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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
FEBRUARY 25, 2000
Date of Report (Date of earliest event reported)
MAXIM PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-14430 87-0279983
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification Number)
8899 UNIVERSITY CENTER LANE
SUITE 400
SAN DIEGO, CALIFORNIA 92122
(858) 453-4040
(Address of principal executive offices, including zip code,
and telephone number, including area code)
NOT APPLICABLE
(Former name or former address, if changed since last report)
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Item 5. OTHER EVENTS
GENERAL
On February 25, 2000, the stockholders of Maxim Pharmaceuticals,
Inc. (the "Company") approved an amendment to the Company's Amended and
Restated Certificate of Incorporation (the "Certificate of Incorporation") to
increase the number of authorized shares of common stock, $.001 par value
(the "Common Stock"), from 35,000,000 to 40,000,000 shares. The number of
authorized shares of preferred stock, $.001 par value (the "Preferred
Stock"), remained 5,000,000 shares. The Company filed a Certificate of
Amendment of Amended and Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware (the "Secretary of State") on
February 29, 2000 reflecting the increase in the authorized capital stock of
the Company.
The Company also filed a Certificate of Elimination with the
Secretary of State eliminating from the Certificate of Incorporation all
matters set forth in the Certificate of Designations, Preferences and
Relative, Participating, Optional and Other Special Rights of Preferred Stock
and Qualifications, Limitations and Restrictions Thereof of Series A and
Series B Convertible Preferred Stock (the "Certificates") which were
originally filed in the office of the Secretary of State on July 23, 1999 and
November 3, 1999, respectively.
As a result of these actions, the Company's authorized capital stock
consists of 40,000,000 shares of Common Stock, of which 20,055,827 shares
were outstanding, and 5,000,000 shares of Preferred Stock, of which none are
outstanding, as of February 28, 2000. The number of outstanding shares
excludes 1,835,402 shares of Common Stock issuable upon the exercise of
outstanding stock options, 1,769,978 shares of Common Stock issuable upon the
exercise of redeemable common stock purchase warrants and 564,733 shares of
Common Stock issuable upon the exercise of other common stock purchase
warrants. It also excludes an additional 40,522 shares of Common Stock
reserved for future issuance under Company stock option and other employee
benefit plans.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share on
all matters to be voted upon by the stockholders. Subject to preferences that
may be applicable to any outstanding Preferred Stock, the holders of Common
Stock are entitled to receive ratably such dividends, if any, as may be
declared from time to time by the Board of Directors out of funds legally
available therefor. In the event of a liquidation, dissolution or winding up
of the Company, the holders of Common Stock are entitled to share ratably in
all assets remaining after payment of liabilities. The Common Stock has no
preemptive or conversion rights or other subscription rights. There are no
redemption or sinking fund provisions available to Common Stock. All
outstanding shares of Common Stock are fully paid and non-assessable.
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PREFERRED STOCK
Pursuant to the Certificate of Incorporation, the Board of Directors
has the authority, without further action by the stockholders, to issue up to
5,000,000 shares of Preferred Stock in one or more series and to fix the
rights, preferences, privileges and restrictions thereof, including dividend
rights, conversion rights, voting rights, terms of redemption, liquidation
preferences, sinking fund terms and the number of shares constituting any
series or the designation of such series without any further vote or action
by the stockholders. The holders of Preferred Stock would normally be
entitled to receive a preference payment in the event of any liquidation,
dissolution or winding-up of the Company before any payment is made to
holders of the Common Stock. The issuance of Preferred Stock could decrease
the amount of earnings and assets available for distribution to the holders
of Common Stock or could adversely affect the rights and powers, including
voting rights, of the holders of Common Stock. In certain circumstances, such
issuance could have the effect of decreasing the market price of the Common
Stock.
REDEEMABLE COMMON STOCK PURCHASE WARRANTS
As of February 28, 2000, there were outstanding redeemable common
stock purchase warrants (the "Redeemable Warrants") to purchase 1,769,978
shares of Common Stock at an exercise price of $10.50 per share. The
Redeemable Warrants expire on July 10, 2001 and are fully exercisable for
cash. The exercise price and the number of shares of Common Stock purchasable
upon the exercise of the Redeemable Warrants are subject to adjustment upon
the occurrence of certain events, including stock dividends, stock splits,
combinations or reclassification of the Common Stock. The Redeemable Warrants
are subject to redemption at $.01 per Redeemable Warrant on thirty (30) days'
prior written notice to the warrantholders if certain conditions regarding
the average closing bid price of the Common Stock are met. In the event the
Company exercises the right to redeem the Redeemable Warrants, such
Redeemable Warrants will be exercisable until the close of business on the
business day immediately preceding the date for redemption fixed in such
notice. If any Redeemable Warrant called for redemption is not exercised by
such time, it will cease to be exercisable and the holder will be entitled
only to the redemption price.
