SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
(AMENDMENT NO. 2)
ONYX PHARMACEUTICALS, INC.
(NAME OF ISSUER)
COMMON STOCK, PAR VALUE $0.001 PER SHARE
(TITLE OF CLASS OF SECURITIES)
683399 10 9
(CUSIP NUMBER)
Gregory L. Johnson
Senior Vice President and General Counsel
Warner-Lambert Company
201 Tabor Road
Morris Plains, New Jersey 07950
(973) 385-2000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
COPY TO:
Eileen Nugent
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036-6522
(212) 735-3000
February 25, 2000
(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d(f) or 13d-1(g), check
the following box ( ).
(Page 1 of 6 Pages)
CUSIP NO. 14067 10 0 13D PAGE 2 OF 6 PAGES
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WARNER-LAMBERT COMPANY (I.R.S. EMPLOYER IDENTIFICATION NUMBER
22-1598912)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) ( )
NOT APPLICABLE (b) ( )
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) ( )
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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NUMBER OF 7 SOLE VOTING POWER - 937,207 -
SHARES -------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER - 0 -
OWNED BY -------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER - 937,207 -
REPORTING -------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER - 0 -
- ------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 937,207 -
- ------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
( )
NOT APPLICABLE
- ------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
- 6.87% - (BASED ON 13,632,852 SHARES OF COMMON STOCK OUTSTANDING AS OF
JANUARY 31, 2000)
- ------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
CO
This Amendment No. 2 (this "Amendment") to the Statement on Schedule
13D filed by Warner-Lambert Company, a Delaware corporation ("Purchaser"),
on May 9, 1996 and first amended on July 1, 1997 (the "Schedule 13D"),
relates to the common stock, par value $.001 per share (the "Common
Stock"), of Onyx Pharmaceuticals, Inc., a Delaware corporation ("Issuer").
All capitalized terms used but not defined herein have the meanings
ascribed to them in the Schedule 13D.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 to the Schedule 13D is amended by adding the following:
In September, 1997, Warner's Puerto-Rico-based subsidiary entered
a civil settlement with the Department of Justice and pled guilty to
six counts of misreporting wastewater discharge data with regard to
the operation of the wastewater treatment plant at its Vega Baja,
Puerto Rico facility. The subsidiary paid a penalty of $670,000 as
part of the civil settlement and a fine of $3 million pursuant to the
guilty plea.
Set forth on Annex A to this Schedule 13D is a listing of the
directors and executive officers of Purchaser (collectively, the
"Covered Persons") and the present principal occupation or employment,
citizenship and the business address of each of the Covered Persons.
To the best of Purchaser's knowledge, none of the Covered Persons
has, during the past five years, (i) been convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or
(ii) been party to a civil proceeding of a judicial or administrative
body of competent jurisdiction as a result of which any of them is or
was subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to,
Federal or State securities laws or finding a violation with respect
to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Item 3 is hereby amended by adding the following:
Purchaser obtained the $5,000,000 used to purchase the shares of
Common Stock pursuant to Issuer's exercise of the First Put Right (as
defined in Item 4 below) and will obtain the funds needed to purchase
any additional shares of Common Stock, as described in Item 4, from
its working capital.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended by adding the following:
On October 13, 1999, Purchaser and Issuer entered into a
Collaboration Agreement (the "Collaboration Agreement") and a Stock
Put and Purchase Agreement (the "Purchase Agreement" and, together
with the Collaboration Agreement, the "Agreements").
The Collaboration Agreement provides that Issuer and Purchaser
will jointly research and attempt to develop and commercialize
Issuer's anticancer product, ONYX-015 and two armed anticancer viruses
(the "Licensed Products"). Issuer and Purchaser will co-promote the
Licensed Products in the U. S. and Canada, and will share equally in
resulting profits. Purchaser will commercialize the Licensed Products
in the rest of the world and will pay Issuer a royalty on net sales.
Purchaser has made an upfront payment to Issuer of $5 million and will
also provide the first $40 million in funding for the development of
ONYX-015. Thereafter, the development costs for ONYX-015 will be
shared 75% by Purchaser and 25% by Issuer. Purchaser will also provide
support for the research and development of the other Licensed
Products. The development costs for the other Licensed Products will
be shared 75% by Purchaser and 25% by Issuer. In addition to the
committed funding, over $100 million could be payable to Issuer on the
achievement of milestones for the Licensed Products.
The Purchase Agreement provides that, at any one time during the
year 2000 (the "First Put Right") and at any one time during the year
2001 (the "Second Put Right"), Issuer can cause Purchaser to purchase
the number of shares of Common Stock determined by dividing $5 million
by the average closing price of the Common Stock for the twenty
trading day period prior to the second business day before the day on
which Purchaser must purchase such shares. The Purchase Agreement
also provides that Purchaser will not purchase shares of Common Stock
other than the shares of Common Stock issuable upon exercise of the
First Put Right and the Second Put Right (the "Put Shares") prior to
May 14, 2003, except (i) with the consent of Issuer's board of
directors or (ii) if a third party makes an offer to acquire a
percentage of the shares of Common Stock outstanding that equals or
exceeds the percentage of voting power held by Purchaser. Purchaser is
entitled to have the Put Shares registered under the Securities Act of
1933 under limited circumstances.
