As filed with the Securities and Exchange Commission on December 13, 1999
Registration No. 333-86621
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. ONE
ON FORM S-8
TO FORM S-4
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
(Address of Principal Executive Offices) (Zip Code)
FRANCHISE MORTGAGE ACCEPTANCE COMPANY 1997 STOCK OPTION, DEFERRED STOCK AND
RESTRICTED STOCK PLAN
(Full title of the plan)
Robert J. Flax
Executive Vice President, General Counsel and Secretary
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, ESQ.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
1100 New York Avenue, N.W.
Washington, D.C. 20005
(202) 414-6100
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum Amount of
Title of Securities Amount to be offering price aggregate registration
to be registered registered per share offering price fee (1)
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 270,576 shares N/A N/A N/A
share
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</TABLE>
(1) The Registrant previously paid $14,325 with the original filing on
September 3, 1999 to register 4,750,000 shares, including the 3,893,804 of
such shares which may be issued pursuant to terms and conditions of an
Agreement and Plan of Merger, dated as of March 11, 1999, as amended, by
and between Bay View Capital Corporation and Franchise Mortgage Acceptance
Company.
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PURPOSE OF AMENDMENT
The purpose of this post-effective amendment is to register on Form S-8
shares of common stock, par value $.01 per share (the "Common Stock"), of Bay
View Capital Corporation ("Bay View") previously registered on Form S-4 (No.
333-86621) for issuance pursuant to the terms and conditions of an Agreement and
Plan of Merger dated as of March 11, 1999, as amended, by and between Bay View
and Franchise Mortgage Acceptance Company ("FMAC"). The merger of Bay View and
FMAC (the "Merger") was consummated on November 1, 1999. The Franchise Mortgage
Acceptance Company 1997 Stock Option, Deferred Stock and Restricted Stock Plan
(the "Plan") was assumed by Bay View in connection with the Merger.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents(s) containing the information specified in Part I of Form
S-8 will be sent or given to participants in 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.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously or concurrently filed by Bay View with
the Commission are hereby incorporated by reference in this Registration
Statement and the Prospectus:
(a) The annual report on Form 10-K of Bay View for the fiscal year ended
December 31, 1998 (File No. 0-17901), as amended on Form 10-K/A filed with
the Commission on July 13, 1999, filed pursuant to Rule 13a-1 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act");
(b) The quarterly reports on Form 10-Q of Bay View for the quarter ended March
31, 1999, as amended on Form 10Q/A filed with the Commission on July 17,
1999, and for the quarters ended June 30 and September 30, 1999; and the
current reports on Form 8-K of Bay View filed March 12, March 19, July 22,
August 27, November 3, November 10, and November 12, 1999; and
(c) The description of the common stock, par value $.01 per share, of Bay View
contained in Bay View's Registration Statement on Form 8-A (File No.
001-14879) filed with the Commission on March 9, 1999, and all amendments
or reports filed for the purpose of updating such description.
All documents filed by Bay View 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.
Bay View 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.
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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 Bay View's Certificate of Incorporation provides for
indemnification of any director or officer of Bay View 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 Bay View 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.
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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.
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 Bay View 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.
See Exhibit Index.
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 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 Bay
View's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 Bay View pursuant to the foregoing provisions, or otherwise, Bay View
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 Bay View of expenses incurred or
paid by a director, officer or controlling person of Bay View 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, Bay
View 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.
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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 December 10, 1999.
BAY VIEW CAPITAL CORPORATION
By: /s/Edward H. Sondker
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Edward H. Sondker, President and
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, as such person's true and
lawful attorney-in-fact and agent, with full power of substitution and
re-substitution, for such person and in such person's, 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 such
person might or could do in person, hereby ratifying and confirming all said
attorney-in-fact and agent or his substitute or substitutes 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 by the following persons in the
capacities and on the date indicated.
