Exhibit 2
ONYX PHARMACEUTICALS, INC.
AND
XXXXXX-XXXXXXX COMPANY
STOCK PUT AND PURCHASE AGREEMENT
OCTOBER 13, 1999
ONYX PHARMACEUTICALS, INC.
AND
XXXXXX-XXXXXXX COMPANY
STOCK PUT AND PURCHASE AGREEMENT
THIS STOCK PUT AND PURCHASE AGREEMENT (the "Agreement") is made and
entered into on October 13, 1999, to be effective as of September 1, 1999,
by and between ONYX PHARMACEUTICALS, INC., a Delaware Corporation with its
principal office at 0000 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the
"Company"), and XXXXXX-XXXXXXX COMPANY, a Delaware Corporation with its
principal office at 000 Xxxxx Xxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx 00000 (the
"Purchaser").
RECITALS
WHEREAS, the Company and Purchaser have entered into that certain
Collaboration Agreement of even date herewith (the "Collaboration
Agreement"); and
WHEREAS, in connection with the Collaboration Agreement, the Purchaser
desires to grant to the Company and the Company desires to receive from the
Purchaser certain options to cause the Purchaser to purchase shares of
common stock of the Company, on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements contained herein, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. Put Rights of The Company.
1.1 FIRST AND SECOND PUT RIGHTS. At any time during the
calendar year 2000, subject to the terms of this Agreement, the Company
shall have the option ("First Put Right") to sell to the Purchaser, and
cause the Purchaser to purchase, no less than all the First Put Shares (as
hereinafter defined). At any time during the calendar year 2001, subject
to the terms of this Agreement, the Company shall have the option ("Second
Put Right") to sell to the Purchaser, and cause the Purchaser to purchase,
no less than all the Second Put Shares (as hereinafter defined). The First
Put Right and Second Put Right may each be referred herein individually as
a "Put Right", or collectively as the "Put Rights."
1.2 PUT NOTIFICATION DATE; PUT DATE. The Company shall provide
written notice to the Purchaser of its election to exercise a Put Right,
which notice shall specify: (a) the date of notice of exercise of the Put
Right (the "Put Notification Date"); and (b) the date on which the
Purchaser shall purchase the Put Shares (as defined below) from the Company
(the "Put Date"). The Put Date in each case shall be the tenth business
day after the Purchaser receives such notice, subject to Section 5.2 and
5.3.
1.3 FIRST PUT SHARES. The "First Put Shares" shall be defined
as that number of shares of common stock of the Company as determined by
dividing five million dollars ($5,000,000) by the Put Price Per Share
applicable to the exercise of the First Put Right, with any fractional
share being rounded up to the next whole number.
1.4 SECOND PUT SHARES. The "Second Put Shares" shall be defined
as that number of shares of common stock of the Company as determined by
dividing five million dollars ($5,000,000) by the Put Price Per Share
applicable to the exercise of the Second Put Right, with any fractional
share being rounded up to the next whole number.
1.5 PUT PRICE PER SHARE. The "Put Price Per Share", with
respect to exercise of a particular Put Right, shall be defined as the
arithmetic average of the closing sales prices of the common stock of the
Company, as reported by the NASDAQ, for the twenty (20) trading days
immediately prior to (but not including) the second business day before the
Put Date applicable to such exercise of such Put Right in which such shares
of common stock are traded. If there are any days in which NASDAQ is open
but the common stock of the Company does not trade, such days shall be
omitted from the calculation and additional days shall be added to the time
period as necessary to establish a 20-trading day average price.
1.6 SALE OF THE PUT SHARES. Subject to the terms and conditions
hereof, upon exercise by the Company of the First Put Right, the Company
hereby agrees to issue and sell to the Purchaser, and the Purchaser hereby
agrees to purchase from the Company, the First Put Shares for an aggregate
purchase price of five million dollars ($5,000,000). Subject to the terms
and conditions hereof, upon exercise by the Company of the Second Put
Right, the Company hereby agrees to issue and sell to the Purchaser, and
the Purchaser hereby agrees to purchase from the Company, the Second Put
Shares for an aggregate purchase price of five million dollars
($5,000,000).
