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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 14, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MAXIM PHARMACEUTICALS, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 87-0279983
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CA 92122
(858) 453-4040
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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DALE A. SANDER
VICE PRESIDENT, FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY
MAXIM PHARMACEUTICALS, INC.
8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CA 92122
(858) 453-4040
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(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Copies to:
L. KAY CHANDLER, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CA 92121
(858) 550-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after this Registration Statement becomes effective.
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. / /
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED (1) PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
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Common Stock, $.001 par value 1,552,775 $ 58.28 $90,495,727 $ 23,891
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(1) Includes 3,958 shares of Registrant's common stock issuable upon the
exercise of certain outstanding warrants.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) of the Securities Act of 1933. The
price per share and aggregate offering price are based upon the average of the
high and low sales price of Registrant's common stock on July 12, 2000 as
reported on the Nasdaq National Market.
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 WHICH 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
SUBJECT TO COMPLETION, DATED JULY 14, 2000
1,552,775 SHARES
MAXIM PHARMACEUTICALS, INC.
COMMON STOCK
We are registering 1,552,775 shares of our common stock, including shares
issuable upon the exercise of outstanding warrants, for resale by the selling
stockholders identified in this prospectus. The shares were issued, and the
warrants pursuant to which part of the shares will be issuable were assumed,
in connection with our acquisition of Cytovia, Inc. on June 16, 2000. We will
not receive any of the proceeds from the sale of shares by the selling
stockholders. Our common stock is listed on the Nasdaq National Market and on
the OM Stockholm Exchange under the symbol "MAXM." On July 12, 2000, the last
reported price on the Nasdaq National Market for our common stock, was
$59.5625 per share.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS," BEGINNING ON PAGE 5.
NEITHER THE SECURITIES AND 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 __________, 2000.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
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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. 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, 1999;
- Proxy Statement on Schedule 14A dated January 10, 2000;
- Current Reports on Form 8-K filed with the SEC on March 2, 2000
and on June 30, 2000;
- Quarterly Reports on Form 10-Q for the quarters ended December
31, 1999 and March 31, 2000; 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, Inc.
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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MAXIM PHARMACEUTICALS, INC.
IN THIS PROSPECTUS, THE WORDS "WE," "OUR," AND "US" REFER ONLY TO MAXIM
AND ITS SUBSIDIARY AND NOT TO THE SELLING STOCKHOLDERS OR ANY OTHER PERSON.
Maxim is developing a new generation of drugs for cancer, infectious
diseases, topical disorders and cardiovascular disease. Our lead drug candidate,
MAXAMINE, has the potential to greatly improve the ability of the immune system
to fight cancer and viral infections. MAXAMINE, which is based on the naturally
occurring molecule histamine, is designed to improve immunotherapy by protecting
critical immune cells. MAXAMINE is administered in combination with cytokines, a
class of proteins that stimulate these same immune cells. More than 1,200
patients have participated in our completed and ongoing clinical trials in
advanced malignant melanoma, acute myelogenous leukemia, hepatitis C and renal
cell carcinoma. Our clinical results to date suggest that MAXAMINE THERAPY, the
administration of MAXAMINE in combination with cytokines, is a safe, at-home
treatment that can improve patient survival.
In March 2000 we completed our U.S. Phase III clinical trial in
patients with stage-IV malignant melanoma, the most deadly form of skin
cancer. The results showed that MAXAMINE used in combination with the
cytokine interleukin-2 (IL-2), improved survival for stage-IV malignant
melanoma patients compared with those treated with the same doses of IL-2
alone. Treatment with MAXAMINE and IL-2 improved overall survival and
increased survival rates at 12, 18 and 24 months over treatment with IL-2
alone. Improvement in survival was statistically significant in patients
having metastases of their melanoma to the liver, a patient population that
historically has had a very poor prognosis, and in all subgroups analyzed
under the approved statistical plan. We expect to file a New Drug Application
with the Food and Drug Administration in the summer 2000.
In April 2000, we announced 24-week results from our Phase II
dose-ranging study of MAXAMINE in combination with the cytokine interferon-alpha
in the treatment of naive, chronically infected hepatitis C patients. After 24
weeks of therapy, the combination of the optimal dosing regimens of MAXAMINE and
interferon-alpha achieved a complete viral response in 69 percent of all
patients, compared to the 29 percent or less response that is commonly observed
in patients with similar profiles treated with interferon-alpha alone..
