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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): June 22, 1999
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BAY VIEW CAPITAL CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 001 -14879 94-3078031
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(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation) No.)
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 June 22, 1999, FMAX Holdings, L.L.C. ("FMAX") and Bay View Capital
Corporation ("Bay View") entered into an Election and Registration Agreement
(the "Agreement") in connection with the proposed merger of Franchise Mortgage
Acceptance Company ("FMAC") into Bay View (the "Merger"). The Agreement is filed
herewith as Exhibit 2 and is incorporated herein by reference.
Pursuant to the Agreement and subject to the terms and conditions set forth
therein, FMAX agreed to elect to receive cash consideration in the Merger with
respect to all shares of FMAC common stock owned by FMAX, and Bay View agreed to
file a registration statement under the Securities Act of 1933, as amended,
relating to any shares of Bay View common stock to be received by FMAX in the
Merger.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits:
The Exhibit listed on the accompanying Exhibit Index is filed as part of
this Report and is incorporated herein by reference.
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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: July 22, 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 Election and Registration Agreement, dated as of June 22, 1999, between Bay
View Capital Corporation and FMAX Holdings, L.L.C.
ELECTION AND REGISTRATION AGREEMENT
BETWEEN
BAY VIEW CAPITAL CORPORATION
AND
FMAX HOLDINGS, L.L.C.
June 22, 1999
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ELECTION AND REGISTRATION AGREEMENT
THIS ELECTION AND REGISTRATION AGREEMENT (the "Agreement") is made and
entered into as of June 22, 1999, between BAY VIEW CAPITAL CORPORATION (the
"Company") and FMAX HOLDINGS, L.L.C. ("FMAX" or the "Selling Stockholder").
1. Introduction; Term.
a. The Selling Stockholder and the Company have agreed to enter into this
Agreement pursuant to the Agreement and Plan of Merger and Reorganization dated
March 11, 1999, as amended (the "Merger Agreement"), by and between the Company
and Franchise Mortgage Acceptance Company ("FMAC");
b. This Agreement shall be effective upon the date first written above and
shall terminate upon the earliest of (i) the termination of the Merger Agreement
in accordance with its terms, (ii) the date 90 days from the closing of the
merger of FMAC with and into the Company pursuant to the Merger Agreement (the
"Merger"), provided that such termination date shall be automatically extended
(A) by the number of days of delay to obtain effectiveness of the Registration
Statement resulting solely from the Company's failure to qualify to use Form
S-3, as reasonably mutually determined by counsel to the Company and FMAX, and
(B) for up to two additional 90-day periods, provided that FMAX has used
commercially reasonable efforts to sell its FMAX Shares during the 90-day period
prior to such extension, (iii) the first date on which the Selling Stockholder
is permitted to sell all of the FMAX Shares within any 90-day period pursuant to
the provisions of Rule 145 or (iv) the date upon which the number of FMAX Shares
shall equal less than 1% of the outstanding shares of Common Stock;
c. The Selling Stockholder and the Company have agreed to enter into this
Agreement to provide for the Selling Stockholder's election under the Merger
Agreement and the registration of the FMAX Shares and to otherwise perform their
respective obligations hereunder in consideration of the mutual covenants
contained herein.
2. Definitions. The following definitions shall apply in addition to those
terms defined elsewhere herein:
a. "Common Stock" means the Company's common stock, $0.01 par value per
share.
b. "Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
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c. "FMAC Common Stock" means FMAC's common stock, $.001 par value per
share.
d. "FMAX Shares" means the shares of Common Stock issued to FMAX in
connection with the Merger.
e. "Offering" means a public offering of the FMAX Shares by FMAX pursuant
to the Registration Statement.
f. "Offering Documents" means all documents relating to an Offering which
are required to be filed with any governmental agency or authority or to be
delivered to any Person to whom securities of the Company are offered for sale
or sold, including, without limitation, the Registration Statement, the
Prospectus, and preliminary Prospectus, if any, and all material incorporated by
reference therein, and any schedule or exhibit to any of the foregoing, in each
case as such documents may be amended from time to time.
g. "Party" means FMAX or the Company and "Parties" means FMAX and the
Company.
h. "Person" means any individual, corporation, partnership, limited
liability company, association, trust or unincorporated association.
i. "Prospectus" means the prospectus included in the Registration
Statement, as amended or supplemented by a prospectus supplement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in the Prospectus.
