EXHIBIT B
ONYX PHARMACEUTICALS, INC.
STOCK AND WARRANT PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 6th day of May, 2002
(the "Effective Date"), by and among ONYX PHARMACEUTICALS, INC., a Delaware
corporation (the "Company"), and each of those persons and entities, severally
and not jointly, set forth on the Schedule of Purchasers attached as Exhibit A
hereto (which persons and entities are hereinafter collectively referred to
herein as "Purchasers" and each individually as a "Purchaser").
AGREEMENT
In consideration of the mutual covenants contained in this Agreement
and for other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and each Purchaser (severally and not jointly) hereby
agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES. Subject to the terms and
conditions of this Agreement, the Company has or before the Closing (as defined
below) will have authorized the sale and issuance of up to (i) 2,972,925 shares
of the Company's Common Stock, $0.001 par value (the "Shares") and (ii) warrants
to purchase 743,229 shares of the Company's Common Stock, which is equal to
twenty-five percent (25%) of the number of Shares purchased hereunder, at an
exercise price per share of nine dollars and fifty-nine cents ($9.59), which is
125% of the average closing stock price of the Company's Common Stock on the
Nasdaq National Market for the ten (10) consecutive trading days ending on May
3, 2002. Such warrants shall be issued in substantially the form attached hereto
as Exhibit B (each, a "Warrant" and collectively, the "Warrants"). The shares of
Common Stock issuable upon the exercise of the Warrants are referred to herein
as the "Warrant Shares".
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE SECURITIES. At the Closing (as
defined in Section 3), the Company shall issue and sell to each Purchaser,
severally and not jointly, and each Purchaser shall purchase from the Company,
severally and not jointly, the number of Shares and a Warrant set forth next to
such Purchaser's name on the Schedule of Purchasers attached hereto as Exhibit A
(the "Schedule of Purchasers") at a purchase price of six dollars and
seventy-five cents ($6.75) per Share (the "Purchase Price") (subject to
proportionate adjustment upon the occurrence of any stock split, stock dividend,
reverse stock split or like event that is consummated or becomes effective
during the period commencing on the date hereof and ending immediately prior to
the Closing).
SECTION 3. CLOSING AND DELIVERY
3.1 Closing. The closing of the purchase and sale of the Shares and
Warrants to be issued pursuant to this Agreement (the "Closing") shall be held
at the offices of Xxxxxx Godward LLP, 0000 Xxxxxxx Xxxxxx, Xxxx Xxxx,
Xxxxxxxxxx, 00000 on May 7, 2002 or on such other date and place as may be
agreed to by the Company and the Purchasers.
3.2 Delivery of the Shares and Warrants. Promptly following the Closing,
the Company shall deliver to each Purchaser a certificate representing the
number of shares to be
1.
purchased at the Closing by such Purchaser and a Warrant, both registered in the
name of such Purchaser, or in such nominee name(s) as designated by such
Purchaser against payment of the purchase price therefore by wire transfer. The
Company shall also deliver an executed copy of this Agreement to each Purchaser.
SECTION 4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY.
Subject to and except as set forth on the Schedule of Exceptions which is
arranged in sections corresponding to the sub-section numbered provisions
contained below in this Section and except as described in the SEC Reports (as
defined below), the Company hereby represents and warrants to, and covenants
with, the Purchasers as of the Closing as follows:
4.1 Organization 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 and all licenses,
permits and authorizations to conduct its business as it is currently being
conducted and as it is presently proposed to be conducted and to own, lease and
operate its properties. True and complete copies of the Restated Certificate of
Incorporation and the Bylaws of the Company, as amended to and as in effect on
the date hereof, have been delivered to the Investors as certified by the
Company's Secretary. The Company is duly qualified and is authorized to transact
business and is in good standing as a foreign corporation in each jurisdiction
in which the failure so to qualify would have a Material Adverse Effect. As used
in this Agreement, a "Material Adverse Effect" means (a) a material adverse
effect upon the business, operations, properties, assets or condition (financial
or otherwise) of the Company or, as the case may be, the Company and any of its
subsidiaries, taken as a whole or (b) the impairment of the ability of the
Company to perform its obligations under this Agreement, provided, however, that
for purposes of determining whether there shall have been any such "Material
Adverse Effect", (i) any adverse change resulting from or relating to worldwide
general business or economic conditions shall be disregarded, (ii) any adverse
change resulting from or relating to conditions generally affecting the industry
in which the Company competes shall be disregarded, and (iii) any adverse change
to the stock price of the Company's Common Stock, as quoted on any nationally
recognized stock quotation system, shall be disregarded.
4.2 Due Execution, Delivery and Performance. Assuming and relying on the
accuracy of the representation set forth in Section 5.4, the Company's
execution, delivery and performance of this Agreement and the issuance and sale
of the Shares and Warrants have been duly authorized by all requisite corporate
and stockholder action by the Company and its stockholders, respectively. Upon
the execution and delivery by the Company, and assuming the valid execution and
delivery of this Agreement by each of the Purchasers, this Agreement will
constitute the valid and binding obligation of the Company, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law),
including specific performance, and except as the indemnification provisions
contained in Section 9.3 hereof may be legally unenforceable.
2.
4.3 No Conflicts. The Company's execution, delivery and performance of this
Agreement and the issuance of the Shares and Warrants will not violate, conflict
with, result in a breach of or constitute (upon notice or lapse of time or both)
a default under, or result in the creation or imposition of any lien, security
interest, mortgage, pledge, charge or other encumbrance, of any material nature,
upon any properties or assets of the Company under any (a) law, regulation,
rule, injunction, judgment, order, decree, ruling, charge or other restriction
of any government, governmental agency, court or arbitrator to which the Company
is subject, (b) the Company's Amended and Restated Certificate of Incorporation
or Bylaws or (c) any provision of any material indenture, mortgage, agreement,
contract or other material instrument to which the Company is a party or by
which the Company or any of its properties or assets is bound as of the date
hereof.
4.4 Governmental Consents. Except for applicable filings with The Nasdaq
Stock Market, Inc. (the "Nasdaq Market"), under the Securities Act of 1933, as
amended (the "Securities Act"), or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), no consent, approval, qualification, order or
authorization of, or filing with, any local, state, or federal governmental
authority is required on the part of the Company in connection with the
Company's valid execution, delivery, or performance of this Agreement, or the
offer, sale or issuance of the Shares and Warrants by the Company, other than
any post-closing filings as may be required under applicable federal or state
securities laws, which will be timely filed within the applicable periods
therefor.
4.5 Issuance and Sale of the Securities. When issued and paid for in
accordance with this Agreement, the Shares and Warrants to be sold hereunder by
the Company and, upon exercise of the Warrants in accordance with their terms,
the Warrant Shares (collectively, with the Shares and Warrants, the
"Securities") will be validly issued and outstanding, fully paid and
non-assessable.
4.6 SEC Reports.
(a) Since April 1, 2001, the Company has filed in a timely manner with
the Securities and Exchange Commission (the "SEC") all reports ("SEC Reports")
required to be filed by it under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). All of the SEC Reports filed by the Company comply in all
material respects with the requirements of the Exchange Act. None of the SEC
Reports contains, as of the respective dates thereof, any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made. All financial statements contained in
the SEC Reports have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the period indicated
("GAAP"). Each balance sheet is in accordance with the books and records of the
Company and presents fairly in accordance with GAAP the financial position of
the Company as of the date of such balance sheet, and each statement of
operations, of stockholders' equity and of cash flows is in accordance with the
books and records of the Company and presents fairly in accordance with GAAP the
results of operations, the stockholders' equity and the cash flows of the
Company for the periods then ended.