On February 9, 2000, Issuer informed Purchaser that it was
exercising the First Put Right and on February 25, 2000, Purchaser
purchased 279,470 shares of Common Stock for $5 million, or $17.891
per share. Including this purchase, Purchaser owns 973,207 shares of
Common Stock. This amount represents 6.87% of the issued and
outstanding shares of Common Stock, based on 13,632,852 shares
outstanding as of January 31, 2000.
The Purchaser entered into the Agreements because it believed
that, by providing Issuer with an infusion of capital and research and
development support, it could increase the value of the Common Stock.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended and restated in its entirety as follows:
See Items 7-11 and Item 13 of the cover page hereto.
None of the Covered Persons directly owns any of the shares of
Common Stock reported on in this Schedule 13D. However, by reason of
their status as directors and/or executive officers of the Purchaser,
the Covered Persons may be deemed to be the beneficial owners of the
shares of the Common Stock owned directly or beneficially by
Purchaser. Purchaser has been advised that each of the Covered
Persons disclaims beneficial ownership of the shares of the Common
Stock from time to time owned directly or beneficially by Purchaser.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended and restated in its entirety as follows:
On October 13, 1999, Issuer and Purchaser entered into the
Agreements. See Item 4.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1 Press release, dated October 18, 1999, relating to the
Collaboration Agreement and the Stock Put and Purchase
Agreement by and between Onyx Pharmaceuticals, Inc. and
Warner-Lambert Company.
Exhibit 2 Stock Put and Purchase Agreement, dated October 13, 1999, by
and between Onyx Pharmaceuticals, Inc. and Warner-Lambert
Company
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
February 28, 2000
WARNER-LAMBERT COMPANY
By: /s/ Rae G. Paltiel
--------------------------
Rae G. Paltiel
Secretary
ANNEX A
DIRECTORS AND EXECUTIVE OFFICERS
OF WARNER-LAMBERT COMPANY
The name and principal occupation of each of the executive officers
and directors of Warner-Lambert Company are listed below. Except as set
forth below, (i) the principal business address of each of the directors
and executive officers of Warner-Lambert Company is 201 Tabor Road, Morris
Plains, New Jersey 07950 and (ii) the country of citizenship of each of
the directors and executive officers of Warner-Lambert Company is the
United States.
Name Principal Occupation Business Address / Citizenship
---- -------------------- ------------------------------
Robert N. Burt Chairman of the Board 200 East Randolph Drive
and Chief Executive Chicago, IL 60601
Officer of FMC
Corporation
Donald C. Clark Retired Chairman of One South Wacker Drive,
the Board and Chief Suite 1495,
Executive Officer of Chicago, IL 60606-4616
Household International,
Inc.
John A. Georges Retired Chairman of 200 Railroad Avenue
the Board and Chief Greenwich, Connecticut 06830
Executive Officer of
International Paper
Company
William H. Gray III President and Chief 8260 Willow Oaks
Executive Officer of Corporate Drive,
the United Negro P.O. Box 10444,
College Fund Fairfax, VA 22031
William R. Howell Chairman Emeritus of 6501 Legacy Drive
J.C. Penney Company, Inc. Plano, Texas 75024-3698
Lasalle D. Leffall, Charles R. Drew Professor Department of Surgery,
Jr., M.D. of Surgery, Howard Howard University Hospital,
University College of 2041 Georgia Avenue, NW
Medicine; Professorial Washington, DC 20060
Lecturer in Surgery,
Georgetown University
George A. Lorch Chairman of the Board 2500 Columbia Avenue
and Chief Executive Lancaster, PA 17603
Officer of Armstrong
World Industries, Inc.
Alex J. Mandl Chairman of the Board Fairfax Square,
and Chief Executive 8065 Leesburg Pike,
Officer of Teligent, Inc. 4th Floor,
Vienna, VA 22182
Michael I. Sovern Chairman of the Board 435 West 116th, Box B20
of Sotheby's Holdings, (Rm 6E3), New York, NY 10027
Inc; President Emeritus
and Chancellor Kent
Professor of Law,
Columbia University;
President of the
Shubert Foundation.
