<PAGE>
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by
Rule 14a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Rule 14a-11(c) or Rule 14a-12
Maxim Pharmaceuticals, Inc.
------------------------------------------------
(Name of Registrant as Specified in its Charter)
------------------------------------------------
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
- --------------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction applies:
- --------------------------------------------------------------------------------
(3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
- --------------------------------------------------------------------------------
(4) Proposed maximum aggregate value of transaction:
- --------------------------------------------------------------------------------
(5) Total fee paid:
- --------------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials
- --------------------------------------------------------------------------------
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a)(2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount Previously Paid: _______________________________________________
(2) Form, Schedule or Registration Statement No.:__________________________
(3) Filing Party:__________________________________________________________
(4) Date Filed:____________________________________________________________
<PAGE>
[LOGO]
June 1, 1999
Dear Stockholder:
On behalf of the Board of Directors and management of Maxim
Pharmaceuticals, Inc., I invite you attend a Special Meeting to be held on
Thursday, June 24, 1999, 8:00 a.m. EDT at the Hotel Inter-Continental, Beekman
Room II (Third Floor), 111 East 48th Street, New York, New York.
As we move closer to the potential commercial launch of
MAXAMINE-TM- and continue the development of our earlier-stage product
candidates, the Company will require additional resources to implement its
strategies and realize full value from its technologies. Accordingly, we
fully plan and expect that additional issuances of equity or other financing
transactions will be required to fund product development and commercial
launches. In addition, we are likely to encounter opportunities to expand
shareholder value through the pursuit of acquisitions or similar
transactions. Accordingly, management and the Board of Directors recommend
that the number of shares of Common Stock authorized for potential future
issuance be increased as described in the following materials to allow the
Company the flexibility to meet its resource requirements and to respond to
any acquisition and any potential opportunities on a timely basis.
It is important to us that your shares be represented at the Meeting
whether or not you plan to attend. You can be sure your shares are voted at
the meeting in accordance with your preferences by properly completing,
signing and returning your proxy card in the enclosed envelope as soon as
possible.
Thank you for your continuing interest and support.
Sincerely,
/s/ LARRY G. STAMBAUGH
Larry G. Stambaugh
Chairman of the Board
<PAGE>
MAXIM PHARMACEUTICALS, INC.
8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CALIFORNIA 92122
(619) 453-4040
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD JUNE 24, 1999
To the Stockholders of Maxim Pharmaceuticals, Inc.:
A Special Meeting of the Stockholders of Maxim Pharmaceuticals,
Inc. will be held Thursday, June 24, 1999, 8:00 a.m. EDT at the Hotel Inter-
Continental, Beekman Room II (Third Floor), 111 East 48th Street, New York,
New York, for the following purposes as are more fully described in the
accompanying Proxy Statement:
1. To approve the amendment to the Company's Certificate of
Incorporation to increase the number of authorized shares of
Common Stock from 20 million to 35 million shares; and
2. To transact such other business as may properly come before
the meeting or any adjournment thereof.
Stockholders of record at the close of business on May 21,
1999, are entitled to vote at the Meeting or any adjournment, postponement or
continuation thereof.
To assure that your shares will be voted at the meeting, you
are requested to complete, date and sign the enclosed proxy card and return
it promptly in the enclosed, postage-paid, addressed envelope. No additional
postage is required if mailed in the United States. If you attend the
meeting, you may revoke your proxy and vote in person on all matters
submitted at the meeting even though you have previously mailed your proxy
card. Please note, however, that if your shares are held of record by a
broker, bank or other nominee and you wish to vote at the Special Meeting, you
must obtain from the record holder a proxy issued in your name.
By order of the Board of Directors,
/s/ DALE A. SANDER
Dale A. Sander
Secretary
San Diego, California
June 1, 1999
IT IS IMPORTANT THAT YOUR SHARES BE REPRESENTED AT THE MEETING.
YOUR VOTE IS IMPORTANT REGARDLESS OF THE NUMBER OF SHARES YOU OWN. PLEASE
EXECUTE THE ENCLOSED PROXY AND RETURN IT PROMPTLY IN THE ENVELOPE PROVIDED.
<PAGE>
MAXIM PHARMACEUTICALS, INC.
