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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
Date of Report (Date of earliest event reported): August 25, 1999
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
(Exact name of registrant as specified in its charter)
Delaware 0-23283 95-469104
(State or other (Commission File Number) (IRS Employer
jurisdiction of No.)
incorporation)
1888 Century Park East, Third Floor, Los Angeles, California 90067
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (310) 229-2600
N/A
(Former name or former address, if changed since last report.)
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Item 5. Other Events.
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On August 25, 1999, Franchise Mortgage Acceptance Company, a Delaware
corporation ("FMAC"), and Bay View Capital Corporation, a Delaware corporation
("Bay View"), entered into an Amendment (the "Amendment") to the Agreement and
Plan of Reorganization, dated as of March 11, 1999, by and between FMAC and Bay
View (the "Merger Agreement"). The Amendment is filed herewith as Exhibit 2 and
is incorporated herein by reference. Pursuant to the Amendment, and subject to
the terms and conditions set forth in the Merger Agreement, in connection with
the merger of FMAC with and into Bay View, each FMAC shareholder will have the
option to elect to receive for each share of FMAC common stock held either $9.80
in cash or .5444 shares of Bay View common stock, provided that the FMAC
shareholder elections are subject to the aggregate number of shares of FMAC
common stock to be exchanged for Bay View common stock being equal to 85% of the
number of shares of FMAC common stock outstanding immediately prior to closing.
Pursuant to the Amendment, the Merger Agreement provisions (i) limiting Bay View
common stock ownership by any FMAC shareholder immediately following the merger
to 9.99% of the Bay View common stock on a pro forma basis, and (ii) providing
FMAC with a termination right in the event the average Bay View common stock
price is below $17.50, have been eliminated.
FMAC and Bay View issued a joint Press Release announcing the Amendment
to the Merger Agreement, which is filed herewith as Exhibit 99.1 and is
incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
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(c) EXHIBITS:
2 Amendment to the Agreement and Plan of Reorganization by and
between Bay View and FMAC, dated as of August 25, 1999.
99.1 Joint Press Release of Bay View and FMAC issued August 25, 1999.
2
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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.
FRANCHISE MORTGAGE ACCEPTANCE
CORPORATION
Date: August 26, 1999 By: /s/ Raedelle Walker
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Raedelle Walker
Chief Financial Officer
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EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
2 Amendment to the Agreement and Plan of Reorganization by and between
Bay View and FMAC, dated as of August 25, 1999.
99.1 Joint Press Release of Bay View and FMAC issued August 25, 1999.
4
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Exhibit 2
AMENDMENT
to the
AGREEMENT AND PLAN OF REORGANIZATION
by and between
BAY VIEW CAPITAL CORPORATION
and
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
This Amendment to the Agreement and Plan of Reorganization (the
"Amendment") dated as of August 25, 1999 is entered into by and between Bay View
Capital Corporation ("Bay View") and Franchise Mortgage Acceptance Company
("FMAC").
WHEREAS, Bay View and FMAC entered into that certain Agreement and
Plan of Reorganization dated as of March 11, 1999 (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement as set forth below.
The Agreement shall remain in full force and effect except as amended
hereby, and the definition of terms contained in the Agreement are incorporated
herein by reference. The parties do hereby amend the Agreement as follows:
1. Section 1.3(a)(i) of the Agreement is hereby amended to read in
its entirety as follows:
(i) Each share of common stock of FMAC, $.001 par
value per share (the "FMAC Common Stock"), issued and
outstanding immediately prior thereto (except for
Dissenting Shares, if applicable (as defined in Section
1.3(e)) shall, by virtue of the Merger and without any
action on the part of the parties hereto or the holder
thereof, but subject to this Section 1.3(a), Section 1.3(c)
and Section 1.3(g), be converted into the right to receive,
at the election of the holder thereof as provided in
Section 1.3(b), either:
(1) $9.80 in cash (the "Per Share Cash Consideration"); or
(2) .5444 of a share of the common stock of Bay View ("Bay
View Common Stock"), par value $.01 per share (and the associated
rights (the "Rights") under the Stockholder Protection Rights
Agreement dated as of July 31, 1990, as amended, between
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Bay View and Manufacturers Hanover Trust Company of California,
as Rights Agent) (the "Exchange Ratio" and the "Per Share Stock
Consideration").
