CUSIP No. 0006833991 Page 1 of 4 Pages
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 1)[FN1]
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 18, 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-1(f) or 13d-1(g), check the following box
[ ].
- --------
FN1 The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page. The information
required on the remainder of this cover page shall not be deemed to be
"filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act.
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CUSIP No. 0006833991 Page 2 of 4 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 1,345,029 shares of
Shares Beneficially Power Common Stock, $.001
Owned by par value ("Common
Reporting Person Stock")
8) Shared Voting
Power -0-
9) Sole Disposi- 1,345,029 shares of
tive Power Common Stock
10)Shared Dis-
positive Power -0-
11) Aggregate Amount Beneficially 1,345,029 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 9.92%
Amount in Row (11)
14) Type of Reporting
Person CO
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CUSIP No. 0006833991 Page 3 of 4 Pages
AMENDMENT NO. 1 TO SCHEDULE 13D
Reference is hereby made to the statement on Schedule 13D originally
filed with the Securities and Exchange Commission (the "Commission") on January
16, 1998 (the "Schedule 13D"). Terms defined in the Schedule 13D are used herein
as so defined.
The Schedule 13D is hereby amended as follows:
Item 3. Item 3 is hereby amended by adding the following thereto:
This statement relates to the purchase by IBT of 222,222 shares of
Common Stock from the Issuer pursuant to a Stock Purchase Agreement dated as of
January 18, 2000 by and among the Issuer and the several purchasers named
therein, including IBT (the "January 18 Purchase Agreement"), as part of a
private placement by the Issuer of an aggregate 2,000,000 shares of Common Stock
at a per share purchase price of $9.00. The January 18 Purchase Agreement is
attached hereto as Exhibit A and any description thereof is qualified in its
entirety by reference thereto. The source of funds for such purchase was IBT's
working capital, or funds available for investment. The Issuer granted the
purchasers under the January 18 Purchase Agreement registration rights with
respect to the shares of Common Stock purchased thereunder.
Item 5. INTEREST IN SECURITIES OF THE ISSUER.
Item 5 is hereby amended and restated to read in its entirety as
follows:
(a) Based on a total of 13,558,110 shares of Common Stock outstanding
as of consummation of the transactions pursuant to the January 18 Purchase
Agreement, IBT owns 1,345,029 shares of Common Stock, or approximately 9.9% of
the Common Stock outstanding.
(b) Except as described in Item 6 of the Schedule 13D, 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, IBT has not effected any
transactions in the securities of the Issuer within the last 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 7. MATERIAL TO BE FILED AS EXHIBIT.
Exhibit A -- Stock Purchase Agreement (appears at page 5)
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CUSIP No. 0006833991 Page 4 of 4 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: March 7, 2000
INTERNATIONAL BIOTECHNOLOGY TRUST PLC
By: /S/JEREMY L. CURNOCK COOK
Director
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EXHIBIT A
ONYX PHARMACEUTICALS, INC.
STOCK PURCHASE AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the 18th day of January, 2000
(the "Effective Date"), by and among ONYX PHARMACEUTICALS, INC., a Delaware
corporation (the "Company"), and each of those persons and entities, severally
and not jointly, 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 2,000,000 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
shall issue and sell to each Purchaser, severally and not jointly, and each
Purchaser shall 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 $ 9.00 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 18, 2000 or on such other date and place as may be agreed
to by the Company and the Purchasers.
3.2 DELIVERY OF THE SHARES. Promptly following the Closing, but in no event
later than five 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. The Company shall also deliver an executed
copy of this Agreement to each Purchaser.
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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 (as
defined below), the Company hereby represents and warrants to, and covenants
with, the Purchasers as of the Closing 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 and to own, lease and
operate its properties. True and complete copies of the Restated Certificate of
Incorporation and the Bylaws of the Company, as amended to and as in effect on
the date hereof, have been delivered to the Investors as certified by the
Company's Secretary. The Company is duly qualified and is authorized to transact
business and is in good standing as a foreign corporation in each jurisdiction
in which the failure so to qualify would have a Material Adverse Effect. As used
in this Agreement, a "Material Adverse Effect" means (a) a material adverse
effect upon the business, operations, properties, assets or condition (financial
or otherwise) of the Company or, as the case may be, the Company and any of its
subsidiaries, taken as a whole or (b) the impairment of the ability of the
Company to perform its obligations under this Agreement or any of the Documents
(defined below in Section 4.2).
