<PAGE>
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
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 of (I.R.S. Employer
incorporation or organization) Identification No.)
8899 University Center Lane, Suite 400
San Diego, California 92122
---------------------------
(Address, including zip code, of principal executive offices)
AMENDED AND RESTATED 1993 LONG-TERM INCENTIVE PLAN AND CERTAIN OPTIONS GRANTED
TO OFFICERS AND DIRECTORS
(Full title of the plan)
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)
Copy to:
Steven Kaplan, Esq.
Arnold & Porter
555 12th Street, N.W.
Washington, D.C. 20004
(202) 942-5998
---------------------
Calculation of Registration Fee
<TABLE>
<CAPTION>
- ----------------------------- ----------------- --------------------- ---------------------- ----------------
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price per aggregate offering registration
unit(1)(2) price(2) fee (3)
- ----------------------------- ----------------- --------------------- ---------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 940,000 45.75 43,005,000 11,353.32
- ----------------------------- ----------------- --------------------- ---------------------- ----------------
</TABLE>
(1) Calculated on the basis of the average of the high and low sale prices
of the Registrant's Common Stock as reported on April 4, 2000 on the
American Stock Exchange which date is within 5 business days prior to
the date of the filing of this Registration Statement.
(2) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h).
(3) In addition to the shares being registered by this Registration
Statement, this Registration Statement also relates to shares of the
Registrant's Common Stock issuable pursuant to the same employee
benefit plan for which Registration Statements on Form S-8, Nos.
333-11375, 333-35669 and 333-47695 are currently effective.
Registration fees of $1,637.26, $696.00 and $1,614.00 (a portion of the
$1,614.00 fee covered the registration of 50,000 shares of Common Stock
pursuant to the Company's 401(K) plan) were paid, respectively, upon
the initial filings of the Registration Statements registering 800,000,
200,000 and 300,000 shares of Common Stock, respectively.
<PAGE>
Pursuant to Rule 429 under the Securities Act of 1933, 814,277 shares
of Common Stock remaining available for issuance under the Company's
Amended and Restated 1993 Long-Term Incentive Plan (previously
registered pursuant to Registration Nos. 333-11375, 333-35669 and
333-47695) are hereby carried forward to this Registration Statement.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Maxim Pharmaceuticals, Inc.
("Registrant" or "Company") (File No. 1-14430) with the Securities and Exchange
Commission ("SEC") under the Securities Exchange Act of 1934, as amended
("Exchange Act"), are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
September 30, 1999, as amended.
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1999.
(c) The Company's Form 8-K filed March 2, 2000.
(d) The description of the common stock of the Company, par value
$.001 per share ("Common Stock"), contained in a registration
statement on Form 8-A filed by the Company on June 28, 1996,
and any amendments or reports filed for the purpose of
updating such description.
All documents filed by the Registrant after the date of this
Registration Statement 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 Common Stock offered hereby has been sold or which deregisters such
Common Stock then remaining unsold, shall be deemed to be incorporated in this
Registration Statement by reference and shall be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference in this Registration Statement shall be
deemed to be modified or superseded for purposes of this Registration Statement
to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in
this Registration Statement modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or so superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The audited financial statements of the Company as of September 30,
1999 and 1998 and for the each of the years in the three year period ended
September 30, 1999 have been incorporated by reference herein 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. To the extent that KPMG LLP audits and
reports on financial statements of the Company issued at future dates, and
consents to the use of their report thereon, such financial statements also
will be incorporated herein by reference in reliance upon their report and
said authority.
Arnold & Porter, special counsel to the Company, has delivered its
legal opinion to the effect that the issuance and sale of the Common Stock
offered hereby have been duly authorized by the Company and that (i) when issued
upon the exercise of the options granted to directors and officers or under the
Amended and Restated 1993 Long-Term Incentive Plan (the "Plan") for legal
consideration of not less than $.001 per share, will be validly issued and will
be fully paid and nonassessable, (ii) when issued upon the exercise of stock
appreciation rights or as incentive shares or performance units in accordance
with the terms of the Plan and for legal consideration of not less than $.001
per share, will be validly issued and will be fully paid and nonassessable, and
(iii) when issued pursuant to the award of restricted stock in accordance with
the terms of the Plan and for legal consideration of not less than $.001 per
share, will be validly issued, and upon the lapse of restrictions provided under
such award, will be fully paid and nonassessable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws provide that the Company will indemnify its
directors and executive officers and may indemnify 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
II-4
<PAGE>
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 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The exhibits listed on the Exhibit Index on page II-9 of this
Registration Statement are filed herewith or are incorporated herein by
reference to other filings.
