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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
July 31, 1998
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(Date of earliest event reported)
Evergreen Bancorp, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-10275 36-3114735
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(State or other jurisdiction of (Commission File (I.R.S. Employer
incorporation or organization) Number) Identification No.)
237 Glen Street
Glens Falls, New York
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(Address of principal executive offices)
12801
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(Zip code)
(518) 792-1151
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(Registrant's telephone number,
including area code)
N/A
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(Former name or former
address, if changed since
last report.)
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ITEM 5. OTHER EVENTS
On July 31, 1998, the registrant, Evergreen Bancorp, Inc. (the
"Company" or "Evergreen"), entered into an Affiliation Agreement and Plan of
Reorganization ("Affiliation Agreement") with Banknorth Group, Inc.
("Banknorth"). Both the Company and Banknorth are registered as bank holding
companies under the Bank Holding Company Act of 1956, as amended.
The Affiliation Agreement provides that the Company will be merged with
and into Banknorth (the "Merger"), with Banknorth as the surviving corporation,
pursuant to the terms of an Agreement and Plan of Merger ("Merger Agreement"),
set forth as Exhibit A to the Affiliation Agreement. Pursuant to the Merger
Agreement, each share of Company common stock outstanding at the effective time
of the Merger (subject to certain exceptions), together with the rights
associated therewith (the "Rights") issued pursuant to the Rights Agreement,
dated as of April 17, 1998, between the Company and Evergreen Bank, N.A.
("Evergreen Bank"), as rights agent (the "Rights Agreement"), will be converted
into 0.90 shares of Banknorth common stock, with cash being paid in lieu of any
fractional shares. The Merger is intended to constitute a tax-free
reorganization under the Internal Revenue Code of 1986, as amended, and to be
accounted for as a pooling of interests.
The consummation of the Merger requires the satisfaction of certain
conditions, including regulatory approvals and the approval of the Merger
Agreement and the Merger by the shareholders of both the Company and Banknorth.
Following the consummation of the merger, George W. Dougan, the current
Chairman and Chief Executive Officer of the Company, will be named Vice Chairman
of Banknorth. Banknorth will expand its board of directors to include Mr. Dougan
and two additional board members to be selected by the Company and approved by
Banknorth. Evergreen Bank will continue to operate as a separate banking
subsidiary with its own board of directors.
In connection with the Affiliation Agreement, the Company also entered
into a separate Stock Option Agreement ("Stock Option Agreement"), set forth as
Exhibit C to the Affiliation Agreement, with Banknorth. The Stock Option
Agreement grants Banknorth an irrevocable option ("Banknorth Option") to
purchase up to 19.9%, subject to certain adjustments, of the Company's
outstanding shares of common stock at a purchase price of $27.75 per share. The
Banknorth Option is exercisable only upon certain events, as specified in the
Stock Option Agreement. Under certain circumstances described in the Stock
Option Agreement, the Company may be required to repurchase the Banknorth
Option, or the shares acquired pursuant to the exercise of the Banknorth Option.
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In connection with the Merger, the directors of the Company have
entered into certain individual letters of agreement with Banknorth
("Stockholder Letter Agreements"), in the form set forth as Exhibit D to the
Affiliation Agreement. Pursuant to the Stockholder Letter Agreements, each
director agreed, among other things, to vote for approval of the Merger shares
of Company common stock over which the director has sole voting power.
In connection with the execution of the Merger Agreement and the Stock
Option Agreement, the Company amended the Rights Agreement to provide that the
Rights will not become distributable or exercisable as a result of the execution
of the Merger Agreement and the Stock Option Agreement or the consummation of
the transactions contemplated thereby.
A copy of Amendment No. 1 to the Rights Agreement is attached hereto as
Exhibit 4.1 and is incorporated herein by reference.
