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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 20, 1998
REGULATION NO. 333-4854-LA
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
ON
FORM S-3
TO
FORM SB-2
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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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)
8899 UNIVERSITY CENTER LANE, SUITE 200
SAN DIEGO, CALIFORNIA 92122
(619) 453-4040
(Address, including zip code, and telephone number, including area
code, or Registrant's principal executive offices)
DALE A. SANDER
VICE PRESIDENT, FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY
MAXIM PHARMACEUTICALS, INC.
8899 UNIVERSITY CENTER LANE, SUITE 200
SAN DIEGO, CALIFORNIA 92122
(619) 453-4040
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
LANCE W. BRIDGES, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CALIFORNIA 92121
(619) 550-6000
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. / /
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 in connection with dividend or
interest reinvestment plans, check the following box. /X/
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. / /___________
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. / /_____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /__________________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further Amendment that specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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PROSPECTUS
3,375,000 SHARES OF COMMON STOCK AND
250,000 UNDERLYING WARRANTS
MAXIM PHARMACEUTICALS, INC.
This Prospectus covers 3,375,000 shares (the "Shares") of the Common Stock,
$.001 par value per share (the "Common Stock"), and 250,000 Underlying
Warrants (defined below) of Maxim Pharmaceuticals, Inc., a Delaware
corporation ("Maxim" or the "Company"). The Shares covered by this
prospectus (the "Prospectus") are issuable by the Company upon exercise of:
(i) 2,875,000 Redeemable Common Stock Purchase Warrants expiring July 10,
2001 (the "Redeemable Warrants"), issued in connection with a public offering
of units made by the Company on July 10, 1996 (the "Initial Public
Offering"); (ii) warrants expiring July 10, 2001 (the "Representative's
Warrants") to purchase 250,000 shares of Common Stock and 250,000 redeemable
warrants (the "Underlying Warrants"), issued to the representative of the
underwriters of the Initial Public Offering and (iii) the 250,000 Underlying
Warrants. The Underlying Warrants covered by this Prospectus are issuable
upon exercise of the Representative's Warrants. The Redeemable Warrants,
Representative's Warrants and Underlying Warrants are sometimes hereinafter
collectively referred to as the "Warrants." The Warrants and the Shares are
sometimes hereinafter collectively referred to as the "Securities." Each
Redeemable Warrant entitles the registered holder thereof to purchase one
share of Common Stock at an initial exercise price of $10.50 per share at any
time prior to July 10, 2001. Each Representative Warrant entitles the
registered holder thereof to purchase one share of Common Stock at a price of
$9.00 per share and one Underlying Warrant at a price of $0.12 per Underlying
Warrant at any time prior to July 10, 2001. Each Underlying Warrant entitles
the registered holder thereof to purchase one share of Common Stock at an
initial exercise price of $12.38 per share at any time prior to July 10,
2001. The number of shares of Common Stock issuable upon exercise of the
Warrants, and the respective exercise price therefore, are subject to
adjustment under certain circumstances. The number of Underlying Warrants
issuable upon exercise of the Representative's Warrants and the exercise
price therefore are also subject to adjustment under certain circumstances.
The Company may redeem the Redeemable Warrants and the Underlying Warrants at
$.01 per Redeemable Warrant and Underlying Warrant, respectively, on thirty
(30) days' prior written notice to the registered holders thereof if the
average closing bid price of the Common Stock as reported on the American
Stock Exchange ("AMEX") equals or exceeds $12.00 per share for any twenty
(20) trading days within a period of thirty (30) consecutive trading days
ending on the fifth trading day prior to the date of the notice of
redemption. This prospectus relates only to shares of Common Stock and the
Underlying Warrants, and neither the Redeemable Warrants, Representative's
Warrants nor any other security is being offered hereby. No underwriting
discounts or commissions will be paid in connection with the exercise of the
Warrants.
No public market exists for the Representative's Warrants or the Underlying
Warrants. The Common Stock of the Company is traded on the American Stock
Exchange ("AMEX") under the symbol "MMP" and the Stockholm Stock Exchange
("SSE") under the symbol "MAXM." The Redeemable Warrants are traded on the
AMEX under the symbol "MMP/WS." The last sales price of the Company's Common
Stock as reported by the AMEX on March 13, 1998 was $15.50 per share. The
last sales price of the Redeemable Warrants as reported by the AMEX on March
13, 1998 was $5.75 per Redeemable Warrant.
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THE SECURITIES COVERED BY THIS PROSPECTUS INVOLVE A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 6.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS MARCH 20, 1998
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NO PERSON IS AUTHORIZED IN CONNECTION WITH ANY OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED
BY REFERENCE IN THIS PROSPECTUS, AND ANY INFORMATION OR REPRESENTATION NOT
CONTAINED OR INCORPORATED HEREIN MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, BY ANY PERSON IN ANY JURISDICTION
IN WHICH IT IS UNLAWFUL FOR SUCH PERSON TO MAKE SUCH OFFER OR SOLICITATION.
NEITHER THE DELIVERY OF THIS PROSPECTUS AT ANY TIME NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, IMPLY THAT THE INFORMATION HEREIN
IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE HEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company may be inspected and
copied at the public reference facilities maintained by the Commission at
Room 1024, 450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549,
and at the Commission's following Regional Offices: Chicago Regional Office,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661; and New York
Regional Office, Seven World Trade Center, Suite 1300, New York, New York
10048. Copies of such material can also be obtained at prescribed rates from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C. 20549. The Commission also maintains a
site on the World Wide Web that contains reports, proxy and information
statements and other information regarding the Company. The address for such
site is http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act with respect to the Common Stock offered hereby.
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain portions of which are omitted in accordance
with the rules and regulations of the Commission. For further information
with respect to the Company and the Common Stock offered hereby, reference is
made to the Registration Statement and the exhibits and schedules thereto,
which may be inspected without charge at, and copies thereof may be obtained
at prescribed rates from, the Public Reference Section of the Commission at
450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. The Common
Stock is listed on the American Stock Exchange and the Stockholm Stock
Exchange. Reports and other information concerning the Company may be
inspected at the offices of the AMEX, 86 Trinity Place, Seventh Floor, New
York, N.Y. 10006, and at the offices of the SSE, Kallargrand 2, 11182
Stockholm, Sweden. The SSE's World Wide Web site is located at www.xsse.se.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997, the Company's Quarterly Report on Form 10-Q for the
quarter ended December 31, 1997, the Company's Proxy Statement for its 1998
Annual Meeting of Stockholders filed pursuant to Rule 14a-6 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the description of
the Common Stock contained in the Company's Registration Statement on Form
8-A filed on June 28, 1996, each as filed with the Securities and Exchange
Commission (the "Commission"), are hereby incorporated by reference in this
Prospectus except as superseded or modified herein.
All documents filed with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior
to the termination of the offering shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of
filing of such documents. Any statement contained in any document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus 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 such statement so modified or superseded shall
not be deemed, except as modified or superseded, to constitute a part of this
Prospectus.
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The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the documents that have been
or may be incorporated by reference herein (other than exhibits to such
documents which are not specifically incorporated by reference into such
documents). Such requests should be directed to the Secretary at the
Company's principal executive offices: 8899 University Center Lane, Suite
200, San Diego, California 92122, telephone number (619) 453-4040.
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THE COMPANY
EXCEPT FOR THE HISTORICAL INFORMATION CONTAINED HEREIN OR INCORPORATED BY
REFERENCE, THIS PROSPECTUS (AND THE INFORMATION INCORPORATED HEREIN BY
REFERENCE) CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE CERTAIN RISKS AND
UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS COULD DIFFER MATERIALLY FROM
THOSE DISCUSSED HEREIN OR INCORPORATED BY REFERENCE. FACTORS THAT COULD
CAUSE OR CONTRIBUTE TO SUCH DIFFERENCES INCLUDE, BUT ARE NOT LIMITED TO,
THOSE DISCUSSED IN THE FOLLOWING SECTION, THOSE DISCUSSED ELSEWHERE IN THIS
PROSPECTUS, INCLUDING THE SECTION HEREIN ENTITLED "RISK FACTORS," AND THOSE
DISCUSSED IN ANY OTHER DOCUMENTS INCORPORATED HEREIN BY REFERENCE.
