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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 11, 2000
REGISTRATION NO. 333-46366
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ONYX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 94-3154463
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
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3031 RESEARCH DRIVE
RICHMOND, CA 94806
(510) 222-9700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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HOLLINGS C. RENTON
PRESIDENT, CHIEF EXECUTIVE OFFICER
AND CHAIRMAN OF THE BOARD
ONYX PHARMACEUTICALS, INC.
3031 RESEARCH DRIVE
RICHMOND, CA 94806
(510) 222-9700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
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<S> <C>
ROBERT L. JONES, ESQ. JUSTIN P. KLEIN, ESQ.
MICHAEL L. WEINER, ESQ. DOUGLAS M. FOX, ESQ.
COOLEY GODWARD LLP BALLARD SPAHR ANDREWS & INGERSOLL, LLP
Five Palo Alto Square 300 East Lombard Street, Suite 1900
3000 El Camino Real Baltimore, MD 20120
Palo Alto, California 94036 (410)528-5600
(650) 843-5000
</TABLE>
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APPROXIMATE DATE OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
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If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. / /
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses, other than the underwriting
discounts and commissions, payable by us in connection with the sale of the
common stock being registered. All the amounts shown are estimates, except for
the SEC registration fee, NASD filing fee and Nasdaq additional listing fee.
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SEC registration fee........................................ $ 19,609
NASD filing fee............................................. 8,000
Nasdaq additional listing fee............................... 17,500
Printing and engraving expenses............................. 200,000
Legal fees and expenses..................................... 325,000
Accounting fees and expenses................................ 200,000
Transfer Agent and Registrar fees and expenses.............. 25,000
Blue Sky fees and expenses.................................. 5,000
Miscellaneous............................................... 99,891
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Total..................................................... $900,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Under Section 145 of the Delaware General Corporation Law, we have broad powers
to indemnify our directors and officers against liabilities they may incur in
such capacities, including liabilities under the Securities Act of 1933.
Our certificate of incorporation and by-laws include provisions to
(i) eliminate the personal liability of its directors for monetary damages
resulting from breaches of their fiduciary duty to the extent permitted by
Section 102(b)(7) of the General Corporation Law of Delaware and (ii) require us
to indemnify our directors and officers to the fullest extent permitted by
Section 145 of the Delaware Law, including circumstances in which
indemnification is otherwise discretionary. Pursuant to Section 145 of the
Delaware Law, a corporation generally has the power to indemnify its present and
former directors, officers, employees and agents against expenses incurred by
them in connection with any suit to which they are, or are threatened to be
made, a party by reason of their serving in such positions so long as they acted
in good faith and in a manner they reasonably believed to be in, or not opposed
to, the best interest of the corporation, and with respect to any criminal
action, they had no reasonable cause to believe their conduct was unlawful. We
believe that these provisions are necessary to attract and retain qualified
persons as directors and officers. These provisions do not eliminate the
directors' duty of care, and, in appropriate circumstances, equitable remedies
such as injunctive or other forms of non-monetary relief will remain available
under Delaware law. In addition, each director will continue to be subject to
liability for breach of the directors' duty of loyalty to us, for acts or
omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for acts or omissions that the director believes to be
contrary to the best interests of us or our stockholders, for any transaction
from which the director derived an improper personal benefit, for acts or
omissions involving a reckless disregard for the directors' duty to us or our
stockholders when the director was aware or should have been aware of a risk of
serious injury to us or our stockholders, for acts or omissions that constitute
an unexcused pattern of inattention that amounts to an abdication of the
director's duty to us or our stockholders, for improper transactions between the
director and us and for improper distributions to stockholders and loans to
directors and officers. The provision also does not affect a director's
responsibilities under any other law, such as the federal securities law or
state or federal environmental laws.
II-1
<PAGE>
We have entered into indemnity agreements with each of our directors and
executive officers that require us to indemnify such persons against expenses,
judgments, fines, settlements and other amounts incurred, including expenses of
a derivative action, in connection with any proceeding, whether actual or
threatened, to which any such person may be made a party by reason of the fact
that such person is or was a director or an executive officer of Onyx or any of
its affiliated enterprises, provided such person acted in good faith and in a
manner such persons reasonably believed to be in, or not opposed to, the best
interests of us and, with respect to any criminal proceeding, has no reasonable
cause to believe his conduct was unlawful. The indemnification agreements also
set forth procedures that will apply in the event of a claim for indemnification
thereunder.
At present, there is no pending litigation or proceeding involving any of our
directors or officers as to which indemnification is being sought, nor are we
aware of any threatened litigation that may result in claims for indemnification
by any officer or director.
We maintain an insurance policy covering our officers and directors with respect
to certain liabilities, including liabilities arising under the Securities Act
or otherwise.
II-2
<PAGE>
ITEM 16. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1 Form of Underwriting Agreement.
5.1* Legal Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2* Consent of Cooley Godward LLP (see Exhibit 5.1).
24.1* Power of Attorney. See page II-4.
</TABLE>
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* Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to deliver or cause to be delivered
with the prospectus, to each person to whom the prospectus is sent or given, the
latest annual report to security holders that is incorporated by reference in
the prospectus and furnished pursuant to and meeting the requirements of
Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of 1934; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to provisions described in Item 15, 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.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Richmond, County of Contra Costa, State of
California, on October 10, 2000.
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ONYX PHARMACEUTICALS, INC.
By: /s/ MARILYN E. WORTZMAN
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Marilyn E. Wortzman
CONTROLLER
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In accordance with the requirements of the Securities Act of 1933, as amended,
this Amendment No. 1 to the Registration Statement on Form S-3 has been signed
below by the following persons in the capacities and on the dates stated.
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SIGNATURE TITLE DATE
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<C> <S> <C>
President, Chief Executive
Officer and Chairman of
* the Board
------------------------------------------- (PRINCIPAL EXECUTIVE October 10, 2000
Hollings C. Renton OFFICER AND FINANCIAL
OFFICER)
/s/ MARILYN E. WORTZMAN Controller
------------------------------------------- (PRINCIPAL ACCOUNTING October 10, 2000
Marilyn E. Wortzman OFFICER)
*
------------------------------------------- Director October 10, 2000
Michael J. Berendt
*
------------------------------------------- Director October 10, 2000
Paul Goddard
------------------------------------------- Director
Magnus Lundberg
*
------------------------------------------- Director October 10, 2000
George A. Scangos
</TABLE>
II-4
<PAGE>
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*
<C> <S> <C>
-------------------------------------------
Nicole Vitullo Director October 10, 2000
*
------------------------------------------- Director October 10, 2000
Wendell Wierenga
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<S> <C> <C> <C>
*By: /s/ MARILYN E. WORTZMAN
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Marilyn E. Wortzman October 10, 2000
(ATTORNEY-IN-FACT)
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
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<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
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1.1 Form of Underwriting Agreement.
5.1* Legal Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2* Consent of Cooley Godward LLP (see Exhibit 5.1).
24.1* Power of Attorney. See page II-4.
</TABLE>
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* Previously filed.
