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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 23, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
MAXIM PHARMACEUTICALS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 87-0279983
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CALIFORNIA 92122
(858) 453-4040
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OR
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DALE A. SANDER
VICE PRESIDENT, FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY
MAXIM PHARMACEUTICALS, INC.
8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CALIFORNIA 92122
(858) 453-4040
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
STEVEN KAPLAN, ESQ. GERALD S. TANENBAUM, ESQ.
ARNOLD & PORTER CAHILL GORDON & REINDEL
555 TWELFTH STREET, N.W. 80 PINE STREET
WASHINGTON, D.C. 20004-1202 NEW YORK, NEW YORK 10005
(202) 942-5998 (212) 701-3000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered in connection with dividend or interest
reinvestment plans, check the following box. [ ]
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. [ x ] 333-95293
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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. [ ] _______
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, par value $.001. . . . . 330,000 $55.00 $18,150,000.00 $4,792.00
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(1) Based upon the public offering price.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This Registration Statement is filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended, to register 330,000 additional shares
of common stock, par value $.001 per share, of Maxim Pharmaceuticals, Inc.
(the "Company") for the offering pursuant to the Registration Statement on
Form S-3 of the Company (File No. 333-95293) filed with the Securities and
Exchange Commission (the "Commission") on January 24, 2000, as amended by
Amendments No. 1 and 2 thereto, which was previously declared effective by
the Commission at 12:00 p.m. on February 22, 2000 (the "Registration
Statement"). The Registration Statement (File No. 333-95293) is hereby
incorporated by reference in its entirety into this Registration Statement.
CERTIFICATION
The Company hereby certifies to the Commission that it (i) has
instructed its bank to pay the Commission the filing fee set forth on the
cover page of this Registration Statement by a wire transfer of such amount
to the Commission's account at Mellon Bank as soon as practicable (but no
later than the close of business February 23, 2000), (ii) it will not revoke
such instructions, (iii) it has sufficient funds in the relevant account to
cover the amount of such filing fee, and (iv) it will confirm receipt of such
instructions by its bank during the bank's regular business hours on February
23, 2000.
PART II: INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. Exhibits and Financial Statement Schedules:
All exhibits and financial statement schedules filed with or
incorporated by reference into the Registration Statement (File No.
333-95293) are incorporated by reference into, and shall be deemed part of,
this Registration Statement, except the following which are filed herewith:
Exhibit
Number Description
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5 Opinion of Arnold & Porter
23.1 Consent of KPMG LLP
23.2 Consent of Arnold & Porter (included in Exhibit 5)
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SIGNATURES
Pursuant to the requirements of 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 February 22, 2000.
MAXIM PHARMACEUTICALS, INC.
By: /s/ DALE A. SANDER
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Dale A. Sander,
Vice President, Finance
and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Dale A. Sander 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 the Registration
Statement to be filed in connection with the public offering of shares of common
stock, $.001 par value, and any and all amendments (including post-effective
amendments) to this Registration Statement, and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and the other
documents in connection therewith, with the Securities and Exchange Commission,
granting into said attorney-in-fact and agent, 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 they might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact or his substitutes may lawfully do or cause to be done by
virtue thereof.
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.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ LARRY G. STAMBAUGH Chairman of the Board February 22, 2000
- --------------------------- Director, President and
Larry G. Stambaugh Chief Executive Officer
(Principal Executive Officer)
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/s/ DALE A. SANDER Vice President, Finance, and February 22, 2000
- -------------------------- Chief Financial Officer
Dale A. Sander (Principal Accounting Officer and
Principal Financial Officer)
/s/ COLIN B. BIER, PH.D.
- --------------------------- Director February 22, 2000
Colin B. Bier, Ph.D.
- --------------------------- Director February 22, 2000
Theodor H. Heinrichs
/s/ GARY E. FRASHIER
- --------------------------- Director February 22, 2000
Gary E. Frashier
- --------------------------- Director February 22, 2000
Per-Olof Martensson
/s/ F. DUWAINE TOWNSEN
- --------------------------- Director February 22, 2000
F. Duwaine Townsen
</TABLE>
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EXHIBIT 5
February 22, 2000
Board of Directors
Maxim Pharmaceuticals, Inc.
8899 University Center Lane
Suite 400
San Diego, California 92122
Re: Maxim Pharmaceuticals, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as special counsel to Maxim Pharmaceuticals, Inc., a
Delaware corporation ("Company"), in connection with a Registration Statement
on Form S-3 (the "Registration Statement"), relating to the proposed offer
and sale of up to 330,000 additional shares of the Company's common stock,
$.001 par value ("Common Stock"), by the Company. The Registration Statement
is being filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and relates to the registration statement on Form S-3, File No.
333-95293, for the same offering.
In connection with rendering the opinions set forth in this letter, we
have examined and relied upon the Registration Statement, the Company's
Certificate of Incorporation and Bylaws as in effect on the date of this
opinion, resolutions of the Board of Directors of the Company, and the originals
or copies of such records, documents, certificates, memoranda and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinions expressed below.
The opinions set forth herein are subject to the following
qualifications, which are in addition to any other qualifications contained
herein:
(i) We have assumed without verification the genuineness of all
signatures on all documents, the authority of the parties (other than the
Company) executing such documents, the authenticity of all documents submitted
to us as originals, and the conformity to original documents of all documents
submitted to us as copies.
(ii) The opinions set forth herein are based on existing laws,
ordinances, rules, regulations, and judicial and administrative decisions as
they presently have been interpreted, and we can give no assurance that our
opinions would not be different after any change in any of the foregoing
occurring after the date hereof.
(iii) We have assumed without verification that, with respect to the
minutes of
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any meetings of the Board of Directors or any committees thereof of the Company
that we have examined, due notice of the meetings was given or duly waived, the
minutes accurately and completely reflect all actions taken at the meetings and
a quorum was present and acting throughout the meetings.
(iv) We have assumed without verification the accuracy and completeness
of all corporate records made available to us by the Company.
(v) We express no opinion as to the effect or application of any laws
or regulations other than the internal laws of the State of Delaware. As to
matters governed by the laws specified in the preceding sentence, we have relied
exclusively on the latest standard compilations of such statutes and laws as
reproduced in commonly accepted unofficial publications available to us.
Based on the foregoing, upon the assumption that there will be no
material changes in the documents we have examined and the matters
investigated referred to above, we are of the opinion that the 330,000
additional shares of Common Stock, when issued and sold as described in
the registration statement on Form S-3, File No. 333-95293, for lawful
consideration of not less than $.001 per share, will be validly issued, fully
paid and nonassessable under the Delaware General Corporation Law as in
effect on this date.
This letter does not address any matters other than those expressly
addressed herein. This letter is given for your sole benefit and use. No one
else is entitled to rely hereupon. This letter speaks only as of the date
hereof. We undertake no responsibility to update or supplement it after such
date.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement and to reference to our firm under the caption "Legal
Matters" contained in the Prospectus included therein. In giving such consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act.
Very truly yours,
/s/ ARNOLD & PORTER
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Arnold & Porter
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Maxim Pharmaceuticals, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the headings "Selected Financial Data" and "Experts"
in the Prospectus.
KPMG LLP
San Diego, California
February 22, 2000
