Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
Subject to the terms and conditions of the Agreement, upon the consummation of
the Merger, FSB stockholders will have the right to receive, subject to possible
adjustment, for each share of common stock, par value
The Agreement contains customary representations and warranties and covenants by
Evans and FSB, including, among others, covenants relating to (1) the conduct of
each party's business during the period prior to the consummation of the Merger,
(2) FSB's obligations to facilitate FSB's stockholders' consideration of, and
voting upon, the Agreement and the Merger, (3) the recommendation by the FSB
board of directors in favor of approval of the Agreement and the Merger
Transactions, and (4) FSB's non-solicitation obligations relating to alternative
business combination transactions. Furthermore, the Agreement provides that,
following the consummation of the Merger,
The Merger is subject to customary closing conditions, including, among others, (1) approval of the Agreement and the Merger by the stockholders of FSB, (2) receipt of required regulatory approvals, (3) the absence of any law or order prohibiting the consummation of the transactions contemplated by the Agreement (including the Merger Transactions), (4) the effectiveness of the registration statement for the Evans Common Stock to be issued in the Merger, and (5) the approval of the listing on the New York Stock Exchange American of Evans Common Stock to be issued in the Merger.
Each party's obligation to consummate the Merger Transactions is also subject to
certain additional customary conditions, including (1) subject to certain
exceptions, the accuracy of the representations and warranties of the other
party, (2) performance in all material respects by the other party of its
obligations under the Agreement and (3) receipt by such party of an opinion from
its counsel to the effect that the Holdco Mergers, taken together, will qualify
as a "reorganization" within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended. Evans' obligation to consummate the Merger
Transactions is also subject to the receipt of regulatory approvals without the
imposition of a condition that is materially and unreasonably burdensome to
Evans' business or the business of FSB or
The Agreement provides certain termination rights for both Evans and FSB and
further provides that a termination fee of
The representations, warranties and covenants of each party set forth in the
Agreement have been made only for purposes of, and were and are solely for the
benefit of the parties to, the Agreement, may be subject to limitations agreed
upon by the contracting parties, including being qualified by confidential
disclosures made for the purposes of allocating contractual risk between the
parties to the Agreement instead of establishing these matters as facts, and may
be subject to standards of materiality applicable to the contracting parties
that differ from those applicable to investors. Accordingly, the representations
and warranties may not describe the actual state of affairs at the date they
were made or at any other time, and investors should not rely on them as
statements of fact. In addition, such representations and warranties (1) will
not survive consummation of the Merger Transactions, unless otherwise specified
therein, and (2) were made only as of the date of the Agreement or such other
date as is specified in the Agreement. Moreover, information concerning the
subject matter of the representations, warranties and covenants may change after
the date of the Agreement, which subsequent information may or may not be fully
reflected in the parties' public disclosures. Accordingly, the Agreement is
included with this filing only to provide investors with information regarding
the terms of the Agreement, and not to provide investors with any other factual
information regarding Evans or FSB, their respective affiliates or their
respective businesses. The Agreement should not be read alone, but should
instead be read in conjunction with the other information regarding Evans, FSB,
their respective affiliates or their respective businesses, the Agreement and
the Merger Transactions that will be contained in, or incorporated by reference
into, the Registration Statement on Form S-4 that will include a proxy statement
of FSB and a prospectus of Evans, as well as in the Forms 10-K, Forms 10-Q,
Forms 8-K and other filings that each of FSB and Evans make, as applicable, with
the
The foregoing summary of the Agreement is not complete and is qualified in its entirety by reference to the complete text of the Agreement, which is filed as Exhibit 2.1 to this Current Report on Form 8-K, and incorporated by reference herein.
Voting Agreement
In connection with the Agreement, in their capacity as stockholders of FSB, FSB's directors and certain executive officers entered into a Voting Agreement with Evans and FSB (the "Voting Agreements"). The FSB directors and executive officers that are party to the Voting Agreements beneficially own, in the aggregate, approximately 9.47% of the outstanding shares of FSB Common Stock. . . .
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e) On
The foregoing description of the material terms of the aforementioned amendment to the SERP does not purport to be complete and is qualified in its entirety by reference to Exhibit 10.2 to this Current Report on Form 8-K, which is incorporated by reference herein.