Copies of the Affiliation Agreement, as well as the Merger Agreement,
Stock Option Agreement, and the form of the Stockholder Letter Agreements, set
forth as Exhibits A, C, and D, respectively, thereto, dated as of July 31, 1998,
between the Company and Banknorth are included with the Schedule 13D filed by
Banknorth (Commission File No. 0-18173) on August 10, 1998.
For information regarding certain of the terms of the Affiliation
Agreement and related agreements, as well as the recision of the Company's stock
repurchase program, reference is made to the joint press release by Evergreen
and Banknorth dated July 31, 1998, included with the Current Report on the Form
8-K filed by Banknorth (Commission File No. 0-18173) on August 10, 1998
"Banknorth 8-K".
The press release included with the Banknorth 8-K contains
forward-looking statements with respect to the financial condition, results of
operations, and business of the Company and Banknorth, including statements
concerning future events or performance and assumptions and other statements
that are other than statements of historical facts. The forward-looking
statements in the press release involve certain risks and uncertainties. Factors
that may cause actual results to differ materially from those contemplated by
such forward-looking statements include, among others, the following
possibilities: (1) competitive pressure among depository institutions increases
significantly; (2) costs or difficulties related to the integration of the
business of the Company and Banknorth are greater than expected; (3) changes in
the interest rate environment reduce interest margins; (4) general economic
conditions, either nationally or in the states in which the combined company
will be doing business, are less favorable than expected; (5) legislation or
regulatory requirements or changes adversely affect the business in which the
combined company would be engaged; (6) certain customers and vendors of critical
systems or services fail to comply with year 2000 programming issues; or (7)
other factors enumerated in the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 (Commission File No. 0-10275). The Company assumes
no responsibility to update these statements after the date hereof.
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The foregoing descriptions of and references to all of the
above-mentioned agreements and documents do not purport to be complete and are
qualified in their entirety by reference to the complete texts of such documents
filed or incorporated by reference as exhibits hereto.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Not Applicable.
(b) Not Applicable.
(c) Exhibits.
2.1 Affiliation Agreement and Plan of Reorganization, dated as
of July 31, 1998, between Banknorth Group, Inc. and
Evergreen Bancorp, Inc., incorporated by reference from
Exhibit 1 of the Schedule 13D filed by Banknorth Group,
Inc. (Commission File No. 0-18173) on August 10, 1998.
2.2 Agreement and Plan of Merger, dated as of July 31, 1998,
by and among Banknorth Group, Inc. and Evergreen Bancorp,
Inc. incorporated by reference from Exhibit 2 of the
Schedule 13D filed by Banknorth Group, Inc. (Commission
File No. 0-18173) on August 10, 1998.
4.1 Amendment No. 1, dated as of July 31, 1998, to the Rights
Agreement, dated as of April 17, 1998, between Evergreen
Bancorp, Inc. and Evergreen Bank, N.A., as rights agent.
10.1 Stock Option Agreement, dated as of July 31, 1998, between
Evergreen Bancorp, Inc. and Banknorth Group, Inc.
incorporated by reference from Exhibit 3 of the Schedule
13D filed by Banknorth Group, Inc. (Commission File No.
0-18173) on August 10, 1998.
10.2 Form of Stockholder Letter Agreement, dated as of July 31,
1998, between Evergreen Bancorp, Inc. directors and
Banknorth Group, Inc. incorporated by reference from
Exhibit 4 of the Schedule 13D filed by Banknorth Group,
Inc. (Commission File No. 0-18173) on August 10, 1998.
99.1 Evergreen Bancorp, Inc. Press Release dated July 31, 1998,
incorporated by reference from Exhibit 99.1 of the Current
Report on Form 8-K filed by Banknorth Group, Inc.
(Commission File No. 0-18173) on August 10, 1998.
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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.
Dated: August 10, 1998. Evergreen Bancorp, Inc.
