As filed with the Securities and Exchange Commission on March 30, 2005
Registration Statement No. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-3
Registration Statement
Under
The Securities Act of 1933
EVANS BANCORP, INC.
(Exact name of Registrant as Specified in its Charter)
NEW YORK
(State or other Jurisdiction of Incorporation or Organization)
16-1332767
(IRS Employer Identification No.)
14-16 NORTH MAIN STREET
ANGOLA, NEW YORK 14006
(716) 926-2000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
JAMES TILLEY WITH A COPY TO:
PRESIDENT AND CHIEF EXECUTIVE OFFICER 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
(716) 926-2000 (585) 419-8800
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [X]
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, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please 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 statement 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. [ ]
CALCULATION OF REGISTRATION FEE
Title of Each Class of Proposed Maximum Proposed Maximum Amount of
Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered(1)(2) Per Share(3) Offering Price(3) Fee
---------------- ---------------- ------------ ----------------- ---
Common Stock, $.50 par 100,000 $24.50 $2,450,000 $288.37
value
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers
an indeterminate number of shares of the Registrant's Common Stock as
may be issued as a result of adjustments by reason of any stock split,
stock dividend or similar transaction.
(2) Does not include 50,000 shares of the Registrant's Common Stock
previously registered under the Registrant's Registration Statement on
Form S-3 (Registration No. 333-34347) (the "Initial Registration
Statement"). A registration fee of $484.00 was previously paid with
respect to the shares covered by the Initial Registration Statement.
See Explanatory Note below.
(3) In accordance with Rule 457(c) under the Securities Act, calculated on
the basis of the average of the high and low sales prices of the
Registrant's Common Stock as reported on the Nasdaq National Market
System on March 24, 2005.
EXPLANATORY NOTE
This Registration Statement relates to the registration of an additional 100,000
shares of the Registrant's Common Stock, par value $.50 per share, to be offered
under the Registrant's Dividend Reinvestment Plan (the "Plan"), with respect to
which a Registration Statement on Form S-3 (Registration No. 333-34347) (the
"Initial Registration Statement") covering an aggregate of 72,352 shares is
currently effective. Pursuant to Rule 416 under the Securities Act, the number
of shares of the Registrant's Common Stock deemed registered under the Initial
Registration Statement reflects adjustments for a 5-for-4 stock split on the
Registrant's Common Stock effective June 12, 2001, and three 5% stock dividends
on the Registrant's Common Stock declared by the Registrant's Board of Directors
and paid on January 29, 2003, December 1, 2003 and December 30, 2004. Pursuant
to Rule 429 under the Securities Act, the Prospectus contained in this
Registration Statement shall constitute a combined Prospectus and shall also
relate to the Initial Registration Statement.
PROSPECTUS
EVANS BANCORP, INC.
100,000 SHARES OF COMMON STOCK
PAR VALUE $.50 PER SHARE
DIVIDEND REINVESTMENT PLAN
This prospectus relates to up to an aggregate of 100,000 shares (subject to
adjustment to reflect changes in capitalization) of common stock, par value $.50
per share, of Evans Bancorp, Inc., or "Evans Bancorp", that may be offered after
the date hereof in connection with our Dividend Reinvestment Plan, or the
"Plan". The Plan provides each holder of record of our common stock with a
simple and convenient opportunity to reinvest automatically the cash dividends
they receive on shares of our common stock by purchasing additional shares of
common stock.
The price paid for shares of common stock will be calculated as described herein
(see Question 12 under "THE PLAN" below for more information). Our common stock
is listed on the Nasdaq National Market System, or "Nasdaq", under the trading
symbol "EVBN". On March 24, 2005, the last reported sale price of our common
stock as reported on Nasdaq was $24.50.
Stockholders who wish to enroll in the Plan should complete an Enrollment
Authorization form and forward it to Computershare Investor Services LLC,
administrator of the Plan, or the "Agent" (see Question 6 under "THE PLAN" below
for more information).
This Prospectus contains important details concerning the Plan. You should
retain a copy of this Prospectus for future reference.
Stockholders who do not wish to participate in the Plan will continue to receive
cash dividends, when and as declared, in the usual manner.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE SECURITIES OFFERED HEREBY ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER
OBLIGATIONS OF ANY BANK OR NON-BANK SUBSIDIARY OF EVANS BANCORP AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND,
THE SAVINGS ASSOCIATION INSURANCE FUND OR ANY OTHER FEDERAL OR STATE GOVERNMENT
AGENCY.
AN INVESTMENT IN OUR COMMON STOCK INVOLVES RISKS. SEE THE DISCUSSION OF RISK
FACTORS BEGINNING ON PAGE 1 OF THIS PROSPECTUS.
The date of this Prospectus is March 30, 2005
INFORMATION ABOUT EVANS BANCORP, INC.
Evans Bancorp, Inc. is a financial holding company. Our business is primarily
owning, supervising and controlling our banking and insurance agency
subsidiaries. We are the parent company of Evans National Bank, ENB Associates
Inc., Evans National Leasing, Inc., Evans National Holding Corp., Evans National
Financial Services, Inc., ENB Insurance Agency, Inc., and Frontier Claims
Services, Inc., all of which are wholly-owned subsidiaries. We also own two
special purpose entities, Evans Capital Trust I and ENB Employers Insurance
Trust. Evans National Bank provides commercial banking services to its local
market areas in Western New York State. ENB Insurance Agency, Inc. offers
property and casualty insurance to individuals and businesses in Western New
York State.
Corporate Headquarters: Evans Bancorp, Inc.
14-16 North Main Street
Angola, New York 14006
Main telephone number: (716) 926-2000
Web Site: www.evansbancorp.com (information on our
website does not constitute part of this
Prospectus)
Stock Listing: Our common stock is listed on Nasdaq
under the symbol "EVBN"
RISK FACTORS
The Plan is solely intended to provide a useful service to current holders of
our common stock. We are not recommending that you buy or sell shares of our
common stock. You should participate in the Plan only after you have
independently researched your investment decision, and have considered, among
others, the following investment considerations:
Our future results of operation are uncertain.
