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TABLE OF CONTENTS
Table of Contents
As filed with the Securities and Exchange Commission on January 15, 2013
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ONYX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or Other Jurisdiction of
Incorporation or Organization)
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94-3154463
(I.R.S. Employer
Identification No.)
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249 East Grand Avenue
South San Francisco, California 94080
(650) 266-0000
(Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices)
N. ANTHONY COLES
President and Chief Executive Officer
Onyx Pharmaceuticals, Inc.
249 East Grand Avenue
South San Francisco, California 94080
(650) 266-0000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
ROBERT L. JONES
MICHAEL E. TENTA
Cooley LLP
3175 Hanover Street
Palo Alto, California 94304
(650) 843-5000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following
box.
o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box.
ý
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering.
o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the
Commission
pursuant to Rule 462(e) under the Securities Act, check the following
box.
ý
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a
smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
To Be Registered
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Amount To Be
Registered
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Proposed Maximum
Offering Price Per
Unit
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Proposed Maximum
Aggregate Offering
Price
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Amount Of
Registration Fee
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Common Stock, $0.001 par value per share
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(1)
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(1)
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(1)
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(2)
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Preferred Stock, $0.001 par value per share
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(1)
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(1)
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(1)
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(2)
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Debt Securities
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(1)
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(1)
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(1)
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(2)
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Warrants
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(1)
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(1)
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(1)
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(2)
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Total
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(1)
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(1)
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(1)
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(2)
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(1)
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Omitted
pursuant to General Instructions II.E of Form S-3. An indeterminate number or amount, as the case may be, of common stock,
preferred stock, debt securities and warrants are being registered hereunder as may from time to time be issued at indeterminate prices. The securities being registered hereunder may be convertible
into or exchangeable or exercisable for other securities of any identified class, and may be sold separately or in combination with the other securities registered hereunder. In addition to the
securities that may be issued directly under this registration statement, there is being registered hereunder such indeterminate aggregate number or amount, as the case may be, of the securities of
each identified class as may from time to time be issued upon the conversion, exchange, settlement or exercise of other securities offered hereby. Separate consideration may or may not be received for
securities that are issuable upon the conversion or exercise of, or in exchange for, other securities offered hereby.
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(2)
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In
accordance with Rules 456(b) and 457(r), the registrant is deferring payment of all of the registration fees.
Table of Contents
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
From time to time, we may offer to sell any combination of the securities described in this prospectus in amounts, at prices and on terms
described in one or more supplements to this prospectus. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or
common stock, preferred stock or debt securities upon the exercise of warrants.
This
prospectus describes some of the general terms that may apply to an offering of our common stock, preferred stock, debt securities or warrants. The specific terms and any other
information relating to a specific offering will be set forth in a post-effective amendment to the registration statement of which this prospectus is a part or in a supplement to this
prospectus or may be set forth in one or more documents incorporated by reference in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you in connection
with a specific offering.
We
may offer and sell common stock, preferred stock, debt securities or warrants to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or
delayed basis. The supplements to this prospectus and any authorized free writing prospectus will provide the specific terms of the plan of distribution.
Our
common stock trades on the NASDAQ Global Select Market under the symbol "ONXX." On January 14, 2013, the last reported sale price of our common stock on the NASDAQ Global
Select Market was $82.82 per share.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties described under the heading
"Risk Factors" contained in the applicable prospectus supplement and in any free writing prospectus we have authorized for use in connection with a specific offering, and under similar headings in the
documents that are incorporated by reference into this prospectus.
This prospectus may not be used to consummate a sale of securities unless accompanied by a prospectus
supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is January 15, 2013
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TABLE OF CONTENTS
Table of Contents
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed with the Securities and Exchange
Commission, or SEC, utilizing an "automatic shelf" registration process available to "well-known seasoned issuers," as defined in Rule 405 under the Securities Act of 1933, as
amended, or the Securities Act. Under this shelf registration statement, we may offer and sell from time to time in one or more offerings the common stock, preferred stock, debt securities, warrants
or any combination of these securities described in this prospectus. No limit exists on the aggregate number of shares of common stock, preferred stock or warrants, or the amount of debt securities we
may sell pursuant to the registration statement. We may also offer common stock or preferred stock upon conversion of debt securities, common stock upon conversion of preferred stock, or common stock,
preferred stock or debt securities upon the exercise of warrants.