/s/ Edward H. Sondker Date: December 10, 1999
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Edward H. Sondker
President, Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ *David A. Heaberlin Date: December 10, 1999
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David A. Heaberlin
Executive Vice President, Chief
Financial Officer and Treasurer
(Principal Financial Officer)
/s/ *Scott H. Ray Date: December 10, 1999
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Scott H. Ray, Senior Vice President
and Controller (Principal
Accounting Officer)
/s/ *John R. McKean Date: December 10, 1999
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John R. McKean, Director
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/s/ *Stephen T. McLin Date: December 10, 1999
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Stephen T. McLin, Director
/s/ *W. Blake Winchell Date: December 10, 1999
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W. Blake Winchell, Director
/s/ *Robert M. Greber Date: December 10, 1999
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Robert M. Greber, Director
/s/ *Paula R. Collins Date: December 10, 1999
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Paula R. Collins, Director
/s/ *Thomas M. Foster Date: December 10, 1999
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Thomas M. Foster, Director
/s/ *George H. Krauss Date: December 10, 1999
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George H. Krauss, Director
Date:
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Wayne L. Knyal, Director
*By: /s/ Edward H. Sondker Date: December 10, 1999
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(Edward H. Sondker,
Attorney-in-Fact)
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INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 Restated Certificate of Incorporation of Bay View, together
with Certificate of Amendment of Restated Certificate of
Incorporation (incorporated by reference to Bay View's
Registration Statement on Form S-3 filed on June 20, 1997 (No.
333-29757)).
4.2 By-Laws of Bay View (incorporated by reference to Bay View's
Registration Statement on Form S-3/A filed on October 14, 1999
(No. 333-83199)).
4.3 Stockholder Protection Rights Agreement (the "Rights
Agreement") dated as of July 31, 1990 between Bay View and
Chase Mellon Shareholder Services, L.L.P., as successor rights
agent (incorporated by reference to Bay View's Registration
Statement on Form 8 filed on March 9, 1993 (Amendment No. 2 to
Bay View'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 Bay View's Registration
Statement on Form 8 filed on March 9, 1993 (Amendment No.
2 to Bay View'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 Bay View's Registration
Statement on Form 8-A12G/A filed on October 15, 1997
(Amendment No. 3 to Bay View'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 Bay View's Registration Statement on Form 8-A
12G/A filed on September 29, 1998 (Amendment No. 4 to Bay
View's Registration Statement on Form 8-A filed on August 6,
1990 (File No. 0-17901))).
4.7 Fourth Amendment to the Rights Agreement (incorporated by
reference to the Company's Registration Statement on Form
8-A/A filed on October 29, 1999 (Amendment No. 1 to the
Company's Registration Statement on Form 8-A filed on March
9, 1999 (File No. 001-14879))).
4.8 Specimen Form of common stock certificate of Bay View
(incorporated by reference to Bay View's Registration
Statement on Form S-3/A filed on October 14, 1999 (No. 333-
83199)).
4.9 Form of Rights Certificate and Election to Exercise pursuant
to Rights Agreement (incorporated by reference to Bay
View's Registration Statement on Form 8 filed on March 9,
1993 (Amendment No. 2 to Bay View's Registration Statement
on Form 8-A filed on August 6, 1990 (File No. 0-17901))).
5 Opinion and Consent of Silver, Freedman & Taff, L.L.P.*
23.1 Consent of KPMG LLP with respect to Bay View.
23.2 Consent of KPMG LLP with respect to FMAC.
23.3 Consent of Deloitte & Touche LLP with respect to Bay View.
23.4 Consent of Silver, Freedman & Taff, L.L.P. (included in
Exhibit 5).
24 Power of attorney.*
* Previously filed.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Bay View Capital Corporation:
We consent to the incorporation by reference in the registration statement (No.
333-86621) for the post-effective Amendment No. 1 on Form S-8 to Form S-4 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/A of Bay View Capital Corporation.
/s/ KPMG LLP
San Francisco, California
December 10, 1999
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the registration statement on
Post-Effective Amendment No. 1 Form S-8 to Form S-4 (No. 333-86621) of Bay View
Capital Corporation of our report dated January 19, 1999, except as to notes 22,
23, and 20 to the consolidated financial statements, which are as of February
16, 1999, March 10, 1999, and March 29, 1999, respectively, with respect to the
consolidated balance sheets of Franchise Mortgage Acceptance Company as of
December 31, 1998 and 1997, and the related consolidated statements of income,
changes in stockholders' or members' equity and cash flows for each of the years
in the three-year period ended December 31, 1998, which report appears in the
December 31, 1998 annual report on Form 10-K, as amended by Form 10-K/A dated
April 22, 1999, of Franchise Mortgage Acceptance Company.
/s/ KPMG LLP
Los Angeles, California
December 10, 1999
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Post-Effective Amendment
No. 1 on Form S-8 to the Registration Statement (No. 333-86621) of Bay View
Capital Corporation on Form S-4 of our report dated January 26, 1998 appearing
in the Annual Report on Form 10-K/A of Bay View Capital Corporation for the year
ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
San Francisco, California
December 10, 1999
