Form 8-K - Current report

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): November 30, 2023

EVANS BANCORP, INC.

(Exact name of the registrant as specified in its charter)

New York

001-35021

16-1332767

(State or other jurisdiction of

incorporation)

(Commission File Number)

(IRS Employer

Identification No.)

6460 Main Street
Williamsville, New York		14221
(Address of principal executive offices)		(Zip Code)

(716) 926-2000

(Registrant’s telephone number, including area code)

N/A

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (See General Instruction A.2. below):

¨	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4c)

Securities registered pursuant to Section 12(b) of the Act:

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, par value $0.50 per share		EVBN		NYSE American

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Item 1.01

Entry into Material Definitive Agreement.

On November 30, 2023, Evans Bancorp, Inc. (the “Company”), Evans National Financial Services, LLC (“ENFS”), a wholly-owned subsidiary of the Company, and The Evans Agency, LLC (“TEA”), a wholly-owned subsidiary of ENFS, amended their previously announced Asset Purchase Agreement (the “Purchase Agreement”) with Arthur J. Gallagher & Co. and Arthur J. Gallagher Risk Management Services, LLC (collectively, “Gallagher”), pursuant to which TEA agreed sell substantially all of its assets to Gallagher for a purchase price of $40.0 million in cash (the “Transaction”). The amendment provides that Gallagher will hold back $2,377,000 of the purchase price, to be payable following the second anniversary of the closing of the Transaction based on the performance of certain customer accounts. The amendment to the Purchase Agreement is attached to this Current Report on Form 8-K as Exhibit 2.2 and is incorporated herein by reference.

Item 2.01

Completion of Acquisition or Disposition of Assets.

In a Current Report on Form 8-K dated November 7, 2023, the Company reported the execution of the Purchase Agreement relating to the Transaction. The description of the Purchase Agreement contained in that Current Report on Form 8-K is incorporated herein by reference.

On November 30, 2023, the Company, ENFS and TEA completed the Transaction. TEA was a full-service insurance agency offering personal, commercial and financial services products. For the year ended December 31, 2022, TEA had total revenue of $10.0 million.

Pursuant to the terms and conditions of the Purchase Agreement, as amended, at the closing of the Transaction, Gallagher distributed $35.6 million in cash to TEA, placed $2.0 million in a third party escrow account as security for the indemnification obligations of the Company and TEA relating to the representations and warranties included in the Purchase Agreement, and retained an additional $2,377,000, to be payable to TEA at the end of a two year period following closing, as described above under Item 1.01.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On November 30, 2023, Aaron M. Whitehouse, President of TEA, ended his employment with TEA. Pursuant to the Purchase Agreement, Mr. Whitehouse joined Gallagher in connection with the completion of the Transaction.

Item 9.01

Financial Statements and Exhibits.

(b) Pro Forma Financial Information.

In connection with the closing of the Transaction, the Company anticipates that it will file, on or before December 6, 2023, an amendment to this Current Report on Form 8-K that includes certain unaudited pro forma condensed financial statements and accompanying explanatory notes, giving effect to the Transaction, as required under Item 9.01 of Form 8-K.

(d)

Exhibits.

Exhibit No.

Description

	2.1	Asset Purchase Agreement, dated as of November 7, 2023, by and among Arthur J. Gallagher & Co., Arthur J. Gallagher Risk Management Services, LLC, The Evans Agency, LLC, Evans National Financial Services, LLC and Evans Bancorp, Inc. (incorporated by reference to Evans Bancorp, Inc.’s Current Report on Form 8-K filed on November 9, 2023)*

	2.2	Amendment to Asset Purchase Agreement, dated as of November 30, 2023, by and among Arthur J. Gallagher & Co., Arthur J. Gallagher Risk Management Services, LLC, The Evans Agency, LLC, Evans National Financial Services, LLC and Evans Bancorp, Inc.*

	104.1	Cover Page Interactive Data File (formatted as inline XBRL)

* Schedules and similar attachments have been omitted pursuant to Items 601(a)(5) and 601(b)(2) of Regulation S-K. A copy of any omitted schedule or similar attachment will be furnished supplementally to the SEC upon request; provided, however, that the parties may request confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any document so furnished.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	Evans Bancorp, Inc.