Commercial banking is affected, directly and indirectly, by local, domestic, and
international economic and political conditions, and by government monetary and
fiscal policies. Conditions such as inflation, recession, unemployment, volatile
interest rates, tight money supply, scarce natural resources, real estate
values, international conflicts and other factors beyond the control Evans
Bancorp may adversely affect our potential profitability. Evans Bancorp
management does not expect any one particular factor to materially affect our
results of operations. A downward trend in several areas, however, including
real estate, construction and consumer spending, could have an adverse impact on
our ability to maintain or increase profitability. There can be no assurance
that Evans Bancorp will be able to continue its current growth rates.
There is a limited trading market for our common stock.
Although the shares of our common stock are listed on Nasdaq, our common stock
is not widely traded and is not expected to be widely traded in the near future.
There can be no assurance that the common stock will trade at prices at or above
the applicable price per share on each dividend payment date. An inactive or
illiquid trading market may have an adverse impact on the market price of the
common stock. Moreover, price fluctuations in the common stock may not
necessarily be dependent upon or reflective of the performance of Evans Bancorp.
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We face significant competition.
Evans Bancorp faces significant competition from many other banks, savings
institutions, and other financial institutions which have branch offices or
otherwise operate in our market area, as well as insurance agencies and many
other companies now offering a variety of financial services. Many of these
competitors have substantially greater financial resources than Evans Bancorp,
including a larger capital base which allows them to attract customers seeking
larger loans than Evans National Bank is able to make. There can be no assurance
that we will continue to compete successfully in our market area.
We may in the future issue additional shares of common stock.
The Board of Directors of Evans Bancorp will continue to have authority to issue
additional shares of common stock from time to time. Any future issuances of
common stock may result in dilution of the value of the shares you acquire
pursuant to the Plan.
Our charter documents contain certain anti-takeover provisions.
Evans Bancorp's Certificate of Incorporation and By-Laws and the New York
Business Corporation Law contain certain provisions which may hinder or
discourage a non-negotiated merger, tender offer or a proxy contest for control
of Evans Bancorp, the assumption of control of Evans Bancorp by a holder of a
large block of common stock, or the removal of our management, even if such
transactions might be generally favorable to the interests of some stockholders.
We are subject to Federal and state government regulation.
The operations of Evans Bancorp and its subsidiaries are heavily regulated and
will be affected by present and future legislation and by the policies
established from time to time by various federal and state regulatory
authorities. In particular, the monetary policies of the Federal Reserve Board
have had a significant effect on the operating results of banks in the past and
are expected to continue to do so in the future. We cannot predict the nature or
extent of, or the effect on our business or earnings of, monetary policies,
economic controls, or new Federal or state regulations.
Our management has discretion in the allocation of proceeds of this offering.
Evans Bancorp intends to use the net proceeds from the sale of the shares of
common stock pursuant to the Plan for general corporate purposes to support the
growth and expansion of Evans Bancorp and its subsidiaries. Our management,
however, has discretion in determining the actual manner in which the net
proceeds will be applied. The precise use, amounts and timing of the application
of proceeds will depend upon, among other things, the funding requirements of
our subsidiaries, the availability of other funds, and the existence of business
opportunities. See "USE OF PROCEEDS" below for more information.
We may discontinue paying dividends in the future.
A substantial portion of our revenue and operating income is generated by our
operating subsidiaries. Accordingly, we are dependent on the earnings and cash
flows of, and dividends and distributions or advances from, our subsidiaries to
provide the funds necessary to meet our obligations. Our ability to pay
dividends is materially dependent on the earnings of our operating subsidiaries.
The amount of future dividends is at the discretion of our Board of Directors
and principally depends upon our earnings, financial condition, the capital
requirements of our operating subsidiaries and other factors. There can be no
assurance that we will continue to pay dividends on shares of our common stock,
and if paid, the timing and amount of such dividends.
2
Changes in interest rates could make us less profitable.
Our profitability is dependent to a large extent on our net interest income. Net
interest income is the difference between interest income on interest-earning
assets and interest expense on interest-bearing liabilities. Like most financial
institutions, we are affected by changes in general interest rate levels, which
are currently at low levels, and by other economic factors beyond our control.
In addition, interest rate risks can result from mismatches between the dollar
amount of repricing or maturing assets and liabilities and is measured in terms
of the ratio of the interest rate sensitivity gap to total assets. Although our
management believes it has implemented strategies to reduce the potential
effects of changes in interest rates on our results of operations, any
substantial and prolonged change in market interest rates could adversely affect
our operating results.
Our allowance for loan losses may prove to be insufficient to absorb potential
losses in our loan portfolio.
Lending money is a substantial part of our business. However, every loan we make
carries a certain risk of non-payment. We cannot assure you that our allowance
for loan losses will be sufficient to absorb actual loan losses. We also cannot
assure you that we will not experience significant losses in our loan portfolios
that may require significant increases to the allowance for loan losses in the
future. Although we evaluate every loan that we make against our underwriting
criteria, we may experience losses by reasons of factors beyond our control.
Some of these factors include changes in market conditions affecting the value
of real estate and unexpected problems affecting the creditworthiness of our
borrowers.
Changes in real estate values may adversely impact our loans that are secured by
real estate.
A significant portion of our loan portfolio consists of residential and
commercial mortgages secured by real estate. These properties are concentrated
in Western New York. Real estate values and real estate markets generally are
affected by, among other things, changes in national, regional or local economic
conditions, fluctuations in interest rates and the availability of loans to
potential purchasers, changes in the tax laws and other governmental statutes,
regulations and policies, and acts of nature. If real estate prices decline,
particularly in Western New York, the value of the real estate collateral
securing our loans could be reduced. This reduction in the value of the
collateral could increase the number of non-performing loans and could have a
material negative impact on our financial performance.
THE PLAN
The following is a question and answer statement of the provisions of the Plan
as in effect for cash dividends paid to holders of record of our common stock on
and after August 1, 1997. Those holders of Evans Bancorp common stock who do not
wish to participate in the Plan will receive cash dividends, when and as
declared, in the usual manner.
1. WHAT IS THE PURPOSE OF THE PLAN?
The purpose of the Plan is to provide record holders of our common
stock with a simple and convenient method of investing cash dividends on our
common stock in additional shares of common stock without payment of any
brokerage commission or service charge. To the extent shares are purchased
directly from Evans Bancorp, and not in market transactions, we will receive the
net proceeds from those purchases, and will use the net proceeds as described
under "USE OF PROCEEDS" below.
