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PROSPECTUS
2,860,210 SHARES
MAXIM PHARMACEUTICALS, INC.
COMMON STOCK
The selling stockholders identified in this prospectus are selling
2,860,210 shares of Maxim Pharmaceuticals, Inc. common stock. Maxim will not
receive any of the proceeds from the sale of shares by the selling
stockholders. Our common stock is listed on the American Stock Exchange
("AMEX") under the symbol "MMP" and on the Stockholm Stock Exchange under the
symbol "MAXM". The closing sale price of the common stock, as reported on
AMEX on September 30, 1999, was $8.5625 per share.
INVESTING IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS," BEGINNING ON PAGE 3.
Neither the Securities Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is October 1, 1999.
<PAGE>
SUMMARY
IN THIS PROSPECTUS, THE WORDS "WE," "OUR," AND "US" REFER ONLY TO MAXIM
AND NOT TO THE SELLING STOCKHOLDERS OR ANY OTHER PERSON. THIS PROSPECTUS
CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE CERTAIN RISKS AND
UNCERTAINTIES. OUR ACTUAL RESULTS COULD BE VERY DIFFERENT THAN THE RESULTS WE
DISCUSS IN THIS PROSPECTUS OR THE INFORMATION WE INCORPORATE BY REFERENCE INTO
THIS PROSPECTUS. FACTORS THAT COULD CAUSE OR CONTRIBUTE TO SUCH DIFFERENCES
INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED IN THE FOLLOWING SECTION AND
THOSE DISCUSSED IN THE SECTION ENTITLED "RISK FACTORS."
THE COMPANY
Maxim is developing a new generation of drugs, therapies and vaccines
for cancer, infectious diseases and topical disorders.
Our lead drug candidate, MAXAMINE-TM-, is currently being tested in
three Phase 3 cancer clinical trials in 12 countries around the world. A Phase 3
trial is a large-scale test designed to be the final human study demonstrating
the safety and efficacy of a drug and supporting an application to the U.S. Food
and Drug Administration or international regulatory agencies for marketing
approval. The initial market launch of Maxamine is planned for early 2001 in the
U.S. and late 2001 in certain countries outside the U.S.
A series of Phase 2 clinical trials was conducted in which patients
with malignant melanoma, the most deadly form of skin cancer, and acute
myelogenous leukemia, the most common acute adult leukemia, were treated with
MAXAMINE. A Phase 2 trial is an intermediate test designed to show a
preliminary evidence of efficacy of the drug being tested. These studies have
shown a more than doubling of survival and remission times for patients
treated with MAXAMINE as well as the ability to maintain patient quality of
life during treatment with the drug. Earlier-stage clinical studies have also
suggested promise in the following diseases:
- Renal cell carcinoma, a cancer of the kidneys;
- Multiple myeloma, a cancer of the bone marrow; and
- Hepatitis C, a viral infection targeting the liver.
More than 750 patients have been treated in our completed and ongoing
clinical trials.
A second product platform under development is MAXDERM-TM-, a
MAXAMINE-related series of drugs for the treatment of certain topical disorders.
Randomized, blinded, placebo-controlled trials have been conducted in more than
75 patients. Studies in patients with oral mucositis, a serious side effect of
chemotherapy and radiation treatment of cancer patients, and cold sores
suggested that MAXDERM resolved lesions more effectively than a placebo control.
Other clinical data suggests that MAXDERM may be beneficial in the treatment of
bed sores, shingles, burns, eye infections and other related conditions. Our
third technology platform, MAXVAX-TM-, is currently in preclinical development
and is designed to facilitate a new class of needle-free mucosal vaccines for
several infectious diseases including respiratory infections, sexually
transmitted diseases, and gastrointestinal tract diseases.
THE OFFERING
We recently completed a preferred stock financing from which we received
aggregate proceeds of $20.1 million. We are obligated to register the common
stock issuable upon conversion of this preferred stock so that it can be resold
in the public market. We are also registering the common stock issuable upon
exercise of warrants held by certain advisors to Maxim. We will not receive any
of the proceeds from the sale of common stock pursuant to this prospectus.
The selling stockholders may sell the shares of common stock described
in this prospectus in public or private transactions, on or off AMEX, at
prevailing market prices, or at privately negotiated prices. The selling
stockholders may sell shares directly to purchasers or through brokers or
dealers. Brokers or dealers may receive compensation in the form of discounts,
concessions or commissions from the selling stockholders.
More information is provided in the section entitled "Plan of Distribution."
