<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 20, 1997.
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
BAY VIEW CAPITAL CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 94-3078031
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1840 GATEWAY DRIVE
SAN MATEO, CALIFORNIA 94404
(415) 573-7300
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------
ROBERT J. FLAX, ESQ.
EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
BAY VIEW CAPITAL CORPORATION
1840 GATEWAY DRIVE
SAN MATEO, CALIFORNIA 94404
(415) 573-7300
---------------
COPIES TO:
CHRISTOPHER R. KELLY, P.C. PAUL C. PRINGLE
SILVER, FREEDMAN & TAFF, L.L.P. ERIC S. HAUETER
1100 NEW YORK AVENUE, N.W. BROWN & WOOD LLP
WASHINGTON, D.C. 20005 555 CALIFORNIA STREET
(202) 414-6100 SAN FRANCISCO, CALIFORNIA 94104
(202) 682-0354 (FAX) (415) 772-1200
(415) 397-4621 (FAX)
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined
by market conditions.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, please check the
following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1)(2) PER UNIT(3) PRICE(1)(3) FEE
=====================================================================================================
<S> <C> <C> <C> <C>
Subordinated Debt Securities.............. $150,000,000 100% $150,000,000 $45,455
=====================================================================================================
</TABLE>
(1) Securities registered hereby may be offered for U.S. dollars or the
equivalent thereof in foreign currencies, currency units or composite
currencies.
(2) If any Debt Securities are issued at an original issue discount, then such
greater amount as may be sold for an aggregate initial offering price of
up to the proposed maximum aggregate offering price.
(3) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(o). The proposed maximum offering price will be
determined from time to time by the Registrant in connection with the
issuance by the Registrant of the securities registered hereunder.
================================================================================
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JUNE 20, 1997
PROSPECTUS
BAY VIEW CAPITAL CORPORATION
SUBORDINATED DEBT SECURITIES
-----------
Bay View Capital Corporation (the "Company") may from time to time offer and
sell its unsecured subordinated debt securities (the "Securities" or the "Debt
Securities") in one or more series for an aggregate initial public offering
price of up to $150,000,000 (or the equivalent in foreign currencies, currency
units or composite currencies (each, a "Currency")). The Securities will be
subordinated in right of payment as described herein under "Description of Debt
Securities--Subordination." Payment of the principal of the Securities may be
accelerated only in the case of certain events involving the bankruptcy,
insolvency or reorganization of the Company or any Major Bank Subsidiary (as
defined) of the Company, and no right of acceleration will exist in the case of
default in the payment of the principal of, or premium, if any, or interest, if
any, on the Securities or in the performance of any other covenant of the
Company. See "Description of Debt Securities--Events of Default."
The Securities may be offered through dealers, underwriters or agents
designated from time to time, as set forth in the accompanying Prospectus
Supplement. The Securities will be offered to the public at prices and on terms
determined at the time of offering. The Securities may be sold for U.S. dollars
or other Currencies and any amounts payable by the Company in respect of the
Securities may likewise be payable in U.S. dollars or other Currencies. Net
proceeds from the sale of Securities will be equal to the purchase price in the
case of a dealer, the public offering price less discount in the case of an
underwriter or the purchase price less commission in the case of an agent, in
each case less other expenses attributable to the issuance and distribution of
the Securities. The Company may also sell Securities directly to investors on
its own behalf. In the case of sales made directly by the Company, no
commission will be payable. See "Plan of Distribution" for possible
indemnification arrangements for dealers, underwriters and agents.
The Prospectus Supplement to this Prospectus sets forth (where applicable),
with respect to the series or issue of Securities for which such Prospectus
Supplement is being delivered, the terms of such Securities offered, including,
where applicable, their title, aggregate principal amount, maturity, rate of
interest (or method of calculation) and time of payment thereof, any redemption
or repayment terms, the Currency or Currencies in which such Securities will be
denominated or payable, any index, formula or other method pursuant to which
principal, premium, if any, or interest, if any, may be determined, and other
specific terms not described in this Prospectus.
This Prospectus may not be used to consummate sales of Securities unless
accompanied or, to the extent permitted by applicable law, preceded by a
Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
-----------
THESE SECURITIES ARE UNSECURED OBLIGATIONS OF THE COMPANY AND ARE NOT DEPOSITS
OR SAVINGS ACCOUNTS AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
-----------
The date of this Prospectus is , 1997.
<PAGE>
Certain persons participating in an offering of Securities may engage in
transactions that stabilize, maintain or otherwise affect the price of such
Securities. Such transactions may include stabilizing and the purchase of such
Securities to cover syndicate short positions. For a description of any such
activities, see the applicable Prospectus Supplement.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and at the Commission's
Regional Offices in New York (Seven World Trade Center, 13th Floor, New York,
New York 10048), and Chicago (Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661). Copies of these materials may be obtained from
the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Such material may also be
accessed electronically by means of the Commission's home page on the Internet
at http://www.sec.gov. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of the
National Association of Securities Dealers, Inc., 1735 K Street, N.W.,
Washington, D.C. 20006.
This Prospectus constitutes a part of a registration statement on Form S-3
(the "Registration Statement") filed by the Company with the Commission under
the Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
omits certain of the information contained in the Registration Statement in
accordance with the rules and regulations of the Commission. Reference is
hereby made to the Registration Statement and related exhibits for further
information with respect to the Company and the Securities. Statements
contained herein concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed or incorporated by reference as an exhibit to the Registration Statement
or otherwise filed with the Commission. Each such statement is qualified in
its entirety by such reference.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the Commission
and are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
2. The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1997.
3. The Company's Current Report on Form 8-K dated February 7, 1997.
4. The Company's Current Report on Form 8-K dated March 4, 1997.
5. The Company's Current Report on Form 8-K dated May 8, 1997.
6. The Company's Current Report on Form 8-K dated June 19, 1997.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior
to the termination of the offering of the Securities shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the respective dates of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein or in the applicable Prospectus Supplement modifies or
supersedes such statement. Any statement or document so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute part
of this Prospectus.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, upon request, a copy of any and all of the documents
described above that are incorporated by reference herein other than exhibits
to such documents which are not specifically incorporated by reference in such
documents. Written or telephone requests should be directed to: Robert J.
Flax, Esq., Executive Vice President, General Counsel and Secretary, Bay View
Capital Corporation, 1840 Gateway Drive, San Mateo, California 94404
(telephone (415) 573-7300).
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in
this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized. This Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any
securities other than the securities described in this Prospectus or an offer
to sell or the solicitation of an offer to buy such securities in any
jurisdiction where or to any person to whom it is unlawful to make such an
offer or solicitation. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made hereunder or thereunder shall, under
any circumstances, create any implication that there has been no change in the
affairs of the Company since the date hereof or thereof or that the
information contained or incorporated by reference herein or therein is
correct as of any time subsequent to its date.
3
<PAGE>
THE COMPANY
Bay View Capital Corporation (the "Company"), a Delaware corporation, is a
savings and loan holding company which has as its primary wholly owned
subsidiaries (i) Bay View Bank (the "Bank"), a federally chartered capital
stock savings bank, (ii) California Thrift & Loan ("CTL"), a California
industrial bank operating a consumer finance company, (iii) Concord Growth
Corporation ("CGC"), a California corporation operating a commercial finance
company, and (iv) Bay View Securitization Corporation, a Delaware corporation
formed for the purpose of issuing asset-backed securities through a trust. The
Company was organized in 1989 to become the holding company for the Bank
following the Bank's 1986 conversion from a mutual to stock chartered federal
savings association. The Company's executive offices are located at 1840
Gateway Drive, San Mateo, California 94404, and its telephone number is (415)
573-7300. Unless otherwise indicated or unless the context otherwise requires,
all references in this Prospectus and any Prospectus Supplement to the Company
include Bay View Capital Corporation and its consolidated subsidiaries.
On May 8, 1997, the Company signed a definitive agreement to acquire America
First Eureka Holdings, Inc. ("AFEH") and AFEH's wholly owned subsidiary,
EurekaBank, a Federal Savings Bank ("EurekaBank"). Under the terms of the
definitive merger agreement (the "Merger Agreement"), America First Financial
Fund 1987-A Limited Partnership (the "Partnership"), the sole stockholder of
AFEH, is to receive shares of the common stock of the Company valued at
approximately $210 million (subject to possible adjustment) plus $90 million in
cash. Pursuant to the Merger Agreement, AFEH will be merged into the Company,
with the Company as the surviving corporation, and EurekaBank will be merged
into the Bank, with the Bank as the surviving bank. Consummation of the
acquisition is subject to the satisfaction of a number of conditions set forth
in the Merger Agreement, including approval by the Company's stockholders and
the beneficial unit certificate holders of the Partnership, and the regulatory
approval of the Office of Thrift Supervision (the "OTS"). At March 31, 1997,
EurekaBank had total assets of approximately $2.2 billion, deposits of
approximately $1.9 billion and stockholder's equity of approximately $174
million.
USE OF PROCEEDS
The Company intends to use the net proceeds from the sale of the Securities
offered hereby for general corporate purposes, which may include, among other
things, the repayment of indebtedness, investments in or extensions of credit
to its subsidiaries and the financing of acquisitions.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratios of earnings to fixed
charges for the Company for the periods indicated. Earnings represent income
from continuing operations before income taxes, fixed charges and extraordinary
items. Fixed charges include interest expense and the portion of rental expense
which approximates the interest component of lease payments. Such information
is qualified in its entirety by the more detailed financial information set
forth in the Company's financial statements and notes thereto appearing in the
documents incorporated herein by reference. See "Incorporation of Certain
Documents by Reference."
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
------------ --------------------------------
1997 1996 1996 1995 1994 1993 1992
------ ------ ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges:
Including interest on customer
deposits...................... 1.25x 1.19x 1.12x 0.98x(1) 1.17x 1.18x 1.07x
Excluding interest on customer
deposits...................... 1.52x 1.49x 1.31x 0.96x(1) 1.35x 1.41x 1.14x
</TABLE>
- --------
(1) For the year ended December 31, 1995, earnings were insufficient to cover
fixed charges. The amount of the deficiency was $2,853,710.
