<PAGE>
As filed with the Securities and Exchange Commission on May 30, 1996
Registration No.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
ONYX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
--------------------------
DELAWARE 94-3154463
(State of Incorporation) (I.R.S. Employer Identification No.)
-------------------------
3031 RESEARCH DRIVE
RICHMOND, CALIFORNIA 94806
(510) 222-9700
(Address and telephone number of principal executive offices)
---------------------------
1996 EQUITY INCENTIVE PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plans)
HOLLINGS C. RENTON
President and Chief Executive Officer
3031 Research Drive
Richmond, California 94806
(510) 222-9700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------
Copies to:
ROBERT L. JONES, ESQ.
DEBORAH A. MARSHALL, ESQ.
COOLEY GODWARD CASTRO HUDDLESON & TATUM
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306-2155
(415) 843-5000
---------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE AMOUNT OF REGISTRATION
REGISTERED REGISTERED (1) (1) FEE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and Common
Stock (par value $.001) 1,594,587 $.007139-$13.25 $11,090,577 $3,825
- ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and aggregate
offering price are based upon (a) the weighted average exercise price for
options granted pursuant to the Registrant's 1996 Equity Incentive Plan and
1996 Non-Employee Directors' Stock Option Plan and (b) the average of the
bid and ask prices of Registrant's Common Stock on May 29, 1996 as reported
on the Nasdaq National Market.
Exhibit Index at Page 6
<PAGE>
The chart below details the calculations of the registration fee.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
Number of Offering Price Per Aggregate
Securities Shares Share Offering Price
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant to
outstanding options under the
1996 Equity Incentive Plan 13,159 $0.007139 (1)(a) $94
- -----------------------------------------------------------------------------------------------
Shares issuable pursuant to
the 1996 Equity Incentive
Plan 92,244 $0.07139 (1)(a) $6,585
- -----------------------------------------------------------------------------------------------
Shares issuable pursuant to
the 1996 Equity Incentive
Plan 26,831 $0.7139 (1)(a) $19,155
- -----------------------------------------------------------------------------------------------
Shares issuable pursuant to
the 1996 Equity Incentive
Plan 607,222 $1.07085 (1)(a) $650,244
- -----------------------------------------------------------------------------------------------
Shares issuable pursuant to
the 1996 Equity Incentive
Plan 3,501 $8.57 (1)(a) $30,004
- -----------------------------------------------------------------------------------------------
Shares issuable pursuant to
the 1996 Equity Incentive
Plan 51,518 $10.20 (1)(a) $525,484
- -----------------------------------------------------------------------------------------------
Shares issuable pursuant to
the 1996 Non-Employee
Directors' Plan 120,000 $12.00 (1)(a) $1,440,000
- -----------------------------------------------------------------------------------------------
Shares issuable pursuant to
the 1996 Equity Incentive
Plan, the 1996 Employee Stock
Purchase Plan and 1996 Non-
Employee Directors' Stock
Option Plan 677,112 $12.375(1)(b) $8,379,261
- -----------------------------------------------------------------------------------------------
Shares issuable pursuant to
the 1996 Equity Incentive Plan 3,000 $13.25 (1)(a) $39,750
- -----------------------------------------------------------------------------------------------
Proposed Maximum Offering
Price $11,090,577
- -----------------------------------------------------------------------------------------------
Registration Fee $3,825
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
</TABLE>
iii
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by ONYX Pharmaceuticals, Inc., a Delaware
corporation (the "Registrant"), with the Securities and Exchange Commission (the
"SEC") are incorporated by reference into this Registration Statement:
(a) The Registrant's final prospectus filed May 9, 1996 pursuant to Rule
424(b) under the Securities Act of 1933, as amended (the "Act").