(b) The Company has delivered to the Purchasers the following SEC
Reports:
3.
(i) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001 (without exhibits); and
(ii) the Company's Proxy Statement for the 2002 Annual Meeting of
Stockholders.
(c) No event has occurred since January 1, 2002, requiring the filing
of an SEC Report that has not heretofore been filed and furnished to the
Purchasers (including, without limitation, any amendment to any such SEC
Report).
4.7 No Material Change. As of the date hereof, there has been no event or
action that would have a Material Adverse Effect since January 1, 2002, except
that the Company continues to incur losses as described in the SEC Reports.
4.8 Executive Officers. As of the date hereof, and since the date of the
most recent SEC Report, there have been no resignations, terminations or
appointments with respect to (a) the Board of Directors of the Company or (b)
the executive officers of the Company.
4.9 Capitalization. The authorized capital stock of the Company consists of
(i) 50,000,000 shares of Common Stock, $.001 par value, of which 18,591,421 such
shares were issued and outstanding as of April 30, 2002 and (ii) 5,000,000
shares of preferred stock, $.001 par value, of which no shares are issued and
outstanding on the date hereof. As of the date hereof, the Company has no
intention, obligation or commitment, fixed or contingent, to issue any shares of
such Preferred Stock. Except as contemplated by this Agreement and except for
shares reserved under the Company's 1996 Equity Incentive Plan, the 1996
Non-Employee Directors' Stock Option Plan and the 1996 Employee Stock Purchase
Plan, there are no existing options, warrants, calls, preemptive (or similar)
rights, subscriptions or other rights, agreements, arrangements or commitments
of any character obligating the Company to issue, transfer or sell, or cause to
be issued, transferred or sold, any shares of capital stock of the Company or
other equity interests in the Company or any securities convertible into or
exchangeable for such shares of capital stock or other equity interests, and
there are no outstanding contractual obligations of the Company to repurchase,
redeem or otherwise acquire, or prepare and file with the SEC any registration
statement to register under the Securities Act of 1933, as amended (the
"Securities Act") with respect to, any such shares of capital stock or other
equity interests. There exist no statutory preemptive, or other similar rights
to purchase securities of the Company.
4.10 Nasdaq Compliance. The Company's Common Stock is registered pursuant
to Section 12(g) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and is listed on the Nasdaq National Market (the "Nasdaq Stock
Market"), and the Company has taken no action designed to, or which to its
knowledge is likely to have the effect of, terminating the registration of the
Common Stock under the Exchange Act or delisting the Common Stock from the
Nasdaq Stock Market.
4.11 Absence of Litigation. There is no action, suit, proceeding or
investigation pending or, to the Company's best knowledge, that has been filed,
commenced or threatened, by or before any governmental agency, court or
arbitrator against the Company which might have, either individually or in the
aggregate, a Material Adverse Effect (including, without limitation,
4.
any such action, suit, proceeding or investigation that questions the validity
of this Agreement or the issuance of the Shares and Warrants hereunder).
4.12 Intangible Rights. To the Company's best knowledge, the Company owns
or has the right to use pursuant to valid and enforceable licenses, sublicenses,
agreements or permissions, all Intangible Rights (as defined below) that are
necessary or desirable for the conduct of the business of the Company as it is
currently being conducted, and no claims adverse to the interests of the Company
are pending or, to the best knowledge of the Company, have been threatened or
otherwise asserted with respect to the Company's ownership or use of any such
Intangible Rights. To the Company's best knowledge, the Company is not
infringing any Intangible Right owned or used by any third party nor, to the
Company's best knowledge, is any third party infringing any Intangible Right
owned or used by the Company. For purposes of this Agreement, the term
"Intangible Rights" means (i) all inventions (whether patentable or
unpatentable, and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof, (ii) all trademarks, service marks, trade dress, logos,
trade names and corporate names, together with all translations, adaptations,
derivations and combinations thereof and including all goodwill associated
therewith, and all applications, registrations and renewals in connection
therewith, (iii) all copyrightable works, all copyrights, all applications,
registrations and renewals in connection therewith, (iv) all trade secrets and
confidential business information (including, without limitation, ideas,
research and development, know-how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, drawings,
specifications, supplier lists, and business and marketing plans and proposals),
(v) all gene sequences, cell lines, chemical compounds, assays and biological
materials, (vi) all other proprietary rights and (vii) all copies and tangible
embodiments of any of the foregoing (in whatever form or medium).
4.13 Legal Compliance. The Company is not in default or violation of its
Restated Certificate of Incorporation or Bylaws and has not violated any
applicable laws (including, without limitation, rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings and charges thereunder)
of federal, state, local and foreign governments (and all agencies thereof) in
respect of the conduct of its business or the ownership of its properties which
default violation would (either individually or in the aggregate) have a
Material Adverse Effect. To the knowledge of the Company, there exists no
condition, event or act which constitutes, or which after notice, lapse of time
or both, would constitute, such a default or violation under any of the
foregoing except where such a default is not reasonably expected to have a
Material Adverse Effect.
4.14 Securities Act Exemption. Assuming and relying in part on the truth
and accuracy of Purchasers' representations and warranties in Section 5 of this
Agreement, the offer, sale and issuance of the Securities is exempt from
registration under the Securities Act.
4.15 Brokers. Except for the engagement of U.S. Bancorp Xxxxx Xxxxxxx Inc.
by the Company, neither the Company nor any of the officers, directors or
employees of the Company has employed any broker or finder in connection with
the transaction contemplated by this Agreement. The Company shall indemnify each
Purchaser from and against any broker's, finder's or agent's fees for which the
Company is responsible.
5.
SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASER.
5.1 Authority, Approval and Enforceability.
Each Purchaser, severally and not jointly, represents and warrants to and
covenants with the Company that:
(a) Purchaser has full power and authority to execute, deliver and
perform its obligations under this Agreement and all agreements, instruments and
documents contemplated hereby, and all action of Purchaser necessary for such
execution, delivery and performance has been duly taken.
(b) Purchaser's execution, delivery and performance of this Agreement
has been duly authorized by all requisite action by Purchaser. Upon the
execution and delivery by Purchaser, and assuming the valid execution and
delivery of this Agreement by each of the other Purchasers and the Company, this
Agreement will constitute a valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' and contracting parties' rights generally and
except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), including specific performance, and except to the extent that
the enforceability of the indemnification provisions of Section 9.3 may be
legally unenforceable.
5.2 Investment Representations. Each Purchaser understands that the
Securities have not been registered under the Securities Act. Each Purchaser
also understands that the Securities are being offered and sold pursuant to an
exemption from registration contained in the Securities Act based in part upon
Purchaser's representations contained in the Agreement. Each Purchaser hereby
represents and warrants as follows:
(a) Purchaser has substantial experience in evaluating and investing
in private placement transactions of securities in companies similar to the
Company so that it is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own interests.
Purchaser must bear the economic risk of this investment indefinitely unless the
Securities are registered pursuant to the Securities Act, or an exemption from
registration is available. Purchaser understands that there is no assurance that
any exemption from registration under the Securities Act will be available and
that, even if available, such exemption may not allow Purchaser to transfer all
or any portion of the Securities under the circumstances, in the amounts or at
the times Purchaser might propose.
(b) Purchaser has been advised or is aware of the provisions of Rule
144 promulgated under the Securities Act, which permits limited resale of shares
purchased in a private placement subject to the satisfaction of certain
conditions.