4
<PAGE>
SELECTED FINANCIAL DATA
The following selected financial data of the Company as of and for the five
years ended December 31, 1996 (other than the ratios set forth below) have
been derived from the consolidated financial statements of the Company, which
have been audited by Deloitte & Touche LLP, independent auditors. The
following selected financial data of the Company as of and for the three
months ended March 31, 1996 and 1997 (other than the ratios set forth below)
have been derived from the unaudited consolidated financial statements of the
Company which, in the opinion of management of the Company, include all
adjustments, consisting only of normal recurring adjustments, necessary for a
fair presentation of such information. Data for the three months ended March
31, 1997 does not purport to be indicative of the results to be expected for
the fiscal year ending December 31, 1997. Per share data has been restated to
reflect the two-for-one common stock split effected by the Company on June 2,
1997. The following selected financial data should be read in conjunction
with, and is qualified by reference to, the Company's financial statements and
the related notes thereto which are incorporated by reference herein.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------------- ----------------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
---------- ---------- ---------- ---------- ---------- ---------- ----------
SELECTED BALANCE SHEET
INFORMATION (AT END (DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
OF PERIOD)
<S> <C> <C> <C> <C> <C> <C> <C>
Total assets........... $3,044,610 $2,910,295 $3,300,262 $3,004,496 $3,166,529 $2,663,542 $2,586,775
Investment securities.. 24,501 16,031 29,006 47,963 32,841 11,399 23,231
Mortgage-backed
securities............ 558,190 680,208 577,613 731,378 921,680 718,696 457,215
Loans receivable....... 2,292,277 2,043,266 2,474,717 2,062,268 2,054,563 1,776,820 1,943,346
Customer deposits...... 1,655,840 1,809,030 1,763,967 1,819,840 1,707,376 1,694,263 1,488,252
Borrowings............. 1,156,440 873,031 1,245,537 941,465 1,219,958 741,414 884,479
Stockholders' equity... 192,134 203,268 200,062 207,977 217,315 210,976 196,869
SELECTED RESULTS OF
OPERATIONS INFORMATION
Interest income........ $ 58,156 $ 53,409 $ 241,755 $ 216,463 $ 197,326 $ 191,526 $ 219,834
Interest expense....... (37,101) (37,195) (160,773) (160,547) (130,401) (121,850) (148,295)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest income.... 21,055 16,214 80,982 55,916 66,925 69,676 71,539
Provision for losses on
loans................. (565) (600) (1,898) (4,284) (2,367) (7,031) (24,953)
Gain (loss) on loans
and securities........ 925 (262) (1,453) (2,510) (1,081) 1,091 378
Other income........... 2,658 2,085 10,017 8,652 8,619 8,465 6,708
Equity in loss of real
estate joint ventures. -- -- -- -- -- -- (1,275)
Provision for losses on
real estate........... 448 53 103 (749) (145) (819) (1,872)
SAIF recapitalization
assessment............ -- -- (11,750) -- -- -- --
Other expenses......... (15,275) (10,575) (56,755) (59,879) (49,610) (48,976) (40,834)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income (loss) before
income tax expense.... 9,246 6,915 19,246 (2,854) 22,341 22,406 9,691
Income tax (expense)
benefit............... (3,984) (2,922) (8,277) 708 (7,828) (9,765) (3,596)
Cumulative effect of
accounting change..... -- -- -- -- -- -- 4,197
Extraordinary items,
net of tax............ -- -- -- (2,544) -- (132) (265)
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income (loss) $ 5,262 $ 3,993 $ 10,969 $ (4,690) $ 14,513 $ 12,509 $ 10,027
========== ========== ========== ========== ========== ========== ==========
Primary earnings (loss)
per share:
Income before
cumulative effect of
accounting change and
extraordinary items.. $ 0.39 $ 0.28 $ 0.79 $ (0.14) $ 1.01 $ 0.90 $ 0.44
Net income (loss)..... $ 0.39 $ 0.28 $ 0.79 $ (0.32) $ 1.01 $ 0.89 $ 0.73
Dividends per share.... $ 0.075 $ 0.075 $ 0.305 $ 0.30 $ 0.30 $ 0.30 $ 0.30
</TABLE>
5
<PAGE>
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
---------------- -------------------------------------------
1997 1996 1996 1995 1994 1993 1992
------- ------- ------- ------- ------- ------- -------
SELECTED OTHER
INFORMATION(1) (DOLLARS IN THOUSANDS EXCEPT PER SHARE AMOUNTS)
<S> <C> <C> <C> <C> <C> <C> <C>
Net interest margin.... 2.72% 2.21% 2.57% 1.86% 2.34% 2.74% 2.84%
Ratio of general and
administrative
expenses to average
assets................ 1.89% 1.45% 1.84% 1.84% 1.59% 1.78% 1.51%
Efficiency ratio....... 61.65% 58.68% 64.79% 88.30% 62.60% 59.98% 49.95%
Return on average
assets................ 0.68% 0.54% 0.34% (0.15)% 0.49% 0.47% 0.38%
Return on average
equity................ 10.72% 7.75% 5.39% (2.11)% 6.79% 6.14% 5.10%
Dividend payout ratio.. 19.23% 26.79% 38.61% (93.75)% 29.70% 33.71% 40.82%
Book value per share... $ 14.81 $ 14.73 $ 14.98 $ 14.64 $ 15.16 $ 14.95 $ 14.32
Tangible book value per
share................. $ 14.08 $ 14.36 $ 14.22 $ 14.23 $ 14.47 $ 14.08 $ 13.77
Average capital/average
assets................ 6.36% 6.97% 6.37% 7.17% 7.17% 7.61% 7.47%
Ratio of capital to
total assets.......... 6.31% 6.98% 6.06% 6.92% 6.86% 7.92% 7.61%
Nonperforming assets
("NPA")............... $22,758 $29,150 $24,310 $38,811 $50,577 $72,365 $69,301
Ratio of NPA to total
assets................ 0.75% 1.00% 0.74% 1.29% 1.60% 2.72% 2.68%
Troubled debt
restructurings
("TDR")............... $ 505 $ 3,623 $ 509 $15,641 $13,948 $14,188 $20,791
Ratio of TDR to total
assets................ 0.02% 0.12% 0.02% 0.52% 0.44% 0.53% 0.80%
</TABLE>
- -------
(1) The selected other information is based upon data as of the end of and for
the respective periods, except that average assets, average equity and
average capital have been calculated by averaging the relevant month-end
amounts for the respective periods.
SELECTED PRO FORMA FINANCIAL DATA
The following selected unaudited pro forma financial data combines the
historical consolidated results of operations of the Company with the
historical consolidated results of operations of AFEH as if the merger of AFEH
into the Company had occurred as of January 1, 1996. The acquisition will be
accounted for using the purchase method of accounting. The following selected
unaudited pro forma financial data is based upon a number of assumptions and
estimates, and is subject to a number of uncertainties, relating to the
proposed acquisition of AFEH by the Company and related matters, including,
among other things, estimates, assumptions and uncertainties regarding (i) the
amount of goodwill which will arise from the acquisition, (ii) the amount of
expense accruals for direct acquisition costs and the amount of expenses
associated with branch closings, settlements of existing contracts and
severance pay, and (iii) the amount of and interest rate on anticipated
additional borrowings. The pro forma data also assumes that the Company will
issue 8,077,000 shares of its common stock to the Partnership in connection
with the proposed acquisition of AFEH. See "The Company." However, the actual
number of shares issued will depend upon the market price of the Company's
common stock prior to the acquisition and the number of shares issued
therefore may be more or less than the foregoing amount. Accordingly, the
foregoing selected unaudited pro forma financial data does not purport to be
indicative of the actual results of operations that would have been achieved
had the merger of AFEH into the Company in fact occurred on the date
indicated, nor does it purport to be indicative of the results of operations
that may be achieved in the future. In addition, the consummation of the
acquisition of AFEH is subject to satisfaction of a number of conditions, and
no assurance can be given that the acquisition will be consummated on the
currently anticipated terms or at all. See "The Company." The following
selected unaudited pro forma financial data should be read in conjunction
with, and is qualified by reference to, the pro forma condensed combined
financial statements and related notes thereto and the historical financial
statements of the Company and AFEH and related notes thereto incorporated, or
to be incorporated, by reference herein.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED YEAR ENDED
MARCH 31, 1997 DECEMBER 31, 1996
-------------- -----------------
(DOLLARS IN THOUSANDS
EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
Net interest income....................... $34,022 $132,194
Net income................................ $ 8,273 $ 30,193
Net income per share...................... $ 0.38 $ 1.37
</TABLE>
6
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be subordinated unsecured obligations of the
Company issued in one or more series under an Indenture (the "Indenture") to
be entered into between the Company and a trustee (the "Trustee") whose name
will be set forth in the applicable Prospectus Supplement. The form of the
Indenture has been filed as an exhibit to the Registration Statement. The
terms of any series of Debt Securities will be those set forth in the
Indenture and such Debt Securities and those made part of the Indenture by the
Trust Indenture Act. The summary of certain provisions of the Indenture and
the Debt Securities set forth below and the summary of certain terms of a
particular series of Debt Securities set forth in the applicable Prospectus
Supplement do not purport to be complete and are subject to and are qualified
in their entirety by reference to all of the provisions of the Indenture,
which provisions of the Indenture (including defined terms) are incorporated
herein by reference. Certain capitalized terms used herein and not defined are
defined in the Indenture. Likewise, the description of certain provisions of
federal and state law set forth below does not purport to be complete. As used
in this "Description of Debt Securities," all references to the "Company"
shall mean Bay View Capital Corporation, excluding, unless the context shall
otherwise require, its subsidiaries.
The following description of Debt Securities sets forth certain general
terms and provisions of the series of Debt Securities to which any Prospectus
Supplement may relate. Certain other specific terms of any particular series
of Debt Securities will be described in the applicable Prospectus Supplement.
To the extent that any particular terms of the Debt Securities described in a
Prospectus Supplement differ from any of the terms described herein, then such
terms described herein shall be deemed to have been superseded by such
Prospectus Supplement.
GENERAL
The Debt Securities may be issued from time to time in one or more series.
The Indenture does not limit the aggregate principal amount of Debt Securities
which may be issued thereunder and provides that Debt Securities of any series
may be issued thereunder up to an aggregate principal amount which may be
authorized from time to time by the Company. Reference is made to the
applicable Prospectus Supplement relating to the series of Debt Securities
offered thereby for specific terms, including (where applicable): (1) the
title or designation of such Debt Securities; (2) any limit on the aggregate
principal amount of such Debt Securities; (3) the price or prices (expressed
as a percentage of the principal amount thereof) at which such Debt Securities
will be issued; (4) the date or dates on which the principal of such Debt
Securities will be payable, or the method or methods, if any, by which such
date or dates will be determined; (5) the rate or rates (which may be fixed or
variable) at which such Debt Securities will bear interest, if any, or the
method or methods, if any, by which such rate or rates are to be determined,
the date or dates, if any, from which such interest will accrue, or the method
or methods, if any, by which such date or dates are to be determined, and
whether and under what circumstances Additional Amounts on such Debt
Securities will be payable, and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve 30-day months; (6)
the dates on which such interest, if any, will be payable and the record
dates, if any, therefor; (7) the place or places where the principal of,
premium, if any, and interest, if any, on such Debt Securities will be payable
and the place or places where such Debt Securities may be surrendered for
registration of transfer and exchange, if other than The City of New York; (8)
if applicable, the date or dates on which, the period or periods within which,
the price or prices at which and the other terms and conditions upon which
such Debt Securities may be redeemed at the option of the Company or are
subject to repurchase at the option of the holders; (9) the terms of any
sinking fund or analogous provision; (10) if other than U.S. dollars, the
Currency for which the Debt Securities may be purchased and the Currency in
which the payment of principal thereof and premium, if any, and interest, if
any, thereon may be made, and the ability, if any, of the Company or the
holders of Debt Securities to have payments made in any Currency other than
those in which the Debt Securities are stated to be payable; (11) any addition
to, or modification or deletion of, any covenant or Event of Default with
respect to such Debt Securities; (12) whether any such Debt Securities are to
be issuable in registered or bearer form or both and, if in bearer form, the
terms and conditions relating thereto and any limitations on issuance of such
Bearer Securities (including in exchange for Registered Securities of the same
series); (13) whether any such Debt Securities will be issued in temporary
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or permanent global form and, if so, the identity of the depositary for such
global Debt Security; (14) whether and under what circumstances the Company
will pay Additional Amounts (as contemplated by the Indenture) on such Debt
Securities to any holder who is a United States Alien (as defined in the
Indenture, as such definition may be modified) in respect of any tax,
assessment or other governmental charge and, if so, whether the Company will
have the option to redeem such Debt Securities rather than pay such Additional
Amounts; (15) the person to whom any interest on any Registered Securities of
the series shall be payable, if other than the person in whose name the
Registered Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest, the manner
in which, or the person to whom, any interest on any Bearer Security of the
series shall be payable, if other than upon presentation and surrender of the
coupons appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary global Debt
Security will be paid if other than in the manner provided in the Indenture;
(16) the portion of the principal amount of such Debt Securities which shall
be payable upon acceleration thereof if other than the full principal amount
thereof; (17) the authorized denominations in which such Debt Securities will
be issuable, if other than denominations of $1,000 and any integral multiple
thereof (in the case of Registered Securities) or $5,000 (in the case of
Bearer Securities); (18) whether the amount of payments of principal of,
premium, if any, and interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method or methods (any
such Debt Securities being hereinafter called "Indexed Securities") and the
manner in which such amounts will be determined; and (19) any other terms of
such Debt Securities.