Each
time we offer securities under this prospectus, we will provide a prospectus supplement that will contain more specific information about the terms of that offering. We may also
authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing
prospectus that we may authorize to be provided to you may also add, update or change any of the information contained in this prospectus
or in the documents that we have incorporated by reference into this prospectus. We urge you to read carefully this prospectus, any applicable prospectus supplement and any free writing prospectuses
we have authorized for use in connection with a specific offering, together with the information incorporated herein by reference as described under the heading "Incorporation of Certain Information
by Reference," before buying any of the securities being offered.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus supplement.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All
of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the section entitled "Where You Can Find More
Information."
This
prospectus contains and incorporates by reference market data and industry statistics and forecasts that are based on independent industry publications and other publicly available
information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we
are not aware of any misstatements regarding the market and industry data presented in this prospectus and the documents incorporated herein by reference, these estimates involve risks and
uncertainties and are subject to change based on various factors, including those discussed under the heading "Risk Factors" contained in the applicable prospectus supplement and any related free
writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this
information.
We
have not authorized anyone to provide any information other than that contained or incorporated by reference in this prospectus or applicable prospectus supplement or free writing
prospectus prepared by or on behalf of us or to which we have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may
give you. We are not making an offer to sell these securities, or soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. You should not assume that
the information contained in this prospectus, or in any prospectus supplement or authorized free writing prospectus, is accurate as of any date other than its date regardless of the time of delivery
of the prospectus, prospectus supplement or authorized free writing prospectus or any sale of these securities.
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We
urge you to read carefully this prospectus, any applicable prospectus supplement and any authorized free writing prospectus, together with the information incorporated herein by
reference as described under the heading "Where You Can Find More Information," before deciding whether to invest in any of the securities being offered.
This
prospectus and the information incorporated herein by reference includes trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and
trade names included or incorporated by reference into this prospectus or any applicable prospectus supplement or any authorized free writing prospectus are the property of their respective owners.
References
in this prospectus to "Onyx," "we," "us" and "our" refer to Onyx Pharmaceuticals, Inc., a Delaware corporation, and its subsidiaries. Our website address is
http://www.onyx.com
. We do not
incorporate the information on our website into this prospectus, and you should not consider it part of this prospectus.
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RISK FACTORS
Investing in our securities involves risks. You should review carefully the risks and uncertainties described under the heading "Risk
Factors" contained in any applicable prospectus supplement or authorized free writing prospectus and under similar headings in the other documents that are incorporated by reference into this
prospectus before deciding whether to purchase any of the securities being registered pursuant to the registration statement of which this prospectus is a part. Each of the risk factors could
adversely affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities, and the occurrence of any of these risks might cause
you to lose all or part of your investment. Moreover, the risks described are not the only ones that we face. Additional risks not presently known to us or that we currently believe are immaterial may
also significantly impair our business operations.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, the documents that we have filed with the SEC that are incorporated by reference in this prospectus and any authorized
free writing prospectus contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and within the meaning of
Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act, that are subject to the "safe harbor" created by those sections. These forward-looking statements can
generally be identified as such because the context of the statement will include words such as "may," "will," "expect," "anticipate," "intend," \"believe," "hope," "assume," "estimate," "plan,"
"future," "potential," "likely," "unlikely," "opportunity," "predict," "continue," "should," or the negative of these terms and similar expressions intended to identify forward-looking statements.
