<PAGE>
As filed with the Securities and Exchange Commission on
October 2, 1997
Registration
No. 333-
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=============
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
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
Identification No.)
incorporation or organization)
1840 Gateway Drive, San Mateo, California
94404
(Address of principal executive offices)
(Zip Code)
BAY VIEW BANK
OUTSIDE DIRECTORS' RETIREMENT PLAN
(Full title of the plan)
---------------------------
ROBERT J. FLAX, ESQ.
Executive Vice President
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
(Name and address of agent for service)
(415) 573-7300
(Telephone number, including area code, of agent for
service)
Copy of all communications to:
CHRISTOPHER R. KELLY, P.C.
CRAIG M. SCHEER, ESQ.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional
corporations)
1100 New York Ave., N.W.
Washington, D.C. 20005
(202) 414-6100
CALCULATION OF REGISTRATION FEE
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==============
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==============
<TABLE>
<CAPTION>
Proposed maximum Proposed
maximum
Title of securities Amount to be offering price
aggregate Amount of
to be registered registered(1) per share(2) offering
price(2) registration fee(2)
- -----------------------------------------------------------------
- -------------- --------
<S> <C> <C> <C>
<C>
Common Stock, par value
$.01 per share 66,114 shares $27.875 $1,842,928
$559
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============== =====
=================================================================
============== =====
(1) Pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement covers, in addition to the
number of shares set forth above, an indeterminate number of
shares which, by reason of certain events specified in the Plan,
may become subject to the Plan.
(2) Estimated in accordance with Rule 457(h), solely for the
purpose of calculating the registration fee at $27.875 per share,
which was the average of the high and low prices of the Bay View
Capital Corporation common stock on September 26, 1997, as
reported on the Nasdaq National Market.
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part
I of Form S-8 will be sent or given to participants in the Bay
View Bank Outside Directors' Retirement Plan (the "Plan") as
specified by Rule 428(b)(1) promulgated by the Securities and
Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but
constitute (along with the documents incorporated by reference
into the Registration Statement pursuant to Item 3 of Part II
hereof) a prospectus that meets the requirements of Section 10(a)
of the Securities Act.<PAGE>
<PAGE 1>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents previously or concurrently filed by
Bay View Capital Corporation (the "Company") with the Commission
are hereby incorporated by reference in this Registration
Statement and the Prospectus to which this Registration Statement
relates (the "Prospectus"), which Prospectus has been or will be
delivered to the participants in the Plan covered by this
Registration Statement:
(a) the Company's Annual Report on Form 10-K for the year
ended December 31, 1996, as amended on Form 10-K/A on June 27,
1997, (File No. 0-17901), filed pursuant to Rule 13a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) all other reports filed by the Company pursuant to
Section 13 or 15(d) of the Exchange Act since the end of the
period covered by the Report referred to in (a) above; and
(c) the description of the common stock, par value $.01 per
share, of the Company contained in the Company's Current
Report on Form 8-K (File No.0-17901) filed with the
Commission on July 31, 1989, and all amendments or
reports filed for the purpose of updating such
description.
All documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act, after the date hereof, and prior to the filing of a
post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed incorporated by reference
into this Registration Statement and the Prospectus and to be a
part hereof and thereof from the date of the filing of such
documents. Any statement contained in the documents
incorporated, or deemed to be incorporated, by reference herein
or in the Prospectus shall be deemed to be modified or superseded
for purposes of this Registration Statement and the Prospectus to
the extent that a statement contained herein or therein or in any
other subsequently filed document which also is,or is deemed to
be, incorporated by reference herein or therein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement
and the Prospectus.
<PAGE 2>
The Company shall furnish without charge to each person to
whom the Prospectus is delivered, on the written or oral request
of such person, a copy of any or all of the documents
incorporated by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference
to the information that is incorporated). 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 number
(415) 573-7300.
All information appearing in this Registration Statement and
the Prospectus is qualified in its entirety by the detailed
information, including financial statements, appearing in the
documents incorporated herein or therein by reference.
Item 4. Description of Securities.
--------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
------------------------------------------
Section 9 of the Company's Certificate of Incorporation
provides for indemnification of any director or officer of the
Registrant 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 extent authorized by Delaware Law,
subject to certain limitations set forth in the Certificate of
Incorporation. Section 9 also authorizes the Corporation 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
<PAGE 3>
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 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 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).
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 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.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.<PAGE>
<PAGE 4>
Item 8. Exhibits.
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<TABLE>
<CAPTION>
Regulation
S-K Reference to Prior
Exhibit Filing or Exhibit
Number Document Number Attached Hereto
---------- -------------------- ----------------------
<C> <S> <C>
4 Instruments Defining
the Rights of Securities
Holders, Including
Indentures:
(1) Certificate of *
Incorporation of Bay View
Capital Corporation
(2) Bylaws of Bay View **
Capital Corporation
(3) Specimen form of ***
common stock certificate
of Bay View Capital
Corporation
(4) Stockholder Protection ****
Rights Agreement, dated
July 31, 1991 (the "Rights
Agreement")
(5) First Amendment to the ****
Rights Agreement, dated
February 25, 1993
(6) Form of Rights Certificate ****
and of Election to Exercise
(included as Exhibit A
to the Rights Agreement)
(7) Bay View Bank Outside *****
Directors' Retirement Plan
5 Opinion of Silver, Attached as
Freedman & Taff, L.L.P. Exhibit 5
15 Letter re unaudited financial
information. Not Applicable
23.1 Consent of Silver,
Freedman & Taff, L.L.P.