December 1, 2023	By:	/s/ David J. Nasca
		Name: David J. Nasca
		Title: President and Chief Executive Officer

Exhibit 2.2

AMENDMENT TO

ASSET PURCHASE AGREEMENT

THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (this “Amendment”) is entered into as of November 30, 2023, by and among ARTHUR J. GALLAGHER & CO., a Delaware corporation (“Gallagher”), ARTHUR J. GALLAGHER RISK MANAGEMENT SERVICES, LLC, a Delaware limited liability company (“Subsidiary”), THE EVANS AGENCY, LLC, a New York limited liability company (“Seller”), EVANS NATIONAL FINANCIAL SERVICES, LLC, a New York limited liability company (“Evans National”) and EVANS BANCORP, INC., a New York corporation registered as a financial holding company under the Bank Holding Company Act of 1956 (“Evans Bancorp”) (Evans National and Evans Bancorp collectively, the “Members”, and each individually, a “Member”). It is intended that this Amendment shall be a permanent and integral part of the Agreement (as defined below).

WHEREAS, the parties, previously entered into that certain Asset Purchase Agreement, dated as of November 7, 2023 (the “Purchase Agreement”);

WHEREAS, the parties desire to amend the Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as set forth below.

1.              Amendment to the Purchase Agreement. As of the Effective Date, the Purchase Agreement is hereby amended or modified as follows:

Section 4(a)(i) of the Purchase Agreement is hereby deleted in its entirety and replaced with the following:

In consideration of the conveyance, transfer and assignment of all of the Property to Subsidiary and the non-competition and other restrictive covenants set forth in Section 8(f) hereof, Gallagher will pay the Purchase Price. As used herein, the term “Purchase Price” shall include $40,000,000 payable as follows: (I) to Seller, cash in the amount of $38,000,000, less $2,377,000 (the “Holdback Amount”); and (II) to Escrow Agent, the Escrow Deposit. As used herein, the total of (I) and (II) shall be referred to as the “Initial Purchase Price”.

The following Section 4(d) is added to the Purchase Agreement:

(d)    Holdback Amount

Seller shall receive the Holdback Amount, or a portion thereof, following the second anniversary of the Closing Date (the “Anniversary Date”), in accordance with the terms set forth in Paragraph 4(d) of the Disclosure Schedule.

ii.

Subsidiary shall operate the Acquired Business in good faith and shall not, and shall cause the Acquired Business not to, directly or indirectly, take any action for the purpose of decreasing the Holdback Amount payable to Seller.

2.               Conflict. Wherever the terms and conditions of this Amendment and the terms and conditions of the Purchase Agreement conflict, the terms of this Amendment shall be deemed to supersede the conflicting terms of the Purchase Agreement.

3.               Effect of Amendment. The Purchase Agreement shall remain in full force and effect between the Parties, except as modified by the terms of this Amendment. On and after the Effective Date, each reference in the Purchase Agreement to “this Asset Purchase Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each reference to the Purchase Agreement in any other agreements, documents, or instruments executed and delivered pursuant to, or in connection with, the Purchase Agreement, will mean and be a reference to the Purchase Agreement as amended by this Amendment.

4.               Counterparts. This Amendment may be executed in one or more counterparts (including by means of facsimile, or other electronically scanned transmission), each of which shall be deemed an original but all of which together shall constitute one and the same instrument. A signed copy of this Amendment delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment.

5.               Applicable Law. This Amendment shall be construed and interpreted under, and governed and enforced according to, the laws of the State of Delaware, without giving effect to the conflict of laws and rules thereof.

[Remainder of Page Intentionally Left Blank]

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.

	ARTHUR J. GALLAGHER & CO.

	By:	/s/ Michael R. Pesch
	Name:	Michael R. Pesch
	Title:	Vice President

	Arthur J. Gallagher Risk Management Services, LLC

	By:	/s/ M. Keith Barton
	Name:	M. Keith Barton
	Title:	Vice President and Chief Financial Officer

	the evans agency, LLC

	By:	/s/ Aaron M. Whitehouse
	Name:	Aaron M. Whitehouse
	Title:	President

	Evans national financial services, llc

	By:	/s/ David J. Nasca
	Name:	David J. Nasca
	Title:	President and Chief Executive Officer

	evans bancorp, inc.

	By:	/s/ David J. Nasca
	Name:	David J. Nasca
	Title:	President and Chief Executive Officer

[Signature Page to Amendment to the Asset Purchase Agreement]

Cover	Nov. 30, 2023
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Nov. 30, 2023
Entity File Number	001-35021
Entity Registrant Name	EVANS BANCORP, INC.
Entity Central Index Key	0000842518
Entity Tax Identification Number	16-1332767
Entity Incorporation, State or Country Code	NY
Entity Address, Address Line One	6460 Main Street
Entity Address, City or Town	Williamsville
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	14221
City Area Code	716
Local Phone Number	926-2000
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, par value $0.50 per share
Trading Symbol	EVBN
Security Exchange Name	NYSEAMER
Entity Emerging Growth Company	false