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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Act of 1934
(Amendment No. ______________)*
Onyx Acceptance Corporation
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(Name of Issuer)
Common Stock, Par Value $0.01 per share
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(Title of Class of Securities)
682 914 106
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(CUSIP Number)
Robert J. Flax
Executive Vice President, General Counsel and Secretary
Bay View Capital Corporation
1840 Gateway Drive, San Mateo, California 94404
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 17, 1998
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(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 Sections
240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following
box __.
*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. 682 914 106 13D
1 NAME OF REPORTING PERSON
IDENTIFICATION NUMBER OF ABOVE PERSON
(VOLUNTARY)
Bay View Capital Corporation 94-3078031
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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
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5 CHECK 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
NUMBER OF 330,530
SHARES --------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
EACH --------------------------------------------------
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON WITH 330,530
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
330,530
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES
__
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.3%
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14 TYPE OF REPORTING PERSON*
CO
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Item 1. Security and Issuer
The class of equity securities to which this statement
relates is the common stock, par value $.01 per share (the
"Onyx Common Stock"), of Onyx Acceptance Corporation ("Onyx").
The principal executive offices of Onyx are located at 8001
Irvine Center Drive, 5th Floor, Irvine, California 92618.
Item 2. Identity and Background
This statement is being filed by Bay View Capital
Corporation, a Delaware corporation ("Bay View"). The principal
executive offices of Bay View are located at 1840 Gateway Drive,
San Mateo, California 94404. Bay View is a diversified financial
services company which conducts its business through its primary
wholly owned subsidiaries (i) Bay View Bank, a federally
chartered stock savings bank, (ii) Bay View Acceptance
Corporation, a consumer finance company which originates prime
motor vehicle loans through its wholly owned subsidiaries Bay
View Credit and Ultra Funding, Inc. and (iii) Concord Growth
Corporation, a commercial finance company.
Information regarding each of the directors and executive
officers of Bay View is set forth on Schedule I attached hereto.
Each of such persons is a citizen of the United States.
During the last five years, neither Bay View nor, to the
best of Bay View's knowledge, any of the individuals listed in
Schedule I, has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors) or been a
party to a civil proceeding of a judicial or administrative body
of competent jurisdiction and as a result of such proceeding was
or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
Bay View has acquired beneficial ownership of 330,530 shares
of Onyx Common Stock as follows:
(i) 150,000 shares purchased through open market brokerage
transactions using general corporate funds at an
aggregate cost of $1,301,877;
(ii) 180,530 shares purchasable pursuant to the Common
Stock Purchase Warrant (the "Warrant") issued to Bay
View by Onyx in consideration for Bay View's
extension of credit to Onyx pursuant to the Term Loan
Agreement between Bay View as lender and Onyx as
borrower (the "Term Loan Agreement"). Should Bay View
decide to purchase Onyx Common Stock pursuant to the
Warrant, Bay View intends to finance such purchase
with general corporate funds. The Warrant is included
as Exhibit I hereto and incorporated by reference
herein.
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None of the persons listed in Schedule I beneficially owns
any shares of Onyx Common Stock.
Item 4. Purpose of Transaction
The shares of Onyx Common Stock purchased by Bay View as
described in Item 5 were acquired for investment. The Warrant
was issued to Bay View by Onyx in consideration for Bay View's
extension of credit to Onyx pursuant to the Term Loan Agreement.
Bay View regularly explores merger, acquisition, strategic
alliance and other business combination opportunities that it
believes will further its objective of building a diversified
financial services company through investments in niche
businesses with risk-adjusted returns that enhance shareholder
value. On January 26, 1998, Bay View announced the formation of
a strategic alliance with Onyx pursuant to which Bay View will
purchase certain retail motor vehicle sales contracts originated
by Onyx. Bay View does not have any current plans to engage in
any other transactions with Onyx. Bay View may, however,
depending on market conditions and other factors, purchase
additional shares of Onyx Common Stock or dispose of shares of
Onyx Common Stock.