4.2 DUE EXECUTION, DELIVERY AND PERFORMANCE OF THE DOCUMENTS. The Company's
execution, delivery and performance of this Agreement and the management rights
letter attached hereto as Exhibit B (the "Management Rights Letter") and the
issuance and sale of the Shares 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 and the Management Rights Letter
(collectively, the "Documents") by each of the Purchasers, the Documents will
constitute valid and binding obligations of the Company, enforceable in
accordance with each of their respective 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 9.4 hereof may be legally
unenforceable.
4.3 NO CONFLICTS. The Company's execution, delivery and performance of the
Documents 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.
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4.4 GOVERNMENTAL CONSENTS. Except for applicable filings with The Nasdaq
Stock Market, Inc. (the "Nasdaq Market"), under the Securities Act of 1933, as
amended (the "Securities Act"), or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), 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 the Documents, 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, 1999, the Company has filed in a timely manner
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 material 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 generally
accepted accounting principles consistently applied throughout the period
indicated ("GAAP"). Each balance sheet is in accordance with the books and
records of the Company and 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 is in accordance with
the books and records of the Company and 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.
(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, 1998 (without exhibits);
(ii) the Company's Quarterly Reports on Form 10-Q as filed with
the SEC for the quarters ended March 31, 1999, June 30, 1999 and September 30,
1999 (without exhibits);
(iii) the Company's Proxy Statement for the 1999 Annual Meeting of
Stockholders.
(c) No event has occurred since January 1, 1999, 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).
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4.7 NO MATERIAL CHANGE. As of the date hereof, there has been no event or
action that would have a Material Adverse Effect since September 30, 1999,
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 11,558,110 such
shares were issued and outstanding as of December 31, 1999 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, obligation or commitment, fixed or contingent, to issue any shares of
such Preferred Stock. Except as contemplated by this Agreement and except for
2,351,146 shares reserved under the 1996 Equity Incentive Plan, the 1996
Non-Employee Directors' Stock Option Plan and the 1996 Employee Stock Purchase
Plan as of December 31, 1999, 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.
4.9 NASDAQ MARKET. The Company's Common Stock is listed on the Nasdaq
Market under the trading symbol "ONXX," 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 have either individually or in
the aggregate, a Material Adverse Effect (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,
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registrations and renewals in connection therewith, (iii) all copyrightable
works, all copyrights, all applications, registrations and renewals in
connection therewith, (iv) 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), (v) all computer software
(including, data and related documentation), (vi) all other proprietary rights
and (vii) all copies and tangible embodiments of any of the foregoing (in
whatever form or medium).
4.12 LEGAL COMPLIANCE. The Company is not in default or violation of its
Restated Certificate of Incorporation or Bylaws and 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
default violation would (either individually or in the aggregate) have a
Material Adverse Effect. To the knowledge of the Company, there exists no
condition, event or act which constitutes, or which after notice, lapse of time
or both, would constitute, such a default or violation under any of the
foregoing except where such a default is not reasonably expected to have a
Material Adverse Effect.
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 4.6 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, 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 that would have
a Material Adverse Effect.
4.14 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.
4.15 BROKERS. Neither the Company nor any of the officers, directors,
employees or stockholders of the Company has employed any broker or finder in
connection with the transaction contemplated by this Agreement.
4.16 NO PREEMPTIVE RIGHTS. There exist no statutory preemptive, or other
similar rights to purchase securities of the Company.
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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
Agreement will constitute a valid and binding obligation of Purchaser,
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 to the extent that
the enforceability of the indemnification provisions of Section 9.4 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:
(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 evaluating 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
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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 substantially the following form:
"The shares represented by this certificate have not
been registered under the Securities Act of 1933, as
amended (the "Act"), and may not be offered, sold or
otherwise transferred, assigned, pledged or
hypothecated unless and until registered under the act
or unless the Company has received an opinion of
counsel satisfactory to the Company and its counsel
that such registration is not required.
(e) Purchaser is acquiring the Shares for Purchaser's own account for
investment only, and not with a view towards their distribution.
(f) 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.
(g) Purchaser represents that it is an accredited investor within the
meaning of Regulation D under the Securities Act.
(h) Purchaser has received the SEC Reports listed in Section 4.6(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.
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 following conditions to the extent not waived by the Company:
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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
in any Documents to be performed by the Purchasers on or prior to the Closing
Date shall have been performed or complied with in all material respects.
