<PAGE>
As filed with the Securities and Exchange Commission on January 12, 2001
Registration No. 333-50428
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
ONYX SOFTWARE CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
----------------
<TABLE>
<S> <C>
Washington 91-1629814
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
</TABLE>
3180--139th Avenue SE, Suite 500
Bellevue, WA 98005-4091
(425) 451-8060
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
----------------
Brent R. Frei
President, Chief Executive Officer and
Chairman of the Board
3180--139th Avenue SE, Suite 500
Bellevue, WA 98005-4091
(425) 451-8060
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
----------------
COPIES TO:
Stephen M. Graham
Alan C. Smith
Orrick, Herrington & Sutcliffe LLP
701 Fifth Avenue, Suite 6500
Seattle, WA 98104
(206) 839-4300
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this Registration Statement.
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, check the following box. [X]
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. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
<CAPTION>
Title of each class of Proposed maximum Amount of
securities to be registered aggregate offering price registration fee(1)
---------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock, par value $0.01 per share(2)..... $ 30,000,000 $ 7,920
Common Stock, par value $0.01 per share(3)..... 70,000,000 18,480
---------------------------------------------------------------------------------------------
</TABLE>
(1) Previously paid.
(2) To be offered from time to time pursuant to a Common Stock Underwriting
Agreement with Ramius Securities, LLC.
(3) To be offered from time to time on a delayed or continuous basis on terms
described herein and in future prospectus supplements.
----------------
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 this registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We may +
+not sell these securities until a registration statement covering these +
+securities is filed with the Securities and Exchange Commission and is +
+effective. This prospectus is not an offer to sell these securities and we +
+are not soliciting offers to buy these securities in any state where the +
+offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED JANUARY 12, 2001
PROSPECTUS
[ONYX LOGO]
$100,000,000
Common Stock
-----------
We may sell shares of the common stock offered by this prospectus from time
to time, up to an aggregate amount of $100,000,000. We will describe the
specific terms and amounts of the common stock offered in a prospectus
supplement that will accompany this prospectus. You should read both the
prospectus supplement and this prospectus carefully before you invest in our
common stock. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement.
Our common stock is quoted on the Nasdaq National Market under the symbol
"ONXS." The last reported sales price of our common stock on January 10, 2001
was $10.31 per share.
-----------
Investing in our common stock involves risks. See "Risk Factors" on page 5.
-----------
Neither the Securities and Exchange Commission nor any state securities
regulator has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
-----------
The date of this prospectus is , 2001
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
About This Prospectus................................................... 3
Onyx Software Corporation............................................... 3
Where You Can Find More Information..................................... 4
Special Note Regarding Forward-Looking Statements....................... 5
Risk Factors............................................................ 5
Use of Proceeds......................................................... 5
Plan of Distribution.................................................... 6
Legality of Common Stock................................................ 9
Experts................................................................. 9
</TABLE>
----------------
You should rely only on the information provided or incorporated by reference
in this prospectus or any prospectus supplement. We have not authorized anyone
to provide you with different information. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than its date, regardless of the time of delivery of the
prospectus or prospectus supplement or any sale of common stock.
This prospectus is an offer to sell and a solicitation of an offer to buy the
securities offered by this prospectus only in jurisdictions where the offer or
sale is permitted.
2
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement on Form S-3 that
we filed with the Securities and Exchange Commission, or SEC. Each time we sell
our common stock under this prospectus we will provide a prospectus supplement
that will contain specific information about the terms of that offering,
including the price, amount of common stock being offered and the plan of
distribution. The prospectus supplement for a particular offering may also add,
update or change information contained in this prospectus. In addition, we may
update or supplement any prospectus supplement relating to a particular
offering. You should read both this prospectus and any applicable prospectus
supplement together with the additional information about Onyx described in the
section below entitled "Where You Can Find More Information."
ONYX SOFTWARE CORPORATION
Onyx Software Corporation is a leading provider of enterprise-wide, customer-
centric e-business solutions. Using the Internet in combination with
traditional forms of interaction, including phone, mail, fax and e-mail, our
solution enables enterprises to more effectively acquire, manage and maintain
customer, partner and other relationships. We designed our solutions for
companies that want to merge new e-business processes with traditional business
processes to enhance their customer-facing operations. Our solutions use a
single data model across all customer interactions, resulting in a single
repository for all marketing, sales and service information. From inception, we
designed our solutions to be integrated across a wide variety of customer-
facing departments and interaction media. Our solutions are easy to use, widely
accessible, rapidly deployable, scalable, flexible, customizable and reliable,
resulting in a low total cost of ownership and rapid return on investment.