Maxim Pharmaceuticals, Inc. ("Maxim" or the "Company") is developing
novel therapeutics for the treatment of cancer and infectious disease. The
Company's lead drug, MAXAMINE,-TM-is designed to offer a safer treatment that
extends life for seriously ill patients while maintaining quality of life
during treatment. In many patients with cancer and chronic infectious
diseases, the capacity of the patient's immune system to detect and destroy
tumor cells or virally infected cells is compromised. MAXAMINE THERAPY
combines the administration of MAXAMINE, which protects critical immune
cells, with the administration of certain agents, which stimulate these
immune cells (these agents include cytokines and other biological response
modifiers). This combination of actions is designed to allow MAXAMINE
THERAPY to improve the immune system's ability to identify, disable and
destroy malignant or infected cells. The Company believes that MAXAMINE
THERAPY has the potential to: extend life; reduce toxic side effects of
cytokines and other biological response modifiers; maintain the patient's
quality of life during therapy; allow for self-administration at home; and
provide cost-effective therapy.
The Company has initiated three Phase III clinical trials of MAXAMINE
THERAPY for the treatment of cancer. In June 1997 the Company commenced a
200-patient Phase III clinical trial of MAXAMINE THERAPY for advanced
malignant melanoma in the United States. A separate international Phase III
advanced malignant melanoma trial centered in Sweden and Australia commenced
in November 1997. In February 1998 the Company initiated a Phase III
clinical trial for acute myelogenous leukemia ("AML") in the United States,
Europe and Australia. Furthermore, the Company has initiated earlier stage
clinical trials of MAXAMINE THERAPY for the treatment of renal cell
carcinoma, hepatitis C, and multiple myeloma, and plans to evaluate the
commencement of clinical trials of MAXAMINE THERAPY for the treatment of
additional cancers, such as prostate adenocarcinoma, during 1998. All
studies of MAXAMINE THERAPY conducted to date have used MAXAMINE in
combination with one or both of the cytokines interleukin-2 ("IL-2") and
interferon-alpha ("IFN- "). Both IL-2 and IFN- are cytokines with the
capacity for stimulating certain immune functions.
In the Company's two completed Phase II clinical trials for the
treatment of advanced malignant melanoma, MAXAMINE THERAPY produced improved
patient survival outcomes. Median survival time for patients treated with
MAXAMINE THERAPY in these two studies exceeded 13 and 15 months,
respectively, as compared with reported median survival times of
approximately seven months for existing available treatments. In patients
where the melanoma metastasized to the liver, MAXAMINE THERAPY improved
median survival time to 19 months compared to predicted survival times of
approximately four months or less for these patients.
The Company's Phase II clinical trials for the treatment of AML have
demonstrated an improvement of disease-free remission intervals. As of
February 1998, after 24 months of follow-up, 70% of patients treated with
MAXAMINE THERAPY during their first complete remission ("CR1") remain in
complete remission; less than 30% would be expected to remain in remission
under current treatments. Patients who relapsed and achieved a second or
greater remission ("CR2+") and were subsequently treated with MAXAMINE
THERAPY had a median time to relapse in excess of 21 months as compared with
reported median time to relapse of approximately six months under the current
standard of care. Remission inversion (prolonging the duration of CR2+ to
that equal to or exceeding the patient's prior remission duration) was
achieved in 8 of 11 (73%) patients treated with MAXAMINE THERAPY as compared
with approximately 10% to 20% under the current standard of care.
Maxim is also developing MAXVAX-TM-, a mucosal vaccine carrier/adjuvant
platform. The MAXVAX technology is based on the B subunit of cholera toxin
("CTB"), generally regarded as a safe and effective mucosal vaccine carrier.
The Company expects that its future product development efforts will focus on
mucosal vaccines against sexually transmitted diseases, major respiratory
diseases and gastrointestinal tract diseases. The MAXVAX
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platform is also being evaluated for therapeutic vaccines and gene-based
vaccines. The Company intends to seek collaborations with pharmaceutical and
biopharmaceutical partners for the development of mucosal vaccine candidates.
Maxim's drug development strategy is designed to facilitate product
development from preclinical to FDA and other regulatory approvals and
product launch. Maxim plans to work with numerous collaborators, both
pharmaceutical and clinical, in the oncology and infectious disease
communities to extend the labeling of the drug to other indications. In
February 1998 Maxim entered into an agreement with Amgen Inc. under which
Maxim will test MAXAMINE in combination with Amgen's Infergen-Registered
Trademark-, interferon alfacon-1, in a planned clinical trial. Also that
month, Maxim entered into an agreement with a manufacturer and marketer of an
IL-2 product under which that company will provide the IL-2 requirements for
Maxim's Phase III AML clinical trial. To market its products, the Company
intends to develop marketing alliances with corporate partners and may
co-promote and/or co-market in certain territories.
The Company's principal executive offices are located at 8899 University
Center Lane, Suite 200, San Diego, California 92122 and its telephone number
is (619) 453-4040.
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RISK FACTORS
AN INVESTMENT IN THE SHARES COVERED BY THIS PROSPECTUS
INVOLVES A HIGH DEGREE OF RISK. PROSPECTIVE INVESTORS SHOULD
CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS, IN ADDITION TO OTHER
INFORMATION CONTAINED IN THIS PROSPECTUS AND IN ANY OTHER DOCUMENTS
INCORPORATED HEREIN BY REFERENCE IN EVALUATING AN INVESTMENT IN THE
SHARES OF COMMON STOCK COVERED BY THIS PROSPECTUS.
DEVELOPMENT STAGE COMPANY; ACCUMULATED DEFICIT; UNCERTAINTY OF FUTURE
PROFITABILITY. The Company, as a development stage enterprise, has
experienced net losses every year since its inception and, as of December 31,
1997, had a deficit accumulated during the development stage of approximately
$24 million. The Company anticipates incurring substantial additional losses
over at least the next several years due to, among other factors, the need to
expend substantial amounts on its ongoing and planned clinical trials and
anticipated research and development activities, and the business
development, marketing and general and administrative expenses associated
with those activities. The Company has not commercially introduced any
product and its products are in varying stages of development and testing.
The Company's ability to attain profitability will depend upon its ability to
develop products that are effective and commercially viable, to obtain
regulatory approval for the manufacture and sale of its products and to
market its products successfully. There can be no assurance that the Company
will ever achieve profitability or that profitability, if achieved, can be
sustained on an ongoing basis.
NO ASSURANCE OF SUCCESSFUL CLINICAL TRIALS AND PRODUCT DEVELOPMENT. All
drug products currently under development by the Company will require
extensive preclinical and clinical testing prior to regulatory approval for
commercial use. To date, the Company has not completed testing for efficacy
or safety in humans on any of its products. Substantial additional research
and development will be necessary in order for the Company to develop
products based on the Company's MAXAMINE and MAXVAX technologies and there
can be no assurance that the Company's research and development efforts will
lead to development of products that are shown to be safe and effective in
clinical trials and are commercially viable. In addition to further research
and development, potential products based on the Company's MAXAMINE and
MAXVAX technologies will require clinical testing, regulatory approval and
substantial additional investment prior to commercialization. There can be
no assurance that any such products will be successfully developed, prove to
be safe and effective in clinical trials, meet applicable regulatory
standards, be capable of being produced in commercial quantities at
acceptable costs, be eligible for third party reimbursement from governmental
or private insurers, be successfully marketed or achieve market acceptance.
Further, the Company's products may prove to have undesirable or unintended
side effects that may prevent or limit their commercial use. The Company may
find, at any stage of this process, that products that appeared promising in
preclinical studies or Phase I and Phase II clinical trials do not
demonstrate efficacy in larger-scale, Phase III clinical trials and do not
receive regulatory approvals. Accordingly, any product development program
undertaken by the Company may be curtailed, redirected or eliminated at any
time. In addition, there may be delays in the Company's testing and
development schedules, and there can be no assurance that the Company will
meet expected testing and development schedules, which could have a material
adverse effect no the Company's business, financial condition and results of
operations.
NO ASSURANCE OF REGULATORY APPROVAL; GOVERNMENT REGULATION. The U.S.