As used in this Prospectus and any Prospectus Supplement relating to the
offering of any Debt Securities, references to the principal of and premium,
if any, and interest, if any, on such Debt Securities will be deemed to
include mention of the payment of Additional Amounts, if any, required by the
terms of such Debt Securities in such context.
Debt Securities may be issued as Original Issue Discount Securities (as
defined in the Indenture) to be sold at a substantial discount below their
principal amount. In the event of an acceleration of the maturity of any
Original Issue Discount Security, the amount payable to the holder thereof
upon such acceleration will be determined in the manner described in the
applicable Prospectus Supplement. As noted elsewhere herein, the maturity of
the Debt Securities may be accelerated only in the event of bankruptcy,
insolvency or reorganization of the Company or any Major Bank Subsidiary (as
defined herein) of the Company. See "--Events of Default; Limited Rights of
Acceleration." Material federal income tax and other considerations applicable
to Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
If the purchase price of any Debt Securities is payable in a Currency other
than U.S. dollars or if principal of, or premium, if any, or interest, if any,
on any of the Debt Securities is payable in any Currency other than U.S.
dollars, the specific terms and other information with respect to such Debt
Securities and such foreign Currency will be specified in the Prospectus
Supplement relating thereto.
Under the Indenture, the terms of the Debt Securities of any series may
differ and the Company, without the consent of the holders of the Debt
Securities of any series, may reopen a previous series of Debt Securities and
issue additional Debt Securities of such series or establish additional terms
of such series.
REGISTRATION, TRANSFER, PAYMENT AND PAYING AGENT
Unless otherwise indicated in the applicable Prospectus Supplement, each
series of Debt Securities will be issued in registered form only, without
coupons. The Indenture, however, provides that the Company may also issue Debt
Securities in bearer form only, or in both registered and bearer form. Bearer
Securities shall not be offered, sold, resold or delivered in connection with
their original issuance in the United States or to any United States person
(as defined below) other than offices located outside the United States of
certain United States financial institutions. As used herein, "United States
person" means any citizen or resident of the United States, any corporation,
partnership or other entity created or organized in or under the laws of the
United States, any estate the income of which is subject to United States
federal income taxation regardless of its source, or any trust whose
administration is subject to the primary supervision of a United States court
and which has one or
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more United States fiduciaries who have the authority to control all
substantial decisions of the trust, and "United States" means the United
States of America (including the states thereof and the District of Columbia),
its territories, its possessions and other areas subject to its jurisdiction.
Purchasers of Bearer Securities will be subject to certification procedures
and may be affected by certain limitations under United States tax laws. Such
procedures and limitations will be described in the Prospectus Supplement
relating to the offering of the Bearer Securities.
Unless otherwise indicated in the applicable Prospectus Supplement,
Registered Securities will be issued in denominations of $1,000 or any
integral multiple thereof, and Bearer Securities will be issued in
denominations of $5,000.
Unless otherwise indicated in the applicable Prospectus Supplement, the
principal, premium, if any, and interest, if any, of or on the Debt Securities
will be payable, and Debt Securities may be surrendered for registration of
transfer or exchange, at an office or agency to be maintained by the Company
in the Borough of Manhattan, The City of New York, provided that payments of
interest with respect to any Registered Security may be made at the option of
the Company by check mailed to the address of the person entitled thereto or
by transfer to an account maintained by the payee with a bank located in the
United States. No service charge shall be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest, if any, on Bearer Securities
will be made, subject to any applicable laws and regulations, at such office
or agency outside the United States as specified in the Prospectus Supplement
and as the Company may designate from time to time. Unless otherwise indicated
in the applicable Prospectus Supplement, payment of interest due on Bearer
Securities on any Interest Payment Date will be made only against surrender of
the coupon relating to such Interest Payment Date. Unless otherwise indicated
in the applicable Prospectus Supplement, no payment of principal, premium or
interest with respect to any Bearer Security will be made at any office or
agency in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the
United States; provided, however, that if amounts owing with respect to any
Bearer Securities shall be payable in U.S. dollars, payment with respect to
any such Bearer Securities may be made at the Corporate Trust Office of the
Trustee or at any office or agency designated by the Company in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount
of such principal, premium or interest at all offices outside of the United
States maintained for such purpose by the Company is illegal or effectively
precluded by exchange controls or similar restrictions.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company will not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the
opening of business 15 days before any selection of Debt Securities of that
series of like tenor to be redeemed and ending at the close of business on the
day of that selection; (ii) register the transfer of or exchange any
Registered Security, or portion thereof, called for redemption, except the
unredeemed portion of any Registered Security being redeemed in part; (iii)
exchange any Bearer Security called for redemption, except to exchange such
Bearer Security for a Registered Security of that series and like tenor that
is simultaneously surrendered for redemption; or (iv) issue, register the
transfer of or exchange any Debt Security which has been surrendered for
repayment at the option of the holder, except the portion, if any, of such
Debt Security not to be so repaid.
RANKING OF DEBT SECURITIES; HOLDING COMPANY STRUCTURE
The Subordinated Debt Securities will be unsecured obligations of the
Company and will be subordinated in right of payment as described below under
"-- Subordination of Debt Securities."
The Debt Securities are obligations exclusively of the Company. The Company
is a holding company, substantially all of whose consolidated assets are held
by its subsidiaries. Accordingly, the cash flow of the Company and the
consequent ability to service its debt, including the Debt Securities, are
primarily dependent
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upon the results of operations of such subsidiaries. Various statutory and
regulatory restrictions,, however, limit directly or indirectly the amount of
dividends the Bank and CTL can pay, and also restrict the Bank and CTL from
making investments in or loans to the Company.
In particular, savings associations, such as the Bank, that before and after
a proposed capital distribution meet their regulatory capital requirements,
may make capital distributions during any calendar year equal to the greater
of (i) 100% of net income for the year-to-date plus 50% of the amount by which
the [lesser] of the association's tangible, core or risk-based capital exceeds
its regulatory capital requirement for such capital component, as measured at
the beginning of the calendar year, or (ii) 75% of its net income for the most
recent four quarter period. The Bank currently may pay dividends in accordance
with this general authority. However, an association deemed to be in need of
more than normal supervision by the OTS may have its dividend authority
restricted by the OTS. In general, savings associations proposing to make any
capital distribution need only submit written notice to the OTS 30 days prior
to such distribution. The OTS may object to the distribution during that 30-
day period notice based on safety and soundness concerns.
Under California law, a California-chartered thrift and loan, such as CTL,
is not permitted to declare dividends on its capital stock unless it has at
least $750,000 of unimpaired capital plus additional capital of $50,000 for
each branch office maintained. In addition, under California law, no
California corporation, including CTL and CGC, may pay dividends unless, in
general, (i) the payment would not exceed the corporation's retained earnings
or (ii) in the alternative, after giving effect to the dividend, and subject
to certain adjustments and exceptions, (A) the sum of the corporation's assets
(exclusive of goodwill, capitalized research and development expenses and
deferred charges) would not be less than 125% of its liabilities (not
including deferred taxes, deferred income and other deferred credits) and (B)
if the corporation classifies its assets into current and fixed assets, the
current assets of the corporation would be at least equal to its current
liabilities or, if the corporation's average earnings before income taxes and
interest expense for the two preceding fiscal years were less than its average
interest expense for such fiscal years, at least equal to 125% of its current
liabilities. In addition, a California corporation is not permitted to make a
dividend or other distribution to its shareholders if it is, or as a result
thereof would be, likely to be unable to meet its liabilities as they mature.
A California corporation must also meet certain additional financial tests to
pay dividends on any junior class or series of stock if it has outstanding any
preferred or other senior class or series of stock.
Neither the Bank nor CTL may pay a dividend if the institution does not meet
its minimum regulatory capital requirements prior to, or as a result of, such
dividend unless it receives prior regulatory approval.
Because the Company is a holding company, the Debt Securities will be
effectively subordinated to all existing and future liabilities, including
indebtedness, customer deposits, trade payables, guarantees and lease
obligations, of the Company's subsidiaries. Therefore, the Company's rights
and the rights of its creditors, including the holders of the Debt Securities,
to participate in the assets of any subsidiary upon the latter's liquidation
or reorganization will be subject to the prior claims of such subsidiary's
creditors and, if applicable, its depositors, except to the extent that the
Company may itself be a creditor with recognized claims against the
subsidiary, in which case the claims of the Company would still be effectively
subordinate to any security interest in, or mortgages or other liens on, the
assets of such subsidiary and would be subordinate to any indebtedness of such
subsidiary senior to that held by the Company. In that regard, in the event
that a receiver or conservator is appointed for any subsidiary of the Company
whose deposits are insured by the Federal Deposit Insurance Corporation (the
"FDIC"), such as the Bank, the Federal Deposit Insurance Act recognizes a
priority in favor of the holders of withdrawable deposits (including the FDIC
as subrogee or transferee) over general creditors. Thus, in the event of a
conservatorship or receivership of such a subsidiary, claims for customer
deposits would have a priority over any claims the Company may itself have as
a creditor of such subsidiary. The Indenture does not limit the amount of
indebtedness or other liabilities that may be incurred by the Company and its
subsidiaries. See "--Absence of Limitation on Indebtedness and Liens; Absence
of Event Risk Protection."
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DEBT SECURITIES INTENDED TO QUALIFY AS TIER 2 CAPITAL
It is currently intended that the Debt Securities would qualify, in the
event the Company were to become a bank holding company (which would occur if
the Bank were to convert from a federal savings bank to a commercial bank or
if the Company were to acquire control of a commercial bank), as Tier 2
Capital under the guidelines established by the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board") for bank holding
companies. The guidelines set forth specific criteria for subordinated debt to
qualify as Tier 2 Capital. Among other things, the subordinated debt must: (i)
be unsecured; (ii) have a minimum average maturity of five years; (iii) be
subordinated in right of payment; (iv) not contain provisions permitting the
holders thereof to accelerate payment of principal prior to maturity except in
the event of bankruptcy, insolvency or reorganization of the issuer or a major
bank subsidiary of the issuer; and (v) not contain provisions that would
adversely affect liquidity or unduly restrict management's flexibility to
operate the organization, particularly in times of financial difficulty, such
as limitations on additional secured or senior borrowings, sales or
dispositions of assets or changes in control. See "--Events of Default;
Limited Rights of Acceleration" and "--Subordination."
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities that will be deposited with, or on
behalf of, a depositary (the "Depositary") identified in the Prospectus
Supplement relating to such series. Global Debt Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
Unless and until it is exchanged in whole or in part for individual
certificates evidencing Debt Securities in definitive form, a global Debt
Security may not be transferred except as a whole by the Depositary for such
global Debt Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor of such Depositary or a nominee
of such successor.
The specific terms of the depositary arrangement with respect to a series of
global Debt Securities and certain limitations and restrictions relating to a
series of global Bearer Securities will be described in the Prospectus
Supplement relating to such series.