Discussions containing these forward-looking statements may be found, among other places, in "Business" and in "Management's Discussion and Analysis of Financial Condition and Results of Operations"
incorporated by reference from our most recent Annual Report on Form 10-K and from our Quarterly Reports on Form 10-Q for the quarterly periods ended subsequent
to our filing of such Annual Report on Form 10-K, as well as any amendments thereto reflected in subsequent filings with the SEC. These forward-looking statements include but are
not limited to statements about:
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our strategy;
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the progress, timing and results of our development programs, including clinical testing;
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sufficiency of our cash resources;
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revenues from existing and new collaborations;
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product development;
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our research and development and other expenses; and
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our operations and legal risks.
These
forward-looking statements are based largely on our expectations and projections about future events and future trends affecting our business, and are subject to risks and
uncertainties that could cause actual results to differ materially form those anticipated in the forward-looking statements. Before deciding to purchase our securities, you should carefully consider
the risk factors described in the "Risk Factors" section of this prospectus, in addition to the other information set forth in this prospectus, any applicable prospectus supplement, any authorized
free writing prospectus and the documents incorporated by reference herein and therein.
In
addition, past financial and/or operating performance is not necessarily a reliable indicator of future performance and you should not use our historical performance to anticipate
results or future period trends. We can give no assurances that any of the events anticipated by the forward-looking
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statements
will occur or, if any of them do, what impact they will have on our results of operations and financial condition.
Except
as required by law, we undertake no obligation to publicly revise our forward-looking statements to reflect events or circumstances that arise after the filing of this prospectus,
any applicable prospectus supplement, any authorized free writing prospectus, or documents incorporated by reference herein and therein, that include forward-looking statements.
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SELECTED FINANCIAL DATA
The following table sets forth our historical selected financial information. Effective January 1, 2012, we adopted the
Financial Accounting Standards Board's ("FASB") Accounting Standards Update ("ASU") No. 2011-05, Comprehensive Income (Topic 220): Presentation of Comprehensive Income, as amended
by ASU 2011-12, Comprehensive Income (Topic 220): Deferral of the Effective Date for Amendments to the Presentation of Reclassifications of Items Out of Accumulated Other Comprehensive
Income in Accounting Standards Update No. 2011-05. These updates revise the manner in which entities present comprehensive income in their financial statements. The following
selected financial information revises historical information to illustrate the new presentation required by this pronouncement for the periods presented.
STATEMENTS OF COMPREHENSIVE INCOME
(Unaudited, in thousands)
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Year Ended
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December 31,
2009
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December 31,
2010
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December 31,
2011
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Net income (loss)
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$
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16,161
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$
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(84,847
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$
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76,110
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Unrealized gain (loss) on available for sale securities
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2,358
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732
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(781
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Unrealized gain (loss) on cash flow hedges
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(61
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61
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Comprehensive income (loss)
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$
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18,519
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$
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(84,176
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$
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75,390
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RATIO OF EARNINGS TO FIXED CHARGES
The table below sets forth our ratio of earnings to fixed charges for the periods indicated. "Earnings" consist of income (loss) from
continuing operations before income taxes, extraordinary items, cumulative effect of accounting changes, equity in net losses of affiliates and fixed charges. "Fixed charges" consist of interest
expense and the portion of operating lease expense that represents interest.
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Fiscal the Year Ended December 31,
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Nine Months
Ended
September 30,
2012
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2007
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2008
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2009
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2010
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2011
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Ratio of earnings to fixed charges(1)
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7.1
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3.4
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4.1
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For
the fiscal years ended December 31, 2007 and 2010, and the nine months ended September 30, 2012, our earnings were insufficient to cover
fixed charges by $34.2 million, $85.7 million, $240.6 million, respectively.
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERENCE DIVIDENDS
The table below sets forth our ratio of earnings to combined fixed charges and preference security dividends for the periods
indicated. "Earnings" consist of income (loss) from continuing operations before income taxes, extraordinary items, cumulative effect of accounting changes, equity in net losses of affiliates and
fixed charges. "Fixed charges" consist of interest expense and the portion of operating
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lease
expense that represents interest. "Preference dividends" consist of the amount of pre-tax earnings that is required to pay the dividends on outstanding preference securities.