ITEM 9. UNDERTAKINGS
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.
The Registrant hereby undertakes:
1. 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 of 1933, as amended
(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
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<PAGE>
of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) 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;
provided, however, that paragraphs (i) and (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 Registrant
pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in
the Registration Statement;
2. 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 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 Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to section 13(a) or section 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 new securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 April 7, 2000.
MAXIM PHARMACEUTICALS, INC.
By: /s/ Dale A. Sander
-------------------------------
Dale A. Sander
Vice President, Finance and
Chief Financial Officer
II-7
<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 as
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for the undersigned in his name, place and stead, in any and
all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with exhibits
thereto and all documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to 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 conforming all that such
attorney-in-fact and agent, or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
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>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Larry G. Stambaugh Chairman of the Board, April 7, 2000
- ----------------------------- Director, President and CEO (Principal
Larry G. Stambaugh Executive Officer)
/s/ Dale A. Sander Vice President, Finance and Chief April 7, 2000
- ----------------------------- Financial Officer (Principal Financial
Dale A. Sander and Accounting Officer)
/s/ Colin B. Bier Director April 7, 2000
- -----------------------------
Colin B. Bier, Ph.D.
/s/ Theodor H. Heinrichs Director April 7, 2000
- -----------------------------
Theodor H. Heinrichs
/s/ Gary E. Frashier Director April 7, 2000
- -----------------------------
Gary E. Frashier
/s/ Per-Olof Martensson Director April 7, 2000
- -----------------------------
Per-Olof Martensson
Director April 7, 2000
- -----------------------------
F. Duwaine Townsen
</TABLE>
II-8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<S> <C>
Exhibit 4.1 Amended and Restated 1993 Long-Term Incentive Plan, filed herewith.
Exhibit 4.2 Form of stock option agreements effective October 26, 1999 issued to
directors, filed herewith.
Exhibit 4.3 Form of stock option agreements effective October 26, 1999 issued to Messrs.
Altman, Gehlsen, Sander and Stambaugh, filed herewith.
Exhibit 5 Opinion of Arnold & Porter, filed herewith.
Exhibit 23.1 Consent of Arnold & Porter, included in the opinion filed as Exhibit 5 hereto.
Exhibit 23.2 Consent of KPMG LLP, filed herewith.
</TABLE>
II-9
<PAGE>
EXHIBIT 4.1
MAXIM PHARMACEUTICALS, INC.
1993 LONG-TERM INCENTIVE PLAN
As Amended and Restated March 18, 1996
As Amended and Restated December 20, 1996
As Amended and Restated December 19, 1997
As Amended and Restated December 28, 1999
1. DEFINITIONS
In this Plan, except where the context otherwise indicates, the
following definitions apply:
1.1 "Agreement" means a written agreement implementing a grant of an
Option, Right or Performance Unit or an award of Restricted Stock or Incentive
Shares.
1.2 "Board" means the Board of Directors of the Company.
1.3 "Board Committee" means a current or future committee of the Board.
1.4 "Board Committee Meeting" means a meeting of a Board Committee.
1.5 "CEO" means the Company's chief executive officer.
1.6 "Code" means the Internal Revenue Code of 1986, as amended.
1.7 "Committee" means the committee of the Board meeting the standards
of Rule 16b-3(d)(1) under the Exchange Act, or any similar successor rule,
appointed by the Board to administer the Plan. Unless otherwise determined by
the Board, the Compensation Committee of the Board shall be the Committee.
1.8 "Common Stock" means the common stock, par value $.001 per share,
of the Company.
1.9 "Company" means Maxim Pharmaceuticals, Inc.
1.10 "Consultant" means any person or entity performing services for
the Company or any Subsidiary other than as a Director or employee of the
Company, and who is not also a director or officer of the Company for purposes
of Section 16(a) of the Exchange Act.
1.11 "Consultant-Director" means any member of the Board who also is
performing services for the Company or any Subsidiary other than as a Director
or an employee of the Company.
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1.12 "Covered Employee" means the CEO and the four (4) other highest
compensated officers of the Company for whom total compensation is required to
be reported to stockholders under the Exchange Act, as determined for purposes
of Section 162(m) of the Code.