2. Closing Date; Delivery.
2.1 FIRST CLOSING; FIRST CLOSING DATE. The closing of the sale
and purchase of the First Put Shares under this Agreement (the "First
Closing") shall be held at 9:00 a.m. (Pacific Time) on the first Put Date,
at the offices of Xxxxxx Godward LLP, Five Palo Alto Square, 3000 El Camino
Real, Palo Alto, California, or at such other time and place as is provided
for in Section 5.2 or otherwise as the Company and the Purchaser may agree
(the "First Closing Date").
2.2 SECOND CLOSING; SECOND CLOSING DATE. The closing of the
sale and purchase of the Second Put Shares under this Agreement (the
"Second Closing") shall be at 9:00 a.m. (Pacific Time) on the second Put
Date, at the offices of Xxxxxx Godward LLP, Five Palo Alto Square, 3000 El
Camino Real, Palo Alto, California, or at such other time and place as is
provided for in Section 5.2 or otherwise as the Company and the Purchaser
may agree (the "Second Closing Date").
2.3 DELIVERY. At the First Closing and the Second Closing,
subject to the terms and conditions hereof, the Company will deliver to the
Purchaser a stock certificate, issued in the name of the Purchaser and
bearing the legends referred to in Section 4.3, representing, respectively,
the First Put Shares and the Second Put Shares, dated as of the First
Closing and the Second Closing, respectively, against payment of the
purchase price therefor by wire transfer, unless other means of payment
shall have been agreed upon by the Purchaser and the Company.
3. Representations And Warranties Of The Company. The Company
hereby represents and warrants to the Purchaser as follows:
3.1 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement has been taken,
and, with respect to the performance of the Company's obligations
hereunder, will have been taken at the time of the applicable Closing. The
Company has the requisite corporate power to enter into this Agreement and
carry out and perform its obligations under the terms of this Agreement,
and this Agreement constitutes a legally binding, valid obligation of the
Company, enforceable in accordance with its terms. At the First Closing
and the Second Closing, the Company will have the requisite corporate power
to sell the shares of common stock to be sold at each such closing.
3.2 NO CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery
and performance of this Agreement will not result in any violation of, or
be in conflict with, the Certificate of Incorporation or the Bylaws of the
Company or any provision of any judgment, decree or order to which the
Company is a party or by which it is bound, or any material statute, rule
or governmental regulation applicable to the Company, and will not
constitute a material default of any material contract, obligation or
commitment to which the Company is a party or by which it is bound.
3.3 LITIGATION. There is no bona fide action, proceeding or
investigation pending or, to the knowledge of the Company, overtly
threatened, brought or threatened by a third party unrelated to the
Purchaser, that is not initiated, encouraged or supported by the Purchaser
and that seeks to prohibit the consummation of the transactions
contemplated by this Agreement, nor has any such third party asserted in a
writing delivered to the Company that a basis for such an action,
proceeding or investigation exists.
3.4 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate
power and authority to carry on its business as now conducted and as
proposed to be conducted. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure
so to qualify would have a material adverse effect on its business or
properties.
3.5 VALID ISSUANCE OF SHARES. The First Put Shares and the
Second Put Shares which will be purchased by Purchaser hereunder, when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly authorized and
issued, fully paid and nonassessable and, based in part upon the
representations of Purchaser in this Agreement, will be issued in
compliance with all applicable federal and state securities laws.
3.6 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration
or filing with, any federal, state, local or provincial governmental
authority on the part of the Company is required in connection with the
consummation of the transactions contemplated by this Agreement, except for
notices required or permitted to be filed with certain state and federal
securities commissions, which notices will be filed on a timely basis, and
otherwise as provided in Section 5.1.
3.7 SHARES AVAILABLE. The Company shall have available at the
First Closing Date and the Second Closing Date, sufficient authorized but
unissued shares of its Common Stock to issue and sell to the Purchaser all
of the Put Shares.
