6,600,000 Shares ONYX PHARMACEUTICALS, INC. COMMON STOCK, PAR VALUE $0.001 PER SHARE UNDERWRITING AGREEMENT
Exhibit 1.1
6,600,000 Shares
ONYX PHARMACEUTICALS, INC.
COMMON STOCK, PAR VALUE $0.001 PER SHARE
June 20, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
c/o | Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, Xxx Xxxx 00000 |
Dear Sirs and Mesdames:
Onyx Pharmaceuticals, Inc., a Delaware corporation (the “Company”), proposes to issue and sell
to the several Underwriters named in Schedule I hereto (the “Underwriters”) 6,600,000 shares of its
common stock, par value $0.001 per share (the “Firm Shares”). The Company also proposes to issue
and sell to the several Underwriters not more than an additional 990,000 shares of its common
stock, par value $0.001 per share (the “Additional Shares”), if and to the extent that you, as
representatives of the Underwriters for the offering, shall have determined to exercise, on behalf
of the Underwriters, the right to purchase such shares of common stock granted to the Underwriters
in Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter collectively
referred to as the “Shares.” The shares of common stock, par value $0.001 per share, of the Company
are hereinafter referred to as the “Common Stock.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-3 (File No. 333-143825), relating to the Shares. The registration
statement as amended to the date of this Agreement, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule 430A or Rule 430 B
under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as
the “Registration Statement”, and the related prospectus dated June 18, 2007 in the form first used
to confirm sales of the Shares (or in the form first made available to the Underwriters by the
Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the
prospectus supplement specifically relating to the Shares in the form first used to confirm sales
of the Shares (or in the form first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as
the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the
Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in
Rule 405 under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus
together with any free writing prospectus and other items, if any, each identified in Schedule II
hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in
Rule 433(h)(5) under the Securities Act that has been made available without restriction to any
person. As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary
prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include in each case the documents,
if any, incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used
in this Agreement with respect to the Registration Statement, the Basic Prospectus, the Time of
Sale Prospectus, any preliminary prospectus or free writing prospectus shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with each
of the Underwriters that:
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(a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such purpose
are pending before or threatened by the Commission. If the Registration Statement is an
automatic shelf registration statement as defined in Rule 405 under the Securities Act, the
Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act)
eligible to use the Registration Statement as an automatic shelf registration statement and the
Company has not received notice that the Commission objects to the use of the Registration
Statement as an automatic shelf registration statement.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement as of the date hereof does not contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (iv) the Registration
Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and regulations of
the Commission thereunder (v) the Time of Sale Prospectus does not, and at the time of each
sale of the Shares in connection with the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale
Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain
any untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, (vi) each broadly available road show, if any, when considered together with the
Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (vii) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based
upon information relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to
Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company
is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be,
filed with the Commission in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each free writing prospectus
that the Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act or that was prepared by or on behalf of or used or referred to by the Company
complies or will comply in all material respects with the requirements of the Securities Act
and the applicable rules and regulations of the Commission thereunder. Each free writing
prospectus does not conflict with the information contained in the Registration Statement or
the Prospectus, and does not contain any untrue statements of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not
misleading. Except for the free writing prospectuses, if any, identified in Schedule II hereto
forming part of the Time of Sale Prospectus, and electronic road shows, if any, each
furnished to you before first use, the Company has not prepared, used or referred to, and will
not, without your prior consent, prepare, use or refer to, any free writing prospectus.
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(d) The Company has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the Time of Sale
Prospectus and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company.
(e) The Company has no subsidiaries.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock of the Company outstanding prior to the issuance of the
Shares have been duly authorized and are validly issued, fully paid and non-assessable.
(i) The Shares have been duly authorized and, when issued and delivered in accordance with
the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the
issuance of such Shares will not be subject to any preemptive or similar rights.
(j) The execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or any agreement or other instrument
binding upon the Company that is material to the Company or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Company, and no consent,
approval, authorization or order of, or qualification with, any governmental body or agency is
required for the performance by the Company of its obligations under this Agreement, except
such as may be required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company, from that set forth in the Time of Sale
Prospectus.
(l) There are no legal or governmental proceedings pending or threatened to which the
Company is a party or to which any of the properties of the Company is subject (i) other than
proceedings accurately described in all material respects in the Time of Sale Prospectus and
proceedings that would not have a material adverse effect on the Company and its subsidiaries,
taken as a whole, or on the power or ability of the Company to perform its obligations under
this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus or
(ii) that are required to be described in the Registration Statement, the Time of Sale
Prospectus or the Prospectus and are not so described; and there are no statutes, regulations,
contracts or other documents that are required to be described in the Registration Statement,
the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(m) Each preliminary prospectus filed as part of the registration statement as originally
filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities
Act, complied when so filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(n) The Company is not, and after giving effect to the offering and sale of the Shares and
the application of the proceeds thereof as described in the Prospectus will not be, required to
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register as an “investment company” as such term is defined in the Investment Company Act of
1940, as amended.
(o) The Company (i) is in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (ii) has received all permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its business and (iii) is in compliance with
all terms and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a material adverse effect on the Company.
(p) To the best of the Company’s knowledge, there are no costs or liabilities associated
with Environmental Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a material adverse
effect on the Company.
(q) Except as described in the Time of Sale Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement other than such contracts, agreements or
understandings as have been waived in connection with the transactions contemplated hereby.