1.13 "Date of Exercise" means the date on which the Company receives
notice of the exercise of an Option, Right or Performance Unit in accordance
with the terms of Article 10.
1.14 "Date of Grant" means the date on which an Option, Right or
Performance Unit is granted or Restricted Stock or Incentive Shares are awarded
by the Committee or the CEO, as the case may be.
1.15 "Director" means any person who is a member of the Board and who
is not also an employee of the Company.
1.16 "Employee" means any person determined by the CEO to be an
employee of the Company or any Subsidiary and who is not also a director or
officer of the Company for purposes of Section 16(a) of the Exchange Act.
1.17 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.18 "Excused Absence" means a Director's absence from a Scheduled
Meeting or a Board Committee Meeting due to illness, disability or family
emergency.
1.19 "Fair Market Value" of a Share means the amount equal to the
closing sales price for a Share in the principal trading market for the Shares
as reported by such source as the Committee may select, or, if such price
quotations of the Common Stock are not then reported, then the fair market value
of a Share as determined by the Committee pursuant to a reasonable method
adopted in good faith for such purpose.
1.20 "Grantee" means an Employee, Covered Employee, Key Employee,
Consultant-Director or Consultant to whom Restricted Stock has been awarded
pursuant to Article 12 or Incentive Shares have been awarded pursuant to Article
13.
1.21 "Incentive Shares" means Shares awarded pursuant to the provisions
of Article 13.
1.22 "Incentive Stock Option" means an Option granted under the Plan
that qualifies as an incentive stock option under Section 422 of the Code and
that the Company designates as such in the Agreement granting the Option.
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1.23 "Key Employee" means any person determined by the Committee to be
an employee of the Company or any Subsidiary and who is a director or officer of
the Company for purposes of Section 16(a) of the Exchange Act.
1.24 "Nonstatutory Stock Option" means an Option granted under the Plan
that is not an Incentive Stock Option.
1.25 "Option" means an option to purchase Shares granted under the Plan
in accordance with the terms of Article 7.
1.26 "Optionee" means a Director, Employee, Covered Employee, Key
Employee, Consultant-Director or Consultant to whom an Option, Right or
Performance Unit has been granted.
1.27 "Option Period" means the period during which an Option may be
exercised.
1.28 "Option Price" means the price per Share at which an Option may be
exercised. The Option Price shall be determined by the Committee, or by the CEO,
in the case of an Option granted to an Employee or Consultant, except that in no
event shall the Option Price be less than the par value of the Common Stock or,
in the case of an Incentive Stock Option, the greater of the Fair Market Value
per Share determined as of the Date of Grant or the par value of the Common
Stock.
1.29 "Outside Director" means a Director who either (i) is not a
current employee of the Company or an "affiliated corporation" (within the
meaning of the Treasury regulations promulgated under Section 162(m) of the
Code), is not a former employee of the Company or an "affiliated corporation"
receiving compensation for prior services (other than benefits under a tax
qualified pension plan), was not an officer of the Company or an "affiliated
corporation" at any time, and is not currently receiving direct or indirect
remuneration from the Company or an "affiliated corporation" for services in any
capacity other than as a Director, or (ii) is otherwise considered an "outside
director" for purposes of Section 162(m) of the Code.
1.30 "Performance Unit" means a performance unit granted under the Plan
in accordance with the terms of Article 9.
1.31 "Performance Unit Period" means the period during which a
Performance Unit may be exercised.
1.32 "Plan" means the Maxim Pharmaceuticals, Inc. 1993 Long-Term
Incentive Plan.
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1.33 "Related Option" means the Option with which, or by amendment to
which, a specified Right or Performance Unit is granted.
1.34 "Related Performance Unit" means the Performance Unit granted in
connection with, or by amendment to, a specified Option.
1.35 "Related Right" means the Right granted in connection with, or by
amendment to, a specified Option.
1.36 "Restricted Stock" means Shares awarded pursuant to the provisions
of Article 12.
1.37 "Right" means a stock appreciation right granted under the Plan in
accordance with the terms of Article 8.
1.38 "Right Period" means the period during which a Right may be
exercised.
1.39 "Scheduled Meeting" means the four regular meetings of the Board
scheduled to be held during each of the Company's fiscal years or, if more than
four regular meetings are scheduled, the four meetings designated as Scheduled
Meetings by the Board in scheduling its regular meetings for the year.