Our principal executive offices are located at 8899 University Center
Lane, Suite 400, San Diego, California 92122 and our telephone number is (619)
453-4040.
2.
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RISK FACTORS
IN EVALUATING OUR BUSINESS, YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING
RISK FACTORS IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS
AND INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
WE ARE NOT PROFITABLE AND EXPECT TO CONTINUE TO INCUR LOSSES. IF WE DO NOT
BECOME PROFITABLE, WE MAY ULTIMATELY BE FORCED TO DISCONTINUE OUR OPERATIONS.
We are a development-stage enterprise. We have experienced net losses
every year since our inception and, as of June 30, 1999 had an accumulated
deficit of approximately $71.8 million. We anticipate incurring substantial
additional losses over at least the next several years related to developing and
testing our product candidates and preparing for commercialization of our
products. If we do not become profitable, our stock price will be negatively
affected, and we may ultimately be forced to wind down our operations.
WE WILL LIKELY NEED TO RAISE ADDITIONAL FUNDS IN THE FUTURE. IF WE ARE UNABLE TO
OBTAIN THE FUNDS NECESSARY TO CONTINUE OUR OPERATIONS, WE MAY BE REQUIRED TO
DELAY, SCALE BACK OR ELIMINATE ONE OR MORE OF OUR PRODUCT COMMERCIALIZATION
PROGRAMS.
We have already spent substantial funds developing our products and
business. We expect to continue to have negative cash flow from our operations
for at least the next several years. We will likely have to raise substantial
additional funds to complete the development of our products and to bring them
to market. Our future capital requirements will depend on numerous factors,
including:
- the results of our clinical trials;
- the timing and scope of any additional clinical trials
undertaken;
- the scope and results of our research and development
programs;
- the time required to obtain regulatory approvals;
- our ability to establish marketing alliances and collaborative
agreements;
- the cost of our internal marketing activities; and
- the cost of filing, prosecuting and, if necessary, enforcing
patent claims.
Additional financing may not be available on acceptable terms, if at
all. If adequate funds are not available, we may be required to delay, scale
back or eliminate one or more of our product development programs or obtain
funds through arrangements with collaborative partners or others that may
require us to relinquish rights to certain of our technologies or products that
we would not otherwise relinquish.
THE DEVELOPMENT OF OUR PRODUCTS IS SUBJECT TO UNCERTAINTIES, MANY OF WHICH
ARE BEYOND OUR CONTROL. IF WE FAIL TO SUCCESSFULLY DEVELOP OUR PRODUCTS, OUR
ABILITY TO GENERATE REVENUES WILL BE SUBSTANTIALLY IMPAIRED.
Potential products based on our MAXAMINE, MAXDERM and MAXVAX
technologies will require extensive clinical testing, regulatory approval and
substantial additional investment before we can sell them. We cannot assure you
that any of our 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; or
- be successfully marketed or achieve market acceptance.
We have not completed testing for efficacy or safety in humans on
any of our products, and any delay in our expected testing and development
schedules, or any elimination of product development program entirely, will
negatively impact our ability to generate revenues from the sale of our
products.
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OUR PRODUCT CANDIDATES ARE SUBJECT TO SIGNIFICANT GOVERNMENT REGULATION WHICH
COULD INCREASE THE COST OF DEVELOPING OUR PRODUCTS AND DELAY OR PREVENT SALES
OF OUR PRODUCTS.
Our product candidates are subject to significant regulation by the
U.S. Food and Drug Administration, or the FDA, as well as similar agencies in
countries outside the United States. Satisfaction of lengthy and detailed
laboratory and clinical testing procedures is costly and may take a number of
years. If we do not receive FDA approval for our products under development, we
will not be able to market or sell our products in the United States. This would
prevent us from generating product revenue in the United States and would be
extremely detrimental to our business and financial condition. European and
other international regulatory approvals are subject to similar risks and
uncertainties as regulatory approvals in the United States.
We are expending substantial time and financial resources to conduct
clinical trials, but we cannot be sure that the results of our clinical trials
will support the submission of an investigational new drug application or a
product license application, or that any applications we do file will be
approved by the FDA or any similar foreign agency on a timely basis, or at all.
Once we do receive regulatory approval, we will still be subject to
ongoing regulatory requirements. Moreover, government regulation may increase at
any time, creating additional costs and delays for us.
IF WE FAIL TO SECURE ADEQUATE PROTECTION OF OUR INTELLECTUAL PROPERTY OR THE
RIGHT TO USE CERTAIN INTELLECTUAL PROPERTY OF OTHERS, WE MAY NOT BE ABLE TO
PROTECT OUR PRODUCTS AND TECHNOLOGIES FROM COMPETITORS.