(r) Except as described in the Time of Sale Prospectus, the Company owns or possesses
adequate licenses or other rights to use all material patents, technology, trademarks, trade
names, know-how, copyrights and other intellectual property (collectively, “intellectual
property rights”) currently employed or planned to be employed by it in the conduct of its
business as described in the Time of Sale Prospectus, and the Company has not received any
notice of infringement of or conflict with asserted rights of others with respect to any
intellectual property rights which if the subject of a decision, ruling, finding or settlement
would reasonably be expected to result in a material adverse effect on the general affairs,
management, financial position, stockholders’ equity, results of operations, business or
prospects of the Company; and the discoveries, inventions, products, product candidates or
processes of the Company referred to in the Time of Sale Prospectus do not, to the actual
knowledge of the Company without further investigation, infringe any intellectual property
right of any third party, or any discovery, invention, product or process that, to the actual
knowledge of the Company without further investigation, is the object of a patent application
filed by any third party, except for any such infringement which would not have a material
adverse effect on the general affairs, management, financial position, stockholders’ equity,
results of operations, business or prospects of the Company.
(s) The statistical and market-related data included in the Time of Sale Prospectus are
based on or derived from sources which the Company believes to be reliable and accurate.
(t) The Company has established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-14 under the Exchange Act), which (i) are designed to
ensure that material information relating to the Company is made known to the Company’s
principal executive officer and its principal financial officer by others within those
entities, particularly during the periods in which the periodic reports required under the
Exchange Act are being prepared; (ii) provide for the periodic evaluation of the effectiveness of such
disclosure controls and procedures as of a date within 90 days prior to the filing of the
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Company’s most recent annual or quarterly report with the Commission; and (iii) are effective
in all material respects to perform the functions for which they were established.
(u) Based on the evaluation of its disclosure controls and procedures, the Company is not
aware of (i) any significant deficiency in the design or operation of internal controls which
could adversely affect the Company’s ability to record, process, summarize and report financial
data or any material weaknesses in internal controls; or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant role in the
Company’s internal controls.
(v) Since the date of the most recent evaluation of such disclosure controls and
procedures, there have been no changes that have materially affected, or are reasonably likely
to materially affect, the Company’s internal control over financial reporting, including any
corrective actions with regard to significant deficiencies and material weaknesses.
(w) Except as described in the Time of Sale Prospectus, there are no material off-balance
sheet arrangements (as defined in Item 303 of Regulation S-K) that have or are reasonably
likely to have a material current or future effect on the Company’s financial condition,
revenues or expenses, changes in financial condition, results of operations, liquidity, capital
expenditures or capital resources.
(x) Except as described in the Time of Sale Prospectus and as preapproved in accordance
with the requirements set forth in Section 10A of the Exchange Act, Ernst & Young LLP has not
been engaged by the Company to perform any “prohibited activities” (as defined in Section 10A
of the Exchange Act).
(y) The Company’s Board of Directors has validly appointed an audit committee whose
composition satisfies the requirements of Rule 4350(d)(2) of the Rules of NASDAQ (the “NASDAQ
Rules”) and the Board of Directors and/or the audit committee has adopted a charter that
satisfies the requirements of Rule 4350(d)(1) of the NASDAQ Rules. The audit committee has
reviewed the adequacy of its charter within the past twelve months.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to
purchase from the Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at $26.46 a share (the “Purchase Price”).
On the basis of the representations and warranties contained in this Agreement, and subject to
its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and
the Underwriters shall have the right to purchase, severally and not jointly, up to 990,000
Additional Shares at the Purchase Price. You may exercise this right on behalf of the Underwriters
in whole or from time to time in part by giving written notice of each election to exercise the
option not later than 30 days after the date of this Agreement. Any exercise notice shall specify
the number of Additional Shares to be purchased by the Underwriters and the date on which such
shares are to be purchased. Each purchase date must be at least one business day after the written
notice is given and may not be earlier than the closing date for the Firm Shares nor later than ten
business days after the date of such notice. Additional Shares may be purchased as provided in
Section 4 hereof solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. On each day, if any, that Additional Shares are to be purchased (an
“Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number
of Additional Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional Shares to be purchased
on such Option Closing Date as the number of Firm Shares set forth in Schedule I hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
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The Company hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated on behalf of the Underwriters,
it will not, during the period ending 90 days after the date of the Prospectus Supplement, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into
or exercisable or exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Shares to be sold hereunder, (B) the issuance by the Company of
shares of Common Stock upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof and disclosed in the Time of Sale Prospectus, (C) the grant of
restricted stock awards and options to purchase Common Stock under the Company’s stock option plans
existing on the date hereof, or (D) the issuance by the Company of shares of Common Stock under the
Company’s employee stock purchase plan existing on the date hereof.
3. Terms of Public Offering. The Company is advised by you that the Underwriters propose to
make a public offering of their respective portions of the Shares as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Company is
further advised by you that the Shares are to be offered to the public initially at $28.00 a share
(the “Public Offering Price”) and to certain dealers selected by you at a price that represents a
concession not in excess of $0.92 a share under the Public Offering Price.
4. Payment and Delivery. Payment for the Firm Shares shall be made to the Company in Federal
or other funds immediately available in New York City against delivery of such Firm Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on June 26,
2007, or at such other time on the same or such other date, not later than the fifth business day
thereafter, as shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall be made to the Company in Federal or other funds
immediately available in New York City against delivery of such Additional Shares for the
respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date
specified in the corresponding notice described in Section 2 or at such other time on the same or
on such other date, in any event not later than July 20, 2007, as shall be designated in writing by
you. The time and date of such payment are hereinafter referred to as the “Option Closing Date.”