Except as noted above, neither Bay View nor any of the
persons listed in Schedule I has any plans or proposals
which relate to or would result in:
(a) the acquisition by any person of additional securities
of Onyx, or the disposition of securities of Onyx;
(b) an extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving Onyx or
any of its subsidiaries;
(c) a sale or transfer of a material amount of assets of
Onyx or any of its subsidiaries;
(d) any change in the present Board of Directors or
management of Onyx, including any plans or proposals to
change the number or term of directors or to fill any existing
vacancies on the Board;
(e) any material change in the present capitalization or
dividend policy of Onyx;
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(f) any other material change in Onyx's business or
corporate structure;
(g) changes in Onyx's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of Onyx by any person;
(h) causing a class of securities of Onyx to be
delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-quotation system of a
registered national securities association;
(i) a class of equity securities of Onyx becoming
eligible for termination of registration pursuant to Section
12(g)(4) of the Securities Exchange Act of 1934; or
(j) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer
The aggregate number of shares of Onyx Common Stock
beneficially owned by Bay View is 330,530 shares, representing
approximately 5.3% of the outstanding shares of Onyx Common
Stock. This amount includes 180,530 shares which Bay View has
the right to purchase, at any time from time to time, pursuant to
the Warrant, at an exercise price of $8.8750 per share (subject
to adjustment in the event of a stock dividend, stock split or
similar transaction). Bay View has sole voting and dispositive
power over all 150,000 shares of Onyx Common Stock which it
currently holds, and would have sole voting and dispositive power
over all 183,530 shares covered by the Warrant if it were
exercised.
The 150,000 shares of Onyx Common Stock which Bay View
currently holds were purchased in open market brokerage
transactions, as follows: (i) 6,000 shares purchased on January
21, 1998 at $7.6250 per share; (ii) 4,000 shares purchased on
January 22, 1998 at $7.8750 per share; (iii) 6,000 shares
purchased on January 22, 1998 at $8.0000 per share; (iv) 29,000
shares purchased on January 23, 1998 at $8.4612 per share; (v)
35,000 shares purchased on January 26, 1998 at $9.0000 per share;
and (vi) 70,000 shares purchased on January 27, 1998 at $8.8036
per share.
The Warrant was executed by Onyx on March 17, 1998.
None of the individuals identified in Schedule I
beneficially owns any shares of Onyx Common Stock.
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Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to the Securities of
the Issuer
Except for the Warrant and the Term Loan Agreement
(described below), there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between Bay
View or any of the persons listed in Schedule I and any other
person with respect to any securities of Onyx, including but not
limited to, transfer or voting of any of such securities,
finder's fees, joint ventures, loan or option arrangements, put
or calls, guarantees of profits, divisions of profits or loss, or
the giving or withholding of proxies. None of the Onyx Common
Stock beneficially owned by Bay View is pledged or otherwise
subject to a contingency the occurrence of which would give
another person voting power or investment power over such shares.
Under the Term Loan Agreement, Bay View, as lender, has
agreed to make subordinated term loans to Onyx, as borrower, from
time to time as Onyx may request prior to February 24, 2000, in a
principal amount up to but not exceeding $10,000,000 at a rate of
9.5% per annum.
Item 7. Material to be Filed as Exhibits
Exhibit I: Common Stock Purchase Warrant.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
Statement is true, complete and correct.
BAY VIEW CAPITAL CORPORATION
Date: March 26, 1998 /s/ ROBERT J. FLAX
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Robert J. Flax
Executive Vice President,
General Counsel and Secretary
Page 7 of 7
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Schedule I
Information Regarding Directors and Executive Officers
of Bay View
The name, present principal occupation or employment, and the
name and principal business of any corporation or other
organization in which such employment is conducted, of each of
the directors and executive officers of Bay View, is set forth
below. The address of each person listed below is Bay View
Capital Corporation, 1840 Gateway Drive, San Mateo, California
94404.
