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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)/1/
Arbor National Holdings, Inc.
(Name of issuer)
Common Stock, $0.01 par value
(Title of class of securities)
038761 10 2
(CUSIP number)
Cheryl Sorokin
Executive Vice President and Secretary
BankAmerica Corporation
555 California Street, San Francisco, CA 94104
(415) 622-2091
(Name, address and telephone number of person authorized
to receive notices and communications)
December 15, 1994
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this statement [ ]. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
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with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
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be sent.
(Continued on following pages)
(Page 1 of 13 Pages)
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/1/ The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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CUSIP No. 038761 10 2 13D Page 2 of 13 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BankAmerica Corporation
IRS Identification No. 94-1681731
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e)
[ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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7 SOLE VOTING POWER -0-
NUMBER OF ----------------------------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 3,886,334 (See Item 5.)
OWNED BY ----------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER -0-
REPORTING ----------------------------------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH 3,886,334 (See Item 5.)
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
3,886,334 (See Item 5.)
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
57.9% (See Item 5.)
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14 TYPE OF REPORTING PERSON*
HC
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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[Attachment to Schedule 13-D]
BankAmerica Corporation, a Delaware corporation ("BAC"), hereby amends,
supplements and restates as Amendment No. 1 portions of the statement on
Schedule 13D filed by BAC on October 3, 1994 with respect to shares of Common
Stock, par value $0.01 per share (the "Shares") of Arbor National Holdings,
Inc., a New York corporation (the "Issuer"). All terms referred to herein shall
have the meaning given them in such Schedule 13D.
Item 4. Purpose of Transactions.
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Item 4 is hereby amended, supplemented and restated as follows:
A restated Agreement and Plan of Merger dated as of September 23, 1994
(the "Initial Merger Agreement") was entered into by and among the Issuer, BAC,
Bank of America, FSB, a federal savings bank and a wholly owned subsidiary of
BAC ("BAFSB"), and AHAC. The Initial Merger Agreement provides for the
acquisition by BAC of the Issuer through the merger of AHAC into the Issuer (the
"Merger"). A copy of the Initial Merger Agreement is attached hereto as
Exhibit G.
Following the public announcement of the Initial Merger Agreement, six
separate actions (the "Actions") were filed in New York State Supreme Courts
naming Arbor, the individual members of the Arbor board of directors and, in
five cases, BAC as defendants (collectively, the "Defendants"). Following the
filing of the complaints in the Actions, counsel for the plaintiffs in the
Actions engaged in discussions with counsel for the Defendants. As a result of
these discussions, the parties to the Initial Merger Agreement entered into an
Amendment to Agreement and Plan of Merger dated as of December 15, 1994 (the
"Amendment"). A copy of the Amendment is attached hereto as Exhibit H. The
Initial Merger Agreement, as amended by the Amendment, is referred to
herein as the "Merger Agreement."
The Merger Agreement provides that at the Effective Time (as defined in
the Merger Agreement) each of the Shares issued and outstanding immediately
prior to the Effective Time (other than Shares held in the Issuer's treasury and
Dissenting Shares, as defined in the Merger Agreement) shall be converted into
and exchangeable for the number (the "Exchange Ratio") of shares of BAC common
stock, $1.5625 par value (the "BAC Shares") equal to the Final Per Share Merger
Price (as defined below) divided by the Average Closing
(Page 3 of 13 Pages)
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Price (as defined below), as described below (provided that holders of Shares
will receive a specified cash amount in lieu of fractional shares).
"Average Closing Price" means the average closing sales price per share
of BAC Shares on the New York Stock Exchange ("NYSE"), for the 20 consecutive
NYSE trading days (the "Valuation Period") ending on the fifth NYSE trading day
prior to the date on which the last of the approval of the Federal Reserve Board
under the Bank Holding Company Act and the Federal Reserve Act and the approval
of the Office of Thrift Supervision under the Home Owners' Loan Act, as required
to consummate the transactions contemplated by the Merger Agreement, is
obtained; provided, that subject to the provisions of Section 9.1(g) of the
Merger Agreement, for purposes of calculating the Exchange Ratio,
notwithstanding the actual amount of the Average Closing Price, in no event
shall the Average Closing Price utilized in making such calculation be less than
$39.31 nor more than $53.19. If the Average Closing Price is less than $37.00,
Issuer may at its option terminate the Merger Agreement unless BAC increases the
Exchange Ratio such that the BAC Shares issued in exchange for each Share have a
nominal value (valued at the Average Closing Price) equal to the value of the
per Share consideration that would have been received had the Average Closing
Price been $37.00.