Our success depends in large part on our ability to obtain, maintain
and protect patents, trade secrets and operate without infringing upon the
proprietary rights of others. If we are unable to do so, our products and
technologies may not provide us with any competitive advantage.
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. As a result, patents may not issue from any of our patent
applications. Further, patent applications in the United States are secret until
a patent issues, and we cannot be certain that others have not filed patent
applications for technology covered by our pending applications or that we were
the first to file patent applications for this technology. In addition, patents
currently held by us or issued to us in the future, or to licensors from whom we
have licensed technology rights, may be challenged, invalidated or circumvented
so that our intellectual property rights may not protect our technologies or
provide commercial advantage to us. In addition, we also rely on unpatented
trade secrets and proprietary know-how, and we cannot be sure that others will
not obtain access to or independently develop such trade secrets and know-how.
The pharmaceutical industry has experienced extensive litigation
regarding patent and other intellectual property rights. Although, to date, we
are not aware of any intellectual property claims against us, in the future, we
could be forced to incur substantial costs in defending ourselves in lawsuits
that are brought against us claiming that we have infringed the patent rights of
others or in asserting our patent rights in lawsuits against other parties. We
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 our patent applications or other
parties' patent applications. Adverse determinations in litigation or
interference proceedings could require us to seek licenses that may not be
available on commercially reasonable terms or subject us to significant
liabilities to third parties.
OUR FAILURE TO ATTRACT AND RETAIN QUALIFIED PERSONNEL COULD MAKE US LESS
EFFICIENT AND COULD PREVENT US FROM GROWING OUR BUSINESS.
Our future performance and growth depends in part upon the continued
contributions of our senior management team and on our ability to attract and
retain qualified management and scientific personnel. Competition for such
personnel is intense, and we do not know if we will be able to continue to
attract, assimilate or retain highly
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qualified technical and management personnel. The loss of key personnel or
the failure to recruit additional personnel or develop needed expertise could
have a material and adverse affect on our efficiency and on our ability to
grow our business.
BECAUSE WE ARE DEPENDENT ON OUR COLLABORATIVE PARTNERS AND CONTRACTORS FOR
CLINICAL TESTING AND FOR CERTAIN RESEARCH AND DEVELOPMENT ACTIVITIES, THE
RESULTS OF OUR CLINICAL TRIALS AND SUCH RESEARCH ACTIVITIES ARE, TO A CERTAIN
EXTENT, BEYOND OUR CONTROL.
Our business strategy requires us to rely on our collaborative
partners and contractors to assist us with clinical testing and certain
research and development activities. As a result, our success is dependent
upon the success of these outside parties in performing their
responsibilities. Although we believe our collaborative partners are
economically motivated to perform on their contractual obligations, we can
not control the amount of and timing of resources and skill applied to these
activities by our collaborators. In addition, we may not be able to negotiate
acceptable collaborative arrangements in the future required to implement our
business strategy, and even if we are able to enter into further
collaborative arrangements in the future, we cannot be sure that these
arrangements will be successful.
WE HAVE NO EXPERIENCE MARKETING OR SELLING PHARMACEUTICAL PRODUCTS.
Although we intend to market MAXAMINE directly in the United States,
we have never marketed or sold any pharmaceutical product before. In order to
market and sell MAXAMINE or other products, we will need to develop a sales
force and a marketing group with relevant pharmaceutical experience, or make
appropriate arrangements with strategic partners. We cannot guarantee that we
will be able to attract, assimilate or retain highly qualified marketing and
sales personnel, or successfully employ them to commercialize MAXAMINE. If we
cannot develop the required marketing and sales expertise our ability to
generate revenue from product sales will likely suffer.
We intend to rely on our collaborative partners to market and sell
MAXAMINE in international markets, and such arrangements may be sought to
market MAXDERM and MAXVAX in all markets. We have not yet entered into any
collaborative arrangement with respect to marketing or selling MAXAMINE with
the exception of agreements relating to Australia, New Zealand and Israel,
and have not entered into any agreements regarding MAXDERM or MAXVAX, and we
cannot guarantee that we will be able to enter into any such arrangements on
terms favorable to us, or at all. If we are able to enter into marketing and
selling arrangements with collaborative partners we cannot assure you that
such marketing collaborators will apply adequate resources and skills to
their responsibilities, or that their marketing efforts will be successful.