We were incorporated in the state of Washington in 1994. Our executive
offices are located at 3180--139th Avenue SE, Suite 500, Bellevue, Washington,
98005-4091, and our telephone number is (425) 451-8060.
In this prospectus, "Onyx," "we," "us" and "our" refer to Onyx Software
Corporation and its subsidiaries.
3
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement under the Securities Act
of 1933 relating to the common stock being offered by this prospectus. As
permitted by the SEC rules, this prospectus omits certain information included
in the registration statement. For a more complete understanding of the common
stock and this offering, you should refer to the registration statement,
including its exhibits.
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. SEC rules allow us to "incorporate by reference" the
information we file with the SEC, which means we can disclose important
information to you by referring you to those documents. The information
included in the following documents is incorporated by reference and is
considered to be a part of this prospectus:
1. Our annual report on Form 10-K for the year ended December 31, 1999;
2. Our definitive proxy statement dated April 28, 2000, relating to our May
31, 2000 annual meeting of shareholders;
3. Our quarterly reports on Form 10-Q for the quarters ended March 31, 2000,
June 30, 2000 and September 30, 2000;
4. Our current reports on Form 8-K filed February 4, 2000, March 9, 2000, May
1, 2000, July 17, 2000, October 23, 2000, November 21, 2000, January 9, 2001
and January 10, 2001; and
5. Our registration statement on Form 8-A filed on February 8, 1999, which
contains a description of our common stock.
We also incorporate by reference all documents we file under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (a) after the filing
date of the initial registration statement of which this prospectus is a part
and before the effectiveness of the registration statement and (b) after the
effectiveness of the registration statement and before all of the shares
registered under the registration statement are sold. The most recent
information that we file with the SEC automatically updates and supersedes
older information. The information contained in any such filing will be deemed
to be part of this prospectus as of the date on which the document is filed,
and any older information that has been modified or superseded will not be
deemed to be a part of this prospectus.
Upon request, we will provide without charge to each person who receives a
prospectus, including any beneficial owner, a copy of the information that has
been incorporated by reference in this prospectus. Please direct your request,
either in writing or by telephone, to the Secretary, Onyx Software Corporation,
3180--139th Avenue SE, Suite 500, Bellevue, Washington 98005-4091; (425) 451-
8060.
You may also inspect and copy the registration statement and other documents
that we have filed with the SEC at prescribed rates at the public reference
facilities maintained by the SEC at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the SEC's regional offices at Seven World Trade
Center, 13th Floor, New York, New York 10048 and Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. You may obtain
information regarding the Washington, D.C. Public Reference Room by calling the
SEC at 1-800-SEC-0330. In addition, the registration statement is publicly
available through the SEC's Web site at http://www.sec.gov.
4
<PAGE>
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Our disclosure and analysis in this prospectus and in the documents
incorporated by reference into this prospectus contain forward-looking
statements, which provide our current expectations or forecasts of future
events. Words such as "believes," "anticipates" and "intends" may identify
forward-looking statements, but the absence of these words does not necessarily
mean that a statement is not forward looking. Forward-looking statements
include statements about our plans, objectives, expectations and intentions and
other statements that are not historical facts. They are subject to known and
unknown risks and uncertainties and inaccurate assumptions that could cause
actual results to differ materially from those expected or implied by the
forward-looking statements. Our actual results could differ materially from
those anticipated in the forward-looking statements for many reasons, including
the factors described in the section entitled "Risk Factors" in the applicable
prospectus supplement. Other factors besides those described in the applicable
prospectus supplement could also affect actual results.
You should not unduly rely on these forward-looking statements, which speak
only as of the date of this prospectus. We undertake no obligation to publicly
revise any forward-looking statement to reflect circumstances or events after
the date of this prospectus or to reflect the occurrence of unanticipated
events. You should, however, review the factors and risks we describe in the
reports we file from time to time with the SEC.
RISK FACTORS
This offering involves a high degree of risk. Before you invest in our common
stock, you should carefully consider the risk factors described in the section
entitled "Risk Factors" in the applicable prospectus supplement, together with
all of the other information included in or incorporated by reference into this
prospectus and the applicable prospectus supplement. If any of these risks
actually occur, our business, financial condition and operating results could
be harmed. This could cause the market price of our common stock to decline,
and you could lose all or part of your investment.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we intend
to use any net proceeds from the sale of common stock offered by this
prospectus for additional working capital and other general corporate purposes,
as well as the possible acquisition of or investment in complementary
businesses and technologies. Until we have used the net proceeds, we may invest
them in short-term marketable securities.