By: /s/ George W. Dougan
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George W. Dougan
Chairman and
Chief Executive Officer
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EXHIBIT INDEX
Exhibit No. Description
2.1 Affiliation Agreement and Plan of Reorganization, dated as of
July 31, 1998, between Banknorth Group, Inc. and Evergreen
Bancorp, Inc., incorporated by reference from Exhibit 1 of the
Schedule 13D filed by Banknorth Group, Inc. (Commission File No.
0-18173) on August 10, 1998.
2.2 Agreement and Plan of Merger, dated as of July 31, 1998, by and
among Banknorth Group, Inc. and Evergreen Bancorp, Inc.
incorporated by reference from Exhibit 2 of the Schedule 13D
filed by Banknorth Group, Inc. (Commission File No. 0-18173) on
August 10, 1998.
4.1 Amendment No. 1, dated as of July 31, 1998, to the Rights
Agreement, dated as of April 17, 1998, between Evergreen Bancorp,
Inc. and Evergreen Bank, N.A., as rights agent.
10.1 Stock Option Agreement, dated as of July 31, 1998, between
Evergreen Bancorp, Inc. and Banknorth Group, Inc. incorporated by
reference from Exhibit 3 of the Schedule 13D filed by Banknorth
Group, Inc. (Commission File No. 0-18173) on August 10, 1998.
10.2 Form of Stockholder Letter Agreement, dated as of July 31, 1998,
between Evergreen Bancorp, Inc. directors and Banknorth Group,
Inc. incorporated by reference from Exhibit 4 of the Schedule 13D
filed by Banknorth Group, Inc. (Commission File No. 0-18173) on
August 10, 1998.
99.1 Evergreen Bancorp, Inc. Press Release dated July 31, 1998,
incorporated by reference from Exhibit 99.1 of the Current Report
on Form 8-K filed by Banknorth Group, Inc. (Commission File No.
0-18173) on August 10, 1998.
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Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1, dated as of July 31, 1998 (this "Amendment"), to the
Rights Agreement, dated as of April 17, 1998 (the "Rights Agreement"), between
Evergreen Bancorp, Inc., a Delaware corporation (the "Company"), and Evergreen
Bank, N.A., as rights agent (the "Rights Agent").
WITNESSETH
WHEREAS, the Company and the Rights Agent have previously entered into
the Rights Agreement; and
WHEREAS, no Distribution Date (as defined in Section 3(a) of the Rights
Agreement) has occurred as of the date of this Amendment; and
WHEREAS, Section 26 of the Rights Agreement provides that the Company
and the Rights Agent may, if the Company so directs, supplement or amend the
Rights Agreement from time to time in accordance with the terms of Section 26;
and
WHEREAS, the Company and Banknorth Group, Inc. ("Banknorth") have
entered into an Affiliation Agreement and Plan of Reorganization, dated as of
July 31, 1998 (the "Affiliation Agreement"), providing that the Company will
merge with and into Banknorth pursuant to the terms of an Agreement and Plan of
Merger to be entered into between Banknorth and the Company after the date of
this Amendment (the "Plan of Merger" and, together with the Affiliation
Agreement, the "Merger Agreements"), with Banknorth as the surviving corporation
in the merger; and
WHEREAS, in connection with the Affiliation Agreement, the Company and
Banknorth have entered into a Stock Option Agreement, dated as of July 31, 1998
(the "Evergreen Stock Option Agreement"), pursuant to which the Company has
granted to Banknorth an option to purchase certain shares of the Company's
Common Stock under certain circumstances and upon certain terms and conditions;
and
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company and its stockholders to amend the Rights Agreement to
exempt the Merger Agreements, the Evergreen Stock Option Agreement and the
transactions contemplated thereby (including, without limitation, the option
granted pursuant to the Evergreen Stock Option Agreement) from the application
of the Rights Agreement; and
WHEREAS, the Board of Directors of the Company has approved and adopted
this Amendment and directed that the proper officers to take all appropriate
steps to execute and put into effect this Amendment.
