CUSIP No. 0006833991 Page 1 of 30 Pages
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. )
Onyx Pharmaceuticals, Inc.
_________________________________________________________________
(Name of Issuer)
Common Stock, $.001 par value
_________________________________________________________________
(Title of Class of Securities)
0006833991
_________________________________________________________________
(CUSIP Number)
Jeremy L. Curnock Cook John C. MacMurray, Esq.
Rothschild Asset Management Ltd. Reboul, MacMurray, Hewitt,
Five Arrows House Maynard & Kristol
St. Swithin's Lane 45 Rockefeller Plaza
London EC4N 8NR England New York, New York 10111
Tel. 011-171-280-5000 Tel. (212) 841-5700
_________________________________________________________________
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
January 12, 1998
_______________________________
(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(b)(3) or (4), check the following box [ ].
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CUSIP No. 0006833991 Page 2 of 30 Pages
_________________________________________________________________
1) Name of Reporting Person International
S.S. or I.R.S. Identification Biotechnology
No. of Above Person Trust plc
_________________________________________________________________
2) Check the Appropriate Box (a) [ ]
if a Member of a Group (b) [ ]
_________________________________________________________________
3) SEC Use Only
_________________________________________________________________
4) Source of Funds WC
_________________________________________________________________
5) Check if Disclosure of
Legal Proceedings is Not Applicable
Required Pursuant to
Items 2(d) or 2(e)
_________________________________________________________________
6) Citizenship or Place
of Organization United Kingdom
_________________________________________________________________
Number of 7) Sole Voting 1,122,807 shares of
Shares Beneficially Power Common Stock, $.001
Owned by par value ("Common
Reporting Person Stock")
________________________________________
8) Shared Voting
Power -0-
________________________________________
9) Sole Disposi- 1,122,807 shares of
tive Power Common Stock
________________________________________
10) Shared Dis-
positive Power -0-
________________________________________
11) Aggregate Amount Beneficially 1,122,807 shares of
Owned by Each Reporting Person Common Stock
_________________________________________________________________
12) Check if the Aggregate
Amount in Row (11)
Excludes Certain Shares
_________________________________________________________________
13) Percent of Class
Represented by 9.9%
Amount in Row (11)
_________________________________________________________________
14) Type of Reporting
Person CO
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CUSIP No. 0006833991 Page 3 of 30 Pages
Schedule 13D
____________
Item 1. Security and Issuer.
___________________
This statement relates to the Common Stock, $.001 par
value (the "Common Stock"), of Onyx Pharmaceuticals, Inc., a
Delaware corporation (the "Issuer"). The principal executive
offices of the Issuer are located at 3031 Research Drive,
Richmond, California 94806.
Item 2. Identity and Background.
_______________________
(a) The undersigned hereby files this Schedule 13D on
behalf of International Biotechnology Trust plc, a corporation
organized under the laws of the United Kingdom ("IBT" or the
"Reporting Person"). The name, business address and occupation
of each executive officer and director of IBT is set forth on
Schedule A hereto.
(b) The principal business of IBT is that of a
publicly-traded investment trust company.
(c) IBT's principal business address is Five Arrows
House, St. Swithin's Lane, London EC4N 8NR, England.
(d) Neither IBT nor any of the persons identified in
this Item 2 has, during the last five years, been convicted in a
criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) Neither IBT nor any of the persons identified in
this Item 2 has, during the last five years, been a party to a
civil proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding was or
is 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 any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
_________________________________________________
This statement relates to the purchase by IBT of
1,122,807 shares of Common Stock (the "Shares") from the Issuer
pursuant to a Stock Purchase Agreement made as of January 12,
1998 by and among the Issuer and each purchaser named therein,
including IBT (the "Purchase Agreement") (the "Private
Placement"). The Purchase Agreement is attached as Exhibit A
hereto, and any description thereof is qualified in its entirety
by reference thereto. The purchase price of the Shares was
$7.125 per share, or, in the aggregate, $7,999,999.98. The
source of such funds was IBT's working capital, or funds
available for investment.
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CUSIP No. 0006833991 Page 4 of 30 Pages
Item 4. Purpose of Transaction.
______________________
IBT purchased the Common Stock in the transactions
described in Item 3 above for investment purposes. In accordance
with the terms of the Purchase Agreement, at the February 1998
meeting of the Issuer's Board of Directors, the Issuer will use
its best efforts to cause an individual designated by IBT to be
elected to a seat on the Board of Directors of the Issuer.
Item 5. Interest in Securities of the Issuer.
____________________________________
(a) Based on a total of 11,257,526 shares of Common
Stock outstanding after the completion of the Private Placement,
IBT owns 1,122,807 shares of Common Stock, or approximately 9.9%
of the Common Stock outstanding.
(b) Except as described in Item 6 below, IBT has sole
power to vote or direct the voting of and to dispose or to direct
the disposition of the shares of Common Stock referred to in
paragraph (a) above.
(c) Except as described in this statement, neither IBT
nor any of the persons identified in Item 2 above has effected
any transaction in the Common Stock in the past 60 days.
(d) No other person has the power to direct the
receipt of dividends on, or the proceeds from sales of, the
shares of Common Stock owned by IBT.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings
or Relationships with Respect to
Securities of the Issuer.
_______________________________________
Pursuant to a contractual agreement, IBT has engaged
Rothschild Asset Management Limited ("RAM") to act as its
discretionary investment manager. Pursuant to such agreement RAM
manages the business and assets of IBT, which includes the
authority to make decisions regarding the acquisition or
disposition of portfolio securities by IBT and to exercise any
rights (including voting rights) with respect to such securities.
IBT has the right to terminate RAM's appointment as manager at
any time if RAM is not performing its duties as manager to the
satisfaction of the Board of Directors of IBT.