(c) The Purchaser agrees that it will not sell, pledge, assign,
transfer, otherwise dispose of or reduce its risk with respect to (collectively,
"Transfer") any of the Securities unless the Transfer will be made pursuant to
an exemption from the registration requirements of the Securities Act or
pursuant to an effective registration statement under the Securities Act and
pursuant to an exemption from any applicable state securities laws or an
6.
effective registration or other qualification under any applicable state
securities laws. The Purchaser understands that exemptions from such
registration requirements are limited. The Company is under no obligation to
register the Securities except as provided in Section 9.
(d) The Purchaser acknowledges and agrees that the Securities are
subject to certain restrictions as to resale under the federal and state
securities laws. The Purchaser agrees and understands that stop transfer
instructions will be given to the transfer agent for the Shares and Warrant
Shares, and each share certificate and each certificate delivered on transfer of
or in substitution for any such certificate, shall have affixed a legend in
substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and may not be offered, sold or otherwise transferred,
assigned, pledged or hypothecated unless and until registered
under the Act or unless the Company has received an opinion of
counsel satisfactory to the Company and its counsel that such
registration is not required."
(e) Purchaser is acquiring the Securities for Purchaser's own account
for investment only, and not with a view towards their distribution.
(f) Purchaser represents that by reason of its, or of its
management's, business or financial experience, Purchaser has the capacity to
protect its own interests in connection with the transactions contemplated in
this Agreement. Further, Purchaser is aware of no publication of any
advertisement in connection with the transactions contemplated in the Agreement.
(g) Purchaser represents that it is an accredited investor within the
meaning of Regulation D under the Securities Act.
(h) Purchaser has received the SEC Reports listed in Section 4.6(b)
and has had an opportunity to discuss the Company's business, management and
financial affairs with directors, officers and management of the Company and has
had the opportunity to review the Company's operations and facilities. Purchaser
has also had the opportunity to ask questions of and receive answers from, the
Company and its management regarding the terms and conditions of this
investment.
5.3 Brokers. Other than as disclosed to the Company, neither the Purchasers
nor any of their respective officers, directors or employees has employed any
broker or finder in connection with the transaction contemplated by this
Agreement. Each Purchaser shall jointly, and not severally, indemnify the
Company and the other Purchasers from and against any broker's, finder's or
agent's fees for which such indemnifying Purchaser is responsible.
5.4 Pecuniary Interest. Domain Partners V, L.P. and DP V Associates, L.P.
(together "Domain") jointly and severally represent and warrant to the Company
that Xxxxxx Xxxxxxx, who is both Managing Director of Domain Associates, L.L.C.
and a member of the Board of Directors of the Company, will, immediately
following the Closing, have a pecuniary
7.
interest (direct or indirect) in the Securities purchased by Domain pursuant to
this Agreement of less than 25,000 shares.
5.5 Acknowledgments Regarding Placement Agent. Each Purchaser acknowledges
that the U.S. Bancorp Xxxxx Xxxxxxx Inc. (the "Placement Agent") has acted
solely as placement agent for the Company in connection with the offering of the
Securities by the Company, that certain of the information and data provided to
such Purchaser in connection with the transactions contemplated hereby have not
been subjected to independent verification by the Placement Agent, and that the
Placement Agent makes no representation or warranty with respect to the accuracy
or completeness of such information, data or other related disclosure material.
Each Purchaser further acknowledges that in making its decision to enter into
this Agreement and purchase Shares and a Warrant it has relied on its own
examination of the Company and the terms of, and consequences, of holding the
Securities. Each Purchaser further acknowledges that the provisions of this
Section 5.5 are also for the benefit of, and may also be enforced by, the
Placement Agent.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
Notwithstanding any investigation made by any party to this Agreement, all
covenants, agreements, representations and warranties made by the Company and
each Purchaser herein shall survive the execution of this Agreement and the
issuance and sale to the Purchasers of the Securities and shall terminate upon
the subsequent transfer of the Shares pursuant to Sections 5 or 9.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT THE CLOSING. The Company's
obligation to complete the sale and issuance of the Securities at Closing shall
be subject to the following conditions to the extent not waived by the Company:
7.1 Representations and Warranties Correct. The representations and
warranties made by each Purchaser in Section 5 hereof shall be true and correct
when made, and shall be true and correct on the Closing Date.
7.2 Covenants Performed. All covenants, agreements and conditions contained
in this Agreement to be performed by the Purchasers on or prior to the Closing
Date shall have been performed or complied with in all material respects.
7.3 Qualifications. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are binding upon any of the Purchasers and that are required in
connection with the lawful sale and issuance of the Securities at such Closing
pursuant to this Agreement shall have been duly obtained and shall be effective
on and as of the date of such Closing. No stop order or other order enjoining
the sale of the Securities shall have been issued and no proceedings for such
purpose shall be pending or, to the knowledge of the Company, threatened by the
SEC or any commissioner of corporations or similar officer of any state having
jurisdiction over this transaction.
7.4 Legal Investment. At the time of such Closing, the sale and issuance of
the Securities to be purchased and sold at such Closing shall be legally
permitted by all laws and regulations to which the Purchaser and the Company are
subject.
8.
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT THE CLOSING. Each
Purchaser's obligation to purchase the Securities at the Closing thereby shall
be subject to the following conditions to the extent not waived by such
Purchasers:
8.1 Representations and Warranties Correct. The representations and
warranties made by the Company in Section 4 hereof shall be true and correct
when made, and shall be true and correct as of the Closing Date.
8.2 Legal Opinion. Purchasers shall have received from Xxxxxx Godward LLP,
counsel to the Company, an opinion letter addressed to the Purchasers, dated as
of the Closing Date, in the form attached hereto as Exhibit C.
8.3 Covenants Performed. All covenants, agreements and conditions contained
herein to be performed by the Company on or prior to the Closing Date shall have
been performed or complied with in all material respects.
8.4 Qualifications. All authorizations, approvals, or permits, if any, of
any governmental authority or regulatory body of the United States or of any
state that are binding upon the Company and that are required in connection with
the lawful sale and issuance of the Shares at such Closing pursuant to this
Agreement shall have been duly obtained and shall be effective on and as of the
Closing Date. No stop order or other order enjoining the sale of the Securities
shall have been issued and no proceedings for such purpose shall be pending or,
to the knowledge of the Company, threatened by the SEC, or any commissioner of
corporations or similar officer of any state having jurisdiction over this
transaction.
8.5 Legal Investment. At the time of the Closing, the sale and issuance of
the Securities shall be legally permitted by all laws and regulations to which
the Purchaser and the Company are subject.
8.6 Compliance Certificate. The Company shall have delivered to Purchasers,
a Compliance Certificate, executed by the Chief Executive Officer of the
Company, dated the Closing Date, to the effect that the conditions, specified in
Sections 8.1, 8.3 and 8.4 have been satisfied.
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE WITH THE SECURITIES ACT.
9.1 Definitions. As used in this Section 9 the following terms shall have
the following respective meanings:
(a) "Registrable Shares" shall mean (i) the Shares and Warrant Shares
issued or issuable pursuant to this Agreement and (ii) any other shares of
Common Stock issued or issuable in respect to the Shares and Warrant Shares
(because of stock splits, stock dividends, reclassifications, recapitalizations,
or similar events);
(b) "Registration Statement" shall mean any registration statement and
shall include any preliminary prospectus, final prospectus, exhibit, supplement
or amendment included in or relating to the Registration Statement referred to
in Section 9.2 and Section 9.3; and
9.