7.3 QUALIFICATIONS. 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.
7.4 LEGAL INVESTMENT. 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 on or prior to the Closing Date shall have
been performed or complied with in all material respects.
8.4 QUALIFICATIONS. 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.
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8.5 LEGAL INVESTMENT. At the time of the Closing, the sale and issuance of
the Shares shall be legally permitted by all laws and regulations to which the
Purchaser and the Company are subject.
8.6 COMPLIANCE CERTIFICATE. The Company shall have delivered to Purchasers,
a Compliance Certificate, executed by the Chief Executive Officer of the
Company, dated the Closing Date, to the effect that the conditions, specified in
Sections 8.1, 8.3 and 8.4 have been satisfied.
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) "Holders" shall mean the holders of Registrable Securities (as
defined therein) pursuant to the Amended and Restated Information and
Registration Rights Agreement dated May 16, 1994, between the Company and the
Investors (as defined therein), as amended (the "Registration Agreement"), who
continue to have registration rights pursuant to the Registration Agreement.
(b) "Registrable Shares" shall mean (i) the Shares issued pursuant to
this Agreement and (ii) any other shares of Common Stock issued in respect to
the Shares (because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events);
(c) "Registration Statement" shall mean any registration statement and
shall include any preliminary prospectus, final prospectus, exhibit, supplement
or amendment included in or relating to the Registration Statement referred to
in Section 9.2 and Section 9.3; and
(d) "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 immediately following the Closing Date,
such actual date being referred to as the "Registration 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 continuous 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
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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 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 Registration Statement to become effective as
promptly after the Registration Date as practicable, but no later than 60 days
after the Registration Date (the "Effective Date") and take all other reasonable
actions necessary under any federal law or regulation to permit all Registrable
Shares to be sold or otherwise disposed of;
(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 9.9 below;
(e) furnish to each Purchaser such number of copies of prospectuses in
conformity with the requirements of the Securities Act, in order to facilitate
the public sale or other disposition of all or any of the Registrable Shares by
the Purchasers;
(f) no later than the Registration Date, file such documents as may be
required of the Company for normal state 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 paragraph (f) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
(g) no later than the Registration Date, 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;
(h) bear all expenses in connection with the procedures in Section 9.2
and in Section 9.3, 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; and
(i) in addition to any other remedies at law or in equity and not in
limitation thereof, the Company shall pay the Purchasers an aggregate of
$100,000 for each 30 days (or fraction thereof) after the Effective Date that
such Registration Statement together with any applicable Nasdaq Market and state
securities law filings are not effective to permit the lawful public resale of
all the Registrable Shares.
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9.3 PIGGYBACK REGISTRATIONS. The Company shall notify the Purchasers in
writing at least twenty (20) days prior to the filing of any registration
statement under the Securities Act for purposes of a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding registration statements relating to employee benefit plans or with
respect to corporate reorganizations or other transactions under Rule 145 of the
Securities Act) and will afford each Purchaser an opportunity to include in such
registration statement all or part of such Registrable Shares held by such
Purchaser, including the Registrable shares previously registered pursuant to
Section 9.2 which have not been sold by the Purchaser. Each Purchaser desiring
to include in any such registration statement all or any part of the Registrable
Shares held by it shall, within twenty (20) days after the above-described
notice from the Company, so notify the Company in writing. Such notice shall
state the intended method of disposition of the Registrable Shares by such
Purchaser. If a Purchaser decides not to include all of its Registrable Shares
in any registration statement thereafter filed by the Company, such Purchaser
shall nevertheless continue to have the right to include any Registrable Shares
in any subsequent registration statement or registration statements as may be
filed by the Company with respect to offerings of its securities, all upon the
terms and conditions set forth herein.
(a) UNDERWRITING. If the registration statement under which the
Company gives notice under this Section 9.3 is for an underwritten offering, the
Company shall so advise the Purchasers. In such event, the right of any such
Purchaser to be included in a registration pursuant to this Section 9.3 shall be
conditioned upon such Purchaser participation in such underwriting and the
inclusion of such Purchaser Registrable Shares in the underwriting to the extent
provided herein. All Purchasers proposing to distribute their Registrable Shares
through such underwriting shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of the
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated, first, to
the Company; second, to the Holders on a PRO RATA basis based on the total
number of Registrable Securities (as defined in the Registration Agreement) held
by the Holders; third, to the Purchasers on a PRO RATA basis based on the total
number of Registrable Shares held by the Purchasers; and fourth, any shareholder
of the Company (other than a Holder or a Purchaser) on a PRO RATA basis. If any
Purchaser disapproves of the terms of any such underwriting, such Purchaser may
elect to withdraw therefrom by written notice to the Company and the
underwriter, delivered at least ten (10) business days prior to the effective
date of the registration statement. Any Registrable Shares excluded or withdrawn
from such underwriting shall be excluded and withdrawn from the registration.