Name Position Principal Occupation,
with Bay View if other than as an
Executive Officer
of Bay View
- ----------------- --------------- -----------------------
Richard E. Arnold Executive Vice
President
Rupert N. Ayton Senior Vice
President
John N. Buckley Executive Vice
President
Paula R. Collins Director Principal, The WDG
Companies, San
Francisco, CA
Roger K. Easley Director Chairman, President
and Chief Executive
Officer, Seven-Up
Bottling Company of
San Francisco, CA
Robert J. Flax Executive Vice
President, General
Counsel & Secretary
Thomas M. Foster Director Independent Financial
Consultant
Robert M. Greber Director Chairman and Chief
Executive Officer,
Pacific Exchange
David A. Heaberlin Executive Vice
President and Chief
Financial Officer
George H. Krauss Director Of Counsel, Kutack
Rock, Omaha, NE
John R. McKean Chairman of the President, John R.
Board McKean & Co., (CPAs)
San Francisco, CA
Stephen T. McLin Director President and Chief
Executive Officer,
America First Financial
Corporation, San
Francisco, CA;
Chairman and Chief
Executive Officer, STM
Holdings, Inc., San
Francisco, CA
Ronald L. Reed Executive Vice
President
Angelo J. Siracusa Director Retired
Edward H. Sondker President, Chief
Executive Officer
and Director
W. Blake Winchell Director Managing Director,
Generation Ventures,
LLC
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EXHIBIT I
COMMON STOCK PURCHASE WARRANT
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), NOR QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE, AND
MAY NOT BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT AND QUALIFICATION UNDER APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY IN FORM
AND SUBSTANCE TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION
AND QUALIFICATION ARE NOT REQUIRED.
Date of Issuance: February 24, 1998
ONYX ACCEPTANCE CORPORATION
COMMON STOCK PURCHASE WARRANT
This certifies that, for value received, BayView Capital
Corporation (the "Holder") is entitled, upon the terms and
subject to the conditions hereinafter set forth, at any time or
from time to time, prior to 5:00 p.m. Pacific Time on February
24, 2004, to subscribe for and purchase from Onyx Acceptance
Corporation, a Delaware corporation (the "Company"), One Hundred
Eighty Thousand Five Hundred Thirty (180,530) fully paid and non-
assessable shares of the Common Stock of the Company for the
aggregate exercise price of $1,602,203.75. Hereinafter, (i) the
Common Stock of the Company, together with any other equity
securities which may be issued by the Company in substitution
therefor, is referred to as the "Common Stock," (ii) the shares
of the Common Stock purchasable hereunder are referred to as the
"Warrant Shares," (iii) the aggregate exercise price payable for
all of the Warrant Shares is referred to as the "Aggregate
Exercise Price," and (iv) the price payable hereunder for each of
the Warrant Shares is referred to as the "Per Share Exercise
Price," which shall initially be $8.8750 per share. The Per
Share Exercise Price and the number of Warrant Shares are subject
to adjustment as hereinafter provided.
1. Exercisability.
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1.1 Exercise of Warrant. This Warrant may be exercised, in
whole at any time or in part from time to time, prior to 5:00
p.m. Pacific Time on February 24, 2004 (subject to earlier
termination as hereinafter provided), by the Holder (the
"Holder") by the surrender of this Warrant (with the subscription
form at the end hereof duly executed) at the principal office of
the Company, which is currently located at 8001 Irvine Center
Drive, Suite 500, Irvine, California 92618, together with proper
payment of the Per Share Exercise Price for each of the Warrant
Shares as to which the Warrant is being exercised. Payment for
Warrant Shares shall be made by certified or bank cashier's
check, payable to the order of the Company.
If this Warrant is exercised in part, this Warrant must be
exercised for a number of whole shares of the Common Stock and
the Holder shall be entitled to receive a new Warrant covering
the number of Warrant Shares with respect to which this Warrant
has not been exercised. Upon such surrender of this Warrant,
together with the subscription form at the end hereof duly
executed and proper payment of the Per Share Exercise Price for
each of the Warrant Shares as to which the Warrant is being
exercised, the Company will (i) issue, or cause the Company's
transfer agent to issue, a certificate or certificates in the
name of the Holder for the largest number of whole shares of the
Common Stock to which the Holder shall be entitled and, if this
Warrant is exercised in whole, in lieu of any fractional share of
the Common Stock to which the Holder shall be entitled, cash
equal to the fair value of such fractional share (as determined
by the last reported selling price of the Common Stock on the
last business day before the date the Warrant is exercised), and
(ii) deliver the other securities and properties receivable upon
the exercise of this Warrant, if any, or the proportionate part
thereof if this Warrant is exercised in part, pursuant to the
provisions of this Warrant.