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Fiscal the Year Ended December 31,
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Nine Months
Ended
September 30,
2012
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2007
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2008
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2009
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2010
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2011
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Ratio of earnings to combined fixed charges and preference dividends(1)
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7.1
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3.4
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4.1
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For
the fiscal years ended December 31, 2007 and 2010, and the nine months ended September 30, 2012, our combined fixed charges and preference
dividends exceeded earnings by $34.2 million, $85.7 million, $240.6 million, respectively.
USE OF PROCEEDS
Except as described in any prospectus supplement or in any related authorized free writing prospectus that we may authorize to be
provided to you, we intend to use the net proceeds from the sale of securities issued pursuant to this registration statement to fund our clinical development program for carfilzomib and oprozomib,
and for other research and development activities, both ongoing and planned, as well as sales and marketing activities to commercialize Kyprolis around the world, and for general corporate purposes,
including working capital. We may also use a portion of our net proceeds from any such sale of securities to make potential milestone payments to the Proteolix shareholders; to pay a portion of or all
of our $230 million convertible debt when due; to further build and diversify our pipeline by in-licensing products or product candidates or investing in or acquiring businesses or
technologies that we believe are complementary to our own. We have no current commitments or agreements with respect to any such transactions. We have not determined the amounts we plan to spend on
any of the areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the net proceeds of these offerings. Pending the application of
the net proceeds from these offerings, we expect to invest the proceeds in investment-grade, interest-bearing securities.
The
4.0% convertible senior notes due 2016, or the 2016 Notes, were issued in August 2009 and bear interest at a rate of 4.00% per year, payable semi-annually in arrears, on February 15
and August 15 of each year, commencing on February 15, 2010. The 2016 Notes mature on August 15, 2016, unless earlier converted, repurchased or redeemed.
DESCRIPTION OF CAPITAL STOCK
We may issue shares of our common stock from time to time, in one or more offerings. We will set forth in the applicable prospectus
supplement a description of the terms of the offering of common stock, including the offering price, the net proceeds to us and other offering material relating to such offering.
We
may issue shares of our preferred stock from time to time, in one or more offerings. We will set forth in the applicable prospectus supplement a description of the terms of the
offering of preferred stock, including the offering price, rights, preferences, privileges, restrictions, the net proceeds to us and other offering material relating to such offering.
DESCRIPTION OF DEBT SECURITIES
We may issue shares of our debt securities from time to time, in one or more offerings. We will set forth in the applicable prospectus
supplement a description of the terms of the offering of debt
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securities,
including maturity date, interest, the net proceeds to us and other offering material relating to such offering.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase our common stock, preferred stock and/or debt securities, or any combination of the foregoing.
Warrants may be issued independently or together with any other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant
agreement to be entered into between us and a warrant agent. We will set forth in the applicable prospectus supplement a description of the terms of the offering of warrants, including the offering
price, a description of the material provisions of the applicable warrant agreement, the net proceeds to us and other offering material relating to such offering.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, the validity of the issuance of the securities offered by this
prospectus and any supplement thereto will be passed upon for us by our counsel, Cooley LLP, Palo Alto, California. As of January 15, 2013, partners and associates of Cooley LLP
participating in the preparation of this prospectus and the related Registration Statement on Form S-3 owned no shares of our common stock.
EXPERTS
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements
included in our Annual Report on Form 10-K for the year ended December 31, 2011 and the effectiveness of our internal control over financial reporting as of
December 31, 2011, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements are incorporated by
reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document
we file at the SEC's Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information
about the operation of the public reference room. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file
electronically with the SEC, including Onyx Pharmaceuticals. The SEC's Internet site can be found at
http://www.sec.gov
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the information we file with it, which means that we can disclose important information
to you by referring you to another document that we have filed separately with the SEC. You should read the information incorporated by reference because it is an important part of this prospectus. We
incorporate by reference the following information or documents that we have filed with the SEC (Commission File No. 0-28298):
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our Annual Report on Form 10-K, for the year ended December 31, 2011;
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our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2012, June 30, 2012
and September 30, 2012;
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the information specifically incorporated by reference into our 2011 annual report on Form 10-K
referred to above from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on April 2, 2012;
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our Current Reports on Form 8-K (other than information furnished rather than filed) filed
February 8, 2012, February 16, 2012, May 22, 2012, July 20, 2012, and September 27, 2012; and
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the description of our common stock set forth in our registration statement on Form 8-A, filed with the
SEC on April 2, 1996, including any amendments or reports filed for the purposes of updating this description.