Food and Drug Administration (the "FDA") and comparable agencies in countries
outside the United States impose substantial requirements on the introduction
of therapeutic pharmaceutical products and vaccines through lengthy and
detailed laboratory and clinical testing procedures and other costly and time
consuming procedures. Satisfaction of these requirements typically takes a
number of years and varies substantially based upon the type, complexity and
novelty of the pharmaceutical agent. In general, the FDA approval process
for pharmaceuticals involves the submission of an Investigational New Drug
("IND") application following preclinical studies, clinical trials in humans
to demonstrate the safety and efficacy of the product under the protocols set
forth in the IND and submission of preclinical and clinical data as well as
other information to the FDA in a New Drug Application ("NDA") or Product
License Application ("PLA"). The Company must expend substantial time and
financial resources to conduct clinical trials. The Company's early clinical
trials were conducted overseas, and ongoing and future clinical trials will
be conducted at least in part overseas. There can be no assurance that the
results of such trials will support the submission or the approval of an NDA
or PLA or that data from the Company's overseas trials or
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approvals of the Company's products in foreign countries outside of the
United States, if any, will be accepted by the FDA. Accordingly, there can be
no assurance that FDA or other regulatory approval for any products developed
by the Company will be granted on a timely basis, or at all. There can be no
assurance that the Company will have sufficient resources to complete the
required regulatory review process, or that the Company could overcome the
inability to obtain, or delays in obtaining, such approvals. The failure of
the Company to receive FDA approval for its products under development would
preclude the Company from marketing and selling its products in the United
States. Therefore, failure to receive such FDA approval would have a
material adverse effect on the business, financial condition and results of
operations of the Company. European and other international regulatory
approvals are subject to the same risks and uncertainties as FDA and other
regulatory approvals in the United States.
The production and marketing of the Company's proposed
products, as well as its ongoing research and development
activities, are also subject to regulation by governmental agencies
of the United States and other countries. The effect of government
regulation may be to delay marketing of the Company's products for
a considerable period of time, to impose costly procedures upon the
Company's activities and to furnish a competitive advantage to
larger companies that compete with the Company. Any delay in
obtaining, or failure to obtain, FDA or other necessary regulatory
approvals, including approvals by comparable agencies outside the
U.S., would adversely affect the marketing of the Company's
products and the ability to generate product revenue. In addition,
the marketing and manufacturing of pharmaceuticals are subject to
continuing FDA (or comparable international agency) review and
surveillance and failure to comply with regulations or discovery of
previously unknown problems can result in FDA (or comparable
international agency) action against the product or the
manufacturer, including fines, recalls, product seizures and
suspension or withdrawal of previously granted regulatory
approvals. Furthermore, government regulation may increase at any
time, creating additional costs and delays for the Company. The
extent of potential adverse government regulation which might arise
from future legislation or administrative action cannot be
predicted.
UNCERTAINTY REGARDING PATENTS AND PROPRIETARY RIGHTS. It is the policy
of the Company to file patent applications in the United States, Europe and
other major markets throughout the world. The patent positions of
biotechnology and pharmaceutical companies are highly uncertain and involve
complex legal and factual questions, and the breadth of claims allowed in
biotechnology and pharmaceutical patents cannot be predicted. There can be
no assurance that patents will issue from any of the Company's patent
applications. With respect to already issued patents and any patents which
may issue from the Company's applications, there can be no assurance that
claims allowed will be sufficient to protect the Company's technologies.
Patent applications in the United States are maintained in secrecy until a
patent issues, and the Company cannot be certain that others have not filed
patent applications for technology covered by the Company's pending
applications or that the Company was the first to file patent applications
for such technology. Competitors may have filed applications for, or may
have received patents and may obtain additional patents and proprietary
rights relating to, compounds or processes that block or compete without
infringing on those of the Company. In addition, there can be no assurance
that any patents issued to the Company or to licensors from whom the Company
has licensed rights to its technologies will not be challenged, invalidated
or circumvented or that the rights granted thereunder will provide
proprietary protection or commercial advantage to the Company.
Other public and private concerns, including universities, may have
filed applications for or have been issued patents with respect to technology
potentially useful or necessary to the Company. The scope and validity of
such patents, the extent to which the Company may wish or need to acquire
licenses under such patents, and the cost or availability of such licenses,
are currently unknown.
In addition to patents and proprietary rights, the Company relies on
unpatented trade secrets and proprietary know-how, and there can be no
assurance that others will not obtain access to or independently develop such
trade secrets and know-how. Although potential corporate partners and the
Company's research partners and consultants are not given access to trade
secrets and proprietary know-how of the Company they have executed
confidentiality agreements, these agreements may be breached by the other
party thereto or may otherwise be of limited effectiveness or enforceability.
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The pharmaceutical industry has experienced extensive litigation
regarding patent and other intellectual property rights. Accordingly, the
Company could incur substantial costs in defending itself in suits that may
be brought against the Company claiming infringement of the patent rights of
others or in asserting the Company's patent rights in a suit against another
party. The Company may also be required to participate in interference
proceedings declared by the United States Patent and Trademark Office for the
purpose of determining the priority of inventions in connection with the
patent applications of the Company or other parties. Adverse determinations
in litigation or interference proceedings could require the Company to seek
licenses (which may not be available on commercially reasonable terms) or
subject the Company to significant liabilities to third parties, and could
therefore have a material adverse effect on the Company.
In 1993 and 1994 the Company entered into agreements under which the
Company received exclusive, worldwide rights to certain technologies related
to the MaxVax technology. In January 1998 the Company filed a complaint in
the United States District Court for the Southern District of California
relating to the licensors' performance under the agreements. The complaint
alleges certain causes of action against the licensors and seeks compensatory
and punitive damages and declaratory relief. The complaint also seeks
specific performance of the licensors' obligations under the agreements. The
Company has filed a request for arbitration in connection with the issues
presented by the complaint. The Company cannot determine what impact, if
any, an unfavorable resolution of the existing concerns would have on the
commercial value of the MaxVax technology.
NEED FOR ADDITIONAL FUNDS; UNCERTAINTY OF ADDITIONAL FUNDING. The
Company's operations to date have consumed substantial amounts of cash.
Negative cash flow from the Company's operations is expected to continue and
to accelerate over at least the next several years. The Company's capital
requirements will depend on numerous factors, including: the progress of
preclinical testing and clinical trials; the progress of the Company's
research and development programs; the time and costs required to obtain
regulatory approvals; the resources devoted to manufacturing methods and
advanced technologies; the timing and amount, if any, of funding obtained
through corporate collaborations; the cost of filing, prosecuting and, if
necessary, enforcing patent claims; the cost of commercialization activities
and arrangements; and the demand for the Company's products if and when
approved. The Company may have to raise substantial additional funds to
complete development of any product or bring products to market. Issuance of
additional equity securities by the Company, for these or other purposes,
could result in dilution to then existing stockholders. There can be no
assurance that additional financing will be available on acceptable terms, if
at all. If adequate funds are not available on acceptable terms, the Company
may be required to delay, scale back or eliminate one or more of its product
development programs or obtain funds through arrangements with collaborative
partners or others that may require the Company to relinquish rights to
certain of its technologies or products that the Company would not otherwise
relinquish, which may have a material adverse effect on the Company's
business, financial condition and results of operations.
DEPENDENCE ON QUALIFIED PERSONNEL. The Company's future
performance depends in part upon the continued contributions of its
senior management and on the ability to attract and retain
qualified management and scientific personnel. Competition for
such personnel is intense, and there can be no assurance that the
Company will be able to continue to attract, assimilate or retain
highly qualified technical and management personnel. The loss of
key personnel or the failure to recruit additional personnel or to
develop needed expertise could have a material adverse effect on
the Company's business, financial condition and results of
operations.
DEPENDENCE ON COLLABORATIVE PARTNERS. The Company's strategy for the
research, development, clinical testing, manufacturing and commercialization
of certain of its products requires arrangements with corporate and
university collaborators, licensors, marketing partners, licensees,
consultants and others, and is dependent upon the subsequent success of these
outside parties in performing their responsibilities. Although the Company
believes parties to any such existing or future arrangements will or would
have an economic motivation to perform their contractual responsibilities,
the amount and timing of resources to be devoted to these activities may not
be within the control of the Company. In addition, there can be no assurance
that collaborators will not pursue alternative technologies as a means for
developing treatments for the diseases targeted by these collaborative
programs. Furthermore, there can be no assurance that the Company will be
able to negotiate acceptable collaborative arrangements, or that its
collaborative arrangements will be successful.