1.40 "Share" means a share of Common Stock.
1.41 "Subsidiary" means a corporation, whether now or hereafter
existing, at least 50% of the total combined voting power of all classes of
stock of which is owned by the Company either directly or through one or more
Subsidiaries.
2. PURPOSE
This Plan is intended to aid in attracting qualified employees,
directors and consultants and in maintaining and developing strong management
and employee loyalty through encouraging the ownership of Common Stock by
Directors and selected Employees, Covered Employees, Key Employees,
Consultant-Directors and Consultants through stimulating their efforts by giving
suitable recognition, in addition to other remuneration, to the ability and
industry which contribute materially to the success of the Company's business
interests, and to provide an incentive to the continued service of such
Directors, Employees, Covered Employees, Key Employees, Consultant-Directors and
Consultants.
3. ADMINISTRATION (OTHER THAN GRANTS OR AWARDS TO EMPLOYEES AND
CONSULTANTS)
Except with respect to grants or awards to Employees and Consultants,
this Plan shall be administered by the Committee. In addition to any other
powers granted to the
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Committee, the Committee shall have the following powers, subject to the express
provisions of the Plan:
3.1 subject to the provisions of Articles 5, 7, 8, 9, 10, 11, 12 and
13, to determine in its discretion the Directors, Covered Employees, Key
Employees and Consultant-Directors to whom Options, Rights or Performance Units
shall be granted and to whom Restricted Stock and Incentive Shares shall be
awarded, the number of Shares to be subject to each Option, Right, Performance
Unit, Restricted Stock or Incentive Share award, and the terms upon which
Options, Rights or Performance Units may be acquired and exercised and the terms
and conditions of Restricted Stock and Incentive Share awards;
3.2 to determine all other terms and provisions of each Agreement,
which need not be identical;
3.3 without limiting the foregoing, to provide in its discretion in an
Agreement:
(i) for an agreement by the Optionee or Grantee to render
services to the Company or a Subsidiary upon such terms and conditions as may be
specified in the Agreement, provided that the Committee shall not have the power
by virtue of the Plan to commit the Company or a Subsidiary to employ or
otherwise retain any Optionee or Grantee;
(ii) for restrictions on the transfer, sale or other
disposition of Shares issued to the Optionee upon the exercise of an Option,
Right or Performance Unit, for other restrictions permitted by Article 12 with
respect to Restricted Stock and for conditions with respect to the issuance of
Incentive Shares;
(iii) for an agreement by the Optionee or Grantee to resell to
the Company, under specified conditions, Shares issued upon the exercise of an
Option, Right or Performance Unit or awarded as Restricted Stock or Incentive
Shares;
(iv) for the payment of the Option Price upon the exercise of
an Option otherwise than in cash, including without limitation by delivery
(including constructive delivery) of Shares (other than Restricted Stock) valued
at Fair Market Value on the Date of Exercise of the Option, or a combination of
cash and Shares, or for the payment in part of the Option Price with a
promissory note in accordance with the terms of Section 10.2; and
(v) for the deferral of receipt of amounts that otherwise
would be distributed upon exercise of a Performance Unit, the terms and
conditions of any such deferral and any interest or dividend equivalent or other
payment that shall accrue with respect to deferred distributions;
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3.4 to construe and interpret the Agreements and the Plan;
3.5 to require, whether or not provided for in the pertinent Agreement,
of any person exercising an Option, Right or Performance Unit or acquiring
Restricted Stock or Incentive Shares, at the time of such exercise or
acquisition, the making of any representations or agreements which the Committee
may deem necessary or advisable in order to comply with the securities laws of
the United States or of any state;
3.6 to provide for satisfaction of an Optionee's or Grantee's tax
liabilities arising in connection with the Plan through, without limitation,
retention by the Company of Shares otherwise issuable on the exercise of a
Nonstatutory Stock Option, Right or Performance Unit or pursuant to an award of
Incentive Shares or through delivery of Shares to the Company by the Optionee or
Grantee under such terms and conditions as the Committee deems appropriate; and
3.7 to make all other determinations and take all other actions
necessary or advisable for the administration of the Plan, including action
delegating to a subcommittee of two (2) or more Outside Directors any of the
administrative powers the Committee is authorized to exercise (and references in
this Plan to the Committee shall thereafter be to such a subcommittee).