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2. WHAT OPTIONS ARE AVAILABLE TO PARTICIPANTS IN THE PLAN?
As a participant in the Plan, you may choose Full Dividend Reinvestment
or Partial Dividend Reinvestment.
(a) Full Dividend Reinvestment directs Evans Bancorp to invest, in
accordance with the Plan, all of your cash dividends on all of the shares of
common stock currently or subsequently registered in your name, as well as on
the shares credited to your Plan account.
(b) Partial Dividend Reinvestment directs Evans Bancorp to invest,
in accordance with the Plan, the cash dividends on the number of shares (not
more than the total registered in your name) of common stock indicated in the
appropriate space on your Enrollment Authorization Form, as well as on all the
shares credited from time to time to your Plan account.
3. WHAT ARE THE ADVANTAGES OF THE PLAN?
(a) You will not pay any brokerage commission or service charge in
connection with your purchases under the Plan.
(b) The funds of stockholders of record will be fully invested
because the Plan permits fractions of shares to be credited to the accounts of
stockholders of record. Dividends on such fractions, as well as on whole shares,
will be reinvested in additional shares of common stock, and such additional
shares will be credited to your account.
(c) You will avoid the need for safekeeping of stock certificates
for shares credited to your account under the Plan. In addition, you may deposit
certificates you currently hold in your name with the Agent for safekeeping. See
Question 20 below for more detailed information.
(d) Regular periodic statements reflecting all year-to-date
activity in your account, including purchases and withdrawals of shares and
latest account balance, will simplify your recordkeeping. These statements will
generally be issued following dividend payment dates.
4. WHO ADMINISTERS THE PLAN FOR PARTICIPANTS?
The Agent, Computershare Investor Services, LLC, will administer the
Plan, keep records, send statements of account to each participant, and perform
other duties related to the Plan. Shares purchased for you under the Plan will
be held for you in safekeeping by or through the Agent, and will be reflected on
your account statement, until you terminate your participation in the Plan or
request in writing that the Agent issue certificates for whole shares credited
to your Plan account. The Agent also acts as transfer agent and registrar for
our common stock.
We may adopt additional rules and regulations from time to time to
facilitate the administration of the Plan.
5. WHO IS ELIGIBLE TO PARTICIPATE?
If you are a stockholder of record of shares of our common stock, you
are eligible to participate in the Plan. There is no requirement to hold a
minimum number of shares of common stock in order to participate.
4
A beneficial owner whose shares are registered in a name other than his
or her own (for example, in the name of a broker or bank nominee) must either
become a stockholder of record by having such shares transferred into his or her
own name or make arrangements with his or her broker or bank to participate on
his or her behalf. A broker or nominee may participate in the Plan on behalf of
beneficial owners by signing and returning the Enrollment Authorization Form.
The opportunity of a holder of common stock to participate in the Plan
is not transferable to another person apart from a transfer of his or her common
stock.
You will not be eligible to participate in the Plan if you reside in a
jurisdiction in which Evans Bancorp has been advised by counsel that it may be
unlawful for Evans Bancorp to offer or sell to you common stock issued pursuant
to the Plan.
6. HOW DOES AN ELIGIBLE STOCKHOLDER PARTICIPATE?
As a stockholder of record of our common stock, you may join the Plan
by obtaining and completing an Enrollment Authorization Form and returning it to
the Agent. If the shares are registered in more than one name (i.e., joint
tenants, trustees, etc.), all registered holders must sign. On the Enrollment
Authorization Form, you must designate whether you want the "Full Dividend
Reinvestment" or "Partial Dividend Reinvestment" option.
You may obtain an Enrollment Authorization Form by contacting the Agent
at the address or telephone number listed below under "IF YOU HAVE QUESTIONS
CONCERNING THE PLAN", or by visiting the Agent's website at
http://www.computershare.com.
7. WHEN MAY AN ELIGIBLE STOCKHOLDER JOIN THE PLAN?
As an eligible stockholder, you may join the Plan at any time. You will
remain a participant in the Plan until you withdraw all shares of common stock
credited to your Plan account and either (a) elect to discontinue the
reinvestment of dividends or (b) sell or otherwise dispose of all the shares of
common stock held in your own name.
If a signed Enrollment Authorization Form is received by the Agent not
later than 5 business days prior to the record date for the next dividend
payment, reinvestment of your dividends will begin with the next dividend
payment. If the Enrollment Authorization Form is received after such date,
reinvestment of your dividends will begin with the second succeeding dividend
payment. Dividend payment dates for the common stock ordinarily will be in April
and October of each year and corresponding record dates usually will precede
dividend payment dates by about three to four weeks.
Stockholders are cautioned that the Plan does not represent a change in
our dividend policy or a guarantee of future dividends, which will continue to
depend upon Evans Bancorp's earnings, financial requirements and other factors.
8. HOW MAY A PARTICIPANT CHANGE OPTIONS UNDER THE PLAN?
You may change your investment option at any time by requesting a new
Enrollment Authorization Form and returning it to the Agent or by other written
notice to the Agent. The Enrollment Authorization Form or other written notice
must be signed by all of the registered holders on the account.
5
9. ARE STOCKHOLDERS ENROLLED IN THE PLAN REQUIRED TO SEND IN A NEW
ENROLLMENT AUTHORIZATION FORM ANNUALLY?
No. Once enrolled in the Plan, you will continue to be enrolled without
further action on your part, unless you give notice to the Agent in writing that
you wish to terminate participation in the Plan.
10. HOW WILL SHARES OF COMMON STOCK BE PURCHASED UNDER THE PLAN?
Evans Bancorp may, at its sole discretion, direct either the original
issuance of authorized but unissued shares or treasury shares or the purchase of
shares in transactions on any securities exchange where such shares are traded,
in the over-the-counter market or by negotiated transactions, or a combination
of original issuances and market transactions. Market transactions may be on
such terms as the Agent may determine. We will not receive any proceeds from
market transactions.
