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 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
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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]
5. Section 5.17 of the Agreement is hereby amended to read in its
entirety as follows:
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5.17 Impermissible Activities. FMAC shall use its reasonable
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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
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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)
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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.
8. Section 6.1(j) of the Agreement is hereby amended to read in its
entirety as follows:
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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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