WE WILL BE DEPENDENT ON THIRD PARTY MANUFACTURERS OF OUR PRODUCTS. OUR
ABILITY TO SELL OUR PRODUCTS MAY BE HARMED TO THE EXTENT ADEQUATE QUANTITIES
OF OUR PRODUCTS ARE NOT MANUFACTURED ON A TIMELY BASIS.
We do not intend to acquire or establish our own dedicated
manufacturing facilities for MAXAMINE in the foreseeable future and have, and
expect to continue to, contract with established pharmaceutical manufacturers
for the production of the product. If we are unable to continue to contract
with third-party manufacturers on acceptable terms, our ability to conduct
clinical testing and to produce commercial quantities of MAXAMINE and other
products will be adversely affected. If we cannot adequately manufacture our
products, it could result in delays in submissions for regulatory approval
and in commercial product launches, which in turn could materially impair our
competitive position and the possibility of achieving profitability. We
cannot guarantee that we will be able to maintain our existing contract
manufacturing relationships, or acquire or establish new, satisfactory
third-party relationships to provide adequate manufacturing capabilities in
the future.
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OUR PRODUCTS MAY NOT BE ACCEPTED, PURCHASED OR USED BY DOCTORS, PATIENTS OR
PAYORS.
MAXAMINE, and any of our other products in development, may not
achieve market acceptance even if the FDA and similar foreign regulatory
agencies approve the drug. The degree of market acceptance of our products
will depend on 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 our products;
- their potential advantages over existing treatment methods;
and
- reimbursement policies of government and other third-party
payors.
We cannot guarantee that physicians, patients, payors or the medical
community in general will accept and utilize any products that we develop.
WE COMPETE AGAINST MANY COMPANIES AND RESEARCH INSTITUTIONS THAT ARE
DEVELOPING PRODUCTS TO TREAT THE SAME DISEASES AS OUR PRODUCTS. TO THE EXTENT
THESE COMPETITORS ARE SUCCESSFUL IN DEVELOPING AND MARKETING SUCH PRODUCTS,
OUR FUTURE POTENTIAL MARKET SHARE AND REVENUES COULD BE REDUCED.
There are many companies, both publicly and privately held,
including well-known pharmaceutical companies, and 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.
Products developed by any of these companies or institutions may demonstrate
greater safety or efficacy than our products or be more widely accepted by
doctors, patients or payors. Many of our competitors and potential
competitors have substantially greater capital, research and development
capabilities and human resources than we do and represent significant
competition. Many of these competitors also have significantly greater
experience than we do in undertaking preclinical testing and clinical trials
of new pharmaceutical products and obtaining FDA and other regulatory
approvals. If any of our products are approved for commercial sale, we will
also be competing with companies that have greater resources and experience
in manufacturing, marketing and selling pharmaceutical products. To the
extent that any of our competitors succeed in developing products that are
more effective, less costly, or have better side effect profiles than our
products, then our market share could decrease, which may have a negative
impact on our profitability.
THE TECHNOLOGY IN OUR SECTOR IS DEVELOPING RAPIDLY, AND OUR FUTURE SUCCESS
DEPENDS ON OUR ABILITY TO KEEP ABREAST OF TECHNOLOGICAL CHANGE.
We are 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. Research and discoveries by others may
render some or all of our proposed programs or products noncompetitive or
obsolete. Our business strategy is subject to the risks inherent in the
development of new products using new technologies and approaches. Unforeseen
problems may develop with these technologies or applications, and we may not be
able to successfully address technological challenges we encounter in our
research and development programs. This may result in our inability to develop
commercially feasible products.
THERE ARE SUBSTANTIAL SHARES ELIGIBLE FOR FUTURE SALE. THE SALE OF THESE SHARES
MAY DEPRESS OUR STOCK PRICE.
Sales of substantial amounts of our common stock in the public market
could adversely affect prevailing market prices for our common stock and our
ability to raise equity capital in the future. As of August 5, 1999 we have
outstanding 10,203,600 shares of common stock. Of these shares, an aggregate of
9,299,724 shares are freely tradable in the public market, unless acquired by
our affiliates. The remaining 903,876 shares are "restricted securities" as that
term is defined in Rule 144 under the Securities Act, all of which are eligible
for immediate sale in the public market pursuant to Rule 144, subject to certain
volume and manner of sale limitations. As of August 5, 1999 we also have
outstanding 206,874 shares of preferred stock which are convertible into
2,068,740 shares of
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common stock. All of these shares are restricted shares, none of which are
eligible for immediate sale in the public market pursuant to Rule 144.