1.2 Net Issue Election. The Holder may elect to receive,
without the payment by the Holder of any additional
consideration, shares equal to the value of this Warrant or any
portion hereof by the surrender of this Warrant or such portion
to the Company, with the net issue election notice annexed hereto
duly executed, at the office of the Company. Thereupon, the
Company shall issue to the Holder such number of fully paid and
nonassessable shares of Common Stock as is computed using the
following formula:
X = Y (A-B)
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A
where:
X = the number of shares to be issued to the Holder
pursuant to this Section 1.2.
Y = the number of shares covered by this Warrant in respect
of which the net issue election is made pursuant to
this Section 1.2.
A = the fair market value of one share of Common Stock, as
determined in accordance with the provisions of this
Section 1.2.
B = the Per Share Exercise Price in effect under this
Warrant at the time the net issue election is made
pursuant to this Section 1.2.
For purposes of this Section 1.2, the "fair market value" per
share of the Company's Common Stock shall mean the last reported
sale price of the Common Stock on the last business day before
the effective date of exercise of the net issue election.
2. Reservation of Warrant Shares. The Company agrees that,
prior to the expiration of this Warrant, the Company will at all
times have authorized in reserve, and will keep available, solely
for issuance or delivery upon the exercise of this Warrant, the
shares of the Common Stock and other securities and properties as
from time to time shall be receivable upon the exercise of this
Warrant.
3. Adjustments.
3.1 Distribution With Respect to Common Stock. If, at any time
or from time to time after the date of this Warrant, the Company
shall distribute to the holders of the Common Stock, without
payment therefor, (i) securities, other than shares of the Common
Stock, or (ii) property, other than cash, with respect to the
Common Stock, then, and in each such case, subject to Section 3.4
below, the Holder, upon the exercise of this Warrant, shall be
entitled to receive the securities and properties which the
Holder would hold on the date of such exercise if, on the date of
such distribution, the Holder had been the holder of record of
the number of shares of the Common Stock subscribed for upon such
exercise and, during the period from the date of such
distribution to and including the date of such exercise, had
retained such shares and the securities and properties receivable
by the Holder during such period.
3.2 Stock Splits, Etc. If, at any time or from time to time
after the date of this Warrant, the Company shall issue to the
holders of the Common Stock shares of the Common Stock by way of
a stock dividend or stock split, then, and in each such case, the
Per Share Exercise Price shall be adjusted, or further adjusted,
to a price (to the nearest whole cent) determined by dividing (i)
an amount equal to the number of shares of the Common Stock
outstanding immediately prior to such issuance multiplied by the
Per Share Exercise Price as it existed immediately prior to such
issuance by (ii) the total number of shares of the Common Stock
outstanding immediately after such issuance. Upon each such
adjustment in the Per Share Exercise Price, the number of Warrant
Shares shall be adjusted by dividing the Aggregate Exercise Price
by the Per Share Exercise Price in effect immediately after such
adjustment.
3.3 Reverse Splits, Etc. If, at any time or from time to time
after the date of this Warrant, the number of shares of Common
Stock outstanding is decreased by way of combination of shares or
reserve split, then, and in each such case, the Per Share
Exercise Price shall be adjusted, or further adjusted, to a price
(to the nearest whole cent) determined by dividing (i) an amount
equal to the number of shares of the Common Stock outstanding
immediately prior to such event multiplied by the Per Share
Exercise Price as it existed immediately prior to such event by
(ii) the total number of shares of the Common Stock outstanding
immediately after such event. Upon each such adjustment in the
Per Share Exercise Price, the number of Warrant Shares shall be
adjusted by dividing the Aggregate Exercise Price by the Per
Share Exercise Price in effect immediately after such adjustment.
