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As filed with the Securities and Exchange Commission on April 19, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
REGISTRATION STATEMENT ON
FORM S-8
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 (I.R.S. Employer
of incorporation or organization) Identification No.)
1840 GATEWAY DRIVE, SAN MATEO, CALIFORNIA 94404
(Address of principal executive offices) (Zip Code)
BAY VIEW CAPITAL CORPORATION
1998 NON-EMPLOYEE DIRECTOR STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
ROBERT J. FLAX, ESQ.
Executive Vice President
Bay View Capital Corporation
1840 Gateway Boulevard
San Mateo, California 94404
(Name and address of agent for service)
(650) 312-7200
(Telephone number, including area code, of agent for service)
Copy of all communications to:
CHRISTOPHER R. KELLY, P.C.
DANIEL C. HOLDGREIWE
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
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE REGISTRATION
PER SHARE OFFERING PRICE FEE
- ----------------------------- ------------ --------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 200,000 shares $18.41(1) $3,682,000 (1) $1,024(1)
per share
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</TABLE>
(1)Estimated, pursuant to Rule 457(h), solely for the purpose of calculating the
registration fee, at $18.41 per share, which was the weighted average of
(i) with respect to the 158,000 shares of Bay View Capital Corporation (the
"Company") common stock reserved under the Plan but not currently subject to
options, the average of the high and low prices of the common stock of Bay View
Capital Corporation on April 15, 1999 as reported on the NYSE of $18.375 per
share, and (ii) with respect to the 42,000 shares of Company common stock
reserved under the Plan currently subject to options, the weighted average
exercise price of $18.50 per share.
<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
(the "Prospectus") will be sent or given to participants in the Bay View Capital
Corporation 1998 Non-Employee Director Stock Option and Incentive 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.
I-1
<PAGE>
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:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 (File No. 0-17901) filed pursuant to Rule 13a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Company's Current Report on Form 8-K filed March 19, 1999; and
(c) The description of the common stock, par value $.01 per share, of the
Company (and the associated rights under the Bay View Stockholder
Protection Rights Agreement) set forth under "Description of Capital
Stock-Common Stock," "-Section 203 of the Delaware Law" and "-Certain
Provisions of the Amended and Restated Certificate of Incorporation and
Bylaws" contained in the Company's prospectus dated October 19, 1998,
filed pursuant to Rule 424(b) of the Securities Act together with a
prospectus supplement on December 16,1998, and incorporated in the
Company's registration statement on Form 8-A dated March 3, 1999.
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
therein 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.
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 the
Secretary, Bay View Capital Corporation, 1840 Gateway Drive, San Mateo,
California 94404, telephone number (650) 312-7200.
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.
II-1
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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 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 acted in good faith, and in
a manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation, and with respect to any criminal action or
proceeding, such person had no reasonable cause to believe his or her conduct
was unlawful.
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)
by a committee of such directors designated by majority vote of such directors,
even if less than a quorum; or (iii) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion; or (iv)
by the stockholders.
II-2
<PAGE>
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.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Company, together with
Certificate of Amendment of Restated Certificate of Incorporation
(incorporated by reference to the Company's Registration Statement on Form
S-3 (No. 333-29757)).
4.2 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)).
4.3 Stockholder Protection Rights Agreement (the "Rights Agreement") dated as
of July 31, 1990 between the Company and Chase Mellon Shareholder
Services, L.L.P., as successor rights agent (incorporated by reference to
the Company's Registration Statement on Form 8 filed on March 9, 1993
(Amendment No. 2 to the Company's Registration Statement on Form 8-A filed
on August 6, 1990 (File No. 0-17901))).
4.4 First Amendment to the Rights Agreement dated February 26, 1993
(incorporated by reference to the Company's Registration Statement on Form
8 filed on March 9, 1993 (Amendment No. 2 to the Company's Registration
Statement on Form 8-A filed on August 6, 1990 (File No. 0-17901))).
4.5 Second Amendment to the Rights Agreement dated October 10, 1997
(incorporated by reference to the Company's Registration Statement on Form
8-A12G/A filed on October 15, 1997 (Amendment No. 3 to the Company's
Registration Statement on Form 8-A filed on August 6, 1990
(File No. 0-17901))).
4.6 Third Amendment to the Rights Agreement (incorporated by reference to the
Company's Registration Statement on Form 8 filed on September 29, 1998
(Amendment No. 4 to the Company's Registration Statement on Form 8-A filed
on August 6, 1990 (File No. 0-17901))).
4.7 Specimen Form of common stock certificate of the Company (incorporated by
reference to the Company's Registration Statement on Form S-8 filed on
July 26, 1991 (File No. 33- 41924)).
II-3
<PAGE>
4.8 Form of Rights Certificate and Election to Exercise pursuant to Rights
Agreement (incorporated by reference to the Company's Registration
Statement on Form 8 filed on March 9, 1993 (Amendment No. 2 to the
Company's Registration Statement on Form 8-A filed on August 6, 1990 (File
No. 0-17901))).
5 Opinion of Silver, Freedman & Taff, L.L.P.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG LLP
23.3 Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit 5).
24 Power of Attorney of certain officers and directors (included as part of
the signature pages hereof).
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 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, 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 each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act 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.
II-4
<PAGE>
(c) Insofar as indemnification for liabilities arising under the Securities Act
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 Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by
the final adjudication of such issue.
II-5
<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 the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, hereunto duly
authorized, in the City of San Mateo, State of California, on April 14, 1999.
