BYLK Baylake Corp

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):  October 14, 2015

BAYLAKE CORP.

(Exact name of registrant as specified in its charter)

                    (920) 743-5551                   

(Registrant’s telephone number, including area code)

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:

x  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-4(c))

Item 1.01.

Entry into a Material Definitive Agreement.

On May 5, 2015, Baylake Corp. (“Baylake”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) with NEW Bancshares, Inc., a Wisconsin corporation (“NEWBI”).  The Merger Agreement contemplates that NEWBI will be merged with and into Baylake, with Baylake continuing as the surviving corporation (the “Merger”).  Immediately prior to consummation of the Merger, NEWBI will sell substantially all of the assets of its indirect subsidiary, Novak Agency, Inc. (“Novak”) to the principals of Novak on terms reasonably agreed to by Baylake.

On October 14, 2015, Baylake and NEWBI entered into the first amendment to the Merger Agreement (the “Amendment”).  The Amendment provides that, subject to certain limitations, the Merger Agreement may be terminated by Baylake or NEWBI if the Merger is not consummated by December 31, 2015, or January 31, 2016 in the event that the Merger has not been consummated by December 31, 2015 solely due to a delay in obtaining any regulatory approval required by the Merger Agreement. The Merger Agreement previously permitted either party to terminate the Merger Agreement if the Merger was not consummated by October 31, 2015, or December 31, 2015 in the event that the merger was not consummated by October 31, 2015 solely due to a delay in obtaining any regulatory approval required by the Merger Agreement.

The Amendment also modified the required language of the tax opinions to be provided by Godfrey & Kahn, S.C., counsel to Baylake (“G&K”) and Wipfli, LLP, independent accountant to NEWBI (“Wipfli”). The Amendment requires that NEWBI receive from Wipfli, and Baylake receive from G&K, opinions stating that it is more likely than not the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986 (the “Code”) and that it is more likely than not that no gain or loss will be recognized by NEWBI as a result of the Merger.  Additionally, the Wipfli opinion will also state that it is more likely than not that no gain or loss will be recognized by NEWBI shareholders with respect to shares of Baylake stock they receive in connection with the Merger. Prior to the Amendment, the Merger Agreement required the opinions to be provided by G&K and Wipfli to state that the merger would be treated as a reorganization within the meaning of Section 368(a) of the Code, and that no gain or loss would be recognized by the NEWBI or NEWBI shareholders in connection with the Merger or receipt of shares of Baylake common stock as consideration for the Merger.

The Amendment also provides that NEWBI, through its consent to, facilitation of, or involvement with the subsequently announced proposed merger of Baylake with and into Nicolet Bankshares, Inc. will not have violated the terms of the Merger Agreement prohibiting NEWBI from taking any action that would prevent the Merger from qualifying as a reorganization under Section 368(a) of the Code.

The foregoing descriptions of the Amendment are qualified in their entirety by reference to the full text of the Amendment, which is attached hereto as Exhibits 2.1, and is incorporated by reference herein.

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Item 9.01

Financial Statements and Exhibits.

(d)  Exhibits

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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:  October 16, 2015

BAYLAKE CORP.

By:  /s/ Kevin L. LaLuzerne                             

Kevin L. LaLuzerne

Senior Vice President and Chief Financial

Officer

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EXHIBIT INDEX

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Exhibit 2.1

FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER

This First Amendment to Agreement and Plan of Merger, dated as of October 14, 2015 (the “Amendment”), amends that certain Agreement and Plan of Merger, dated as of May 5, 2015 (the “Agreement”) by and between Baylake Corp., a Wisconsin corporation (“Company”) and NEW Bancshares, Inc., a Wisconsin corporation (“Seller”).

Company and Seller have determined it is their respective best interests to amend the Agreement as set forth below.  Any capitalized term used in this Amendment but not defined herein shall have the meaning ascribed to it in the Agreement.

AGREEMENTS

In consideration of the foregoing and the mutual covenants and agreements contained in this Amendment and in the Agreement, and intending to be legally bound hereby, the Company and Seller hereby agree as follows:

1.

Section 8.1(b) of the Agreement shall be amended in its entirety to read as follows:

(b)

by either the Seller or the Company if the Merger shall not have been consummated by December 31, 2015, unless extended by the Company’s Board of Directors and the Seller’s Board of Directors for any reason; provided, however, that such date shall automatically be extended until January 31, 2016, if the sole impediment to Closing is a delay in any required approval from the appropriate Governmental Authorities, and that the right to terminate this Agreement under this Section 8.1(b) shall not be available to any Party whose action or failure to act has been a principal cause of or resulted in the failure of the Merger to occur on or before such date if such action or failure to act constitutes a breach of any provision of this Agreement.

2.

Section 7.3(d) of the Agreement shall be amended in its entirety to read as follow:

(d)

Tax Opinion.  The Seller shall have received an opinion of Wipfli, LLP, independent accountants for Seller, in form and substance reasonably satisfactory to the Seller, dated as of the Closing Date, on the basis of facts, representations and assumptions set forth in such opinion which are consistent with the state of facts existing as of the Closing Date, to the effect that it is more likely than not that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and that, accordingly, for federal income tax purposes:

(i)

It is more likely than not that no gain or loss will be recognized by the Seller as a result of the Merger; and

(ii)

It is more likely than not that no gain or loss will be recognized by the shareholders of Seller with respect to the shares of Company Common Stock they receive in exchange for their shares of Seller Common Stock pursuant to the Merger.

In rendering such opinion, the Seller’s independent accountant may require and rely upon representations and covenants contained in certificates of officers of Company, the Seller and others.

3.

The second sentence of Section 1.7(h) of the Agreement shall be amended to read as follows: “For purposes of this section, Company shall have received an opinion of Godfrey & Kahn, S.C., counsel to the Company, dated as of the Closing Date, substantially to the effect that on the basis of facts, representations and assumptions set forth in such opinion, which are consistent with the state of facts existing as of the Closing Date, it is more likely than not that the Merger will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, and accordingly that no gain or loss should be recognized by Seller as a result of the Merger.”

4.

Section 2.18 of the Agreement shall be amended to add the following after “Code”:  “, provided, however, that, Seller’s consent to, facilitation of, involvement with or other actions related to any merger, acquisition or other consolidation involving Company and/or any of its subsidiaries and Nicolet Bankshares, Inc. and/or any of its subsidiaries, including Seller’s execution of this Amendment (“Nicolet Transaction”), shall not constitute a breach of this Section 2.18 or the Agreement regardless of the impact of any Nicolet Transaction on the qualification of the Merger as a reorganization under Section 368(a)(1)(A) of the Code.

5.

All remaining provisions of the Agreement remain unchanged and in full force and effect.

[Remainder of page intentionally left blank.  Signature page to follow.]

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

BAYLAKE CORP.

By:  /s/ Robert J. Cera                          

Name:  Robert J. Cera

Title:    President and Chief Executive Officer

NEW BANCSHARES, INC.

By:  /s/ Jeffrey W. Kleiman                     

Name:  Jeffrey W. Kleiman

Title:    President

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