(c) "Untrue Statement" shall include any untrue statement or alleged
untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
9.2 Registration Procedures and Expenses. The Company is obligated to do
the following:
The Company shall, within thirty (30) days immediately following the
Closing Date, such actual date being referred to as the "Registration Date":
(a) prepare and file with the SEC a registration statement on Form S-3
in order to register with the SEC under the Securities Act a sale by the
Purchasers on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act any or all of the Registrable Shares through the automated
quotation system of the Nasdaq National Market System or the facilities of any
national securities exchange on which the Company's Common Stock is then traded,
or in privately-negotiated transactions (a "Registration Statement")
(notwithstanding anything to the contrary expressed or implied herein, if a
registration statement on Form S-3, or any substitute form, is not then
available for registration of the Registrable Shares, the Company shall be
obligated instead to prepare and file with the SEC a registration statement on
Form S-1 in order to register the Registrable Shares under the Securities Act
and such registration statement will be a "Registration Statement" for the
purposes of this Agreement);
(b) subject to receipt of necessary information from the Purchasers,
use its best efforts to cause such Registration Statement to become effective
within ninety (90) days immediately following the Closing Date (the "Effective
Date") and take all other reasonable actions necessary under any federal law or
regulation to permit all Registrable Shares to be sold or otherwise disposed of;
(c) promptly notify each Purchaser, at any time when a prospectus
relating to such Registration Statement is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in or relating to such Registration Statement contains an
untrue statement of a material fact or omits to state any fact necessary to make
the statements therein not misleading;
(d) promptly prepare and file with the SEC, and deliver to each
Purchaser, such amendments and supplements to such Registration Statement and
the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective until termination of such obligation as
provided in Section 9.6 below;
(e) furnish to each Purchaser such number of copies of prospectuses in
conformity with the requirements of the Securities Act, in order to facilitate
the public sale or other disposition of all or any of the Registrable Shares by
the Purchasers;
(f) no later than the Registration Date, file such documents as may be
required of the Company for normal state securities law clearance for the resale
of the Registrable Shares in which states of the United States as may be
reasonably requested by each Purchaser provided, however, that the Company shall
not be required in connection with this
10.
paragraph (f) to qualify as a foreign corporation or execute a general consent
to service of process in any jurisdiction;
(g) no later than the Registration Date, use its best efforts to cause
all Registrable Shares to be listed on each securities exchange, if any, on
which equity securities by the Company are then listed; and
(h) bear all expenses in connection with the procedures in Section
9.2, other than (i) fees and expenses, if any, of counsel or other advisers to
the Purchasers, and (ii) any expenses relating to the sale of the Registrable
Shares by the Purchasers, including broker's commission, discounts or fees and
transfer taxes.
9.3 Indemnification
(a) The Company agrees to indemnify and hold harmless each Purchaser
and underwriter (and each person, if any, who controls the Purchaser within the
meaning of Section 15 of the Securities Act) from and against any losses,
claims, damages or liabilities to which such Purchaser (or such underwriter or
controlling person) may become subject (under the Securities Act or otherwise)
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon, any Untrue
Statement contained in the Registration Statement on the Effective Date thereof,
or arise out of any failure by the Company to fulfill any undertaking included
in the Registration Statement and the Company will reimburse such Purchaser (or
such underwriter or controlling person) for any reasonable legal or other
expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim; provided, however, that the Company shall
not be liable in any such case to the extent that such loss, claim, damage or
liability arises out of, or is based upon, an Untrue Statement made in such
Registration Statement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement, or the
failure of such Purchaser to comply with the covenants and agreements contained
in Section 9.4 hereof respecting the sale of the Registrable Shares or any
statement or omission in any prospectus that is corrected in any subsequent
prospectus that was delivered to the Purchaser prior to the pertinent sale or
sales by the Purchaser.
(b) Each Purchaser, severally and not jointly, agrees to indemnify and
hold harmless the Company and underwriter (and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act, each officer
of the Company who signs the Registration Statement and each director of the
Company) from and against any losses, claims, damages or liabilities to which
the Company (or any such underwriter, officer, director or controlling person)
may become subject (under the Securities Act or otherwise), insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon, any failure to comply with the
covenants and agreements contained in Section 9.4 hereof respecting sale of the
Registrable Shares, or any Untrue Statement contained in the Registration
Statement on the Effective Date thereof if such Untrue Statement was made in
reliance upon and in conformity with written information furnished by or on
behalf of such Purchaser specifically for use in preparation of the Registration
Statement, and such Purchaser will reimburse the Company (or such underwriter,
officer, director or controlling person), as the
11.
case may be, for any legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or
claim; provided that in no event shall any indemnity by a Purchaser under this
Section 9.3 exceed the net proceeds received by such Purchaser from the sale of
the Registrable Shares covered by such Registration Statement.
(c) Promptly after receipt by any indemnified person of a written
notice of a claim or the beginning of any action in respect of which indemnity
is to be sought against an indemnifying person pursuant to this Section 9.3,
such indemnified person shall notify the indemnifying person in writing of such
claim or of the commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought against an
indemnified person and such indemnifying person shall have been notified
thereof, such indemnifying person shall be entitled to participate therein, and,
to the extent it shall wish, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to assume the
defense thereof, such indemnifying person shall not be liable to such
indemnified person for any legal expenses subsequently incurred by such
indemnified person in connection with the defense thereof; provided, however,
that if there exists or shall exist a conflict of interest that would make it
inappropriate, in the opinion of counsel to the indemnified person, for the same
counsel to represent both the indemnified person and such indemnifying person or
any affiliate or associate thereof, the indemnified person shall be entitled to
retain its own counsel at the expense of such indemnifying person; provided,
however, that no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified parties;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) If the indemnification provided for in this Section 9.3 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage, or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such loss, liability, claim, damage, or expense in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and of the indemnified party on the other in connection
with the statements or omissions that resulted in such loss, liability, claim,
damage, or expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission; provided, that in
no event shall any contribution by a Purchaser hereunder exceed the net proceeds
received by such Purchaser from the sale of the Shares covered by the
Registration Statement.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution in the underwriting agreement entered into
in connection with an underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
12.
9.4 Transfer of Shares After Registration; Notice. Each Purchaser
hereby covenants with the Company not to make any sale of the Registrable Shares
after registration without effectively causing the prospectus delivery
requirement under the Securities Act to be satisfied. Each Purchaser
acknowledges that there may be times when the Company must suspend the use of
the prospectus forming a part of the Registration Statement until such time as
an amendment to the Registration Statement has been filed by the Company and
declared effective by the SEC, or until such time as the Company has filed an
appropriate report with the SEC pursuant to the Exchange Act. Each Purchaser
hereby covenants that it will not sell any Registrable Shares pursuant to said
prospectus during the period commencing at the time at which the Company gives
the Purchaser written notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchaser notice that the Purchaser may
thereafter effect sales pursuant to said prospectus, provided, however, that the
Company shall not suspend the use of said prospectus more than two times in any
twelve month period and the duration of any one such suspension shall not be
more than thirty (30) days. The foregoing provisions of this Section 9.4 shall
in no manner diminish or otherwise impair the Company's obligations under
Section 9.2 and Section 9.3 hereof.
9.5 Reporting Requirements. The Company agrees to use its best efforts
to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Securities
Exchange Act of 1934; and
(c) so long as any of the Purchasers own Registrable Shares, to
furnish to the Purchasers forthwith upon request (1) a written statement by the
Company as to whether it complies with the reporting requirements of said Rule
144, the Securities Act and Securities Exchange Act of 1934, and whether it
qualifies as a registrant whose securities may be resold pursuant to SEC Form
S-3, and (2) such other information as may be reasonably requested in availing
the Purchasers of any rule or regulation of the SEC that would permit the
selling of the Registrable Shares without registration.
