As Filed With the Securities and Exchange Commission on June 30, 2003
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
EVANS BANCORP, INC.
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(Exact name of issuer as specified in its charter)
New York 16-1332767
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
14-16 North Main Street, Angola, New York 14006
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(Address of principal executive offices including zip code)
Evans Bancorp, Inc. Employee Stock Purchase Plan
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(Full title of the plan)
James Tilley, President
Evans Bancorp, Inc.
14-16 North Main Street
Angola, New York 14006
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(Name and address of agent for service)
(716) 549-1000
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(Telephone number, including area code, of agent for service)
Copy to:
Jeffrey A. Human, Esq.
Gross, Shuman, Brizdle & Gilfillan, P.C.
465 Main Street, Suite 600
Buffalo, New York 14203
CALCULATION OF REGISTRATION FEE
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Title of Each Amount to Be Proposed Proposed Amount of
Class of Registered (1) Maximum Maximum Registration
Securities to Be Offering Price Aggregate Fee
Registered per Share (2) Offering Price (2)
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Common Stock,
$.50 par value 100,000 $21.44 $2,144,000 $173.45
(1) Pursuant to Rule 416 promulgated under the Securities Act of 1933, this
Registration Statement shall also cover an indeterminate amount of interests to
be offered or sold pursuant to the Plan and also an indeterminate amount of
additional shares of the Company's Common Stock which become issuable under the
Plan by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the Registrant's receipt of consideration
that results in an increase in the number of the outstanding shares of the
Company's Common Stock.
(2) Pursuant to Rule 457(h)(1) promulgated under the Securities Act of 1933, the
maximum offering price, per share and in the aggregate, and the registration
fee, were calculated based on the last sale price per share of the Company's
Common Stock as reported on the Nasdaq National Market on June 24, 2003.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The documents containing information specified in the instruction to
Part I of Form S-8 will be sent or given to employees participating in the Plan
as specified by Rule 428(b)(1) of the Securities Act of 1933 (the "Securities
Act"). Those documents and the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II of this Registration
Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are hereby incorporated by reference as
of their respective dates:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 2002.
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, referred to
as the "Exchange Act", since the end of the fiscal year
covered by the Company's Annual Report.
(3) The description of the Common Stock of the Company in the
Registration Statement on Form 10 filed pursuant to the
Exchange Act and all amendments and reports for the purpose of
updating such description.
(4) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date hereof
and prior to the filing of a post- effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part
hereof from the date of filing of such reports and documents.
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Item 4. Description of Securities.
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Not Required.
Item 5. Interests of Named Experts and Counsel.
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Not Required.
Item 6. Indemnification of Directors and Officers.
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The Company's By-Laws provide for indemnification of directors and
officers. The provision provides that any person shall be indemnified and
reimbursed by the Company against all judgments, fines and settlement amounts
and expenses incurred in connection with the defense of any action or
proceeding, or threatened action, whether criminal or civil by reason of the
fact he, his testator or intestate is or was a director or officer of the
corporation. The directors and officers of the Company are also covered by an
insurance policy of the Company indemnifying them against certain civil
liabilities, including liabilities under the federal securities laws, which
might be incurred by them in such capacity.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission, such indemnification is against public policy as
expressed in the Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
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Not Applicable.
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Item 8. Exhibits.
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The Exhibit Index immediately preceding the Exhibits is incorporated
herein by reference.
Item 9. Undertakings.
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(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.
(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 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.
(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 15(b) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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
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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 of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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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-8, and has 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 June,
2003.
EVANS BANCORP, INC.
By: /s/James Tilley
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James Tilley, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ James Tilley President, Chief Executive June 30, 2003
-------------------------- Officer and Director
James Tilley
/s/ Mark DeBacker Treasurer, (Principal June 30, 2003
-------------------------- Financial and Accounting
Mark DeBacker Officer)
/s/ Robert W. Allen
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Robert W. Allen Director June 30, 2003
/s/ William F. Barrett
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William F. Barrett Director June 30, 2003
/s/ Phillip Brothman
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Phillip Brothman Director June 30, 2003
/s/ Laverne G. Hall
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Laverne G. Hall Director June 30, 2003
/s/ Robert G. Miller, Jr.
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Robert G. Miller, Jr. Director June 30, 2003
/s/ John R. O'Brien
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John R. O'Brien Director June 30, 2003
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/s/ David M. Taylor
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David M. Taylor Director June 30, 2003
/s/ Nancy W. Ware
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Nancy W. Ware Director June 30, 2003
/s/ Thomas H. Waring, Jr.
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Thomas H. Waring, Jr. Director June 30, 2003
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EXHIBIT INDEX
Exhibit Description Sequentially
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Number Numbered Page
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4.1 Certificate of Incorporation (1)
4.2 Certificate of Amendment to Certificate of Incorporation (2)
4.3 By-Laws (1)
4.4 Amended Section 204 of By-Laws (3)
4.5 Amended Section 203 of By-Laws (4)
4.6 Specimen common stock certificate (2)
4.7 Evans Bancorp, Inc. Employee Stock Purchase Plan 10
5.1 Opinion of Gross, Shuman, Brizdle & Gilfillan, P.C. on the
legality of the shares being registered 21
23.1 Independent Auditors' Consent 23
23.2 Consent of Gross, Shuman, Brizdle & Gilfillan, P.C.
(included in the Opinion filed as Exhibit 5.1 to this
Registration Statement)
Footnotes
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(1) Filed as Exhibits to the Company's Registration Statement on Form S-4 (Registration
No. 33-253231) and incorporated herein by reference.
(2) Filed as an Exhibit to the Company's Form 10-Q for the quarter ended March 31, 1997
(File No. 0-18539) and incorporated herein by reference.
(3) Filed as an Exhibit to the Company's Form 10-Q for the quarter ended June 10, 1996
(File No. 0-18539) and incorporated herein by reference.
(4) Filed as an Exhibit to the Company's Form 10-K for the year ended December 31, 1997
(File No. 0-18539) and incorporated herein by reference.
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