The Firm Shares and the Additional Shares shall be registered in such names and in such
denominations as you shall request in writing not later than one full business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the
case may be, for the respective accounts of the several Underwriters, with any transfer taxes
payable in connection with the transfer of the Shares to the Underwriters duly paid, against
payment of the Purchase Price therefor.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to
purchase and pay for the Shares on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any of
7
the Company’s securities by any “nationally recognized statistical rating organization,”
as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a
prospective change, in the condition, financial or otherwise, or in the earnings, business
or operations of the Company from that set forth in the Time of Sale Prospectus that, in
your judgment, is material and adverse and that makes it, in your judgment, impracticable
to market the Shares on the terms and in the manner contemplated in the Time of Sale
Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the effect set forth in
Section 5(a)(i) above and to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and that the Company
has complied with all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date. The officer signing and
delivering such certificate may rely upon the best of his or her knowledge as to proceedings
threatened.
(c) The Underwriters shall have received on the Closing Date an opinion of Xxxxxx Godward
Kronish LLP, outside counsel for the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the State of Delaware with requisite corporate power to
own or lease, as the case may be, and to operate its properties and conduct its business
as described in the Time of Sale Prospectus. The Company is duly qualified to do business
as a foreign corporation and is in good standing under the laws of the State of
California.
(ii) The Shares have been duly authorized and, when issued and paid for by the
Underwriters pursuant to the Agreement, will be validly issued, fully paid and
nonassessable. The issuance of the Shares will not be subject to preemptive or, to such
counsel’s knowledge, other similar rights.
(iii) To such counsel’s knowledge, there is (i) no action, suit or proceeding by or
before any court or other governmental agency, authority or body or any arbitrator pending
or overtly threatened against the Company or its properties by a third party of a
character required to be disclosed in the Registration Statement or the Prospectus that is
not disclosed in the Registration Statement or the Prospectus as required by the
Securities Act and the rules thereunder, and (ii) no indenture, contract, lease, mortgage,
deed of trust, note agreement, loan or other agreement or instrument of a character
required to be filed as an exhibit to the Registration Statement, which is not filed as
required by the Securities Act and the rules thereunder.
(iv) The statements in the Time of Sale Prospectus and the Prospectus under the
heading “Description of Capital Stock” and in the Registration Statement in Item 15
insofar as such statements purport to summarize legal matters, agreements or documents
discussed therein, fairly present, to the extent required by the Securities Act and the
rules thereunder, in all material respects, such legal matters, agreements or documents.
(v) The Registration Statement has become effective under the Securities Act; no stop
order suspending the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or overtly threatened. Any required
filing of the Prospectus, and any supplement thereto, pursuant to Rule 424(b) under the
Securities Act, has been made in the manner and within the time period required by Rule
424(b).
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(vi) To such counsel’s knowledge, (A) each document filed pursuant to the Exchange
Act that is incorporated by reference into the Registration Statement and the Prospectus
(except for the financial statements and financial schedules and notes thereto or other
financial and statistical data included therein, as to which such counsel expresses no
opinion) complied as to form when so filed in all material respects with the applicable
requirements of the Securities Act and the rules thereunder and (B) the Registration
Statement and the Prospectus (other than the financial statements and notes thereto or
other financial or statistical data derived therefrom, as to which such counsel expresses
no opinion) comply as to form in all material respects with the applicable requirements of
the Securities Act and the rules thereunder.
(vii) The Agreement has been duly authorized by all necessary corporate action on the
part of the Company and has been duly executed and delivered by the Company.
(viii) The Company is not, and, after giving effect to the offering and sale of the
Shares and the application of the proceeds thereof as described in the Prospectus, will
not be, an “investment company” as defined in the Investment Company Act of 1940, as
amended.
(ix) No consent, approval, authorization or filing with or order of any U.S. Federal
or California court or governmental agency or body in the United States having
jurisdiction over the Company is required for the consummation by the Company of its
obligations under the Agreement, except such as have been obtained under the Securities
Act and except such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Shares by the Underwriters in the
manner contemplated in the Agreement and in the Prospectus.
(x) The execution and delivery by the Company of the Agreement, and the performance
by the Company of its obligations under the Agreement (except as to rights to indemnity
and contribution under Section 8 of the Agreement may be limited by applicable law) will
not result in a breach or violation of (i) the charter or bylaws of the Company, (ii) the
terms of any Material Contract listed on Exhibit A appended to such counsel’s opinion; or
(iii) any statute, law, rule, or regulation which, in such counsel’s experience is
typically applicable to transactions of the nature contemplated by the Agreement and is
applicable to the Company, or, to such counsel’s knowledge, any order, writ, judgment,
injunction, decree, or award that has been entered against the Company, in each case,
under this clause (iii), the breach or violation of which would materially and adversely
affect the Company.
(xi) The authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the Prospectus
under the caption “Description of Capital Stock.”