11. WHEN WILL SHARES OF COMMON STOCK BE PURCHASED UNDER THE PLAN?
Purchases from Evans Bancorp of original issue shares or treasury
shares will be made no later than 30 days after the relevant Investment Date (as
defined in the next paragraph). Purchases through market transactions may occur
on any date or dates commencing with the relevant Investment Date and ending no
later than 30 days from the relevant Investment Date except where completion at
a later date is necessary or advisable, in the opinion of Evans Bancorp, under
any applicable federal securities laws (the "purchase period"). Shares purchased
will be allocated and credited to participants' accounts as of the date
purchases have been completed for the purchase period by the Agent. For the
purpose of making purchases, the Agent will commingle each participant's funds
with those of all other participants.
An "Investment Date" is the dividend payment date. Evans Bancorp's
decision whether to issue new shares or treasury shares of common stock or to
direct the Agent to purchase shares in market transactions will be made no later
than 30 days after the relevant Investment Date.
12. WHAT WILL BE THE PRICE OF SHARES OF COMMON STOCK PURCHASED UNDER THE
PLAN?
In the case of original issue shares or treasury shares purchased from
Evans Bancorp, the purchase price will be:
(a) if the shares of common stock are listed on a national
securities exchange or traded in the over-the-counter market and sales prices
are regularly reported for the shares, the average of the closing or last prices
of the shares on the Composite Tape or other comparable reporting system for the
10 consecutive trading days immediately preceding the Investment Date;
(b) if the shares of common stock are traded on the
over-the-counter market, but sales prices are not regularly reported for the
shares for the 10 days referred to in paragraph (a) above, and if bid and asked
prices for the shares are regularly reported, the average of the mean between
the bid and the asked price for the shares at the close of trading in the
over-the-counter market for such 10 days; and
(c) if the shares of common stock are neither listed on a national
securities exchange nor traded on the over-the-counter market, such value as
Evans Bancorp's Board of Directors, in good faith, shall determine on the
Investment Date.
In the case of market transactions, the price will be the weighted
average purchase price of those shares purchased for the relevant Investment
Date.
6
In the case where shares are purchased in a combination of original
issuances and market transactions, the applicable purchase price of all shares
will be the weighted average purchase price of all shares purchased in market
transactions for the relevant Investment Date.
13. HOW MANY SHARES WILL BE PURCHASED FOR PARTICIPANTS?
The number of shares purchased for you depends on the amount of your
dividends and the purchase price per share on the relevant Investment Date. Your
account will be credited with that number of shares, including fractions of
shares, equal to the total amount to be invested divided by the applicable
purchase price per share. Fractional shares will be calculated to at least three
decimal places.
14. WHAT ARE THE COSTS OF PARTICIPATION IN THE PLAN?
A participant will incur no brokerage commissions or service charges
for purchases made under the Plan. See Questions 15 and 16 below for additional
tax-related information. All costs of administration of the Plan and brokerage
commissions or service charges incurred in connection with the purchase of
shares will be paid by Evans Bancorp. We reserve the right to establish service
charges in connection with the Plan in the future. You will be notified prior to
any such charges becoming effective. See Question 24 below for costs which will
be incurred if you request that the Agent sell shares deposited in your account
under the Plan.
15. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATION IN THE
PLAN?
Based on the current position of the Internal Revenue Service, when
stock is acquired directly from Evans Bancorp, the holder who reinvests
dividends under the Plan will be treated as receiving a taxable dividend on the
Investment Date in an amount equal to the fair market value of the shares of
common stock purchased for the participant's account (rather than the amount of
cash dividend otherwise payable to the participant). "Fair market value" is
defined for this purpose as the purchase price as described in Question 12
above. A participant's tax basis for shares purchased from Evans Bancorp will be
equal to the amount of dividend income recognized for Federal income tax
purposes. The participant's holding period for the shares will commence on the
day after the Investment Date.
Although the Internal Revenue Service has not ruled on the tax aspects
of a plan pursuant to which a company elects to purchase shares in market
transactions, it is our view that a participant's tax basis for shares purchased
in market transactions will be equal to the weighted average purchase price of
all shares purchased for the relevant Investment Date (see Question 12 above for
more detailed information). In addition, a participant will also realize a
taxable dividend to the extent of an allocated portion of brokerage commissions
paid by Evans Bancorp with respect to shares credited to the participant's
account.
Under current tax law, the amount of any dividend realized by a taxable
corporate participant will be eligible for the 70% dividend received deduction
available to corporations subject to certain holding period requirements
(normally 46 days).
A participant will not realize taxable income on the receipt of a
certificate for whole shares of common stock credited to his or her Plan
account, either upon withdrawal of those shares from such account or upon
termination of the Plan. Taxable gain or loss may be realized, however, when
shares are sold or otherwise disposed of or when a cash payment is received from
Evans Bancorp for a fractional share withdrawn from a participant's account.
Generally, any such gain or loss will be measured by the difference between the
amount realized on the disposition and the tax basis of the disposed shares.
7
The Agent will report to participants and to the Internal Revenue
Service information sufficient to apprise them of the amount that would
constitute dividend income.
The above positions of the Internal Revenue Service have not been
tested in the courts and thus the rules stated above have not been established
by judicial decision. The rules stated above are also subject to change. All
Plan participants should consult their own tax advisors to determine the
particular tax consequences of their participation in the Plan. Please keep your
statements for your tax and cost basis information.
16. HOW ARE INCOME TAX WITHHOLDING PROVISIONS APPLIED TO STOCKHOLDERS WHO
PARTICIPATE IN THE PLAN?
If you fail to provide your taxpayer identification number (or
certification of exemption for withholding for nonresident aliens) to the Agent
in the manner required by law, dividends on the common stock or proceeds from
the sale of shares held for your account are subject to Federal income tax
withholding at the rate of 30.5% or the current tax withholding rate. In
addition, you may be required to certify that you are not subject to withholding
on interest and dividend payments as a result of failure to report all interest
and dividend income on prior tax returns, and, absent such certification, you
may be subject to withholding of 30.5% of your dividends or the current federal
withholding rate in effect. Also, the Internal Revenue Service may notify us to
begin withholding if you have furnished an incorrect taxpayer identification
number or you have failed to report all interest or dividend income on prior tax
returns. In such cases, the appropriate amount of tax will be withheld and the
balance in shares will be credited to your account. Certain stockholders
(including corporations and, in many cases, foreign stockholders) are, however,
exempt from the above withholding requirements.