OUTSTANDING DEBT SECURITIES
In determining whether the holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the Indenture, (i) the portion of
the principal amount of an Original Issue Discount Security that shall be
deemed to be outstanding for such purposes shall be that portion of the
principal amount thereof that could be declared to be due and payable upon a
declaration of acceleration thereof pursuant to the terms of such Original
Issue Discount Security as of the date of such determination, (ii) the
principal amount of any Indexed Security that shall be deemed to be
outstanding for such purpose shall be the principal face amount of such
Indexed Security determined on the date of its original issuance, (iii) the
principal amount of a Debt Security denominated in a Currency other than U.S.
dollars shall be the U.S. dollar equivalent, determined on the date of
original issue of such Debt Security, of the principal amount of such Debt
Security and (iv) any Debt Security owned by the Company or any obligor on
such Debt Security or any Affiliate of the Company or such other obligor shall
be deemed not to be outstanding.
REDEMPTION AND REPURCHASE
The Debt Securities of any series may be redeemable at the option of the
Company, may be subject to mandatory redemption pursuant to a sinking fund or
otherwise, or may be subject to repurchase by the Company at the option of the
holders, in each case upon the terms, at the times and at the prices set forth
in the applicable Prospectus Supplement. However, the Company currently does
not intend to issue Debt Securities with redemption or repurchase features to
the extent such features would prevent the Debt Securities from qualifying as
Tier 2 Capital under the Federal Reserve Board's guidelines. See "--Debt
Securities Intended to Qualify as Tier 2 Capital."
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ABSENCE OF LIMITATION ON INDEBTEDNESS AND LIENS; ABSENCE OF EVENT RISK
PROTECTION
The Indenture does not limit the amount of indebtedness, guarantees or other
liabilities that may be incurred by the Company and its subsidiaries and does
not prohibit the Company and its subsidiaries from creating or assuming liens
on their property (including capital stock of the Bank and other subsidiaries
of the Company). The Indenture does not require the maintenance of any
financial ratios by, or specified levels of net worth, revenues, income, cash
flow or liquidity of, the Company. The Indenture does not contain provisions
which would give holders of the Debt Securities the right to require the
Company to repurchase their Debt Securities in the event of a takeover,
recapitalization or similar restructuring or change in control of the Company.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Indenture provides that the Company shall not, in any transaction or
series of related transactions, consolidate with or merge into any Person or
sell, assign, transfer, lease or otherwise convey all or substantially all its
properties and assets to any Person unless (a) either the Company shall be the
continuing entity, or the successor Person (if other than the Company) is a
corporation which is organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and shall
expressly assume the due and punctual payment of the principal of, premium, if
any, and interest, if any, on all the Debt Securities outstanding under the
Indenture and the performance of the Company's other obligations under the
Indenture and the Debt Securities outstanding thereunder; (b) immediately
after giving effect to such transaction, no Event of Default under the
Indenture, and no event which, after notice or lapse of time or both would
become an Event of Default under the Indenture, shall have happened and be
continuing; and (c) certain other conditions are met.
Upon any such merger, consolidation, sale, assignment, transfer, lease or
conveyance in which the Company is not the continuing corporation, the
successor corporation formed by such consolidation or into which the Company
is merged or to which such sale, assignment, transfer, lease or other
conveyance is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under the Indenture with the same effect
as if such successor corporation had been named as the Company therein and
thereafter (except in the case of a lease) the Company shall be released from
its obligations under the Indenture and the Debt Securities.
EVENTS OF DEFAULT; LIMITED RIGHTS OF ACCELERATION
Unless otherwise specified in the applicable Prospectus Supplement, an Event
of Default with respect to the Debt Securities of any series is defined in the
Indenture as being: (i) default for 30 days in payment of any interest with
respect to any Debt Security of such series; (ii) default in payment of
principal or any premium with respect to any Debt Security of such series when
due upon maturity, redemption, repurchase at the option of the holder or
otherwise; (iii) default in making any sinking fund payment or any payment
under any analogous provision when due with respect to any Debt Security of
such series; (iv) default by the Company in the performance, or breach, of any
other covenant or warranty in the Indenture (other than a covenant or warranty
included therein solely for the benefit of series of Debt Securities other
than that series) or any Debt Security of such series which shall not have
been remedied for a period of 30 days after notice to the Company by the
Trustee or the holders of not less than 25% in aggregate principal amount of
the Debt Securities of such series then outstanding; (v) certain events of
bankruptcy, insolvency or reorganization of the Company or any Major Bank
Subsidiary of the Company; or (vi) any other Event of Default established for
the Debt Securities of such series. No Event of Default with respect to any
particular series of Debt Securities necessarily constitutes an Event of
Default with respect to any other series of Debt Securities. The Indenture
provides that the Trustee may withhold notice to the holders of the Debt
Securities of any series of the occurrence of a default with respect to the
Debt Securities of such series (except a default in payment of principal,
premium, if any, interest, if any, or sinking fund payments, if any) if the
Trustee considers it in the interest of the holders to do so.
No Event of Default described in clauses (i), (ii), (iii), (iv) or (vi) of
the preceding paragraph permits acceleration of the payment of the principal
of the Debt Securities. The Indenture provides that, if an Event of Default
described under clause (v) of the preceding paragraph shall have occurred and
be continuing, either the
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Trustee or the holders of at least 25% in principal amount of the Debt
Securities of any series then outstanding may declare the principal amount (or
if any Debt Securities of such series are Original Issue Discount Securities,
such lesser amount as may be specified in the terms thereof) of all the Debt
Securities of such series to be due and payable immediately, but upon certain
conditions such declaration and its consequences may be rescinded and annulled
by the holders of a majority in principal amount of the Debt Securities of
such series then outstanding.
As described in the preceding paragraph, there is no right of acceleration
in the case of, among other things, (i) a default in the payment of the
principal of, or premium, if any, or interest, if any, on, or sinking fund
payments, if any, with respect to, the Debt Securities, (ii) a default in the
performance of any other covenant of the Company in the Indenture or the Debt
Securities, or (iii) a default in the payment or acceleration of any other
indebtedness of the Company or any of its subsidiaries. In the case of a
default in the payment of principal of, or premium, if any, or interest, if
any, on any Debt Securities, the Trustee, subject to certain limitations and
conditions, may institute a judicial proceeding for the collection thereof.
The limitation on acceleration described above is intended, in the event the
Company were to become a bank holding company (which would occur if the Bank
were to convert from a federal savings bank to a commercial bank or if the
Company were to acquire control of a commercial bank), to permit the Debt
Securities to qualify as Tier 2 Capital under the guidelines established by
the Federal Reserve Board for bank holding companies. See "--Debt Securities
Intended to Qualify as Tier 2 Capital."
Subject to the provisions of Trust Indenture Act requiring the Trustee,
during the continuance of an Event of Default under the Indenture, to act with
the requisite standard of care, the Trustee is under no obligation to exercise
any of its rights or powers under the Indenture at the request or direction of
any of the holders of Debt Securities of any series unless such holders have
offered the Trustee reasonable indemnity. Subject to the foregoing, holders of
a majority in principal amount of the then outstanding Debt Securities of any
series issued under the Indenture shall have the right, subject to certain
limitations, to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee under the Indenture with respect to
such series. The Indenture requires the annual filing by the Company with the
Trustee of a certificate as to whether or not the Company is in default under
the terms of the Indenture.
Notwithstanding any other provision of the Indenture, the holder of any Debt
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and interest, if any, on such
Debt Security on the respective due dates therefor and to institute suit for
enforcement of any such payment, and such right shall not be impaired without
the consent of such holder.
CERTAIN DEFINITIONS
As used in the Indenture, the following terms shall have the meanings set
forth below:
"Major Bank Subsidiary" means (i) the Bank and any successor to all or
substantially all of the business of the Bank, in each case so long as it
shall be a Subsidiary of the Company and (ii) any Significant Subsidiary of
the Company which is a bank, trust company, savings bank, savings and loan
association, savings association or other banking or thrift institution.
"Significant Subsidiary" means, with respect to any person, any Subsidiary
of such person which is a "significant subsidiary" as defined in Rule 1-02(w)
of Regulation S-X promulgated under the Securities Act of 1933 (as in effect
on the date of the Indenture), but substituting 50 percent for 10 percent in
each place that 10 percent appears in such Rule.
"Subsidiary" means, with respect to any person (the "Subject Person"), any
corporation or other person at least a majority of the equity ownership
interests or Voting Stock of which is at the time owned, directly or
indirectly, by the Subject Person and/or one or more other Subsidiaries of the
Subject Person.
"Voting Stock" means, with respect to any person, any class or classes or
series or series of capital stock of such person pursuant to which the holders
thereof have the general voting power under ordinary circumstances
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to elect at least a majority of the board of directors, managers or trustees
of such person (irrespective of whether or not, at the time, capital stock of
any other class or classes or series or series shall have, or might have,
voting power by reason of the happening of any contingency).
MODIFICATION, WAIVERS AND MEETINGS
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in principal amount of the
outstanding Debt Securities of each series issued under the Indenture and
affected by a modification or amendment, to modify or amend any of the
provisions of the Indenture or of the Debt Securities of such series or the
rights of the holders of the Debt Securities of such series under the
Indenture, provided that no such modification or amendment shall, among other
things, (i) change the stated maturity of the principal of, or premium, if
any, or any installment of interest, if any, on any Debt Securities issued
under the Indenture or reduce the principal amount thereof or any premium
thereon, or reduce the rate of interest thereon, or reduce the amount of
principal of any Original Issue Discount Securities that would be due and
payable upon an acceleration of the maturity thereof, or change any place
where, or the Currency in which, any Debt Securities issued under the
Indenture are payable, or impair the holder's right to institute suit to
enforce the payment of any such Debt Securities on or after the stated
maturity thereof, or make any change that adversely affects the right, if any,
to convert or exchange such Debt Securities for other securities in accordance
with their terms, or (ii) reduce the aforesaid percentage of Debt Securities
of any series issued under the Indenture, the consent of the holders of which
is required for any such modification or amendment or the consent of whose
holders is required for any waiver (of compliance with certain provisions of
the Indenture or certain defaults thereunder and their consequences) or reduce
the requirements for a quorum or voting at a meeting of holders of such Debt
Securities or (iii) modify any of the provisions of Article Sixteen thereof
(relating to subordination of the Debt Securities) or the definition of Senior
Indebtedness in a manner adverse to the holders of the Debt Securities,
without in each such case obtaining the consent of the holder of each
outstanding Debt Security issued under the Indenture so affected.
The Indenture also contains provisions permitting the Company and the
Trustee, without the consent of the holders of any Debt Securities issued
thereunder, to modify or amend the Indenture in order to, among other things,
(a) add to the Events of Default or the covenants of the Company for the
benefit of the holders of all or any series of Debt Securities issued under
the Indenture; (b) to add or change any provisions of the Indenture to
facilitate the issuance of Bearer Securities; (c) to establish the form or
terms of Debt Securities of any series and any related coupons; (d) to cure
any ambiguity or correct or supplement any provision therein which may be
inconsistent with other provisions therein or to make any other provisions
with respect to matters or questions arising under the Indenture, which in any
case described in this clause (d) shall not adversely affect the interests of
the holders of any series of Debt Securities issued thereunder in any material
respect; or (e) to amend or supplement any provision contained in the
Indenture, provided that such amendment or supplement does not apply to any
outstanding Debt Securities first issued prior to the date of such amendment
or supplement and entitled to the benefits of such provision.
The holders of a majority in aggregate principal amount of the outstanding
Debt Securities of any series may waive compliance by the Company with certain
restrictive provisions, if any, of the Indenture, including the covenants, if
any, described in the applicable Prospectus Supplement. The Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
any series may, on behalf of all holders of Debt Securities of that series,
waive any past default under the Indenture with respect to Debt Securities of
that series and its consequences, except a default in the payment of the
principal of, or premium, if any, or interest, if any, on any Debt Securities
of such series or in respect of a covenant or provision which cannot be
modified or amended without the consent of the holder of each outstanding Debt
Securities of such series affected.