(b) The description of the Registrant's Common Stock which is contained in
the Registration Statement on Form 8-A filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), with the SEC on April 2, 1996.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Certificate of Incorporation contains certain provisions
permitted under Delaware Law relating to the liability of directors. These
provisions eliminate a director's personal liability for monetary damages
resulting from a breach of fiduciary duty, except in certain circumstances
involving certain wrongful acts, such as (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of the Delaware General Corporation Law, or
(iv) for any transaction from which the director derives an improper personal
benefit. These provisions do not limit or eliminate the rights of the Company
or any stockholder to seek equitable relief, such as an injunction or
rescission, in the event of a breach of director's fiduciary duty. These
provisions will not alter a director's liability under federal securities laws.
The Company's Certificate of Incorporation also contains provisions indemnifying
the directors and officers of the Company to the fullest extent permitted by
Delaware General Corporation Law. The Company believes that these provisions
will assist the Company in attracting and retaining qualified individuals to
serve as directors.
The Company has entered into indemnification agreements with its directors,
executive officers and certain key employees.
1.
<PAGE>
UNDERTAKINGS
(c) The undersigned Registrant hereby undertakes:
a. To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
i. To include any prospectus required by section 10(a)(3) of
the Act;
ii. To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement;
iii. To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement.
b. That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
c. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(d) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
2.
<PAGE>
EXHIBITS
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is contained in
Exhibit 5.1 to this Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1* 1996 Equity Incentive Plan
99.2 Form of Incentive Stock Option
99.3 Form of Nonstatutory Stock Option
99.4* 1996 Employee Stock Purchase Plan
99.5* 1996 Non-Employee Directors' Stock Option Plan
99.6 Form of Nonstatutory Stock Option - Initial Grant
99.7 Form of Nonstatutory Stock Option - Annual Grant
______________
* Filed as an exhibit to the Registration Statement on Form SB-2 (No. 333-
3176-LA), as amended through the date hereof and incorporated by reference
herein.
3.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Richmond, State of California, on ,
1996.
ONYX PHARMACEUTICALS, INC.
By: /s/ HOLLINGS C. RENTON
----------------------------------------
Hollings C. Renton
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hollings Renton and Douglas L.
Blankenship, and each or any one of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done
in connection therewith, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
4.
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ HOLLINGS C. RENTON President, Chief Executive Officer
- ------------------------------ and Director (Principal Executive May 30, 1996
Hollings C. Renton Officer)
/s/ DOUGLAS L. BLANKENSHIP
- ------------------------------ Director of Finance (Principal
Douglas L. Blankenship Financial and Accounting Officer) May 30, 1996
- ------------------------------ Director ________, 1996
Brook H. Byers
/s/ SAMUEL D. COLELLA
- ------------------------------ Director May 30, 1996
Samuel D. Colella
/s/ WOLFGANG HARTWIG
- ------------------------------ Director May 30, 1996
Wolfgang Hartwig
/s/ KEVIN J. KINSELLA
- ------------------------------ Director May 30, 1996
Kevin J. Kinsella
/s/ KATHLEEN LAPORTE
- ------------------------------ Director May 30, 1996
Kathleen LaPorte
/s/ FRANK MCCORMICK
- ------------------------------ Director May 30, 1996
Frank McCormick
/s/ WALTER MOOS
- ------------------------------ Director May 30, 1996
Walter Moos
</TABLE>
5.
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cooley Godward Castro Huddleson & Tatum is
contained in Exhibit 5.1 to this Registration Statement
24.1 Power of Attorney is contained on the signature page.
99.1* 1996 Equity Incentive Plan
99.2 Form of Incentive Stock Option
99.3 Form of Nonstatutory Stock Option
99.4* 1996 Employee Stock Purchase Plan
99.5* 1996 Non-Employee Directors' Stock Option Plan
99.6 Form of Nonstatutory Stock Option - Initial Grant
99.7 Form of Nonstatutory Stock Option - Annual Grant
______________
* Filed as an exhibit to the Registration Statement on Form SB-2 (No. 333-
3176-LA), as amended through the date hereof.
6.
<PAGE>
[LETTERHEAD]
May 30, 1996
ONYX Pharmaceuticals, Inc.