Pursuant to the Purchase Agreement, the following
agreements, among others, have been made with respect to the
securities of the Issuer:
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CUSIP No. 0006833991 Page 5 of 30 Pages
(i) Prior to April 13, 1998 IBT will not sell or
otherwise transfer (as defined in the Purchase Agreement) the
Shares, unless such transfer is pursuant to an effective
registration statement under the Securities Act of 1933, as
amended (the "Act"), or the exemption from registration provided
by Regulation S under the Act;
(ii) For five years IBT will not directly or indirectly
effect any acquisition of securities or assets of the Issuer,
tender or exchange offer, merger or other extraordinary
transaction involving the Issuer or any solicitation of proxies
or consents to vote any voting securities of the Issuer, except
that IBT may purchase additional securities of the Issuer in an
amount sufficient to allow it to own 14.9% of the outstanding
Common Stock, such restrictions being further described in the
Purchase Agreement; and
(iii) The Issuer will, within ninety days following the
closing date of the sale of the Shares, prepare and file with the
Securities and Exchange Commission a registration statement on
Form S-3 in order to register the Shares under the Act for
resale.
Item 7. Material to be Filed as Exhibits.
________________________________
Exhibit A -- Purchase Agreement (Appears at Page 8)
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CUSIP No. 0006833991 Page 6 of 30 Pages
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.
Dated: January 14, 1998
INTERNATIONAL BIOTECHNOLOGY
TRUST PLC
By:/s/ Jeremy L. Curnock Cook
__________________________
Director
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CUSIP No. 0006833991 Page 7 of 30 Pages
SCHEDULE A
__________
EXECUTIVE OFFICERS AND DIRECTORS OF IBT
The business address of each person listed below is c/o
Rothschild Asset Management Limited, Five Arrows House, St.
Swithin's Lane, London EC4N 8NR, England. The occupation of each
person listed below refers only to his relationship to IBT.
Name Occupation Citizenship
____ __________ ___________
John M. Green-Armytage Chairman U.K.
Donald Cecil Deputy U.S.
Chairman
Gary M. Brass Director U.K.
Jeremy L. Curnock Cook Director U.K.
Peter B. Collacott Director U.K.
Stephen A. Duzan Director U.S.
James D. Grant Director U.S.
Howard E. Greene Director U.S.
Dennis M.J. Turner Director U.K.
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CUSIP No. 0006833991 Page 8 of 30 Pages
EXHIBIT A
_________
ONYX PHARMACEUTICALS, INC.
STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 12th day
of January, 1998 (the "Effective Date"), by and among ONYX
PHARMACEUTICALS, INC., a Delaware corporation (the "Company"),
and each of those persons and entities, severally and not joint-
ly, set forth on the Schedule of Purchasers attached as EXHIBIT A
hereto (which persons and entities are hereinafter collectively
referred to herein as "Purchasers" and each individually as a
"Purchaser").
AGREEMENT
In consideration of the mutual covenants contained in
this Agreement and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the Company and each
Purchaser (severally and not jointly) hereby agree as follows:
SECTION 1. AUTHORIZATION OF SALE OF THE SECURITIES.
Subject to the terms and conditions of this Agreement, the
Company has or before the Closing (as defined below) will have
authorized the sale and issuance of up to 1,403,508 shares of the
Company's Common Stock, $0.001 par value (the "Shares").
SECTION 2. AGREEMENT TO SELL AND PURCHASE THE
SHARES.
2.1 SALE OF SHARES. At the Closing (as defined in
Section 3), the Company agrees to issue and sell to each
Purchaser, severally and not jointly, and each Purchaser agrees
to purchase from the Company, severally and not jointly, the
number of Shares set forth next to such Purchaser's name on the
Schedule of Purchasers attached hereto as EXHIBIT A (the
"Schedule of Purchasers") at a purchase price of $7.125 per share
(subject to proportionate adjustment upon the occurrence of any
stock split, stock dividend, reverse stock split or like event
that is consummated or becomes effective during the period
commencing on the date hereof and ending immediately prior to the
Closing).
SECTION 3. CLOSING AND DELIVERY
3.1 CLOSING. The closing of the purchase and sale of
the Shares to be issued pursuant to this Agreement (the
"Closing") shall be held at the offices of Cooley Godward LLP,
Five Palo Alto Square, 3000 El Camino Real, Palo Alto,
California, on January 12, 1998 or on such other date and place
as may be agreed to by the Company and the Purchasers.
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CUSIP No. 0006833991 Page 9 of 30 Pages
3.2 DELIVERY OF THE SHARES. Promptly following the
Closing, but in no event later than three days following the
Closing, the Company shall deliver to each Purchaser certificates
representing the number of shares to be purchased at the Closing
by each Purchaser registered in the name of such Purchaser, or in
such nominee name(s) as designated by such Purchaser against
payment of the purchase price therefore by wire transfer.
SECTION 4. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE COMPANY.
Subject to and except as set forth on the Schedule of
Exceptions which is arranged in Sections corresponding to the
sub-section numbered provisions contained below in this Section
and except as described in the SEC Reports, the Company hereby
represents and warrants to, and covenants with, the Purchasers as
follows:
4.1 ORGANIZATION 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 and all licenses, permits and
authorizations to conduct its business as it is currently being
conducted and as it is presently proposed to be conducted. The
Company is duly qualified and is authorized to transact business
and is in good standing as a foreign corporation in each juris-
diction in which the failure so to qualify would have a material
adverse effect on its business, assets, liabilities, operations,
financial condition or prospects.
4.2 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE
AGREEMENTS. The Company's execution, delivery and performance of
this Agreement have been duly authorized by all requisite
corporate and stockholder action by the Company and its
stockholders, respectively. Upon the execution and delivery by
the Company, and assuming the valid execution and delivery of
this Agreement by each of the Purchasers, this Agreement will
constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except
as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), including specific performance,
and except as the indemnification provisions contained in Section
9.3 hereof may be legally unenforceable.
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CUSIP No. 0006833991 Page 10 of 30 Pages
4.3 NO CONFLICTS. The Company's execution, delivery
and performance of this Agreement will not violate, conflict
with, result in a breach of or constitute (upon notice or lapse
of time or both) a default under, or result in the creation or
imposition of any lien, security interest, mortgage, pledge,
charge or other encumbrance, of any material nature, upon any
properties or assets of the Company under any (a) law,
regulation, rule, injunction, judgment, order, decree, ruling,
charge or other restriction of any government, governmental
agency, court or arbitrator to which the Company is subject, (b)
the Company's Amended and Restated Certificate of Incorporation
or Bylaws of the Company or (c) any provision of any material
indenture, mortgage, agreement, contract or other material
instrument to which the Company is a party or by which the
Company or any of its properties or assets is bound as of the
date hereof.