5
<PAGE>
PLAN OF DISTRIBUTION
We may sell the common stock offered by this prospectus in one or more
transactions
. to or through Ramius Securities, LLC pursuant to the firm-commitment
underwritten equity facility described below;
. to or through other underwriters in other transactions;
. through dealers, agents or institutional investors;
. directly to purchasers; or
. through a combination of these methods.
We may sell the common stock at a fixed price or prices that may change, at
prevailing market prices, at prices relating to prevailing market prices or at
negotiated prices. Regardless of the method we use to sell the common stock in
a particular offering, we will provide a prospectus supplement that will
disclose the following information with respect to that offering:
. the identity of any underwriters, dealers, agents or purchasers not
named in this prospectus that will purchase the common stock;
. the material terms of the distribution, including the number of shares
and the consideration to be paid;
. the amount of any compensation, discounts or commissions to be received
by underwriters, dealers or agents;
. the terms of any indemnification provisions; and
. the nature of any transaction by an underwriter, dealer or agent during
the offering that is intended to stabilize or maintain the market price
of the common stock.
Underwriters, dealers, agents or other purchasers may sell the common stock at
a fixed price or prices that may change, at prices set at or relating to
prevailing market prices or at negotiated prices.
In connection with the sale of our common stock, underwriters, dealers or
agents may receive compensation from us, or from the purchasers of the common
stock for whom they may act as agents, in the form of discounts, concessions or
commissions. Underwriters, dealers, agents or purchasers that participate in
the distribution of the common stock, and any broker-dealers or other persons
acting on behalf of parties that participate in the distribution of the common
stock, may be deemed to be underwriters under the Securities Act. Any discounts
or commissions they receive and any profit on the resale of the common stock
they receive may be deemed to be underwriting discounts and commissions under
the Securities Act. Any person deemed to be an underwriter may be subject to
statutory liabilities, including those under Sections 11, 12 and 17 of the
Securities Act and Rule 10b-5 under the Exchange Act.
Only underwriters named in this prospectus or in the applicable prospectus
supplement, if any, will be underwriters of the common stock offered through
that prospectus supplement. Any underwriters used in an offering may acquire
the common stock for their own account and may resell the common stock from
time to time in one or more transactions, at a fixed public offering price or
at varying prices determined at the time of sale. We may offer the common stock
to the public through underwriting syndicates represented by managing
underwriters or through underwriters without a syndicate. Any public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may change from time to time.
We may designate agents to distribute the common stock offered by this
prospectus. Unless the prospectus supplement states otherwise, any such agent
will act on a best-efforts basis for the period of appointment. We may
authorize dealers or other persons acting as our agents to solicit offers by
institutional investors to purchase the common stock from us under contracts
that provide for payment and delivery on a future date. We may enter into
agreements directly with purchasers, such as the firm-commitment underwritten
equity facility
6
<PAGE>
described below, that provide for the sale of the common stock over a period of
time by means of draw-downs at our election, which the purchaser would be
obligated to accept under specified conditions. Under a draw-down agreement, we
may sell common stock at a per-share purchase price discounted from the market
price of our common stock. We may also enter into agreements for sales of
common stock based on combinations of or variations from these methods. We will
describe in the applicable prospectus supplement the terms and conditions of
any such agreements and any related commissions we will pay. Agents and
underwriters may also engage in transactions with us or perform services for us
in the ordinary course of business.
In connection with an offering of our common stock, underwriters and
purchasers that may be deemed to be underwriters under the Securities Act may
engage in transactions that stabilize, maintain or otherwise affect the price
of the common stock. For example, they may
. over-allot in connection with the offering, creating a syndicate short
position for their own account;
. bid for and purchase our common stock in the open market to cover short
positions or to stabilize the price of our common stock; or
. reclaim selling concessions allowed for distributing our common stock in
the offering if the underwriters repurchase previously distributed
common stock in transactions to cover short positions, stabilization
transactions or otherwise.
Any of these activities may stabilize or maintain the market price above
independent market levels. Underwriters are not required to engage in these
activities and may terminate any such activity at any time. In engaging in any
such activities, underwriters will be subject to the applicable provisions of
the Securities Act and the Exchange Act and the rules and regulations under
those acts. Regulation M under the Securities Act, for example, may restrict
the ability of any person engaged in the distribution of the common stock to
engage in market-making activities with respect to the common stock, and the
anti-manipulation rules under the Exchange Act may also apply to market sales
of the common stock. These provisions may affect the marketability of the
common stock and the ability of any person to engage in market-making
activities with respect to the common stock.