3.8 FULL DISCLOSURE. The representations and warranties of the
Company contained in this Agreement do not contain any untrue statement of
a material fact or omit any material fact necessary to make the statements
contained herein in view of the circumstances under which they are made not
misleading.
3.9 BROKERS AND FINDERS. The Company has not retained any
investment banker, broker or finder in connection with the transaction
contemplated by this Agreement.
4. Representations And Warranties of The Purchaser.
The Purchaser hereby represents and warrants to the Company as
follows:
4.1 LEGAL POWER. The Purchaser has the requisite corporate
power to enter into this Agreement, to carry out and perform its
obligations under the terms of this Agreement and, at the First Closing and
the Second Closing, will have the requisite corporate power to purchase,
respectively, the First Put Shares and the Second Put Shares to be
purchased at each such Closing.
4.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by the Purchaser, and, upon due execution and
delivery by the Company, this Agreement will be a valid and binding
agreement of the Purchaser, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by equitable principles.
4.3 INVESTMENT REPRESENTATIONS.
(a) Purchaser is acquiring the First Put Shares and the Second
Put Shares for its own account, not as nominee or agent, for investment and
not with a view to, or for resale in connection with, any distribution or
public offering thereof within the meaning of the Securities Act of 1933,
as amended (the "Securities Act").
(b) Purchaser understands that:
(i) the First Put Shares and the Second Put Shares have not
been registered under the Securities Act by reason of a specific exemption
therefrom, that such securities must be held by it indefinitely, absent
such exemption, and that Purchaser must, therefore, bear the economic risk
of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from such registration;
(ii) each certificate representing the First Put Shares and
the Second Put Shares will be endorsed with the following legends:
(A) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE
ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS; and
(B) Any legend required to be placed thereon by the
applicable state securities laws; and
(iii) the Company will instruct any transfer agent not
to register the transfer of either the First Put Shares (or any portion
thereof) or the Second Put Shares (or any portion thereof) unless the
conditions specified in the foregoing legends are satisfied, until such
time as a transfer is made, pursuant to the terms of this Agreement, and in
compliance with Rule 144 of the General Rules and Regulations prescribed by
the Securities and Exchange Commission pursuant to the Act ("Rule 144") or
pursuant to a registration statement or, if the opinion of counsel referred
to above is to the further effect that such legend is not required in order
to establish compliance with any provisions of the Act or this Agreement.
(c) The Purchaser has been furnished with such materials and has
been given access to such information relating to the Company as its
qualified representative has requested, and the Purchaser has been afforded
the opportunity to ask questions regarding the Company, the First Put
Shares and the Second Put Shares, all as it has found necessary to make an
informed investment decision.
(d) The Purchaser is an "accredited investor" as such term is
defined in Rule 501 of the General Rules and Regulations prescribed by the
Securities and Exchange Commission pursuant to the Act, and the Purchaser
was not formed for the specific purpose of acquiring the First Put Shares
or the Second Put Shares.
4.4 STANDSTILL COVENANT. Purchaser agrees that, during the
period commencing on the date hereof and ending on May 14, 2003, neither
Purchaser nor any of its affiliates shall acquire any additional shares of
capital stock or other securities of the Company other than as provided in
Article 1 and this Section 4.4 of this Agreement without the prior written
consent of the Board of Directors of the Company (the "Board") in the
Board's discretion but subject to the Board's fiduciary duties, provided
that in the event that any person, entity or group shall acquire or make a
bona fide offer to acquire, in one or more transactions by tender or
otherwise, shares of the Company equal to or exceeding the percentage of
the fully diluted voting power then held by the Purchaser, then the
Purchaser shall be allowed to acquire additional shares of the Company free
of the aforesaid restrictions in response to such acquisition or offer but
only for so long as such offer shall remain outstanding. Nothing in this
Section 4.4 shall prohibit the acquisition or disposition of shares for
investment purposes only in the open market in the ordinary course by any
pension fund or trust for the benefit of employees of the Purchaser or its
affiliates.
