<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 1996
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
MAXIM PHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its charter)
--------------------------
Delaware 87-0279983
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
4350 Executive Drive, Suite 310
San Diego, California 92121
(619) 453-4040
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
--------------------------
1993 LONG-TERM INCENTIVE PLAN
(Full title of the plan)
--------------------------
Larry G. Stambaugh
Chairman of the Board, President
and Chief Executive Officer
MAXIM PHARMACEUTICALS, INC.
4350 Executive Drive, Suite 310
San Diego, California 92121
(619) 453-4040
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
--------------------------
Frederick T. Muto, Esq.
Lance W. Bridges, Esq.
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(619) 550-6000
--------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 800,000 $3.75-$9.8125 $4,748,070 $1,637.26
====================================================================================================================================
</TABLE>
<PAGE> 2
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h)(1). The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares subject
to outstanding stock options previously granted under the Registrant's 1993
Long-Term Incentive Plan; and (b) the average of the high and low prices of the
Registrant's Common Stock on August 29, 1996 as reported on the American Stock
Exchange for shares issuable under the Company's 1993 Long-Term Incentive Plan.
The following chart shows the calculation of the registration fee.
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------
Aggregate
Type of Shares Number of Shares Offering Price Per Share Offering Price
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable pursuant to 1,732 $7.50 $12,990
outstanding options under the 1993
Long-Term Incentive Plan
- -----------------------------------------------------------------------------------------------------------------
Common Stock issuable pursuant to 510,998 $3.75 $1,916,243
outstanding options under the 1993
Long-Term Incentive Plan
- -----------------------------------------------------------------------------------------------------------------
Common Stock issuable under the 1993 287,270 $9.8125 $2,818,837
Long-Term Incentive Plan
- -----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The prospectus contained in the Form SB-2 Registration Statement (No.
333-4854-LA) filed by Maxim Pharmaceuticals, Inc. (the "Registrant") with the
Securities and Exchange Commission (the "Commission") on May 21, 1996, as
amended through the date hereof (the "Form SB-2"), is hereby incorporated by
reference into this Registration Statement. The Registrant has not filed, and
has not been required to file, an annual report pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as of
the date hereof. A description of the Registrant's Common Stock which is
contained in the Form SB-2, including any amendment or reports filed for the
purpose of updating such description, is hereby incorporated by reference into
this Registration Statement. All documents filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended and Restated Certificate of Incorporation and
Bylaws include provisions to (i) eliminate the personal liability of its
directors for monetary damages resulting from breaches of their fiduciary duty
to the extent permitted by Section 102(b)(7) of the Delaware General Corporation
Law (the "Delaware Law") and (ii) require the Registrant to indemnify its
directors and officers to the fullest extent permitted by Section 145 of the
Delaware Law, including circumstances in which indemnification is otherwise
discretionary. Pursuant to Section 145 of the Delaware Law, a corporation
generally has the power to indemnify its present
1.
<PAGE> 4
and former directors, officers, employees and agents against expenses incurred
by them in connection with any suit to which they are, or are threatened to be
made, a party by reason of their serving in such positions so long as they acted
in good faith and in a manner they reasonably believed to be in, or not opposed
to, the best interests of a corporation, and with respect to any criminal
action, they had no reasonable cause to believe their conduct was unlawful. The
Registrant believes that these provisions are necessary to attract and retain
qualified persons as directors and officers. These provisions do not eliminate
liability for breach of the director's duty of loyalty to the Registrant or its
stockholders, for acts or omissions not in good faith or involving intentional
misconduct or knowing violations of law, for any transaction from which the
director derived an improper personal benefit or for any willful or negligent
payment of any unlawful dividend or any unlawful stock purchase agreement or
redemption.
The Registrant has entered into agreements with its directors and
executive officers that require the Registrant to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any 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 affiliated enterprises, provided such
person acted in good faith and in a manner such person reasonably believed to be
in or not opposed to the best interests of the Registrant and, with respect to
any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful. The indemnification agreements also set forth certain procedures
that will apply in the event of a claim for indemnification thereunder.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
- ----------- -----------
* 3.1 Amended and Restated Certificate of Incorporation of
Registrant.
* 3.2 Bylaws of Registrant.
* 4.1 Specimen Common Stock Certificate.
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum. Reference
is made to Exhibit 5.1.
25.1 Power of Attorney. Reference is made to page 5.
* 99.1 Registrant's 1993 Long-Term Incentive Plan and Form of
Stock Option Agreements.
2.
<PAGE> 5
-----------------------
* Filed as an exhibit to Registration Statement on Form SB-2 (No.
333-4854-LA) originally filed on May 21, 1996, as amended through the
date hereof, and incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering.
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 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 Commission pursuant to Rule 424(b) (Section 230.424(b)
of this chapter) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in the
Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if this Registration Statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
3.