Assuming FDA approval of MAXAMINE, we plan to directly market the drug
in the United States, potentially under an alliance with a pharmaceutical
company or other collaborator. In addition, we expect to establish alliances
with pharmaceutical companies for the marketing of MAXAMINE in key international
markets. In 1999, we entered into agreements with two pharmaceutical companies
to market MAXAMINE in Australia and New Zealand, and Israel, respectively. We
are currently in the process of evaluating, and are in discussions with,
pharmaceutical companies to serve as marketing collaborators.
We are also developing MAXDERM, a MAXAMINE-related series of drug
candidates for the treatment of certain topical disorders. Randomized, blinded,
placebo-controlled pilot studies have been conducted in more than 75 patients.
Pilot studies in patients with oral mucositis and in patients with herpes
labialis, or cold sores, suggested that topical gels based upon the MAXDERM
technology resolved lesions more effectively than placebo controls. In January
2000, we reported the results of two preclinical trials of a gel based on our
MAXDERM technology in the treatment of oral mucositis. Our preclinical trials
showed significantly reduced healing time for this serious side effect of
chemotherapy and radiation therapy.
In June 2000, we acquired all of the outstanding capital stock of
Cytovia, Inc., which operates now as our wholly owned subsidiary. With the
research capabilities and technologies we acquired as a result of this
transaction, we are discovering and developing a class of small-molecule drugs
known as caspase modulators. Caspases are key enzymes that modulate and carry
out the cellular signaling pathways involved in programmed cell death, also
known as apoptosis. Compounds that can either inhibit caspases or induce
caspases may form the basis for important new drugs for a wide variety of
disease targets including certain cancers, cardiovascular and other degenerative
diseases. Cytovia has developed a proprietary high-throughput screening system
that is targeted to discovery of both caspase inhibitors and activators.
A total of 25 anti-cancer product candidates have been identified to
date through this high-throughput screening technology, including our CV2105
series of compounds. The CV2105 series of compounds are cytotoxic
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agents that have shown promise in preclinical testing in lung and prostate
adenocarcinoma models, including favorable results in preclinical models of
drug resistant cancers. In July 2000, we licensed the CV2105 series of
anti-cancer compounds to BioChem Pharma, Inc. The agreement requires that
BioChem make licensing, research and milestone payments to us totaling up to
$55 million if a compound from the series is approved in two cancers, as well
as pay a royalty on product sales resulting from this collaboration.
Our principal executive offices are located at 8899 University Center
Lane, Suite 400, San Diego, California 92122 and our telephone number is (858)
453-4040.
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RISK FACTORS
AN INVESTMENT IN OUR SHARES AS OFFERED IN THIS PROSPECTUS INVOLVES A
HIGH DEGREE OF RISK. IN DECIDING WHETHER TO PURCHASE SHARES OF OUR COMMON STOCK,
YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS, IN ADDITION TO OTHER
INFORMATION CONTAINED IN THIS PROSPECTUS AS WELL AS ANY OTHER DOCUMENTS
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS. THIS PROSPECTUS ALSO CONTAINS
FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND UNCERTAINTIES.
THE DEVELOPMENT OF 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 caspase modulator
technologies will require, dependent upon the current specific product
candidate, extensive research and development, preclinical testing and clinical
testing, as well as 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 commercially viable;
- be eligible for third party reimbursement from
governmental or private insurers; or
- be successfully marketed or achieve market acceptance.
We have not yet submitted to the U.S. Food and Drug Administration
("FDA") our New Drug Application related to our U.S. Phase III trial of MAXAMINE
for the treatment of stage-IV melanoma, and we have not completed final testing
for efficacy or safety in humans for any of our other proposed uses for MAXAMINE
or for our other product candidates. Any delay in our expected testing and
development schedules, or any elimination of a product development program in
its entirety, will negatively impact our ability to generate revenues in the
future from the sale of our products.
BECAUSE WE ARE DEPENDENT ON OUR 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 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 contractors are
economically motivated to perform on their contractual obligations, we cannot
directly control the adequacy and timeliness of the resources and expertise
applied to these activities by our contractors.