Any determinations or actions made or taken by the Committee pursuant
to this Article 3 shall be binding and final.
4. ADMINISTRATION FOR GRANTS AND AWARDS TO EMPLOYEES AND CONSULTANTS
In the case of grants or awards to Employees and Consultants, this Plan
shall be administered by the CEO. In addition to any other powers granted to the
CEO, the CEO shall have all of the powers with respect to grants or awards to
Employees and Consultants set forth in Article 3 that the Committee has with
respect to grants or awards to Directors, Covered Employees, Key Employees and
Consultant-Directors. When exercising authority pursuant to this Plan, the CEO
shall be acting as a committee of the Board. If the CEO is not a member of the
Board, then the powers of the CEO hereunder shall be exercised by the Committee.
5. ELIGIBILITY
Options, Rights, Performance Units, Restricted Stock and Incentive
Shares may be granted or awarded only to Directors, Employees, Covered
Employees, Key Employees, Consultant-Directors and Consultants, except that
Directors, Consultant-Directors and Consultants (other than Consultants who also
are Employees, Covered Employees or Key Employees) are not eligible to receive
Incentive Stock Options. A Director, Employee, Covered Employee, Key Employee,
Consultant-Director or Consultant who has been
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<PAGE>
granted an Option, Right or Performance Unit or awarded Restricted Stock or
Incentive Shares may be granted additional Options, Rights or Performance Units
or awarded additional Restricted Stock or Incentive Shares.
6. STOCK SUBJECT TO THE PLAN
6.1 There is hereby reserved for issuance upon the exercise of Options,
Rights or Performance Units or for awards of Restricted Stock or Incentive
Shares an aggregate of 1,800,000 authorized but unissued or reacquired Shares.
6.2 If an Option, Right or Performance Unit (other than a Related Right
or Related Performance Unit) expires or terminates for any reason (other than,
in the case of an Option, termination by virtue of the exercise of a Related
Right or Related Performance Unit) without having been fully exercised, if
Shares of Restricted Stock are forfeited or if Incentive Shares are not issued,
any unissued or forfeited Shares which had been subject to the Agreement
relating thereto shall become available for the grant of other Options, Rights
or Performance Units or for the award of additional Restricted Stock or
Incentive Shares.
6.3 The Shares issued upon the exercise of a Right or Performance Unit
(or, if cash is payable in connection with such exercise, that number of Shares
with respect to which the Right or Performance Unit is exercised), shall be
charged against the number of Shares issuable under the Plan and shall not
become available for the grant of other Options, Rights or Performance Units or
for the award of Restricted Stock or Incentive Shares.
6.4 Subject to the provisions of Article 14 relating to capital
adjustments, no Director, Employee, Covered Employee, Key Employee,
Consultant-Director, or Consultant shall be eligible to be granted Options and
Rights covering more than two hundred thousand (200,000) shares of Common Stock
in any calendar year. Shares subject to an Option or Right that is canceled
shall continue to be counted against the maximum award of Options and Rights
permitted to be granted pursuant to this Section 6.4. The repricing of an Option
and/or Right which results in a reduction of the exercise price shall be deemed
to be a cancellation of the original Option and/or Right and the grant of a
substitute Option and/or Right; in the event of such repricing, both the
original and the substituted Options and Rights shall be counted against the
maximum awards of Options and Rights permitted to be granted pursuant to this
Section 6.4. The provisions of this Section 6.4 shall be applicable only to the
extent required to comply with the "performance-based compensation" exception
under Section 162(m) of the Code.
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7. OPTIONS
7.1 Subject to the provisions of Article 5, the Committee is hereby
authorized to grant Options to Directors, Covered Employees, Key Employees and
Consultant-Directors, and the CEO is hereby authorized to grant Options to
Employees and Consultants.
7.2 All Agreements granting Options shall contain a statement that the
Option is intended to be either (i) a Nonstatutory Stock Option or (ii) an
Incentive Stock Option.
7.3 The Option Period shall be determined by the Committee, or, in the
case of an Option granted to an Employee or Consultant, by the CEO, and
specifically set forth in the Agreement, provided, however, that an Option shall
not be exercisable after ten years from the Date of Grant.
7.4 All Incentive Stock Options granted under the Plan shall comply
with the provisions of the Code governing incentive stock options and with all
other applicable rules and regulations.