j. "Registration Expenses" means any and all expenses incident to the
Company's registration of the FMAX Shares pursuant to the Registration
Statement, including specifically (i) fees for any filings required to be made
with the National Association of Securities Dealers, Inc., the New York Stock
Exchange or the SEC in connection with the Offering, and any other registration
and filing fees, (ii) all fees and expenses of complying with securities or blue
sky laws (including reasonable fees and disbursements of counsel in connection
with blue sky qualifications of the FMAX Shares), (iii) all printing, messenger,
telephone, and delivery expenses, (iv) any fees and expenses incurred in
connection with the listing of the FMAX Shares on any securities exchange, (v)
the reasonable fees and disbursements of counsel for the Company and of its
independent public accountants, and (vi) the fees (including any underwriter's
commissions) and disbursements of the Selling Stockholder's outside counsel,
outside accountants, investment bankers, and financial consultants, if any, in
connection with the Offering.
k. "Registration Statement" means the registration statement on Form S-3
(or, if the Company is not then qualified to use Form S-3, on another
appropriate form) filed with the SEC by the Company pursuant to the Securities
Act relating to the FMAX Shares, including any pre- or post-effective amendment
thereto, the Prospectus included therein, and all material incorporated by
reference therein, and any schedule or exhibit to any of the foregoing.
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l. "Rule 145" means Rule 145 under the Securities Act, 17 C.F.R. 230.145,
or any successor rule of the SEC, if applicable.
m. "SEC" means the Securities and Exchange Commission.
n. "Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
o. "Securities Offering Regulations" means any regulations promulgated by
any agency or authority of the United States government, under the Securities
Act, or any statute hereafter enacted into law, relating to or governing the
Offering.
3. a. Cash Election. FMAX agrees that in connection with the Merger it will
elect to receive the Per Share Cash Consideration (as defined in the Merger
Agreement) with respect to all of the shares of FMAC Common Stock of which
FMAX is the record or beneficial owner.
b. Exclusive Means of Sale. FMAX agrees that it will not during the term of
this Agreement sell any of the FMAX Shares other than in a transaction
covered by the Registration Statement.
4. a. Registration. The Company agrees that it will file with the SEC the
Registration Statement at least 45 days prior to the Anticipated Effective
Time (as defined in the Merger Agreement) and will use its best efforts to
cause the Registration Statement to become effective as soon as practicable
after the Effective Time (as defined in the Merger Agreement).
b. Expenses. The Company shall pay all of the Registration Expenses other
than those described in Section 2j(vi), which shall be paid by the Selling
Stockholder.
5. The Company's Duties. In connection with an Offering, the Company covenants
and agrees that it will, as expeditiously as possible (provided that no duty
shall survive the termination of this Agreement in accordance with its terms):
a. in the case of an underwritten Offering, select the managing
underwriter, subject to the consent of Selling Stockholder, which
consent shall not be unreasonably withheld;
b. (1) prepare all Offering Documents in accordance with all applicable
requirements of the Securities Act and the Securities Offering
Regulations, in accordance with the intended method of disposition
(and, in the case of an underwritten Offering, consistent in form,
substance, and scope with customary practice for the offering of
securities of corporations by nationally recognized investment banking
firms), (2) file with the SEC such Offering Documents and all other
documents required to permit the disposition of the FMAX Shares,
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provided, that before filing any such Offering Documents (including
any documents incorporated by reference therein), the Company will
furnish to counsel designated by the Selling Stockholder and to the
underwriter(s), if any, copies of all such Offering Documents, which
Offering Documents shall be subject to the review of such counsel(s)
and the underwriter(s), if any, and, where feasible, the Company shall
make such changes in such Offering Documents as are reasonably
requested by such counsel(s) or underwriter(s), and (3) use its
reasonable efforts to have the Registration Statement declared
effective by, and obtain all approvals from, the SEC to the extent
necessary to permit the Offering; provided, however, that the Company
may discontinue an Offering at any time before the effective date of
the Registration Statement; and provided further, that the Company
shall not file any Offering Document which shall be disapproved by the
Selling Stockholder within a reasonable period after the same has been
provided for review;
c. prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep
the Registration Statement continuously effective through the
termination of this Agreement in accordance with its terms and cause
the Offering Documents to be supplemented by any required supplement,
and as so supplemented to be filed, if required, with the SEC during
the period ending upon the earliest of (i) the termination of this
Agreement in accordance with its terms, or (ii) the later of (x) such
time as all of the FMAX Shares have been disposed of in accordance
with the intended method of disposition set forth in such Offering
Documents or, in the case of an Offering made pursuant to Rule 415
under the Securities Act or any successor rule of the SEC (if
applicable), if securities remain unsold at the expiration of the