9.6 Termination of Obligations. The obligations of the Company pursuant to
Sections 9.2 through 9.5 hereof shall cease and terminate upon the earlier to
occur of (i) such time as all of the Registrable Shares have been resold or (ii)
as to each Purchaser, such time as all of the Registrable Shares held by such
Purchaser may be sold during any 90 day period pursuant to Rule 144, including
Rule 144 (k), without being restricted by the volume limitations of Rule 144(e).
9.7 Assignability of Registration Rights. The registration rights set forth
in this Section 9 are not assignable other than to an affiliate of a Purchaser
or, if the Purchaser is a partnership or limited liability company, limited
partner or a member of a Purchaser; provided, however, that each Purchaser shall
only have the right to require the Company to amend the Registration Statement
twice for such assignments.
13.
SECTION 10. NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be sent by confirmed facsimile or mailed by
first-class registered or certified airmail, or nationally recognized overnight
express courier, postage prepaid, and shall be deemed given when so sent and
addressed as follows:
(a) if to the Company, to:
ONYX Pharmaceuticals, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Hollings C. Renton
with a copy to:
Cooley Godward LLP
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
or to such other person at such other place as the Company shall designate to
the Purchasers in writing; and
(b) if to a Purchaser, at the address as set forth below such Purchaser's
name at the end of this Agreement, or at such other address or addresses as may
have been furnished to the Company in writing.
sECTION 11. MISCELLANEOUS.
11.1 Waivers and Amendments. Neither this Agreement nor any provision
hereof may be changed, waived, discharged, terminated, modified or amended
except upon the written consent of the Company and holders of at least 66 2/3%
of the Shares issued pursuant to this Agreement.
11.2 Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.
11.3 Severability. In case any provision contained in this Agreement should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby.
11.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware as applied to contracts
entered into and performed entirely in Delaware by Delaware residents, without
regard to conflicts of law principles.
14.
11.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute but one instrument, and shall become effective
when one or more counterparts have been signed by each party hereto and
delivered to the other parties.
11.6 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.
The Company shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving
corporation unless the proposed surviving corporation shall, prior to such
merger, consolidation or reorganization, agree in writing to assume the
obligations of the Company under this Agreement; provided, however, that the
provisions of this Section 11.6 shall not apply in the event of any merger,
consolidation or reorganization in which the Company is not the surviving
corporation if all Purchasers are entitled to receive in exchange for their
Registrable Shares consideration consisting solely of (i) cash, or (ii)
securities of the acquiring corporation which may be immediately sold to the
public without registration under the Securities Act.
11.7 Expenses. Each party shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance of this
Agreement. The Company shall, at the Closing, reimburse the reasonable fees of
and expenses of one special counsel for Domain, the aggregate of which shall not
exceed $30,000. The Company will also reimburse Domain for the reasonable fees
and expenses of any external consultants retained by Domain as part of its due
diligence process, the aggregate of which shall not exceed $8,000.
11.8 Entire Agreement. This Agreement, the Non-Disclosure Agreements
entered into by certain of the Purchasers in favor of U.S. Bancorp Xxxxx Xxxxxxx
Inc. and the Company and other documents delivered pursuant hereto, including
the exhibits, constitute the full and entire understanding and agreement between
the parties with regard to the subjects hereof and thereof.
11.9 Publicity. No party shall issue any press releases or otherwise make
any public statement with respect to the transactions contemplated by this
Agreement without the prior written consent of the other parties, except as may
be required by applicable law or regulations, in which case such party shall
provide the other parties with reasonable notice of such publicity and/or
opportunity to review such disclosure.
11.10 Waiver of Conflicts. Each party to this Agreement acknowledges that
legal counsel for the Company, Xxxxxx Godward LLP ("Xxxxxx Godward"), has in the
past and may continue in the future to perform legal services for one or more of
the Purchasers or their affiliates in matters unrelated to the transactions
contemplated by this Agreement, including, but not limited to, the
representation of the Purchasers in matters of a similar nature to the
transactions contemplated herein. Each party to this Agreement hereby (a)
acknowledges that they have had an opportunity to ask for and have obtained
information relevant to such representation, including disclosure of the
reasonably foreseeable adverse consequences of such representation; (b)
acknowledges that with respect to the transactions contemplated herein, Xxxxxx
Godward has represented the Company and not any individual Purchaser or any
individual shareholder, director or employee of the Company; and (c) gives its
informed consent to Xxxxxx Godward's
representation of the Company in the transactions contemplated by this Agreement
and Xxxxxx Godward's representation of one or more of the Purchasers or their
affiliates in matters unrelated to such transactions.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
16.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
COMPANY: PURCHASERS:
ONYX PHARMACEUTICALS, INC. DOMAIN PARTNERS V, L.P.
By: One Xxxxxx Square Associates V, L.L.C.
Its General Partner
By:_________________________ By:____________________________________
Hollings C. Renton
Chairman, President, and CEO Print name:____________________________
Managing Member
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000 Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
DP V ASSOCIATES, L.P.
By: One Xxxxxx Square Associates V, L.L.C.
Its General Partner
By:______________________________________
Print name:______________________________
Managing Member
Address: Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
PURCHASERS (continued):
Name: ____________________________________
By: ____________________________________
Authorized Signatory: ____________________________________
Print Signatory's Name: ____________________________________
Signatory's Title: ____________________________________
Address: ____________________________________
____________________________________
Name: ____________________________________
By: ____________________________________
Authorized Signatory: ____________________________________
Print Signatory's Name: ____________________________________
Signatory's Title: ____________________________________
Address: ____________________________________
____________________________________
EXHIBIT A
SCHEDULE OF PURCHASERS
NAME SHARES WARRANTS PURCHASE PRICE
AIG DKR Soundshore Holdings Ltd. 37,037 9,259 $249,999.75
AIG DKR Soundshore Private 74,074 18,518 $499,999.50
Investors Holding Fund Ltd.
AIG DKR Soundshore Strategic 37,037 9,259 $249,999.75
Holding Fund Ltd.
Caduceus Capital II L.P. 180,000 45,000 $1,215,000.00
Domain Partners V L.P. 723,647 180,911 $4,884,617.25
DP V Associates, L.P. 17,094 4,273 $115,384.50
Xxxxxx Xxxxxxx 10,000 2,500 $67,500.00
Federated Xxxxxxxx Fund 148,148 37,037 $999,999.00
Perceptive Life Sciences Master 740,740 185,185 $4,999,995.00
Fund, Ltd.
PW Eucalyptus Fund L.L.C. 420,000 105,000 $2,835,000.00
PW Eucalyptus Fund Ltd. 52,000 13,000 $351,000.00
Quogue Capital, LLC 148,148 37,037 $999,999.00
Winchester Global Trust Company 385,000 96,250 $2,598,750.00
Limited as Trustee For Caduceus
Capital Trust
_______ ________ ________
Total 2,972,925 743,229 $20,067,243.75
========= ======= ==============
EXHIBIT B
FORM OF WARRANT
NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREUNDER AND IN
COMPLIANCE WITH APPLICABLE STATE SECURITIES OR BLUE SKY LAWS AS EVIDENCED BY A
LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF
WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
ONYX PHARMACEUTICALS, INC.