LIMITATION ON LIABILITY OF DIRECTORS
Section 102(b)(7) of the Delaware General Corporation Law (the
"DGCL") provides that Delaware corporations may include in their certificates
of incorporation a provision eliminating or limiting the personal liability
of directors to the corporation or its stockholders for monetary damages for
breach of their fiduciary duty including acts constituting gross negligence,
except under certain circumstances, including breach of the director's duty
of loyalty, acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law, liability under Section 174 of the
DGCL or any transaction from which the director derived improper personal
benefit. The
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Company's Certificate of Incorporation provides that the Company's directors
are not liable to the Company or its stockholders for monetary damages for
breach of their fiduciary duties, subject to the exceptions specified by
Delaware law.
CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BYLAWS
Certain provisions of the Company's Certificate of Incorporation and
Bylaws may have the effect of preventing, discouraging or delaying a change
in the control of the Company and may maintain the incumbency of the Board of
Directors.
AMENDMENT OF CERTIFICATE OF INCORPORATION AND BYLAWS. The Company's
Certificate of Incorporation provides that the provisions therein relating to
the classification of the Board of Directors, the removal of directors and
the liability of directors may be amended, altered, changed or repealed only
by the affirmative vote of holders of at least sixty-six and two-thirds
percent (66-2/3%) of the voting power of all the outstanding shares of voting
stock, voting together as a single class.
The Certificate of Incorporation also provides that the Bylaws may
be altered or amended or new Bylaws adopted by the affirmative vote of at
least sixty-six and two-thirds percent (66-2/3%) of the voting power of all
outstanding shares of voting stock. The Board of Directors also has the power
to adopt, amend or repeal Bylaws.
These provisions are intended to make it more difficult for
stockholders to circumvent certain other provisions contained in the
Company's Certificate of Incorporation and Bylaws, such as those that provide
for the classification of the Board of Directors. These provisions, however,
also will make it more difficult for stockholders to amend the Certificate of
Incorporation or Bylaws as to certain matters without the approval of the
Board of Directors, even if a majority of the stockholders deems such
amendment to be in the best interests of all stockholders.
ISSUANCE OF PREFERRED STOCK. The Company's Certificate of
Incorporation authorizes the Board of Directors to issue up to 5,000,000
shares of Preferred Stock and to determine the price, rights, privileges and
preferences of the shares. These shares could be used in connection with a
stockholder rights plan or "poison pill." Any issuance of Preferred Stock
could discourage a third party from acquiring a majority of the Company's
outstanding voting stock.
ADVANCE NOTICE PROVISIONS FOR STOCKHOLDER NOMINATIONS AND
STOCKHOLDER PROPOSALS. The Company's Bylaws limit the ability of stockholders
of the Company to raise matters or nominate persons to serve as members of
the Company's Board of Directors at a meeting of stockholders without giving
advance notice.
CLASSIFIED BOARD OF DIRECTORS. The Company's Certificate of
Incorporation provides that the Board of Directors will be divided into three
classes of directors with each class serving a staggered three-year term. The
classification system of electing
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directors may tend to discourage a third party from making a tender offer or
otherwise attempting to obtain control of the Company and may maintain the
incumbency of the Board of Directors, as the classification of the Board of
Directors generally increases the difficulty of replacing a majority of the
Directors.
NO STOCKHOLDER ACTION BY WRITTEN CONSENT. The Company's Certificate
of Incorporation eliminates the right of stockholders to act by written
consent without a meeting.
NO CUMULATIVE VOTING OF DIRECTORS. The Certificate of Incorporation
and Bylaws do not provide for cumulative voting in the election of directors.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
Maxim Pharmaceuticals, Inc. has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
MAXIM PHARMACEUTICALS, INC
By: /s/ Dale A. Sander
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Dale A. Sander
Vice President, Finance and
Chief Financial Officer