8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CALIFORNIA 92122
PROXY STATEMENT
FOR SPECIAL MEETING OF STOCKHOLDERS
JUNE 24, 1999
INFORMATION CONCERNING SOLICITATION AND VOTING
GENERAL
The enclosed proxy is solicited on behalf of the Board of Directors
of Maxim Pharmaceuticals, Inc., a Delaware corporation (the "Company"), for
use at a Special Meeting of Stockholders to be held on June 24, 1999, at 8:00
a.m. EDT (the "Special Meeting"), or at any adjournment or postponement
thereof, for the purposes set forth herein and in the accompanying Notice of
Special Meeting. The Special Meeting will be held at the Hotel Inter-
Continental, Beekman Room II (Third Floor), 111 East 48th Street, New York,
New York. The Company intends to mail this proxy statement and accompanying
proxy card on or about June 1, 1999 to all stockholders entitled to vote at
the Special Meeting.
SOLICITATION
The Company will bear the entire cost of solicitation of proxies
including preparation, assembly, printing and mailing of this proxy
statement, the proxy and any additional information furnished to
stockholders. Copies of solicitation materials will be furnished to banks,
brokerage houses, fiduciaries and custodians holding in their names shares of
Common Stock beneficially owned by others to forward to such beneficial
owners. The Company may reimburse persons representing beneficial owners of
Common Stock for their costs of forwarding solicitation materials to such
beneficial owners. Original solicitation of proxies by mail may be
supplemented by telephone, facsimile, telegram or personal solicitation by
directors, officers or other regular employees of the Company. No additional
compensation will be paid to directors, officers or other regular employees
for such services.
VOTING RIGHTS AND OUTSTANDING SHARES
Only holders of record of Common Stock at the close of business on
May 21, 1999 will be entitled to notice of and to vote at the Special
Meeting. At the close of business on May 21, 1999, the Company had
outstanding and entitled to vote 10,201,627 shares of Common Stock. Each
holder of record of Common Stock on such date will be entitled to one vote
for each share held on all matters to be voted upon at the Special Meeting.
All votes will be tabulated by the inspector of election appointed for the
meeting, who will separately tabulate affirmative and negative votes,
abstentions and broker non-votes. Abstentions will be counted towards the
tabulation of votes cast on proposals presented to the stockholders and will
have the same effect as negative votes. Broker non-votes are counted towards
a quorum, but are not counted for any purpose in determining whether a matter
has been approved.
REVOCABILITY OF PROXIES
Any person giving a proxy pursuant to this solicitation has the
power to revoke it at any time before it is voted. It may be revoked by
filing with the Secretary of the Company at the Company's principal executive
office, 8899 University Center Lane, Suite 400, San Diego, California 92122,
a written notice of revocation or a duly executed proxy bearing a later date,
or it may be revoked by attending the meeting and voting in person.
Attendance at the meeting will not, by itself, revoke a proxy.
STOCKHOLDER PROPOSALS
The deadline for submitting a stockholder proposal for inclusion in
the Company's proxy statement and form of proxy for the Company's 2000 Annual
Meeting pursuant to Rule 14a-8, "Shareholder Proposals," of the Securities
and Exchange Commission is September 13, 1999. Pursuant to the Company's
Bylaws, the deadline for submitting a stockholder proposal or a nomination
for a director that is not to be included in such proxy statement and proxy
is December 22, 1999. Stockholders are also advised to review the Company's
Bylaws, which contain additional requirements with respect to stockholder
proposals and director nominations.
1
<PAGE>
PROPOSAL 1
PROPOSAL TO AMEND THE COMPANY'S CERTIFICATE OF INCORPORATION TO INCREASE THE
NUMBER OF AUTHORIZED SHARES OF COMMON STOCK
On May 10, 1999, the Board of Directors of the Company adopted,
subject to stockholder approval, an amendment to the Company's Certificate of
Incorporation to increase the number of authorized shares of Common Stock
available for issuance by the Company from 20 million to 35 million shares.
Attached hereto as Exhibit A is a copy of the Certificate of Amendment to the
Company's Certificate of Incorporation, in the form approved by the Board of
Directors, for filing with the Delaware Secretary of State upon approval of
this Proposal 1 by the stockholders of the Company. As of May 21, 1999,
14,186,020 shares of common stock were outstanding or reserved for issuance
out of the 20 million currently authorized shares.
PURPOSES
The management and the Board of Directors of the Company
believe that it is in the best interests of the Company and its stockholders
to have additional shares of Common Stock available to issue for general
corporate purposes, including convertible debt financings, equity financings,
acquisitions, strategic collaborations, employee equity incentives and other
corporate purposes. In particular, the Company's operations to date have
consumed, and will continue to consume, substantial amounts of cash, and in
light of this, the Company has begun to explore potential equity and/or debt
financings in order to raise additional capital.