COMMON STOCK WARRANT
--------------------
Warrant No. [ ] Dated: __________, 2002
Onyx Pharmaceuticals, Inc., a
Delaware corporation (the "COMPANY"), hereby
certifies that, for value received, [_________ ] or its registered assigns
("Holder"), is entitled, subject to the terms set forth below, to purchase from
the Company up to a total of [ ]1 shares of common stock, $0.001 par value per
share (the "COMMON STOCK"), of the Company (each such share, a "WARRANT SHARE"
and all such shares, the "WARRANT SHARES") at an exercise price per share equal
to nine dollars and fifty-nine cents ($9.59) (as such exercise price may be
adjusted from time to time as provided in Section 9, the "EXERCISE PRICE"), at
any time and from time to time from and after the date hereof and through and
including the Expiration Date. "EXPIRATION DATE" shall be the earlier of (i) the
seventh year anniversary of the date hereof or (ii) the date of termination of
this Warrant in accordance with Section 3(a).
This Warrant is being issued pursuant to the terms of that certain
Stock and Warrant Purchase Agreement, dated May 6, 2002, by and between the
Company and the Holder hereof (the "PURCHASE
________________________
1 The number of Warrant Shares equals 25% of the number of shares of
Common Stock purchased by the Holder pursuant to the Purchase Agreement.
-1- Warrant
AGREEMENT"). All capitalized terms not otherwise defined herein shall have the
meaning given to them in the Purchase Agreement. This Warrant is subject to the
following terms and conditions:
1. REGISTRATION OF WARRANT. The Company shall register this Warrant,
upon records to be maintained by the Company for that purpose (the "WARRANT
REGISTER"), in the name of the record Holder hereof from time to time. The
Company may deem and treat the registered Holder of this Warrant as the absolute
owner hereof for the purpose of any exercise hereof or any distribution to the
Holder, and for all other purposes, and the Company shall not be affected by
notice to the contrary.
2. REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) The Company shall register the transfer, subject to
compliance with applicable federal and state securities laws of any portion of
this Warrant in the Warrant Register, upon surrender of this Warrant, with the
Form of Assignment attached hereto duly completed and signed, to the Warrant
Agent (as defined in Section 13 hereof) or to the Company at its address for
notice set forth in Section 12. Upon any such registration or transfer, a new
warrant to purchase Common Stock, in substantially the form of this Warrant (any
such new warrant, a "NEW WARRANT"), evidencing the portion of this Warrant so
transferred shall be issued to the transferee and a New Warrant evidencing the
remaining portion of this Warrant not so transferred, if any, shall be issued to
the transferring Holder. The acceptance of the New Warrant by the transferee
thereof shall be deemed the acceptance of such transferee of all of the rights
and obligations of a holder of a Warrant.
(b) This Warrant is exchangeable, upon the surrender hereof by
the Holder to the office of the Company at its address for notice set forth in
Section 12 for one or more New Warrants, evidencing in the aggregate the right
to purchase the number of Warrant Shares which may then be purchased hereunder.
3. DURATION AND EXERCISE OF WARRANTS.
(a) In case of any (i) merger or consolidation of the Company
with or into another entity, or (ii) sale by the Company of all or substantially
all of the assets of the Company (on a book value basis) in one or a series of
related transactions, the Company shall provide to the Holder ten (10) days
advance written notice of such merger, consolidation or sale, and this Warrant
shall be deemed exercised pursuant to Section 10(b) hereof, unless exercised
prior to the date such merger, consolidation or sale occurs, and this Warrant
shall be of no further force and effect after such merger, consolidation or
sale.
(b) This Warrant shall be exercisable by the registered Holder on
any business day before 5:00 P.M. (Pacific Time) at any time and from time to
time on or after the date
-2- Warrant
hereof to and including the Expiration Date. At 5:00 P.M. (Pacific Time) on the
Expiration Date, the portion of this Warrant not exercised prior thereto shall
expire and become void and of no value. Prior to the Expiration Date, the
Company may not call or otherwise redeem this Warrant.
(c) Subject to Section 10 hereof, upon delivery of an executed
Form of Election to Purchase, together with the grid attached hereto as ANNEX A
duly completed and signed, to the Company at its address for notice set forth in
Section 12 and upon payment of the Exercise Price multiplied by the number of
Warrant Shares that the Holder intends to purchase hereunder, in the manner
provided hereunder, all as specified by the Holder in the Form of Election to
Purchase, the Company shall promptly (but in no event later than 5 business days
after the Date of Exercise (as defined herein)) issue or cause to be issued and
cause to be delivered to or upon the written order of the Holder and in such
name or names as the Holder may designate, a certificate for the Warrant Shares
issuable upon such exercise, which may bear a restrictive legend as set forth in
Section 7. To effect an exercise hereunder, the Holder shall not be required to
physically surrender this Warrant to the Company unless all the Warrant Shares
have been exercised. Exercises hereunder shall have the effect of lowering the
number of Warrant Shares in an amount equal to the applicable exercise, which
shall be evidenced by entries set forth on the attached Annex A. The Holder and
the Company shall maintain records showing the number of Warrant Shares
exercised and the date of such exercises. The Holder and any assignee, by
acceptance of this Warrant, acknowledge and agree that, by reason of the
provisions of this paragraph, following exercise of a portion of this Warrant,
the number of shares issuable upon exercise of this Warrant may be less than the
amount stated on the face hereof.
A "DATE OF EXERCISE" means the date on which the Company shall have
received the Form of Election to Purchase completed and duly signed.
(d) This Warrant shall be exercisable, either in its entirety or,
from time to time, for a portion of the number of Warrant Shares.
4. PAYMENT OF TAXES. The Company will pay all documentary stamp taxes
attributable to the issuance of Warrant Shares upon the exercise of this
Warrant; 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 registration
of any certificates for Warrant Shares or Warrants in a name other than that of
the Holder. The Holder shall be responsible for all other tax liability that may
arise as a result of holding or transferring this Warrant or receiving Warrant
Shares upon exercise hereof.
5. REPLACEMENT OF WARRANT. If this Warrant is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation hereof, or in lieu of and substitution
for this Warrant, a New Warrant, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft or destruction and indemnity.
-3- Warrant
6. RESERVATION OF WARRANT SHARES. The Company covenants that it will
at all times reserve and keep available at all times out of the aggregate of its
authorized but unissued Common Stock, solely for the purpose of enabling it to
issue Warrant Shares upon exercise of this Warrant as herein provided, the
number of Warrant Shares which are then issuable and deliverable upon the
exercise of this entire Warrant, free from preemptive rights or any other actual
contingent purchase rights of persons other than the Holder (taking into account
the adjustments and restrictions of Section 9). The Company covenants that all
Warrant Shares that shall be so issuable and deliverable shall, upon issuance
and receipt of the payment of the applicable Exercise Price in accordance with
the terms hereof, be duly and validly authorized, issued and fully paid and
nonassessable.
7. ACQUISITION OF WARRANT FOR PERSONAL ACCOUNT. Holder understands
that the Warrant has not been registered under the Securities Act. Holder also
understands that the Warrant is being offered and sold pursuant to an exemption
from registration contained in the Securities Act based in part upon Holder's
representations contained herein and in the Purchase Agreement. Holder
represents and warrants as follows:
(a) Holder has substantial experience in evaluating and investing in
private placement transactions of securities in companies similar to the Company
so that it is capable of evaluating the merits and risks of its investment in
the Company and has the capacity to protect its own interests. Holder must bear
the economic risk of this investment indefinitely unless the Securities are
registered pursuant to the Securities Act, or an exemption from registration is
available. Holder understands that there is no assurance that any exemption from
registration under the Securities Act will be available and that, even if
available, such exemption may not allow Holder to transfer all or any portion of
the Securities under the circumstances, in the amounts or at the times Holder
might propose.