WE EXPECT TO RELY ON COLLABORATIVE PARTNERS FOR RESEARCH, DEVELOPMENT
AND COMMERCIALIZATION OF CERTAIN POTENTIAL PRODUCTS.
We expect to rely on collaborative arrangements for research and
development and commercialization of certain potential products discovered
and developed by us, such as the license agreement with BioChem Pharma for
the anti-cancer compound CV2105, and our clinical collaboration with Chiron
Corporation related to our Phase III MAXAMINE clinical trial in acute
myelogenous leukemia.. We cannot be certain that we will be able to maintain
these collaborations or enter into any future collaborative arrangements,
that any of our collaborations will be successful or that we will receive
revenues from any of these collaborations. The success of these and any
future collaborations will depend, in significant part, on our partners'
development and strategic considerations, including the relative advantages
of alternative products being developed or marketed by competitors. If our
partners fail to conduct their activities in a timely manner, or at all,
preclinical or clinical development of products under those collaborations
could be delayed or terminated. The
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suspension or termination of our collaborations, the failure of our
collaborations to be successful or the delay in the development or
commercialization of products pursuant to our collaborations could harm our
business.
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 they are approved by the FDA and similar foreign
regulatory agencies. 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 of the clinical efficacy, safety
and advantages of our products by the medical community;
- the potential advantages of our products 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 HAVE YET TO MARKET OR SELL ANY OF OUR PRODUCTS.
Although we currently intend to market or MAXAMINE in the United States
through the recruitment of experienced marketing and sales personnel, we have
never before marketed or sold any pharmaceutical product. In order to market or
co-market MAXAMINE or our other products, we will need to hire a significant
number of people with relevant pharmaceutical experience to staff our sales
force and marketing group, and possibly also to make appropriate arrangements
with strategic partners. If we cannot develop the required marketing and sales
expertise both internally and through our partnering arrangements, 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
certain other products 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 the marketing or selling of our other
products with the exception of a license agreement relating to our CV2105 series
of anti-cancer compounds. 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 and our other product candidates in the
foreseeable future. We have contracted and expect to continue to contract with
established pharmaceutical manufacturers for the production of MAXAMINE. If we
are unable to continue to contract with third-party manufacturers on acceptable
terms or our manufacturers do not comply with applicable regulatory
requirements, 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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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 March 31, 2000, had an accumulated
deficit of approximately $102 million . Cytovia also had incurred losses in
every year since its inception and through the date of our acquisition, and, as
of March 31, 2000, had an accumulated deficit of approximately $14 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 and planned market launches of our products. If
we do not become profitable, our stock price will be negatively affected, and we
may ultimately be forced to discontinue 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
DEVELOPMENT 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 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
- btain 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.
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 products for the treatment of
cancer and 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. 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 future potential market share could
decrease which may have a negative impact on our business.
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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
THE SALES OF OUR PRODUCTS.
Our product candidates are subject to significant regulation by the FDA
as well as similar agencies in countries outside the United States. Satisfaction
of the lengthy and detailed laboratory and clinical testing procedures required
to submit an application for regulatory approval 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 devoting substantial time and financial resources to our
clinical trials, but we cannot be sure that the results of our clinical trials
will support the submission of a New Drug Application, or NDA, 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 and trade secrets and to 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.
Enforcement of our intellectual property rights against any infringers of our
patents relating to MAXAMINE and our other technologies will be costly and
time-consuming. Because of the nature of those patents, we could be required to
bring lawsuits against many different entities such as hospitals or clinics.
This would have the effect of increasing the costs of enforcing our rights.
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
U.S. 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.
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
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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.
THE MARKETABILITY OF OUR PRODUCTS MAY DEPEND ON REIMBURSEMENT AND
REFORM MEASURES IN THE HEALTH CARE INDUSTRY.
Our success may depend, in part, on the extent to which reimbursement
for the costs of therapeutic products and related treatments will be available
from third-party payors such as government health administration authorities,
private health insurers, managed care programs and other organizations. Over the
past decade, the cost of health care has risen significantly, and there have
been numerous proposals by legislators, regulators and third-party health care
payors to curb these costs. Some of these proposals have involved limitations on
the amount of reimbursement for certain products. We cannot guarantee that
similar federal or state health care legislation will not be adopted in the
future or that any products sought to be commercialized by us will be considered
cost-effective or that adequate third-party insurance coverage will be available
for us to establish and maintain price levels sufficient for realization of an
appropriate return on our investment in product development. Moreover, the
existence or threat of cost control measures could have an adverse effect on the
willingness of potential collaborators to pursue research and development
programs related to our products.
