SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 25, 1999
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BAY VIEW CAPITAL CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0 -17901 94-3078031
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(State or other (Commission File Number) (IRS Employer
jurisdiction Identification No.
incorporation)
1840 Gateway Drive, San Mateo, California 94404
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (650) 312-7200
N/A
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(Former name or former address, if changed since last report.)
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Item 5. Other Events.
On August 25, 1999, Franchise Mortgage Acceptance Company, a Delaware
corporation ("FMAC"), and Bay View Capital Corporation, a Delaware corporation
("Bay View"), entered into an Amendment (the "Amendment") to the Agreement and
Plan of Reorganization, dated as of March 11, 1999, by and between FMAC and Bay
View (the "Merger Agreement"). The Amendment is filed herewith as Exhibit 2 and
is incorporated herein by reference. Pursuant to the Amendment, and subject to
the terms and conditions set forth in the Merger Agreement, in connection with
the merger of FMAC with and into Bay View, each FMAC shareholder will have the
option to elect to receive for each share of FMAC common stock held either $9.80
in cash or .5444 shares of Bay View common stock, provided that the FMAC
shareholder elections are subject to the aggregate number of shares of FMAC
common stock to be exchanged for Bay View common stock being equal to 85% of the
number of shares of FMAC common stock outstanding immediately prior to closing.
Pursuant to the Amendment, the Merger Agreement provisions (i) limiting Bay View
common stock ownership by any FMAC shareholder immediately following the merger
to 9.99% of the Bay View common stock on a pro forma basis, and (ii) providing
FMAC with a termination right in the event the average Bay View common stock
price is below $17.50, have been eliminated.
FMAC and Bay View issued a joint Press Release announcing the Amendment to
the Merger Agreement, which is filed herewith as Exhibit 99.1 and is
incorporated herein by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) EXHIBITS:
2 Amendment to the Agreement and Plan of Reorganization by and between
Bay View and FMAC, dated as of August 25, 1999.
99.1 Joint Press Release of Bay View and FMAC issued August 25, 1999.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BAY VIEW CAPITAL CORPORATION
Date: August 26, 1999 By: /s/ Robert J. Flax
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Robert J. Flax
Executive Vice President,
General Counsel and Secretary
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EXHIBIT INDEX
Exhibit
Number Description
2 Amendment to the Agreement and Plan of Reorganization by and between
Bay View and FMAC, dated as of August 25, 1999.
99.1 Joint Press Release of Bay View and FMAC issued August 25, 1999.
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Exhibit 2
AMENDMENT
to the
AGREEMENT AND PLAN OF REORGANIZATION
by and between
BAY VIEW CAPITAL CORPORATION
and
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
This Amendment to the Agreement and Plan of Reorganization (the
"Amendment") dated as of August 25, 1999 is entered into by and between Bay View
Capital Corporation ("Bay View") and Franchise Mortgage Acceptance Company
("FMAC"). WHEREAS, Bay View and FMAC entered into that certain Agreement and
Plan of Reorganization dated as of March 11, 1999 (the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement as set forth below.
The Agreement shall remain in full force and effect except as amended
hereby, and the definition of terms contained in the Agreement are incorporated
herein by reference. The parties do hereby amend the Agreement as follows:
1. Section 1.3(a)(i) of the Agreement is hereby amended to read in its
entirety as follows:
(i) Each share of common stock of FMAC, $.001 par value per share (the
"FMAC Common Stock"), issued and outstanding immediately prior thereto
(except for Dissenting Shares, if applicable (as defined in Section 1.3(e))
shall, by virtue of the Merger and without any action on the part of the
parties hereto or the holder thereof, but subject to this Section 1.3(a),
Section 1.3(c) and Section 1.3(g), be converted into the right to receive,
at the election of the holder thereof as provided in Section 1.3(b),
either:
(1) $9.80 in cash (the "Per Share Cash Consideration"); or
(2) .5444 of a share of the common stock of Bay View ("Bay View Common
Stock"), par value $.01 per share (and the associated rights (the
"Rights") under the Stockholder Protection
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Rights Agreement dated as of July 31, 1990, as amended, between Bay
View and Manufacturers Hanover Trust Company of California, as Rights
Agent) (the "Exchange Ratio" and the "Per Share Stock Consideration").