The Indenture contains provisions for convening meetings of the holders of
Debt Securities of a series issued thereunder. A meeting may be called at any
time by the Trustee, and also, upon request, by the Company or the holders of
at least 10% in principal amount of the outstanding Debt Securities of such
series, in any such
14
<PAGE>
case upon notice given in accordance with the provisions of the Indenture.
Except for any consent which must be given by the holder of each outstanding
Debt Security affected thereby, as described above, any resolution presented
at a meeting or adjourned meeting duly reconvened at which a quorum (as
described below) is present may be adopted by the affirmative vote of the
holders of a majority in principal amount of the outstanding Debt Securities
of that series; provided, however, that any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which may be made, given or taken by the holders of a specified
percentage, which is more or less than a majority, in principal amount of the
outstanding Debt Securities of a series may be adopted at a meeting or
adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the holders of such specified percentage in principal
amount of the outstanding Debt Securities of that series. Any resolution
passed or decision taken at any meeting of holders of Debt Securities of any
series duly held in accordance with the Indenture will be binding on all
holders of Debt Securities of that series and the related coupons. The quorum
at any meeting called to adopt a resolution, and at any reconvened meeting,
will be persons holding or representing a majority in principal amount of the
outstanding Debt Securities of a series, subject to certain exceptions.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Upon the direction of the Company, the Indenture shall cease to be of
further effect with respect to any series of Debt Securities issued thereunder
specified by the Company (subject to the survival of certain provisions
thereof, including the obligation, if any, to pay Additional Amounts) when
(i) either (A) all outstanding Debt Securities of such series and, in the case
of Bearer Securities, all coupons appertaining thereto, have been delivered to
the Trustee for cancellation (subject to certain exceptions) or (B) all Debt
Securities of such series and, if applicable, any coupons appertaining
thereto, have become due and payable or will become due and payable at their
stated maturity within one year or are to be called for redemption within one
year and the Company has deposited with the Trustee, in trust, funds in U.S.
dollars or in such Foreign Currency in which such Debt Securities are payable
in an amount sufficient to pay the entire indebtedness on such Debt Securities
in respect of principal (and premium, if any) and interest, if any, to the
date of such deposit (if such Debt Securities have become due and payable) or
to the Maturity thereof, as the case may be, (ii) the Company has paid all
other sums payable under the Indenture with respect to the Debt Securities of
such series, and (iii) certain other conditions are met. If the Debt
Securities of any such series provide for the payment of Additional Amounts,
the Company will remain obligated, following such deposit, to pay Additional
Amounts on such Debt Securities.
Unless otherwise provided in the applicable Prospectus Supplement, the
Company may elect with respect to any series of Debt Securities either (a) to
defease and be discharged from any and all obligations with respect to such
Debt Securities (except for, among other things, the obligation to pay
Additional Amounts, if any, upon the occurrence of certain events of taxation,
assessment or governmental charge with respect to payments on such Debt
Securities, and the obligations to register the transfer or exchange of such
Debt Securities, to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities, to maintain an office or agency in respect of such Debt
Securities, to hold moneys for payment in trust, and, if applicable, to
exchange or convert such Debt Securities into other securities in accordance
with their terms) ("defeasance"), or (b) to be released from its obligations
with respect to such Debt Securities under certain restrictive covenants, if
any, set forth in the applicable Prospectus Supplement, and any omission to
comply with such obligations shall not constitute a default or an Event of
Default with respect to the Debt Securities of such series ("covenant
defeasance"), in either case upon the irrevocable deposit with the Trustee (or
other qualifying trustee), in trust for such purpose, of an amount, in U.S.
dollars or in such Foreign Currency in which such Debt Securities are payable
at Stated Maturity or, if applicable, upon redemption, and/or Government
Obligations (as defined in the Indenture) which through the payment of
principal and interest in accordance with their terms will provide money, in
an amount sufficient to pay the principal of and any premium and any interest
on such Debt Securities, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor or the applicable redemption
date, as the case may be.
15
<PAGE>
Such defeasance or covenant defeasance shall only be effective if, among
other things, (i) it shall not result in a breach or violation of, or
constitute a default under, the Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound, (ii) the
Company has delivered to the Trustee an opinion of counsel (as specified in
the Indenture) to the effect that the holders of such Debt Securities will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance or covenant defeasance, as the case may be, and will be
subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance or covenant
defeasance had not occurred, (iii) if the cash and Government Obligations
deposited are sufficient to pay the outstanding Debt Securities of such series
provided such Debt Securities are redeemed on a particular redemption date,
the Company shall have given the Trustee irrevocable instructions to redeem
such Debt Securities on such date and (iv) it is effected during the last year
prior to the final stated maturity of such Debt Securities. It shall also be a
condition to the effectiveness of defeasance and covenant defeasance that no
Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to Debt Securities of such series
shall have occurred and been continuing on the date of, or, solely in the case
of Events of Default described in clause (v) of the first paragraph under "--
Events of Default" above, during the period ending on the 91st day after the
date of, such deposit into trust.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any
series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to the Indenture or the terms of such Debt Security to
receive payment in a Currency other than that in which such deposit has been
made in respect of such Debt Security, or (b) a Conversion Event (as defined
below) occurs in respect of the Foreign Currency in which such deposit has
been made, the indebtedness represented by such Debt Security shall be deemed
to have been, and will be, fully discharged and satisfied through the payment
of the principal of (and premium, if any) and interest, if any, on such Debt
Security as such Debt Security becomes due out of the proceeds yielded by
converting the amount so deposited in respect of such Debt Security into the
Currency in which such Debt Security becomes payable as a result of such
election or such Conversion Event based on (x) in the case of payments made
pursuant to clause (a) above, the applicable market exchange rate for such
Foreign Currency in effect on the second business day prior to such payment
date, or (y) with respect to a Conversion Event, the applicable market
exchange rate for such Foreign Currency in effect (as nearly as feasible) at
the time of the Conversion Event.
"Conversion Event" means the cessation of use of (i) a Foreign Currency both
by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement
of transactions by public institutions of or within the European Union or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established.
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because
of the occurrence of any Event of Default other than an Event of Default with
respect to any covenant as to which there has been covenant defeasance, the
amount of monies and/or Government Obligations deposited with the Trustee to
effect such covenant defeasance may not be sufficient to pay amounts due on
such Debt Securities at the time of any acceleration resulting from such Event
of Default. However, the Company would remain liable to make payment of such
amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting or restricting such defeasance or covenant defeasance with
respect to the Debt Securities of a particular series.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
16
<PAGE>
REGARDING THE TRUSTEES
The Trust Indenture Act of 1939 contains limitations on the rights of a
trustee, should it become a creditor of the Company, to obtain payment of
claims in certain cases or to realize on certain property received by it in
respect of any such claims, as security or otherwise. The Trustee is permitted
to engage in other transactions with the Company and its subsidiaries from
time to time, provided that if the Trustee acquires any conflicting interest
it must eliminate such conflict upon the occurrence of an Event of Default
under the Indenture, or else resign.
SUBORDINATION
The payment of the principal of, premium, if any, and interest, if any, on
the Debt Securities will be subordinated, to the extent and in the manner set
forth in the Indenture, in right of payment to the prior payment in full of
all Senior Indebtedness which may at any time and from time to time be
outstanding. Unless otherwise provided in the applicable Prospectus Supplement
with respect to an issue of Debt Securities, in the event of any distribution
of assets of the Company upon any dissolution, winding up, liquidation or
reorganization of the Company, (i) all Senior Indebtedness shall first be paid
in full, or such payment shall be provided for, before any payment on account
of the principal of, or premium, if any, or interest, if any, on the Debt
Securities is made, (ii) any payment or distribution of assets of the Company
to which the holders of the Debt Securities would be entitled except for the
subordination provisions of the Indenture shall be paid by the liquidating
trustee or other person making such distribution directly to the holders of
Senior Indebtedness or on their behalf, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness, and (iii) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company is received by the Trustee or
the holders of any of the Debt Securities before all Senior Indebtedness is
paid in full, such payment or distribution will be paid over to the holders of
such Senior Indebtedness or on their behalf for application to the payment of
all such Senior Indebtedness remaining unpaid until all such Senior
Indebtedness has been paid in full or such payment provided for, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness. Subject to the payment in full of all Senior Indebtedness upon
any such distribution of assets of the Company, the holders of the Debt
Securities will be subrogated to the rights of the holders of the Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the
principal of (and premium, if any) and interest, if any, on the Debt
Securities shall be paid in full.
By reason of such subordination, in the event of any distribution of assets
of the Company upon dissolution, winding up, liquidation, reorganization or
other similar proceedings of the Company, (i) holders of Senior Indebtedness
will be entitled to be paid in full before payments may be made on the Debt
Securities and the holders of Debt Securities will be required to pay over
their share of such distribution, to the extent made in respect of such Debt
Securities, to the holders of Senior Indebtedness until such Senior
Indebtedness is paid in full and (ii) creditors of the Company who are neither
holders of Debt Securities nor holders of Senior Indebtedness may recover
less, ratably, than holders of Senior Indebtedness and may recover more,
ratably, than the holders of the Debt Securities. Furthermore, such
subordination may result in a reduction or elimination of payments to the
holders of Debt Securities. The Indenture provides that the subordination
provisions thereof will not apply to any money and securities held in trust
pursuant to the discharge, defeasance and covenant defeasance provisions of
the Indenture (see "--Discharge, Defeasance and Covenant Defeasance" above).
The Indenture also provides that no payment on account of the principal of,
or premium, if any, sinking funds, if any, or interest, if any, on the Debt
Securities shall be made if there shall have occurred and be continuing (i) a
default in the payment when due of principal of, or premium, if any, sinking
funds, if any, or interest, if any on any Senior Indebtedness of the Company
and any applicable grace period with respect to such default shall have ended
without such default having been cured or waived or ceasing to exist or (ii)
an event of default with respect to any Senior Indebtedness of the Company
resulting in the acceleration of the maturity thereof without such
acceleration having been rescinded or annulled.
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<PAGE>
The Indenture defines "Senior Indebtedness" as (a) any liability of the
Company (1) for borrowed money or under any reimbursement obligation relating
to a letter of credit, surety bond or similar instrument, or (2) evidenced by
a bond, note, debenture or similar instrument, or (3) for obligations to pay
the deferred purchase price of property or services, except trade accounts
payable arising in the ordinary course of business, or (4) for the payment of
money relating to a capitalized lease obligation, or (5) for the payment of
money under any Swap Agreement; (b) any liability of others described in the
preceding clause (a) that the Company has guaranteed or that is otherwise its
legal liability; and (c) any deferral, renewal, extension or refunding of any
liability of the types referred to in clauses (a) and (b) above, unless, in
the instrument creating or evidencing any such liability referred to in clause
(a) or (b) above or any such deferral, renewal, extension or refunding
referred to in clause (c) above or pursuant to which the same is outstanding,
it is expressly provided that such liability, deferral, renewal, extension or
refunding is subordinate in right of payment to all other Indebtedness of the
Company or is not senior or prior in right of payment to the Debt Securities
or ranks pari passu with or subordinate to the Debt Securities in right of
payment; and provided that the Debt Securities shall not constitute Senior
Indebtedness. The Indenture defines "Swap Agreement" as any commodity
contract, interest rate or currency swap agreement, cap, floor or collar
agreement, currency swap or forward contract or other similar agreement or
arrangement designed to protect against fluctuations in currency exchange or
interest rates.