OUR RECENT ACQUISITION OF CYTOVIA PRESENTS NEW CHALLENGES THAT MAY
NEGATIVELY AFFECT OUR BUSINESS.
We recently acquired Cytovia. Our products under development are at
different stages of development, are based on different technologies and in some
cases are focused on the treatment of different diseases than the products that
Cytovia is developing. It may turn out that there are no advantages or
"synergies" to adding Cytovia's proposed products to our product line. Moreover,
there is no assurance that Cytovia's operations can be successfully integrated
into our operations or that all of the benefits expected from such integration
will be realized Furthermore, there can be no assurance that our operations,
management and personnel will be compatible with those of Cytovia. As a result
of any of these factors, our stock price could decline significantly.
OUR STOCK PRICE MAY BE HIGHLY VOLATILE DUE TO EXTERNAL FACTORS.
Our common stock currently trades on the Nasdaq National Market and on
the OM Stockholm 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 foreign
countries;
- economic and other external factors, as well as period-to-period
fluctuations in our financial results;
- market conditions for pharmaceutical and biotechnology stocks; and
- publicity regarding actual or potential medical results relating to
products under development by us or our competitors.
9
<PAGE>
External factors may also adversely affect the market price 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 Nasdaq
National Market and the OM Stockholm 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.
CERTAIN OF OUR CHARTER AND BY-LAW PROVISIONS MAY DETER A THIRD PARTY
FROM ACQUIRING US.
Certain provisions of our charter and by-laws may make it more
difficult for a third party to acquire control of us. These provisions include:
- a staggered or classified board;
- the inability of stockholders to act by written consent; and
- no right to remove directors other than for cause.
We have also adopted a shareholder rights plan or "poison pill." Our
shareholder rights plan is designed to protect our shareholders in the event of
an unsolicited bid to acquire the company. In general terms, the rights plan
imposes a significant penalty upon any person or group that acquires 15% or more
of our outstanding common stock without the approval of our board of directors.
Our shareholder rights plan could discourage a third party from attempting to
acquire us through an acquisition of our outstanding voting stock.
Our board of directors also has the authority to issue, at any time,
without further stockholder approval, up to 5,000,000 shares of preferred stock,
and to determine the price, rights, privileges and preferences of those shares.
We have used shares in connection with our shareholder rights plan. Any issuance
of preferred stock could discourage a third party from acquiring a majority of
our outstanding voting stock.
Furthermore, we are subject to the provisions of Section 203 of the
DGCL, an anti-takeover law, which may also dissuade a potential acquiror of our
common stock.
WE MAY ENGAGE IN STRATEGIC TRANSACTIONS, WHICH COULD ADVERSELY
AFFECT OUR BUSINESS
From time to time we consider strategic transactions and alternatives
with the goal of maximizing stockholder value. For example, in June 2000 we
completed the acquisition of Cytovia, Inc., a pharmaceutical company developing
therapeutics and products to assist physicians in combating cancer and certain
degenerative diseases. We will continue to evaluate other potential strategic
transactions and alternatives which we believe may enhance stockholder value.
These additional potential transactions may include a variety of different
business arrangements, including spin-offs, acquisitions, strategic
partnerships, joint ventures, restructurings, divestitures, business
combinations and investments. We cannot assure you that any such transactions
will be consummated on favorable terms or at all, will in fact enhance
stockholder value, or will not adversely affect our business or the trading
price of our stock. Any such transaction may require us to incur non-recurring
or other charges and may pose significant integration challenges and/or
management and business disruptions, any of which could materially and adversely
affect our business and financial results.
10
<PAGE>
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that we incorporate by
reference, contains forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934. Any statements about our expectations, beliefs, plans, objectives,
assumptions or future events or performance are not historical facts and may be
forward-looking. These statements are often, but not always, made through the
use of words or phrases like "anticipate," "estimate," "plans," "projects,"
"continuing," "ongoing," "expects," "management believes," "we believe," "we
intend" and similar words or phrases. Accordingly, these statements involve
estimates, assumptions and uncertainties which could cause actual results to
differ materially from those expressed in them. Any forward-looking statements
are qualified in their entirety by reference to the factors discussed in this
prospectus or incorporated by reference.
