UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
(“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN. THIS NOTE IS A GLOBAL NOTE
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO
A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. 1
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This legend is
to be included only if the Note is a Global Note.
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1
Onyx Pharmaceuticals,
Inc.
4.00% Convertible Senior Notes due
2016
CUSIP:
683399AB5
ISIN: US683399AB58
Onyx
Pharmaceuticals, Inc., a company duly incorporated and validly
existing under the laws of the State of Delaware (herein called the
“ Company ”), which term includes any successor
corporation under the Indenture referred to on the reverse hereof),
for value received hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of [ • ] United
States Dollars ($[ • ]) (which amount may from time to
time be increased or decreased by adjustments made on the records
of the Trustee, as custodian for the Depositary, in accordance with
the rules and procedures of the Depositary and in accordance with
the below referred Indenture) on August 15, 2016.
The issue date of
this Note is August 12, 2009.
Reference is made
to the further provisions of this Note set forth on the reverse
hereof, including, without limitation, provisions giving the
Company the right to redeem this Note under certain circumstances,
provisions giving the Holder the right to convert this Note into
Common Stock of the Company and to the ability and obligation of
the Company to purchase this Note upon certain events, in each
case, on the terms and subject to the limitations referred to on
the reverse hereof and as more fully specified in the Indenture.
Such further provisions shall for all purposes have the same effect
as though fully set forth at this place. Capitalized terms used but
not defined herein shall have such meanings as are ascribed to such
terms in the Indenture.
This Note shall be
deemed to be a contract made under the laws of the State of New
York, and for all purposes shall be construed in accordance with
and governed by the laws of said State.
2
IN WITNESS
WHEREOF, the Company has caused this instrument to be duly
executed.
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ONYX
PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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Date:
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TRUSTEE’S
CERTIFICATION OF
AUTHENTICATION
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee, certifies that
this is one of the Notes described in the
within-mentioned Indenture.
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By:
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Name:
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Authorized
Signatory
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Date:
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3
[FORM OF REVERSE SIDE OF
NOTE]
Onyx Pharmaceuticals,
Inc.
4.00% Convertible Senior Notes
due 2016
This Note is one
of a duly authorized issue of 4.00% Convertible Senior Notes due
2016 (the “ Notes ”) of the Company issued under
an Indenture, dated as of August 12, 2009 (as amended,
modified and supplemented by the First Supplemental Indenture dated
August 12, 2009, the “ Indenture ”) between
the Company and Wells Fargo Bank, National Association, as trustee
(the “ Trustee ”). The terms of the Note include
those stated in the Indenture, those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended (the
“ TIA ”), and those set forth in this Note. This
Note is subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of all such terms. To the
extent permitted by applicable law, if any provision of this Note
conflicts with the express provisions of the Indenture, the
provisions of the Indenture shall govern and be controlling.
Capitalized terms used but not defined herein have the meanings
assigned to them in the Indenture unless otherwise
indicated.
This Note shall
bear interest at a rate of 4.00% per annum on the principal amount.
Interest on this Note shall accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from
August 12, 2009. Interest will be payable semi-annually, in
arrears, on each February 15 and August 15, beginning on
February 15, 2010, to holders of record at the Close of
Business on the immediately preceding February 1 and August 1,
respectively. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months. If a payment date is not a
Business Day, payment will be made on the next succeeding Business
Day, and no interest (including Additional Interest, if any) will
accrue for the intervening period.
Interest
(including Additional Interest, if any) will cease to accrue on the
Notes upon the Maturity Date, their redemption by the Company or
their conversion or repurchase by the Company at the option of the
Holder.
Payment of the
principal of the Notes shall be made at the Corporate Trust Office
of the Trustee in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts. Payment of interest including Additional
Interest, if any, on Certificated Notes shall be made by check
mailed to the address of the Person entitled thereto as such
address appears in the Security Register; provided ,
however , that Holders with Notes in an aggregate principal
amount in excess of $5.0 million shall be paid, at their
written election, by wire transfer of immediately available
funds.
4
Notwithstanding
the foregoing, so long as the Notes are registered in the name of a
Depositary or its nominee, all payments with respect to the Notes
shall be made by wire transfer of immediately available funds to
the account of the Depositary or its nominee.
3. Paying
Agent, Registrar and Conversion Agent .
Initially, the
Trustee will act as Paying Agent, Registrar and Conversion Agent.
The Company or any Affiliate of the Company may act as Paying
Agent, Registrar or Conversion Agent.
The Notes are
general unsecured senior obligations of the Company. The Indenture
does not limit the ability of the Company to incur other debt,
secured or unsecured.
5.
Redemption at the Option of the Company .
The Notes are
redeemable in whole, or from time to time in part, at any time on
or after August 2
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