In addition, such counsel shall confirm that, in connection with the preparation of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, such counsel has
participated in conferences with officers and other representatives of the Company and with its
certified public accountants, as well as with representatives of the Underwriters and their
counsel. At such conferences, the contents of the Registration Statement, the Time of Sale
Prospectus and the Prospectus and related matters were discussed. Such counsel has not
independently verified, and accordingly is not confirming and assumes no responsibility for,
the accuracy, completeness or fairness of the statements contained in the Registration
Statement, the Time of Sale Prospectus or the Prospectus, except to the extent otherwise stated
in such opinion. On the basis of the foregoing, no facts have come to such counsel’s attention
that have caused such counsel to believe that (i) the Registration Statement (except as to the
financial statements and schedules, related notes and other financial data and statistical data
derived therefrom as to which such counsel need not express any comment) at the date and time
that the Registration Statement became effective contained any untrue
9
statement of a material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus
(except as to the financial statements and schedules, related notes and other financial data
and statistical data derived therefrom as to which such counsel need not express any comment)
as of the date of this Agreement or as amended or supplemented, if applicable, as of the
Closing Date contained or contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made not misleading or (iii) the Prospectus (except as to
the financial statements and schedules, related notes and other financial data and statistical
data derived therefrom, as to which such counsel need not express any comment) as of its date
or the Closing Date contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary, in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) The Underwriters shall have received on the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, dated the Closing Date, covering the matters referred
to in Sections 5(c)(ii), 5(c)(iv) (but only as to the statements in each of the Time of Sale
Prospectus and the Prospectus under “Underwriters”) and 5(c)(vii) and a confirmation to the
effect set forth in the last paragraph of Section 5(c) above.
With respect to the confirmation set forth in last paragraph of Section 5(c) above, Xxxxxx
Godward Kronish LLP and Xxxxx Xxxx & Xxxxxxxx may state that their beliefs are based upon their
participation in the preparation of the Registration Statement, the Time of Sale Prospectus and
Prospectus and any amendments or supplements thereto, and review and discussion of the contents
thereof (including the documents incorporated by reference), but are without independent check
or verification, except as specified.
The opinion of Xxxxxx Godward Kronish LLP described in Section 5(c) above shall be
rendered to the Underwriters at the request of the Company and shall so state therein.
(e) The Underwriters shall have received, on each of the date hereof and the Closing Date,
a letter dated the date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from Ernst & Young LLP, independent registered public
accounting firm, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the Registration
Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered
on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(f) The “lock-up” agreements, which shall be in the form of Exhibits A, B, C or D hereto
for the persons listed on Schedule III , between you and the executive officers and directors
of the Company relating to sales and certain other dispositions of shares of Common Stock or
certain other securities, delivered to you on or before the date hereof, shall be in full force
and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional Shares hereunder are
subject to the delivery to you on the applicable Option Closing Date of such documents as you may
reasonably request with respect to the good standing of the Company, the due authorization and
issuance of the Additional Shares to be sold on such Option Closing Date and other matters related
to the issuance of such Additional Shares.
6. Covenants of the Company. In further consideration of the agreements of the Underwriters
herein contained, the Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, four photocopies of the signed Registration
Statement (including exhibits thereto and documents incorporated by reference) and for delivery
to each other Underwriter a conformed copy of the Registration Statement (excluding
10
exhibits thereto but including documents incorporated by reference) and to furnish to you in
New York City, without charge, prior to 10:00 a.m. New York City time on the business day next
succeeding the date of this Agreement and during the period mentioned in Section 6(c) below, as
many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by
reference therein, and any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which you reasonably
object, and to file with the Commission within the applicable period specified in Rule 424(b)
under the Securities Act any prospectus required to be filed pursuant to such Rule. The
Company will notify the Underwriters immediately, and confirm the notice in writing, of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any Prospectus, or of the
suspension of the qualification of the Shares for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes or of any examination
pursuant to Section 8(e) of the Securities Act concerning the Registration Statement. The
Company will make every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible moment, including,
if necessary, by filing an amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new registration statement
declared effective as soon as practicable.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or
on behalf of, used by, or referred to by the Company and not to use or refer to any proposed
free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free
writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise
would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a
time when the Prospectus is not yet available to prospective purchasers and any event shall
occur or condition exist as a result of which it is necessary to amend or supplement the Time
of Sale Prospectus in order to make the statements therein, in the light of the circumstances,
not misleading, or if any event shall occur or condition exist as a result of which the Time of
Sale Prospectus conflicts with the information contained in the Registration Statement then on
file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare,
file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer
upon request, either amendments or supplements to the Time of Sale Prospectus so that the
statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light
of the circumstances when delivered to a prospective purchaser, be misleading or so that the
Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the
Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented,
will comply with applicable law. If at any time following the issuance of a free writing
prospectus there occurred or occurs an event or development as a result of which such free
writing prospectus conflicted or would conflict with the information contained in the
Registration Statement or any Prospectus or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that subsequent time, not
misleading, the Company will promptly notify the Underwriters and will promptly amend or
supplement, at its own expense, such free writing prospectus, or the Prospectus to eliminate or
correct such conflict, untrue statement or omission.
11
(f) If, during such period after the first date of the public offering of the Shares as in
the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof
the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the Company) to which Shares may have been sold by you on
behalf of the Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply
with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall reasonably request.