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NO MARKETING AND SALES CAPABILITIES; ANTICIPATED DEPENDENCE UPON
MARKETING ALLIANCES. The Company has not developed pharmaceutical marketing
or sales capabilities. In order to market and sell certain products, the
Company will need to develop a sales force and a marketing group with
technical expertise, or make appropriate arrangements with strategic
partners. There can be no assurance that the Company will be able to gain
such expertise or that such efforts will be successful. The Company's
strategy for development, commercialization and marketing of MAXAMINE and
MAXVAX is expected to involve, where appropriate, the establishment of
marketing and other collaborative relationships with pharmaceutical industry
partners. There can be no assurance that any such relationships can be
consummated on terms favorable to the Company or that marketing efforts
undertaken by such partners will be successful.
NO ASSURANCE OF MARKET ACCEPTANCE. There can be no assurance that, if
approved for marketing, MAXAMINE or any of the Company's other products in
development will achieve market acceptance. The degree of market acceptance
will depend upon a number of factors, including the scope of regulatory
approvals, the establishment and demonstration in the medical community of
the clinical efficacy and safety of the Company's products and therapies and
their potential advantages over existing treatment methods, and reimbursement
policies of government and third-party payors. There can be no assurance
that physicians, patients, payors or the medical community in general will
accept and utilize any products that may be developed by the Company.
NO MANUFACTURING CAPABILITIES. The Company has not invested in the
development of internal pharmaceutical manufacturing capabilities. The
Company's strategy has been, and is expected to continue to be for the
foreseeable future, to contract with established pharmaceutical manufacturers
for the production of MAXAMINE. If the Company is unable to contract for
manufacturing capabilities on acceptable terms, the Company's ability to
conduct clinical testing and to produce commercial quantities of product will
be adversely affected, resulting in delays in submissions for regulatory
approval and in commercial product launches, which in turn could materially
impair the Company's competitive position and the possibility of achieving
profitability. There can be no assurance that the Company will be able to
maintain its existing, or acquire or establish new, satisfactory third-party
relationships to provide manufacturing resources.
COMPETITION. There are many companies, both publicly and privately
held, including well-known pharmaceutical companies, as well as academic and
other research institutions, engaged in developing pharmaceutical and
biologically-derived products for the treatment of cancer and vaccines and
therapeutics for the prevention or the treatment of infectious diseases.
Many of the Company's competitors and potential competitors have
substantially greater capital, research and development capabilities and
human resources than the Company and represent significant competition for
the Company. Many of these competitors have significantly greater experience
than the Company in undertaking preclinical testing and clinical trials of
new pharmaceutical products and obtaining FDA and other regulatory approvals.
If the Company is permitted to commence commercial sales of any product, it
will also be competing with companies that have greater resources and
experience in the manufacturing, marketing and sales of pharmaceutical
products. The Company's competitors may succeed in developing products that
are more effective, less costly, or have a better side effect profile than
any that may be developed by the Company, and such competitors may also prove
to be more successful than the Company in manufacturing, marketing and sales.
TECHNOLOGICAL CHANGES AND UNCERTAINTY. The Company is engaged in the
pharmaceutical field, which is characterized by extensive research efforts
and rapid technological progress. New developments in oncology, cancer
therapy, medicinal pharmacology, biochemistry and other fields are expected
to continue at a rapid pace in both industry and academia. There can be no
assurance that research and discoveries by others will not render some or all
of the Company's proposed programs or products noncompetitive or obsolete.
The Company's business strategy is subject to the risks inherent in the
development of new products using new technologies and approaches. There can
be no assurance that unforeseen problems will not develop with these
technologies or applications, that the Company will be able to address
successfully technological challenges it encounters in its research and
development programs or that commercially feasible products will ultimately
be developed by the Company.
LEGAL PROCEEDINGS. In March 1997, the former President and Chief
Operating Officer and the Chief Financial Officer of the Company (the "Former
Employees") filed a complaint in the Superior Court in the State of
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California, County of San Diego (the "Complaint") seeking claims for certain
purported damages in contract and in tort arising from their respective
terminations of employment with the Company in March 1996. In addition, the
Former Employees asserted possible punitive damages and damages based on
emotional distress. The Former Employees also claimed the right to vested
options of the Company's Common Stock. According to the Complaint, each of
the Former Employees appears to be claiming compensatory damages in excess of
$2 million and punitive damages in excess of $3 million. In June 1997, the
Company filed an answer to the Complaint denying each of the allegations
therein and, in March 1998, filed a motion for summary judgment, which is
scheduled to be heard by the Court in April 1998. Pretrial discovery with
respect to these legal proceedings has commenced, and a trial date has been
scheduled for May 1998. The Company believes the Former Employees' claims
are without merit and the Company intends to contest any such claims
vigorously. However, there can be no assurances as to the eventual outcome of
such claims or their effect on the Company's business, financial condition
and results of operations. In addition, an adverse determination in any
litigation arising from these claims or the settlement of such claims could
have a material adverse effect on the Company's business, financial condition
and results of operations.
ABSENCE OF DIVIDENDS. The Company has never declared or paid dividends
on its Common Stock and does not anticipate paying any dividends in the
foreseeable future. In addition, the Company has entered into a Loan and
Security Agreement with Silicon Valley Bank which restricts the payment of
dividends by the Company.
PRODUCT LIABILITY EXPOSURE AND INSURANCE. The Company's business
exposes it to potential product liability risks which are inherent in the
clinical testing, manufacturing and marketing of human therapeutic products.
The Company currently maintains liability insurance coverage for its clinical
trials, and intends to expand its insurance coverage to include the sales of
commercial products if marketing approval is obtained for MAXAMINE or other
products in development. There can be no assurance that such coverage is or
in the future will be adequate or that adequate insurance will be available
in the future at an acceptable cost, if at all. In addition, there can be no
assurance that a product liability claim, even if the Company has insurance
coverage, would not materially adversely affect the business or financial
condition of the Company.
POTENTIAL ADVERSE EFFECT OF SHARES ELIGIBLE FOR FUTURE SALE; PRICE
VOLATILITY OF THE COMMON STOCK. Sales of substantial amounts of the Common
Stock of the Company in the public market could adversely affect prevailing
market prices for the Common Stock and the ability of the Company to raise
equity capital in the future. The Company's Common Stock currently trades on
the AMEX and on the SSE. Historically, the Common Stock has generally
experienced relatively low daily trading volumes in relation to the aggregate
number of shares outstanding. The price and liquidity of the Common Stock
may be significantly affected by trading activity and market factors related
to the AMEX and SSE, which factors and the effects thereof may differ between
these markets. In addition, the securities markets have from time to time
experienced significant price and volume fluctuations that may be unrelated
to the operating performance of particular companies. In addition, the
market prices of the common stock of many publicly traded pharmaceutical or
biotechnology companies have in the past been, and can in the future be
expected to be, especially volatile. Low trading volumes, announcements of
technological innovations or new products by the Company or its competitors,
developments or disputes concerning patents or proprietary rights, publicity
regarding actual or potential medical results relating to products under
development by the Company or its competitors, regulatory developments in
both the United States and countries outside of the United States, delays in
the Company's testing and development schedules, events or announcements
relating to the Company's collaborative relationships with others, public
concern as to the safety of biopharmaceutical or biotechnology products and
economic and other external factors, as well as period-to-period fluctuations
in the Company's financial results, may have a significant impact on the
market price or liquidity of the Common Stock.
DISCRETION OF MANAGEMENT AND THE BOARD OF DIRECTORS IN USE OF PROCEEDS.