3031 Research Drive
Richmond, CA 94806
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by ONYX Pharmaceuticals (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of (i) up to 1,319,587 shares of the
Company's common stock (the "Common Stock"), $.001 par value, pursuant to its
1996 Equity Incentive Plan (the "Plan"), (ii) up to 175,000 shares of Common
Stock pursuant to its 1996 Non-Employee Directors' Stock Option Plan (the
"Directors' Plan") and (iii) up to 100,000 shares of Common Stock pursuant to
its 1996 Employee Stock Purchase Plan (the "Purchase Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Amended and Restated Certificate of Incorporation and
Bylaws and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies thereof,
and the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the shares of Common Stock, when sold and issued in accordance with the
Plan, the Directors' Plan, the Purchase Plan, the Registration Statement and
related Prospectus, will be validly issued, fully paid, and nonassessable
(except as to shares issued pursuant to certain deferred payment arrangements,
which will be fully paid and nonassessable when such deferred payments are made
in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
By: /s/ Deborah A. Marshall
------------------------------
Deborah A. Marshall
<PAGE>
Exhibit 23.1
Consent of Ernst & Young, LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1996 Employee Stock Purchase Plan, the 1996
Non-Employee Directors' Stock Option Plan and the 1996 Equity Incentive Plan
of ONYX Pharmaceuticals, Inc. of our report dated February 22, 1996, except
as to Note 10 as to which the date is April 1, 1996, with respect to the
financial statements of ONYX Pharmaceuticals, Inc. included in its
Registration Statement on Form SB-2 (No. 333-3176-LA) for the year ended
December 31, 1995, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
----------------------------------------
Ernst & Young LLP
Palo Alto, California
May 23, 1996
<PAGE>
ONYX PHARMACEUTICALS, INC.
INCENTIVE STOCK OPTION
, Optionee:
- --------------------
Onyx Pharmaceuticals, Inc. (the "Company"), pursuant to its 1996 Equity
Incentive Plan (the "Plan"), has granted to you, the optionee named above, an
option to purchase shares of the common stock of the Company ("Common Stock").
This option is intended to qualify as an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's employees
(including officers), directors or consultants. Defined terms not explicitly
defined in this agreement but defined in the Plan shall have the same
definitions as in the Plan.
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of
shares of Common Stock subject to this option is ____________________
(__________).
2. VESTING. Subject to the limitations contained herein, __________ of
the shares will vest (become exercisable) on ____________, 19__ and __________
of the shares will then vest each month thereafter until either (i) you cease to
provide services to the Company for any reason, or (ii) this option becomes
fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) EXERCISE PRICE. The exercise price of this option is
___________________________ ($___________) per share, being not less than the
fair market value of the Common Stock on the date of grant of this option.
(b) METHOD OF PAYMENT. Payment of the exercise price per share is
due in full upon exercise of all or any part of each installment which has
accrued to you. You may elect, to the extent permitted by applicable statutes
and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in cash
(including check) at the time of exercise;
(ii) Payment pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board which, prior to the
issuance of Common Stock, results in either the receipt of cash (or check) by
the Company or the receipt
1.
<PAGE>
of irrevocable instructions to pay the aggregate exercise price to the Company
from the sales proceeds;
(iii) Provided that at the time of exercise the Company's
Common Stock is publicly traded and quoted regularly in the Wall Street Journal,
payment by delivery of already-owned shares of Common Stock, held for the period
required to avoid a charge to the Company's reported earnings, and owned free
and clear of any liens, claims, encumbrances or security interests, which Common
Stock shall be valued at its fair market value on the date of exercise; or
(iv) Payment by a combination of the methods of payment
permitted by subparagraph 3(b)(i) through 3(b)(iii) above.
4. WHOLE SHARES. This option may not be exercised for any number of
shares which would require the issuance of anything other than whole shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Act or, if such
shares are not then so registered, the Company has determined that such exercise
and issuance would be exempt from the registration requirements of the Act.