3.4. Adjustment for Reorganization, Consolidation, Merger, etc.
a. Reorganization, Consolidation, Merger, etc. In case at any
time or from time to time, the Company shall (i) effect a
reorganization, (ii) consolidate with or merge into any other
entity or person, or (iii) transfer all or substantially all of
its properties or assets to any other entity or person under any
plan or arrangement contemplating the dissolution of the Company,
then, in each such case, the Holder, on the exercise hereof as
provided in Section 1 at any time after the consummation of such
reorganization, consolidation or merger or the effective date of
such reorganization, consolidation or merger, as the case may be,
shall receive, in lieu of the Common Stock (or other securities)
issuable on such exercise prior to such consummation or such
effective date, the stock and other securities and property
(including cash) to which the Holder would have been entitled
upon such consummation or in connection with such dissolution, as
the case may be, if the Holder had so exercised this Warrant,
immediately prior thereto, all subject to further adjustment
thereafter as provided in this Section 3.
b. Continuation of Terms. Upon any reorganization,
consolidation, merger or transfer (and any dissolution following
any transfer) referred to in this Section 3.4, this Warrant shall
continue in full force and effect, subject to expiration in
accordance with Section 1 hereof, and the terms hereof shall be
applicable to the shares of stock and other securities and
property receivable on the exercise of this Warrant after the
consummation of such reorganization, consolidation or merger or
the effective date of dissolution following any such transfer, as
the case may be, and shall be binding upon the issuer of any such
stock or other securities, including, in the case of any such
transfer, the entity or person acquiring all or substantially all
of the properties or assets of the Company, whether or not such
entity or person shall have expressly assumed the terms of this
Warrant.
c. Notice. The Company shall provide advance notice to the
Holder of any reorganization, consolidation, merger, dissolution
or other such transaction as soon as practicable, but in no event
less than 20 days prior to the consummation of any such
transaction.
4. Fully Paid Stock; Taxes. The Company agrees that the shares
of the Common Stock represented by each and every certificate for
Warrant Shares delivered on the exercise of this Warrant shall,
at the time of such delivery, be validly issued and outstanding,
fully paid and non-assessable. The Company further covenants and
agrees that it will pay, when due and payable, any and all
federal and state stamp, original issue or similar taxes which
may be payable in respect of the issue of any Warrant Share or
certificate therefor; provided, however, that the Company shall
not be required to pay any tax which may be payable in respect of
any transfer involved in the issuance of any certificate for
Warrant Shares in a name other than that of the Holder upon any
exercise of this Warrant.
5. Restrictions on Transferability of Securities; Compliance
with Securities Act.
5.1 Restrictions on Transferability. The transferability of
this Warrant and the Warrant Shares (as well as any other
securities issued in respect of the Warrant Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or
similar event) shall be subject to the conditions specified in
this Section 5. The Holder, and any transferee of this Warrant
or the Warrant Shares, by its acceptance hereof or thereof,
agrees that this Warrant and the Warrant Shares will be taken and
held subject to the provisions and upon the conditions specified
in this Section 5.
5.2 Restrictive Legend. This Warrant and each certificate
representing (i) the Warrant Shares or (ii) any other securities
issued in respect of the Warrant Shares upon any stock split,
stock dividend, recapitalization, merger, consolidation or
similar event, shall (unless otherwise permitted or unless the
securities evidenced by such certificate shall have been
registered under the Securities Act of 1933 (the "Act") be
stamped or otherwise imprinted with a legend substantially in the
following form (in addition to any legend required under
applicable state securities laws), and shall be subject to the
provisions thereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, (THE "ACT"), OR
QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE, AND MAY NOT BE
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND QUALIFICATION UNDER APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY TO THE
EFFECT THAT SUCH REGISTRATION AND QUALIFICATION ARE NOT REQUIRED.