"Company Option" means each option to purchase Shares issued pursuant
to the Issuer's 1992 Stock Incentive Plan or the Issuer's Stock Option Plan for
Non-Employee Directors.
"Final Per Share Merger Price" shall mean the amount obtained by
dividing (x) the sum (the "Final Merger Price") of (i) $117,940,758, (ii) the
Purchase Price Adjustment (as defined below) and (iii) the Net ANCMC Amount (as
defined below) by (y) the sum of the total number of Shares outstanding
(excluding treasury shares) immediately prior to the Effective Time and the
total number of Shares which, immediately prior to the Effective Time and prior
to the cancellation of Company Options (as defined below) pursuant to the Merger
Agreement, are issuable pursuant to the exercise of Company Options.
"Purchase Price Adjustment" means the aggregate increase or decrease
pursuant to the adjustments described in Section 2.6 of the Merger Agreement,
including, without limitation, the Post Valuation Date Adjustment, provided,
that in the event the aggregate increase to the Estimated Merger Price described
in paragraphs (a) through (d) of Section 2.6 of the Merger Agreement shall be
equal to or
(Page 4 of 13 Pages)
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less than $1.0 million, or the aggregate decrease to the Estimated Merger Price
described in paragraphs (a) through (d) of Section 2.6 of the Merger Agreement
shall be equal to or less than $2.0 million, the Purchase Price Adjustment shall
be equal to zero (0).
"Net ANCMC Amount" means the cash sale price received by the Issuer for
all of the capital stock of Arbor National Commercial Mortgage Company, a New
York corporation and a wholly owned subsidiary of the Issuer ("ANCMC"), pursuant
to the Merger Agreement, minus 43% of the gain recognized with respect to such
sale for federal and state income tax purposes. Pursuant to the Merger
Agreement, Issuer was obligated to use reasonable efforts to initiate an auction
of, and consummate the sale of, ANCMC prior to the consummation of the Merger.
Following completion of the auction process, Issuer selected Ivan Kaufman as the
winning bidder.
"Post Valuation Date Adjustment" means the net amount of the Non-
Consenting Deduction (as defined in the Merger Agreement) plus the Trailer
Document Deduction (as defined in the Merger Agreement) plus all amounts to be
included in the Post Valuation Date Adjustment pursuant to the Merger Agreement.
Consummation of the Merger is subject to certain conditions, including,
but not limited to, approval of the Merger Agreement by the shareholders of
Issuer, the receipt of all required regulatory approvals, the receipt of
consents to the Merger and related transactions by federal secondary mortgage
market agencies and with respect to a designated percentage of Arbor's private
mortgage servicing portfolio, by private investors for whom Issuer services
mortgage loans, and the qualification of the Merger for "pooling of interests"
accounting treatment and as a tax-free reorganization.
It currently is intended that, immediately following the Closing Date
(as defined in the Merger Agreement), first the Issuer and then each of its
subsidiaries will adopt plans of liquidation and transfer all of their
respective assets and employees and certain of their respective liabilities to
BAFSB, and the Issuer and such subsidiaries will be dissolved.
Pursuant to the Merger Agreement, upon the occurrence of certain
specified events (none of which has occurred), Issuer will pay BAC a termination
fee of $3,000,000.
(Page 5 of 13 Pages)
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Under the Voting Agreements, the Shareholders agree to vote (or cause
to be voted) the Shares owned by them, in any circumstance in which the vote or
approval of the shareholders of the Issuer is sought, (a) in favor of (i)
adoption of the Merger Agreement and approval of the Merger and the transactions
contemplated by the Merger Agreement, and (ii) any other matter relating to the
consummation of the transactions contemplated by the Merger Agreement; and (b)
against (i) any proposal for any recapitalization, merger, sale of assets or
other business combination between the Issuer or any other person or entity
(other than the Merger) or any other action or agreement that would result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of the Issuer under the Merger Agreement or which could result in any
of the conditions to BAC's or the Issuer's obligations under the Merger
Agreement not being fulfilled, or (ii) any proposal or transaction which would
in any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger Agreement,
as more fully described in, and under the circumstances set forth in, the Voting
Agreements.