Any
information in any of the foregoing documents will automatically be deemed to be modified or superseded to the extent that information in this prospectus or in a later filed document
that is incorporated or deemed to be incorporated herein by reference modifies or replaces such information.
We
also incorporate by reference any future filings (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on
such form that are related to such items) made with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, until we file a post-effective amendment which
indicates the termination of the offering of the securities made by this prospectus. Information in such future filings updates and supplements the information provided in this prospectus. Any
statements in any such future filings will automatically be deemed to modify and supersede any information in any document we previously filed with the SEC that is incorporated or deemed to be
incorporated herein by reference to the extent that statements in the later filed document modify or replace such earlier statements.
We
will provide to each person, including any beneficial owner, to whom a prospectus is delivered, without charge upon written or oral request, a copy of any or all of the documents that
are incorporated by reference into this prospectus but not delivered with the prospectus, including exhibits which are specifically incorporated by reference into such documents. You may request a
copy of these filings at no cost by writing or telephoning us at the following address or telephone number:
Onyx
Pharmaceuticals, Inc.
Attn: Investor Relations
249 E. Grand Avenue
South San Francisco, California 94080
Telephone number: (650) 266-0000
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by the
registrant in connection with the offering of the securities being registered. All the amounts shown are estimates.
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SEC registration fee
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$
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*
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Accounting fees and expenses
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150,000
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Legal fees and expenses
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250,000
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Trustee's Fees
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**
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Printing and miscellaneous expenses
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100,000
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Total (excluding SEC registration fee and Trustee's Fees)
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$
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500,000
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*
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In
accordance with Rule 456(b) and 457(r), the registrant is deferring payment of the registration fee for the securities offered by this prospectus.
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**
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The
issuance of debt securities under an indenture that we will enter into with a trustee to be covered by this registration statement is indefinite at this
time, for which reason an estimate of trustee's fees is not currently determinable.
Item 15. Indemnification of Directors and Officers.
The registrant's amended and restated certificate of incorporation provides that a director will not be personally liable to the
registrant or to its stockholders for monetary damages for any breach of fiduciary duty as a director to the fullest extent permitted by Section 102 of Delaware General Corporation Law.
As
permitted by Section 145 of the Delaware General Corporation Law, the bylaws of the registrant provide that (i) the registrant is required to indemnify its directors and
officers to the fullest extent not prohibited by the Delaware General Corporation Law, (ii) the registrant may, in its discretion, indemnify its other employees and agents as set forth in the
Delaware General Corporation Law, (iii) the registrant is required to advance all expenses incurred by its directors and officers in connection with certain legal proceedings, (iv) the
rights conferred in the bylaws are not exclusive, and (v) the registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents.
The
registrant has entered into agreements with its directors and officers that require the registrant to indemnify such persons against expenses, judgments, fines, settlements, and
other amounts that any such person becomes legally obligated to pay (including with respect to a derivative action) in connection with any proceeding, whether actual or threatened, to which such
person may be made a party by reason of the fact that such person is or was a director or officer of the registrant or any of its affiliates. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification thereunder. At present, no litigation or proceeding is pending that involves a director or officer of the registrant regarding
which indemnification is sought, nor is the registrant aware of any threatened litigation that may result in claims for indemnification.
The
underwriting agreement that the registrant might enter into (Exhibit 1.1) will provide for indemnification by any underwriters of the registrant, its directors, its officers
who sign the registration statement and its controlling persons for some liabilities, including liabilities arising under the Securities Act of 1933, as amended.