Notwithstanding anything contained in this Agreement to the contrary, or
any holder's election, the aggregate number of shares of FMAC Common Stock to be
exchanged for shares of Bay View Common Stock in the Merger shall be equal to
85% (rounded up) of the total number of shares (including Dissenting Shares) of
FMAC Common Stock issued and outstanding immediately prior to the Effective Time
(the "Stock Amount").
2. Section 1.3(c)(iii) of the Agreement is hereby amended to read in its
entirety as follows:
[Intentionally Omitted]
3. Section 1.3 (g) of the Agreement is hereby amended to read in its
entirety as follows:
No Fractional Shares. Notwithstanding any other provision of
this Agreement, neither certificates nor scrip for fractional
shares of Bay View Common Stock shall be issued in the Merger.
Each holder who otherwise would have been entitled to a fraction
of a share of Bay View Common Stock shall receive in lieu thereof
cash (without interest) in an amount determined by multiplying
the fractional share interest to which such holder would
otherwise be entitled by the closing price of Bay View Common
Stock on the NYSE - Composite Transactions List (as reported by
the Wall Street Journal) on the last trading day prior to the
Effective Time. No such holder shall be entitled to dividends,
voting rights or any other rights in respect of any fractional
share.
4. Section 3.18(e) of the Agreement is hereby amended to read in its
entirety as follows:
[Intentionally Omitted]
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5. Section 5.17 of the Agreement is hereby amended to read in its entirety
as follows:
5.17 Impermissible Activities. FMAC shall use its reasonable best
efforts to sell, transfer or otherwise dispose of, on terms satisfactory to
Bay View, any of its or its Subsidiaries' businesses or activities that
would be impermissible to be engaged in by Bay View Bank, either directly
or indirectly; provided, that FMAC shall sell, transfer or otherwise
dispose of prior to the Effective Time, on terms reasonably satisfactory to
Bay View, any and all of its interests in FMAC Golf Finance Group LLC and
FMAC Star Fund, LLP (together, the "Joint Ventures").
6. Section 5.24 of the Agreement is hereby amended to read in its entirety
as follows:
Financial Reporting Obligations. FMAC shall cause the full amount
of the financial charges and expense relating to restricted stock
awards, bonus stock awards and other stock awards, if any, to be
recorded on its financial books and records and financial statements
for financial reporting purposes under GAAP on a pre-acquisition basis
prior to the Closing Date.
7. New Section 5.25 entitled "Other Regulatory Matters" is hereby added to
the Agreement as follows:
5.25 Other Regulatory Matters. FMAC shall advise (a) any individual
holder of FMAC Common Stock (or multiple holders presumed to be acting in
concert as defined in Section 12 C.F.R. section 225.41(d)) who expects to
become the holder of 10% or more of Bay View Common Stock as a result of
the Merger to take all actions necessary pursuant to Section 12 C.F.R.,
Part 225 to file for control or a rebuttal of control of Bay View with the
Board of Governors of the Federal Reserve System; and (b) any entity that
is the holder of FMAC Common Stock who expects to become the holder of 10%
or more of Bay View Common Stock as a result of the Merger to take all
actions necessary pursuant to Section 12 C.F.R., Part 225 and the policies
of the Federal Reserve System to file any required passivity commitments
with the Federal Reserve System to insure that such holder need not
register with the Federal Reserve System as a bank holding company.
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8. Section 6.1(j) of the Agreement is hereby amended to read in its
entirety as follows:
FMAC shall have sold, transferred or otherwise disposed of, on terms
reasonably satisfactory to Bay View, any and all of its interests in the Joint
Ventures.
9. Section 7.1(g) of the Agreement is hereby amended to read in its
entirety as follows:
[Intentionally Omitted]
10. Bay View and FMAC hereby agree that the FMAC Disclosure Schedule is
hereby amended to encompass the matters referred to in the letters dated April
5, 1999, regarding the Letter Agreement between Credit Suisse First Boston
Corporation and FMAC, and June 2, 1999, regarding a repurchase obligation by
FMAC of loans sold to Imperial Credit Commercial Mortgage Investment Corp. The
parties agree that no breach of the Agreement by FMAC has been deemed to occur
with respect to the omission of those matters from the Disclosure Schedules.