Offering, such time as the Company shall file, with the consent of the
Selling Stockholder, a post-effective amendment with the SEC
deregistering the securities which remain unsold at the termination of
an Offering or (y) such time as a dealer is not required to deliver a
Prospectus in connection with the Offering, provided, that before
filing any such post-effective amendment, the Company will furnish to
counsel designated by the Selling Stockholder and to the
underwriter(s), if any, copies of the post-effective amendment
(including any document proposed to the filed therewith), which
Offering Documents shall be subject to the review of such counsel(s)
and the underwriter(s), if any, and, where feasible, the Company shall
make such changes in such post-effective amendment as are reasonably
requested by such counsel(s) or underwriter(s);
d. furnish to the Selling Stockholder and to the underwriter(s), if any,
such number of copies of the Offering Documents (including each
amendment and supplement thereto) as they may reasonably request in
order to facilitate the disposition of the FMAX Shares in the
Offering;
e. register or qualify, or cooperate with the Selling Stockholder, the
underwriter(s), if any, and their respective counsel in registering or
qualifying, all FMAX Shares
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for offer and sale under the applicable securities or blue sky laws of
such jurisdictions as FMAX and the underwriter(s), if any, shall
reasonably request in writing, and do any and all other acts and
things which may be reasonably necessary or advisable to enable the
Selling Stockholder and the underwriter(s), if any, to consummate the
disposition in such jurisdictions of the FMAX Shares; provided,
however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified
or to take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or
subject the Company to any tax in any such jurisdiction where it is
not then so subject;
f. use its reasonable efforts to cause the FMAX Shares to be registered
with or approved by such other governmental agencies or authorities as
may be necessary to enable the Selling Stockholder and the
underwriter(s), if any, to consummate the disposition of the FMAX
Shares;
g. cooperate reasonably with any managing underwriter to effect the sale
of the FMAX Shares, including but not limited to attendance of the
Company's executive officers at any planned "road show" presentations;
h. notify the Selling Stockholder and the underwriter(s), if any, at any
time when the Offering Documents include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, promptly take all steps
necessary to correct such deficiencies, and, at the request of the
Selling Stockholder or any underwriter, prepare and furnish to such
Person(s), such reasonable number of copies of any amendment or
supplement to the Offering Documents as may be necessary so that, as
thereafter delivered to the purchasers of the FMAX Shares, such
Offering Documents shall not include any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
light of the circumstances then existing, and to deliver to purchasers
of any other securities of the Company included in the Offering copies
of such Offering Documents as so amended or supplemented;
i. keep the Selling Stockholder informed of the Company's best estimates
of the earliest date on which the Registration Statement will become
effective, and promptly notify the Selling Stockholder of (A) the
effectiveness of the Registration Statement, (B) a request by the SEC
for an amendment or supplement to the Registration Statement or the
Prospectus, (C) the issuance by the SEC of an order suspending the
effectiveness of the Registration Statement, or of the threat of a
proceeding for that purpose, and (D) the suspension of the
qualification of any securities included in the Offering Documents for
sale in any jurisdiction or the initiation or threat of any proceeding
for that purpose;
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j. comply with the provisions of the Securities Offering Regulations and
the Securities Act with respect to the disposition of the FMAX Shares
covered by the Offering Documents in accordance with the intended
method of distribution set forth in such Offering Documents;
k. list the securities proposed to be sold in an Offering on the New York
Stock Exchange, or on such other securities exchange or inter-dealer
quotation system on which the Common Stock is then listed, not later
than the closing of the Offering;
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l. enter into such customary agreements (including but not limited to an
underwriting agreement in customary form) and take such other
reasonable actions as FMAX or the underwriter(s), if any, reasonably
request in order to expedite or facilitate the disposition of the FMAX
Shares; and
m. upon prior notice, make available for reasonable inspection by any
underwriter(s) participating in the disposition of the FMAX Shares to
be effected pursuant to the Offering Documents and by any attorney,
accountant, or other agent retained by any such Person(s), its
financial and other records, pertinent corporate documents and
properties of the Company, and such opportunities to discuss the
business of the Company with its officers, directors, and employees
and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinions of such
underwriters' respective counsels, to conduct a reasonable
investigation; provided, that any records, information, or documents
that are designated by the Company in writing as confidential shall be
kept confidential by each such Person, unless disclosure of such
records, information, or documents is required by law, by judicial or
administrative order, or in order to defend a claim asserted against
such Person in connection with the Offering.