4.4 GOVERNMENTAL CONSENTS. No consent, approval,
qualification, order or authorization of, or filing with, any
local, state, or federal governmental authority is required on
the part of the Company in connection with the Company's valid
execution, delivery, or performance of this Agreement, or the
offer, sale or issuance of the Shares by the Company, other than
any post-closing filings as may be required under applicable
federal or state securities laws, which will be timely filed
within the applicable periods therefor.
4.5 ISSUANCE AND SALE OF THE SHARES. When issued and
paid for in accordance with this Agreement, the Shares to be sold
hereunder by the Company will be validly issued and outstanding,
fully paid and non-assessable.
4.6 SEC REPORTS.
(a) Since January 1, 1997, the Company has filed with
the Securities and Exchange Commission (the "SEC") all reports
("SEC Reports") required to be filed by it under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). All of
the SEC Reports filed by the Company comply in all material
respects with the requirements of the Exchange Act. None of the
SEC Reports contains, as of the respective dates thereof, any
untrue statement of a material fact or omits to state any materi-
al fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances
under which they were made. All financial statements contained
in the SEC Reports have been prepared in accordance with general-
ly accepted accounting principles consistently applied throughout
the period indicated ("GAAP"). Each balance sheet presents
fairly in accordance with GAAP the financial position of the
Company as of the date of such balance sheet, and each statement
of operations, of stockholders' equity and of cash flows presents
fairly in accordance with GAAP the results of operations, the
stockholders' equity and the cash flows of the Company for the
periods then ended.
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CUSIP No. 0006833991 Page 11 of 30 Pages
(b) The Company has delivered to the Purchasers the
following SEC Reports:
(i) the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1996 (without exhibits);
(ii) the Company's Quarterly Reports on Form 10-Q
as filed with the SEC for the quarters ended March 31, 1997, June
30, 1997 and September 30, 1997 (without exhibits);
(iii) the Company's Proxy Statement for the
1997 Annual Meeting of Stockholders.
(c) No event has occurred since January 1, 1997,
requiring the filing of an SEC Report that has not heretofore
been filed and furnished to the Purchasers (including, without
limitation, any amendment to any such SEC Report).
4.7 NO MATERIAL CHANGE. As of the date hereof, there
has been no material adverse change in the business, assets,
liabilities, financial condition, operations or prospects of the
Company since September 30, 1997, except that the Company
continues to incur losses as described in the SEC Reports.
4.8 CAPITALIZATION. The authorized capital stock of
the Company consists of (i) 25,000,000 shares of Common Stock,
$.001 par value, of which 9,854,018 such shares were issued and
outstanding as of January 9, 1998 and (ii) 5,000,000 shares of
preferred stock, $.001 par value, of which no shares are issued
and outstanding on the date hereof. As of the date hereof, the
Company has no intention to issue any shares of such Preferred
Stock. Except as contemplated by this Agreement, there are no
existing options, warrants, calls, preemptive (or similar)
rights, subscriptions or other rights, agreements, arrangements
or commitments of any character obligating the Company to issue,
transfer or sell, or cause to be issued, transferred or sold, any
shares of capital stock of the Company or other equity interests
in the Company or any securities convertible into or exchangeable
for such shares of capital stock or other equity interests, and
there are no outstanding contractual obligations of the Company
to repurchase, redeem or otherwise acquire, or prepare and file
with the SEC any registration statement to register under the
Securities Act of 1933, as amended (the "Securities Act") with
respect to, any such shares of capital stock or other equity
interests.
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CUSIP No. 0006833991 Page 12 of 30 Pages
4.9 NASDAQ NATIONAL MARKET. The Company's Common
Stock is listed on the Nasdaq National Market, and there are no
proceedings to revoke or suspend such listing.
4.10 ABSENCE OF LITIGATION. There is no action, suit,
proceeding or investigation pending or, to the Company's best
knowledge, that has been filed, commenced or threatened, by or
before any governmental agency, court or arbitrator against the
Company which might result either individually or in the aggre-
gate, in any material adverse change in the business, assets,
liabilities, financial condition, operations or prospects of the
Company (including, without limitation, any such action, suit,
proceeding or investigation that questions the validity of this
Agreement or the issuance of the Shares thereunder).
4.11 INTANGIBLE RIGHTS. To the Company's best
knowledge, the Company owns or has the right to use pursuant to
valid and enforceable licenses, sublicenses, agreements or
permissions, all Intangible Rights (as defined below) that are
necessary or desirable for the conduct of the business of the
Company as it is currently being conducted and as it is presently
proposed to be conducted, and no claims adverse to the interests
of the Company are pending or, to the best knowledge of the
Company, have been threatened or otherwise asserted with respect
to the Company's ownership or use of any such Intangible Rights.
To the Company's best knowledge, the Company is not infringing
any Intangible Right owned or used by any third party nor, to the
Company's best knowledge, is any third party infringing any
Intangible Right owned or used by the Company. For purposes of
this Agreement, the term "Intangible Rights" means (i) all
inventions (whether patentable or unpatentable, and whether or
not reduced to practice), all improvements thereto, and all
patents, patent applications, and patent disclosures, together
with all reissuances, continuations, continuations-in-part,
revisions, extensions, and reexaminations thereof, (ii) all
trademarks, service marks, trade dress, logos, trade names and
corporate names, together with all translations, adaptations,
derivations and combinations thereof and including all goodwill
associated therewith, and all applications, registrations and
renewals in connection therewith, (c) all copyrightable works,
all copyrights, all applications, registrations and renewals in
connection therewith, (iii) all trade secrets and confidential
business information (including, without limitation, ideas,
research and development, know-how, formulas, compositions,
manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, supplier lists, and
business and marketing plans and proposals), (iv) all computer
software (including, data and related documentation), (v) all
other proprietary rights and (vi) all copies and tangible
embodiments of any of the foregoing (in whatever form or medium).