Although the Company currently intends to apply the net proceeds, if any,
from the sale of Securities in the manner described under "Use of Proceeds,"
the Company's management and the Board of Directors have broad discretion
within such proposed uses as to the precise allocation of the net proceeds,
the timing of expenditures and all other aspects of the use thereof. The
Company reserves the right to reallocate the net proceeds, if any, from the
sale of Securities among the various categories set forth under "Use of
Proceeds" as it, in its sole discretion, deems necessary or advisable based
upon prevailing business conditions and circumstances. See "Use of Proceeds."
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NO PUBLIC MARKET FOR UNDERLYING WARRANTS. No public market exists for
the Underlying Warrants, nor does the Company expect one to develop.
Although the Underlying Warrants, when issued, will be freely tradable,
holders thereof may not be able to sell the Underlying Warrants at desirable
prices, if at all.
POTENTIAL ADVERSE EFFECT OF REDEMPTION OF UNDERLYING WARRANTS. The
Underling Warrants are subject to redemption at $0.01 per warrant on thirty
days' prior written notice to the holders thereof if the average closing bid
price of the Common Stock equals or exceeds $12.00 per Share of Common Stock
for any 20 trading days within a period of 30 consecutive trading days ending
on the fifth trading day prior to the date of the notice of redemption. If
the Underlying Warrants are redeemed, holders thereof will lose their rights
to exercise the Underlying Warrants after the expiration of the 30-day notice
of redemption period. Upon receipt of a notice of redemption, holders would
be required to: (i) exercise the Underlying Warrants and pay the exercise
price at a time when it may be disadvantageous for them to do so, (ii) sell
the Underlying Warrants at the current market price, if any, when they might
otherwise wish to hold the Underlying Warrants or (iii) accept the redemption
price which is likely to be substantially less than the market value of the
Underlying Warrants at the time of redemption. See "Description of Securities
Underlying Warrants."
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<PAGE>
USE OF PROCEEDS
The Shares and Underlying Warrants covered by this Prospectus may be
purchased at any time prior to July 10, 2001. Holders of the Warrants will
be able to determine, in their sole discretion, when and if any of the Shares
or Underlying Warrants covered by this Prospectus will be sold, if at all.
Accordingly, there can be no assurance that the Company will receive any
proceeds from the sale of the Securities covered by this Prospectus.
In the event that all of the Securities covered hereby are sold, the net
proceeds to the Company will be approximately $35.5 million, after deducting
offering expenses payable by the Company.
The Company intends to use the majority of the net proceeds, if any,
from the sale of Securities to fund its research and development efforts,
including preclinical and clinical studies, and to prepare for the commercial
launch of MAXAMINE. The cost, timing and amount of funds required for such
uses by the Company is not precisely determined. However, the Company
anticipates that approximately one-half of the funds will be used to advance
the Company's MAXAMINE technology, including the conduct of the current Phase
III clinical studies and other ongoing or planned clinical studies, and
approximately one-half will be used to prepare for the commercial launch of
MAXAMINE, including the initial marketing efforts associated with such a
launch. The remainder, if any, of the net proceeds will be used for working
capital and general corporate purposes. These amounts are estimates, and the
amount and timing of the expenditures of the net proceeds for these purposes
will depend on numerous factors, including the status of the Company's
product development efforts, the results of clinical trials, the regulatory
approval process, competition, manufacturing activities and market acceptance
of the Company's products, and the extent to which the Company relies upon
corporate collaborations for the marketing of its products. The Company may
also use a portion of the net proceeds to acquire complementary businesses,
products or technologies, although the Company has no agreements and is not
involved in any negotiations with respect to any such transactions. Pending
such uses, the Company plans to invest the net proceeds, if any, from the
sale of Securities in short-term, investment-grade, interest-bearing
securities.
DILUTION
The net tangible book value of the Company's Common Stock as of December
31, 1997 was approximately $43.3 million, or $4.70 per share. Net tangible
book value per share represents the total amount of tangible assets less
total liabilities divided by the number of shares of Common Stock issued.
After giving effect to the sale of the 3,375,000 shares of Common Stock
offered hereby and the receipt of the estimated net proceeds (after deducting
the estimated offering expenses payable by the Company), the net tangible
book value of the Company at December 31, 1997 would have been approximately
$79.7 million or $6.33 per share. This represents an immediate increase in
net tangible book value of $1.63 per share to existing stockholders and an
immediate dilution in net tangible book value of $4.17 per share to
purchasers of shares of Common Stock issuable upon exercise of the Redeemable
Warrants, based on the exercise price of the Redeemable Warrants. Purchasers
of shares of Common Stock upon exercise of the Representative's Warrants and
the Underlying Warrants would realize immediate dilution of $2.67 and $6.05
per share, respectively. The following table illustrates the per share
dilution realized by purchasers of shares of Common Stock issuable upon
exercise of the Redeemable Warrants:
<TABLE>
<CAPTION>
<S> <C> <C>
Public offering price per share (1). . . . . . . $10.50
Net tangible book value per share as of
December 31, 1997. . . . . . . . . . . . . . . $4.70
Increase per share attributable to this
Offering . . . . . . . . . . . . . . . . . . . . 1.63
-----
Net tangible book value per share after
this Offering (2). . . . . . . . . . . . . . . . 6.33
-----
Dilution per share to purchasers of
Common Stock in this Offering (1) . . . . . . . $4.17
-----
-----
</TABLE>
(1) Calculated based on the exercise price of the Redeemable Warrants.
Purchasers of shares of Common Stock upon exercise of the Representative's
Warrants and the Underlying Warrants would realize immediate dilution of
$2.67 and $6.05 per share, respectively.
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(2) Excludes, as of December 31, 1997, an aggregate of (i) 983,451
shares of Common Stock issuable under the Company's Amended and Restated 1993
Long-Term Incentive Plan, of which 848,999 shares of Common Stock are
reserved for issuance upon exercise of outstanding stock options with a
weighted average exercise price of $6.61 per share, and (ii) 305,976 shares
of Common Stock issuable upon exercise of outstanding warrants with an
exercise price of $3.00 per share. See "Description of Securities."
PLAN OF DISTRIBUTION
On July 16, 1996, the Company closed the Initial Public Offering, in
which it sold units consisting of one share of Common Stock and one
Redeemable Warrant. Each Redeemable Warrant entitles the registered holder
thereof to purchase one share of Common Stock at an initial exercise price of
$10.50 per share at any time prior to July 10, 2001. In connection with the
Initial Public Offering, the Company issued the Representative's Warrants to
the representative of the underwriters for the Initial Public Offering as
part of its compensation for acting as such. Each Representative Warrant
entitles the registered holder thereof to purchase one share of Common Stock
at a price of $9.00 per share and one Underlying Warrant at a price of $0.12
per Underlying Warrant at any time prior to July 10, 2001. Each Underlying
Warrant entitles the registered holder thereof to purchase one share of
Common Stock at an initial exercise price of $12.38 per share at any time
prior to July 10, 2001.
The 3,375,000 shares of Common Stock covered by this Prospectus are the
shares issuable upon exercise of the 2,875,000 Redeemable Warrants, 250,000
Representative's Warrants and 250,000 Underlying Warrants. The 250,000
Underlying Warrants covered by this Prospectus are issuable upon exercise of
the Representative's Warrants.
The Company may redeem the Redeemable Warrants and the Underlying
Warrants at $.01 per Redeemable Warrant and Underlying Warrant, respectively,
on thirty (30) days' prior written notice to the registered holders thereof
if the average closing bid price of the Common Stock as reported on the AMEX
equals or exceeds $12.00 per share for any twenty (20) trading days within a
period of thirty (30) consecutive trading days ending on the fifth trading
day prior to the date of the notice of redemption.
No public market exists for the Representative's Warrants or the
Underlying Warrants. The Common Stock of the Company is traded on the AMEX
under the symbol "MMP" and on the SSE under the symbol "MAXM." The
Redeemable Warrants are traded on the AMEX under the symbol "MMP/WS." The
last sales price of the Company's Common Stock as reported by the AMEX on
March 13, 1998 was $15.50 per share. The last sales price of the Redeemable
Warrants as reported by the AMEX on March 13, 1998 was $5.75 per Redeemable
Warrant.
DESCRIPTION OF SECURITIES
The authorized capital stock of the Company consists of 20,000,000
shares of Common Stock, $0.001 par value, and 5,000,000 shares of Preferred
Stock, $0.001 par value (the "Preferred Stock").