Lodewijk J. R. Chairman of the Board,
de Vink President and Chief
Executive Officer
Ernest J. Larini Chief Financial Officer
and Executive Vice
President, Administration
of Warner-Lambert Company
Anthony H. Wild, Executive Vice President Citizen of United Kingdom
Ph.D. of Warner-Lambert Company
Raymond M. Fino Senior Vice President,
Human Resources of
Warner-Lambert Company
Philip M. Gross Senior Vice President,
Strategic Management
Processes of Warner-
Lambert Company
Gregory L. Johnson Senior Vice President
and General Counsel of
Warner-Lambert Company
Richard W. Keelty Senior Vice President,
Public Affairs of
Warner-Lambert Company
J. Frank Lazo Senior Vice President Citizen of Peru
of Warner-Lambert Company
S. Morgan Morton Senior Vice President of
Warner-Lambert Company
Peter B. Corr, Vice President Warner-
Ph.D. Lambert Company
John S. Craig Vice President of Warner-
Lambert Company
Joseph E. Lynch Vice President and
Controller of Warner-
Lambert Company
Harold F. Oberkfell Vice President of Warner-
Lambert Company
Maurice A. Renshaw Vice President of Warner- Citizen of Australia
Lambert Company
Barbara S. Thomas Vice President of Warner-
Lambert Company
John F. Walsh Vice President of Warner-
Lambert Company
Rae G. Paltiel Secretary of Warner-
Lambert Company
Exhibit 1
ONYX AND WARNER-LAMBERT TO JOINTLY DEVELOP ANTICANCER VIRUS PRODUCTS
RICHMOND, CALIFORNIA (October 18, 1999): Onyx Pharmaceuticals, Inc.
(Nasdaq: ONXX) today announced the signing of a collaboration
agreement with Warner-Lambert Company (NYSE: WLA) to jointly develop
and commercialize Onyx's Phase III anticancer product, ONYX-015, plus
two new armed anticancer viruses. Onyx and Warner-Lambert will
co-promote ONYX-015 and the two new products in the U. S. and Canada,
and will share equally in resulting profits. Warner-Lambert will
commercialize the products in the rest of the world and will pay Onyx
a royalty on net sales.
Warner-Lambert will make an upfront payment and equity investment in
Onyx over the next two years totaling $15 million and will also
provide $40 million in funding for the Phase III clinical trials and
other ongoing clinical development studies for ONYX-015. In addition,
Warner-Lambert will provide support for the research and development
of two new additional products. In addition to the committed funding,
over $100 million could be payable to Onyx on the achievement of
milestones for the products. The clinical development costs of the
products will be shared 75% by Warner-Lambert and 25% by Onyx, after
Warner-Lambert has provided the committed funding for ONYX-015.
"The ability to share ONYX-015 and the two new additional products in
the U.S. and Canada, plus this financial support gives us the
opportunity to become a fully integrated specialty oncology company,"
said Hollings Renton, president and chief executive officer of Onyx
Pharmaceuticals. "We have enjoyed an exceptional working relationship
with Warner-Lambert and are delighted to partner with them to realize
the broad potential of our therapeutic virus platform for the
treatment of cancer."
"Onyx's therapeutic virus platform is a highly novel approach to the
selective treatment of cancer and certain precancerous conditions,
"said Dr. Peter B. Corr, President of Research and Development,
Parke-Davis, a division of Warner-Lambert. "ONYX-015 has shown very
promising activity in Phase II clinical trials, and we look forward to
working with Onyx to complete the development and commercialization of
this unique approach. In addition, the ability to genetically arm
these replicating viruses to deliver anticancer agents directly to
tumors offers intriguing possibilities for creating potentially more
effective and safer anticancer agents. This will be the focus of the
two additional projects included in this agreement."
Anticancer Virus Product Platform
ONYX-015 is a genetically modified adenovirus that has been shown in
preclinical and clinical studies to replicate in and kill tumor cells
deficient in p53 tumor suppressor gene activity. Mutations in p53 are
the most common type of genetic abnormality in cancer, occurring in
more than 50 percent of human cancer cases. Onyx and Warner-Lambert
are preparing to initiate a pivotal Phase III clinical trial of
ONYX-015 in the fourth quarter of 1999 or early in 2000 that combines
the virus with chemotherapy as a treatment for patients with recurrent
head and neck cancer. ONYX-015 is also in Phase II clinical trials for
patients with colorectal cancer that has metastasized to the liver and
for patients with pancreatic cancer.
Onyx believes that ONYX-015, the first of a platform of selectively
replicating adenovirus products, can be armed with anticancer genes to
generate enhanced cancer-killing properties. The agreement with
Warner-Lambert includes two such armed anticancer viruses. One of
these will be genetically engineered to deliver a prodrug-converting
enzyme to tumor cells, thus enabling the selective activation of a
chemotherapeutic drug within targeted tumors. Onyx and Warner-Lambert
will work together to further specify these armed viruses and perform
preclinical development. The armed virus products provided for in the
agreement are currently in the research stage, and the timing of
clinical trials will depend on the results of research and preclinical
development activities. Onyx Pharmaceuticals is discovering,
developing and commercializing novel cancer therapies based on the
genetic mutations that cause the disease. The company pursues a
strategy of establishing corporate partnerships that provide
complementary skills in chemistry, drug development, and marketing and
sales. Onyx intends to establish a specialty oncology sales and
marketing franchise in North America. The Onyx Web site address is:
www.onyx-pharm.com This press release contains certain forward-looking
statements regarding the development of potential human therapeutic
products that involve a number of risks and uncertainties. Actual
events may differ from the company's expectations. In addition to the
matters described in this press release, the timeline for clinical
activity, results of pending or future clinical trials, including the
trials of ONYX-015, and changes in the status of the company's
collaborative relationships, as well as the risk factors listed from
time to time in the company's periodic reports with the Securities and
Exchange Commission, including but not limited to its Annual Report on
Form 10-K, may affect the actual results achieved by the company.