If this Prospectus is being delivered in connection with the offering of a
series of Debt Securities, the accompanying Prospectus Supplement or the
information incorporated by reference herein will set forth the approximate
amount of Senior Indebtedness outstanding as of a recent date. There are no
limitations in the Indenture on the issuance or incurrence of Senior
Indebtedness of the Company.
PLAN OF DISTRIBUTION
The Company may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities through agents which solicit
or receive offers on behalf of the Company or through dealers or through a
combination of any such methods of sale, and the Company may also sell
Securities directly to investors. Any such underwriter or agent involved in
the offer and sale of Securities will be named in the applicable Prospectus
Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company may, from time to time, authorize agents acting
on a best or reasonable efforts basis or other basis to solicit or receive
offers to purchase the Securities upon the terms and conditions as are set
forth in the applicable Prospectus Supplement. In connection with the sale of
Securities, underwriters or agents may be deemed to have received compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of Securities for whom they may act
as agents. Underwriters may sell Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent.
Any compensation paid by the Company to underwriters or agents in connection
with the offering of Securities, and any discounts, concessions or commissions
allowed by underwriters to participating dealers, will be set forth in the
applicable Prospectus Supplement. Underwriters, dealers and agents
participating in a distribution of the Securities (including agents only
soliciting or receiving offers to purchase Securities on behalf of the
Company) may be deemed to be underwriters, and any discounts or commissions
received by them and any profit realized by them on resale of Securities may
be deemed to be underwriting discounts and commissions.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification against certain liabilities, including liabilities
under the Securities Act.
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<PAGE>
If so indicated in the applicable Prospectus Supplement, the Company may
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any
institutional purchaser under any such contract will not be subject to any
conditions except (i) the purchase by such institution of the Securities
covered by such contract shall not at the time of delivery be prohibited under
the laws of the jurisdiction to which such institution is subject, and (ii) if
such Securities are being sold to underwriters, the Company shall have sold to
such underwriters the total principal amount of such Securities less the
principal amount thereof covered by delayed delivery contracts.
Certain of the underwriters, dealers or agents and their affiliates may
engage in transactions with and perform services for the Company in the
ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the offering made hereby will be
passed upon for the Company by Robert J. Flax, Esq., Executive Vice President,
General Counsel and Secretary of the Company, and by Silver, Freedman & Taff,
L.L.P., Washington, D.C. As of June 20, 1997, Mr. Flax owned approximately
3,540 shares of common stock of the Company, and held options to acquire
approximately 86,000 additional shares. Brown & Wood llp, San Francisco,
California, will act as counsel for any underwriters or agents.
EXPERTS
The consolidated financial statements and supplemental consolidating
schedules of Bay View Capital Corporation and its subsidiaries incorporated in
this Prospectus and in the Registration Statement by reference from the
Company's Annual Report on Form 10-K have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein and therein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in
accounting and auditing.
19
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the expenses (all of which will be paid by
the Company) to be incurred in connection with the registration and sale of
the Securities:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................... $ 45,455
Blue Sky fees and expenses...................................... 10,000
Rating agency fees.............................................. 200,000
Legal fees and expenses......................................... 95,000
Accounting fees and expenses.................................... 50,000
Trustees' fees and expenses..................................... 15,000
Printing and engraving.......................................... 100,000
Miscellaneous................................................... 9,545
--------
Total......................................................... $525,000
========
</TABLE>
All of the above amounts, other than the Securities and Exchange Commission
filing fee, are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As authorized by Section 102(b)(7) of the Delaware General Corporation Law,
the Company's Certificate of Incorporation eliminates to the fullest extent
permitted by Delaware law the personal liability of its directors to the
Company or its stockholders for monetary damages for any breach of fiduciary
duty as a director.
Section 9 of the Company's Certificate of Incorporation provides for
indemnification of any director or officer of the Company against any and all
expense, liability and loss (including attorneys' fees, judgments, fines and
amounts paid in settlement) reasonably incurred or suffered by him or her in
connection with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, to the
fullest extend authorized by Delaware law, subject to certain limitations set
forth in the Certificate of Incorporation. Section 9 also authorizes the
Company to purchase insurance on behalf of directors and officers against
liabilities incurred in their capacities as such.
Section 145 of the General Corporation Law of the State of Delaware
authorizes a corporation's board of directors to grant indemnity under certain
circumstances to directors and officers, when made, or threatened to be made,
parties to certain proceedings by reason of such status with the corporation,
against judgments, fines, settlements and expenses, including attorneys' fees.
In addition, under certain circumstances such persons may be indemnified
against expenses actually and reasonably incurred in defense of a proceeding
by or on behalf of the corporation. Similarly, the corporation, under certain
circumstances, is authorized to indemnify directors and officers of other
corporations or enterprises who are serving as such at the request of the
corporation, when such persons are made, or threatened to be made, parties to
certain proceedings by reason of such status, against judgments, fines,
settlements and expenses, including attorneys' fees; and under certain
circumstances, such persons may be indemnified against expenses actually and
reasonably incurred in connection with the defense or settlement of a
proceeding by or in the name of such other corporation or enterprise.
Indemnification is permitted where such person (i) was acting in good faith,
(ii) was acting in a manner he or she reasonably believed to be in or not
opposed to the best interests of the corporation or other corporation or
enterprise, as appropriate, (iii) with respect to a criminal proceeding, had
no reasonable cause to believe his or her conduct was unlawful, and (iv) was
not adjudged to be liable to the corporation or other corporation or
enterprise (unless the court where the proceeding was brought determines that
such person is fairly and reasonably entitled to indemnity).
II-1
<PAGE>
Unless ordered by a court, indemnification may be made only following a
determination that such indemnification is permissible because the person
being indemnified has met the requisite standard of conduct. Such
determination may be made (i) by the corporation's board of directors by a
majority vote of directors not at the time parties to such proceeding, even if
less than a quorum; or (ii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion; or
(iii) by the stockholders.
Section 145 also permits expenses incurred by directors and officers in
defending a proceeding to be paid by the corporation in advance of the final
disposition of such proceedings upon the receipt of an undertaking by the
director or officer to repay such amount if it is ultimately determined that
he or she is not entitled to be indemnified by the corporation against such
expenses.
Under a directors' and officers' liability insurance policy, directors and
officers of the Company are insured against certain liabilities, including
certain liabilities under the Securities Act of 1933.
Reference is made to the form of Underwriting Agreement included or
incorporated by reference or to be included or incorporated by reference
herein as an exhibit to this Registration Statement for provisions regarding
indemnification of the Company's officers, directors and controlling persons
against certain liabilities.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
1(a) Form of Underwriting Agreement(a)
4(a) Restated Certificate of Incorporation of the Company, together with
Certificate of Amendment of Restated Certificate of Incorporation(b)
4(b) By-Laws of the Company (incorporated by reference to the Company's
Current Report on Form 8-K filed on January 10, 1994 (File No. 0-17901))
4(c) Form of Subordinated Indenture(a)
4(d) Form of Subordinated Debt Security(b)
5(a) Opinion of Silver, Freedman & Taff, L.L.P. as to the validity of the
Securities(a)
12(a) Computation of Ratio of Earnings to Fixed Charges(b)
23(a) Consent of Deloitte & Touche LLP(b)
23(b) Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit 5(a))
24(a) Power of Attorney of certain officers and directors (included as part of
the signature pages hereof)(b)
25(a) Form T-1 Statement of Eligibility of the Trustee (to be filed or
incorporated by reference in connection with a particular offering of
Securities)
</TABLE>
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(a) To be filed by amendment or as an exhibit to a document to be incorporated
or deemed to be incorporated by reference in this Registration Statement.
(b) Filed herewith.
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any acts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in this registration statement.
Notwithstanding the foregoing,
II-2
<PAGE>
any increase or decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) under the Securities Act of 1933 if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; (iii) to include any material
information with respect to the plan of distribution not previously disclosed
in this registration statement or any material change to such information in
this registration statement; provided, however, that subparagraphs (i) and
(ii) do not apply if the information required to be included in a post-
effective amendment by those subparagraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby further undertakes that for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant, pursuant to the provisions described under Item 15 or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee under subsection (a) of
Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of the Trust
Indenture Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Mateo, State of California, on June 20, 1997.
BAY VIEW CAPITAL CORPORATION
By: /s/ Robert J. Flax
_________________________________
Robert J. Flax
Executive Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature to this
Registration Statement appears below hereby constitutes and appoints Rupert
Ayton, Robert J. Flax and David A. Heaberlin or any one or more of them, as
such person's true and lawful attorney-in-fact and agent with full power of
substitution for such person and in such person's name, place and stead, in
any and all capacities, to sign and to file with the Securities and Exchange
Commission any and all amendments and post-effective amendments to this
Registration Statement, with exhibits thereto, any registration statement
filed pursuant to Rule 462(b) promulgated under the Securities Act of 1933 and
other documents filed in connection with such filings, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could
do in person, hereby ratifying and confirming all that each said attorney-in-
fact and agent, or any substitute therefor, may lawfully do or cause to be
done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on June 20, 1997.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ Edward H. Sondker Director, President and Chief Executive
____________________________________ Officer (Principal Executive Officer)
Edward H. Sondker
/s/ David A. Heaberlin Executive Vice President and Chief
____________________________________ Financial Officer (Principal Financial
David A. Heaberlin and Principal Accounting Officer)
/s/ John R. McKean
____________________________________ Chairman and Director
John R. McKean
____________________________________ Director
Paula R. Collins
____________________________________ Director
Roger K. Easley
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ Thomas M. Foster
____________________________________ Director
Thomas M. Foster
/s/ Richard J. Quinlan
____________________________________ Director
Richard J. Quinlan
____________________________________ Director
Angelo J. Siracusa
/s/ W. Blake Winchell
____________________________________ Director
W. Blake Winchell
/s/ Robert L. Witt
____________________________________ Director
Robert L. Witt
</TABLE>
II-5
<PAGE>
Exhibit 4(a)
STATE OF DELAWARE
RESTATED CERTIFICATE OF INCORPORATION
OF
BAY VIEW CAPITAL CORPORATION
BAY VIEW CAPITAL CORPORATION, a Corporation organized and existing under
the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is BAY VIEW CAPITAL CORPORATION. The original
Certificate of Incorporation of the Corporation was filed with the Secretary of
the State of Delaware on September 26, 1988 and was restated on July 12, 1991.
2. Pursuant to Sections 242 and 245 of the General Corporation Law of the State
of Delaware, this Restated Certificate of Incorporation has been duly adopted by
the board of directors and stockholders of the Corporation and restates and
amends the provisions of the Certificate of Incorporation of this Corporation to
read in its entirety as follows:
Section 1. Corporate Title. The name of the Corporation is Bay View Capital
---------------
Corporation.
Section 2. Duration. The duration of the Corporation is perpetual.
--------
Section 3. Powers. The purpose or purposes for which the corporation is
------
organized are to engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware.
Section 4. Capital Stock. The total number of shares of capital stock which
-------------
the Corporation has authority to issue is 27,000,000, of which 20,000,000 shall
be common stock, par value $0.01 per share, and of which 7,000,000 shall be
serial preferred stock, par value $.01 per share with rights and preferences to
be determined by the board of directors upon issuance. The authorized shares may
be issued by the Corporation from time to time as approved by its board of
directors without the approval of its stockholders, except to the extent that
such approval is required by governing law, rule or regulation. The
consideration for the issuance of the shares shall be paid in full before their
issuance and shall not be less than the par value per share. Except as permitted
by Delaware law, neither promissory notes nor future services shall constitute
payment or part payment for the issuance of the shares of the Corporation. The
consideration for the shares shall be cash, tangible or intangible property,
labor or services actually performed for the Corporation or any combination of
the foregoing. In the absence of actual fraud in the transaction, the value of
such property, labor or services, as determined by the board of directors of the
Corporation, shall be conclusive. Upon payment of such consideration such shares
shall be deemed to be fully paid and non-assessable. In the case of a stock
dividend, that part of the surplus of the Corporation which is
1
<PAGE>
transferred to stated capital upon the issuance of shares as a share dividend
shall be deemed to be the consideration for their issuance.