6. Duties of the Selling Stockholder.
a. Information. The Company may require the Selling Stockholder to
furnish it with such information regarding the Selling Stockholder and
regarding the method of distribution as is pertinent to the disclosure
requirements relating to an Offering as the Company may from time to
time reasonably request in writing.
b. Use of Offering Documents Upon Notice of Defects. The Selling
Stockholder agrees, and shall cause underwriter(s), if any, acting on
its behalf to agree, that upon receipt of any notice from the Company
of the happening of any event of the kind described in Paragraph 5(h),
it will immediately discontinue the use of the Offering Documents
covering the FMAX Shares until the receipt by the Selling Stockholder
and any such underwriter(s) of the copies of the supplemented or
amended Offering Documents contemplated by such clause (which copies
shall be provided by the Company as soon as possible) and, if so
directed by the Company, the Selling Stockholder will deliver and
cause each underwriter, if any, to deliver to the Company all copies,
other than permanent file copies then in the possession of the Selling
Stockholder or any such underwriter, of the Offering Documents
covering the FMAX Shares at the time of receipt of such notice. If the
Company shall give any such notice, the period mentioned in Paragraph
1(b)(ii) shall be extended by the number of days during which
offerings were suspended (i.e., the period from and including the date
of the receipt of such notice pursuant to Paragraph 5(h), to and
including the date when the Selling Stockholder shall have received
the copies of the supplemented or amended Offering Documents
contemplated by such clause).
c. Maximum Sale to Any Person; Sales Prices. The Selling Stockholder
agrees that it will not knowingly sell to any Person a number of FMAX
Shares representing
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greater than 1% of the outstanding Common Stock, and that it will not
knowingly sell to any person a number of FMAX Shares which would cause
that Person's aggregate holdings of Common Stock to exceed 1% of the
outstanding Common Stock. The Selling Stockholder further agrees that
it will not sell any FMAX Shares at a price more than 2% below the
Market Price. The "Market Price" for FMAX Shares on any day of sale
shall mean the lowest sale price of shares of Common Stock on such
day, or, if that day is not a trading day, on the trading day
immediately preceding such day, on the national securities exchange or
the Nasdaq National Market on which Common Stock is traded.
d. Sale Notifications. If, after the first 60 days of the term of this
Agreement, the Selling Stockholder desires to sell FMAX Shares in a
transaction covered by the Registration Statement, it shall give notice to
the Company of the proposed sale at least three trading days before such
proposed date of sale. Within two trading days of receipt of notice of a
proposed sale by the Selling Stockholder, the Company will advise the
Selling Stockholder either that it has no objection to such sale or that
such sale should be delayed for up to 60 days, on the basis that the
Company is involved in a confidential proposed transaction or negotiations
therefor (which have been previously disclosed to the Company's Board of
Directors) which would not require the Company to make or amend any public
filings under the securities laws at that time. If the Company has not
delayed such proposed sale as permitted in this subparagraph, the Company
shall take all actions necessary to permit such sale on the proposed date
of sale pursuant to the Registration Statement. If the Company shall give
notice that the proposed sale shall be delayed, the period mentioned in
Paragraph 1(b)(ii) shall be extended by the number of days during which the
proposed sale was delayed by the Company. Upon any such sale the Selling
Stockholder shall notify the Company in writing on the date of such sale of
the number of FMAX Shares sold on such date.
7. Resales, Reports Under Exchange Act. In order to permit the Selling
Stockholder to sell the FMAX Shares, if it so desires, pursuant to any
applicable resale exemption under the Securities Offering Regulations or the
Securities Act, the Company will, through the termination of this Agreement in
accordance with its terms:
a. comply with all rules and regulations of the SEC in connection
with use of any such resale exemption;
b. make and keep available adequate and current public information
regarding the Company;
c. file with the SEC in a timely manner, all reports and other
documents required to be filed under the Securities Act, the
Exchange Act, or the Securities Offering Regulations, and make
any and all modifications to the Offering Documents to cause them
to be in compliance with the requirements of the Securities Act
and the Securities Offering Regulations;
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d. furnish to the Selling Stockholder copies of annual reports
required to be filed under the Exchange Act and the Securities
Offering Regulations; and
e. furnish to the Selling Stockholder, upon request, (1) a copy of
the most recent quarterly report of the Company and such other
reports and documents filed by the Company with the SEC and (2)
such other information as may be reasonably requested to permit
the Selling Stockholders pursuant to any applicable resale
exemption under the Securities Act or the Securities Offering
Regulations, if any.