(b) Holder has been advised or is aware of the provisions of Rule 144
promulgated under the Securities Act, which permits limited resale of securities
purchased in a private placement subject to the satisfaction of certain
conditions.
(c) The Holder agrees that it will not sell, pledge, assign, transfer,
otherwise dispose of or reduce its risk with respect to (collectively,
"Transfer") the Warrant or the Warrant Shares unless the Transfer will be made
pursuant to an exemption from the registration requirements of the Securities
Act or pursuant to an effective registration statement under the Securities Act
and pursuant to an exemption from any applicable state securities laws or an
effective registration or other qualification under any applicable state
securities laws. The Holder understands that exemptions from such registration
requirements are limited. The Company is under no obligation to register the
Warrant or Warrant Shares except as provided in the Purchase Agreement.
-4- Warrant
(d) The Holder acknowledges and agrees that the Warrant and Warrant
Shares are subject to certain restrictions as to resale under the federal and
state securities laws. The Holder agrees and understands that stop transfer
instructions will be given to the transfer agent for the Warrant Shares, and
each certificate delivered on transfer of or in substitution for any such
certificate, and each certificate representing the Warrant Shares shall have
affixed a legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY
NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED
UNDER THE ACT OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED."
(e) Holder is acquiring the Warrant and Warrant Shares for Holder's
own account for investment only, and not with a view towards their distribution.
(f) Holder represents that by reason of its, or of its management's,
business or financial experience, Holder has the capacity to protect its own
interests in connection with the transactions contemplated herein. Further,
Holder is aware of no publication of any advertisement in connection with the
transactions contemplated herein.
(g) Holder represents that it is an accredited investor within the
meaning of Regulation D under the Securities Act.
(h) Holder has received the SEC Reports described in the Purchase
Agreement and has had an opportunity to discuss the Company's business,
management and financial affairs with directors, officers and management of the
Company and has had the opportunity to review the Company's operations and
facilities. Holder has also had the opportunity to ask questions of and receive
answers from, the Company and its management regarding the terms and conditions
of this investment.
-5- Warrant
8. OBLIGATION TO REGISTER SECURITIES. The Company is not obligated to
register the Warrant Shares for resale under the Securities Act, except as
provided in the Purchase Agreement, and the Holder of this Warrant (or any
assignee hereof) is entitled to the registration rights in respect of the
Warrant Shares as only set forth in the Purchase Agreement.
9. CERTAIN ADJUSTMENTS. The Exercise Price and number of Warrant
Shares issuable upon exercise of this Warrant are subject to adjustment from
time to time as set forth in this Section 9. Upon each such adjustment of the
Exercise Price pursuant to this Section 9, the Holder shall thereafter prior to
the Expiration Date be entitled to purchase, at the Exercise Price resulting
from such adjustment, the number of Warrant Shares obtained by multiplying the
Exercise Price in effect immediately prior to such adjustment by the number of
Warrant Shares issuable upon exercise of this Warrant immediately prior to such
adjustment and dividing the product thereof by the Exercise Price resulting from
such adjustment.
(a) If the Company, at any time while this Warrant is
outstanding, (i) shall pay a stock dividend (except scheduled dividends paid on
outstanding preferred stock as of the date hereof which contain a stated
dividend rate) or otherwise make a distribution or distributions to all the
holders of Common Stock or on any other class of capital stock payable in shares
of Common Stock, (ii) subdivide outstanding shares of Common Stock into a larger
number of shares or (iii) combine outstanding shares of Common Stock into a
smaller number of shares, the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding
treasury shares, if any) outstanding before such event and of which the
denominator shall be the number of shares of Common Stock (excluding treasury
shares, if any) outstanding after such event. In such event, the number of
Warrant shares issuable under this Warrant shall be equitably adjusted to
reflect such event (i.e., in the event of 2:1 stock split of the Common Stock,
the number of Warrant shares shall be increased to twice the number available
for purchase prior to the record date for such stock split). Any adjustment made
pursuant to this Section shall become effective immediately after the record
date for the determination of stockholders entitled to receive such dividend or
distribution and shall become effective immediately after the effective date in
the case of a subdivision or combination, and shall apply to successive
subdivisions and combinations.
(b) In case of any reclassification of the Common Stock or any
compulsory share exchange pursuant to which the Common Stock is converted into
other securities, cash or property, then the Holder shall have the right
thereafter to exercise this Warrant only into the shares of stock and other
securities and property receivable upon or deemed to be held by holders of
Common Stock following such reclassification or share exchange, and the Holder
shall be entitled upon such event to receive such amount of securities or
property equal to the amount of Warrant Shares such Holder would have been
entitled to had such Holder exercised this Warrant immediately prior to such
reclassification or share exchange. The terms of any such reclassification or
share exchange shall include such terms so
-6- Warrant
as to continue to give to the Holder the right to receive the securities or
property set forth in this Section 9(b) upon any exercise following any such
reclassification or share exchange.
(c) For the purposes of this Section 9, the following clauses
shall also be applicable:
(i) RECORD DATE. In case the Company shall take a record of
the holders of its Common Stock for the purpose of entitling them (A) to receive
a dividend or other distribution payable in Common Stock or in securities
convertible or exchangeable into shares of Common Stock, or (B) to subscribe for
or purchase Common Stock or securities convertible or exchangeable into shares
of Common Stock, then such record date shall be deemed to be the date of the
issue or sale of the shares of Common Stock deemed to have been issued or sold
upon the declaration of such dividend or the making of such other distribution
or the date of the granting of such right of subscription or purchase, as the
case may be.
(ii) TREASURY SHARES. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
(d) All calculations under this Section 9 shall be made to the
nearest cent or the nearest 1/100th of a share, as the case may be.
(e) If:
(i) the Company shall declare a dividend (or
any other distribution) on its Common
Stock; or
(ii) the Company shall declare a special
nonrecurring cash dividend on or a
redemption of its Common Stock; or
(iii) the Company shall authorize the granting
to all holders of the Common Stock
rights or warrants to subscribe for or
purchase any shares of capital stock of
any class or of any rights; or
(iv) the approval of any stockholders of the
Company shall be required in connection
with any reclassification of the Common
Stock, any consolidation or merger to
which the Company is a party, any sale
or transfer of all or
-7- Warrant
substantially all of the assets of the
Company, or any compulsory share
exchange whereby the Common Stock is
converted into other securities, cash or
property; or
(v) the Company shall authorize the
voluntary dissolution, liquidation or
winding up of the affairs of the
Company,
then the Company shall cause to be mailed to each Holder at their last addresses
as they shall appear upon the Warrant Register, at least ten calendar days prior
to the applicable record or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, redemption, rights or warrants, or if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distributions, redemption, rights or warrants are to
be determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer or share exchange is expected to become effective or
close, and the date as of which it is expected that holders of Common Stock of
record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up, provided, that the failure to mail such notice or any defect
therein or in the mailing thereof shall not affect the validity of the corporate
action required to be specified in such notice.
10. PAYMENT OF EXERCISE PRICE. The Holder shall pay the Exercise Price
in one of the following manners:
(a) CASH EXERCISE. The Holder may deliver, in cash or by
certified or official bank check payable to the order of the Company, or by wire
transfer of immediately available funds to an account to be designated by the
Company, the Exercise Price multiplied by the number of Warrant Shares to be
issued; or
(b) CASHLESS EXERCISE. The Holder may surrender this Warrant to
the Company together with a notice of cashless exercise, in which event the
Company shall issue to the Holder the number of Warrant Shares determined as
follows:
X = Y [(A-B)/A]
where:
X = the number of Warrant Shares to be issued to the Holder.