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CUSIP No. 0006833991 Page 13 of 30 Pages
4.12 LEGAL COMPLIANCE. The Company has not violated
any applicable laws (including, without limitation, all rules,
regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings and charges thereunder) of federal, state, local
and foreign governments (and all agencies thereof) in respect of
the conduct of its business or the ownership of its properties
which violation would (either individually or in the aggregate)
materially and adversely affect the business, assets, liabili-
ties, financial condition, operations or prospects of the Compa-
ny.
4.13 CERTAIN AGREEMENTS. All of the collaborative
agreements, research and development agreements, licensing
agreements and other agreements with corporate partners and
governmental or educational entities that have been previously
disclosed by the Company in the SEC Reports referred to in
paragraph (b) of Section 4.5 hereof are valid and enforceable
obligations of the Company and, to the Company's best knowledge,
the other parties thereto. Except for breaches and defaults that
would not, singly or in the aggregate, have a material adverse
effect on the Company or its assets, liabilities, operations,
financial condition, business or prospects, the Company is not in
breach or default under any such contracts or agreements nor has
any event occurred which, with the giving of notice or the
passage of time or both, would constitute a breach or default on
the Company's part thereunder. To the Company's best knowledge,
none of the other parties to such contracts or agreements is in
breach or default thereunder nor has any event occurred which,
with the giving of notice or the passage of time or both, would
constitute a breach or default on such other parties' part.
4.14 REGULATIONS S. Assuming and relying in part on
the truth and accuracy of the representations and warranties of
IBT and Lombard Odier & Cie, the sale and issuance of the shares
to each of them will be made in accordance with Regulation S
promulgated under the Securities Act, as such Regulation may be
amended and in effect from time to time ("Regulation S").
Assuming and relying in part on the truth and accuracy of the
representations of NationsBanc Montgomery Securities LLC, neither
Company, any person affiliated with the Company nor any person
acting on behalf of the Company or any such affiliate has engaged
in any Directed Selling Efforts (as defined in Regulation S).
4.15 SECURITIES ACT EXEMPTION. Assuming and relying in
part on the truth and accuracy of Purchasers' representations and
warranties in Section 5 of this Agreement, the offer, sale and
issuance of the Common Stock is exempt from Registration under
the Securities Act.
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CUSIP No. 0006833991 Page 14 of 30 Pages
4.16 ELECTION OF IBT NOMINEE TO BOARD OF DIRECTORS.
At the February meeting of the Company's Board of Directors, the
Company shall take all steps as are necessary and appropriate and
otherwise use its best efforts to cause an individual designated
by International Biotechnology Trust plc ("IBT") (such individual
so initially designated by IBT, and each other individual from
time to time designated by IBT in the event any individual
theretofore designated is unable or unwilling to serve as a
member of the Board of Directors of the Company, being
hereinafter called the "IBT Nominee") to be duly and properly
elected to a seat on the Board of Directors of the Company.
Thereafter, until the Nomination Termination Date (as defined
below), at each annual or special meeting of the stockholders of
the Company, or in connection with any written consent solicited
from any or all of the stockholders of the Company, at or with
respect to which a vote is taken to elect a director to fill the
seat occupied by the IBT Nominee theretofore serving as a member
of the Board of Directors of the Company (whether upon the
expiration or such IBT Nominee's then current term as a member of
the Board of Directors of the Company or otherwise), the Company
shall nominate the IBT Nominee for election to the Board of
Directors of the Company.
Until the Nomination Termination Date, in the event
that individual at any time serving on the Board of Directors of
the Company as the IBT Nominee shall, for any reason, cease or be
unable so to serve, the Company shall take all steps as are
necessary or appropriate to cause the vacancy on the Board of
Directors of the Company thereby created to be filled promptly by
the election to the Board of Directors of the Company of another
IBT Nominee. The Company shall advance and bear any and all
costs and expenses incurred by the individual then serving on the
Board of Directors of the Company as the IBT Nominee in connec-
tion with his or her travel to and attendance at meetings of the
Board of Directors of the Company and any committees thereof on
which such individual shall serve, such arrangements to be made
in accordance with the Company's travel policy for all directors.
The individual serving on the Board of Directors as the IBT
Nominee shall also be entitled to the reimbursement of all other
costs and expenses associated with such individual's so serving
on terms and conditions no less favorable than those available to
other members of the Board of Directors of the Company. Further,
such individual shall be entitled to directors' insurance at the
Company's cost and expense and indemnification coverage by the
Company on terms and conditions no less favorable than those
available to other members of the Board of Directors of the
Company.
The IBT Nominee shall be an individual reasonably
acceptable to the Company, it being agreed that Nicole Vitullo is
an acceptable nominee. Without limiting the foregoing, without
the prior written consent of the Company, IBT shall not designate
any individual as the IBT Nominee if such individual is then an
officer, director, employee, consultant or
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CUSIP No. 0006833991 Page 15 of 30 Pages
stockholder (then holding more than 1% percent of any company's
issued and outstanding capital stock or other equity interests)
of any business that is a competitor of the Company.
For purposes of this Section 4.16, the term "Nomination
Termination Date" means the date on which IBT or any of its
affiliates ceases to own at least sixty-six and two-thirds
percent (66-2/3%) of the number of Shares purchased by IBT
hereunder at the Closing (subject to proportionate adjustment
upon any stock split, stock dividend, reverse stock split or like
event).
SECTION 5. REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE PURCHASER.
Each Purchaser, severally and not jointly, represents
and warrants to and covenants with the Company that:
5.1 AUTHORITY, APPROVAL AND ENFORCEABILITY.
(a) Purchaser has full power and authority to execute,
deliver and perform its obligations under this Agreement and all
agreements, instruments and documents contemplated hereby, and
all action of Purchaser necessary for such execution, delivery
and performance has been duly taken.