Exhibit 2
ONYX PHARMACEUTICALS, INC.
AND
WARNER-LAMBERT COMPANY
STOCK PUT AND PURCHASE AGREEMENT
OCTOBER 13, 1999
ONYX PHARMACEUTICALS, INC.
AND
WARNER-LAMBERT COMPANY
STOCK PUT AND PURCHASE AGREEMENT
THIS STOCK PUT AND PURCHASE AGREEMENT (the "Agreement") is made and
entered into on October 13, 1999, to be effective as of September 1, 1999,
by and between ONYX PHARMACEUTICALS, INC., a Delaware Corporation with its
principal office at 3031 Research Drive, Richmond, California 94806 (the
"Company"), and WARNER-LAMBERT COMPANY, a Delaware Corporation with its
principal office at 201 Tabor Road, Morris Plains, New Jersey 07950 (the
"Purchaser").
RECITALS
WHEREAS, the Company and Purchaser have entered into that certain
Collaboration Agreement of even date herewith (the "Collaboration
Agreement"); and
WHEREAS, in connection with the Collaboration Agreement, the Purchaser
desires to grant to the Company and the Company desires to receive from the
Purchaser certain options to cause the Purchaser to purchase shares of
common stock of the Company, on the terms and subject to the conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and agreements contained herein, the parties hereto,
intending to be legally bound, do hereby agree as follows:
1. Put Rights of The Company.
1.1 FIRST AND SECOND PUT RIGHTS. At any time during the
calendar year 2000, subject to the terms of this Agreement, the Company
shall have the option ("First Put Right") to sell to the Purchaser, and
cause the Purchaser to purchase, no less than all the First Put Shares (as
hereinafter defined). At any time during the calendar year 2001, subject
to the terms of this Agreement, the Company shall have the option ("Second
Put Right") to sell to the Purchaser, and cause the Purchaser to purchase,
no less than all the Second Put Shares (as hereinafter defined). The First
Put Right and Second Put Right may each be referred herein individually as
a "Put Right", or collectively as the "Put Rights."
1.2 PUT NOTIFICATION DATE; PUT DATE. The Company shall provide
written notice to the Purchaser of its election to exercise a Put Right,
which notice shall specify: (a) the date of notice of exercise of the Put
Right (the "Put Notification Date"); and (b) the date on which the
Purchaser shall purchase the Put Shares (as defined below) from the Company
(the "Put Date"). The Put Date in each case shall be the tenth business
day after the Purchaser receives such notice, subject to Section 5.2 and
5.3.
1.3 FIRST PUT SHARES. The "First Put Shares" shall be defined
as that number of shares of common stock of the Company as determined by
dividing five million dollars ($5,000,000) by the Put Price Per Share
applicable to the exercise of the First Put Right, with any fractional
share being rounded up to the next whole number.
1.4 SECOND PUT SHARES. The "Second Put Shares" shall be defined
as that number of shares of common stock of the Company as determined by
dividing five million dollars ($5,000,000) by the Put Price Per Share
applicable to the exercise of the Second Put Right, with any fractional
share being rounded up to the next whole number.
1.5 PUT PRICE PER SHARE. The "Put Price Per Share", with
respect to exercise of a particular Put Right, shall be defined as the
arithmetic average of the closing sales prices of the common stock of the
Company, as reported by the NASDAQ, for the twenty (20) trading days
immediately prior to (but not including) the second business day before the
Put Date applicable to such exercise of such Put Right in which such shares
of common stock are traded. If there are any days in which NASDAQ is open
but the common stock of the Company does not trade, such days shall be
omitted from the calculation and additional days shall be added to the time
period as necessary to establish a 20-trading day average price.
1.6 SALE OF THE PUT SHARES. Subject to the terms and conditions
hereof, upon exercise by the Company of the First Put Right, the Company
hereby agrees to issue and sell to the Purchaser, and the Purchaser hereby
agrees to purchase from the Company, the First Put Shares for an aggregate
purchase price of five million dollars ($5,000,000). Subject to the terms
and conditions hereof, upon exercise by the Company of the Second Put
Right, the Company hereby agrees to issue and sell to the Purchaser, and
the Purchaser hereby agrees to purchase from the Company, the Second Put
Shares for an aggregate purchase price of five million dollars
($5,000,000).
2. Closing Date; Delivery.
2.1 FIRST CLOSING; FIRST CLOSING DATE. The closing of the sale
and purchase of the First Put Shares under this Agreement (the "First
Closing") shall be held at 9:00 a.m. (Pacific Time) on the first Put Date,
at the offices of Cooley Godward LLP, Five Palo Alto Square, 3000 El Camino
Real, Palo Alto, California, or at such other time and place as is provided
for in Section 5.2 or otherwise as the Company and the Purchaser may agree
(the "First Closing Date").