6. TERM. The term of this option commences on __________, 19__, the date
of grant, and expires on ________________________ (the "Expiration Date," which
date shall be no more than ten (10) years from the date this option is granted),
unless this option expires sooner as set forth below or in the Plan. In no
event may this option be exercised on or after the Expiration Date. This option
shall terminate prior to the Expiration Date as follows: three (3) months after
the termination of your Continuous Status as an Employee, Director or Consultant
with the Company or an Affiliate of the Company unless one of the following
circumstances exists:
(a) Your termination of Continuous Status as an Employee, Director or
Consultant is due to your permanent and total disability (within the meaning of
Section 422(c)(6) of the Code). This option will then expire on the earlier of
the Expiration Date set forth above or twelve (12) months following such
termination of Continuous Status as an Employee, Director or Consultant.
(b) Your termination of Continuous Status as an Employee, Director or
Consultant is due to your death or your death occurs within three (3) months
following your termination of Continuous Status as an Employee, Director or
Consultant for any other reason. This option will then expire on the earlier of
the Expiration Date set forth above or twelve (12) months after your death.
(c) If during any part of such three (3) month period you may not
exercise your option solely because of the condition set forth in paragraph 5
above, then your option will
2.
<PAGE>
not expire until the earlier of the Expiration Date set forth above or until
this option shall have been exercisable for an aggregate period of three (3)
months after your termination of Continuous Status as an Employee, Director or
Consultant.
(d) If your exercise of the option within three (3) months after
termination of your Continuous Status as an Employee, Director or Consultant
with the Company or with an Affiliate of the Company would result in liability
under section 16(b) of the Securities Exchange Act of 1934, then your option
will expire on the earlier of (i) the Expiration Date set forth above, (ii) the
tenth (10th) day after the last date upon which exercise would result in such
liability or (iii) six (6) months and ten (10) days after the termination of
your Continuous Status as an Employee, Director or Consultant with the Company
or an Affiliate of the Company.
However, this option may be exercised following termination of Continuous
Status as an Employee, Director or Consultant only as to that number of shares
as to which it was exercisable on the date of termination of Continuous Status
as an Employee, Director or Consultant under the provisions of paragraph 2 of
this option.
In order to obtain the federal income tax advantages associated with an
"incentive stock option," the Code requires that at all times beginning on the
date of grant of the option and ending on the day three (3) months before the
date of the option's exercise, you must be an employee of the Company or an
Affiliate of the Company, except in the event of your death or permanent and
total disability. The Company has provided for continued vesting or extended
exercisability of your option under certain circumstances for your benefit, but
cannot guarantee that your option will necessarily be treated as an "incentive
stock option" if you provide services to the Company or an Affiliate of the
Company as a consultant or exercise your option more than three (3) months after
the date your employment with the Company and all Affiliates of the Company
terminates.
7. EXERCISE.
(a) This option may be exercised, to the extent specified above,
by delivering a notice of exercise (in the form attached hereto) together with
the exercise price to the Secretary of the Company, or to such other person as
the Company may designate, during regular business hours, together with such
additional documents as the Company may then require pursuant to subsection
12(e) of the Plan.
(b) By exercising this option you agree that:
(i) as a precondition to the completion of any exercise of
this option, the Company may require you to enter an arrangement providing for
the payment by you to the Company of any tax withholding obligation of the
Company arising by reason of (1) the exercise of this option; (2) the lapse of
any substantial risk of forfeiture to which the shares are subject at the time
of exercise; or (3) the disposition of shares acquired upon such exercise; and
3.
<PAGE>
(ii) you will notify the Company in writing within fifteen
(15) days after the date of any disposition of any of the shares of the Common
Stock issued upon exercise of this option that occurs within two (2) years after
the date of this option grant or within one (1) year after such shares of Common
Stock are transferred upon exercise of this option.
8. TRANSFERABILITY. This option is not transferable, except by will or
by the laws of descent and distribution, and is exercisable during your life
only by you. Notwithstanding the foregoing, by delivering written notice to the
Company, in a form satisfactory to the Company, you may designate a third party
who, in the event of your death, shall thereafter be entitled to exercise this
option.
9. OPTION NOT A SERVICE CONTRACT. This option is not an employment
contract and nothing in this option shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company,
or of the Company to continue your employment with the Company. In addition,
nothing in this option shall obligate the Company or any Affiliate of the
Company, or their respective stockholders, board of directors, officers or
employees to continue any relationship which you might have as a Director or
Consultant for the Company or Affiliate of the Company.