Notwithstanding anything contained in this Agreement to the
contrary, or any holder's election, the aggregate number of
shares of FMAC Common Stock to be exchanged for shares of Bay
View Common Stock in the Merger shall be equal to 85% (rounded
up) of the total number of shares (including Dissenting Shares)
of FMAC Common Stock issued and outstanding immediately prior to
the Effective Time (the "Stock Amount").
2. Section 1.3(c)(iii) of the Agreement is hereby amended to read in
its entirety as follows:
[Intentionally Omitted]
3. Section 1.3 (g) of the Agreement is hereby amended to read in its
entirety as follows:
No Fractional Shares. Notwithstanding any other
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provision of this Agreement, neither certificates nor scrip
for fractional shares of Bay View Common Stock shall be
issued in the Merger. Each holder who otherwise would have
been entitled to a fraction of a share of Bay View Common
Stock shall receive in lieu thereof cash (without interest)
in an amount determined by multiplying the fractional share
interest to which such holder would otherwise be entitled
by the closing price of Bay View Common Stock on the NYSE -
Composite Transactions List (as reported by the Wall Street
Journal) on the last trading day prior to the Effective
Time. No such holder shall be entitled to dividends, voting
rights or any other rights in respect of any fractional
share.
4. Section 3.18(e) of the Agreement is hereby amended to read in its
entirety as follows:
[Intentionally Omitted]
5. Section 5.17 of the Agreement is hereby amended to read in its
entirety as follows:
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5.17 Impermissible Activities. FMAC shall use its reasonable
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best efforts to sell, transfer or otherwise dispose of, on terms
satisfactory to Bay View, any of its or its Subsidiaries' businesses
or activities that would be impermissible to be engaged in by Bay View
Bank, either directly or indirectly; provided, that FMAC shall sell,
transfer or otherwise dispose of prior to the Effective Time, on terms
reasonably satisfactory to Bay View, any and all of its interests in
FMAC Golf Finance Group LLC and FMAC Star Fund, LLP (together, the
"Joint Ventures").
6. Section 5.24 of the Agreement is hereby amended to read in its
entirety as follows:
Financial Reporting Obligations. FMAC shall cause the
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full amount of the financial charges and expense relating
to restricted stock awards, bonus stock awards and other
stock awards, if any, to be recorded on its financial books
and records and financial statements for financial
reporting purposes under GAAP on a pre-acquisition basis
prior to the Closing Date.
7. New Section 5.25 entitled "Other Regulatory Matters" is hereby
added to the Agreement as follows:
5.25 Other Regulatory Matters. FMAC shall advise (a)
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any individual holder of FMAC Common Stock (or multiple
holders presumed to be acting in concert as defined in
Section 12 C.F.R. section 225.41(d)) who expects to become
the holder of 10% or more of Bay View Common Stock as a
result of the Merger to take all actions necessary pursuant
to Section 12 C.F.R., Part 225 to file for control or a
rebuttal of control of Bay View with the Board of Governors
of the Federal Reserve System; and (b) any entity that is
the holder of FMAC Common Stock who expects to become the
holder of 10% or more of Bay View Common Stock as a result
of the Merger to take all actions necessary pursuant to
Section 12 C.F.R., Part 225 and the policies of the Federal
Reserve System to file any required passivity commitments
with the Federal Reserve System to insure that such holder
need not register with the Federal Reserve System as a bank
holding company.
8. Section 6.1(j) of the Agreement is hereby amended to read in its
entirety as follows:
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FMAC shall have sold, transferred or otherwise
disposed of, on terms reasonably satisfactory to Bay View,
any and all of its interests in the Joint Ventures.