However, the shares of common stock issuable upon conversion of such shares
of preferred stock are being registered hereby and will be eligible for
immediate sale in the public market pursuant to such registration.
As of August 5, 1999 approximately 2,483,000 shares of common stock
underlying warrants, 977,310 shares issued or reserved for issuance under our
equity incentive plan, and 44,006 shares reserved for issuance under our
401(k) plan that upon issuance will be available for immediate sale in the
public market, unless purchased by our affiliates. There are 704,668 shares
of common stock underlying certain warrants outstanding as of August 5, 1999
which have not been registered for public sale and will be subject to the
public sale restrictions of Rule 144 or Rule 701 under the Securities Act,
where applicable if the warrants are exercised. However, 532,390 of the
shares of common stock underlying these warrants are being registered hereby
and will be available for immediate sale in the public market upon such
registration.
OUR STOCK PRICE MAY BE HIGHLY VOLATILE DUE TO EXTERNAL FACTORS.
Our common stock currently trades on the American Stock Exchange and on
the Stockholm Stock Exchange. Historically, our common stock has generally
experienced relatively low daily trading volumes in relation to the aggregate
number of shares outstanding. Sales of substantial amounts of our common stock
in the public market could adversely affect the prevailing market prices of our
common stock and our ability to raise equity capital in the future.
Factors that may have a significant impact on the market price or the
liquidity of our common stock also include:
- actual or potential clinical trial results relating to
products under development by us or our competitors;
- delays in our testing and development schedules;
- events or announcements relating to our collaborative
relationships with others;
- announcements of technological innovations or new products by
us or our competitors;
- developments or disputes concerning patents or proprietary
rights;
- regulatory developments in both the United States and
countries outside of the United States;
- economic and other external factors, as well as
period-to-period fluctuations in our financial results.
External factors may also adversely affect the market prices for our
common stock. The price and liquidity of our common stock may be
significantly affected by the overall trading activity and market factors on
the American Stock Exchange and the Stockholm Stock Exchange, and these
factors may differ between the two 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. 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.
The following table sets forth the high and the low sales prices for
our common stock for the quarters indicated as reported on the American Stock
Exchange.
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<CAPTION>
HIGH LOW
YEAR ENDING SEPTEMBER 30, 1998:
<S> <C> <C>
First Quarter.................................................... $19-1/4 $12-1/4
Second Quarter................................................... 16-5/8 13-3/4
Third Quarter.................................................... 23 14-1/8
Fourth Quarter................................................... 20-1/2 14
YEAR ENDING SEPTEMBER 30, 1999:
First Quarter.................................................... $16-1/2 $11-5/8
Second Quarter................................................... 15-5/8 10-1/2
Third Quarter ................................................... 11-3/8 9
Fourth Quarter (through September 16, 1999)...................... 10-3/8 7-1/2
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WHERE YOU CAN GET MORE INFORMATION
We are a reporting company and file annual, quarterly and current
reports, proxy statements and other information with the SEC. You may read and
copy these reports, proxy statements and other information at the SEC's public
reference rooms in Washington, D.C., New York, NY and Chicago, IL. You can
request copies of these documents by writing to the SEC and paying a fee for the
copying cost. Please call the SEC at 1-800-SEC-0330 for more information about
the operation of the public reference rooms. Our SEC filings are also available
at the SEC's Web site at "http://www.sec.gov". In addition, you can read and
copy our SEC filings at the office of the National Association of Securities
Dealers, Inc. at 1735 K Street, Washington, D.C. 20006.
The SEC allows us to "incorporate by reference" information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. Our SEC file number for the information we
have incorporated by reference is 001-14430. The information incorporated by
reference is an important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934:
- Annual Report on Form 10-K for the year ended September 30,
1998;
- Proxy Statement on Schedule 14A dated January 13, 1999;
- Proxy Statement on Schedule 14A dated June 1, 1999;
- Quarterly Reports on Form 10-Q for the quarters ended December
31, 1998, March 31, 1999 and June 30, 1999; and
- Our registration statement on Form 8-A filed on June 28, 1996
which includes a description of our common stock.
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address or telephone number:
Maxim Pharmaceuticals
8899 University Center Lane, Suite 400
San Diego, CA 92122
Attn: Secretary
(858) 453-4040
This prospectus is part of a larger registration statement we filed
with the SEC. In deciding whether to buy our common stock, you should rely only
on the information incorporated by reference or provided in this prospectus. We
have not authorized anyone else to provide you with different information. We
are not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of the document
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USE OF PROCEEDS
Maxim will not receive any of the proceeds from the sale of the shares
of common stock offered by the selling stockholders.