2.2 SECOND CLOSING; SECOND CLOSING DATE. The closing of the
sale and purchase of the Second Put Shares under this Agreement (the
"Second Closing") shall be at 9:00 a.m. (Pacific Time) on the second Put
Date, at the offices of Cooley Godward LLP, Five Palo Alto Square, 3000 El
Camino Real, Palo Alto, California, or at such other time and place as is
provided for in Section 5.2 or otherwise as the Company and the Purchaser
may agree (the "Second Closing Date").
2.3 DELIVERY. At the First Closing and the Second Closing,
subject to the terms and conditions hereof, the Company will deliver to the
Purchaser a stock certificate, issued in the name of the Purchaser and
bearing the legends referred to in Section 4.3, representing, respectively,
the First Put Shares and the Second Put Shares, dated as of the First
Closing and the Second Closing, respectively, against payment of the
purchase price therefor by wire transfer, unless other means of payment
shall have been agreed upon by the Purchaser and the Company.
3. Representations And Warranties Of The Company. The Company
hereby represents and warrants to the Purchaser as follows:
3.1 AUTHORIZATION. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement has been taken,
and, with respect to the performance of the Company's obligations
hereunder, will have been taken at the time of the applicable Closing. The
Company has the requisite corporate power to enter into this Agreement and
carry out and perform its obligations under the terms of this Agreement,
and this Agreement constitutes a legally binding, valid obligation of the
Company, enforceable in accordance with its terms. At the First Closing
and the Second Closing, the Company will have the requisite corporate power
to sell the shares of common stock to be sold at each such closing.
3.2 NO CONFLICT WITH OTHER INSTRUMENTS. The execution, delivery
and performance of this Agreement will not result in any violation of, or
be in conflict with, the Certificate of Incorporation or the Bylaws of the
Company or any provision of any judgment, decree or order to which the
Company is a party or by which it is bound, or any material statute, rule
or governmental regulation applicable to the Company, and will not
constitute a material default of any material contract, obligation or
commitment to which the Company is a party or by which it is bound.
3.3 LITIGATION. There is no bona fide action, proceeding or
investigation pending or, to the knowledge of the Company, overtly
threatened, brought or threatened by a third party unrelated to the
Purchaser, that is not initiated, encouraged or supported by the Purchaser
and that seeks to prohibit the consummation of the transactions
contemplated by this Agreement, nor has any such third party asserted in a
writing delivered to the Company that a basis for such an action,
proceeding or investigation exists.
3.4 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Company
is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate
power and authority to carry on its business as now conducted and as
proposed to be conducted. The Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the failure
so to qualify would have a material adverse effect on its business or
properties.
3.5 VALID ISSUANCE OF SHARES. The First Put Shares and the
Second Put Shares which will be purchased by Purchaser hereunder, when
issued, sold and delivered in accordance with the terms hereof for the
consideration expressed herein, will be duly and validly authorized and
issued, fully paid and nonassessable and, based in part upon the
representations of Purchaser in this Agreement, will be issued in
compliance with all applicable federal and state securities laws.
3.6 GOVERNMENTAL CONSENTS. No consent, approval, order or
authorization of, or registration, qualification, designation, declaration
or filing with, any federal, state, local or provincial governmental
authority on the part of the Company is required in connection with the
consummation of the transactions contemplated by this Agreement, except for
notices required or permitted to be filed with certain state and federal
securities commissions, which notices will be filed on a timely basis, and
otherwise as provided in Section 5.1.
3.7 SHARES AVAILABLE. The Company shall have available at the
First Closing Date and the Second Closing Date, sufficient authorized but
unissued shares of its Common Stock to issue and sell to the Purchaser all
of the Put Shares.
3.8 FULL DISCLOSURE. The representations and warranties of the
Company contained in this Agreement do not contain any untrue statement of
a material fact or omit any material fact necessary to make the statements
contained herein in view of the circumstances under which they are made not
misleading.
3.9 BROKERS AND FINDERS. The Company has not retained any
investment banker, broker or finder in connection with the transaction
contemplated by this Agreement.
4. Representations And Warranties of The Purchaser.
The Purchaser hereby represents and warrants to the Company as
follows:
4.1 LEGAL POWER. The Purchaser has the requisite corporate
power to enter into this Agreement, to carry out and perform its
obligations under the terms of this Agreement and, at the First Closing and
the Second Closing, will have the requisite corporate power to purchase,
respectively, the First Put Shares and the Second Put Shares to be
purchased at each such Closing.
4.2 DUE EXECUTION. This Agreement has been duly authorized,
executed and delivered by the Purchaser, and, upon due execution and
delivery by the Company, this Agreement will be a valid and binding
agreement of the Purchaser, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally or by equitable principles.
4.3 INVESTMENT REPRESENTATIONS.
(a) Purchaser is acquiring the First Put Shares and the Second
Put Shares for its own account, not as nominee or agent, for investment and
not with a view to, or for resale in connection with, any distribution or
public offering thereof within the meaning of the Securities Act of 1933,
as amended (the "Securities Act").