-8- Warrant
Y = the number of Warrant Shares with respect to which this
Warrant is being exercised.
A = the average of the closing sale prices of the Common Stock
as reported on the Nasdaq National Market for the ten (10)
trading days immediately prior to (but not including) the Date
of Exercise.
B = the Exercise Price.
For purposes of Rule 144 promulgated under the Securities Act, it
is intended, understood and acknowledged that the Warrant Shares issued in a
cashless exercise transaction shall be deemed to have been acquired by the
Holder, and the holding period for the Warrant Shares shall be deemed to have
been commenced on the date of this Warrant.
11. FRACTIONAL SHARES. The Company shall not be required to issue
or cause to be issued fractional Warrant Shares on the exercise of this Warrant.
The number of full Warrant Shares which shall be issuable upon the exercise of
this Warrant shall be computed on the basis of the aggregate number of Warrant
Shares purchasable on exercise of this Warrant so presented. If any fraction of
a Warrant Share would, except for the provisions of this Section, be issuable on
the exercise of this Warrant, the Company shall pay an amount in cash equal to
the Exercise Price multiplied by such fraction.
12. NOTICES. Any and all notices or other communications or
deliveries hereunder shall be in writing and shall be deemed given and effective
on the earliest of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified in this
Section prior to 5:00 p.m. (Pacific Time) on a business day, (ii) the business
day after the date of transmission, if such notice or communication is delivered
via facsimile at the facsimile telephone number specified in this Section later
than 5:00 p.m. (Pacific Time) on any date and earlier than 11:59 p.m. (Pacific
Time) on such date, (iii) the business day following the date of mailing, if
sent by nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The addresses
for such communications shall be: (i) if to the Company, to3031 Xxxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, facsimile (000) 000-0000, attention: Controller, or
(ii) if to the Holder, to the Holder at the address or facsimile number
appearing on the Warrant Register or such other address or facsimile number as
the Holder may provide to the Company in accordance with this Section.
13. WARRANT AGENT. The Company shall serve as warrant agent (the
"Warrant Agent") under this Warrant. Upon prior written notice to the Holder,
the Company may appoint a new Warrant Agent. Any corporation into which the
Company or any new warrant agent may be merged or
-9- Warrant
any corporation resulting from any consolidation to which the Company or any new
Warrant Agent shall be a party or any corporation to which the Company or any
new Warrant Agent transfers substantially all of its corporate trust or
shareholders services business shall be a successor Warrant Agent under this
Warrant without any further act. Any such successor Warrant Agent shall promptly
cause notice of its succession as Warrant Agent to be mailed (by first class
mail, postage prepaid) to the Holder at the Holder's last address as shown on
the Warrant Register.
14. MISCELLANEOUS.
(a) This Warrant shall be binding on and inure to the benefit of
the parties hereto and their respective successors and assigns. This Warrant may
be amended only in writing signed by the Company and the Holder and their
successors and assigns.
(b) Subject to Section 14(a), above, nothing in this Warrant
shall be construed to give to any person or corporation other than the Company
and the Holder any legal or equitable right, remedy or cause under this Warrant.
This Warrant shall inure to the sole and exclusive benefit of the Company and
the Holder.
(c) This Agreement shall be governed by and construed under the
laws of the State of California as applied to agreements among California
residents, made and to be performed entirely within the State of California.
Each of the Company and the Holder hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by receiving a copy thereof sent to the Company at the address in
effect for notices to it under this instrument and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. Each party irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence an action or
proceeding to enforce any provisions of this Warrant, then the prevailing party
in such action or proceeding shall be reimbursed by the other party for its
attorneys fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
(d) The headings herein are for convenience only, do not
constitute a part of this Warrant and shall not be deemed to limit or affect any
of the provisions hereof.
(e) In case any one or more of the provisions of this Warrant
shall be invalid or unenforceable in any respect, the validity and
enforceability of the remaining terms and provisions of this Warrant shall not
in any way be affected or impaired thereby and the parties will attempt in good
-10- Warrant
faith to agree upon a valid and enforceable provision which shall be a
commercially reasonable substitute therefor, and upon so agreeing, shall
incorporate such substitute provision in this Warrant.
(f) This Warrant is being issued pursuant to the Purchase
Agreement and any provisions hereof may be amended, waived or modified in
accordance with the amendment and modification provision set forth in the
Purchase Agreement.
(g) Receipt of this Warrant by the Holder shall constitute
acceptance of and agreement to all of the terms and conditions contained herein.
16. NO RIGHTS AS A STOCKHOLDER. Holder shall not, by virtue hereof, be
entitled to any rights of stockholder of the Company, either at law or equity,
and the rights of Holder are limited to those expressed in this Warrant. Nothing
contained in this Warrant shall be construed as conferring upon the Holder
hereof the right to vote or to consent or to receive notice as a stockholder of
the Company on any matters or with respect to any rights whatsoever as a
stockholder of the Company. No dividends or interest shall be payable or accrued
in respect of this Warrant or the interest represented hereby of the Warrant
Shares purchasable hereunder until, and only to the extent that, this Warrant
shall have been exercised in accordance with its terms.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-11- Warrant
IN WITNESS WHEREOF, the Company has caused this COMMON STOCK WARRANT
to be duly executed by its authorized officer as of the date first indicated
above.
ONYX PHARMACEUTICALS, INC.
By:
------------------------------------------------
Hollings C. Renton
Chairman, President and Chief Executive Officer
FORM OF ELECTION TO PURCHASE
(To be executed by the Holder to exercise the right to purchase shares
of Common Stock under the Warrant to which this form applies, issued by Onyx
Pharmaceuticals, Inc. (the "COMPANY"))
To Onyx Pharmaceuticals, Inc.:
The undersigned hereby irrevocably elects to purchase shares of common
stock, $0.001 value, of the Company (the "COMMON STOCK") and, if such Holder is
not utilizing the cashless exercise provisions set forth in this Warrant,
encloses herewith $ in cash, certified or official bank check or checks, which
sum represents the aggregate Exercise Price (as defined in the Warrant) for the
number of shares of Common Stock to which this Form of Election to Purchase
relates, together with any applicable taxes payable by the undersigned pursuant
to the Warrant.
The undersigned requests that certificates for the shares of Common
Stock issuable upon this exercise be issued in the name of
PLEASE INSERT SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER
_______________________________________________________
_______________________________________________________
(Please print name and address)
Dated: , 200
------------ -----
Name of Holder:
(Print)
---------------------------------------------------------------
(By:)
-----------------------------------------------------------------
(Name:)
---------------------------------------------------------------
(Title:)
-------------------------------------------------------------
(Signature must conform in all respects
to name of holder as specified on the
face of the Warrant)
Warrant
FORM OF ASSIGNMENT
[To be completed and signed only upon transfer of Warrant]
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto ________________________________ the right represented
by the within Warrant to purchase ____________ shares of Common Stock
of Onyx Pharmaceuticals, Inc. to which the within Warrant relates and
appoints ________________ attorney to transfer said right on the books
of Onyx Pharmaceuticals, Inc. with full power of substitution in the
premises.
Dated:
---------------, ----
---------------------------------------
(Signature must conform in all
respects to name of holder as
specified on the face of the Warrant)
---------------------------------------
Address of Transferee
---------------------------------------
---------------------------------------
In the presence of:
--------------------------
Warrant
Annex A
-------
Date Number of Warrant Shares Number of Warrant Shares Number of Warrant Shares
Available to be Exercised Remaining to be Exercised
Exercised
EXHIBIT C
FORM OF LEGAL OPINION