For any Purchaser which is a partnership, corporation or limited liability
company, the partners, retired partners, shareholders, members or retired
members of such Purchaser, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing person shall be deemed to be a single "Purchaser", and any PRO RATA
reduction with respect to such "Purchaser" shall be based upon the aggregate
amount of shares carrying registration rights owned by all entities and
individuals included in such "Purchaser," as defined in this sentence.
(b) RIGHT TO TERMINATE REGISTRATION. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section 9.3
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<PAGE>
prior to the effectiveness of such registration whether or not any Purchaser has
elected to include securities in such registration. The Registration Expenses of
such withdrawn registration shall be borne by the Company in accordance with
Section 9.2(h) hereof.
9.4 INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Purchaser
and underwriter (and each person, if any, who controls the Purchaser within the
meaning of Section 15 of the Securities Act) from and against any losses,
claims, damages or liabilities to which such Purchaser (or such underwriter 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 Untrue
Statement contained in the Registration Statement on the Effective Date thereof,
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 (or
such underwriter or controlling person) 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 furnished to the Company by or on behalf of such Purchaser
specifically for use in preparation of the Registration Statement, or the
failure of such Purchaser to comply with the covenants and agreements contained
in Section 9.5 hereof respecting the sale of the Registrable 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 underwriter (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 underwriter, 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 Section 9.5 hereof respecting sale of the
Registrable 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 furnished 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 underwriter,
officer, 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 9.4 exceed the net proceeds received
by such Purchaser from the sale of the Registrable Shares covered by such
Registration Statement.
(c) Promptly after receipt by any indemnified person of a written
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 9.4,
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<PAGE>
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 subsequently 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
inappropriate, 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;
PROVIDED, HOWEVER, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(d) If the indemnification provided for in this Section 9.4 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, liability, 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 reference 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, 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 underwriting agreement entered into
in connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
9.5 TRANSFER OF SHARES AFTER REGISTRATION; NOTICE. The Purchaser hereby
covenants with the Company not to make any sale of the Registrable 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 amendment 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
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<PAGE>
the SEC pursuant to the Exchange Act. The Purchaser hereby covenants that it
will not sell any Shares pursuant to said prospectus during the period
commencing at the time at which the Company gives the Purchaser written 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 9.5
shall in no manner diminish or otherwise impair the Company's obligations under
Section 9.2 and Section 9.3 hereof.
9.6 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
(iii) so long as any of the Purchasers own Registrable Shares, 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 quarterly 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
Shares without registration.
9.7 INFORMATION RIGHTS. So long as each Purchaser continues to own at least
ten (10%) of its Registrable Shares, the Company shall provide each such
Purchaser a copy of all SEC Reports promptly after filing such SEC Report with
the SEC.
9.8 TERMINATION OF OBLIGATIONS. The obligations of the Company pursuant to
Sections 9.2 through 9.6 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, including Rule 144 (k), without being restricted by the
volume limitations of Rule 144(e).
9.9 ASSIGNABILITY OF REGISTRATION RIGHTS. The registration rights set forth
in this Section 9 are not assignable other than to an affiliate of a Purchaser
or, if the Purchaser is a partnership or limited liability company, limited
partner or a member of a Purchaser; PROVIDED, HOWEVER, that the Purchaser shall
only have the right to require the Company to amend the Registration Statement
twice for such assignments.
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.
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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:
(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: Robert L. Jones, 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 addresses as may have been furnished
to the Company in writing.
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 remaining 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 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.
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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.
The Company shall not, directly or indirectly, enter into any merger,
consolidation or reorganization in which the Company shall not be the surviving
corporation unless the proposed surviving corporation shall, prior to such
merger, consolidation or reorganization, agree in writing to assume the
obligations of the Company under this Agreement; PROVIDED, HOWEVER, that the
provisions of this Section 12.6 shall not apply in the event of any merger,
consolidation or reorganization in which the Company is not the surviving
corporation if all Purchasers are entitled to receive in exchange for their
Registrable Shares consideration consisting solely of (i) cash, or (ii)
securities of the acquiring corporation which may be immediately sold to the
public without registration under the Securities Act.