(b) Purchaser understands that:
(i) the First Put Shares and the Second Put Shares have not
been registered under the Securities Act by reason of a specific exemption
therefrom, that such securities must be held by it indefinitely, absent
such exemption, and that Purchaser must, therefore, bear the economic risk
of such investment indefinitely, unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from such registration;
(ii) each certificate representing the First Put Shares and
the Second Put Shares will be endorsed with the following legends:
(A) THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES ARE SUBJECT
TO RESTRICTIONS ON TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PERMITTED UNDER THE ACT AND THE APPLICABLE STATE
SECURITIES LAWS, PURSUANT TO REGISTRATION OR EXEMPTION THEREFROM. THE
ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN FORM AND
SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY PROPOSED
TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND ANY APPLICABLE STATE
SECURITIES LAWS; and
(B) Any legend required to be placed thereon by the
applicable state securities laws; and
(iii) the Company will instruct any transfer agent not
to register the transfer of either the First Put Shares (or any portion
thereof) or the Second Put Shares (or any portion thereof) unless the
conditions specified in the foregoing legends are satisfied, until such
time as a transfer is made, pursuant to the terms of this Agreement, and in
compliance with Rule 144 of the General Rules and Regulations prescribed by
the Securities and Exchange Commission pursuant to the Act ("Rule 144") or
pursuant to a registration statement or, if the opinion of counsel referred
to above is to the further effect that such legend is not required in order
to establish compliance with any provisions of the Act or this Agreement.
(c) The Purchaser has been furnished with such materials and has
been given access to such information relating to the Company as its
qualified representative has requested, and the Purchaser has been afforded
the opportunity to ask questions regarding the Company, the First Put
Shares and the Second Put Shares, all as it has found necessary to make an
informed investment decision.
(d) The Purchaser is an "accredited investor" as such term is
defined in Rule 501 of the General Rules and Regulations prescribed by the
Securities and Exchange Commission pursuant to the Act, and the Purchaser
was not formed for the specific purpose of acquiring the First Put Shares
or the Second Put Shares.
4.4 STANDSTILL COVENANT. Purchaser agrees that, during the
period commencing on the date hereof and ending on May 14, 2003, neither
Purchaser nor any of its affiliates shall acquire any additional shares of
capital stock or other securities of the Company other than as provided in
Article 1 and this Section 4.4 of this Agreement without the prior written
consent of the Board of Directors of the Company (the "Board") in the
Board's discretion but subject to the Board's fiduciary duties, provided
that in the event that any person, entity or group shall acquire or make a
bona fide offer to acquire, in one or more transactions by tender or
otherwise, shares of the Company equal to or exceeding the percentage of
the fully diluted voting power then held by the Purchaser, then the
Purchaser shall be allowed to acquire additional shares of the Company free
of the aforesaid restrictions in response to such acquisition or offer but
only for so long as such offer shall remain outstanding. Nothing in this
Section 4.4 shall prohibit the acquisition or disposition of shares for
investment purposes only in the open market in the ordinary course by any
pension fund or trust for the benefit of employees of the Purchaser or its
affiliates.
5. Hart-Scott-Rodino Filings; Closing Conditions
5.1 HART-SCOTT-RODINO. Each notice of exercise of Put Right
delivered by the Company pursuant to Section 1.2 shall also include a
statement as to whether a filing will be required under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended, or any other
governmental body, in order to close the stock purchase contemplated by
such notice of exercise, and the basis for such conclusion. If such a
filing is required, each of the Company and the Purchaser shall use its
best efforts to promptly effect such filing and satisfy the requirements of
such act. The Company and the Purchaser shall share equally any filing
fees required to obtain such consent.
5.2 CLOSING DATE. If a Hart-Scott-Rodino filing is required,
the closing shall occur on a date specified by the Company by notice to the
Purchaser provided after the expiration of any applicable waiting period or
other satisfaction of the Hart-Scott-Rodino requirements, which date shall
be not less than five business days after such expiration or other
satisfaction.
5.3 CONDITIONS TO CLOSING. The closing of any purchaser and
sale of common stock under this Agreement shall be subject to the
satisfaction of the following conditions. Each of paragraphs (a) through
(e), (g) and (h) shall be a condition to the obligations of Purchaser at
each of the first and the second Put Dates, and each of paragraphs (b),
(c), (d), (f) and (h) shall be a condition to the obligations of the
Company at each of the first and the second Put Dates. Each of the
Purchaser and the Company may waive any condition applicable to its
obligations hereunder. In the event that one or more conditions in this
Section 5.3 are not satisfied or waived as of the applicable Put Date, then
the applicable Put Date and Closing shall be delayed until such time as all
conditions under this Section 5.3 are satisfied or waived (and in which
case the Put Price Per Share shall be calculated as if the Put Date were
the tenth business day after the Purchaser receives such original notice of
the put pursuant to Section 1.2), unless, with respect to unsatisfied and
unwaived conditions to the obligations of the Purchaser, the Company
otherwise informs Purchaser in writing.