To that end, the Company has entered into negotiations regarding
a potential private placement of convertible subordinated notes (the "Notes")
to certain qualified institutional investors. The Company currently
anticipates issuing between $50 and $75 million of such Notes; however, the
terms of the Notes cannot be reasonably estimated at this time since they are
subject to market conditions and demand, and the Company has not yet
commenced any offering of the Notes. Except for the approval of this
Proposal, no further authorization from the Company's stockholders will be
necessary to issue and sell the Notes. The ultimate terms of the Notes,
including the interest rate, conversion price, redemption price and maturity
date will be determined by the Board of Directors. The Company intends to
use the proceeds from the sale of the Notes, if any, for general corporate
purposes and to fund the Company's clinical trials. Depending upon the
actual dollar amount of any Note offering completed, and depending upon the
Note terms, the Company's current number of authorized but unissued shares of
Common Stock may, or may not, be adequate to provide a reserve for issuance
upon conversion of the Notes. If the Company does not have sufficient
authorized but unissued shares of Common Stock to reserve for issuance upon
conversion of the Notes, it might have to limit the amount of Notes sold, or
it would not be able to complete any sale of the Notes, without first
amending its Certificate of Incorporation to increase the authorized Common
Stock as set forth in this Proposal. Notwithstanding this, even if this
Proposal is approved by the stockholders, there can be no assurance that the
Company will be able to commence any offering of the Notes. Moreover, even
if such offering were commenced, there can be no assurance that the Company
will be able to successfully complete a sale of the Notes. In the event the
Company does not offer or sell the Notes, it will continue to explore other
financing opportunities.
In any event, the Company believes that the proposed increase
in the number of shares of Common Stock authorized under the Company's
Certificate of Incorporation will give the Company greater flexibility in
responding to business and financing opportunities by allowing shares of
Common Stock to be issued by the Board of Directors without the delay of a
special meeting of stockholders. The Board of Directors will determine
whether, when and upon what terms the issuance of shares of Common Stock may
be warranted in connection with any of the foregoing purposes, including the
sale of the Notes, and will continue to consider potential financings and
other transactions which may result in the issuance of some or all of these
additional shares.
EFFECT
The additional Common Stock to be authorized by adoption of the
amendment to the Company's Certificate of Incorporation would have rights
identical to the currently outstanding Common Stock of the Company. Adoption
of the amendment and issuance of the Common Stock would not affect the rights
of the holders of currently outstanding Common Stock of the Company, except
for effects incidental to increasing the number of shares of the Company's
Common Stock outstanding, such as dilution of the earnings per share and
voting rights of current holders of Common Stock.
Stockholders of the Company do not now have preemptive right to
subscribe for or purchase additional shares of Common Stock, and the
stockholders will have no preemptive rights to subscribe for or purchase any
of the authorized shares of Common Stock that will be available for issuance
as a result of the increase in the number of authorized shares of Common
Stock.
2
<PAGE>
If the amendment to the Company's Certificate of Incorporation
is adopted, the authority of the Board of Directors to issue the authorized
but unissued shares of Common Stock might be considered as having the effect
of discouraging an attempt by another person or entity to effect a takeover
or otherwise gain control of the Company since the issuance of additional
shares of the Common Stock would dilute the voting power of the Common Stock
then outstanding. Although the issuance of any additional shares will be on
terms deemed to be in the best interest of the Company and its stockholders,
under certain circumstances, the issuance of additional shares of Common
Stock could have an adverse effect on the market price per share of the
Company's Common Stock.
IMPLEMENTATION
If the amendment is adopted by the stockholders, it will become
effective upon filing and recording a Certificate of Amendment as required by
the General Corporation Law of Delaware.
The affirmative vote of a majority of the Common Stock entitled
to vote is required to approve the amendment to the Certificate of
Incorporation. The votes represented by the Proxies received will be voted
FOR approval of the adoption of the proposed amendment to the Certificate of
Incorporation, unless a vote against such approval or an abstention from
voting is specifically indicated on the Proxy.
THE BOARD OF DIRECTORS RECOMMENDS
A VOTE IN FAVOR OF PROPOSAL 1.
3
<PAGE>
SECURITY OWNERSHIP OF
CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth certain information regarding the
ownership of the Company's Common Stock as of May 21, 1999 by (i) each
present executive officer and Director of the Company, (ii) all executive
officers and Directors of the Company as a group; and (iii) all those known
by the Company to be beneficial owners of more than five percent of its
Common Stock.