10. NOTICES. Any notices provided for in this option or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in the
case of notices delivered by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the address
specified below or at such other address as you hereafter designate by written
notice to the Company.
11. GOVERNING PLAN DOCUMENT. This option is subject to all the provisions
of the Plan, a copy of which is attached hereto and its provisions are hereby
made a part of this option, including without limitation the provisions of
Section 6 of the Plan relating to option provisions, and is further subject to
all interpretations, amendments, rules and regulations which
4.
<PAGE>
may from time to time be promulgated and adopted pursuant to the Plan. In the
event of any conflict between the provisions of this option and those of the
Plan, the provisions of the Plan shall control.
Dated the ____ day of __________________, 19__.
Very truly yours,
ONYX PHARMACEUTICALS, INC.
By
-----------------------------------------
Duly authorized on behalf of the Board
of Directors
ATTACHMENTS:
1996 Equity Incentive Plan
Notice of Exercise
5.
<PAGE>
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option and the Plan; and
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its Affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options previously granted and delivered to the undersigned
under stock option plans of the Company, and (ii) the following agreements only:
NONE
------------
(Initial)
OTHER
-----------------------------------
-----------------------------------
-----------------------------------
-------------------------------------------
OPTIONEE
Address:
---------------------------------
---------------------------------
6.
<PAGE>
ONYX PHARMACEUTICALS, INC.
NONSTATUTORY STOCK OPTION
, Optionee:
- --------------------
Onyx Pharmaceuticals, Inc. (the "Company"), pursuant to its 1996 Equity
Incentive Plan (the "Plan"), has granted to you, the optionee named above, an
option to purchase shares of the common stock of the Company ("Common Stock").
This option is not intended to qualify and will not be treated as an "incentive
stock option" within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's employees
(including officers), directors or consultants. Defined terms not explicitly
defined in this agreement but defined in the Plan shall have the same
definitions as in the Plan.
The details of your option are as follows:
1. TOTAL NUMBER OF SHARES SUBJECT TO THIS OPTION. The total number of
shares of Common Stock subject to this option is ______________ (________).
2. VESTING. Subject to the limitations contained herein, __________ of
the shares will vest (become exercisable) on ____________, 19__ and __________
of the shares will then vest each month thereafter until either (i) you cease to
provide services to the Company for any reason, or (ii) this option becomes
fully vested.
3. EXERCISE PRICE AND METHOD OF PAYMENT.
(a) EXERCISE PRICE. The exercise price of this option is ___________
____________ ($________) per share, being not less than 85% of the fair market
value of the Common Stock on the date of grant of this option.
(b) METHOD OF PAYMENT. Payment of the exercise price per share is
due in full upon exercise of all or any part of each installment which has
accrued to you. You may elect, to the extent permitted by applicable statutes
and regulations, to make payment of the exercise price under one of the
following alternatives:
(i) Payment of the exercise price per share in cash
(including check) at the time of exercise;
(ii) Payment pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board which, prior to the
issuance of Common Stock, results in either the receipt of cash (or check) by
the Company or the receipt
1.
<PAGE>
of irrevocable instructions to pay the aggregate exercise price to the Company
from the sales proceeds;
(iii) Provided that at the time of exercise the Company's
Common Stock is publicly traded and quoted regularly in the Wall Street Journal,
payment by delivery of already-owned shares of Common Stock, held for the period
required to avoid a charge to the Company's reported earnings, and owned free
and clear of any liens, claims, encumbrances or security interests, which Common
Stock shall be valued at its fair market value on the date of exercise; or
(iv) Payment by a combination of the methods of payment
permitted by subparagraph 3(b)(i) through 3(b)(iii) above.
4. WHOLE SHARES. This option may not be exercised for any number of
shares which would require the issuance of anything other than whole shares.
5. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, this option may not be exercised unless the shares issuable
upon exercise of this option are then registered under the Act or, if such
shares are not then so registered, the Company has determined that such exercise
and issuance would be exempt from the registration requirements of the Act.
6. TERM. The term of this option commences on _________, 19__, the date
of grant and expires on _____________________ (the "Expiration Date," which date
shall be no more than ten (10) years from the date this option is granted),
unless this option expires sooner as set forth below or in the Plan. In no
event may this option be exercised on or after the Expiration Date. This option
shall terminate prior to the Expiration Date as follows: three (3) months after
the termination of your Continuous Status as an Employee, Director or Consultant
with the Company or an Affiliate of the Company for any reason or for no reason
unless:
(a) such termination of Continuous Status as an Employee, Director or
Consultant is due to your permanent and total disability (within the meaning of
Section 422(c)(6) of the Code), in which event the option shall expire on the
earlier of the Expiration Date set forth above or twelve (12) months following
such termination of Continuous Status as an Employee, Director or Consultant; or
(b) such termination of Continuous Status as an Employee, Director or
Consultant is due to your death or your death occurs within three (3) months
following your termination for any other reason, in which event the option shall
expire on the earlier of the Expiration Date set forth above or twelve (12)
months after your death; or
(c) during any part of such three (3) month period the option is not
exercisable solely because of the condition set forth in paragraph 5 above, in
which event the option shall not expire until the earlier of the Expiration Date
set forth above or until it shall have been
2.
<PAGE>
exercisable for an aggregate period of three (3) months after the termination of
Continuous Status as an Employee, Director or Consultant; or
(d) exercise of the option within three (3) months after termination
of your Continuous Status as an Employee, Director or Consultant with the
Company or with an Affiliate of the Company would result in liability under
section 16(b) of the Securities Exchange Act of 1934 (the "Exchange Act), in
which case the option will expire on the earlier of (i) the Expiration Date set
forth above, (ii) the tenth (10th) day after the last date upon which exercise
would result in such liability or (iii) six (6) months and ten (10) days after
the termination of your Continuous Status as an Employee, Director or Consultant
with the Company or an Affiliate of the Company.
However, this option may be exercised following termination of Continuous
Status as an Employee, Director or Consultant only as to that number of shares
as to which it was exercisable on the date of termination of Continuous Status
as an Employee, Director or Consultant under the provisions of paragraph 2 of
this option.
7. EXERCISE.
(a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in the form attached hereto) together with the
exercise price to the Secretary of the Company, or to such other person as the
Company may designate, during regular business hours, together with such
additional documents as the Company may then require pursuant to subsection
12(e) of the Plan.
(b) By exercising this option you agree that, as a precondition to
the completion of any exercise of this option, the Company may require you to
enter an arrangement providing for the cash payment by you to the Company of any
tax withholding obligation of the Company arising by reason of: (1) the exercise
of this option; (2) the lapse of any substantial risk of forfeiture to which the
shares are subject at the time of exercise; or (3) the disposition of shares
acquired upon such exercise. You also agree that any exercise of this option
has not been completed and that the Company is under no obligation to issue any
Common Stock to you until such an arrangement is established or the Company's
tax withholding obligations are satisfied, as determined by the Company.
8. TRANSFERABILITY. This option is not transferable, except by will or
by the laws of descent and distribution or pursuant to a qualified domestic
relations order as satisfying the requirements of Rule 16b-3 of the Exchange Act
(a "QDRO"), and is exercisable during your life only by you or a transferee
pursuant to a QDRO. Notwithstanding the foregoing, by delivering written notice
to the Company, in a form satisfactory to the Company, you may designate a third
party who, in the event of your death, shall thereafter be entitled to exercise
this option.
9. OPTION NOT A SERVICE CONTRACT. This option is not an employment
contract and nothing in this option shall be deemed to create in any way
whatsoever any obligation on
3.
<PAGE>
your part to continue in the employ of the Company, or of the Company to
continue your employment with the Company. In addition, nothing in this option
shall obligate the Company or any Affiliate of the Company, or their respective
stockholders, board of directors, officers, or employees to continue any
relationship which you might have as a Director or Consultant for the Company or
Affiliate of the Company.