If you are a nonresident alien stockholder whose dividends are subject
to United States income tax withholding at the 30.5% rate (or lower treaty
rate), the appropriate amount will be withheld and the balance will be credited
to your account in shares.
These rules are subject to change. All Plan participants should consult
their own tax advisors to determine the current effect of these rules on their
participation in the Plan.
17. WHAT KIND OF REPORTS WILL BE SENT TO PARTICIPANTS IN THE PLAN?
As soon as practical after each purchase of common stock under the Plan
for your account, a statement of account will be mailed to you by the Agent.
These statements are your record of current activity plus the cost of your
purchases and should be retained for tax purposes. In addition, you will receive
copies of other communications sent to holders of our common stock, including
our Annual Report, Notice of Annual Meeting and Proxy Statement, and the
information you will need for reporting your dividend income for Federal income
tax purposes.
18. WILL PARTICIPANTS BE CREDITED WITH DIVIDENDS ON SHARES HELD IN THEIR
ACCOUNTS UNDER THE PLAN?
Yes. Dividends on all shares of common stock, including fractional
shares, credited to your account under the Plan will be reinvested automatically
in additional shares of common stock.
19. WILL CERTIFICATES BE ISSUED FOR SHARES PURCHASED?
No. Shares purchased through the Plan will be credited to your account
under your name, but they will not be registered in your name. Certificates will
not be issued to you for shares credited to your
8
account unless you request the Agent in writing to do so or unless your account
is terminated. Shares of common stock purchased under the Plan and held by the
Agent will be registered in the name of the Agent's nominee and credited to your
account. The number of shares credited to your account under the Plan will be
shown on the periodic statement of your account. This service eliminates the
need for safekeeping by you to protect against loss, theft or destruction of
stock certificates.
At any time, you may request in writing that the Agent send you a
certificate for all or part of the whole shares credited to your account. Any
remaining whole shares and fractional shares will continue to be credited to
your account. Certificates for fractional shares will not be issued under any
circumstances.
20. MAY I DEPOSIT WITH THE AGENT STOCK CERTIFICATES FOR THOSE SHARES FOR
WHICH CASH DIVIDENDS ARE BEING REINVESTED UNDER THE PLAN?
You may deposit with the Agent for safekeeping any certificates for
shares of common stock for which dividends are being reinvested under this Plan.
There is no charge for this custodial service and, by making the deposit, you
will be relieved of the responsibility for loss, theft or destruction of the
certificate. Because you bear the risk of loss in sending certificates to the
Agent, it is recommended that you send certificates to the Agent by registered
mail, return receipt requested and properly insured. Certificates should not be
endorsed. Whenever certificates are issued to you either upon request or upon
termination of participation, new, differently numbered certificates will be
issued. Dividends will be reinvested on all shares represented by the
certificates deposited with the Agent.
21. IN WHOSE NAME WILL CERTIFICATES BE REGISTERED WHEN ISSUED TO
PARTICIPANTS?
Accounts under the Plan are maintained in the name in which your shares
are registered at the time you enter the Plan. Consequently, certificates for
whole shares purchased under the Plan will be similarly registered when issued
to you upon your request. Should you want these shares registered and issued in
a different name, you must so indicate in a written request. This would
constitute re-registration, and you would be responsible for any transfer taxes
that may be due and for compliance with any applicable transfer requirements.
22. MAY SHARES IN A PLAN ACCOUNT BE PLEDGED?
Generally, shares credited to your account under the Plan may not be
pledged or assigned. If you want to pledge or assign such shares, you should
contact the Agent.
23. WHAT HAPPENS WHEN A PARTICIPANT SELLS OR TRANSFERS SHARES REGISTERED IN
THE PARTICIPANT'S NAME?
If you dispose of shares of common stock registered in your name (those
for which you hold certificates), the dividends on the shares credited to your
account under the Plan will continue to be reinvested until you notify the Agent
that you wish to terminate your participation in the Plan.
If you are reinvesting the cash dividends on all of the shares
registered in your name (i.e., if you have elected the Full Dividend
Reinvestment option described in Question 2 above) and you dispose of a portion
of such shares, we will continue to reinvest the dividends on the remainder of
the shares registered in your name.
If you are reinvesting the cash dividends on less than all shares
registered in your name (i.e., if you have elected the Partial Dividend
Reinvestment option described in Question 2 above) and you dispose of a portion
of such shares, we will continue to reinvest the dividends on the remainder of
the
9
shares registered in your name, up to the total number of shares last indicated
on the Enrollment Authorization Form.
For example, if you authorize Evans Bancorp to reinvest the cash
dividends on 50 shares of a total of 100 shares registered in your name, and
then you dispose of 25 shares, we would continue to reinvest the cash dividends
on 50 of the remaining 75 shares. If, instead, you dispose of 75 shares, we
would continue to reinvest the cash dividends on all of the remaining 25 shares;
if you later acquire an additional 100 shares registered in your name, dividends
would again be reinvested on a total of 50 shares registered in your name.
24. MAY A PARTICIPANT DIRECT THE AGENT TO SELL HIS SHARES DEPOSITED WITH
THE AGENT UNDER THE PLAN?
Yes. You may authorize the Agent to sell all or part of your shares
deposited with the Agent on your behalf by completing and submitting the Other
Transactions Form portion of your Plan account statement. The Agent will cause
your shares to be sold on the open market on the first Friday following its
receipt of such instructions (or the next business day the markets are open, if
the markets are closed on such date, or if such date is a bank holiday),
provided that the request is received at least three business days prior to the
sale date. The Agent will send you a check for the proceeds, less any applicable
brokerage commissions. You will not receive interest on sales proceeds held
pending disbursement.
Please bear in mind that the Plan is not a market timing investment
vehicle. The price of the common stock may rise or fall during the period
between a request for sale, its receipt by the Agent and the ultimate sale in
the open market. Instructions sent to the Agent to sell shares are binding and
may not be rescinded. Should you elect to sell all or a portion of your shares,
you will receive a Form 1099-B for the gross proceeds of your sale shortly after
the close of the calendar year. Please contact the Agent for further
information.