Because the factors discussed in this prospectus or incorporated by
reference could cause actual results or outcomes to differ materially from those
expressed in any forward-looking statements made by us or on behalf of us, you
should not place undue reliance on any such forward-looking statements. Further,
any forward-looking statement speaks only as of the date on which it is made,
and we undertake no obligation to update any forward-looking statement or
statements to reflect events or circumstances after the date on which such
statement is made or to reflect the occurrence of unanticipated events. New
factors emerge from time to time, and it is not possible for us to predict which
will arise. In addition, we cannot assess the impact of each factor on our
business or the extent to which any factor, or combination of factors, may cause
actual results to differ materially from those contained in any forward-looking
statements.
USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares of
common stock offered by the selling stockholders.
11
<PAGE>
SELLING STOCKHOLDERS
We are registering for resale certain shares of our common stock held
by the selling stockholders identified below, including shares of our common
stock issuable upon the exercise of outstanding warrants. The following table
sets forth:
- the name of the selling stockholders;
- the number and percent of shares of our common stock that the
selling stockholders beneficially owned prior to the offering for
resale of any of the shares of our common stock being registered
by the registration statement of which this prospectus is a part;
- the number of shares of our common stock that may be offered for
resale for the account of the selling stockholders pursuant to
this prospectus; and
- the number and percent of shares of our common stock to be held by
the selling stockholders after the offering of the resale shares
(assuming all of the resale shares are sold by the selling
stockholders).
This information is based upon information provided by selling stockholders,
schedules 13G and/or other public documents filed with the SEC, and assumes the
sale of all of the resale shares by the selling stockholders. The term "selling
stockholders" includes the stockholders listed below and their transferees,
pledgees, donees or other successors. The applicable percentages of ownership
are based on an aggregate of 22,687,736 shares of common stock issued and
outstanding as of June 16, 2000.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED OWNED
PRIOR TO OFFERING NUMBER OF AFTER OFFERING
----------------- SHARES BEING ------------------
SELLING STOCKHOLDERS NUMBER PERCENT OFFERED NUMBER PERCENT
----------------------------------------------- ------- ---------- ------------ -------- -------
<S> <C> <C> <C> <C> <C>
Crosspoint Venture Partners 1997 308,991 1.36% 308,991 -- --
SBIC Partners II, L.P. 308,991 1.36% 308,991 -- --
Domain Partners IV, L.P. 157,627 * 157,627 -- --
Eckard Weber (1) 140,175 * 137,798 2,377 *
Domain Partners III, L.P. 123,581 * 123,581 -- --
Aurora Biosciences Corporation 98,959 * 98,959 -- --
Sanderling Venture Partners IV, L.P. 97,547 * 97,547 -- --
3i BioScience Investment Trust PLC 88,047 * 88,047 -- --
Axys Pharmaceuticals, Inc. 70,900 * 70,900 -- --
Sanderling IV Limited, L.P. 38,055 * 38,055 -- --
Sanderling IV Biomedical, L.P. 37,974 * 37,974 -- --
Sanderling [Feri Trust] Venture Partners IV,
G.P. 10,821 * 10,821 -- --
Jeff & Oriana Vick as Community Property (2) 21,893 * 10,654 11,239 *
Sanderling IV Biomedical Co-Investment Fund 10,628 * 10,628 -- --
Sanderling Venture Partners IV Co-Investment
Fund 10,628 * 10,628 -- --
Marvin Rosenthale (3) 6,658 6,658 -- --
F. Richard Nichol (4) 5,193 * 5,193 -- --
DP III Associates, L.P. 4,182 * 4,182 -- --
GC&H Investments 4,087 * 4,087 -- --
Bernd Seizinger (5) 4,041 * 4,041 -- --
Comdisco (6) 3,958 * 3,958 -- --
DP IV Associates, L.P. 3,776 * 3,776 -- --
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED OWNED
PRIOR TO OFFERING NUMBER OF AFTER OFFERING
----------------- SHARES BEING ------------------
SELLING STOCKHOLDERS NUMBER PERCENT OFFERED NUMBER PERCENT
----------------------------------------------- ------- ---------- ------------ -------- -------
<S> <C> <C> <C> <C> <C>
Fred A. Middleton 2,640 * 2,640 -- --
Robert G. McNeil (7) 2,640 * 2,640 -- --
Lowell E. Sears as Trustee of the Sears Living
Trust Dtd 3/11/91 2,452 * 2,452 -- --
Marker Gene Technologies, Inc. 761 * 761 -- --
Wu Yang 680 * 680 -- --
Linda Francis (8) 190 * 190 -- --
Tye Waterhouse 139 * 139 -- --
Susan L. Gawlak 110 * 110 -- --
Shaojuan Jia (9) 67 * 67 -- --
</TABLE>
------------------------
* Less than 1%
(1) Includes 2,377 shares subject to stock options exercisable within 60
days from June 16, 2000.