We may agree to indemnify underwriters, dealers, agents or other purchasers
against civil liabilities they may incur in connection with the offer and sale
of the common stock offered by this prospectus, including liabilities under the
Securities Act. We may also agree to contribute to payments that these persons
may be required to make with respect to these liabilities.
Firm Underwritten Equity Facility
We have engaged Ramius Securities, LLC, a registered broker-dealer wholly
owned by Ramius Capital Group, LLC, to underwrite a portion of this offering
through a firm-commitment underwritten equity facility (FUEL(TM)) arrangement.
Under the terms of an underwriting agreement, Ramius Securities, the
underwriter, is obligated to sell, on a best-efforts basis and at our election
from time to time, up to $30 million of our common stock during one or more
10-trading-day selling periods. We may select the starting date of any selling
period and the dollar amount of shares to be sold in that period, subject to a
limitation based on the daily trading volumes of Onyx common stock on the
Nasdaq National Market. The underwriter will sell our common stock at market
prices prevailing at the time of sale, but not below a floor price set by us
for each selling period. For each trading day during a selling period, we will
pay to the underwriter an underwriting commission equal to the difference, if
any, between (a) the gross proceeds from the sales of our common stock on that
day and (b) the aggregate number of shares sold on that day multiplied by a
dollar amount equal to 96.5% of the day's volume-weighted average price per
share of our common stock on the Nasdaq National Market. The underwriter may
also sell during each selling period up to an additional 10% of the amount of
common stock we specify for that selling period. In addition, we have granted
the underwriter a purchase option, exercisable at any time before January 4,
2003 and notwithstanding any termination of the underwriting agreement, to
purchase up to $300,000 of our common stock at a price of $12.4875 per share.
The underwriting agreement will terminate in two years but may be canceled by
us at any time.
7
<PAGE>
Under the terms of a related stand-by purchase agreement with Ramius Capital
Group, LLC, if the underwriter does not sell the requisite number of shares
during a given selling period pursuant to the underwriting agreement, Ramius
Capital Group is obligated to purchase from us the remaining number of shares
so long as specified share price and volume limitations are met. In that event,
the purchase price for the shares will be 96.5% of the volume-weighted average
price per share of our common stock on the Nasdaq National Market on the
trading day immediately following that selling period.
Both the underwriter and Ramius Capital Group are prohibited by the terms of
the facility from engaging in any short-selling activities with respect to our
common stock. The facility does not preclude us from issuing shares in other
transactions (other than "at the market" transactions) should we find those
transactions to be advantageous. We will describe in more detail in the
applicable prospectus supplement the terms and conditions of the underwriting
agreement and stand-by purchase agreement.
Rule 415 under the Securities Act imposes limits on the dollar amount of
securities that may be registered under a single registration statement (or
amendments to the registration statement) for an "at-the-market" offering. The
registered amount may not exceed 10% of the aggregate market value of our
outstanding common stock held by nonaffiliates. The $30 million of our common
stock that we are registering for issuance and sale under the underwriting
agreement with Ramius Securities and, if applicable, the stand-by purchase
agreement with Ramius Capital Group, does not exceed this 10% limit.
8
<PAGE>
LEGALITY OF COMMON STOCK
Orrick, Herrington & Sutcliffe LLP, Seattle, Washington has provided us with
an opinion that the shares of common stock offered by this prospectus will be
duly authorized, validly issued, fully paid and nonassessable.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule included in our annual report on Form 10-K
for the year ended December 31, 1999, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedule are incorporated in reliance
on Ernst & Young LLP's report, given on their authority as experts in
accounting and auditing.
9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table lists the costs and expenses payable by the registrant in
connection with the issuance and sale of the common stock covered by this
registration statement. All amounts shown are estimates except the SEC
registration fee.
<TABLE>
<CAPTION>
Amount
To Be Paid
----------
<S> <C>
SEC registration fee.............................................. $ 26,400
Nasdaq fee........................................................ 35,000
Printing and engraving expenses................................... 200,000
Legal fees and expenses........................................... 200,000
Accounting fees and expenses...................................... 100,000
Transfer agent and registrar fees................................. 15,000
Miscellaneous expenses............................................ 23,600
--------
Total........................................................... $600,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers
Sections 23B.08.500 through 23B.08.600 of the Washington Business Corporation
Act authorize a court to award, or a corporation's board of directors to grant,
indemnification to directors and officers on terms sufficiently broad to permit
indemnification under certain circumstances for liabilities arising under the
Securities Act of 1933. Section 10 of the registrant's bylaws provides for
indemnification of the registrant's directors, officers, employees and agents
to the maximum extent permitted by Washington law. The directors and officers
of the registrant also may be indemnified against liability they incur for
serving in that capacity under a directors' and officers' liability insurance
policy maintained by the registrant.