SELLING STOCKHOLDERS
The following table sets forth the names of each of the selling
stockholders, the number of shares of common stock beneficially owned by the
selling stockholders as of August 5, 1999 and the number of shares of common
stock being offered by each of them pursuant to this prospectus. This
information is based upon information provided by each respective selling
stockholder. Because the selling stockholders may offer all, some or none of
their respective shares of common stock, no definitive estimate can be provided
as to the number of shares or percentage of outstanding common stock that will
be held by the selling stockholders after such offering. The term "selling
stockholders" includes the stockholders listed below and their transferees,
pledgees, donees or other successors.
- To our knowledge, the persons named in the table below have
sole voting and investment power with respect to all shares of
the common stock shown as beneficially owned by them, subject
to community property laws where applicable and the
information contained in the footnotes to this table.
- Percentage ownership is based on 10,203,600 shares of common
stock outstanding as of August 5, 1999.
- The number of shares being offered reflects shares of common
stock issuable upon conversion of shares of our Series A
Convertible Preferred stock beneficially owned by such selling
stockholder. It also includes shares of common stock issuable
in connection with dividends payable on such shares, assuming
such dividends are paid in stock in lieu of cash.
Unless otherwise indicated in the footnotes below, the number of shares
beneficially owned before this offering by each selling stockholder and the
number of shares being offered consist solely of shares of common stock issuable
upon conversion of our Series A Preferred Stock. For each selling stockholder,
we have included shares issuable in connection with required dividends on the
Series A Preferred Stock assuming that each selling stockholder will elect to
take such dividends in shares of stock instead of cash. For any stockholder that
elects to take such dividends in cash, the number of shares of common stock
issuable upon conversion of such holder's Series A Preferred Stock would be
approximately 11% less than the number indicated in the table below.
None of the selling stockholders has, or within the past three years
has had, any position, office or other material relationship with Maxim
Pharmaceuticals, Inc. or any of its predecessors or affiliates.
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<CAPTION>
SHARES BENEFICIALLY OWNED NUMBER OF SHARES BENEFICIALLY OWNED
BEFORE OFFERING SHARES AFTER OFFERING
BEING
SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------------------------------------ ---------- --------- --------- ------------ -----------
<S> <C> <C> <C> <C> <C>
5:e AP Fonden
P.O. Box 1639 347,180 3.29 347,180 - -
SE-111 86 Stockholm, Sweden
The Aries Master Fund
787 Seventh Avenue, 48th Floor 79,260 * 79,260 - -
New York, NY 10019
Aries Domestic Fund, L.P.
787 Seventh Avenue, 48th Floor 35,270 * 35,270 - -
New York, NY 10019
</TABLE>
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<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED NUMBER OF SHARES BENEFICIALLY OWNED
BEFORE OFFERING SHARES AFTER OFFERING
BEING
SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------------------------------------ ---------- --------- --------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Aries Domestic Fund II, L.P.
787 Seventh Avenue, 48th Floor 1,150 * 1,150 - -
New York, NY 10019
Carnegie-Cowen Global Healthcare Fund
5 Place de la Gare 57,840 * 57,840 - -
P.O. Box 1141
L-1011 Luxembourg
Carnegie Fund - Medical Sub-Fund
5 Place de la Gare 57,840 * 57,840 - -
P.O. Box 1141
L-1011 Luxembourg
DVG Deutsche Vermogensbildungsgesellschaft mbH
Feldbergstra(beta)e 22 462,910 4.34% 462,910 - -
60323 Frankfurt, Germany
Dunross & Co. AB (1)
Vasagatan 40 136,770 1.33% 46,270 90,500 *
SE-411 37 Gothenburg, Sweden
E. Ohman J:or Fondkommission AB (2)
Kapitalforvaltning 68,380 * 13,880 54,500 *
P.O. Box 7415
SE-103 91 Stockholm, Sweden
Forenade Liv Gruppforsakringsbolag AB (3)
SE-103 72 Stockholm, Sweden 68,630 3.29% 15,030 53,600 *
Forenade Liv Kollektivavtalsforsakrings AB (4)
SE-103 72 Stockholm, Sweden 104,920 1.02% 23,120 81,800 *
Forenade Liv Omsesidigt Gruppforsakringsbolag (5)
SE-103 72 Stockholm, Sweden 196,910 1.91% 37,010 159,900 1.56%
Forsakringsbolaget SPP Omsesidigt (6)
SE-103 73 Stockholm, Sweden 606,720 5.88% 115,720 491,000 4.81%
HealthCap KB (7)
Sturegatan 34 816,157 7.66% 138,410 677,747 6.45%
SE-114 36 Stockholm, Sweden
Mikael Hellberg
Bergsstigen 103 1,700 * 1,700 - -
SE-138 33 Alta, Sweden
Charles Johnston
706 Ocean Drive 17,340 * 17,340 - -
Juno Beach, FL 33408
</TABLE>
10.