(h) To make generally available to the Company’s security holders and to you as soon as
practicable an earning statement covering a period of at least twelve months beginning with the
first fiscal quarter of the Company occurring after the date of this Agreement which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of
the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of
its obligations under this Agreement, including: (i) the fees, disbursements and expenses of
the Company’s counsel and the Company’s accountants in connection with the registration and
delivery of the Shares under the Securities Act and all other fees or expenses in connection
with the preparation and filing of the Registration Statement, any preliminary prospectus, the
Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf
of, used by, or referred to by the Company and amendments and supplements to any of the
foregoing, including the filing fees payable to the Commission relating to the Shares (within
the time required by Rule 456 (b)(1), if applicable), including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in
the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or other taxes payable
thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Shares under state securities laws and all expenses
in connection with the qualification of the Shares for offer and sale under state securities
laws as provided in Section 6(g) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky or legal investment memorandum, (iv) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters incurred in connection with
the review and qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., (v) all costs and expenses incident to listing the Shares on the
NASDAQ Global Market, (vi) the cost of printing certificates representing the Shares, (vii) the
costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses
of the Company relating to investor presentations on any “road show” undertaken in connection
with the marketing of the offering of the Shares, including, without limitation, expenses
associated with the preparation or dissemination of any electronic roadshow, expenses
associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with
12
the road show presentations with the prior approval of the Company, travel and lodging expenses
of the representatives and officers of the Company and any such consultants, and the cost of
any aircraft chartered in connection with the road show, (ix) the document production charges
and expenses associated with printing this Agreement and (x) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section. It is understood, however, that except as provided in this
Section, Section 8 entitled “Indemnity and Contribution”, and the last paragraph of Section 10
below, the Underwriters will pay all of their costs and expenses, including fees and
disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by
them and any advertising expenses connected with any offers they may make.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if
any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of
Rule 405 under the Securities Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused by any untrue
statement or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any
Company information that the Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act, or the Prospectus or any amendment or supplement thereto or caused by
any omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus or the Prospectus or any amendment or supplement thereto.
(c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or
8(b), such person (the “indemnified party”) shall promptly notify the person against whom such
indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall have
13
the right to retain its own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the indemnified party
shall have mutually agreed to the retention of such counsel or (ii) the named parties to any
such proceeding (including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the
case of parties indemnified pursuant to Section 7(a), and by the Company, in the case of
parties indemnified pursuant to Section 7(b). The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees
and expenses of counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such request prior to
the date of such settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of
such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable
to an indemnified party or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions that resulted in
such losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Shares shall be deemed to
be in the same respective proportions as the net proceeds from the offering of the Shares
(before deducting expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table on the cover
of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative
fault of the Company on the one hand and the Underwriters on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective number of Shares they have purchased hereunder, and not
joint.
14
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in Section 8(d). The
amount paid or payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public exceeds the amount
of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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. The remedies provided for in this Section 8 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any indemnified party at law
or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person
controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the
Company, its officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Shares.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Market, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(ii) trading of any securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance
services in the United States shall have occurred, (iv) any moratorium on commercial banking
activities shall have been declared by Federal or New York State authorities or (v) there shall
have occurred any outbreak or escalation of hostilities, or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and which, singly or together
with any other event specified in this clause (v), makes it, in your judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the
manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the
Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate
number of the Shares to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the number of Firm Shares set forth opposite their respective
names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the number of Shares that any Underwriter
15
has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an
amount in excess of one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date,
and arrangements satisfactory to you and the Company for the purchase of such Firm Shares are not
made within 36 hours after such default, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company. In any such case either you or the Company
shall have the right to postpone the Closing Date, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an
Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional
Shares and the aggregate number of Additional Shares with respect to which such default occurs is
more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option
Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or
(ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters
as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Entire Agreement. (a) This Agreement, together with any contemporaneous written agreements
and any prior written agreements (to the extent not superseded by this Agreement) that relate to
the offering of the Shares, represents the entire agreement between the Company and the
Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b) The Company acknowledges that in connection with the offering of the Shares: (i) the
Underwriters have acted at arms length, are not agents of, and owe no fiduciary duties to, the
Company or any affiliate of the Company, (ii) the Underwriters owe the Company only those duties
and obligations set forth in this Agreement and prior written agreements (to the extent not
superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ
from those of the Company. The Company waives to the full extent permitted by applicable law any
claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in
connection with the offering of the Shares.
12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.
13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
14. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Underwriters shall be delivered, mailed or sent to you in care of Xxxxxx Xxxxxxx &
16
Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Equity Syndicate Desk, with a
copy to the Legal Department; and if to the Company shall be delivered, mailed or sent to Onyx
Pharmaceuticals, Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, Attention: Chief Legal
Counsel, with a copy to Cooley Godward Kronish LLP, Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx,
Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx.
[signature page follows]
17
Very truly yours, ONYX PHARMACEUTICALS, INC. |
||||
By: | /s/ Hollings C. Renton | |||
Name: | Hollings C. Renton | |||
Title: | Chairman of the Board, President and Chief Executive Officer | |||
[signature page to underwriting agreement]
Accepted as of the date hereof:
Xxxxxx Xxxxxxx & Co. Incorporated
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: | XXXXXX XXXXXXX & CO. INCORPORATED |
By: | /s/ Xxxxxxx Xxxxxx Title: Managing Director |
By: | XXXXXXX XXXXX & CO. XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED |
By: | /s/ Xxxxx Xxxxxxxxxx Title: Director |
[signature page to underwriting agreement]
SCHEDULE I
Number of Firm Shares to Be | ||||
Underwriter | Purchased | |||
Xxxxxx Xxxxxxx & Co. Incorporated |
2,475,000 | |||
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
2,475,000 | |||
X.X. Xxxxxx Securities Inc. |
825,000 | |||
Banc of America Securities LLC |
825,000 | |||
Total |
6,600,000 |
SCHEDULE II
Time of Sale Prospectus
1. | Preliminary Prospectus issued June 18, 2007. | |
2. | Final Term Sheet (compliant with Rule 134) attached hereto as Exhibit E. | |
3. | Free Writing Prospectus(es): None. |
SCHEDULE III
Persons Subject to Lock-Up Letter
Individual | Form of Lock-Up Letter | |
Xxxxx X. Xxxxx
|
B | |
Xxxxx X. Xxxxx
|
D | |
Xxxxxxx X. Xxxxxx
|
B | |
Xxxx Xxxxxxx
|
B | |
Xxxxxxx X. Xxxxxx-Xxxxx
|
A | |
Xxxxxx X. Xxxxxx
|
C | |
Xxxxxx Xxxxxxxx
|
A | |
Xxxxxxx Xxxx
|
X | |
Xxxxxxxx X. Xxxxxx
|
D | |
Xxxxxxx X. Xxxxxxx
|
A | |
Xxxxxxx Xxxxxxxx
|
B | |
Xxxxxx X. Xxxxxxx
|
A | |
Xxxxxxxx X. Xxxx
|
B |
EXHIBIT A
Form of Lock-Up Letter A
June 13, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
c/o | Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 |
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) propose
to enter into an Underwriting Agreement (the “Common Underwriting Agreement”) with Onyx
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), providing for the public offering
(the “Common Stock Public Offering”) by Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx (the “Common Stock
Underwriters”), of shares of the common stock, par value $0.001 per share, of the Company (the
“Common Stock”).