<PAGE>
PAGE 5>
(Included in Exhibit 5) Contained in Exhibit 5
23.2 Consent of Deloitte &
Touche LLP Attached as Exhibit 23.2
24 Power of Attorney Contained on Signature
Page
* Filed as an exhibit to the Company's Registration Statement
on Form S-3 (File No. 333-29757) dated June 20, 1997 and
hereby incorporated by reference in accordance with Item 601
of Regulation S-K.
** Filed as an exhibit to the Company's Current Report on
Form 8-K (File No. 0-17901) dated January 10, 1994 and
hereby incorporated by reference in accordance with Item 601
of Regulation S-K.
*** Filed as an exhibit to the Company's Registration Statement
on Form S-8 (File No. 33-41924) dated July 23, 1991 and
hereby incorporated by reference in accordance with Item 601
of Regulation S-K.
****Filed as an exhibit to the Company's Registration Statement
on Form 8-A (the second amendment to the Company's Form 8-A
filed on August 6, 1990) (File No. 0-17901) dated March 8,
1993 and hereby incorporated by reference in accordance with
Item 601 of Regulation S-K.
*****Filed as Exhibit 10.6 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996 (File No.
0-17901).
</TABLE>
Item 9. Undertakings.
-------------
(a) 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 facts or events arising
after the effective date of the 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 the registration statement;
notwithstanding the foregoing, 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
<PAGE>
424(b) 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 the registration
statement or any material change to such information in the
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 therein, 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.
(b) The undersigned Registrant hereby undertakes that, for
purposes 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 the 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.
(c) 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
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act 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 Act and will be governed by the final adjudication of such
issue.<PAGE>
<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-8 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 October 1,
1997.
BAY VIEW CAPITAL CORPORATION
By:/s/ Edward H. Sondker
-----------------------------
Edward H. Sondker, President,
Chief Executive Officer
(Duly Authorized Representative)
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Edward H.
Sondker his/her true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him/her and
in his/her name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all
exhibits thereto, and all other documents in connection
therewith, with the Securities and Exchange Commission, granting
unto 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, as fully to all intents and purposes as
he/she might or could do in person, hereby ratifying and
confirming all said attorney-in-fact and agent or his substitutes
or substitute may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
<PAGE>
<PAGE>
By:/s/ Edward H. Sondker By:/s/ John R. McKean
-------------------------- -----------------------------
Edward H. Sondker, John R. McKean, Chairman of
President, Chief the Board
Executive Officer and
Director (Principal
Executive Officer)
Date: October 1, 1997 Date: October 1, 1997
------------------------ -----------------------------
By:/s/David A. Heaberlin By:/s/ Paula R. Collins
-------------------------- -----------------------------
David A. Heaberlin, Paula R. Collins, Director
Executive Vice President
and Chief Financial Officer
(Principal Accounting and
Financial Officer)
Date: October 1, 1997 Date: October 1, 1997
------------------------ ----------------------------
By:/s/ Roger K. Easley By:/s/ Angelo J. Siracusa
-------------------------- ------------------------------
Roger K. Easley, Director Angelo J. Siracusa, Director
Date: October 1, 1997 Date: October 1, 1997
------------------------ ---------------------------
By:/s/ Thomas M. Foster By:/s/ Richard J. Quinlan
-------------------------- -----------------------------
Thomas M. Foster, Director Richard J. Quinlan, Director
Date: October 1, 1997 Date: October 1, 1997
------------------------ ---------------------------
By:/s/ Robert L. Witt By:/s/ W. Blake Winchell
-------------------------- -----------------------------
Robert L. Witt, Director W. Blake Winchell, Director
Date: October 1, 1997 Date: October 1, 1997
------------------------ ---------------------------
<PAGE>
[LETTERHEAD OF SILVER, FREEDMAN & TAFF, L.L.P.]
October 1, 1997
Board of Directors
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Members of the Board:
We have acted as counsel to Bay View Capital Corporation (the
"Company") in connection with the preparation and filing with the
Securities and Exchange Commission of a registration statement on
Form S-8 under the Securities Act of 1933 (the "Registration
Statement") relating to 66,114 shares of the Company's common
stock, par value $.01 per share (the "Common Stock"), to be
offered pursuant to the Bay View Bank Outside Directors'
Retirement Plan (the "Plan").
In this connection, we have reviewed originals or copies,
certified or otherwise identified to our satisfaction, of the
Company's Certificate of Incorporation, Bylaws, resolutions of
its Board of Directors and such other documents and corporate
records as we have deemed appropriate for the purpose of
rendering this opinion.
Based upon the foregoing, it is our opinion that the shares
of Common Stock to be offered by the Company will be, when and if
issued, sold and paid for as contemplated by the Plan, legally
issued, fully paid and non-assessable shares of Common Stock of
the Company.
We hereby consent to the inclusion of our opinion as Exhibit
5 of this Registration Statement and the reference to our firm in
the Prospectus. In giving this consent, we do not admit that we
are within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ Silver, Freedman & Taff, L.L.P.
SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this
Registration Statement of Bay View Capital Corporation on Form
S-8 of our report dated January 24, 1997 (June 2, 1997 as to
paragraphs 3, 4 and 5 of Note 24) appearing in the Annual Report
on Form 10- K/A of Bay View Capital Corporation for the year
ended December 31, 1996.
/s/ Deloitte & Touche LLP
San Francisco, California
September 29, 1997