12.7 EXPENSES. Each party shall pay all costs and expenses that it incurs
with respect to the negotiation, execution, delivery and performance of this
Agreement. The Company shall, at the Closing, reimburse the reasonable fees of
and expenses of one special counsel for the Purchasers, and shall reimburse such
special counsel for reasonable expenses incurred in connection with the
negotiation, execution, delivery and performance of this Agreement.
12.8 ENTIRE AGREEMENT. This Agreement, the Non-Disclosure Agreements dated
August 23, 1999 and October 8, 1999, the Management Rights Letter 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.
12.9 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 publicity and/or
opportunity to review such disclosure.
12.10 WAIVER OF CONFLICTS. Each party to this Agreement acknowledges that
legal counsel for the Company, Cooley Godward LLP ("Cooley Godward"), has in the
past and may continue in the future to perform legal services for one or more of
the Purchasers or their affiliates in matters unrelated to the transactions
contemplated by this Agreement, including, but not limited to, the
representation of the Purchasers in matters of a similar nature to the
transactions contemplated herein. Each party to this Agreement hereby (a)
acknowledges that they have had an opportunity to ask for and have obtained
information relevant to such representation, including disclosure of the
reasonably foreseeable adverse consequences of such representation; (b)
acknowledges that with respect to the transactions contemplated herein, Cooley
Godward has represented the Company and not any individual Purchaser or any
individual shareholder, director or employee of the Company; and (c) gives its
informed consent to Cooley Godward's representation of the Company in the
transactions contemplated by this Agreement and Cooley Godward's representation
of one or more of the Purchasers or their affiliates in matters unrelated to
such transactions.
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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: PURCHASERS:
ONYX PHARMACEUTICALS, INC. ALTA BIOPHARMA PARTNERS, L.P.
By: Alta BioPharma Management, LLC
By: /s/Hollings C. Renton By: /s/Eileen McCarthy
--------------------------- ----------------------------------------
Name: Hollings C. Renton Name: Eileen McCarthy
Title: President and CEO Title: MEMBER
Address: 3031 Research Drive Address: One Embarcadero Center, Ste. 4050
Richmond, CA 94806 San Francisco, CA 94111
ALTA EMBARCADERO BIOPHARMA PARTNERS, LLC
By: /s/Eileen McCarthy
----------------------------------------
Name: Eileen McCarthy
Title: MEMBER
Address: One Embarcadero Center, Ste. 4050
San Francisco, CA 94111
ONYX CHASE PARTNERS (ALTA BIO), LLC
By: Alta/Chase BioPharma Management, LLC
By: /s/Eileen McCarthy
----------------------------------------
Name: Eileen McCarthy
Title: MEMBER
Address: One Embarcadero Center, Ste. 4050
San Francisco, CA 94111
DOMAIN PARTNERS IV, L.P.
By: One Palmer Square Associates IV,L.L.C.
Its General Partner
By: /s/Kathleen K. Schoemaker
----------------------------------------
Name: Kathleen K. Schoemaker
Title: Managing Member
Address: One Palmer Square
Princeton, NJ 08542
DP IV ASSOCIATES, L.P.
By: One Palmer Square Associates IV, L.L.C.
Its General Partner
By: /s/Kathleen K. Schoemaker
----------------------------------------
Name: Kathleen K. Schoemaker
Title: Managing Member
Address: One Palmer Square
Princeton, NJ 08542
INTERNATIONAL BIOTECHNOLOGY TRUST PLC
By: /s/Jeremy L. Curnock Cook
----------------------------------------
Name: Jeremy L. Curnock Cook
Title: Director
Address: Five Arrows House
St. Swithin's Lane
London EC4N 8 NR
England
<PAGE>
EXHIBIT A
SCHEDULE OF PURCHASES
NAME SHARES PURCHASE PRICE
Alta BioPharma Partners, L.P. 690,651 $6,215,859
Alta Embarcadero BioPharma, LLC 26,032 234,288
ONYX Chase Partners (Alta Bio), LLC 394,428 3,549,852
International Biotechnology Trust plc 222,222 1,999,998
Domain Partners IV, L.P. 651,065 5,859,585
DP IV Associates, L.P. 15,602 140,418
--------- -----------
Total 2,000,000 $18,000,000