10. NOTICES. Any notices provided for in this option or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in the
case of notices delivered by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the address
specified below or at such other address as you hereafter designate by written
notice to the Company.
11. GOVERNING PLAN DOCUMENT. This option is subject to all the provisions
of the Plan, a copy of which is attached hereto and its provisions are hereby
made a part of this option, including without limitation the provisions of
Section 6 of the Plan relating to option provisions, and is further subject to
all interpretations, amendments, rules and regulations which may from time to
time be promulgated and adopted pursuant to the Plan. In the event of any
conflict between the provisions of this option and those of the Plan, the
provisions of the Plan shall control.
Dated the ____ day of __________________, 19__.
Very truly yours,
ONYX PHARMACEUTICALS, INC.
By
-----------------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
1996 Equity Incentive Plan
Notice of Exercise
4.
<PAGE>
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option and the Plan; and
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its Affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options previously granted and delivered to the undersigned
under stock option plans of the Company, and (ii) the following agreements only:
5.
<PAGE>
NONE
------------
(Initial)
OTHER
-----------------------------------
-----------------------------------
-----------------------------------
-------------------------------------------
OPTIONEE
Address:
---------------------------------
---------------------------------
6.
<PAGE>
ONYX PHARMACEUTICALS, INC.
NONSTATUTORY STOCK OPTION - ANNUAL GRANT
1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
, Optionee:
- ------------------------------
Onyx Pharmaceuticals, Inc. (the "Company"), pursuant to its 1996 Non-Employee
Directors' Stock Option Plan (the "Plan") has on __________________, 19___
granted to you, the optionee named above, an option to purchase shares of the
common stock of the Company ("Common Stock"). This option is not intended to
qualify and will not be treated as an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's Non-
Employee Directors' (as defined in the Plan).
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this option is
five thousand (5,000). Subject to the limitations contained herein, this option
shall be exercisable in accordance with the Plan.
2. The exercise price of this option is ________________________________
($________) per share, being the "fair market value" (as defined in the Plan) of
the Common Stock on the date of grant of this option.
3. Subject to the limitations contained herein, this option shall become
exercisable (i.e., vest) in equal monthly installments of four hundred sixteen
and two-thirds (416 2/3) at the end of each month commencing one month after the
date of grant of this option; PROVIDED HOWEVER, that you have, during the period
from the grant date to such vesting date, continuously served as a Non-Employee
Director or employee of or consultant to the Company or any Affiliate (as
defined in the Plan), whereupon this option shall become fully exercisable with
respect to that portion of the shares represented by that installment.
4. (a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other person
as the Company may designate, during regular business hours, together with such
additional documents as the Company may then require pursuant to section 6 of
the Plan. This option may not be exercised for any number of shares which would
require the issuance of anything other than whole shares.
(b) By exercising this option you agree that the Company may require
you to enter an arrangement providing for the cash payment by you to the Company
of any tax withholding obligation of the Company arising by reason of the
exercise of this option or the lapse of any substantial risk of forfeiture to
which the shares are subject at the time of exercise.
1.
<PAGE>
5. Any notices provided for in this option or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of
notices delivered by the Company to you, five (5) days after deposit in the
United States mail, postage prepaid, addressed to you at the address specified
below or at such other address as you hereafter designate by written notice to
the Company.
6. This option is subject to all the provisions of the Plan, a copy of
which is attached hereto and its provisions are hereby made a part of this
option, including without limitation the provisions of section 6 of the Plan
relating to option provisions, and is further subject to all interpretations,
amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the
provisions of this option and those of the Plan, the provisions of the Plan
shall control.
Dated the ____ day of ____________________, 19__.
Very truly yours,
ONYX PHARMACEUTICALS, INC.
By:
-----------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
1996 Non-Employee Directors' Stock Option Plan
Notice Exercise
2.