5.3 "Market Stand-Off" Agreement. Each Holder hereby agrees
that, during the period of duration specified by the Company and
an underwriter of Common Stock or other securities of the
Company, it shall not, to the extent requested by the Company and
such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale),
grant any option to purchase or otherwise transfer or dispose of
(other than to donees who agree to be similarly bound) any
securities of the Company held by it at any time during such
period except Common Stock included in such registration;
provided, however, that:
a. such market stand-off time period shall not exceed 180 days;
b. all officers and directors of the Company and all other
persons with registration rights enter into similar agreements.
In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to any securities
of the Company held by the Holder until the end of such period.
If requested to do so by the Company, each Investor shall execute
an underwriter's letter in the customary form prior to the
registration of the Company's initial public offering.
Notwithstanding the foregoing, the obligations described in
this Section 5.3 shall not apply to a registration relating
solely to employee benefit plans on Form S-l or Form S-8 or
similar forms which may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction
on Form S-14 or Form S-15 or similar forms which may be
promulgated in the future.
5.4 Assignability. This Warrant may not be transferred or
assigned, in whole or in part, by Holder except where Holder has
provided the Company with written notice of its intent to assign
or transfer the Warrant and the Company has consented to such
assignment or transfer in writing.
6. Warrant Register. This Warrant is transferable only upon the
books of the Company which it shall cause to be maintained for
such purpose. The Company may treat the registered holder of
this Warrant as he, she or it appears on the Company's books at
any time as the Holder for all purposes; provided, however, that
upon receipt of notice of an assignment pursuant to Section 5.4,
the Company shall revise its books to reflect such new holder(s).
7. Loss, Etc., of Warrant. Upon receipt of evidence
satisfactory to the Company of the loss, theft, destruction or
mutilation of this Warrant, and of indemnity reasonably
satisfactory to the Company, if lost, stolen or destroyed, and
upon surrender and cancellation of this Warrant if mutilated, and
upon reimbursement of the Company's reasonable incidental
expenses, the Company shall execute and deliver to the Holder a
new Warrant of like date, tenor and denomination.
8. Warrant Holder Has No Shareholder Rights. This Warrant does
not confer upon the Holder any right to vote or to consent or to
receive notice as a stockholder of the Company, as such, with
respect to any matters whatsoever, or any other rights or
liabilities as a stockholder, prior to the exercise thereof.
9. Representations and Warranties of the Holder. Holder hereby
represents and warrants that:
9.1 Authorization. Holder has full power and authority to
enter into and purchase this Warrant and any Warrant Shares for
which it may be exercised, and the Warrant constitutes Holder's
valid and legally binding obligation, enforceable in accordance
with its terms.
9.2 Purchase Entirely for Own Account. This Warrant is sold in
reliance upon Holder's representation to the Company, which by
Holder's execution of this Warrant Holder hereby confirms, that
the Warrant to be received by Holder and the Warrant Shares
issuable upon the exercise thereof (collectively, the
"Securities") will be acquired for investment for Holder's own
account, not as a nominee or agent, and not with a view to the
resale or distribution of any part thereof, and that Holder has
no present intention of selling, granting any participation in,
or otherwise distributing the same. By executing this Warrant,
Holder further represents that Holder does not have any contract,
undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to person or to any third
person, with respect to any of the Securities.
9.3 Disclosure of Information. Holder believes that it has
received all the information it considers necessary or
appropriate for deciding whether to purchase the Warrant and any
Warrant Shares for which the Warrant may be exercised. Holder
further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the
terms and conditions of the offering of the Warrant and the
business, properties, prospects and financial condition of the
Company.
9.4 Investment Experience. Holder is an investor in securities
of companies in the development stage and acknowledges that
Holder is able to fend for itself, can bear the economic risk of
its investment, and has such knowledge and experience in
financial or business matters that it is capable of evaluating
the merits and risks of the investment in the Warrant and any
Warrant Shares for which the Warrant may be exercised.
9.5 Accredited Investor. Holder is an "accredited investor"
within the meaning of Securities and Exchange Commission ("SEC")
Rule 501 of Regulation D, as presently in effect.
