the Registrant's common stock. Further, as a director, Mr.
Brothman is eligible to receive additional options to purchase shares of the
Registrant's common stock issuable under the Evans Bancorp, Inc. 1999 Stock
Option and Long-Term Incentive Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The New York Business Corporation Law authorizes a court to award, or a
corporation's Board of Directors to grant, indemnity to directors and officers
in terms sufficiently broad to permit indemnification (including reimbursement
of expenses incurred) under certain circumstances for liabilities incurred in
their capacity as officers and directors, including liabilities arising under
the Securities Act of 1933, as amended (the "Securities Act"). The Registrant's
Bylaws provide for indemnification of its directors and officers to the fullest
extent authorized by the New York Business Corporation Law. In addition, the
Registrant maintains directors' and officers' liability insurance under
II-1
which its directors and officers are insured against loss (as defined in the
policy) as a result of certain claims brought against them in such capacities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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5 Opinion and Consent of Harris Beach PLLC.
23.1 Consent of KPMG LLP, Independent Registered Public Accounting
Firm.
23.2 Consent of Deloitte & Touche, LLP, Independent Registered
Public Accounting Firm.
23.3 Consent of Harris Beach PLLC (contained in Exhibit 5).
24 Power of Attorney (incorporated by reference to Pages II-4 and
II-5 of this Registration Statement).
99.1 Evans Bancorp, Inc. 1999 Stock Option and Long-Term Incentive
Plan, as amended (incorporated by reference to Exhibit 4.2 of
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003 as filed on March 18, 2004).
ITEM 9. UNDERTAKINGS.
A. 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; (ii) to reflect in the prospectus any
facts or events arising after the effective date of this 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
this Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective Registration Statement;
and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that clauses (1)(i) and (1)(ii) shall not apply if the information
required to be included in a post-effective amendment by those clauses is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference into this Registration Statement; (2) that, for the
purpose of determining any liability under the Securities Act, 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; and
(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
Evans Bancorp, Inc. 1999 Stock Option and Long-Term Incentive Plan.
II-2
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference into this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6,
or otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
Securities 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 Securities
Act and will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in City of Angola, State of New York, on March 30, 2005.
EVANS BANCORP, INC.
By: /s/ James Tilley
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James Tilley
President, Chief Executive
Officer and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS , that the undersigned officers and
directors of Evans Bancorp, Inc., a New York corporation, do hereby constitute
and appoint James Tilley, President, Chief Executive Officer and Director, and
Mark DeBacker, Treasurer, and each of them, the lawful attorneys-in-fact and
agents with full power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and agents, and any one of
them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act of 1933, as amended, and any rules
or regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that all said attorneys and agents, or any one of them, shall do or cause to be
done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ James Tilley President, Chief Executive Officer and March 29, 2005
--------------------------------- Director (Principal Executive Officer)
James Tilley
/s/ Mark DeBacker Treasurer (Principal Financial Officer March 29, 2005
--------------------------------- and Principal Accounting Officer)
Mark DeBacker
/s/ Phillip Brothman Chairman of the Board and Director March 29, 2005
---------------------------------
Phillip Brothman
/s/ Thomas H. Waring, Jr. Vice Chairman of the Board and Director March 29, 2005
---------------------------------
Thomas H. Waring, Jr.
II-4
SIGNATURE TITLE DATE
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/s/ James E. Biddle, Jr. Director and Secretary March 29, 2005
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James E. Biddle, Jr.
/s/ LaVerne G. Hall Director March 29, 2005
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LaVerne G. Hall
/s/ David M. Taylor Director March 29, 2005
---------------------------------
David M. Taylor
/s/ Robert W. Allen Director March 29, 2005
---------------------------------
Robert W. Allen
/s/ William F. Barrett Director March 29, 2005
---------------------------------
William F. Barrett
Director March 29, 2005
---------------------------------
Robert G. Miller, Jr.
/s/ John R. O'Brien Director March 29, 2005
---------------------------------
John R. O'Brien
/s/ Nancy W. Ware Director March 29, 2005
---------------------------------
Nancy W. Ware
Director March 29, 2005
---------------------------------
Mary Catherine Militello
II-5
EXHIBIT INDEX
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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5 Opinion and Consent of Harris Beach PLLC.
23.1 Consent of KPMG LLP, Independent Registered Public Accounting
Firm.
23.2 Consent of Deloitte & Touche, LLP, Independent Registered
Public Accounting Firm.
23.3 Consent of Harris Beach PLLC (contained in Exhibit 5).
24 Power of Attorney (incorporated by reference to Pages II-4 and
II-5 of this Registration Statement).
99.1 Evans Bancorp, Inc. 1999 Stock Option and Long-Term Incentive
Plan, as amended (incorporated by reference to Exhibit 4.2 of
the Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2003 as filed on March 18, 2004).