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Table of Contents
The
registrant maintains a directors' and officers' insurance and registrant reimbursement policy. The policy (i) insures directors and officers against losses for which the
registrant does not indemnify and which losses arise from certain wrongful acts in the indemnified parties' capacities as directors and officers and (ii) reimburses the registrant for those
losses for which the registrant has lawfully indemnified the directors and officers. The policy contains various exclusions, none of which apply to the offering of the securities being registered.
The
indemnification provisions noted above may be sufficiently broad to permit indemnification of the registrant's officers and directors for liabilities arising under the Securities Act
of 1933, as amended.
Item 16. Exhibits.
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Exhibit
Number
|
|
Description of the Document
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1.1
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Form of Underwriting Agreement(1)
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3.1
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Amended and Restated Certificate of Incorporation(2)
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|
3.2
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Amended and Restated Bylaws(3)
|
|
3.3
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|
Certificate of Amendment to Amended and Restated Certificate of Incorporation(4)
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|
3.4
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|
Certificate of Amendment to Amended and Restated Certificate of Incorporation(5)
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|
3.5
|
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation(6)
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|
4.1
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|
Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5
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4.2
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Form of Common Stock Certificate(2)
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4.3
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Form of Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock(1)
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4.4
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|
Form of Indenture
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4.5
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|
Form of Note(1)
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4.6
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Form of Common Stock Warrant Agreement
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|
4.7
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|
Form of Preferred Stock Warrant Agreement
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|
4.8
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|
Form of Debt Securities Warrant Agreement
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|
4.9
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|
Form of Warrant Certificate(1)
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|
5.1
|
|
Opinion of Cooley LLP
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|
12.1
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges and of Ratio of Combined Fixed Earnings and Preferred Dividends to Earnings
|
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23.1
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Consent of Independent Registered Public Accounting Firm
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23.2
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Consent of Cooley LLP (included in Exhibit 5.1)
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24.1
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Power of Attorney (included on signature page)
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25.1
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Statement of Eligibility of Trustee under the Indenture(7)
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(1)
-
To
be filed by amendment or as an exhibit to a current report of the Registrant on Form 8-K.
-
(2)
-
Previously
filed as an exhibit to Onyx's Registration Statement on Form SB-2 (No. 333-3176-LA).
II-2
Table of Contents
-
(3)
-
Previously
filed as an exhibit to Onyx's Current Report on Form 8-K, filed on December 5, 2008.
-
(4)
-
Previously
filed as an exhibit to Onyx's Quarterly Report on Form 10-Q for the Quarter ended June 30, 2000
(No. 000-28298).
-
(5)
-
Previously
filed as an exhibit to Onyx's Registration Statement on Form S-3 (No. 333- 134565), filed on May 30,
2006.
-
(6)
-
Previously
filed as an exhibit to Onyx's Current Report on Form 8-K filed on May 27, 2011.
-
(7)
-
To
be filed separately under the electronic form type 305B2, if applicable.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
-
(1)
-
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration
statement:
-
(i)
-
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
-
(ii)
-
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
and
-
(iii)
-
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change
to such information in the registration statement;
provided, however,
that subparagraphs (i), (ii) and (iii) above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 and Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
-
(2)
-
That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona
fide
offering thereof.
-
(3)
-
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
-
(4)
-
That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
-
(A)
-
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
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-
(B)
-
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities
Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
Provided, however
,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
-
(5)
-
That,
for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such securities to such purchaser:
-
(i)
-
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
-
(ii)
-
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned
registrant;
-
(iii)
-
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant; and
-
(iv)
-
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
-
(6)
-
That,
for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of
the securities at that time shall be deemed to be the initial
bona fide
offering thereof.
-
(7)
-
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of
expenses
II-4
Table of Contents
incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Exchange Act and will be governed by the final adjudication of such issue.
-
(8)
-
To
file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
II-5
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of South San Francisco, State of California, on January 15, 2013.
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|
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|
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ONYX PHARMACEUTICALS, INC.