<PAGE>
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED NUMBER OF SHARES BENEFICIALLY OWNED
BEFORE OFFERING SHARES AFTER OFFERING
BEING
SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------------------------------------ ---------- --------- --------- ------------ -----------
<S> <C> <C> <C> <C> <C>
The Kriegsman Group (8)
920 Greentree Road 232,390 2.23% 232,390 - -
Pacific Palisades, CA 90272
Alexander Lindstrom (9)
Lundagatan 36, uppg 10 21,530 * 5,530 16,000 *
SE-117 27 Stockholm, Sweden
Livforsakrings AB Skandia (10)
SE-103 50 Stockholm, Sweden 705,840 6.76% 231,440 474,400 4.65%
Carl Henrik Permert
Setterwallsvagen 6 3,450 * 3,450 - -
SE-131 36 Nacka, Sweden
Kenth Petersson
Heleneborgsgatan 20 11,090 * 11,090 - -
SE-117 32 Stockholm, Sweden
RGC International Investors, LDC (11)
Three Bala Plaza East, Suite 200 647,180 5.96% 647,180 - -
Bala Cynwyd, PA 19004
Roston Enterprises
2201 Canyonback Road 28,910 * 28,910 - -
Los Angles, CA 90049
SEB Lakemedelsfond
ST S6 98,360 * 98,360 - -
SE-106 40 Stockholm
Sweden
SEB Luxembourg
16 Boulevard Royal 17,350 * 17,350 - -
P.O. Box 487
L-2014 Luxembourg
Luxembourg
SEB Private Bank
P.O. Box 487 1,830 * 1,830 - -
L-2014 Luxembourg
Luxembourg
Skogs- och Lantarbetsgivareforbundet
P.O. Box 16006 23,120 * 23,120 - -
SE-103 21 Stockholm
Sweden
Svenska Handelsbanken S.A. Luxembourg
P.O. Box 678 52,060 * 52,060 - -
L-2016 Luxembourg
Luxembourg
</TABLE>
11.
<PAGE>
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED NUMBER OF SHARES BENEFICIALLY OWNED
BEFORE OFFERING SHARES AFTER OFFERING
BEING
SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------------------------------------ ---------- --------- --------- ------------ -----------
<S> <C> <C> <C> <C> <C>
Unibank S.A. (12)
P.O.Box 562 53,530 * 5,530 48,000 *
L-2015 Luxembourg
Luxembourg
Wechsler & Co., Inc.
105 South Bedford Road, Suite 310 34,700 * 34,700 - -
Mount Kisco, NY 10549
Wendt Family Revocable Trust (13)
4900 West Dry Creek Road 18,340 * 17,340 1,000 *
Healdsburg, CA 95448
</TABLE>
- -------------------------
* Less than 1%
(1) Includes 90,500 shares of common stock beneficially owned by Dunross &
Co AB as of August 5, 1999.
(2) Includes 54,500 shares of common stock beneficially owned by E. Ohman
J:or Fondkommission AB as of August 5, 1999.
(3) Includes 53,600 shares of common stock beneficially owned by Forenade
Liv Gruppforsakringsbolag AB as of August 5, 1999, including warrants
to 17,000 shares of common stock, all of which are immediately
exercisable.
(4) Includes 81,800 shares of common stock beneficially owned by Forenade
Liv Kollektivavtalsforsakrings AB as of August 5, 1999, including
warrants to purchase 20,000 shares of common stock, all of which are
immediately exercisable.
(5) Includes 159,900 shares of common stock beneficially owned by Forenade
Liv Omsesidigt Gruppforsakringsbolag as of August 5, 1999, including
warrants to purchase 63,900 shares of common stock, all of which are
immediately exercisable.
(6) Includes 491,000 shares of common stock beneficially owned by
Forsakringsbolaget SPP Omsesidigt as of August 5, 1999.
(7) Includes 677,747 shares of common stock beneficially owned by Health
Cap KB as of August 5, 1999, including warrants to purchase 310,100
shares of common stock, all of which are immediately exercisable.