25. HOW DOES A PARTICIPANT TERMINATE PARTICIPATION IN THE PLAN?
To terminate your participation in the Plan, you must direct the Agent
in writing to discontinue the reinvestment of dividends on both common stock
held of record by you and common stock held in your Plan account. You must also
withdraw the shares of common stock credited to your Plan account. See Question
27 below for more detailed information.
26. WHEN MAY A PARTICIPANT TERMINATE PARTICIPATION IN THE PLAN?
You may terminate your participation in the Plan at any time. If the
notice to discontinue reinvestment is received by the Agent at least 5 business
days before the record date for the next dividend payment, the next dividend
will be paid to you in cash. If the notice to discontinue reinvestment is
received by the Agent less than 5 business days before the record date for the
next dividend payment, the next dividend will be reinvested for your account.
Thereafter, all dividends on common stock held of record by you will be paid to
you in cash unless you re-enroll in the Plan, which you may do at any time.
27. HOW DOES A PARTICIPANT WITHDRAW SHARES PURCHASED UNDER THE PLAN?
You may withdraw all or a portion of the shares of common stock
credited to your Plan account by notifying the Agent in writing to that effect
and specifying in the notice the number of shares to be withdrawn. Certificates
for whole shares of common stock so withdrawn will be issued. In no case will
certificates for fractional shares be issued.
10
If your request to withdraw shares is received between five business
days prior to a record date and a dividend payment date, your account will not
be closed until after you receive the shares resulting from the pending dividend
reinvestment.
28. WILL DIVIDENDS ON SHARES WITHDRAWN FROM THE PLAN CONTINUE TO BE
REINVESTED?
If you have authorized Full Dividend Reinvestment, cash dividends with
respect to shares withdrawn from your account will continue to be reinvested.
If, however, you have authorized only Partial Dividend Reinvestment, the Agent
will continue to reinvest dividends on only the number of shares specified by
you on the Enrollment Authorization Form unless a new Enrollment Authorization
Form specifying a different number of shares is delivered to the Agent at least
5 business days prior to the record date for the next dividend payment.
29. WHAT HAPPENS TO ANY FRACTION OF A SHARE WHEN A PARTICIPANT TERMINATES
PARTICIPATION AND WITHDRAWS ALL SHARES FROM HIS PLAN ACCOUNT?
Any fractional share will be converted to its cash equivalent value and
a check therefor, together with the certificates for whole shares, will be
mailed directly to you. The cash payment will be based on the price at which the
shares were sold, less the applicable brokerage commission.
30. WHAT HAPPENS IF EVANS BANCORP DECLARES A STOCK DIVIDEND OR A STOCK
SPLIT?
Any shares of common stock distributed by Evans Bancorp pursuant to a
stock dividend or a stock split with respect to shares credited to your account
under the Plan will be added to your account.
Shares of common stock distributed pursuant to a stock dividend or a
stock split with respect to shares registered in your name will be mailed
directly to you in the same manner as to stockholders who are not participating
in the Plan.
31. HOW WILL PARTICIPANTS' SHARES HELD BY THE AGENT BE VOTED AT
STOCKHOLDERS' MEETINGS?
Shares held by the Agent for you will be voted as you direct. A proxy
card will be sent to you in connection with any annual or special meeting of
stockholders, as in the case of stockholders not participating in the Plan. This
proxy will apply to all shares registered in your own name and all shares
credited to your account under the Plan and, if properly signed, will be voted
in accordance with the instructions that you give on the proxy card.
As in the case of non-participating stockholders, if no instructions
are indicated on a properly signed and returned proxy card, all of the shares
credited to your account under the Plan will be voted in accordance with the
recommendations of Evans Bancorp management. If the proxy card is not returned
or is returned unsigned, your shares will not be voted unless you or a duly
appointed representative vote in person at the meeting.
32. WHAT ARE THE RESPONSIBILITIES OF EVANS BANCORP AND THE AGENT UNDER THE
PLAN?
Evans Bancorp and the Agent, in administering the Plan, will not be
liable for any act done in good faith or for any good faith omission to act,
including, without limitation, any claim of liability arising out of failure to
terminate a participant's account upon such participant's death prior to receipt
of notice in writing of such death, the prices at which shares are purchased or
sold for the participant's account, the time when purchases or sales are made or
fluctuations in the market value of the common stock.
11
PARTICIPANTS SHOULD RECOGNIZE THAT NEITHER EVANS BANCORP NOR THE AGENT
CAN ASSURE THEM OF A PROFIT OR PROTECT THEM AGAINST A LOSS ON THE SHARES
PURCHASED BY THEM UNDER THE PLAN.
33. MAY THE PLAN BE CHANGED OR DISCONTINUED?
While we hope to continue the Plan indefinitely, we reserve the right
to suspend, terminate or modify the Plan at any time, including the period
between a record date and a dividend payment date. Evans Bancorp and the Agent
also reserve the right to terminate any participant's participation in the Plan
at any time. You will be notified of any suspension, termination or
modification. Upon a termination of the Plan, a certificate for whole shares
credited to your account under the Plan will be issued, and a cash payment
(based on the prevailing market price, less applicable brokerage commission)
will be made for any fraction of a share credited to your account.
In the event that Evans Bancorp, or any successor, hereafter terminates
the Plan and establishes another dividend reinvestment plan, each participant in
the Plan will be enrolled automatically in such other dividend reinvestment plan
and shares credited to the participant's account under the Plan will be credited
automatically to such other dividend reinvestment plan, unless notice is
received to the contrary.
34. IF THE PLAN IS SUSPENDED DOES PARTICIPATION IN THE PLAN CONTINUE?
Unless notified otherwise, during a suspension of the Plan, a
participant will continue to be regarded as a participant in the Plan, and
shares of common stock in a participant's Plan account will continue to be held
at or through the Agent.
35. CAN PARTICIPATION BE TERMINATED IF THE PLAN IS SUSPENDED?
Participation in the Plan may be terminated by you at any time in the
manner described in Question 26 above.
36. IF THE PLAN IS RESUMED AFTER SUSPENSION, WILL A PARTICIPANT
AUTOMATICALLY PARTICIPATE IN THE PLAN?