5. Xxxx-Xxxxx-Xxxxxx Filings; Closing Conditions
5.1 XXXX-XXXXX-XXXXXX. Each notice of exercise of Put Right
delivered by the Company pursuant to Section 1.2 shall also include a
statement as to whether a filing will be required under the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended, or any other
governmental body, in order to close the stock purchase contemplated by
such notice of exercise, and the basis for such conclusion. If such a
filing is required, each of the Company and the Purchaser shall use its
best efforts to promptly effect such filing and satisfy the requirements of
such act. The Company and the Purchaser shall share equally any filing
fees required to obtain such consent.
5.2 CLOSING DATE. If a Xxxx-Xxxxx-Xxxxxx filing is required,
the closing shall occur on a date specified by the Company by notice to the
Purchaser provided after the expiration of any applicable waiting period or
other satisfaction of the Xxxx-Xxxxx-Xxxxxx requirements, which date shall
be not less than five business days after such expiration or other
satisfaction.
5.3 CONDITIONS TO CLOSING. The closing of any purchaser and
sale of common stock under this Agreement shall be subject to the
satisfaction of the following conditions. Each of paragraphs (a) through
(e), (g) and (h) shall be a condition to the obligations of Purchaser at
each of the first and the second Xxx Xxxxx, xxx xxxx xx xxxxxxxxxx (x),
(x), (x), (x) and (h) shall be a condition to the obligations of the
Company at each of the first and the second Put Dates. Each of the
Purchaser and the Company may waive any condition applicable to its
obligations hereunder. In the event that one or more conditions in this
Section 5.3 are not satisfied or waived as of the applicable Put Date, then
the applicable Put Date and Closing shall be delayed until such time as all
conditions under this Section 5.3 are satisfied or waived (and in which
case the Put Price Per Share shall be calculated as if the Put Date were
the tenth business day after the Purchaser receives such original notice of
the put pursuant to Section 1.2), unless, with respect to unsatisfied and
unwaived conditions to the obligations of the Purchaser, the Company
otherwise informs Purchaser in writing.
(a) COMPANY'S REPRESENTATIONS AND WARRANTIES; COLLABORATION
AGREEMENT. The representations and warranties of the Company contained in
Article 3 shall be true on and as of the Put Date with the same effect as
if made on and as of the Put Date, and the Company shall not be in material
breach under that certain Collaboration Agreement between the parties of
even date herewith and such Collaboration Agreement shall not have been
terminated in its entirety by Purchaser pursuant to the terms thereof.
(b) BLUE SKY COMPLIANCE. The Company shall have complied with
and be effective under all state securities or Blue Sky laws applicable to
the offer and sale of the Put Shares then being sold.
(c) XXXX-XXXXX-XXXXXX. Any requirements of the Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 1976, as amended, shall have been
satisfied.
(d) COURT ORDERS. There shall not be in effect any injunction
or restraining order issued by any court of competent jurisdiction in any
action or proceeding against the consummation of the sale and purchase of
the Put Shares.
(e) PROCEEDINGS SATISFACTORY; COMPLIANCE CERTIFICATE. All
corporate and legal proceedings taken by the Company in connection with the
sale and issuance of the Put Shares and all documents and papers relating
to such transaction shall be satisfactory to the Purchaser and its counsel,
in the reasonable judgment of the Purchaser and its counsel, and the
Purchaser shall have received all such counterpart original and certified
or other copies of such documents as it may reasonably request. The
Company shall have delivered to the Purchaser a certificate, dated as of
the closing date, signed by the Company's President, certifying that the
conditions set forth in Section 5.3(a) through (e), (g) and (h) have been
satisfied.
(f) PURCHASER'S REPRESENTATIONS AND WARRANTIES; PERFORMANCE.
The representations and warranties of the Purchaser contained in Article 4
shall be true on and as of the applicable Put Date with the same effect as
through said representations and warranties had been made on and as of such
Put Date. The Company shall have performed or fulfilled in all material
respects, all conditions contained in this Section 5.3 and all agreements
and obligations contained in this Agreement required to be performed or
fulfilled by the Company before each of the First Closing and Second
Closing, as the case may be.