(2) Includes 11,239 shares subject to stock options exercisable within 60
days from June 16, 2000.
(3) Includes 6,658 shares subject to stock options exercisable within 60
days from June 16, 2000.
(4) Includes 4,375 shares subject to stock options exercisable within 60
days from June 16, 2000.
(5) Includes 4,041 shares subject to stock options exercisable within 60
days from June 16, 2000.
(6) Includes 3,958 shares subject to warrants exercisable within 60 days
from June 16, 2000.
(7) Includes 167 shares held by Robert G. McNeil, Trustee of the Sanderling
Management Company, LLC Retirement Trust FBO Robert G. McNeil.
(8) Includes 190 shares subject to stock options exercisable within 60
days from June 16, 2000.
(9) Includes 67 shares subject to stock options exercisable within 60 days
from June 16, 2000.
13
<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 Nasdaq
National Market and the OM Stockholm 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 $50,000. All expenses for the issuance of a supplement to this
prospectus, when requested by selling stockholder(s), will also be paid by us.
Each of the selling stockholders has entered into a lock-up agreement
with us with respect to the shares of our common stock that are being registered
for resale. Under the terms of the lock-up agreement, each selling stockholder
has agreed to sell or transfer the shares of our common stock that are being
registered for resale only in accordance with the following schedule:
14
<PAGE>
Percentage of shares of our common stock
held by selling stockholder Time of lock-up release
Up to 25% On or after September 14, 2000
Up to 50% On or after December 13, 2000
Up to 75% On or after March 13, 2001
100% On or after June 16, 2001
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 1999, and for each of the years in the three-year period ended
September 30, 1999, and for the period from inception (October 23, 1989) through
September 30, 1999, 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.
The financial statements of Cytovia, Inc. as of December 31, 1998
and 1999, for the year ended December 31, 1999, and for the periods from
inception (January 9, 1998) through December 31, 1998 and 1999, have been
audited by Ernst & Young LLP, independent auditors, and are incorporated by
reference herein and in the registration statement in reliance upon the
report of Ernst & Young LLP, given on their authority as experts in
accounting and auditing.
15
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS ----------------------
PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU
WITH INFORMATION DIFFERENT FROM THAT CONTAINED IN THIS 1,552,775 SHARES
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. THIS PROSPECTUS IS
NOT AN OFFER OF THESE SECURITIES IN ANY JURISDICTION WHERE AN
OFFER AND SALE IS NOT PERMITTED. THE INFORMATION CONTAINED COMMON STOCK
IN THIS PROSPECTUS IS ACCURATE ONLY AS OF THE DATE OF THIS
PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF THIS MAXIM
PROSPECTUS OR ANY SALE OF OUR COMMON STOCK. PHARMACEUTICALS, INC.
----------------------
TABLE OF CONTENTS
PAGE
----
WHERE YOU CAN GET MORE INFORMATION................. 2 PROSPECTUS
MAXIM PHARMACEUTICALS, INC. ....................... 3
RISK FACTORS ...................................... 5
FORWARD-LOOKING STATEMENTS........................ 11
USE OF PROCEEDS................................... 11
SELLING STOCKHOLDERS.............................. 12 ----------------------
PLAN OF DISTRIBUTION.............................. 14
LEGAL MATTERS..................................... 15
EXPERTS........................................... 15 JULY ___, 2000
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the
securities being registered are set forth in the following table (all amounts
except the registration fee are estimated):
SEC Registration Fee ...................... $23,891
Legal fees and expenses ................... $15,000
Accounting fees and expenses .............. $ 5,000
Transfer agent fees ....................... $ 1,000
Miscellaneous ............................. $ 5,109
-------
Total ............................ $50,000
=======
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The Company's Bylaws provide that the Company will indemnify its
directors and executive officers and may indemnify its other officers, employees
and other agents to the fullest extent permitted by Delaware law. The Company is
also empowered under its Bylaws to enter into indemnification contracts with its
directors and officers and to purchase insurance on behalf of any person whom it
is required or permitted to indemnify. Pursuant to this provision, the Company
has entered into indemnity agreements with each of its directors and officers
and currently maintains directors and officers insurance coverage.