The undersigned also understands that Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx propose to enter into
an underwriting agreement (the “Convertible Notes Underwriting Agreement”) with the Company,
providing for the public offering (the “Convertible Notes Offering”) by Xxxxxx Xxxxxxx and Xxxxxxx
Xxxxx (the “Convertible Notes Underwriters”) of convertible notes (the “Convertible Notes”) of the
Company. The Convertible Notes will be convertible into shares of Common Stock of the Company.
The Common Stock Underwriters and the Convertible Notes Underwriters are collectively referred to
as the “Underwriters,” the Common Stock Underwriting Agreement and the Convertible Notes
Underwriting Agreement are collectively referred to as the “Underwriting Agreements” and the Common
Stock Public Offering and the Convertible Notes Offering are collectively referred to as the
“Public Offerings.
To induce the Underwriters that may participate in the Public Offerings to continue their
efforts in connection with the Public Offerings, the undersigned hereby agrees that, without the
prior written consent of Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx on behalf of the Underwriters, it will
not, during the period commencing on the date of the public announcement of one or both of the
proposed Public Offerings and ending the earlier of (i) 90 days after the date of the final
Prospectus Supplement relating to either of the Public Offerings (the “Prospectus”); or (ii) August
31, 2007 if no Prospectus has been filed with the Securities and Exchange Commission (the “SEC”) by
August 31, 2007: (1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into
any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to
shares of Common Stock or other securities acquired in open market transactions after the
completion of the Public Offerings and (b) transfers of shares of Common Stock or any security
convertible into Common Stock as a bona fide gift or gifts; provided that in the case of any
transfer or distribution pursuant to clause (b), (i) each donee or distributee shall execute and
deliver to Xxxxxx Xxxxxxx a duplicate form of this Lock-Up Agreement and (ii) no filing by any
party (donor, donee, transferor or transferee) under Section 16(a) of the Securities Exchange Act
of 1934, as amended, shall be required or shall be made voluntarily in connection with such
transfer or distribution (other than a filing on a Form 5 made after the expiration of the 90-day
period referred to above).
In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx
and Xxxxxxx Xxxxx on behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the Prospectus, or August 31, 2007 if no
Prospectus has been filed with the SEC by August 31, 2007, make any demand for or exercise any
right with respect to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the undersigned’s shares of Common Stock except in compliance with the restrictions in
the second paragraph of this Lock-Up Agreement.
The undersigned understands that the Company and the Underwriters are relying upon this
Lock-Up Agreement in proceeding toward consummation of the Public Offerings. The undersigned
further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors and assigns.
* * * *
Whether or not the Public Offerings actually occurs depends on a number of factors, including
market conditions. Any of the Public Offerings will only be made pursuant to the Underwriting
Agreements, the terms of which are subject to negotiation between the Company and the Underwriters.
Very truly yours,
c/o Onyx Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
24
EXHIBIT B
Form of Lock-Up Letter B
June 13, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
c/o | Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 |
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) propose
to enter into an Underwriting Agreement (the “Common Underwriting Agreement”) with Onyx
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), providing for the public offering
(the “Common Stock Public Offering”) by Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx (the “Common Stock
Underwriters”), of shares of the common stock, par value $0.001 per share, of the Company (the
“Common Stock”).
The undersigned also understands that Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx propose to enter into
an underwriting agreement (the “Convertible Notes Underwriting Agreement”) with the Company,
providing for the public offering (the “Convertible Notes Offering”) by Xxxxxx Xxxxxxx and Xxxxxxx
Xxxxx (the “Convertible Notes Underwriters”) of convertible notes (the “Convertible Notes”) of the
Company. The Convertible Notes will be convertible into shares of Common Stock of the Company.
The Common Stock Underwriters and the Convertible Notes Underwriters are collectively referred to
as the “Underwriters,” the Common Stock Underwriting Agreement and the Convertible Notes
Underwriting Agreement are collectively referred to as the “Underwriting Agreements” and the Common
Stock Public Offering and the Convertible Notes Offering are collectively referred to as the
“Public Offerings.