(b) Purchaser's execution, delivery and performance of
this Agreement have been duly authorized by all requisite action
by Purchaser, respectively. Upon the execution and delivery by
Purchaser, and assuming the valid execution and delivery of this
Agreement by each of the Purchaser and the Company, this Agree-
ment will constitute a valid and binding obligation of Purchaser,
enforceable in accordance with its terms, except as enforceabili-
ty may be limited by applicable bankruptcy, insolvency, reorgani-
zation, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceabili-
ty may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), including specific performance, and except to
the extent that the enforceability of the indemnification provi-
sions of Section 9.3 may be legally unenforceable.
5.2 INVESTMENT REPRESENTATIONS. Purchaser understands
that the Shares have not been registered under the Securities
Act. Purchaser also understands that the Shares are being
offered and sold pursuant to an exemption from registration
contained in the Securities Act based in part upon Purchaser's
representations contained in the Agreement. Purchaser hereby
represents and warrants as follows:
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CUSIP No. 0006833991 Page 16 of 30 Pages
(a) Purchaser has substantial experience in evaluating
and investing in private placement transactions of securities in
companies similar to the Company so that it is capable of evalu-
ating the merits and risks of its investment in the Company and
has the capacity to protect its own interests. Purchaser must
bear the economic risk of this investment indefinitely unless the
Shares are registered pursuant to the Securities Act, or an
exemption from registration is available. Purchaser understands
that there is no assurance that any exemption from registration
under the Securities Act will be available and that, even if
available, such exemption may not allow Purchaser to transfer all
or any portion of the Shares under the circumstances, in the
amounts or at the times Purchaser might propose.
(b) Purchaser has been advised or is aware of the
provisions of Rule 144 promulgated under the Securities Act,
which permits limited resale of shares purchased in a private
placement subject to the satisfaction of certain conditions.
(c) The Purchaser agrees that it will not sell,
pledge, assign, transfer, otherwise dispose of or reduce their
risk with respect to (collectively, "Transfer") any of the Shares
unless the Transfer will be made pursuant to an exemption from
the registration requirements of the Securities Act or pursuant
to an effective registration statement under the Securities Act
and pursuant to an exemption from any applicable state securities
laws or an effective registration or other qualification under
any applicable state securities laws. The Purchaser understands
that exemptions from such registration requirements are limited.
The Company is under no obligation to register the Shares except
as provided in Section 9.
(d) The Purchaser acknowledges and agrees that the
Shares are subject to certain restrictions as to resale under the
federal and state securities laws. The Purchaser agrees and
understands that stop transfer instructions will be given to the
transfer agent for the Shares and each share certificate, and
each certificate delivered on transfer of or in substitution for
any such certificate, shall have affixed a legend in substantial-
ly the following form:
"The shares represented by this certificate
have not been registered under the Securities
Act of 1933, as amended (the "Act"), and have
been sold in reliance on the exemption from
registration provided by Regulation S under
the Act ("Regulation S"). During the period
prior to April 13, 1998 (the "Restricted
period"), in the absence of registration
under the Securities Act, the shares repre-
sented by this certificate may not
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CUSIP No. 0006833991 Page 17 of 30 Pages
be sold, directly or indirectly, within the United
States (as defined in Regulation S), to a U.S. Person
(as defined in Regulation S) or for the account of a
U.S. Person.
Also notwithstanding anything to the contrary expressed or
implied herein, (i) each Purchaser agrees, with respect to the
Shares purchased by it, that it will not Transfer the Shares
purchased by it until the expiration of the period from the
Closing Date until April 13, 1998 (the "Restricted Period"),
unless such Transfer will be made pursuant to Regulation S or
pursuant to an effective registration statement under the Securi-
ties Act, (ii) the Company agrees that, upon the expiration of
the Restricted Period, stop transfer instructions to the
Company's transfer agent shall no longer apply to Shares, and
(iii) Purchaser agrees that the foregoing legend may not be
removed prior to expiration of the Restricted Period.
Purchaser further acknowledges that securities acquired overseas,
whether or not pursuant to Regulation S, may be resold in the
United States only if they are registered under the Securities
Act or an exemption from registration is available, and in
compliance with applicable state securities laws.
(e) Each Purchaser hereby represents and warrants that
it is not a "U.S. Person," is not a "Distributor," and is pur-
chasing the Shares in an "Offshore Transaction." as defined in
Rule 902 of Regulation S.
(f) Purchaser is acquiring the Shares for Purchaser's
own account for investment only, and not with a view towards
their distribution.
(g) Purchaser represents that by reason of its, or of
its management's, business or financial experience, Purchaser has
the capacity to protect its own interests in connection with the
transactions contemplated in this Agreement. Further, Purchaser
is aware of no publication of any advertisement in connection
with the transactions contemplated in the Agreement.
(h) Purchaser represents that it is an accredited
investor within the meaning of Regulation D under the Securities
Act.
(i) Purchaser has received and read the SEC Reports
listed in Section 4.5(b) and has had an opportunity to discuss
the Company's business, management and financial affairs with
directors, officers and management of the Company and has had the
opportunity to review the Company's operations and facilities.
Purchaser has also had the opportunity to ask questions of and
receive answers from, the Company and its management regarding
the terms and conditions of this investment.
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CUSIP No. 0006833991 Page 18 of 30 Pages
5.3 STANDSTILL COVENANT. Purchaser agrees that,
during the period commencing on the date hereof and ending on the
fifth anniversary of the date hereof, neither Purchaser nor any
of its affiliates will in any manner, directly or indirectly (i)
effect, seek, offer or propose to effect any acquisition of any
securities or assets of the Company, any tender or exchange
offer, merger, business combination, recapitalization or other
extraordinary transaction involving the Company or any
solicitation of proxies or consents to vote any voting securities
of the Company, (ii) form, join or in any way participate in a
"group" (as defined in the Exchange Act) with respect to any
voting securities of the Company, (iii) solicit or participate in
any solicitation of proxies relating to the election of directors
of the Company or (iv) enter into any agreement with any other
person with respect to the foregoing, or assist any other person
to do any of the foregoing; PROVIDED that (A) Purchaser may
purchase additional securities in an amount sufficient to allow
Purchaser to continue to own 14.9% of the outstanding shares of
Common Stock of the Company; and (B) the restrictions contained
in this sentence shall terminate automatically upon the
acquisition by any person or group (as defined in the Exchange
Act), other than Purchaser and its affiliates, of more than 20%
of the outstanding voting securities of the Company or upon the
commencement (as provided in Rule 14d-2) of a tender offer other
than by or on behalf of Purchaser or its affiliates (with
securities or cash) which has not been approved by a majority of
the Company's Board of Directors for the Company's voting
securities and (C) this sentence shall not 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.