Section 5. Preemptive Rights. Holders of the capital stock of the
-----------------
Corporation shall not be entitled to preemptive rights with respect to any
shares of other securities of the Corporation which may be issued.
Section 6. Internal Affairs.
----------------
Paragraph 1.
The Corporation shall be under the direction of a board of directors.
The number of directors shall be as stated in the Corporation's bylaws, as may
be amended from time to time. The directors shall be divided into three
classes as nearly equal in number as possible. The members of each class shall
be elected for a term of three years and until their successors are elected
and qualified. One class shall be elected by ballot annually.
At a meeting of stockholders called expressly for that purpose, any
director may be removed for cause by a vote of the holders of a majority of
the shares entitled to vote at an election of directors. If less than the
entire board is to be removed, no one of the directors may be removed if the
votes cast against the removal would be sufficient to elect a director if then
cumulatively voted at an election of the class of directors of which such
director is a part. Whenever the holders of the shares of any class are
entitled to elect one or more directors by the provisions of this certificate
of incorporation or supplemental sections hereto, the provisions of this
section shall apply, in respect to the removal of a director or directors so
elected, to the vote of the holders of the outstanding shares of that class
and not to the vote of the outstanding shares as a whole.
Paragraph 2.
The term of office of directors initially elected by the stockholders
shall be as follows: the term of office of directors of the first class shall
expire at the first annual meeting of stockholders after their elections; the
term of office of directors of the second class shall expire at the second
annual meeting of stockholders after their election and the term of office of
directors of the third class shall expire at the third annual meeting of
stockholders after their election; and, as to directors of each class, when
their respective successors are elected and qualified. At each subsequent
annual meeting of stockholders, directors elected to succeed those whose terms
are expiring shall be elected for a term of office to expire at the third
succeeding annual meeting of stockholders and when their respective successors
are elected and qualified.
Vacancies in the board of directors, however caused, shall be filled by
a majority vote of the directors then in office, whether or not a quorum, and
any directors so chosen shall
2
<PAGE>
hold office for a term expiring at the annual meeting of stockholders at which
the term of the class to which he has been chosen expires and when his
successor is elected and qualified.
All actions required or permitted to be taken by the stockholders shall
be voted upon at an annual or special meeting of the stockholders rather than
by written consent in lieu of a meeting.
Section 7. Registered Office. The street address of the Corporation's
-----------------
registered office in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle, and the name of its registered agent at such
address is The Corporation Trust Company.
Section 8. Call of Special Meetings. Special meetings of the stockholders
------------------------
for any purposes or purposes may be called at any time by the chairman of the
board, the president or a majority of the directors then in office.
Section 9. Indemnification.
----------------
Paragraph 1. Power to Indemnify in Actions, Suits or Proceedings other
than those by or in the right of the Corporation.
Subject to Paragraph 3 of this Section 9, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of the Corporation), by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation or a wholly-owned
direct or indirect subsidiary of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo-contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect of any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Paragraph 2. Power to Indemnify in Actions, Suits or Proceedings By or
In the Right of the Corporation.
Subject to Paragraph 3 of this Section 9, the Corporation shall
indemnify any person
3
<PAGE>
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or was a
director, officer, employee or agent of the Corporation or a wholly-owned
direct or indirect subsidiary of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), actually and reasonably incurred
by him in connection with the defense or settlement of such action or suit if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all of the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Paragraph 3. Authorization of Indemnification.
Any indemnification under this Section 9 (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon
a determination that indemnification of the director, officer, employee or
agent is proper in the circumstances because he has met the applicable
standard of conduct set forth in Paragraph 1 or Paragraph 2 of this Section 9,
as the case may be. Such determination shall be made (i) by the board of
directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum in not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders. To the extent, however, that a director, officer, employee or
agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding described above, or in defense of
any claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith, without the necessity of authorization in the specific
case. No director, officer, employee or agent of the Corporation shall be
entitled to indemnification in connection with any action, suit or proceeding
voluntarily initiated by such person unless the action, suit or proceeding was
authorized by a majority of the Entire Board of Directors.
Paragraph 4. Good Faith Defined.
For purposes of any determination under Paragraph 3 of this Section 9,
a person shall be deemed to have acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
Corporation, or, with respect to any criminal action or proceeding, to have
had no reasonable cause to believe his conduct was unlawful, if his action is
based on the records or books of account of the Corporation or another
enterprise
4
<PAGE>
or on information supplied to him by the officers of the Corporation or
another enterprise in the course of their duties, or on the advice of legal
counsel for the Corporation or another enterprise or on information or records
given or reports made to the Corporation or another enterprise by an
independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Corporation or another enterprise. The
term "another enterprise" as used in this Paragraph 4 shall mean any other
corporation or any partnership, joint venture, trust or other enterprise of
which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. The provisions of this Paragraph 4 shall
not be deemed to be exclusive or to limit in any way the circumstances in
which a person may be deemed to have met the applicable standards of conduct
set forth in Paragraphs 1 or 2 of this Section 9, as the case may be.
Paragraph 5. Indemnification by a Court.
Notwithstanding any contrary determination in the specific case under
Paragraph 3 of this Section 9, and notwithstanding the absence of any
determination thereunder, any director, officer, employee or agent may apply
to any court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Paragraphs 1 and 2
of this Section 9. The basis of such indemnification by a court shall be a
determination by such court that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standards of conduct set forth in Paragraphs 1 or 2 of this Section
9, as the case may be. Notice of any application for indemnification pursuant
to this Paragraph 5 shall be given to the Corporation promptly upon the filing
of such application. Notwithstanding any of the foregoing, unless otherwise
required by law, no director, officer, employee or agent of the Corporation
shall be entitled to indemnification in connection with any action, suit or
proceeding voluntarily initiated by such person unless the action, suit or
proceeding was authorized by a majority of the Entire Board of Directors.
Paragraph 6. Expenses Payable in Advance.
Expenses incurred in defending or investigating a threatened or pending
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount if it shall ultimately be determined that he is not entitled
to be indemnified by the Corporation as authorized in this Section 9.
Paragraph 7. Non-exclusivity and Survival of Indemnification.
The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this Section 9 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any agreement, contract, vote of
stockholders or disinterested directors or pursuant to the
5
<PAGE>
direction (howsoever embodied) of any court of competent jurisdiction or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, it being the policy of the
Corporation that, subject to the limitation in Paragraph 3 of this Section 9
concerning voluntary initiation of actions, suits or proceedings,
indemnification of the persons specified in Paragraphs 1 and 2 of this Section
9 shall be made to the fullest extent permitted by law. The provisions of this
Section 9 shall not be deemed to preclude the indemnification of any person
who is not specified in Paragraphs 1 or 2 of this Section 9 but whom the
Corporation has the power or obligation to indemnify under the provisions of
the General Corporation Law of the State of Delaware, or otherwise. The
indemnification provided by this Section 9 shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person.
Paragraph 8. Insurance.
The Corporation may purchase and maintain insurance on behalf of any
person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power or the
obligation to indemnify him against such liability under the provisions of
this Section 9.
Paragraph 9. Meaning of "Corporation" for Purposes of Section 9.
For purposes of this Section 9, references to the "Corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power
and authority to indemnify its directors, officers and employees or agents, so
that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of this Section 9 with respect
to the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
Section 10. Limitation on Personal Liability of Directors. No director
---------------------------------------------
shall be personally liable to the Corporation or its stockholders for monetary
damages for any breach of fiduciary duty by such director as a director.
Notwithstanding the foregoing sentence, a director shall be liable to the extent
provided by applicable law ( i ) for breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the Delaware
6
<PAGE>
General Corporation Law, or (iv) for any transaction from which the director
derived an improper personal benefit. No amendment to or repeal of this Section
10 shall apply to or have any of fact an the liability or alleged liability of
any director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment.
Section 11. Beneficial Ownership Limitation. The provisions of this Section 11
-------------------------------
shall become effective upon Bay View Federal Savings and Loan Association (the
"Association") becoming a majority-owned subsidiary of the Corporation. In the
event that thereafter the Association (or any successor institution) ceases to
be a majority-owned subsidiary of the Corporation, this Section 11 shall
thereupon cease to be effective.
Notwithstanding anything contained in the Corporation's certificate of
incorporation or bylaws to the contrary, for a period of five years after May
16, 1986, the date of completion of the conversion of the Association from
mutual to stock form, no person may, directly or indirectly, offer to acquire or
acquire the beneficial ownership of more than 10 Percent of any class of an
equity security of the Corporation.
In the event shares are acquired in violation of this Section 11, all shares
beneficially owned by any person in excess of 10 Percent shall be considered
"excess shares" and shall not be counted as shares entitled to vote and shall
not be voted by any person or counted as voting shares in connection with any
matters submitted to the stockholders for a vote.
For purposes of this Section 11, the following definitions apply:
(1) The term "person" includes an individual, a group acting in concert,
a corporation, a partnership, an association, a joint stock company, a trust,
or similar organization, a syndicate or any other group formed for the purpose
of acquiring, holding or disposing of the equity securities of the
Corporation.
(2) The term "offer" includes every offer to buy or otherwise acquire,
solicitation of an offer to sell, tender offer for or request or invitation
for tenders of, a security or interest in a security for value.
(3) The term "acquire" includes every type of acquisition, whether
effected by purchase, exchange, operation of law or otherwise.
(4) The term "acting in concert" means (a) knowing participation in a
joint activity or conscious parallel action towards a common goal whether or
not pursuant to an express agreement, or (b) a combination or pooling of
voting or other interest in the securities of an issuer for a common purpose
pursuant to any contract, understanding, relationship, agreement or other
arrangements, whether written or otherwise.
7
<PAGE>
This Section 11 shall not apply to an acquisition or offer to acquire
securities of the Corporation (i) by underwriters in connection with a public
offering of such securities, or (ii) by a tax-qualified employee stock benefit
plan (as defined in 12 C.F.R. (S)563b .2(a)(37) or any successor provision) of
the Corporation or any of its subsidiaries which is exempt from the approval
requirements under 12 C.F.R. (S)574.3(c)(1)(iv).
Section 12. Business Combinations. Section 203 of the General Corporation Law
---------------------
of the State of Delaware shall not govern the Corporation.
Section 13. Incorporator. The name and address of the Corporation's
------------
incorporator is Robert J. Flax, 2121 South El Camino Real, San Mateo, California
94403.
Section 14. Amendment of Certificate of Incorporation. No amendment, addition,
-----------------------------------------
alteration, change, or repeal of any provision of this restated certificate of
incorporation shall be made, unless such is first proposed by the board of
directors of the Corporation, and thereafter approved by the stockholders by a
majority of the total votes eligible to be cast at a legal meeting.
Section 15. Amendment of Bylaws. In furtherance and not in limitation of the
-------------------
powers conferred by the laws of the State of Delaware, the board of directors is
expressly authorized and empowered to adopt, amend and repeal the Corporation's
bylaws, subject to the power of the stockholders of the Corporation to alter or
repeal any bylaw made by the board of directors.
IN WITNESS WHEREOF, said Corporation has caused this Restated Certificate of
Incorporation to be signed by its President and Chief Executive Officer and
attested by its Secretary, this 10th day of July, 1991.