(a) COMPANY'S REPRESENTATIONS AND WARRANTIES; COLLABORATION
AGREEMENT. The representations and warranties of the Company contained in
Article 3 shall be true on and as of the Put Date with the same effect as
if made on and as of the Put Date, and the Company shall not be in material
breach under that certain Collaboration Agreement between the parties of
even date herewith and such Collaboration Agreement shall not have been
terminated in its entirety by Purchaser pursuant to the terms thereof.
(b) BLUE SKY COMPLIANCE. The Company shall have complied with
and be effective under all state securities or Blue Sky laws applicable to
the offer and sale of the Put Shares then being sold.
(c) HART-SCOTT-RODINO. Any requirements of the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended, shall have been
satisfied.
(d) COURT ORDERS. There shall not be in effect any injunction
or restraining order issued by any court of competent jurisdiction in any
action or proceeding against the consummation of the sale and purchase of
the Put Shares.
(e) PROCEEDINGS SATISFACTORY; COMPLIANCE CERTIFICATE. All
corporate and legal proceedings taken by the Company in connection with the
sale and issuance of the Put Shares and all documents and papers relating
to such transaction shall be satisfactory to the Purchaser and its counsel,
in the reasonable judgment of the Purchaser and its counsel, and the
Purchaser shall have received all such counterpart original and certified
or other copies of such documents as it may reasonably request. The
Company shall have delivered to the Purchaser a certificate, dated as of
the closing date, signed by the Company's President, certifying that the
conditions set forth in Section 5.3(a) through (e), (g) and (h) have been
satisfied.
(f) PURCHASER'S REPRESENTATIONS AND WARRANTIES; PERFORMANCE.
The representations and warranties of the Purchaser contained in Article 4
shall be true on and as of the applicable Put Date with the same effect as
through said representations and warranties had been made on and as of such
Put Date. The Company shall have performed or fulfilled in all material
respects, all conditions contained in this Section 5.3 and all agreements
and obligations contained in this Agreement required to be performed or
fulfilled by the Company before each of the First Closing and Second
Closing, as the case may be.
(g) OPINION OF COUNSEL. Purchaser shall have received an
opinion of Cooley Godward llp, counsel to the Company, dated the applicable
Put Date, in substantially the form of Exhibit A attached hereto.
(h) THIRD PARTY CONSENTS AND APPROVALS. The Company shall have
obtained all necessary third party consents and approvals necessary for the
consummation of the transactions contemplated hereby.
6. Registration Rights.
6.1 REGISTRATION. The terms "Register", "Registered" and
"Registration" refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act of 1933, as
amended, or any similar federal statutes, and the rules and regulations of
the Commission thereunder ("Registration Statement"), and the declaration
or ordering of the effectiveness of such Registration Statement.
6.2 SUBORDINATION. In accordance with Article 12 of the Amended
and Restated Information and Registration Rights Agreement dated as of May
14, 1994, as amended, by and among the Company and certain investors of the
Company described therein, the Registration rights of Purchaser under this
Article 6 shall be subordinate to the Registration rights granted to the
Holders (as defined in the Rights Agreement) pursuant the Rights Agreement.
6.3 NOTICE OF REGISTRATION AND INCLUSION OF SHARES. Subject to
the terms of this Agreement, in the event the Company decides to Register
any of its Common Stock (either for its own account or the account of a
security holder or holders exercising their respective demand Registration
rights) on a form that would be suitable for a Registration involving
solely the Put Shares, the Company will (i) promptly give the Purchaser
written notice thereof (which shall include a list of the jurisdictions in
which the Company intends to attempt to qualify such securities under the
applicable Blue Sky or other state securities laws) and (ii) include in
such Registration (and any related qualification under Blue Sky laws or
other compliance), and in any underwriting involved therein (subject to
Section 6.4), all the Put Shares that the Purchaser has purchased pursuant
to this Agreement and any Common Stock issued pursuant to stock splits,
stock dividends and similar distributions with respect to the Put Shares
(collectively the "Warner Registrable Shares") specified in a written
request delivered to the Company by the Purchaser within twenty (20) days
after delivery of such written notice from the Company.
6.4 UNDERWRITING IN REGISTRATION.
(a) NOTICE OF UNDERWRITING IN REGISTRATION. If the Registration
of which the Company gives notice under Section 6.3 is for a Registered
public offering involving an underwriting, the Company shall so advise the
Purchaser as a part of the written notice given pursuant to Section 6.3.
In such event, and notwithstanding Section 6.3, the right of the Purchaser
to Registration shall be conditioned upon such underwriting and the
inclusion of the Warner Registrable Shares in such underwriting to the
extent provided in this Section 6.4. If Purchaser proposes to distribute
the Warner Registrable Shares through such underwriting, it shall (together
with the Company and any other holders distributing their securities
through such underwriting) enter into an underwriting agreement with the
representative of the underwriter or underwriters selected for such
underwriting for such offering ("Underwriter's Representative"). The
Purchaser shall have no right to participate in the selection of the
underwriters for an offering pursuant to this Article 6.
