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As filed with the Securities and Exchange Commission on
September 12, 2000 REGISTRATION NO. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MAXIM PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 87-0279983
(State of Incorporation) (I.R.S. Employer Identification No.)
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8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CALIFORNIA 92122
(Address of principal executive offices)
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COMMON STOCK ISSUABLE UPON EXERCISE OF OPTIONS ASSUMED BY MAXIM
PHARMACEUTICALS, INC.,
ORIGINALLY GRANTED UNDER THE CYTOVIA, INC. 1998 EQUITY INCENTIVE PLAN
AND THE CYTOVIA 2000 EQUITY INCENTIVE PLAN.
COMMON STOCK ISSUABLE PURSUANT TO MAXIM PHARMACEUTICALS, INC.'S
2000 NONSTATUTORY STOCK OPTION PLAN
(Full title of the plans)
DALE A. SANDER
VICE PRESIDENT, FINANCE AND CHIEF FINANCIAL OFFICER
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)
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COPIES TO:
L. KAY CHANDLER, ESQ.
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CALIFORNIA 92121
(858)-550-6000
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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 Securities Offering Aggregate Amount of
to be Registered Amount to be Registered Price per Share Offering Price Registration Fee
---------------------------- ------------------------- -------------------------- ------------------------- ---------------------
Common Stock, par value 81,855 shares $0.6570 $53,779 $14.20
$0.001 per share (1)
---------------------------- ------------------------- -------------------------- ------------------------- ---------------------
Common Stock, par value 105,273 shares $2.1025 $221,336 $58.43
$0.001 per share (1)
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) of the Securities Act of 1933,
as amended (the "Act"). Includes 147,177 shares issuable upon the
exercise of options granted under the Cytovia, Inc. ("Cytovia") 1998
Equity Incentive Plan (the "1998 Plan") and 39,951 shares issuable upon
the exercise of options granted under the Cytovia 2000 Equity Incentive
Plan (the "2000 Plan). The price per share and aggregate offering price
are based upon the actual exercise price for shares subject to the
options.
The shares registered hereunder will be issued upon the exercise of stock
options assumed by Maxim Pharmaceuticals, Inc., a Delaware corporation (the
"Registrant"), pursuant to that certain Certificate of Merger filed by the
Registrant with the Secretary of State of the State of Delaware on June 16,
2000. These options were originally granted to employees of Cytovia under
Cytovia's 1998 Plan 2000 Plan.
2.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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".
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, as amended (the "Exchange Act"):
(a) Our Annual Report on Form 10-K for the year ended September 30,
1999;
(b) Our Quarterly Reports on Form 10-Q for the quarters ended December
31, 1999, March 30, 2000 and June 30, 2000;
(c) Our Notice of Annual Meeting and Proxy for the 2000 Annual Meeting
of Stockholders;
(d) Our Current Reports on Form 8-K filed March 2, 2000, June 30, 2000
and August 23, 2000;
(e) Our Current Report on Form 8-K/A filed August 22, 2000 and
(f) Our registration statement on Form 8-A filed on June 28, 1996 which
includes a description of our common stock, and any amendments or reports filed
for the purpose of updating such description.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 permitted by Delaware law. We are also empowered under our Bylaws
to enter into indemnification contracts with our directors and officers 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 officers and currently maintain directors and
officers insurance coverage.
In addition, our Certificate of Incorporation provides that to the
fullest extent permitted by Delaware law, our directors will not be liable for
monetary damages for breach of the directors' fiduciary duty of care to us and
our 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 us or our
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.
3.
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EXHIBITS
EXHIBIT
NUMBER
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 is contained in Exhibit 5.1
to this Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 Cytovia 1998 Equity Incentive Plan.
99.2 Form of Incentive Stock Option Agreement used under Cytovia
1998 Equity Incentive Plan.
99.3 Cytovia 2000 Equity Incentive Plan.
99.4 Form of Incentive Stock Option Agreement used under Cytovia
2000 Equity Incentive Plan
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
4.
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PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or paid
by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
5.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 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 September 12,
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 PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Larry G. Stambaugh and Dale A. Sander,
and each or any one 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 attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
6.
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Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C>
SIGNATURE TITLE DATE
/s/ LARRY G. STAMBAUGH Chairman of the Board, President September 12, 2000
-------------------------------------------- and (PRINCIPAL EXECUTIVE OFFICER)
Larry G. Stambaugh
/s/ DALE A. SANDER Vice President, Finance, Chief September 12, 2000
-------------------------------------------- Financial Officer and Secretary
Dale A. Sander (PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER)
/s/ GARY E. FRASHIER
-------------------------------------------- Director September 12, 2000
Gary E. Frashier
/s/ THEODOR H. HEINRICHS
-------------------------------------------- Director September 12, 2000
Theodor H. Heinrichs
/s/ PER-OLOF MARTENSSON
-------------------------------------------- Director September 12, 2000
Per-Olof Martensson
/s/ F. DUWAINE TOWNSEN
-------------------------------------------- Director September 12, 2000
F. Duwaine Townsen
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7.
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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 is contained in Exhibit 5.1 to
this Registration Statement.
24 Power of Attorney is contained on the signature pages.
99.1 Cytovia 1998 Equity Incentive Plan.
99.2 Form of Incentive Stock Option Agreement used under Cytovia
1998 Equity Incentive Plan.
99.3 Cytovia 2000 Equity Incentive Plan.
99.4 Form of Incentive Stock Option Agreement used under Cytovia
2000 Equity Incentive Plan
8.