To induce the Underwriters that may participate in the Public Offerings to continue their
efforts in connection with the Public Offerings, the undersigned hereby agrees that, without the
prior written consent of Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx on behalf of the Underwriters, it will
not, during the period commencing on the date of the public announcement of one or both of the
proposed Public Offerings and ending the earlier of (i) 90 days after the date of the final
Prospectus Supplement relating to either of the Public Offerings (the “Prospectus”); or (ii) August
31, 2007 if no Prospectus has been filed with the Securities and Exchange Commission (the “SEC”) by
August 31, 2007: (1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into
any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares
of Common Stock or other securities acquired in open market transactions after the completion of
the Public Offerings; (b) transfers of shares of Common Stock or any security convertible into
Common Stock as a bona fide gift or gifts; provided that in the case of any transfer or
distribution pursuant to clause (b), (i) each donee or distributee shall execute and deliver to
Xxxxxx Xxxxxxx a duplicate form of this Lock-Up Agreement and (ii) no filing by any party (donor,
donee, transferor or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as
amended, shall be required or shall be made voluntarily in connection with such transfer or
distribution (other than a filing on a Form 5 made after the expiration of the 90-day period
referred to above) and (c) the offer, sale or other disposition of up to shares of Common
Stock no earlier than (i) the 31st day after the date of the Prospectus or (ii) July 21, 2007 if no
Prospectus has been filed with the SEC by July 21, 2007.
In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx
and Xxxxxxx Xxxxx on behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the Prospectus, or August 31, 2007 if no
Prospectus has been filed with the SEC by August 31, 2007, make any demand for or exercise any
right with respect to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the undersigned’s shares of Common Stock except in compliance with the restrictions in
the second paragraph of this Lock-Up Agreement.
The undersigned understands that the Company and the Underwriters are relying upon this
Lock-Up Agreement in proceeding toward consummation of the Public Offerings. The undersigned
further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors and assigns.
* * * *
Whether or not the Public Offerings actually occurs depends on a number of factors, including
market conditions. Any of the Public Offerings will only be made pursuant to the Underwriting
Agreements, the terms of which are subject to negotiation between the Company and the Underwriters.
Very truly yours,
c/o Onyx Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
26
EXHIBIT C
Form of Lock-Up Letter C
June 13, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
c/o | Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 |
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) propose
to enter into an Underwriting Agreement (the “Common Underwriting Agreement”) with Onyx
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), providing for the public offering
(the “Common Stock Public Offering”) by Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx (the “Common Stock
Underwriters”), of shares of the common stock, par value $0.001 per share, of the Company (the
“Common Stock”).
The undersigned also understands that Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx propose to enter into
an underwriting agreement (the “Convertible Notes Underwriting Agreement”) with the Company,
providing for the public offering (the “Convertible Notes Offering”) by Xxxxxx Xxxxxxx and Xxxxxxx
Xxxxx (the “Convertible Notes Underwriters”) of convertible notes (the “Convertible Notes”) of the
Company. The Convertible Notes will be convertible into shares of Common Stock of the Company.
The Common Stock Underwriters and the Convertible Notes Underwriters are collectively referred to
as the “Underwriters,” the Common Stock Underwriting Agreement and the Convertible Notes
Underwriting Agreement are collectively referred to as the “Underwriting Agreements” and the Common
Stock Public Offering and the Convertible Notes Offering are collectively referred to as the
“Public Offerings.
To induce the Underwriters that may participate in the Public Offerings to continue their
efforts in connection with the Public Offerings, the undersigned hereby agrees that, without the
prior written consent of Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx on behalf of the Underwriters, it will
not, during the period commencing on the date of the public announcement of one or both of the
proposed Public Offerings and ending the earlier of (i) 90 days after the date of the final
Prospectus Supplement relating to either of the Public Offerings (the “Prospectus”); or (ii) August
31, 2007 if no Prospectus has been filed with the Securities and Exchange Commission (the “SEC”) by
August 31, 2007: (1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into
any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares
of Common Stock or other securities acquired in open market transactions after the completion of
the Public Offerings; (b) transfers of shares of Common Stock or any security convertible into
Common Stock as a bona fide gift or gifts; provided that in the case of any transfer or
distribution pursuant to clause (b), (i) each donee or distributee shall execute and deliver to
Xxxxxx Xxxxxxx a duplicate form of this Lock-Up Agreement and (ii) no filing by any party (donor,
donee, transferor or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as
amended, shall be required or shall be made voluntarily in connection with such transfer or
distribution (other than a filing on a Form 5 made after the expiration of the 90-day period
referred to above); and (c) shares of Common Stock that are scheduled to be sold on August 16,
2007, as set forth on Addendum A of that certain Rule 10b5-1 Trading Plan, dated as of May 19,
2006, by and between the undersigned and E*Trade Securities, LLC.
In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx
and Xxxxxxx Xxxxx on behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the Prospectus, or August 31, 2007 if no
Prospectus has been filed with the SEC by August 31, 2007, make any demand for or exercise any
right with respect to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the undersigned’s shares of Common Stock except in compliance with the restrictions in
the second paragraph of this Lock-Up Agreement.
The undersigned understands that the Company and the Underwriters are relying upon this
Lock-Up Agreement in proceeding toward consummation of the Public Offerings. The undersigned
further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors and assigns.
* * * *
Whether or not the Public Offerings actually occurs depends on a number of factors, including
market conditions. Any of the Public Offerings will only be made pursuant to the Underwriting
Agreements, the terms of which are subject to negotiation between the Company and the Underwriters.