<PAGE> 6
(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.
(b) Filings Incorporating Subsequent Exchange Act Documents By
----------------------------------------------------------
Reference.
- ----------
The undersigned Registrant hereby undertakes 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 Section
15(d) of the Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the 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 such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Filing of Registration Statement on Form S-8.
---------------------------------------------
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 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 Act of 1933 and will be governed by the final adjudication of such
issue.
4.
<PAGE> 7
SIGNATURES
----------
The Registrant. 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-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of La Jolla, State of California, on September 3,
1996.
MAXIM PHARMACEUTICALS, INC.
By /s/ LARRY G. STAMBAUGH
------------------------------------------
Larry G. Stambaugh
Chairman of the Board of Directors,
President and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Larry G. Stambaugh as his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his 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 attorney-in-fact and agent full power and
authority to do and to 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 attorney-in-fact and agent, or his substitute or substitutes, 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.
<TABLE>
<S> <C> <C>
/s/ LARRY G. STAMBAUGH Chairman of the Board of Directors, September 3, 1996
- -------------------------------- President and Chief Executive Officer
Larry G. Stambaugh (Principal Executive Officer and
Principal Financial and Accounting Officer)
/s/ COLIN B. BIER, PH.D. Director September 3, 1996
- --------------------------------
Colin B. Bier, Ph.D.
/s/ G. STEVEN BURRILL Director September 3, 1996
- --------------------------------
G. Steven Burrill
/s/ PER-OLOF MARTENSSON Director September 3, 1996
- --------------------------------
Per-Olof Martensson
/s/ F. DUWAINE TOWNSEN Director September 3, 1996
- --------------------------------
F. Duwaine Townsen
</TABLE>
5.
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
* 3.1 Amended and Restated Certificate of Incorporation of
Registrant.
* 3.2 Bylaws of Registrant.
* 4.1 Specimen Common Stock Certificate.
5.1 Opinion of Cooley Godward Castro Huddleson & Tatum.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Cooley Godward Castro Huddleson & Tatum. Reference
is made to Exhibit 5.1.
25.1 Power of Attorney. Reference is made to page 5.
* 99.1 Registrant's 1993 Long-Term Incentive Plan and Form of
Stock Option.
</TABLE>
- -------------------
* Filed as an exhibit to the Registration Statement on Form SB-2 (No.
333-4854-LA) on May 21, 1996, as amended through the date hereof, and
incorporated herein by reference.
6
<PAGE> 1
EXHIBIT 5.1
OPINION OF COOLEY GODWARD CASTRO HUDDLESON & TATUM
[COOLEY GODWARD LETTERHEAD]
August 30, 1996
Maxim Pharmaceuticals, Inc.
4350 Executive Drive, Suite 310
San Diego, CA 92121
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Maxim Pharmaceuticals, Inc. (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission covering the offering of up to 800,000 shares of the
Company's Common Stock, $.001 par value, (the "Shares") pursuant to its 1993
Long-Term Incentive Plan (the "Plan").
In connection with this opinion, we have examined the Registration Statement and
related Prospectus, your Certificate of Incorporation and Bylaws, as amended,
and such other documents, records, certificates, memoranda and other instruments
as we deem necessary as a basis for this opinion. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain deferred
payment arrangements, which will be fully paid and nonassessable when such
deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Respectfully,
COOLEY GODWARD CASTRO
HUDDLESON & TATUM
/s/ Frederick T. Muto
-----------------
Frederick T. Muto
<PAGE> 1
EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
Maxim Pharmaceuticals, Inc.:
We consent to incorporation by reference in the registration statement on Form
S-8 of Maxim Pharmaceuticals, Inc. and subsidiary (a Delaware corporation in the
development stage) of our report dated May 17, 1996, relating to the
consolidated balance sheets of Maxim Pharmaceuticals, Inc. and subsidiary (a
Delaware corporation in the development stage) as of September 30, 1995 and
March 31, 1996, and the related consolidated statements of operations,
stockholders' equity (deficit), and cash flows for the years ended September 30,
1994 and 1995, the six-month periods ended March 31, 1995 and 1996 and the
period from inception (October 23, 1989) through March 31, 1996, which report
appears in the registration statement (No. 333-4854-LA) on Form SB-2 of Maxim
Pharmaceuticals, Inc. and subsidiary (a Delaware corporation in the development
stage) dated July 10, 1996. Our report dated May 17, 1996, contains an
explanatory paragraph that states that the company has suffered recurring losses
from operations and has a net capital deficiency, which raise substantial doubt
about its ability to continue as a going concern. The consolidated financial
statements do not include any adjustments that might result from the outcome of
this uncertainty.
San Diego, California
August 30, 1996 KPMG Peat Marwick LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF COOLEY GODWARD CASTRO HUDDLESON & TATUM
[SEE EXHIBIT 5.1]