9. Section 7.1(g) of the Agreement is hereby amended to read in its
entirety as follows:
[Intentionally Omitted]
10. Bay View and FMAC hereby agree that the FMAC Disclosure Schedule
is hereby amended to encompass the matters referred to in the letters dated
April 5, 1999, regarding the Letter Agreement between Credit Suisse First Boston
Corporation and FMAC, and June 2, 1999, regarding a repurchase obligation by
FMAC of loans sold to Imperial Credit Commercial Mortgage Investment Corp. The
parties agree that no breach of the Agreement by FMAC has been deemed to occur
with respect to the omission of those matters from the Disclosure Schedules.
11. Bay View acknowledges and agrees that FMAC has offered to enter
into an Option Cancellation Agreement with each holder of Out-of-the-Money
Options (as defined below) who is an employee of FMAC pursuant to which Bay View
will pay in cash to each such holder, in exchange for the holder's execution of
an Option Cancellation Agreement, as follows: $3.84 per share with respect to
options with an exercise price of $11.00; and $1.89 per share with respect to
options with an exercise price of $18.00. "Out-of-the-Money Options" are FMAC
stock options with a per share exercise price greater than $10.25 per share. Bay
View hereby acknowledges and agrees that, after the Effective Time, it shall, in
accordance with the terms of the Option Cancellation Agreements, pay the entire
amount of any cash payments thereby incurred.
12. Neither party is aware of any existing breach of any
representation, warranty or covenant made in the Agreement.
13. This Amendment may be executed in one or more counterparts and it
is not necessary that signatures of all parties appear on the same counterpart,
but such counterparts together shall constitute but one and the same Amendment.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By /s/ Edward H. Sondker
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Edward H. Sondker
President and Chief Executive Officer
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
By /s/ Kevin T. Burke
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Kevin T. Burke
Executive Vice President
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Exhibit 99.1
Bay View
Capital Corporation News Release
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NYSE:BVC
Web Site: www.bayviewcapital.com
Contact: David A. Heaberlin
(650) 312-7272
NASDAQ: FMAX
Web Site: www.fmax.com
Contact: Wayne L. "Buz" Knyal
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(310) 229-2629
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FOR IMMEDIATE RELEASE
- ---------------------
August 25, 1999
BAY VIEW CAPITAL AND FRANCHISE MORTGAGE ANNOUNCE REVISED
TERMS OF DEFINITIVE MERGER AGREEMENT
San Mateo, California - Bay View Capital Corporation (Bay View, NYSE: BVC)
and Franchise Mortgage Acceptance Company (FMAC, Nasdaq: FMAX) today announced
that they have agreed to amend the terms of the definitive merger agreement
between the two companies. In accordance with the amended terms, each FMAC
shareholder will have the option to elect either $9.80 in cash or .5444 shares
of Bay View's common stock. In total, the elections for cash are limited to 15%
of the shares of FMAC common stock outstanding immediately prior to closing and
the elections for Bay View common stock are limited to 85% of the shares of FMAC
common stock outstanding immediately prior to closing. In addition, the original
merger provision prohibiting any FMAC shareholder from owning more than 9.99% of
Bay View following the merger, along with the walk-away provision to the extent
Bay View's stock price was less than $17.50, has been eliminated.
In anticipation of the merger, which is still subject to approvals by both
Bay View's and FMAC's shareholders, Bay View and FMAC are currently exploring a
late 1999 or early 2000 whole loan sale or securitization of approximately $400-
$500 million in franchise and branded retail loans.
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Edward H. Sondker, Bay View's President and Chief Executive Officer,
commented, "We are very pleased that our companies could come together and agree
upon these revised terms, which we believe are in the best interests of all of
our shareholders. With all regulatory approvals received, we can now intensify
our integration efforts towards our goal of an early fourth quarter close."
Wayne L. "Buz" Knyal, FMAC's President and Chief Executive Officer,
commented, "We look forward to completing this transaction and becoming part of
Bay View. The resulting entity will be well positioned to grow and expand our
leadership position in the franchise and multi-family lending segments."
Bay View Capital Corporation is a $5.9 billion diversified financial
services holding company headquartered in San Mateo, California. It is the
parent company of Bay View Bank, N.A. and its subsidiaries, Bay View Acceptance
Corporation and Bay View Commercial Finance Group.
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