(g) OPINION OF COUNSEL. Purchaser shall have received an
opinion of Xxxxxx Godward llp, counsel to the Company, dated the applicable
Put Date, in substantially the form of Exhibit A attached hereto.
(h) THIRD PARTY CONSENTS AND APPROVALS. The Company shall have
obtained all necessary third party consents and approvals necessary for the
consummation of the transactions contemplated hereby.
6. Registration Rights.
6.1 REGISTRATION. The terms "Register", "Registered" and
"Registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as
amended, or any similar federal statutes, and the rules and regulations of
the Commission thereunder ("Registration Statement"), and the declaration
or ordering of the effectiveness of such Registration Statement.
6.2 SUBORDINATION. In accordance with Article 12 of the Amended
and Restated Information and Registration Rights Agreement dated as of May
14, 1994, as amended, by and among the Company and certain investors of the
Company described therein, the Registration rights of Purchaser under this
Article 6 shall be subordinate to the Registration rights granted to the
Holders (as defined in the Rights Agreement) pursuant the Rights Agreement.
6.3 NOTICE OF REGISTRATION AND INCLUSION OF SHARES. Subject to
the terms of this Agreement, in the event the Company decides to Register
any of its Common Stock (either for its own account or the account of a
security holder or holders exercising their respective demand Registration
rights) on a form that would be suitable for a Registration involving
solely the Put Shares, the Company will (i) promptly give the Purchaser
written notice thereof (which shall include a list of the jurisdictions in
which the Company intends to attempt to qualify such securities under the
applicable Blue Sky or other state securities laws) and (ii) include in
such Registration (and any related qualification under Blue Sky laws or
other compliance), and in any underwriting involved therein (subject to
Section 6.4), all the Put Shares that the Purchaser has purchased pursuant
to this Agreement and any Common Stock issued pursuant to stock splits,
stock dividends and similar distributions with respect to the Put Shares
(collectively the "Warner Registrable Shares") specified in a written
request delivered to the Company by the Purchaser within twenty (20) days
after delivery of such written notice from the Company.
6.4 UNDERWRITING IN REGISTRATION.
(a) NOTICE OF UNDERWRITING IN REGISTRATION. If the Registration
of which the Company gives notice under Section 6.3 is for a Registered
public offering involving an underwriting, the Company shall so advise the
Purchaser as a part of the written notice given pursuant to Section 6.3.
In such event, and notwithstanding Section 6.3, the right of the Purchaser
to Registration shall be conditioned upon such underwriting and the
inclusion of the Warner Registrable Shares in such underwriting to the
extent provided in this Section 6.4. If Purchaser proposes to distribute
the Warner Registrable Shares through such underwriting, it shall (together
with the Company and any other holders distributing their securities
through such underwriting) enter into an underwriting agreement with the
representative of the underwriter or underwriters selected for such
underwriting for such offering ("Underwriter's Representative"). The
Purchaser shall have no right to participate in the selection of the
underwriters for an offering pursuant to this Article 6.
(b) MARKETING LIMITATION IN REGISTRATION. In the event the
Underwriter's Representative advises the Purchaser in writing that market
factors (including, without limitation, the aggregate number of shares of
Common Stock requested to be Registered, the general condition of the
market, and the status of the persons proposing to sell securities pursuant
to the Registration) require a limitation of the number of shares to be
underwritten, the Underwriter's Representative may exclude some or all
Warner Registrable Shares from such Registration and underwriting. In such
event, the Underwriter's Representative shall so advise the Purchaser and
all holders of securities requested and otherwise entitled to be included
in such Registration, and the number of shares that may be included in the
underwriting shall be allocated, (i) in the event there are no other
securities which would have priority over the Warner Registrable Shares in
such allocation, first, to the Company; and second, to the Purchaser and
any other shareholders of the Company's securities then having registration
rights with respect to the Company's securities on a pro rata basis based
on the total number of Warner Registrable Shares held by the Purchaser and
the total number of registrable shares held by such other shareholders, or
(ii) in the event there are other securities that would have priority over
the Warner Registrable Shares in such allocation, first, to the Company and
the holders of such other shares; and second, to the Purchaser and any
other shareholders of the Company's securities then having registration
rights with respect to the Company's securities on a pro rata basis based
on the total number of Warner Registrable Shares held by the Purchaser and
the total number of registrable shares held by such other shareholders.