SECTION 6. SURVIVAL OF REPRESENTATIONS, WARRANTIES
AND AGREEMENTS. Notwithstanding any investigation made by any
party to this Agreement, all covenants, agreements,
representations and warranties made by the Company and each
Purchaser herein shall survive the execution of this Agreement
and the issuance and sale to the Purchasers of the Shares and
shall terminate upon the subsequent transfer of the Shares
pursuant to Sections 5 or 9.
SECTION 7. CONDITIONS TO COMPANY'S OBLIGATIONS AT
THE CLOSING. The Company's obligation to complete the sale and
issuance of the Shares at Closing shall be subject to the follow-
ing conditions to the extent not waived by the Company:
7.1 REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made by each Purchaser in Section
5 hereof shall be true and correct when made, and shall be true
and correct on the Closing Date.
7.2 COVENANTS PERFORMED. All covenants, agreements
and conditions contained herein to be performed by the Purchasers
on
<PAGE>
CUSIP No. 0006833991 Page 19 of 30 Pages
or prior to the Closing Date shall have been performed or com-
plied with in all material respects.
7.3 QUALIFICATIONS, LEGAL INVESTMENT. All
authorizations, approvals, or permits, if any, of any
governmental authority or regulatory body of the United States or
of any state that are binding upon any of the Purchasers and that
are required in connection with the lawful sale and issuance of
the Shares at such Closing pursuant to this Agreement shall have
been duly obtained and shall be effective on and as of the date
of such Closing. No stop order or other order enjoining the sale
of the Shares shall have been issued and no proceedings for such
purpose shall be pending or, to the knowledge of the Company,
threatened by the SEC or any commissioner of corporations or
similar officer of any state having jurisdiction over this
transaction. At the time of such Closing, the sale and issuance
of the Shares to be purchased and sold at such Closing shall be
legally permitted by all laws and regulations to which the
Purchaser and the Company are subject.
SECTION 8. CONDITIONS TO PURCHASERS' OBLIGATIONS AT
THE CLOSING. Each Purchaser's obligation to purchase the Shares
at the Closing thereby shall be subject to the following
conditions to the extent not waived by the Purchasers:
8.1 REPRESENTATIONS AND WARRANTIES CORRECT. The
representations and warranties made by the Company in Section 4
hereof shall be true and correct when made, and shall be true and
correct as of the Closing Date.
8.2 LEGAL OPINION. Purchasers shall have received
from Cooley Godward LLP, counsel to the Company, an opinion
letter addressed to the Purchasers, dated as of the Closing Date,
in the form attached hereto as EXHIBIT B.
8.3 COVENANTS PERFORMED. All covenants, agreements
and conditions contained herein to be performed by the Company
shall have been performed or complied with in all material
respects.
8.4 QUALIFICATIONS, LEGAL INVESTMENT. All
authorizations, approvals, or permits, if any, of any
governmental authority or regulatory body of the United States or
of any state that are binding upon the Company and that are
required in connection with the lawful sale and issuance of the
Shares at such Closing pursuant to this Agreement shall have been
duly obtained and shall be effective on and as of the Closing
Date. No stop order or other order enjoining the sale of the
Shares shall have been issued and no proceedings for such purpose
shall be pending or, to the knowledge of the Company, threatened
by the SEC, or any commissioner of corporations or similar
officer of any state having jurisdiction over this transaction.
At the time of the Closing, the sale and issuance of the
<PAGE>
CUSIP No. 0006833991 Page 20 of 30 Pages
Shares shall be legally permitted by all laws and regulations to
which the Purchaser and the Company are subject.
8.5 NO MATERIAL ADVERSE CHANGE. There shall have been
no material adverse change in the business, assets, liabilities,
operations or financial condition of the Company since the date
of this Agreement.
8.6 NO LITIGATION. Since the date of this Agreement,
no proceeding challenging this Agreement or the transactions
contemplated hereby, or seeking to prohibit, alter, prevent or
materially delay the Closing or the performance by the Company of
any of its obligations hereunder, shall have been instituted
before any governmental agency, court or arbitrator and shall be
pending.
SECTION 9. REGISTRATION OF THE SHARES; COMPLIANCE
WITH THE SECURITIES ACT.
9.1 DEFINITIONS. As used in this Section 9 the
following terms shall have the following respective meanings:
(a) "Registrable Shares" shall mean the Shares issued
pursuant to this Agreement;
(b) "Registration Statement" shall include any final
prospectus, exhibit, supplement or amendment included in or
relating to the Registration Statement referred to in Section
9.2; and
(c) "Untrue Statement" shall include any untrue
statement or alleged untrue statement, or any omission or alleged
omission to state in the Registration Statement a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
9.2 REGISTRATION PROCEDURES AND EXPENSES. The Company
is obligated to do the following:
The Company shall, within 90 days following the Closing
Date:
(a) prepare and file with the SEC a registration
statement on Form S-3 in order to register with the SEC under the
Securities Act a sale by the Purchasers on a delayed or continu-
ous basis pursuant to Rule 415 under the Securities Act any or
all of the Registrable Shares through the automated quotation
system of the Nasdaq National Market System or the facilities of
any national securities exchange on which the Company's Common
Stock is then traded, or in privately-negotiated transactions (a
"Registration Statement") (notwithstanding anything to the
contrary
<PAGE>
CUSIP No. 0006833991 Page 21 of 30 Pages
expressed or implied herein, if a registration statement on Form
S-3, or any substitute form, is not then available for
registration of the Registrable Shares, the Company shall be
obligated instead to prepare and file with the SEC a registration
statement on Form S-1 in order to register the Registrable Shares
under the Securities Act and such registration statement will be
a "Registration Statement" for the purposes of this Agreement);
(b) use its best efforts, subject to receipt of
necessary information from the Purchasers, to cause such Regis-
tration Statement to become effective as promptly after filing as
practicable;
(c) promptly notify each Purchaser, at any time when a
prospectus relating to such Registration Statement is required to
be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in or relating
to such Registration Statement contains an untrue statement of a
material fact or omits to state any fact necessary to make the
statements therein not misleading;
(d) promptly prepare and file with the SEC, and
deliver to each Purchaser, such amendments and supplements to
such Registration Statement and the prospectus used in connection
therewith as may be necessary to keep such Registration Statement
effective until termination of such obligation as provided in
Section 9.7 below;
(e) furnish to each Purchaser such number of copies of
prospectuses in conformity with the requirements of the Securi-
ties Act, in order to facilitate the public sale or other dispo-
sition of all or any of the Registrable Shares by the Purchasers;
(f) file such documents as may be required of the
Company for normal securities law clearance for the resale of the
Registrable Shares in which states of the United States as may be
reasonably requested by each Purchaser provided, however, that
the Company shall not be required in connection with this para-
graph (e) to qualify as a foreign corporation or execute a
general consent to service of process in any jurisdiction;
(g) use its best efforts to cause all Registrable
Shares to be listed on each securities exchange, if any, on which
equity securities by the Company are then listed; and
<PAGE>
CUSIP No. 0006833991 Page 22 of 30 Pages
(h) bear all expenses in connection with the proce-
dures in paragraphs (a) through (f) of this Section 9.2, other
than (i) fees and expenses, if any, of counsel or other advisers
to the Purchasers, and (ii) any expenses relating to the sale of
the Registrable Shares by the Purchasers, including broker's
commission, discounts or fees and transfer taxes.