<TABLE>
<CAPTION>
BENEFICIAL OWNER(1) BENEFICIAL OWNERSHIP
------------------- --------------------------------------------
NUMBER OF SHARES PERCENT OF TOTAL(2)
---------------- -------------------
<S> <C> <C>
Clearwater Funds(3)........................................... 1,016,083 9.85%
611 Druid Hills Road East, No. 200
Clearwater, FL 34616
HealthCap KB(4)............................................... 677,747 6.45%
Sturegatan 34
SE 114 36, Stockholm, Sweden
S-E-Banken Funds(5)........................................... 506,666 4.96%
Kastanjevagen 4
S-13246 Saltsjo-300, Sweden
F. Duwaine Townsen(6)......................................... 315,534 3.07%
Larry G. Stambaugh(7)......................................... 298,384 2.91%
Colin B. Bier, Ph.D.(8)....................................... 60,000 *
Theodor H. Heinrichs(9)....................................... 4,333 *
Per-Olof Martensson(10)....................................... 55,333 *
Kurt R. Gehlsen, Ph.D.(11).................................... 23,637 *
Dale A. Sander(12)............................................ 17,634 *
Geoffrey B. Altman(13)........................................ 10,267 *
All Directors and Officers as a Group (9 persons)(14) 785,122 7.65%
</TABLE>
- ----------------------
* Less than 1%
(1) This table is based upon information supplied by officers, directors and
principal stockholders and Schedules 13D and 13G filed with the
Securities and Exchange Commission (the "SEC"). Except as otherwise
indicated, the Company believes that each of the beneficial owners of the
shares listed above, based on information furnished by such owners, has
sole investment and voting power with respect to shares indicated as
beneficially owned, subject to community property laws where applicable.
(2) Percentage of beneficial ownership is based on an aggregate of 10,201,627
shares of Common Stock outstanding as of May 21, 1999, adjusted as
required by rules promulgated by the SEC.
(3) Includes (i) 829,000 shares held by Clearwater Fund IV, LLC, and 73,183
shares held by Clearwater Offshore Fund, Ltd. and (ii) 113,900 redeemable
warrants exercisable within 60 days of May 21, 1999.
(4) Includes 310,100 redeemable warrants exercisable within 60 days of
May 21, 1999.
4
<PAGE>
(5) Includes 8,000 shares subject to warrants exercisable within 60 days of
May 21, 1999.
(6) Includes (i) 700 shares held by Ventana II, (ii) 1,825 shares held by
Ventana Growth Capital Fund V L.P., and (iii) 216,578 shares held by
Ventana Partnership III L.P. Mr. Townsen, a director of the Company, is a
general partner of each of the aforementioned entities. Mr. Townsen
disclaims beneficial ownership of all shares held by such entities except
to the extent of his pecuniary interest therein, if any. Includes 36,431
shares held jointly by Mr. Townsen and his wife. Also includes 60,000
shares subject to stock options exercisable within 60 days of
May 21, 1999.
(7) Includes 1,000 shares and 1,000 redeemable warrants exercisable within 60
days of May 21, 1999 held by Mr. Stambaugh's spouse, and 62,500 shares
subject to stock options exercisable within 60 days of May 21, 1999.
(8) Includes 60,000 shares subject to stock options exercisable within 60
days of May 21, 1999.
(9) Includes 1,000 shares held by Hematec, Inc.. Mr. Heinrichs, a director of
the Company, is the principal equity shareholder of Hematec, Inc. Mr.
Heinrichs disclaims beneficial ownership of all shares held by such
entity except to the extent of his pecuniary interest therein, if any.
Includes 3,333 shares subject to stock options exercisable within 60 days
of May 21, 1999.
(10) Includes 55,000 shares subject to stock options exercisable within 60
days of May 21, 1999.
(11) Includes 21,733 shares subject to stock options exercisable within 60
days of May 21, 1999.
(12) Includes 17,250 shares subject to stock options exercisable within 60
days of May 21, 1999.
(13) Includes 5,000 shares subject to stock options exercisable within 60 days
of May 21, 1999.
(14) Includes 1,000 shares subject to redeemable warrants and 284,816 shares
subject to stock options exercisable within 60 days of May 21, 1999. See
Notes 6-13.
5
<PAGE>
OTHER MATTERS
The Board of Directors knows of no other matters that will be
presented for consideration at the Special Meeting. If any other matters are
properly brought before the meeting, it is the intention of the persons named
in the accompanying proxy to vote on such matters in accordance with their
best judgment.