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 appears
below constitutes and appoints Robert J. Flax and David A. Heaberlin, or either
of them, as such person's true and lawful attorney-in-fact and agent with full
power of substitution for such person's name, place and stead, in any and all
capacities, to sign any and all amendments and post-effective amendments to this
Registration Statement, and any and all other documents filed in connection
therewith, granting unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act 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 below by the following persons in the
capacities and on the date indicated.
/s/ Edward H. Sondker /s/ David A. Heaberlin
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Edward H. Sondker, Director, David A. Heaberlin, Executive
President and Chief Executive Vice President and Chief
Officer Financial Officer
(Principal Executive Officer) (Principal Financial and
Principal Accounting Officer)
Date: April 14, 1999 Date: April 14, 1999
II-6
<PAGE>
/s/ John R. McKean /s/ Paula R. Collins
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John R. McKean, Director Paula R. Collins, Director
Date: April 14, 1999 Date: April 14, 1999
/s/ Roger K. Easley /s/ Thomas M. Foster
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Roger K. Easley, Director Thomas M. Foster, Director
Date: April 14, 1999 Date: April 14, 1999
/s/ Stephen T. McLin
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Stephen T. McLin, Director Angelo J. Siracusa, Director
Date: April 14, 1999 Date:
/s/ W. Blake Winchell /s/ George H. Krauss
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W. Blake Winchell, Director George H. Krauss, Director
Date: April 14, 1999 Date: April 14, 1999
/s/ Robert M. Greber
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Robert M. Greber, Director
Date: April 14, 1999
II-7
<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
EXHIBITS
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BAY VIEW CAPITAL CORPORATION
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<PAGE>
EXHIBIT INDEX
4.1 Restated Certificate of Incorporation of the Company, together with
Certificate of Amendment of Restated Certificate of Incorporation
(incorporated by reference to the Company's Registration Statement on Form
S-3 (No. 333-29757)).
4.2 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)).
4.3 Stockholder Protection Rights Agreement (the "Rights Agreement") dated as
of July 31, 1990 between the Company and Chase Mellon Shareholder
Services, L.L.P., as successor rights agent (incorporated by reference to
the Company's Registration Statement on Form 8 filed on March 9, 1993
(Amendment No. 2 to the Company's Registration Statement on Form 8-A filed
on August 6, 1990 (File No. 0-17901))).
4.4 First Amendment to the Rights Agreement dated February 26, 1993
(incorporated by reference to the Company's Registration Statement on Form
8 filed on March 9, 1993 (Amendment No. 2 to the Company's Registration
Statement on Form 8-A filed on August 6, 1990 (File No. 0-17901))).
4.5 Second Amendment to the Rights Agreement dated October 10, 1997
(incorporated by reference to the Company's Registration Statement on Form
8-A12G/A filed on October 15, 1997 (Amendment No. 3 to the Company's
Registration Statement on Form 8-A filed on August 6, 1990 (File No.
0-17901))).
4.6 Third Amendment to the Rights Agreement (incorporated by reference to the
Company's Registration Statement on Form 8 filed on September 29, 1998
(Amendment No. 4 to the Company's Registration Statement on Form 8-A filed
on August 6, 1990 (File No. 0-17901))).
4.7 Specimen Form of common stock certificate of the Company (incorporated by
reference to the Company's Registration Statement on Form S-8 filed on
July 26, 1991 (File No. 33- 41924)).
4.8 Form of Rights Certificate and Election to Exercise pursuant to Rights
Agreement (incorporated by reference to the Company's Registration
Statement on Form 8 filed on March 9, 1993 (Amendment No. 2 to the
Company's Registration Statement on Form 8-A filed on August 6, 1990 (File
No. 0-17901))).
5 Opinion of Silver, Freedman & Taff, L.L.P.
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of KPMG LLP
23.3 Consent of Silver, Freedman & Taff, L.L.P. (included in Exhibit 5).
24 Power of Attorney of certain officers and directors (included as part of
the signature pages hereof).
Exhibit 5
[Letterhead of Silver, Freedman & Taff, L.L.P.]
April 15, 1999
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
"Corporation") 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 200,000 shares
of the Corporation's common stock, par value $.01 per share (the "Common
Stock"), to be offered pursuant to the Bay View Capital Corporation 1998
Non-Employee Director Stock Option and Incentive Plan (the "Plan"). In this
connection, we have reviewed the Plan, the Corporation's Certificate of
Incorporation, its Bylaws, and resolutions of its Board of Directors.
Based upon the foregoing, it is our opinion that the shares of Common
Stock covered by the Registration Statement will, when and if issued and paid
for in accordance with the Plan, be legally issued, fully paid and
non-assessable shares of Common Stock of the Corporation.
We hereby consent to the inclusion of our opinion as Exhibit 5 of this
Registration Statement on Form S-8. 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.
Exhibit 23.1
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 26, 1998
appearing in the Annual Report on Form 10-K of Bay View Capital Corporation for
the year ended December 31, 1997.
/s/ Deloitte & Touche LLP
San Francisco, California
April 15, 1999
Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Bay View Capital Corporation
We consent to the incorporation by reference in the registration statement on
Form S-8 (the 1998 Non-Employee Director Stock Option and Incentive Plan) of Bay
View Capital Corporation of our report dated January 19, 1999, except as to
footnote 24, which is as of March 11, 1999, relating to the consolidated
statement of financial condition of Bay View Capital Corporation and
subsidiaries as of December 31, 1998, and the related consolidated statements of
income and comprehensive income, stockholders' equity and cash flows for the
year then ended, which report appears in the December 31, 1998 Annual Report on
Form 10-K of Bay View Capital Corporation.
/s/ KPMG LLP
San Francisco, California
April 15, 1999