(8) Includes warrants to purchase 32,390 shares of common stock at an
exercise price of $9.725 per share, all of which are immediately
exercisable. Also includes warrants to purchase 200,000 shares of
common stock at an exercise price of $13.00 per share, 50% of which are
immediately exercisable, 25% of which will become exercisable on
September 5, 1999 and 25% of which will become exercisable on December
6, 1999.
(9) Includes 16,000 shares of common stock beneficially owned by Alexander
Lindstrom as of August 5, 1999, including warrants to purchase 15,000
shares of common stock, all of which are immediately exercisable.
(10) Includes 474,400 shares of common stock beneficially owned by
Livforsakrings AB Skandia as of August 5, 1999.
(11) Includes warrants to purchase 300,000 shares of common at an exercise
price of $10.50 per share, all of which are immediately exercisable.
(12) Includes 48,000 shares of common stock beneficially owned by Unibank
S.A. as of August 5, 1999.
(13) Includes warrants to purchase 1,000 shares of common stock, all of
which are immediately exercisable.
12.
<PAGE>
PLAN OF DISTRIBUTION
The shares of common stock may be sold from time to time by the selling
stockholders in one or more transactions at fixed prices, at market prices at
the time of sale, at varying prices determined at the time of sale or at
negotiated prices. The selling stockholders may offer their shares of common
stock in one or more of the following transactions:
- on any national securities exchange or quotation service at
which the common stock may be listed or quoted at the time of
sale, including the American Stock Exchange and the Stockholm
Stock Exchange,
- in the over-the-counter market,
- in private transactions,
- through options, and
- by pledge to secure debts and other obligations, or a
combination of any of the above transactions.
If required, we will distribute a supplement to this prospectus to
describe material changes in the terms of the offering.
The shares of common stock described in this prospectus may be sold
from time to time directly by the selling stockholders. Alternatively, the
selling stockholders may from time to time offer shares of common stock to or
through underwriters, broker/dealers or agents. The selling stockholders and
any underwriters, broker/dealers or agents that participate in the
distribution of the shares of common stock may be deemed to be "underwriters"
within the meaning of the Securities Act of 1933. Any profits on the resale
of shares of common stock and any compensation received by any underwriter,
broker/dealer or agent may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933.
Any shares covered by this prospectus which qualify for sale
pursuant to Rule 144 under the Securities Act of 1933 may be sold under rule
144 rather than pursuant to this prospectus. The selling stockholders do not
have to sell all of the shares they own pursuant to this prospectus. The
selling stockholders may transfer, devise or gift such shares by other means
not described in this prospectus.
To comply with the securities laws of certain jurisdictions, the
common stock must be offered or sold only through registered or licensed
brokers or dealers. In addition, in certain jurisdictions, the common stock
may not be offered or sold unless they have been registered or qualified for
sale or an exemption is available and complied with.
Under the Securities Exchange Act of 1934, any person engaged in a
distribution of the common stock may not simultaneously engage in
market-making activities with respect to the common stock for nine business
days prior to the start of the distribution. In addition, each selling
stockholder and any other person participating in a distribution will be
subject to the Securities Exchange Act of 1934 which may limit the timing of
purchases and sales of common stock by the selling stockholders or any such
other person. These factors may affect the marketability of the common stock
and the ability of brokers or dealers to engage in market-making activities.
We will pay all expenses of this registration. These expenses
include the SEC's filing fees and fees under state securities or "blue sky"
laws. We estimate that our expenses in connection with this offering will be
approximately $25,000. All expenses for the issuance of a supplement to this
prospectus, when requested by selling stockholder(s), will also be paid by us.
13.
<PAGE>
LEGAL MATTERS
Cooley Godward LLP will give its opinion that the shares offered in
this prospectus have been validly issued and are fully paid and non-assessable.
EXPERTS
The financial statements of Maxim Pharmaceuticals, Inc. as of September
30, 1998 and 1997, and for each of the years in the three-year period ended
September 30, 1998, and for the period from inception (October 23, 1989) through
September 30, 1998, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACT LIABILITIES
Our Bylaws provide that we will indemnify our directors and executive
officers, and may indemnify our other officers, employees and other agents, to
the fullest extent not prohibited by Delaware law. We are also empowered under
our Certificate of Incorporation and Bylaws to enter into indemnification
agreements with our directors, officers, employees and other agents and to
purchase insurance on behalf of any person whom we are required or permitted to
indemnify. Pursuant to this provision, we have entered into indemnity agreements
with each of our directors and executive officers.
14.