9.6 Restricted Securities. Holder understands that the
Securities Holder is purchasing are characterized as "restricted
securities" under the federal securities laws inasmuch as they
are being acquired from the Company in a transaction not
involving a public offering and that under such laws and
applicable regulations such securities may be resold without
registration under the Act, only in certain limited
circumstances. In this connection, Holder represents that it is
familiar with SEC Rule 144, as presently in effect, and
understands the resale limitations imposed thereby and by the
Act.
9.7 Further Limitations on Disposition. Without in any way
limiting the representations set forth above, Holder further
agrees not to make any disposition of all or any portion of the
Securities unless and until:
a. There is then in effect a Registration Statement under the
Act covering such proposed disposition and such disposition is
made in accordance with such Registration Statement; or
b. Holder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a
reasonably detailed statement of the circumstances surrounding
the proposed disposition, and (ii) if reasonably requested by the
Company, Holder shall have furnished the Company with an opinion
of counsel, reasonably satisfactory to the Company that such
disposition will not require registration of such shares under
the Act. It is agreed that the Company will not require opinions
of counsel for transactions made pursuant to Rule 144 except in
unusual circumstances.
10. Communication. Any notice required or permitted to be given
hereunder shall be in writing and shall be deemed to have been
given 48 hours after having been deposited in the United States
mail, postage prepaid, registered or certified, return receipt
requested, addressed to each party in the following manner:
To the Company: Onyx Acceptance Corporation
8001 Irvine Center Drive, Suite 500
Irvine, California 92618
Attn: Don P. Duffy
To Holder: Bay View Capital Corporation
1840 Gateway Drive, 4th Floor
San Mateo, CA 94404
Attn: Rupert Ayton - Senior Vice President
The Company and the Holder may change the address to which such
notices are to be addressed to them by giving the other party
notice in the manner set forth herein.
11. Headings. The headings of this Warrant have been inserted
as a matter of convenience and shall not affect the construction
hereof.
12. Applicable Law. This Warrant shall be governed by and
construed in accordance with the internal laws of the State of
California.
</PAGE>
<PAGE>
In witness whereof, Onyx Acceptance Corporation has caused this
Warrant to be executed by its officers thereunto authorized.
Dated: February 24, 1998 ONYX ACCEPTANCE CORPORATION
By:
------------------------
John W. Hall
Chief Executive Officer
</PAGE>
<PAGE>
FORM OF ASSIGNMENT
------------------
(To Be Signed Only Upon Assignment)
For value received, the undersigned hereby sells, assigns and
transfers unto _____ the right to purchase ______________ shares
of Common Stock evidenced by the within Warrant, and hereby
appoints ______________________ to transfer the same on the books
of Onyx Acceptance Corporation with full power of substitution in
the premises.
Date:
-----------------, ----
-------------------------------
(Signature)
Note: Signature must conform in all respects to the name of the
Warrant Holder as specified on the face of this Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
</PAGE>
<PAGE>
EXERCISE FORM
(To Be Executed By The Warrant Holder If The Holder Desires
To Exercise The Warrant In Whole Or In Part)
TO: Onyx Acceptance Corporation
The undersigned hereby irrevocably elects to exercise the right
of purchase represented by the within Warrant for, and for
purchase thereunder, __________________ shares of Common Stock
provided for therein and tenders payment herewith to the order of
Onyx Acceptance Corporation in the amount of $___________. The
undersigned requested that certificates for such shares of Common
Stock be issued as follows:
Name:
Address:
Deliver to:
Address:
Date:
----------------, ----
---------------------------------
(Signature)
Note: Signature must conform in all respects to the name of the
Warrant Holder as specified on the face of this Warrant in every
particular, without alteration or enlargement or any change
whatsoever.
</PAGE>
<PAGE>
NET ISSUE ELECTION NOTICE
To: Onyx Acceptance Corporation
The undersigned hereby elects, pursuant to Section 1.2 of the
attached Warrant, to surrender the right to purchase ___________
shares of Common Stock. The Certificate(s) for the shares
issuable upon such net issue election shall be issued in the name
of the undersigned or as otherwise indicated below.
Date: _______________________ ___________________________
Signature
___________________________
Name for Registration
___________________________
Mailing Address
</PAGE>