By Order of the Board of Directors
/s/ DALE A. SANDER
------------------------------------
Dale A. Sander
Secretary
June 1, 1999
A COPY OF THE COMPANY'S ANNUAL REPORT TO THE SECURITIES AND EXCHANGE
COMMISSION ON FORM 10-K/A FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 1998 IS
AVAILABLE WITHOUT CHARGE UPON WRITTEN REQUEST TO: INVESTOR RELATIONS, MAXIM
PHARMACEUTICALS, INC., 8899 UNIVERSITY CENTER LANE, SUITE 400, SAN DIEGO,
CALIFORNIA 92122.
6
<PAGE>
EXHIBIT A
---------
CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MAXIM PHARMACEUTICALS, INC.
MAXIM PHARMACEUTICALS, INC., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, hereby
certifies as follows:
1. The name of the corporation is Maxim Pharmaceuticals, Inc.
2. Maxim Pharmaceuticals, Inc. was originally incorporated on September
24, 1954, under the name "Wilco Oil & Minerals, Corp."
3. This Certificate of Amendment amends certain provisions of the Amended
and Restated Certificate of Incorporation of the corporation and has been duly
adopted by the Board of Directors in accordance with the provisions of Sections
141 and 242 of the General Corporation Law of the State of Delaware and by the
stockholders of the corporation in accordance with Section 242 of the General
Corporation Law of the State of Delaware.
4. Paragraph A of Article IV shall be amended to read in its entirety as
follows:
"A. This corporation is authorized to issue two classes of
stock to be designated, respectively, "Common Stock" and
"Preferred Stock." The total number of shares of all
classes of stock which the corporation shall have authority
to issue is Forty Million (40,000,000) shares consisting of
(a) Thirty-Five Million (35,000,000) shares of Common Stock,
each having a par value of one tenth of one cent ($.001) and
(b) Five Million (5,000,000) shares of Preferred Stock , each
having a par value of one tenth of one cent ($0.001)."
IN WITNESS WHEREOF, Maxim Pharmaceuticals, Inc. has caused this
Certificate of Amendment to be signed by its President this ___ day of ______
1999.
MAXIM PHARMACEUTICALS, INC.
By:
-------------------------------------
Larry G. Stambaugh,
President and Chief Executive Officer
Attest:
By:
----------------------------
Dale A. Sander,
Secretary
<PAGE>
MAXIM PHARMACEUTICALS, INC.
PROXY
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS OF THE COMPANY FOR THE
ANNUAL MEETING OF STOCKHOLDERS TO BE HELD ON JUNE 24, 1999
The undersigned hereby (i) acknowledge(s) receipt of the Notice of Special
Meeting of Stockholders and Proxy Statement dated June 1, 1999, relating to the
Special Meeting of Stockholders of MAXIM PHARMACEUTICALS, INC. (the "Company")
to be held June 24, 1999 and (ii) appoints Larry G. Stambaugh and Dale A. Sander
as proxies, with full power of substitution, and authorizes them, or either of
them, to vote all shares of Common Stock of the Company standing in the name of
the undersigned at said meeting or any postponement, continuation and
adjournment thereof, with all powers that the undersigned would possess if
personally present, upon the matters specified below and upon such other matters
as may be properly brought before the meeting, conferring discretionary
authority upon such proxies as to such other matters. THIS PROXY, WHEN PROPERLY
EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED
STOCKHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR PROPOSAL 1.
STOCKHOLDERS WHO ATTEND THE MEETING MAY VOTE IN PERSON EVEN THOUGH THEY HAVE
PREVIOUSLY MAILED THIS PROXY CARD.
MANAGEMENT RECOMMENDS A VOTE FOR PROPOSAL 1.
(CONTINUED ON REVERSE SIDE)
<PAGE>
(CONTINUED FROM REVERSE SIDE)
1. Proposal to approve an amendment to the Company's Certificate of
Incorporation to increase the total number of authorized shares of Common
Stock to 35,000,000 shares.
/ / FOR / / AGAINST / / ABSTAIN
Please check this box if you plan to attend the meeting. / /
Please sign exactly as name
appears hereon. When shares are
held by joint tenants, both should
sign. When signing as executor,
administrator, trustee or
guardian, please give full title
as such. If a corporation, please
sign in full corporate name by
President or other authorized
officer. If a partnership, please
sign in partnership name by
authorized person.
__________________________________
__________________________________
Signature(s) Date
Please mark, date, sign and mail
this proxy card in the envelope
provided. No postage is required
for domestic mailing.