Unless a participant terminates participation in the Plan or a changed
Enrollment Authorization Form is received by the Agent, the instructions
previously given on the participant's Enrollment Authorization Form will be
followed subject to the terms of the Plan in effect after the suspension ends.
IF YOU HAVE QUESTIONS CONCERNING THE PLAN
Please address all correspondence concerning the Plan to the Agent as follows:
BY REGULAR MAIL, REGISTERED MAIL OR COURIER:
Computershare Investor Services, LLC
P.O. Box A3504
Chicago, Illinois 60690-3504
12
BY HAND OR COURIER:
Computershare Investor Services, LLC
2 North LaSalle Street
Chicago, Illinois 60602
Please mention Evans Bancorp, Inc. in all your correspondence with the Agent
and, if you are a participant in the Plan, give the number of your account. If
you prefer, you may call Computershare Investor Services, LLC for general
questions on shareholder services and for dividend reinvestment plan information
at 1-888-294-8217.
USE OF PROCEEDS
We have no basis for estimating precisely either the number of shares of common
stock that may be sold under the Plan or the prices at which such shares may be
sold. We intend to use the proceeds of original issue and treasury shares sold
pursuant to the Plan for general corporate purposes, including investments in
and extensions of credit to our subsidiaries. The precise amounts and timing of
such uses will depend upon, among other factors, the funding requirements of
Evans Bancorp and its subsidiaries, the availability of proceeds of shares sold
pursuant to the Plan, and the availability of other funds to Evans Bancorp and
its subsidiaries. Pending such applications, the proceeds will be temporarily
invested or applied to the reduction of short-term indebtedness. To the extent
that shares are purchased in market transactions instead of original issue or
treasury shares from Evans Bancorp, we will not receive any proceeds from such
purchases.
LEGAL MATTERS
The validity of the shares of common stock offered hereby has been passed upon
for Evans Bancorp by Harris Beach PLLC. Phillip Brothman, a partner of Harris
Beach PLLC, serves as Chairman of Evans Bancorp's Board of Directors and owns
shares of Evans Bancorp common stock and options to purchase shares of Evans
Bancorp common stock.
EXPERTS
The consolidated financial statements of Evans Bancorp and its subsidiaries as
of and for each of the years in the two year period ended December 31, 2004
incorporated in this Prospectus by reference from Evans Bancorp's Annual Report
on Form 10-K for the fiscal year ended December 31, 2004 have been audited by
KPMG LLP, an independent registered public accounting firm, as stated in their
report, and have been so incorporated in reliance upon the report of such firm
given upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Evans Bancorp and its subsidiaries for
the fiscal year ended December 31, 2002 incorporated in this Prospectus by
reference from Evans Bancorp's Annual Report on Form 10-K for the year ended
December 31, 2004 have been audited by Deloitte & Touche LLP, an independent
registered public accounting firm, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
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
13
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. Evans Bancorp's Bylaws provide for indemnification of our directors and
officers to the fullest extent authorized by the New York Business Corporation
Law. In addition, we maintain directors' and officers' liability insurance under
which our directors and officers are insured against loss (as defined in the
policy) as a result of certain claims brought against them in such capacities.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers or persons controlling Evans
Bancorp pursuant to the foregoing provisions, Evans Bancorp has been informed
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.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 to register the Evans Bancorp common stock to
be issued under the Plan. As allowed by SEC rules, this Prospectus does not
contain all of the information you can find in the registration statement or the
exhibits thereto. The registration statement, including its exhibits and
schedules, contains additional relevant information about Evans Bancorp and its
common stock. This prospectus is a part of that registration statement.
In addition, we file reports, proxy statements and other information with the
Commission. You may read and copy any report, statement or other information
that we file with the Commission at the Commission's Public Reference Room at
450 Fifth Street, N.W., Washington, D.C. 20549. Please call the Commission at
1-800-SEC-0330 for information on the operation of the Public Reference Room.
You may also obtain copies of those materials by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at
prescribed rates.
Our filings with the Commission are also available to the public from commercial
document retrieval services and at the website maintained by the Commission at
http://www.sec.gov. In addition, we maintain a website at
http://www.evansbancorp.com where you can obtain copies the documents we file
electronically with the Commission. Information on our website does not
constitute part of this Prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Commission allows us to "incorporate by reference" the information we file
with it, which means that we may disclose important information to you by
referring you to those documents in this Prospectus. The information
incorporated by reference is considered to be part of this Prospectus except for
information superseded by information contained directly in this prospectus or
in later filed documents incorporated by reference in this Prospectus. We
incorporate by reference the documents listed below, and all documents
subsequently filed by us with the Commission under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 prior to the termination of the
offering.
The following documents, which have been filed by us with the Commission
(Commission File No. 000-18539):
- Our Annual Report on Form 10-K for the fiscal year ended December 31,
2004.
- Our Current Reports on Form 8-K filed on January 4, 2005 and February
16, 2005.
14
- The description of our common stock contained in our registration
statement on Form 10 (No. 000-18539) filed with the Commission on April
30, 1999, together with any amendments or reports filed for the purpose
of updating such description.
Unless expressly incorporated into this Prospectus, a report furnished on Form
8-K shall not be incorporated by reference herein. 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 Prospectus 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.
You should rely only on the information incorporated by reference or provided in
this Prospectus or any Prospectus supplement. We have not authorized anyone to
provide you with any different or additional information. No offer regarding
these securities is made in any state where such an offer is not permitted. You
should not assume that the information in this Prospectus, in any Prospectus
supplement or in any documents incorporated by reference is accurate as of any
date other than the date on the front cover of the applicable document.
The information that we have incorporated by reference into this Prospectus is
available to you without charge upon your written or oral request. Exhibits to
the documents will not be sent, however, unless those exhibits have specifically
been incorporated by reference in this Prospectus. You can obtain documents
incorporated by reference in this Prospectus at the following address and
telephone number:
James E. Biddle, Jr.,
Corporate Secretary
Evans Bancorp, Inc.