Common Stock
At December 31, 1997, 9,214,052 shares of Common Stock were outstanding
and held of record by approximately 120 stockholders. The holders of Common
Stock are entitled to one vote per share on all matters to be voted upon by
the stockholders. Subject to preferences that may be applicable to any
outstanding Preferred Stock, the holders of Common Stock are entitled to
receive ratably such dividends, if any, as may be declared from time to time
by the Board of Directors out of funds legally available therefor. In the
event of a liquidation, dissolution or winding up of the Company, the holders
of Common Stock are entitled to share ratably in all assets remaining after
payment of liabilities and the liquidation preferences of any outstanding
shares of Preferred Stock. Holders of Common Stock have no preemptive,
conversion, subscription or other rights. There are no redemption or sinking
fund provisions available to the Common Stock. All outstanding shares of
Common Stock are fully paid and non-assessable. The Common Stock is listed on
AMEX under the symbol "MMP" and on the SSE under the symbol "MAXM."
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<PAGE>
Preferred Stock
The Board of Directors has the authority, without further action by the
stockholders, to issue up to 5,000,000 shares of Preferred Stock in one or
more series and to fix the rights, preferences, privileges and restrictions
thereof, including dividend rights, conversion rights, voting rights, terms
of redemption, liquidation preferences, sinking fund terms and the number of
shares constituting any series or the designation of such series, any or all
of which may be greater than the rights of the Common Stock. The issuance of
Preferred Stock could adversely affect the voting power of holders of Common
Stock and reduce the likelihood that such holders will receive dividend
payments and payments upon liquidation and could have the effect of delaying,
deterring or preventing a change in control of the Company. The Company has
no present plan to issue any shares of Preferred Stock.
Redeemable Warrants
As of December 31, 1997, there were outstanding Redeemable Warrants to
purchase up to 2,875,000 shares of Common Stock. The Redeemable Warrants are
listed on AMEX under the trading symbol "MMP/WS." The following is a brief
summary of certain provisions of the Redeemable Warrants, but such summary
does not purport to be complete and is qualified in all respects by reference
to the actual text of that certain Warrant Agreement between the Company,
National Securities Corporation (the "Representative") and American Stock
Transfer & Trust Company (the "Warrant Agent"). A copy of the Warrant
Agreement has been filed as an exhibit to the Registration Statement of which
this Prospectus is a part. See "Additional Information."
EXERCISE PRICE AND TERMS. The Redeemable Warrants expire on July 10,
2001. Each Warrant entitles the registered holder thereof to purchase, at
any time prior to July 10, 2001, one share of Common Stock at a price of
$10.50 per share, subject to adjustment in accordance with the anti-dilution
and other provisions referred to below. The holder of any Redeemable Warrant
may exercise such Redeemable Warrant by surrendering the certificate
representing the Redeemable Warrant to the Warrant Agent, with the
subscription form thereon properly completed and executed, together with
payment of the exercise price. The Redeemable Warrants may be exercised at
any time prior to July 10, 2001 in whole or in part at the applicable
exercise price. No fractional shares will be issued upon the exercise of the
Redeemable Warrants.
The exercise price of the Redeemable Warrants bears no relationship to
any objective criteria of value and should in no event be regarded as an
indication of any future market price of the Securities offered hereby.
ADJUSTMENTS. The exercise price and the number of shares of Common
Stock purchasable upon the exercise of the Redeemable Warrants are subject to
adjustment upon the occurrence of certain events, including stock dividends,
stock splits, combinations or reclassifications of the Common Stock.
Additionally, an adjustment would be made in the case of a reclassification
or exchange of Common Stock, consolidation or merger of the Company with or
into another corporation (other than a consolidation or merger in which the
Company is the surviving corporation) or sale of all or substantially all of
the assets of the Company in order to enable holders of Redeemable Warrants
to acquire the kind and number of shares of stock or other securities or
property receivable in such event by a holder of the number of shares of
Common Stock that might otherwise have been purchased upon the exercise of
the Redeemable Warrant.
REDEMPTION PROVISIONS. The Redeemable Warrants are subject to
redemption at $.01 per Redeemable Warrant on thirty (30) days' prior written
notice to the holders thereof if the average closing bid price of the Common
Stock as reported on the AMEX equals or exceeds $12.00 per share of Common
Stock for any twenty (20) trading days within a period of thirty (30)
consecutive trading days ending on the fifth trading day prior to the date of
the notice of redemption. In the event the Company exercises the right to
redeem the Redeemable Warrants, such Redeemable Warrants will be exercisable
until the close of business on the business day immediately preceding the
date for redemption fixed in such notice. If any Redeemable Warrant called
for redemption is not exercised by such time, it will cease to be exercisable
and the holder will be entitled only to the redemption price.
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<PAGE>
TRANSFER, EXCHANGE AND EXERCISE. The Redeemable Warrants are in
registered form and may be presented to the Warrant Agent for transfer,
exchange or exercise at any time on or prior to July 10, 2001, at which time
the Redeemable Warrants become wholly void and of no value. If a market for
the Redeemable Warrants continues to exist, holders may sell the Redeemable
Warrants instead of exercising them. There can be no assurance, however,
that a market for the Redeemable Warrants will continue.
WARRANTHOLDER NOT A STOCKHOLDER. The Redeemable Warrants do not confer
upon holders thereof any voting, dividend or other rights as stockholders of
the Company.
MODIFICATION OF REDEEMABLE WARRANTS. The Company and the Warrant Agent
may make such modifications to the Redeemable Warrants as they deem necessary
and desirable that do not adversely affect the interests of the holders
thereof. The Company may, in its sole discretion, lower the exercise price
of the Redeemable Warrants for a period of not less than thirty (30) days on
not less than thirty (30) days' prior written notice to the holders thereof
and the Representative. Modification of the number of securities purchasable
upon the exercise of any Redeemable Warrant, the exercise price and the
expiration date with respect to any Redeemable Warrant requires the consent
of two-thirds of the holders thereof. No other modifications may be made to
the Redeemable Warrants without the consent of two-thirds of the
warrantholders.
The Redeemable Warrants are not exercisable unless, at the time of the
exercise, the Company has a current prospectus covering the shares of Common
Stock issuable upon exercise of the Redeemable Warrants, and such shares have
been registered, qualified or deemed to be exempt under the securities laws
of the state of residence of the exercising holder of the Redeemable
Warrants. Although the Company will use its best efforts to have all the
shares of Common Stock issuable upon exercise of the Redeemable Warrants
registered or qualified on or before the exercise date and to maintain a
current prospectus relating thereto until the expiration of the Redeemable
Warrants, there can be no assurance that it will be able to do so.
The Redeemable Warrants are separately transferable. Purchasers may buy
Redeemable Warrants in the aftermarket in, or may move to, jurisdictions in
which the shares underlying the Redeemable Warrants are not so registered or
qualified during the period that the Redeemable Warrants are exercisable. In
this event, the Company would be unable to issue shares to those persons
desiring to exercise their Redeemable Warrants, and holders of Redeemable
Warrants would have no choice but to attempt to sell the Redeemable Warrants
in a jurisdiction where such sale is permissible or allow them to expire
unexercised.
REPRESENTATIVE'S WARRANTS
Also, as of December 31, 1997, there were outstanding Representative's
Warrants to purchase up to 250,000 shares of Common Stock and/or 250,000
Underlying Warrants. The Representative's Warrants are not traded on any
exchange nor listed on any stock market. Accordingly, no public market
exists for the Representative's Warrants, and the Company does not expect one
to develop. The Representative's Warrants are exercisable at a price of
$9.00 per share of Common Stock and $0.12 per Underlying Warrant until July
10, 2001. The Representative's Warrants provide for adjustment in the number
of shares of Common Stock and Underlying Warrants issuable upon the exercise
thereof and in the exercise price of the Representative's Warrants as a
result of certain events, including subdivisions and combinations of the
Common Stock. The Representative's Warrants, and the securities underlying
the Representative's Warrants, have been registered with the SEC and may be
sold at any time, subject to certain requirements imposed by applicable
securities laws. The Representative's Warrants grant to the holders thereof
certain rights of registration with respect to the securities issuable upon
exercise thereof.