Item 8.01 Other Events.
On
Forward-Looking Statements
This Current Report on Form 8-K may contain certain forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended
(the "Securities Act"), and Section 21E of the Securities Exchange Act of 1934,
as amended, that involve substantial risks and uncertainties. When used in this
Current Report on Form 8-K, or in the documents incorporated by reference
herein, the words "will," "anticipate," "believe," "estimate," "expect,"
"intend," "may," "plan," "seek," "look to," "goal," "target" and similar
expressions identify such forward-looking statements. These forward-looking
statements include, without limitation, statements relating to the impact Evans
and FSB expect the Merger Transactions to have on the combined entities
operations, financial condition, and financial results, and Evans' and FSB's
expectations about their ability to successfully integrate their respective
businesses and the amount of cost savings and other benefits Evans and FSB
expect to realize as a result of the Merger Transactions. These forward-looking
statements are based largely on the expectations of Evans' and FSB's respective
management and are subject to a number of risks and uncertainties, including,
but not limited to, the possibility that the Merger Transactions do not close
when expected or at all because required regulatory, stockholder or other
approvals and other conditions to closing are not received or satisfied on a
timely basis or at all, the failure to close for any other reason, changes in
Evans' or FSB's share price before closing, the risk that the businesses of
Evans and FSB will not be integrated successfully, the possibility that the cost
savings and any synergies or other anticipated benefits from the Merger
Transactions may not be fully realized or may take longer to realize than
expected, disruption from the Merger Transactions making it more difficult to
maintain relationships with employees, customers or other parties with whom
Evans or FSB have business relationships, diversion of management time on
merger-related issues, risks relating to the potential dilutive effect of the
shares of Evans common stock to be issued in the Merger, the reaction to the
Merger Transactions of the companies' customers, employees and counterparties
and other factors, many of which are beyond the control of Evans and FSB. We
refer you to the additional risk factors that could cause results to differ
materially from those described above contained in the Annual Report on Form
10-K filed by Evans for the year ended
Important Additional Information and Where to Find It
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval with respect to the Merger Transactions. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act, and no offer to sell or solicitation of an offer to buy shall be made in any jurisdiction in which such offer, solicitation or sale would be unlawful.
In connection with the Merger Transactions, Evans will file with the
Free copies of the Proxy Statement/Prospectus, as well as other filings
containing information about Evans and FSB, may be obtained at the
Participants in the Solicitation
Evans, FSB and their respective directors, and certain of their executive
officers and employees may be deemed to be participants in the solicitation of
proxies from the stockholders of FSB in connection with the Merger Transactions.
Information about Evans' directors and executive officers is available in its
proxy statement for its 2019 annual meeting of shareholders, which was filed
with the
Item 9.01 Financial Statements and Exhibits
(a) Financial statements of businesses acquired. None.
(b) Pro forma financial information. None.
(c) Shell company transactions: None.
(d) Exhibits.
2.1 Agreement and Plan of Reorganization, datedDecember 19, 2019 , by and between Evans Bancorp, Inc.,MMS Merger Sub, Inc. andFSB Bancorp, Inc. (incorporated by reference to Exhibit 2.1 of Evans Bancorp, Inc.'s Current Report on Form 8-K (File No. 001-35021) filed with theSEC onDecember 20, 2019 )* 10.1 Form of Voting Agreement, datedDecember 19, 2019 , by and between Evans Bancorp, Inc.,FSB Bancorp, Inc. and certain stockholders ofFSB Bancorp, Inc. (incorporated by reference to Exhibit 10.1 of Evans Bancorp, Inc.'s Current Report on Form 8-K (File No. 001-35021) filed with theSEC onDecember 20, 2019 ) 10.2 Third Amendment to the Supplemental Executive Retirement Agreement by and betweenFairport Savings Bank andKevin D. Maroney , datedDecember 19, 2019 99.1 Press release datedDecember 19, 2019 (incorporated by reference to Exhibit 99.2 of Evans Bancorp, Inc.'s Current Report on Form 8-K (File No. 001-35021) filed with theSEC onDecember 19, 2019 )
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A
copy of any omitted schedule will be furnished supplementally to the
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