(b) MARKETING LIMITATION IN REGISTRATION. In the event the
Underwriter's Representative advises the Purchaser in writing that market
factors (including, without limitation, the aggregate number of shares of
Common Stock requested to be Registered, the general condition of the
market, and the status of the persons proposing to sell securities pursuant
to the Registration) require a limitation of the number of shares to be
underwritten, the Underwriter's Representative may exclude some or all
Warner Registrable Shares from such Registration and underwriting. In such
event, the Underwriter's Representative shall so advise the Purchaser and
all holders of securities requested and otherwise entitled to be included
in such Registration, and the number of shares that may be included in the
underwriting shall be allocated, (i) in the event there are no other
securities which would have priority over the Warner Registrable Shares in
such allocation, first, to the Company; and second, to the Purchaser and
any other shareholders of the Company's securities then having registration
rights with respect to the Company's securities on a pro rata basis based
on the total number of Warner Registrable Shares held by the Purchaser and
the total number of registrable shares held by such other shareholders, or
(ii) in the event there are other securities that would have priority over
the Warner Registrable Shares in such allocation, first, to the Company and
the holders of such other shares; and second, to the Purchaser and any
other shareholders of the Company's securities then having registration
rights with respect to the Company's securities on a pro rata basis based
on the total number of Warner Registrable Shares held by the Purchaser and
the total number of registrable shares held by such other shareholders.
(c) WITHDRAWAL IN REGISTRATION. If the Purchaser or a holder of
other securities entitled (upon request ) to be included in such
Registration, disapproves of the terms of any such underwriting, the
Purchaser or such holder may elect to withdraw therefrom by written notice
to the Company and the Underwriter's Representative delivered at least
seven (7) days prior to the effective date of the Registration Statement.
Any Warner Registrable Shares or other securities excluded or withdrawn
from such underwriting shall be withdrawn from such Registration.
6.5 BLUE SKY IN REGISTRATION. In the event of any Registration
of Warner Registrable Shares pursuant to Article 6, the Company will
exercise its best efforts to Register and qualify the securities covered by
the Registration Statement under such other securities or Blue Sky laws of
such jurisdictions as the Purchaser shall reasonably request and as shall
be reasonably appropriate for the distribution of such securities;
provided, however, that the Company shall not be required to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
6.6 TERMINATION OF REGISTRATION RIGHTS. All registration rights
granted under this Article 6 shall terminate and be of no further force and
effect five (5) years after the Effective Date. In addition, the
Purchaser's registration rights under this Article 6 shall expire if all
Warner Registrable Securities held by and issuable to the Purchaser may be
sold under Rule 144 during any ninety (90) day period.
7. Miscellaneous.
7.1 GOVERNING LAW. This Agreement shall be governed by and
interpreted under the laws of the State of New York.
7.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors, and
administrators of the parties hereto.
7.3 ENTIRE AGREEMENT. This Agreement, the Collaboration
Agreement and the other documents delivered pursuant hereto, constitutes
the full and entire understanding and agreement among the parties with
regard to the subjects hereof and no party shall be liable or bound to any
other party in any manner by any representations, warranties, covenants, or
agreements except as specifically set forth herein or therein. Nothing in
this Agreement, express or implied, is intended to confer upon any party,
other than the parties hereto and their respective successors and assigns,
any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided herein.
7.4 SEVERABILITY. In the event any provision of this Agreement
shall be invalid, illegal, or unenforceable, it shall to the extent
practicable, be modified so as to make it valid, legal and enforceable and
to retain as nearly as practicable the intent of the parties, and the
validity, legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
7.5 AMENDMENT AND WAIVER. Except as otherwise provided herein,
any term of this Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance,
either retroactively or prospectively, and either for a specified period of
time or indefinitely), with the written consent of the Company and the
Purchaser. Any amendment or waiver effected in accordance with this
Section shall be binding upon any holder of any securities purchased under
this Agreement (including securities into which such securities have been
converted), each future holder of all such securities, and the Company.
7.6 NOTICES. Subject to the final sentence of this Section 7.6,
all notices and other communications required or permitted hereunder shall
be in writing and shall be deemed effectively given and received (a) upon
personal delivery, (b) on the fifth day following mailing by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
Company and the Purchaser at their respective addresses first above
written, (c) upon transmission of telegram or facsimile (with telephonic
notice), or (d) upon confirmed delivery by overnight commercial courier
service. Any Put Notification shall be effective only upon receipt by
Purchaser (which may be by facsimile to a facsimile number specified in
writing by the Purchaser, with telephonic notice).
7.7 FEES AND EXPENSES. The Company and the Purchaser shall bear
their own expenses and legal fees incurred on their behalf with respect to
this Agreement and the transactions contemplated hereby.
7.8 TITLES AND SUBTITLES. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are
not to be considered in construing this Agreement.
7.9 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one instrument.
The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY" ONYX PHARMACEUTICALS, INC.
By: /s/ Hollings C. Renton
-------------------------------------
Name: Hollings C. Renton
Title: President and Chief Executive Officer
"PURCHASER" WARNER-LAMBERT COMPANY
By: /s/ Anthony Wild, Ph.D.
-------------------------------------
Name: Anthony Wild, Ph.D.
Title: Executive Vice President