TRANSFER, EXCHANGE AND EXERCISE; EXERCISE PRICE. The holder of any
Representative's Warrant may exercise such Representative's Warrant by
surrendering the certificate representing the Representative's Warrant to the
Secretary of the Company, with the subscription form thereon properly
completed and executed, together with payment of the exercise price. The
Representative's Warrant may be exercised at any time prior to July 10, 2001
in whole or in part at the applicable exercise price. No fractional shares
will be issued upon the exercise of the Representative's Warrants. On July
10, 2001, the Representative's Warrants become wholly void and of no value.
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<PAGE>
The exercise price of the Representative's Warrants bears no
relationship to any objective criteria of value and should in no event be
regarded as an indication of any future market price of the Securities
offered hereby.
WARRANTHOLDER NOT A STOCKHOLDER. The Representative's Warrants do not
confer upon holders thereof any voting, dividend or other rights as
stockholders of the Company.
The Representative's Warrants are not exercisable unless, at the time of
the exercise, the Company has a current prospectus covering the shares of
Common Stock and Underlying Warrants issuable upon exercise of the
Representative's Warrants, and such shares and warrants have been registered,
qualified or deemed to be exempt under the securities laws of the state of
residence of the exercising holder of the Representative's Warrants.
Although the Company will use its best efforts to have all the shares of
Common Stock and all Underlying Warrants issuable upon exercise of the
Representative's Warrants registered or qualified on or before the exercise
date and to maintain a current prospectus relating thereto until the
expiration of the Representative's Warrants, there can be no assurance that
it will be able to do so.
The Representative's Warrants are separately transferable. Purchasers
may buy Representative's Warrants in, or may move to, jurisdictions in which
the shares and warrants underlying the Representative's Warrants are not so
registered or qualified during the period that the Representative's Warrants
are exercisable. In this event, the Company would be unable to issue shares
or warrants to those persons desiring to exercise their Representative's
Warrants, and holders of Representative's Warrants would have no choice but
to attempt to sell the Representative's Warrants in a jurisdiction where such
sale is permissible or allow them to expire unexercised.
UNDERLYING WARRANTS
The Underlying Warrants, which are issuable upon exercise of the
Representative's Warrants, are exercisable at a price of $12.38 per share of
Common Stock until July 10, 2001. The Underlying Warrants are not traded on
any exchange nor listed on any stock market. Accordingly, no public market
exists for the Underlying Warrants, and the Company does not expect one to
develop. Although the Underlying Warrants, when issued, will be freely
tradable, holders thereof may not be able to sell the Underlying Warrants at
desirable prices, if at all. Other than with respect to the exercise price
thereof, and except as set forth below, the Underlying Warrants will contain
provisions and be subject to terms and conditions that are substantially
similar to the provisions, terms and conditions of the Redeemable Warrants,
including provisions regarding redemption and adjustments. See "Redeemable
Warrants." The actual provisions, terms and conditions of the Redeemable
Warrants are set forth in that certain Representative's Warrant Agreement
between the Company and the Representative, a copy of which has been filed as
an exhibit to the Registration Statement of which this Prospectus is a part.
See "Additional Information."
TRANSFER, EXCHANGE AND EXERCISE; EXERCISE PRICE. The holder of any
Underlying Warrant may exercise such Underlying Warrant by surrendering the
certificate representing the Underlying Warrant to the Secretary of the
Company, with the subscription form thereon properly completed and executed,
together with payment of the exercise price. The Underlying Warrants may be
exercised at any time prior to July 10, 2001 in whole or in part at the
applicable exercise price. No fractional shares will be issued upon the
exercise of the Underlying Warrants. On July 10, 2001, the Underlying
Warrants become wholly void and of no value.
The exercise price of the Underlying Warrants bears no relationship to
any objective criteria of value and should in no event be regarded as an
indication of any future market price of the Securities offered hereby.
WARRANTHOLDER NOT A STOCKHOLDER. The Underlying Warrants do not confer
upon holders thereof any voting, dividend or other rights as stockholders of
the Company.
The Underlying Warrants are not exercisable unless, at the time of the
exercise, the Company has a current prospectus covering the shares of Common
Stock issuable upon exercise of the Underlying Warrants, and such shares have
been registered, qualified or deemed to be exempt under the securities laws
of the state of residence of the exercising holder of the Underlying
Warrants. Although the Company will use its best efforts to have all the
16
<PAGE>
shares of Common Stock issuable upon exercise of the Underlying Warrants
registered or qualified on or before the exercise date and to maintain a
current prospectus relating thereto until the expiration of the Underlying
Warrants, there can be no assurance that it will be able to do so.
The Underlying Warrants are separately transferable. Purchasers may buy
Underlying Warrants in, or may move to, jurisdictions in which the shares
underlying the Underlying Warrants are not so registered or qualified during
the period that the Underlying Warrants are exercisable. In this event, the
Company would be unable to issue shares to those persons desiring to exercise
their Underlying Warrants, and holders of Underlying Warrants would have no
choice but to attempt to sell the Underlying Warrants in a jurisdiction where
such sale is permissible or allow them to expire unexercised.
OTHER WARRANTS
As of December 31, 1997, there were outstanding warrants to purchase
305,976 shares of Common Stock at an exercise price of $3.00 per share. Such
warrants expire between one to four years from July 10, 1996, and most are
currently exercisable.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock and the Warrant
Agent for the Redeemable Warrants is American Stock Transfer & Trust Company.
The Secretary of the Company is the warrant agent for the Representative's
Warrants and the Underlying Warrants.
LEGAL MATTERS
The validity of the issuance of the Common Stock and Underlying Warrants
covered by this Prospectus will be passed upon for the Company by Cooley
Godward LLP, San Diego, California.
EXPERTS
The consolidated financial statements of Maxim Pharmaceuticals, Inc. as
of September 30, 1996 and 1997 and for each of the years in the three-year
period ended September 30, 1997 and for the period from inception (October
29, 1989) through September 30, 1997, have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in
accounting and auditing.
17
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits.
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<S> <C>
EXHIBIT
NUMBER DESCRIPTION
3.1 Amended and Restated Certificate of Incorporation of
Registrant. (1)
3.2 Bylaws of Registrant. (1)
4.1 Reference is made to Exhibits 3.1 and 3.2.
4.2 Form of Common Stock Certificate. (1)
5.1 Opinion of Cooley Godward LLP. (1)
10.1 Form of Indemnification Agreement for directors and
officers of the Registrant. (1)
10.2 Form of Representative's Warrant Agreement between the
Company and National Securities Corporation, as
representative of the several Underwriters (the
"Representative"), including form of Representative's
Warrant Certificate. (1)
10.3 Form of Warrant Agreement between the Company, the
Representative and American Stock Transfer & Trust
Company, including form of Warrant Certificate. (1)
10.4 Option to Buy Technology and Rights Agreement, dated
March 30, 1993, between the Registrant and Estero
Anstalt. (1)(2)
10.5 Security Agreement, dated July 27,1993, between the
Registrant and Estero Anstalt. (1)(2)
10.6 Exclusive License Agreement, dated June 14, 1995, among
the Registrant, Jan Holmgren, M.D., Ph.D., Cecil
Czerkinsky, Duotol AB and Triotol Ltd. (1)(2)
10.7 Option and License Agreement, dated May 19, 1993, among
the Registrant, Vitec AB and SBL Vaccin AB, as amended.
(1)(2)
10.8 License Agreement dated January 14, 1994, among the
Registrant, Vitec AB and SBL Vaccin, AB, as amended.