Under the Proxy Agreements, the Shareholders irrevocably grant to BAC
and appoint BAC (with full power of substitution) their proxies to vote the
Shares owned by them in the manner described in the preceding paragraph, as more
fully described in, and under the circumstances set forth in, the Proxy
Agreements.
The Voting Agreements and the Proxies will terminate upon the first of
(i) the Effective Time, (ii) the termination of the Merger Agreement, and (iii)
September 23, 1995.
BAC (or any lawful subsequent holder of the Stock Option Agreements)
may exercise the Stock Options following the occurrence of any of the following
events (each, a "Triggering Event"):
(a) prior to the termination of the Merger Agreement, (i) any person
or group, other than BAC or any of its affiliates, shall have commenced a
tender or exchange offer for 19.9% or more of the outstanding Shares, (ii)
the acquisition by any person or group, other than BAC or any of its
affiliates and other than the Shareholders, of the beneficial ownership or
the right to acquire beneficial ownership of 19.9% or more of the
outstanding Shares; (iii) the failure of the Issuer's stockholders to
approve the Merger Agreement at
(Page 6 of 13 Pages)
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a meeting called to consider the Merger Agreement, if such meeting shall
have been preceded by (x) the public announcement by any person or group
(other than BAC or any of its affiliates) of an offer or proposal to
acquire, merge or consolidate with the Issuer, (y) the filing of an
application or notice, other than by BAC or any of its affiliates, under any
federal or state banking, insurance, antitrust or other statute, with
respect to the acquisition or proposed acquisition of 19.9% or more of the
outstanding Shares, or (z) the Board of Directors of the Issuer (the
"Board") publicly withdrawing or modifying, or publicly announcing its
intent to withdraw or modify, its recommendation that the shareholders of
the Issuer approve the transactions contemplated by the Merger Agreement; or
(iv) the acceptance by the Board of, or the public recommendation by the
Board that the stockholders of the Issuer accept, an offer or proposal from
any person or group (other than BAC or any of its affiliates), to acquire
19.9% or more of the outstanding Shares, or a substantial portion (19.9% or
more) of the consolidated assets of the Issuer, or for a merger or
consolidation or any similar transaction involving the Issuer;
(b) the occurrence of any of the events described in clause (a)
(without regard to the provision that such event occur prior to the
termination of the Merger Agreement) within six (6) months following the
termination of the Merger Agreement by BAC pursuant to Section 9.1(f)
thereof;
(c) after a proposal is made by a third party to the Issuer or its
shareholders to engage in (i) a merger or consolidation, or any similar
transaction, involving the Issuer, (ii) a purchase, lease or other
acquisition representing 19.9% or more of the consolidated assets of the
Issuer, or (iii) a purchase or other acquisition (including by way of
merger, consolidation, share exchange or otherwise) of securities
representing 19.9% or more of the voting power of the Issuer, the Issuer
shall have breached any covenant or obligation contained in the Merger
Agreement and such breach (x) would entitle BAC to terminate the Merger
Agreement pursuant to Section 9.1(f) thereof and (y) shall not have been
cured prior to the date the holder of the respective Stock Option Agreements
duly gives notice to the respective Shareholders of its desire to exercise
the respective Stock Options pursuant to Section 2.3 of the Stock Option
Agreements; and
(Page 7 of 13 Pages)
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(d) with respect to each Stock Option Agreement, any material breach
by the applicable Shareholder of such Stock Option Agreement or the Voting
Agreement or Proxy Agreement signed by such Shareholder.
The Stock Options will expire upon the first to occur of (i) the
consummation of the Merger, (ii) consent of BAC and the respective Shareholders,
(iii) the termination of the Merger Agreement, unless a Triggering Event shall
have occurred or may occur pursuant to Section 1.3(d) of the respective Stock
Option Agreements, (iv) the expiration of the 6-month period specified in
clause (b) of the definition of Triggering Event herein, unless a Triggering
Event shall have occurred, (v) the expiration of a 12-month period following the
first Triggering Event. BAC shall pay in cash for the Shares purchased pursuant
to the Stock Options.