11. Bay View acknowledges and agrees that FMAC has offered to enter into an
Option Cancellation Agreement with each holder of Out-of-the-Money Options (as
defined below) who is an employee of FMAC pursuant to which Bay View will pay in
cash to each such holder, in exchange for the holder's execution of an Option
Cancellation Agreement, as follows: $3.84 per share with respect to options with
an exercise price of $11.00; and $1.89 per share with respect to options with an
exercise price of $18.00. "Out-of-the-Money Options" are FMAC stock options with
a per share exercise price greater than $10.25 per share. Bay View hereby
acknowledges and agrees that, after the Effective Time, it shall, in accordance
with the terms of the Option Cancellation Agreements, pay the entire amount of
any cash payments thereby incurred.
12. Neither party is aware of any existing breach of any representation,
warranty or covenant made in the Agreement.
13. This Amendment may be executed in one or more counterparts and it is
not necessary that signatures of all parties appear on the same counterpart, but
such counterparts together shall constitute but one and the same Amendment.
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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed as of the day and year first above written.
BAY VIEW CAPITAL CORPORATION
By /s/ Edward H. Sondker
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Edward H. Sondker
President and Chief Executive Officer
FRANCHISE MORTGAGE
ACCEPTANCE COMPANY
By /s/ Kevin T. Burke
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Kevin T. Burke
Executive Vice President
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Exhibit 99.1
Bay View
Capital Corporation News Release
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NYSE: BVC
Web Site: www.bayviewcapital.com
Contact: David A. Heaberlin
(650) 312-7272
NASDAQ: FMAX
Web Site: www.fmax.com
Contact: Wayne L. "Buz" Knyal
(310) 229-2629
FOR IMMEDIATE RELEASE
August 25, 1999
BAY VIEW CAPITAL AND FRANCHISE MORTGAGE ANNOUNCE REVISED
TERMS OF DEFINITIVE MERGER AGREEMENT
San Mateo, California - Bay View Capital Corporation (Bay View, NYSE: BVC)
and Franchise Mortgage Acceptance Company (FMAC, Nasdaq: FMAX) today announced
that they have agreed to amend the terms of the definitive merger agreement
between the two companies. In accordance with the amended terms, each FMAC
shareholder will have the option to elect either $9.80 in cash or .5444 shares
of Bay View's common stock. In total, the elections for cash are limited to 15%
of the shares of FMAC common stock outstanding immediately prior to closing and
the elections for Bay View common stock are limited to 85% of the shares of FMAC
common stock outstanding immediately prior to closing. In addition, the original
merger provision prohibiting any FMAC shareholder from owning more than 9.99% of
Bay View following the merger, along with the walk-away provision to the extent
Bay View's stock price was less than $17.50, has been eliminated.
In anticipation of the merger, which is still subject to approvals by both
Bay View's and FMAC's shareholders, Bay View and FMAC are currently exploring a
late 1999 or early 2000 whole loan sale or securitization of approximately
$400-$500 million in franchise and branded retail loans.
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Edward H. Sondker, Bay View's President and Chief Executive Officer,
commented, "We are very pleased that our companies could come together and agree
upon these revised terms, which we believe are in the best interests of all of
our shareholders. With all regulatory approvals received, we can now intensify
our integration efforts towards our goal of an early fourth quarter close."
Wayne L. "Buz" Knyal, FMAC's President and Chief Executive Officer,
commented, "We look forward to completing this transaction and becoming part of
Bay View. The resulting entity will be well positioned to grow and expand our
leadership position in the franchise and multi-family lending segments."
Bay View Capital Corporation is a $5.9 billion diversified financial
services holding company headquartered in San Mateo, California. It is the
parent company of Bay View Bank, N.A. and its subsidiaries, Bay View Acceptance
Corporation and Bay View Commercial Finance Group.
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