14-16 North Main Street
Angola, New York 14006
(716) 926-2000
15
TABLE OF CONTENTS
Information About Evans Bancorp, Inc. 1
Risk Factors 1
The Plan 3
If You Have Questions Concerning the Plan 12
Use of Proceeds 13
Legal Matters 13
Experts 13
Indemnification of Directors and Officers 13
Where You Can Find More Information 14
Incorporation of Certain Documents by Reference 14
NO PERSON IS AUTHORIZED BY EVANS BANCORP, INC. TO GIVE ANY INFORMATION OR TO
MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN
CONNECTION WITH THE OFFER CONTAINED IN THIS PROSPECTUS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFERING IN ANY JURISDICTION IN WHICH SUCH OFFERING MAY NOT
LAWFULLY BE MADE. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
THROUGH ITS USE SHALL IMPLY THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF
EVANS BANCORP, INC. SINCE THE DATE HEREOF.
EVANS BANCORP, INC.
DIVIDEND REINVESTMENT PLAN
PROSPECTUS
DATED MARCH 30, 2005
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the costs and expenses, other than underwriting
discounts and commissions, payable by us in connection with the sale of common
stock being registered hereby. All amounts are estimates except the Securities
and Exchange Commission registration fee.
Securities and Exchange Commission Registration Fee $ 288.37
Printing and Mailing Expenses $2,000.00
Legal Fees and Expenses $3,000.00
Accounting Fees and Expenses $5,500.00
Miscellaneous $1,000.00
------------- ---------
Total $11,788.37
ITEM 15. 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 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.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed 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.
ITEM 16. EXHIBITS.
The following exhibits are filed with this Registration Statement:
Exhibit No. Description
3.1 Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3a
of the Company's Registration Statement on Form S-4 (Registration No. 33-25321), filed
on November 7, 1988)
3.1.1 Certificate of Amendment to the Company's Certificate
of Incorporation (incorporated by reference to
Exhibit 3.3 of the Company's Form 10-Q for the fiscal
quarter ended March 31, 1997, filed on May 14, 1997)
3.2 Bylaws of the Company as amended (incorporated by reference to Exhibit 3b of the
Company's Registration Statement on Form S-4 (Registration No. 33-25321), filed on
November 7, 1988)
II-1
3.2.1 Amendment to the Bylaws of the Company (incorporated
by reference to Exhibit 3.3 of the Company's Form
10-Q for the fiscal quarter ended June 30, 1996,
filed on August 5, 1996)
3.2.2 Amendment to the Bylaws of the Company (incorporated
by reference to Exhibit 3.5 of the Company's Form
10-K for the fiscal year ended December 31, 1997,
filed on March 30, 1998)
5 Opinion of Harris Beach PLLC (filed herewith)
23.1 Consent of Independent Registered Public Accounting Firm - KPMG LLP
23.2 Consent of Independent Registered Public Accounting Firm - Deloitte & Touche LLP
23.2 Consent of Harris Beach PLLC (included in Exhibit 5)
24 Power of Attorney (included at Pages II-4 and II-5)
ITEM 17. 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 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.
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 the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs 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
Securities Exchange Act of 1934 that are incorporated by reference 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.
II-2
(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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
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.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Village of Angola, State of New York, on the 30th day of
March, 2005.
EVANS BANCORP, INC.
By: /s/ James Tilley
-----------------------------------
James Tilley, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears below
constitutes and appoints, jointly and severally, James Tilley and Mark DeBacker,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, for him and in his name, place and stead, and in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement on Form S-3, and to file the same,
with all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their substitute, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
Signature Title Date
By: /s/ James Tilley President and Chief Executive Officer March 29, 2005
------------------------------
James Tilley (Principal Executive Officer) and Director
By: /s/ Mark DeBacker Treasurer (Principal Financial and March 29, 2005
------------------------------
Mark DeBacker Principal Accounting Officer)
By: /s/ Phillip Brothman Chairman of the Board and Director March 29, 2005
------------------------------
Phillip Brothman
By: /s/ Thomas H. Waring, Jr. Vice Chairman of the Board and Director March 29, 2005
------------------------------
Thomas H. Waring, Jr.
II-4
By: /s/ James E. Biddle, Jr. Secretary and Director March 29, 2005
------------------------------
James E. Biddle, Jr.
By: /s/ Robert W. Allen Director March 29, 2005
------------------------------
Robert W. Allen
By: /s/ William F. Barrett Director March 29, 2005
------------------------------
William F. Barrett
By: /s/ LaVerne G. Hall Director March 29, 2005
---------------------
LaVerne G. Hall
By: Director March 29, 2005
------------------------------
Mary Catherine Militello
By: Director March 29, 2005
------------------------------
Robert G. Miller, Jr.
By: /s/ John R. O'Brien Director March 29, 2005
------------------------------
John R. O'Brien
By: /s/ David M. Taylor Director March 29, 2005
---------------------
David M. Taylor
By: /s/ Nancy W. Ware Director March 29, 2005
---------------------
Nancy W. Ware
II-5
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
3.1 Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3a
of the Company's Registration Statement on Form S-4 (Registration No. 33-25321), filed
on November 7, 1988)
3.1.1 Certificate of Amendment to the Company's Certificate
of Incorporation (incorporated by reference to
Exhibit 3.3 of the Company's Form 10-Q for the fiscal
quarter ended March 31, 1997, filed on May 14, 1997)
3.2 Bylaws of the Company as amended (incorporated by reference to Exhibit 3b of the
Company's Registration Statement on Form S-4 (Registration No. 33-25321), filed on
November 7, 1988)
3.2.1 Amendment to the Bylaws of the Company (incorporated
by reference to Exhibit 3.3 of the Company's Form
10-Q for the fiscal quarter ended June 30, 1996,
filed on August 5, 1996)
3.2.2 Amendment to the Bylaws of the Company (incorporated
by reference to Exhibit 3.5 of the Company's Form
10-K for the fiscal year ended December 31, 1997,
filed on March 30, 1998)
5 Opinion of Harris Beach PLLC (filed herewith)
23.1 Consent of Independent Registered Public Accounting Firm - KPMG LLP
23.2 Consent of Independent Registered Public Accounting Firm - Deloitte & Touche LLP
23.2 Consent of Harris Beach PLLC (included in Exhibit 5)
24 Power of Attorney (included at Pages II-4 and II-5)