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|
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By:
|
|
/s/ N. ANTHONY COLES
N. Anthony Coles
President and Chief Executive Officer
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints N. Anthony Coles and
Matthew K. Fust, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes or substitute, may lawfully do or
cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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|
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|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ N. ANTHONY COLES
N. Anthony Coles
|
|
President, Chief Executive Officer and Director (Principal Executive Officer)
|
|
January 15, 2013
|
/s/ MATTHEW K. FUST
Matthew K. Fust
|
|
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)
|
|
January 15, 2013
|
/s/ PAUL GODDARD
Paul Goddard, Ph.D.
|
|
Director
|
|
January 15, 2013
|
/s/ ANTONIO GRILLO-LOPEZ
Antonio Grillo-Lopez, M.D.
|
|
Director
|
|
January 15, 2013
|
II-6
Table of Contents
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|
|
|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ MAGNUS LUNDBERG
Magnus Lundberg
|
|
Director
|
|
January 15, 2013
|
/s/ CORINNE H. NEVINNY
Corinne H. Nevinny
|
|
Director
|
|
January 15, 2013
|
/s/ WILLIAM R. RINGO
William R. Ringo
|
|
Director
|
|
January 15, 2013
|
/s/ WENDELL WIERENGA
Wendell Wierenga, Ph.D.
|
|
Director
|
|
January 15, 2013
|
/s/ THOMAS G. WIGGANS
Thomas G. Wiggans
|
|
Director
|
|
January 15, 2013
|
II-7
Table of Contents
EXHIBIT INDEX
|
|
|
|
Exhibit
Number
|
|
Description of the Document
|
|
1.1
|
|
Form of Underwriting Agreement(1)
|
|
3.1
|
|
Amended and Restated Certificate of Incorporation(2)
|
|
3.2
|
|
Amended and Restated Bylaws(3)
|
|
3.3
|
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation(4)
|
|
3.4
|
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation(5)
|
|
3.5
|
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation(6)
|
|
4.1
|
|
Reference is made to Exhibits 3.1, 3.2, 3.3, 3.4 and 3.5
|
|
4.2
|
|
Form of Common Stock Certificate(2)
|
|
4.3
|
|
Form of Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock(1)
|
|
4.4
|
|
Form of Indenture
|
|
4.5
|
|
Form of Note(1)
|
|
4.6
|
|
Form of Common Stock Warrant Agreement
|
|
4.7
|
|
Form of Preferred Stock Warrant Agreement
|
|
4.8
|
|
Form of Debt Securities Warrant Agreement
|
|
4.9
|
|
Form of Warrant Certificate(1)
|
|
5.1
|
|
Opinion of Cooley LLP
|
|
12.1
|
|
Statement of Computation of Ratio of Earnings to Fixed Charges and of Ratio of Combined Fixed Earnings and Preferred Dividends to Earnings
|
|
23.1
|
|
Consent of Independent Registered Public Accounting Firm
|
|
23.2
|
|
Consent of Cooley LLP (included in Exhibit 5.1)
|
|
24.1
|
|
Power of Attorney (included on signature page)
|
|
25.1
|
|
Statement of Eligibility of Trustee under the Indenture(7)
|
-
(1)
-
To
be filed by amendment or as an exhibit to a current report of the Registrant on Form 8-K.
-
(2)
-
Previously
filed as an exhibit to Onyx's Registration Statement on Form SB-2 (No. 333-3176-LA).
-
(3)
-
Previously
filed as an exhibit to Onyx's Current Report on Form 8-K, filed on December 5, 2008.
-
(4)
-
Previously
filed as an exhibit to Onyx's Quarterly Report on Form 10-Q for the Quarter ended June 30, 2000
(No. 000-28298).
-
(5)
-
Previously
filed as an exhibit to Onyx's Registration Statement on Form S-3 (No. 333- 134565), filed on May 30,
2006.
-
(6)
-
Previously
filed as an exhibit to Onyx's Current Report on Form 8-K filed on May 27, 2011.
-
(7)
-
To
be filed separately under the electronic form type 305B2, if applicable.
II-8
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