Upon exercise of the Stock Options, the holder or holders of Shares
issued upon such exercise (the "Underlying Shares") shall, within 6 months from
the date of such exercise, either:
(i) offer, or cause the Issuer or an affiliate of such holder to
offer, to acquire all of the outstanding Shares not then held by such holder
or any affiliate thereof (the "Minority Shares") for cash at a per share
price not less than the per share Exercise Price paid to Shareholders upon
such exercise (as adjusted for any changes in the Company's capitalization
after the exercise date); or
(ii) sell, exchange, transfer or otherwise dispose of all of such
Shares to one or more persons or entities (other than BAC or any affiliate
thereof) (a "Third Party") on terms substantially equivalent to those
offered by such persons or entities to the holders of those Minority Shares
not already held by such persons or entities.
In the event that (x) the holder of the Underlying Shares fails to
purchase all of the Minority Shares or (y) a Third Party shall not have
purchased all of the Underlying Shares and the Minority Shares within the period
specified above, each Shareholder shall have the option, within 60 days after
the expiration of such period, to repurchase at a per share price equal to the
Exercise Price (subject to adjustment as provided above) all Shares previously
acquired from such Shareholder upon exercise of the Stock Options from the
holder or holders thereof.
(Page 8 of 13 Pages)
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It currently is anticipated that, following the Merger, until the
liquidation of the Issuer described herein, the board of directors of AHAC will
become the board of directors of Issuer, and the articles of incorporation and
bylaws of AHAC will become the Articles of Incorporation and bylaws of Issuer.
Pursuant to the Voting Agreements, the Shareholders, until the earlier
to occur of (a) termination of the Merger Agreement and (b) the Effective Time,
shall not transfer any of their Shares or any interests therein, except pursuant
to the Merger, unless the transferee agrees with BAC and AHAC that it has
acquired such Shares or interest subject to the Voting Agreement and the Proxy
Agreement. BAC may transfer the Options and any Shares acquired upon exercise
thereof only as set forth in the Stock Option Agreements.
Except as described above, BAC and the Issuer have no plans or
proposals which relate to, or may result in, any of the matters listed in Items
4(a) - (j) of Schedule 13D (although BAC and the Issuer reserve the right to
develop such plans).
The descriptions herein of the Initial Merger Agreement, the Amendment,
the Stock Option Agreements, the Voting Agreements and the Proxy Agreements are
qualified in their entirety by reference to such agreements, all of which are
incorporated herein by reference.
Item 7. Material to be Filed as Exhibits.
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Item 7 is hereby amended, supplemented and restated as follows:
*Exhibit A - Stock Option Agreement between Ivan Kaufman and BAC
*Exhibit B - Stock Option Agreement between Anita Kaufman and BAC
*Exhibit C - Voting Agreement between Ivan Kaufman and BAC
*Exhibit D - Voting Agreement between Anita Kaufman and BAC
*Exhibit E - Proxy Agreement between Ivan Kaufman and BAC
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*Exhibit F - Proxy Agreement between Anita Kaufman and BAC
*Exhibit G - Initial Merger Agreement
**Exhibit H - Amendment to Initial Merger Agreement
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* Exhibits marked with "*" were previously filed with the Schedule 13D filed on
October 3, 1994.
** Exhibit marked with "**" was previously filed with the Form S-4 filed on
December 19, 1994.
(Page 10 of 13 Pages)
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After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this statement is
true, complete and correct.
DATED: December 19, 1994
BANKAMERICA CORPORATION
By: /s/ Cheryl Sorokin
Name: Cheryl Sorokin
Title: Executive Vice President
and Secretary
(Page 11 of 13 Pages)
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GENERAL OPERATING AND BORROWING RESOLUTION
Cheryl Sorokin, Executive Vice President and Secretary of BAC, executed
this Amendment No. 1 to Schedule 13D pursuant to BankAmerica Corporation's
General Operating and Borrowing Resolution, a copy of which was attached to the
Schedule 13D filed by BAC on October 3, 1994 and is hereby incorporated by
reference.
(Page 12 of 13 Pages)
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EXHIBIT INDEX
A new exhibit is hereby added, as follows:
NUMBER NAME
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Exhibit H - Amendment to Initial Merger Agreement (incorporated by reference
to Exhibit 2.2 to BAC's Form S-4 filed December 19, 1994)
(Page 13 of 13 Pages)