<PAGE>
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option and the Plan;
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options and any other stock awards previously granted and
delivered to the undersigned under stock award plans of the Company, and (ii)
the following agreements only:
NONE
----------------------------------------
(Initial)
OTHER
----------------------------------------
----------------------------------------
----------------------------------------
-------------------------------------------
Optionee
-------------------------------------------
Address
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-------------------------------------------
3.
<PAGE>
ONYX PHARMACEUTICALS, INC.
NONSTATUTORY STOCK OPTION - INITIAL GRANT
1996 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
, Optionee:
- ------------------------------
Onyx Pharmaceuticals, Inc. (the "Company"), pursuant to its 1996 Non-Employee
Directors' Stock Option Plan (the "Plan") has on __________________, 19___
granted to you, the optionee named above, an option to purchase shares of the
common stock of the Company ("Common Stock"). This option is not intended to
qualify and will not be treated as an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
The grant hereunder is in connection with and in furtherance of the
Company's compensatory benefit plan for participation of the Company's
Non-Employee Directors' (as defined in the Plan).
The details of your option are as follows:
1. The total number of shares of Common Stock subject to this option is
twenty thousand (20,000). Subject to the limitations contained herein, this
option shall be exercisable in accordance with the Plan.
2. The exercise price of this option is ________________________________
($________) per share, being the "fair market value" (as defined in the Plan) of
the Common Stock on the date of grant of this option.
3. Subject to the limitations contained herein, this option shall become
exercisable (i.e., vest) as to five thousand (5,000) shares on
______________________, 19___ and shall vest further in equal monthly
installments of four hundred sixteen and two-thirds (416 2/3) shares at the end
of each month thereafter; PROVIDED HOWEVER, that you have, during the period
from the grant date to such vesting date, continuously served as a Non-Employee
Director or employee of or consultant to the Company or any Affiliate (as
defined in the Plan), whereupon this option shall become fully exercisable with
respect to that portion of the shares represented by that installment.
4. (a) This option may be exercised, to the extent specified above, by
delivering a notice of exercise (in a form designated by the Company) together
with the exercise price to the Secretary of the Company, or to such other person
as the Company may designate, during regular business hours, together with such
additional documents as the Company may then require pursuant to section 6 of
the Plan. This option may not be exercised for any number of shares which would
require the issuance of anything other than whole shares.
(b) By exercising this option you agree that the Company may require
you to enter an arrangement providing for the cash payment by you to the Company
of any tax withholding obligation of the Company arising by reason of the
exercise of this option or the lapse of any substantial risk of forfeiture to
which the shares are subject at the time of exercise.
1.
<PAGE>
5. Any notices provided for in this option or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of
notices delivered by the Company to you, five (5) days after deposit in the
United States mail, postage prepaid, addressed to you at the address specified
below or at such other address as you hereafter designate by written notice to
the Company.
6. This option is subject to all the provisions of the Plan, a copy of
which is attached hereto and its provisions are hereby made a part of this
option, including without limitation the provisions of section 6 of the Plan
relating to option provisions, and is further subject to all interpretations,
amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the
provisions of this option and those of the Plan, the provisions of the Plan
shall control.
Dated the ____ day of ____________________, 19__.
Very truly yours,
ONYX PHARMACEUTICALS, INC.
By:
-----------------------------------
Duly authorized on behalf
of the Board of Directors
ATTACHMENTS:
1996 Non-Employee Directors' Stock Option Plan
Notice Exercise
2.
<PAGE>
The undersigned:
(a) Acknowledges receipt of the foregoing option and the attachments
referenced therein and understands that all rights and liabilities with respect
to this option are set forth in the option and the Plan;
(b) Acknowledges that as of the date of grant of this option, it sets
forth the entire understanding between the undersigned optionee and the Company
and its affiliates regarding the acquisition of stock in the Company and
supersedes all prior oral and written agreements on that subject with the
exception of (i) the options and any other stock awards previously granted and
delivered to the undersigned under stock award plans of the Company, and (ii)
the following agreements only:
NONE
----------------------------------------
(Initial)
OTHER
----------------------------------------
----------------------------------------
----------------------------------------
-------------------------------------------
Optionee
-------------------------------------------
Address
-------------------------------------------
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3.