9.3 INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless
each Purchaser from and against any losses, claims, damages or
liabilities to which such Purchaser may become subject (under the
Securities Act or otherwise) insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect
thereof) arise out of, or are based upon, any Untrue Statement on
the effective date of the Registration Statement, or arise out of
any failure by the Company to fulfill any undertaking included in
the Registration Statement and the Company will reimburse such
Purchaser for any reasonable legal or other expenses reasonably
incurred in investigating, defending or preparing to defend any
such action, proceeding or claim; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to the extent that
such loss, claim, damage or liability arises out of, or is based
upon, an Untrue Statement made in such Registration Statement in
reliance upon and in conformity with written information fur-
nished to the Company by or on behalf of such Purchaser specifi-
cally for use in preparation of the Registration Statement, or
the failure of such Purchaser to comply with the covenants and
agreements contained in Sections 5.3 or 9.4 hereof respecting the
sale of the Shares or any statement or omission in any prospectus
that is corrected in any subsequent prospectus that was delivered
to the Purchaser prior to the pertinent sale or sales by the
Purchaser.
(b) Each Purchaser, severally and not jointly, agrees
to indemnify and hold harmless the Company (and each person, if
any, who controls the Company within the meaning of Section 15 of
the Securities Act, each officer of the Company who signs the
Registration Statement and each director of the Company) from and
against any losses, claims, damages or liabilities to which the
Company (or any such officer, director or controlling person) may
become subject (under the Securities Act or otherwise), insofar
as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of, or are based upon,
any failure to comply with the covenants and agreements contained
in Sections 5.3 or 9.4 hereof respecting sale of the Shares, or
any Untrue Statement contained in the Registration Statement on
the effective date thereof if such Untrue Statement was made in
reliance upon and in conformity with written information fur-
nished by or on behalf of such Purchaser specifically for use in
preparation of the Registration Statement, and such Purchaser
will reimburse the Company (or such officer,
<PAGE>
CUSIP No. 0006833991 Page 23 of 30 Pages
director or controlling person), as the case may be, for any
legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or
claim; PROVIDED that in no event shall any indemnity by a
Purchaser under this Section 9.3 exceed the net proceeds received
by such Purchaser from the sale of the Shares covered by such
Registration Statement.
(c) Promptly after receipt by any indemnified person
of a notice of a claim or the beginning of any action in respect
of which indemnity is to be sought against an indemnifying person
pursuant to this Section 9.3, such indemnified person shall
notify the indemnifying person in writing of such claim or of the
commencement of such action, and, subject to the provisions
hereinafter stated, in case any such action shall be brought
against an indemnified person and such indemnifying person shall
have been notified thereof, such indemnifying person shall be
entitled to participate therein, and, to the extent it shall
wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified person. After notice from the
indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be
liable to such indemnified person for any legal expenses subse-
quently incurred by such indemnified person in connection with
the defense thereof; PROVIDED, HOWEVER, that if there exists or
shall exist a conflict of interest that would make it inappropri-
ate, in the opinion of counsel to the indemnified person, for the
same counsel to represent both the indemnified person and such
indemnifying person or any affiliate or associate thereof, the
indemnified person shall be entitled to retain its own counsel at
the expense of such indemnifying person; PROVIDED, HOWEVER, that
no indemnifying person shall be responsible for the fees and
expenses of more than one separate counsel for all indemnified
parties.
(d) If the indemnification provided for in this
Section 9.3 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss,
liability, claim, damage, or expense referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such loss, liability,
claim, damage, or expense in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with
the statements or omissions that resulted in such loss, liabili-
ty, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying
party and of the indemnified party shall be determined by refer-
ence to, among other things, whether the untrue or alleged untrue
statement of material fact or the omission to state a material
fact relates to information supplied by the indemnifying party or
by the indemnified party and the parties' relative intent,
knowledge, access to information,
<PAGE>
CUSIP No. 0006833991 Page 24 of 30 Pages
and opportunity to correct or prevent such statement or omission;
PROVIDED, that in no event shall any contribution by a Purchaser
hereunder exceed the net proceeds received by such Purchaser from
the sale of the Shares covered by the Registration Statement.
(e) Notwithstanding the foregoing, to the extent that
the provisions on indemnification and contribution in the under-
writing agreement entered into in connection with the underwrit-
ten public offering are in conflict with the foregoing provi-
sions, the provisions in the underwriting agreement shall con-
trol.