Very truly yours,
c/o Onyx Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
28
EXHIBIT D
Form of Lock-Up Letter D
June 13, 2007
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
c/o | Morgan Xxxxxxx & Co. Incorporated 0000 Xxxxxxxx Xxx Xxxx, XX 00000 |
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated (“Xxxxxx Xxxxxxx”) and
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) propose
to enter into an Underwriting Agreement (the “Common Underwriting Agreement”) with Onyx
Pharmaceuticals, Inc., a Delaware corporation (the “Company”), providing for the public offering
(the “Common Stock Public Offering”) by Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx (the “Common Stock
Underwriters”), of shares of the common stock, par value $0.001 per share, of the Company (the
“Common Stock”).
The undersigned also understands that Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx propose to enter into
an underwriting agreement (the “Convertible Notes Underwriting Agreement”) with the Company,
providing for the public offering (the “Convertible Notes Offering”) by Xxxxxx Xxxxxxx and Xxxxxxx
Xxxxx (the “Convertible Notes Underwriters”) of convertible notes (the “Convertible Notes”) of the
Company. The Convertible Notes will be convertible into shares of Common Stock of the Company.
The Common Stock Underwriters and the Convertible Notes Underwriters are collectively referred to
as the “Underwriters,” the Common Stock Underwriting Agreement and the Convertible Notes
Underwriting Agreement are collectively referred to as the “Underwriting Agreements” and the Common
Stock Public Offering and the Convertible Notes Offering are collectively referred to as the
“Public Offerings.
To induce the Underwriters that may participate in the Public Offerings to continue their
efforts in connection with the Public Offerings, the undersigned hereby agrees that, without the
prior written consent of Xxxxxx Xxxxxxx and Xxxxxxx Xxxxx on behalf of the Underwriters, it will
not, during the period commencing on the date of the public announcement of one or both of the
proposed Public Offerings and ending the earlier of (i) 90 days after the date of the final
Prospectus Supplement relating to either of the Public Offerings (the “Prospectus”); or (ii) August
31, 2007 if no Prospectus has been filed with the Securities and Exchange Commission (the “SEC”) by
August 31, 2007: (1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into
any swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to (a) transactions relating to shares
of Common Stock or other securities acquired in open market transactions after the completion of
the Public Offerings; (b) transfers of shares of Common Stock or any security convertible into
Common Stock as a bona fide gift or gifts; provided that in the case of any transfer or
distribution pursuant to clause (b), (i) each donee or distributee shall execute and deliver to
Xxxxxx Xxxxxxx a duplicate form of this Lock-Up Agreement and (ii) no filing by any party (donor,
donee, transferor or transferee) under Section 16(a) of the Securities Exchange Act of 1934, as
amended, shall be required or shall be made voluntarily in connection with such transfer or
distribution (other than a filing on a Form 5 made after the expiration of the 90-day period
referred to above); (c) shares of Common Stock that are scheduled to be sold on August 16,
2007, as set forth on Addendum A of that certain Rule 10b5-1 Trading Plan, dated as of May 19,
2006, by and between the undersigned and E*Trade Securities, LLC; and (d) the offer, sale or other
disposition of up to additional shares of Common Stock no earlier than (i) 31st day after the
date of the Prospectus or (ii) July 21, 2007 if no Prospectus has been filed with the SEC by July
21, 2007.
In addition, the undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx
and Xxxxxxx Xxxxx on behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 90 days after the date of the Prospectus, or August 31, 2007 if no
Prospectus has been filed with the SEC by August 31, 2007, make any demand for or exercise any
right with respect to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to
the entry of stop transfer instructions with the Company’s transfer agent and registrar against the
transfer of the undersigned’s shares of Common Stock except in compliance with the restrictions in
the second paragraph of this Lock-Up Agreement.
The undersigned understands that the Company and the Underwriters are relying upon this
Lock-Up Agreement in proceeding toward consummation of the Public Offerings. The undersigned
further understands that this Lock-Up Agreement is irrevocable and shall be binding upon the
undersigned’s heirs, legal representatives, successors and assigns.
* * * *
Whether or not the Public Offerings actually occurs depends on a number of factors, including
market conditions. Any of the Public Offerings will only be made pursuant to the Underwriting
Agreements, the terms of which are subject to negotiation between the Company and the Underwriters.
Very truly yours,
c/o Onyx Pharmaceuticals, Inc.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
30
EXHIBIT E
Final Term Sheet
(Compliant with Rule 134)
(Compliant with Rule 134)
Onyx Pharmaceuticals, Inc.
$184,800,000
6,600,000 Shares
$184,800,000
6,600,000 Shares
Issuer:
|
Onyx Pharmaceuticals, Inc. | |
Symbol:
|
NASDAQ/ONXX | |
Size:
|
$184,800,000 | |
Shares offered:
|
6,600,000 shares of Common Stock | |
Greenshoe:
|
900,000 shares | |
Primary/Secondary:
|
100% primary | |
Price to public:
|
$28.00 per share | |
Trade date:
|
June 20, 2007 | |
Closing date:
|
June 26, 2007 | |
CUSIP:
|
000000000 | |
Underwriters:
|
Xxxxxx Xxxxxxx & Co. Incorporated | |
Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated |
||
X.X. Xxxxxx Securities Inc. | ||
Banc of America Securities LLC |
A copy of the prospectus supplement and accompanying prospectus relating to this offering may be
obtained by contacting Xxxxxx Xxxxxxx & Co. Incorporated, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 (Attention: Prospectus Department) or by email at xxxxxxxxxx@xxxxxxxxxxxxx.xxx, or Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(Attention: Prospectus Department).