(1)(2)
10.9 Agreement, dated December 2, 1995, among the
Registrant, Syntello Vaccine Development AB and Estero
Anstalt. (1)(2)
10.10 Agreement, dated April 23, 1996, among the Registrant,
Anders Vahlne, M.D., Ph.D. and Syntello Vaccine
Development AB. (1)(2)
10.11 Letter Agreement, dated February 15, 1996, between the
Registrant and Burrill & Craves, Inc.(1)
10.12 Lease dated November 1, 1996 between DM Spectrum LLC, a
California limited liability company, as Landlord and
the Registrant for 3099 Science Park Road, Suite 150,
San Diego, California 92121. (3)
10.13 Stock Purchase Agreement, dated as of July 5, 1996, by
and between Dr. Anders Vahlne and the Registrant. (1)
10.14 Amended and Restated 1993 Long-Term Incentive Plan and
forms of stock option agreements. (4)
10.15 Employment Agreement dated October 1, 1997 between the
Registrant and Kurt R. Gehlsen. (5)
10.16 Employment Agreement dated October 1, 1997 between the
Registrant and Dale A. Sander. (5)
10.17 Employment Agreement dated November 5, 1997 between the
Registrant and Larry G. Stambaugh. (5)
10.18 Loan and Security Agreement between the Registrant and
Silicon Valley Bank. (6)
10.19 Financial Advisory Services Agreement between the
Registrant and Rodman & Renshaw, Inc.
dated September 17, 1997. (7)
10.20 Lease dated January 13, 1998 between British Pacific
Properties Corporation, a California Corporation, as
Landlord, and the Registrant (8)
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23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to
Exhibit 5.1.
24.1 Power of Attorney.(1)
_______
(1) Previously filed with the Registration Statement on Form SB-2
(File No. 333-4854-LA) to which this Post-Effective
Amendment No. 1 relates.
(2) Certain confidential portions deleted pursuant to Order
Granting Application Under the Securities Act of 1933 and Rule
406 thereunder respecting confidential treatment.
(3) Previously filed with Registrant's Annual Report on Form 10-K
(File No. 1-4430) for the fiscal year ended September 30, 1996.
(4) Previously filed with Registrant's Quarterly Report on Form
10-Q (File No. 1-4430) for the quarterly period
ended December 31, 1996.
(5) Previously filed with Registrant's Annual Report on Form 10-K
(File No. 1-4430) for the fiscal year ended
September 30, 1997.
(6) Previously filed with Registrant's Quarterly Report on Form
10-Q (File No. 1-4430) for the quarterly period ended March
31, 1997.
(7) Previously filed with Registrant's Registration Statement on
Form S-1 (File No. 333-35895), as amended through the date
hereof.
(8) Previously filed with Registrant's Quarterly Report on Form
10-Q (File No. 1-4430) for the quarterly period ended
December 31, 1997.
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ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (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;
(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;
(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 informationin the Registration Statement;
PROVIDED, HOWEVER, that subparagraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the 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 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 this offering.
II-2
<PAGE>
(b) 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 Act of 1934) that is incorporated by reference into
this Registration Statement 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.
(c) Insofar as indemnification by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions referenced
in Item 15 of this Registration Statement 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, 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 hereunder, 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 and will be governed by the
final adjudication of such issue.
II-3
<PAGE>
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
Post-Effective Amendment No. 1 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Diego, State of California, on
the 20th day of March, 1998.
MAXIM PHARMACEUTICALS, INC.
By: /s/ Larry G. Stambaugh
--------------------------------
Larry G. Stambaugh
Chairman of the Board
President and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1933,
this Post-Effective Amendment No. 1 has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the dates
indicated.
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/s/ Larry G. Stambaugh Chairman of the Board, President and March 20, 1998
- ---------------------- Chief Executive Officer
Larry G. Stambaugh (PRINCIPAL EXECUTIVE OFFICER)
/s/ Dale A. Sander Vice President, Finance, Chief March 20, 1998
- --------------------- Financial Officer and Secretary
Dale A. Sander (PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER)
* Colin B. Bier, Ph.D. Director March 20, 1998
- -------------------------
Colin B. Bier, Ph.D.
* G. Steven Burrill Director March 20, 1998
- -------------------------
G. Steven Burrill
* Per-Olof Martensson Director March 20, 1998
- -------------------------
Per-Olof Martensson
* F. Duwaine Townsen Director March 20, 1998
- -------------------------
F. Duwaine Townsen
*By: /s/ G. Larry Stambaugh
------------------------
Larry G. Stambaugh
ATTORNEY-IN-FACT
</TABLE>
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EXHIBIT INDEX
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Exhibit
Number Description
- ------- ------------
3.1 Amended and Restated Certificate of Incorporation of Registrant. (1)
3.2 Bylaws of Registrant. (1)
4.1 Reference is made to Exhibits 3.1 and 3.2.
4.2 Form of Common Stock Certificate. (1)
5.1 Opinion of Cooley Godward LLP. (1)
10.1 Form of Indemnification Agreement for directors and officers of the Registrant. (1)
10.2 Form of Representative's Warrant Agreement between the Company and National Securities Corporation, as representative
of the several Underwriters (the "Representative"), including form of Representative's Warrant Certificate. (1)
10.3 Form of Warrant Agreement between the Company, the Representative and American Stock Transfer & Trust Company,
including form of Warrant Certificate. (1)
10.4 Option to Buy Technology and Rights Agreement, dated March 30, 1993, between the Registrant and Estero Anstalt. (1)(2)
10.5 Security Agreement, dated July 27,1993, between the Registrant and Estero Anstalt. (1)(2)
10.6 Exclusive License Agreement, dated June 14, 1995, among the Registrant, Jan Holmgren, M.D., Ph.D., Cecil Czerkinsky,
Duotol AB and Triotol Ltd. (1)(2)
10.7 Option and License Agreement, dated May 19, 1993, among the Registrant, Vitec AB and SBL Vaccin AB, as amended.(1)(2)
10.8 License Agreement dated January 14, 1994, among the Registrant, Vitec AB and SBL Vaccin, AB, as amended.(1)(2)
10.9 Agreement, dated December 2, 1995, among the Registrant, Syntello Vaccine Development AB and Estero Anstalt.(1)(2)
10.10 Agreement, dated April 23, 1996, among the Registrant, Anders Vahlne, M.D., Ph.D. and Syntello Vaccine
Development AB. (1)(2)
10.11 Letter Agreement, dated February 15, 1996, between the Registrant and Burrill & Craves, Inc.(1)
10.12 Lease dated November 1, 1996 between DM Spectrum LLC, a California limited liability company, as Landlord and the
Registrant for 3099 Science Park Road, Suite 150, San Diego, California 92121. (3)
10.13 Stock Purchase Agreement, dated as of July 5, 1996, by and between Dr. Anders Vahlne and the Registrant. (1)
10.14 Amended and Restated 1993 Long-Term Incentive Plan and forms of stock option agreements. (4)
10.15 Employment Agreement dated October 1, 1997 between the Registrant and Kurt R. Gehlsen. (5)
10.16 Employment Agreement dated October 1, 1997 between the Registrant and Dale A. Sander. (5)
10.17 Employment Agreement dated November 5, 1997 between the Registrant and Larry G. Stambaugh. (5)
10.18 Loan and Security Agreement between the Registrant and Silicon Valley Bank. (6)
10.19 Financial Advisory Services Agreement between the Registrant and Rodman & Renshaw, Inc. dated September 17, 1997. (7)
10.20 Lease dated January 13, 1998 between British Pacific Properties Corporation, a California Corporation, as Landlord,
and the Registrant. (8)
23.1 Consent of KPMG Peat Marwick LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
<PAGE>
24.1 Power of Attorney.(1)
_______
</TABLE>
(1) Previously filed with the Registration Statement on Form SB-2 (File No.
333-4854-LA) to which this Post-Effective Amendment No. 1 relates.
(2) Certain confidential portions deleted pursuant to Order Granting
Application Under the Securities Act of 1933 and Rule 406 thereunder
respecting confidential treatment.
(3) Previously filed with Registrant's Annual Report on Form 10-K
(File No. 1-4430) for the fiscal year ended September 30, 1996.
(4) Previously filed with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) for the quarterly period ended December 31, 1996.
(5) Previously filed with Registrant's Annual Report on Form 10-K
(File No. 1-4430) for the fiscal year ended September 30, 1997.
(6) Previously filed with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) for the quarterly period ended March 31, 1997.
(9) Previously filed with Registrant's Registration Statement on Form S-1
(File No. 333-35895), as amended through the date hereof.
(10) Previously filed with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) for the quarterly period ended December 31, 1997.
<PAGE>
EXHIBIT 23.1
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
Maxim Pharmaceuticals, Inc.:
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
San Diego, California
March 19, 1998