ATTEST: BAY VIEW CAPITAL CORPORATION
/s/ Robert S. Flax /s/ Robert E. Barnes
- ------------------------------------- ----------------------------------
Robert J. Flax, Secretary Robert E. Barnes, President and
Chief Executive Officer
8
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
Bay View Capital Corporation, a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware,
DOES HEREBY CERTIFY:
FIRST: That at a meeting of the Board of Directors of Bay View Capital
Corporation, resolutions were adopted setting forth a proposed amendment to the
Restated Certificate of Incorporation of said corporation, declaring said
amendment to be advisable and directing that such amendment be considered at the
next Annual Meeting of Stockholders of said corporation. The resolution setting
forth the proposed amendment is as follows:
RESOLVED, that the Restated Certificate of Incorporation of the Company be
amended to read as follows:
"Section 4. Capital Stock. The total number of shares of capital stock
-------------
which the Corporation has authority to issue is 67,000,000, of which 60,000,000
shall be common stock, par value $.01 per share, and of which 7,000,000 shall be
serial preferred stock, par value $.01 per share, with rights and preferences to
be determined by the board of directors upon issuance.
SECOND: That thereafter, at the Annual Meeting of Stockholders of said
corporation held on May 22, 1997, pursuant to notice in accordance with Section
222 of the General Corporation Law of the State of Delaware, the necessary
number of shares as required by statute were voted in favor of the amendment.
THIRD: That said amendment was duly adopted in accordance with the
applicable provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, said Bay View Capital Corporation has caused this
certificate to be signed by Robert J. Flax, its Executive Vice President,
General Counsel and Secretary, this 17th day of June, 1997.
BAY VIEW CAPITAL CORPORATION
BY: /s/ Robert J. Flax
----------------------------
Robert J. Flax
Executive Vice President, General Counsel
and Secretary
<PAGE>
Exhibit 4(d)
THESE SECURITIES ARE NOT OBLIGATIONS OF A SAVINGS BANK OR SAVINGS ACCOUNTS AND
ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
[LEGEND FOR INCLUSION IN GLOBAL DEBT SECURITY -- THIS [NOTE/DEBENTURE] IS A
GLOBAL DEBT SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
[NOTE/DEBENTURE] IS EXCHANGEABLE FOR [NOTES/DEBENTURES] REGISTERED IN THE NAME
OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR [NOTES/DEBENTURES] IN DEFINITIVE FORM, THIS
[NOTE/DEBENTURE] MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[LEGEND FOR INCLUSION IN GLOBAL DEBT SECURITY -- UNLESS THIS [NOTE/DEBENTURE]
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY [NOTE/DEBENTURE] ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
No.:
CUSIP No.: Principal Amount: $___________
BAY VIEW CAPITAL CORPORATION
[ ] % Subordinated [Notes/Debentures] due [ ]
Bay View Capital Corporation, a Delaware corporation (hereinafter
called the "Company", which term includes any successor corporation under the
Indenture referred to below), for value received, hereby promises to pay to
__________, or registered assigns, the principal sum of _____________ DOLLARS
($_____________) on [ ], and to pay interest thereon from [ ], [ ] or from
the most recent date to which interest has been paid or duly provided for,
semiannually on [ ] and [ ] of each year (each, an "Interest Payment Date"),
commencing [ ], [ ], and at Maturity, at the rate of [ ]% per annum, until the
principal hereof is paid or duly made available for payment. Interest on this
[Note/Debenture] shall be calculated on the basis of a 360-day year consisting
of twelve 30-day months. The interest so payable and punctually paid or duly
provided for on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this [Note/Debenture] (or one or more
Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [ ] or [ ] (whether or
not a Business Day), as the case may be, next preceding such Interest payment
Date. Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the registered Holder hereof on the relevant Regular Record Date by virtue of
having been such Holder, and may be paid to the Person in whose name this
[Note/Debenture] (or one or more Predecessor Debt Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to the Holder
of this [Note/Debenture] not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the [Notes/Debentures]
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
<PAGE>
Payment of the principal of and the interest on this [Note/Debenture]
will be made at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that, at the option of
the Company, interest may be paid by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee located in the United States.
This [Note/Debenture] is one of a duly authorized issue of Debt
Securities of the Company (herein called the ["Notes/Debentures"]) issued and to
be issued in one or more series under an Indenture dated as of [ ], 199[ ]
(herein called, together with all indentures supplemental thereto, the
"Indenture") between the Company and [ ], as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
[Notes/Debentures], and the terms upon which the [Notes/Debentures] are, and are
to be, authenticated and delivered. This [Note/Debenture] is one of the series
designated on the face hereof, limited (subject to exceptions provided in the
Indenture) in aggregate principal amount to $[ ],000,000.
Subject to Section [1402] of the Indenture, the payment of the
indebtedness evidenced by this [Note/Debenture] is, to the extent and in the
manner set forth in the Indenture, expressly subordinated to all Senior
Indebtedness of the Company. This [Note/Debenture] is issued subject to such
provisions of the Indenture, and each Holder of this [Note/Debenture], by
accepting the same, agrees to and shall be bound by such provisions and
authorizes and directs the Trustee on his behalf, as between the Holders of the
[Notes/Debentures] and the holders of Senior Indebtedness, to take such action
as may be necessary or appropriate to effectuate such subordination as provided
in the Indenture and appoints the Trustee his attorney-in-fact for any and all
such purposes.
[The [Notes/Debentures] are not subject to redemption prior to the
Stated Maturity of the principal thereof.]
[The [Notes/Debentures] shall not be subject to redemption prior to
[ ]. The Company shall have the right to redeem the [Notes/Debentures], in whole
or in part from time to time, on or after [ ], upon not less than 30 nor more
than 60 days notice, at the following prices (expressed as percentages of the
principal amount of the [Notes/Debentures]) together (except as otherwise
provided in the Indenture) with accrued and unpaid interest, to, but excluding,
the Redemption Date, if redeemed during the 12-month period beginning [ ] of the
years set forth below:
<TABLE>
<CAPTION>
Redemption
Year Price
------ -----------
<S> <C>
[ ] [ ]%
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
</TABLE>
and 100% of the principal amount thereof if redeemed on or after [ ].]
If an Event of Default under Section 501 [ ] of the Indenture with
respect to the [Notes/Debentures] shall occur and be continuing, the principal
of the [Notes/Debentures] may be declared due and payable in the manner and with
the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debt Securities of each series
issued under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Debt Securities at the time Outstanding of each series affected thereby.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Debt Securities of any series
at the time Outstanding, on behalf of the Holders
2
<PAGE>
of all Debt Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this [Note/Debenture] shall be conclusive and binding upon such Holder and upon
all future Holders of this [Note/Debenture] and of any [Notes/Debentures] issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
[Note/Debenture].
No reference herein to the Indenture and no provision of this
[Note/Debenture] or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this [Note/Debenture], at the time, place and rate, and in the coin
or currency, herein and in the Indenture prescribed.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this [Note/Debenture] may be registered on the
Security Register upon surrender of this [Note/Debenture] for registration of
transfer at the office or agency of the Company maintained for the purpose in
any place where the principal of and interest on this [Note/Debenture] are
payable, duly endorsed, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new [Notes/Debentures], of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The [Notes/Debentures] are issuable only in registered form without
coupons in the denominations of $1,000 and integral multiples of $1,000. As
provided in the Indenture and subject to certain limitations set forth therein,
the [Notes/Debentures] are exchangeable for a like aggregate principal amount of
[Notes/Debentures] of authorized denominations as requested by the Holders
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith, other than
in certain cases provided in the Indenture.
Prior to due presentment of this [Note/Debenture] for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this [Note/Debenture] is registered as the
owner hereof for all purposes, whether or not this [Note/Debenture] be overdue,
and neither the Company, the Trustee nor any such agent shall be affected by
notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be
discharged from its obligations with respect to the [Notes/Debentures] (subject
to certain exceptions) or (ii) the Company may be released from its obligations
under specified covenants and agreements in the Indenture, in each case if the
Company irrevocably deposits with the Trustee money or Government Obligations
sufficient to pay and discharge the entire indebtedness on all
[Notes/Debentures], and satisfies certain other conditions, all as more fully
provided in the Indenture.
This [Note/Debenture] shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this [Note/Debenture] which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee under the Indenture by the manual signature of one
of its authorized signatories, this [Note/Debenture] shall not be entitled to
any benefits under the Indenture or be valid or obligatory for any purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: _______________
[Seal] BAY VIEW CAPITAL CORPORATION
Attest: ________________________ By: ___________________________
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ], as Trustee
By:__________________________________
Authorized Signatory
4
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT-_____Custodian_______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right Under Uniform Gifts to Minors
of survivorship and not as Act__________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
______________________________________
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
__________________________________
| |
|________________________________|
________________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
________________________________________________________________________________
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
_______________________________________________________________________ Attorney
to transfer said security on the books of the Company with full power of
substitution in the premises.
Dated: _________________________________________________________________________
Notice: The signature to this assignment must correspond with the
name as it appears upon the face of the within security in every
particular, without alteration or enlargement or any change whatever.
5
<PAGE>
EXHIBIT 12(A)
BAY VIEW CAPITAL CORPORATION
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------------------------------- ----------------
1992 1993 1994 1995 1996 1996 1997
-------- -------- -------- --------- -------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings (loss) before
income tax expense.... $ 9,691 $ 22,406 $ 22,341 $ (2,854) $ 19,246 $ 6,915 $ 9,246
Add:
Interest on advances
and other borrowings. 68,249 53,775 63,977 67,149 60,548 13,937 17,507
Interest component of
rental expense....... 435 519 506 481 564 123 173
-------- -------- -------- --------- -------- ------- -------
Earnings before fixed
charges excluding
interest on customer
deposits............. 78,375 76,700 86,824 64,776 80,358 20,975 26,926
Interest on customer
deposits............ 80,046 68,075 66,424 93,398 100,225 23,258 19,594
-------- -------- -------- --------- -------- ------- -------
Earnings before fixed
charges............. $158,421 $144,775 $153,248 $ 158,174 $180,583 $44,233 $46,520
======== ======== ======== ========= ======== ======= =======
Fixed Charges:
Interest on advances
and other borrowings.. $ 68,249 $ 53,775 $ 63,977 $ 67,149 $ 60,548 $13,937 $17,507
Interest component of
rental expense
(estimated at 20% of
rental expense)....... 435 519 506 481 564 123 173
-------- -------- -------- --------- -------- ------- -------
Fixed charges excluding
interest on customer
deposits.............. 68,684 54,294 64,483 67,630 61,112 14,060 17,680
Interest on customer
deposits.............. 80,046 68,075 66,424 93,398 100,225 23,258 19,594
-------- -------- -------- --------- -------- ------- -------
Total fixed charges.. $148,730 $122,369 $130,907 $161,028 $161,337 $37,318 $37,274
======== ======== ======== ========= ======== ======= =======
Ratio of earnings to
fixed charges including
interest on customer
deposits............... 1.07x 1.18x 1.17x 0.98x 1.12x 1.19x 1.25x
Ratio of earnings to
fixed charges excluding
interest on customer
deposits............... 1.14x 1.41x 1.35x 0.96x 1.31x 1.49x 1.52x
</TABLE>
- --------
Note: Earnings were inadequate to cover the fixed charges for 1995. The
deficiency for 1995 was $2,853,710.
<PAGE>
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Bay View Capital Corporation on Form S-3 of our report dated January 24,
1997, appearing in the Annual Report on Form 10-K of Bay View Capital
Corporation for the year ended December 31, 1996 and to the reference to us
under the heading "Experts" in the Prospectus, which is a part of this
Registration Statement.
/s/ Deloitte & Touche LLP
San Francisco, California
June 20, 1997