9.4 Transfer of Shares After Registration; Notice. The
Purchaser hereby covenants with the Company not to make any sale
of the Shares after registration without effectively causing the
prospectus delivery requirement under the Securities Act to be
satisfied. The Purchaser acknowledges that there may be times
when the Company must suspend the use of the prospectus forming a
part of the Registration Statement until such time as an amend-
ment to the Registration Statement has been filed by the Company
and declared effective by the SEC, or until such time as the
Company has filed an appropriate report with the SEC pursuant to
the Exchange Act. The Purchaser hereby covenants that it will not
sell any Shares pursuant to said prospectus or pursuant to
Regulation S during the period commencing at the time at which
the Company gives the Purchaser notice of the suspension of the
use of said prospectus and ending at the time the Company gives
the Purchaser notice that the Purchaser may thereafter effect
sales pursuant to said prospectus. The foregoing provisions of
this Section 9.4 shall in no manner diminish or otherwise impair
the Company's obligations under Section 9.2 hereof. The Purchas-
er further covenants that it will provide the Company three
business days' notice of a proposed sale of one hundred thousand
(100,000) or more Shares.
9.5 Reporting Requirements.
(a) The Company agrees to use its best efforts to:
(i) make and keep public information available,
as those terms are understood and defined in Rule 144 under the
Securities Act;
(ii) file with the SEC in a timely manner all
reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934; and
<PAGE>
CUSIP No. 0006833991 Page 25 of 30 Pages
(iii) so long as any of the Purchasers own
Registrable Securities, to furnish to the Purchasers forthwith
upon request (1) a written statement by the Company as to whether
it complies with the reporting requirements of said Rule 144, the
Securities Act and Securities Exchange Act of 1934, or whether it
qualifies as a registrant whose securities may be resold pursuant
to SEC Form S-3, (2) a copy of the most recent annual or quarter-
ly report of the Company and such other reports and documents so
filed by the Company, and (3) such other information as may be
reasonably requested in availing the Purchasers of any rule or
regulation of the SEC that would permit the selling of the
Registrable Securities without registration.
9.6 MARKET STAND-OFF. If requested by the
underwriters, the Purchasers or any assignees thereof, will not
Transfer any of the Securities for up to 90 days following a
public offering by the Company of its capital stock.
9.7 TERMINATION OF OBLIGATIONS. The obligations of
the Company pursuant to Sections 9.2 through 9.5 hereof shall
cease and terminate upon the earlier to occur of (i) such time as
all of the Registrable Shares have been resold, or (ii) such time
as all of the Registrable Shares may be sold during any 90 day
period pursuant to Rule 144.
9.8 ASSIGNABILITY OF REGISTRATION RIGHTS. The
registration rights set forth in this Section 9 are not
assignable other than to an affiliate of a Purchaser.
SECTION 10. BROKER'S FEE. The Company and each
Purchaser (severally and not jointly) shall indemnify each other
for any broker's, finder's or agent's fees for which they are
responsible.
SECTION 11. NOTICES. All notices, requests,
consents and other communications hereunder shall be in writing,
shall be sent by confirmed facsimile or mailed by first-class
registered or certified airmail, or nationally recognized
overnight express courier, postage prepaid, and shall be deemed
given when so sent and addressed as follows:
<PAGE>
CUSIP No. 0006833991 Page 26 of 30 Pages
(a) if to the Company, to:
ONYX Pharmaceuticals, Inc.
3031 Research Drive
Richmond, California 94806
Attention: Hollings C. Renton
with a copy mailed to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, California 94306
Attention: Deborah A. Marshall, Esq.
or to such other person at such other place as the
Company shall designate to the Purchasers in writing;
and
(b) if to the Purchasers, at the address as set forth
at the end of this Agreement, or at such other address or ad-
dresses as may have been furnished to the Company in writing with
a copy, in the case of IBT, to:
Reboul, MacMurray, Hewitt, Maynard & Kristol
45 Rockefeller Plaza
New York, New York 10111
Attention: Charles D. Uniman, Esq.
SECTION 12. MISCELLANEOUS.
12.1 WAIVERS AND AMENDMENTS. Neither this Agreement
nor any provision hereof may be changed, waived, discharged,
terminated, modified or amended except upon the written consent
of the Company and holders of at least 66-2/3% of the Shares.
12.2 HEADINGS. The headings of the various sections of
this Agreement have been inserted for convenience of reference
only and shall not be deemed to be part of this Agreement.
12.3 SEVERABILITY. In case any provision contained in
this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remain-
ing provisions contained herein shall not in any way be affected
or impaired thereby.
12.4 GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Delaware as applied
<PAGE>
CUSIP No. 0006833991 Page 27 of 30 Pages
to contracts entered into and performed entirely in Delaware by
Delaware residents, without regard to conflicts of law
principles.
12.5 COUNTERPARTS. This Agreement may be executed in
two or more counterparts, each of which shall constitute an
original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered
to the other parties.
12.6 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.
12.7 ENTIRE AGREEMENT. This Agreement and other
documents delivered pursuant hereto, including the exhibits,
constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and
thereof.
12.8 PUBLICITY. No party shall issue any press
releases or otherwise make any public statement with respect to
the transactions contemplated by this Agreement without the prior
written consent of the other parties, except as may be required
by applicable law or regulations, in which case such party shall
provide the other parties with reasonable notice of such publici-
ty and/or opportunity to review such disclosure.
<PAGE>
CUSIP No. 0006833991 Page 28 of 30 Pages
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives
as of the day and year first above written.
COMPANY:
ONYX PHARMACEUTICALS, INC.
By: /s/ Hollings C. Renton
Title: President & CEO
Address: 3031 Research Drive
Richmond, CA 94806
<PAGE>
CUSIP No. 0006833991 Page 29 of 30 Pages
PURCHASER:
INTERNATIONAL BIOTECHNOLOGY TRUST PLC
By: /s/ Jeremy L. Curnock Cook
Title: Director
Address: Five Arrows House
St. Swithin's Lane
London EC4N 8 NR
England
<PAGE>
CUSIP No. 0006833991 Page 30 of 30 Pages
EXHIBIT A
Purchaser Shares
International Biotechnology Trust plc 1,122,807
Lombard Odier & Cie 280,701
__________
1,403,508