8. Indemnification. The obligations of indemnification of the Parties set
forth in this Paragraph 8 shall be in addition to any liability which any Party
may otherwise have to any other party.
a. Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, the
Selling Stockholder, its officers, directors, employees and
agents, each Person who participates as an underwriter in an
Offering, each officer, director, employee, or agent of such an
underwriter, and each Person who controls (within the meaning of
the Securities Act) FMAX and such an underwriter against any and
all losses, claims, damages, liabilities, and expenses, joint or
several, including without limitation reasonable legal or other
expenses incurred in connection with investigating or defending
against any loss, claim, damage, or liability, or action or
proceeding (whether commenced or threatened) in respect thereof,
caused by any untrue statement or alleged untrue statement of a
material fact contained in any of the Offering Documents relating
to an Offering or a document filed by the Company under the
Exchange Act (an "Exchange Act Document") or any omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were
made, except insofar as the same are (i) made in reliance on and
in conformity with any information about the Selling Stockholder
or any underwriter furnished in writing to the Company by the
Selling Stockholder or any underwriter specifically for inclusion
in any of the Offering Documents relating to an Offering or
Exchange Act Documents or (ii) the result of the fact that the
Selling Stockholder or any underwriter sold FMAX Shares to a
Person to whom there was not sent or given, at or before the
written confirmation of such sale, a copy of the final Offering
Documents, if the Company has previously furnished copies thereof
to FMAX or such underwriter and such final Offering Documents
corrected such untrue statement or alleged untrue statement or
omission or alleged omission.
b. Indemnification by FMAX. FMAX agrees to indemnify and hold
harmless, to the full extent permitted by law, the Company, its
officers, directors, employees, and agents, each Person who
participates as an underwriter in an Offering, each officer,
director, employee or agent of such an underwriter, and each
Person who controls (within the meaning of the Securities Act)
the Company and such underwriter against any and all losses,
claims, damages, liabilities, and expenses, joint or several,
including without limitation reasonable legal or other expenses
incurred in connection with investigating or defending against
any loss, claim,
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damage, or liability, or action or proceeding (whether commenced
or threatened) in respect thereof, caused by any untrue statement
or alleged untrue statement of a material fact contained in any
of the Offering Documents relating to an Offering or any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were
made, but only to the extent that such untrue statement or
omission is made in reliance on and in conformity with any
information furnished in writing by FMAX concerning FMAX to the
Company specifically for inclusion in the Offering Documents
relating to the Offering.
c. Notices of Claims, Procedures. Promptly after receipt by an
indemnified party hereunder of written notice of the commencement
of any action or proceeding with respect to which a claim for
indemnification may be made pursuant to this Paragraph 8, such
indemnified party will, if a claim in respect thereof is to be
made against an indemnifying party, give written notice to the
indemnifying party of the commencement of such action; provided,
that the failure of the indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
obligations under this Paragraph 8, except to the extent that the
indemnifying party is actually materially prejudiced by such
failure to give notice. If any such action is brought against an
indemnified party (unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim) the
indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying
party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party
for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that, any
Person entitled to indemnification hereunder shall have the right
to employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at
the expense of such Person unless (A) the indemnifying party has
agreed to pay such fees or expenses or (B) the indemnifying party
shall have failed to assume the defense of such claim and employ
counsel reasonably satisfactory to such Person or (C) in the
reasonable judgment of any such Person based upon advice of its
counsel, a conflict of interest may exist between such Person and
the indemnifying party with respect to such claims (in which
case, if the Person notifies the indemnifying party in writing
that such Person elects to employ separate counsel at the expense
of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claim on behalf of such
Person). If such defense is not assumed by the indemnifying
party, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such
consent will not be unreasonably withheld). No indemnifying party
will consent to entry of any judgment or enter into any
settlement which does not include, as an
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unconditional term thereof, the giving by the claimant or
plaintiff to such indemnified party of a release from all
liability in respect of such claim or litigation. An indemnifying
party who is not entitled to or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of
more than one counsel in each jurisdiction for all parties
indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party
a conflict of interest may exist between such indemnified party
and any other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or
counsels.