NOW, THEREFORE, the Company hereby amends the Rights Agreement as
follows:
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1. Section 1(b) of the Rights Agreement is hereby amended by inserting
the following proviso at the end thereof:
"; provided, however, that, until the termination of the
Affiliation Agreement and the Evergreen Stock Option Agreement
(each as defined below) in accordance with their respective
terms, neither Banknorth Group, Inc. ("Banknorth") nor any
Affiliate of Banknorth (collectively with Banknorth, the
"Banknorth Parties") shall be deemed to be an Acquiring Person
by virtue of the fact that Banknorth is the Beneficial Owner
solely of shares of Common Stock (i) of which any Banknorth
Party is or becomes the Beneficial Owner by reason of the
approval, execution or delivery of the Affiliation Agreement
and Plan of Reorganization, dated as of July 31, 1998, between
the Company and Banknorth, as may be amended from time to
time, the related Agreement and Plan of Merger to be entered
into by the Company and Banknorth as provided in the
Affiliation Agreement (the "Plan of Merger" and, together with
the Affiliation Agreement, the "Merger Agreements"), the Stock
Option Agreement, dated as of July 31, 1998, between the
Company and Banknorth (the "Evergreen Stock Option Agreement")
or by reason of the consummation of any transaction
contemplated in the Merger Agreements or the Evergreen Stock
Option Agreement, (ii) of which any Banknorth Party is the
Beneficial Owner on the date hereof, (iii) of which any
Banknorth Party becomes the Beneficial Owner after the date
hereof, provided, however, that the aggregate number of shares
of Common Stock which may be Beneficially Owned by the
Banknorth Parties pursuant to this clause (iii) shall not
exceed 1% of the shares of Common Stock outstanding, (iv)
acquired in satisfaction of debts contracted prior to the date
hereof by any Banknorth Party in good faith in the ordinary
course of such Banknorth Party's banking business, (v) held by
any Banknorth Party in a bona fide fiduciary or depository
capacity, or (vi) owned in the ordinary course of business by
either (A) an investment company registered under the
Investment Company Act of 1940, as amended, or (B) an
investment account, in either case for which any Banknorth
Party acts as investment advisor."
2. Section 13 of the Rights Agreement is hereby amended to add the
following subsection (e) at the end thereof:
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"Notwithstanding any other provision of this Agreement, in
accordance with the terms of the Plan of Merger, at the
Effective Time (as defined in the Plan of Merger), the Common
Stock will be converted into the consideration provided for in
the Plan of Merger, and all Rights attached thereto shall
simultaneously be extinguished with no additional
consideration being paid on account thereof."
3. Section 15 of the Rights Agreement is hereby modified and amended to
add the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable
rights, remedies or claims under this Agreement in connection
with any transactions contemplated by the Merger Agreements or
the Evergreen Stock Option Agreement."
4. This Amendment shall be deemed to be in force and effective
immediately prior to the execution and delivery of the Evergreen Option
Agreement and the Affiliation Agreement. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
5. Capitalized terms used in this Amendment and not defined herein
shall have the meanings assigned thereto in the Rights Agreement.
6. This Amendment may be executed in any number of counterparts and
each of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
7. In all respects not inconsistent with the terms and provisions of
this Amendment, the Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the Rights Agent shall be
entitled to all the privileges and immunities afforded to the Rights Agent under
the terms and conditions of the Rights Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
ATTEST: EVERGREEN BANCORP, INC.
By /s/ Paul A. Cardinal By /s/ George W. Dougan
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Paul A. Cardinal George W. Dougan
Executive Vice President Chairman and
and Corporate Secretary Chief Executive Officer
ATTEST: EVERGREEN BANK, N.A.
By /s/ Paul A. Cardinal By /s/ George W. Dougan
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Paul A. Cardinal George W. Dougan
Executive Vice President Chairman and
and Corporate Secretary Chief Executive Officer
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