Section 23B.08.320 of the WBCA authorizes a corporation to limit a director's
liability to the corporation or its shareholders for monetary damages for acts
or omissions as a director, except in certain circumstances involving
intentional misconduct, knowing violations of law, self-dealing or illegal
corporate loans or distributions, or any transaction from which the director
personally receives a benefit in money, property or services to which the
director is not legally entitled. Section 5.2 of the registrant's articles of
incorporation contains provisions implementing, to the fullest extent permitted
by Washington law, these limitations on a director's liability to the
registrant and its shareholders.
The registrant has entered into indemnification agreements with certain of
its officers and directors. The indemnification agreements provide the
registrant's officers and directors with indemnification to the fullest extent
permitted by applicable law.
II-1
<PAGE>
Item 16. Exhibits
<TABLE>
<CAPTION>
Number Description
------ -----------
<C> <S>
1.1 Common Stock Underwriting Agreement dated as of January 4, 2001,
between the registrant and Ramius Securities, LLC.*
1.2 Form of Underwriting Agreement(s).**
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP regarding the legality of
the shares being registered.***
10.1 Stand-By Purchase Agreement dated as of January 4, 2001, between the
registrant and Ramius Capital Group, LLC.*
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (contained in Exhibit
5.1).***
24.1 Power of Attorney (contained on signature page).***
</TABLE>
--------
* Incorporated by reference to the registrant's current report on Form 8-K
(File No. 0-25361), filed with the SEC on January 9, 2001.
** If the registrant enters into any other underwriting agreements, the
registrant will file the agreement(s) with the SEC in an amendment to this
registration statement or in a current report on Form 8-K, in accordance
with Item 601 of Regulation S-K.
*** Previously filed.
Item 17. Undertakings
A. The undersigned registrant hereby undertakes:
(1) 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
Securities Act of 1933;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement; and
(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)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment is
contained in periodic reports filed with or furnished to the Commission by
the registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment 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-2
<PAGE>
(3) 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.
B. 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 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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 or otherwise, the
registrant has been advised that in the opinion of the 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 these 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 a
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 this indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of the issue.
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 Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Seattle, state of Washington, on the
11th day of January, 2001.
Onyx Software Corporation
/s/ Brent R. Frei
By: _________________________________
Brent R. Frei
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities indicated below on the 11th day of January, 2001.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ Brent R. Frei President, Chief Executive Officer and
______________________________________ Chairman of the Board of Directors
Brent R. Frei (Principal Executive Officer)
/s/ Amy E. Kelleran Interim Chief Financial Officer and Assistant
______________________________________ Secretary (Principal Financial and
Amy E. Kelleran Accounting Officer)
H. Raymond Bingham* Director
______________________________________
H. Raymond Bingham
William B. Elmore* Director
______________________________________
William B. Elmore
Paul G. Koontz* Director
______________________________________
Paul G. Koontz
Lee D. Roberts* Director
______________________________________
Lee D. Roberts
Daniel R. Santell* Director
______________________________________
Daniel R. Santell
/s/ Brent R. Frei
*By: _________________________________
Brent R. Frei
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
ONYX SOFTWARE CORPORATION
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
1.1 Common Stock Underwriting Agreement dated as of January 4, 2001,
between the registrant and Ramius Securities, LLC.*
1.2 Form of Underwriting Agreement(s).**
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP regarding the legality
of the shares being registered.***
10.1 Stand-By Purchase Agreement dated as of January 4, 2001, between the
registrant and Ramius Capital Group, LLC.*
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP (contained in Exhibit
5.1).***
24.1 Power of Attorney (contained on signature page).***
</TABLE>
--------
* Incorporated by reference to the registrant's current report on Form 8-K
(File No. 0-25361), filed with the SEC on January 9, 2001.
** If the registrant enters into any other underwriting agreements, the
registrant will file the agreement(s) with the SEC in an amendment to this
registration statement or in a current report on Form 8-K, in accordance
with Item 601 of Regulation S-K.
*** Previously filed.