(c) WITHDRAWAL IN REGISTRATION. If the Purchaser or a holder of
other securities entitled (upon request ) to be included in such
Registration, disapproves of the terms of any such underwriting, the
Purchaser or such holder may elect to withdraw therefrom by written notice
to the Company and the Underwriter's Representative delivered at least
seven (7) days prior to the effective date of the Registration Statement.
Any Warner Registrable Shares or other securities excluded or withdrawn
from such underwriting shall be withdrawn from such Registration.
6.5 BLUE SKY IN REGISTRATION. In the event of any Registration
of Warner Registrable Shares pursuant to Article 6, the Company will
exercise its best efforts to Register and qualify the securities covered by
the Registration Statement under such other securities or Blue Sky laws of
such jurisdictions as the Purchaser shall reasonably request and as shall
be reasonably appropriate for the distribution of such securities;
provided, however, that the Company shall not be required to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
6.6 TERMINATION OF REGISTRATION RIGHTS. All registration rights
granted under this Article 6 shall terminate and be of no further force and
effect five (5) years after the Effective Date. In addition, the
Purchaser's registration rights under this Article 6 shall expire if all
Warner Registrable Securities held by and issuable to the Purchaser may be
sold under Rule 144 during any ninety (90) day period.
7. Miscellaneous.
7.1 GOVERNING LAW. This Agreement shall be governed by and
interpreted under the laws of the State of New York.
7.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors, and
administrators of the parties hereto.
7.3 ENTIRE AGREEMENT. This Agreement, the Collaboration
Agreement and the other documents delivered pursuant hereto, constitutes
the full and entire understanding and agreement among the parties with
regard to the subjects hereof and no party shall be liable or bound to any
other party in any manner by any representations, warranties, covenants, or
agreements except as specifically set forth herein or therein. Nothing in
this Agreement, express or implied, is intended to confer upon any party,
other than the parties hereto and their respective successors and assigns,
any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided herein.
7.4 SEVERABILITY. In the event any provision of this Agreement
shall be invalid, illegal, or unenforceable, it shall to the extent
practicable, be modified so as to make it valid, legal and enforceable and
to retain as nearly as practicable the intent of the parties, and the
validity, legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
7.5 AMENDMENT AND WAIVER. Except as otherwise provided herein,
any term of this Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of
time or indefinitely), with the written consent of the Company and the
Purchaser. Any amendment or waiver effected in accordance with this
Section shall be binding upon any holder of any securities purchased under
this Agreement (including securities into which such securities have been
converted), each future holder of all such securities, and the Company.
7.6 NOTICES. Subject to the final sentence of this Section 7.6,
all notices and other communications required or permitted hereunder shall
be in writing and shall be deemed effectively given and received (a) upon
personal delivery, (b) on the fifth day following mailing by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
Company and the Purchaser at their respective addresses first above
written, (c) upon transmission of telegram or facsimile (with telephonic
notice), or (d) upon confirmed delivery by overnight commercial courier
service. Any Put Notification shall be effective only upon receipt by
Purchaser (which may be by facsimile to a facsimile number specified in
writing by the Purchaser, with telephonic notice).
7.7 FEES AND EXPENSES. The Company and the Purchaser shall bear
their own expenses and legal fees incurred on their behalf with respect to
this Agreement and the transactions contemplated hereby.
7.8 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.9 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY" ONYX PHARMACEUTICALS, INC.
By: /s/ Hollings C. Renton
-------------------------------------
Name: Hollings C. Renton
Title: President and Chief Executive Officer
"PURCHASER" XXXXXX-XXXXXXX COMPANY
By: /s/ Xxxxxxx Wild, Ph.D.
-------------------------------------
Name: Xxxxxxx Wild, Ph.D.
Title: Executive Vice President