In addition, the Company's Certificate of Incorporation provides that
to the fullest extent permitted by Delaware law, the Company's directors will
not be liable for monetary damages for breach of the directors' fiduciary duty
of care to the Company and its stockholders. This provision in the Certificate
of Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. Each director
will continue to be subject to liability for breach of the director's duty of
loyalty to the Company or its stockholders, for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for unlawful payments of dividends or unlawful stock purchase or redemption.
This provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
ITEM 16. EXHIBITS.
(a) Exhibits.
EXHIBIT NO. DESCRIPTION
2.1 Agreement and Plan of Merger and Reorganization by and among
Maxim, Inc., M-80 Acquisition Corporation and Cytovia, Inc.,
dated as of June 2, 2000. (1)
2.2 Form of Lockup Agreement. (1)
4.1 Reference is made to Exhibit 2.1 above.
4.2 Reference is made to Exhibit 2.2 above.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP independent auditors.
23.2 Consent of Ernst & Young LLP, independent auditors.
23.3 Consent of Cooley Godward LLP. Reference is made to
Exhibit 5.1.
24 Power of Attorney. Reference is made to page II-3.
-------------------
(1) (Previously filed as Exhibit 2.1 to Registrant's Current Report on Form 8-K
filed with the Commission on June 30, 2000 and incorporated herein by reference.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
pursuant to this registration statement, a post-effective amendment to this
registration statement 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 information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial BONA FIDE offering thereof.
Insofar as indemnification by us for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions referenced above or otherwise, we
have been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933, as amended,
and is, therefore unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by us 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 of 1933, as amended,
and will be governed by the final adjudication of such issue.
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Diego, State of California, on July 14, 2000.
MAXIM PHARMACEUTICALS, INC.
/s/ DALE A. SANDER
-----------------------------------------
Dale A. Sander
Vice President, Finance,
Chief Financial Officer and Secretary
II-2
<PAGE>
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Larry G. Stambaugh and Dale A. Sander,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any of
them, or his or her substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ LARRY G. STAMBAUGH Chairman of the Board, July 14, 2000
-----------------------------------------------------
Larry G. Stambaugh President and Chief Executive Officer
(PRINCIPAL EXECUTIVE OFFICER)
/s/ DALE A. SANDER Vice President, Finance, July 14, 2000
----------------------------------------------------- Chief Financial Officer and Secretary
Dale A. Sander (PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
/s/ COLIN B. BIER Director July 14, 2000
-----------------------------------------------------
Colin B. Bier, Ph.D.
/s/ GARY E. FRASHIER Director July 14, 2000
-----------------------------------------------------
Gary E. Frashier
/s/ THEODOR H. HEINRICHS Director July 14, 2000
-----------------------------------------------------
Theodor H. Heinrichs
Director
-----------------------------------------------------
Per-Olof Martensson
/s/ F. DUWAINE TOWNSEN Director July 14, 2000
-----------------------------------------------------
F. Duwaine Townsen
</TABLE>
II-3
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
2.3 Agreement and Plan of Merger and Reorganization by and among
Maxim, Inc., M-80 Acquisition Corporation and Cytovia, Inc.,
dated as of June 2, 2000. (1)
2.4 Form of Lockup Agreement. (1)
4.3 Reference is made to Exhibit 2.1 above.
4.4 Reference is made to Exhibit 2.2 above.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of KPMG LLP, independent auditors.
23.2 Consent of Ernst & Young LLP, independent auditors.
23.3 Consent of Cooley Godward LLP. Reference is made to
Exhibit 5.1.
25 Power of Attorney. Reference is made to page II-3.
-------------------
(1) (Previously filed as Exhibit 2.1 to Registrant's Current Report on Form 8-K
filed with the Commission on June 30, 2000 and incorporated herein by reference.