d. Contribution. If the indemnification provided for this in this
Paragraph 8 from the indemnifying party is unavailable to an
indemnified party hereunder (other than pursuant to the terms
hereof) in respect of any losses, claims, damages, liabilities,
or expenses referred to herein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities, or expenses in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with the
actions that resulted in such losses, claims, damages,
liabilities, or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among
other things, whether any action in question, including any
untrue statement or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such
indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information, and
opportunity to correct or prevent such action. The amount paid or
payable by an indemnified party as a result of the losses,
claims, damages, liabilities, and expense referred to above shall
be deemed to include, subject to the limitations set forth in
this Paragraph 8(d), any legal or other fees or expenses
reasonably incurred by such indemnified party in connection with
any investigation or proceeding. The Parties agree that it would
not be just and equitable if contributions pursuant to this
Paragraph 8(d) were determined by a pro rata allocation or by any
other method of allocation that does not take into account the
equitable considerations referred to above. No Person guilty of
fraudulent misrepresentation shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation.
9. Miscellaneous.
a. Amendments and Waivers. This Agreement may be amended, and the
Company may take any action herein prohibited or omit to perform
any act herein required to be performed by it, only if the
Company shall have obtained the written consent of FMAX to such
amendment, action or omission to act.
b. Successors, Assigns and Transferees. This Agreement shall be
binding upon the parties hereto and their respective successors
and assigns.
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c. Notices. Any notice, request, demand, consent, approval or other
communication permitted or required to be given to any of the
parties hereunder shall be deemed given when received, shall be
in writing, and shall be delivered in person or sent by certified
mail, postage prepaid, or by private courier service or by
telecopy or telex, to such party at its address set forth below
or at such other address as such party may hereunder furnish in
writing to the other parties.
(i) if to the Company, to:
Bay View Capital Corporation
1840 Gateway Drive
San Mateo, California 94404
Attention: General Counsel
(ii) if to FMAX, to:
FMAX Holdings, L.L.C.
23350 Hawthorne Blvd.
Building 1, Suite 240
Torrance, California 90505
Attention: General Counsel
d. Headings. The headings in this Agreement are for the convenience
of reference only and shall not limit or otherwise affect the
meaning of the interpretation of this Agreement or any provision
hereof.
e. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any
respect for any reason, the validity, legality and enforceability
of such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, it being
intended that all rights, powers and privileges of the parties
hereto shall be enforceable to the fullest extent permitted by
law.
f. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an
original, and all such counterparts shall together constitute one
and the same instrument.
g. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the United States of America and,
in the absence of controlling federal law, in accordance with the
laws of the State of Delaware. Any legal action or proceedings
with respect to this Agreement shall be brought in the federal
courts of the United States located in California (or, in the
event no federal court has jurisdiction over such matter, in the
California state courts) and each of the parties hereto submits
to the exclusive jurisdiction of such courts and hereby waives
any objections on the grounds of venue, forum non conveniens or
any similar grounds.
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h. Entire Agreement. This Agreement embodies the entire agreement of
the parties hereto in relation to the subject matter hereof and
supersedes all prior understandings or agreements, oral or
written, with respect thereto among the parties hereto.
i. Certain Remedies. Without in any way limiting the remedies
otherwise available under this Agreement, the parties hereto
acknowledge that, in the event of any breach or nonperformance by
any party of the agreements or covenants required by this
Agreement to be performed or observed by it, the other parties
shall be entitled to such equitable remedies as may be
appropriate, including, without limitation specific performance.
j. Satisfaction of Registration Rights. The Parties agree that the
execution of this Agreement and the fulfillment of the Company's
obligations hereunder shall satisfy in every respect the
Company's obligations to grant registration rights to FMAX
pursuant to Section 17 of the letter agreement between the
Company and FMAX dated March 11, 1999.
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IN WITNESS WHEREOF, each of the undersigned has executed this Agreement or
caused this Agreement to be executed on its behalf as of the date first written
above.
BAY VIEW CAPITAL CORPORATION
By: /s/ Edward H. Sondker
------------------------------
Name: Edward H. Sondker
Title: President and Chief
Executive Officer
FMAX HOLDINGS, L.L.C.
By: /s/ Irwin L. Gubman
-----------------------------
Name: Irwin L. Gubman
Title: General Counsel
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