7.5 All other terms of Options granted under the Plan shall be
determined by the Committee in its sole discretion, or, in the case of an Option
granted to an Employee or Consultant, by the CEO in his sole discretion.
8. RIGHTS
8.1 The Committee is hereby authorized to grant Rights to Covered
Employees, Key Employees and Consultant-Directors, and the CEO is hereby
authorized to grant Rights to Employees and Consultants.
8.2 A Right may be granted under the Plan:
(i) in connection with, and at the same time as, the grant of
an Option under the Plan;
(ii) by amendment of an outstanding Nonstatutory Stock Option
granted under the Plan; or
(iii) independently of any Option granted under the Plan.
A Right granted under clause (i) or (ii) of the preceding sentence is a
Related Right. A Related Right may, in the Committee's discretion, or, in the
case of a Right granted to an Employee or Consultant, in the CEO's discretion,
apply to all or a portion of the Shares subject to the Related Option.
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8.3 A Right may be exercised in whole or in part as provided in the
Agreement, and, subject to the provisions of the Agreement, entitles its
Optionee to receive, without any payment to the Company (other than required tax
withholding amounts), either cash or that number of Shares (equal to the highest
whole number of Shares), or a combination thereof, in an amount or having a Fair
Market Value determined as of the Date of Exercise not to exceed the number of
Shares subject to the portion of the Right exercised multiplied by an amount
equal to the excess of (i) the Fair Market Value of a Share on the Date of
Exercise of the Right over (ii) either (A) the Fair Market Value of a Share on
the Date of Grant of the Right if it is not a Related Right, or (B) the Option
Price as provided in the Related Option if the Right is a Related Right.
8.4 The Right Period shall be determined by the Committee, or, in the
case of a Right granted to an Employee or Consultant, by the CEO, and
specifically set forth in the Agreement, provided, however --
(i) a Right will expire no later than the earlier of (A) ten
years from the Date of Grant, or (B) in the case of a Related Right, the
expiration of the Related Option;
(ii) a Right may be exercised only when the Fair Market Value
of a share of Common Stock exceeds either (A) the Fair Market Value of a share
of Common Stock on the Date of Grant of the Right if it is not a Related Right,
or (B) the Option Price as provided in the Related Option if the Right is a
Related Right; and
(iii) a Right that is a Related Right to an Incentive Stock
Option may be exercised only when and to the extent the Related Option is
exercisable.
8.5 The exercise, in whole or in part, of a Related Right shall cause a
reduction in the number of Shares subject to the Related Option equal to the
number of Shares with respect to which the Related Right is exercised.
Similarly, the exercise, in whole or in part, of a Related Option shall cause a
reduction in the number of Shares subject to the Related Right equal to the
number of Shares with respect to which the Related Option is exercised.
8.6 The Company intends that the Article shall comply with the
requirements of Rule 16b-3 during the term of this Plan. Should any provisions
of this Article not be necessary to comply with the requirements of Rule 16b-3,
the Board or Committee may amend this Plan to delete, add to or modify the
provisions of the Plan accordingly. The Company's failure for any reason
whatsoever to comply with the requirements of Rule 16b-3, and any resultant
unavailability of Rule 16b-3 shall not impose any liability on the Company to
any Covered Employee, Key Employee, Consultant Director, or to any other party.
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9. PERFORMANCE UNITS
9.1 The Committee is hereby authorized to grant Performance Units to
Covered Employees, Key Employees and Consultant-Directors, and the CEO is hereby
authorized to grant Performance Units to Employees and Consultants.
9.2 A Performance Unit may be granted under the Plan:
(i) in connection with, and at the same time as, the grant of
an Option under the Plan;
(ii) by amendment of an outstanding Nonstatutory Stock Option
granted under the Plan; or
(iii) independently of any Option granted under the Plan.
A Performance Unit granted under clause (i) or (ii) of the preceding
sentence is a Related Performance Unit. A Related Performance Unit may, in the
Committee's discretion, or, in the case of a Performance Unit granted to an
Employee or Consultant, in the CEO's discretion, apply to all or a portion of
the Shares subject to the Related Option. A Performance Unit may not be granted
in connection with, or by amendment to, an Incentive Stock Option.
9.3 A Performance Unit may be exercised in whole or in part as provided
in the Agreement, and, subject to the provisions of the Agreement, entitles its
Optionee to receive, without any payment to the Company (other than required tax
withholding amounts), cash, Shares or a combination of cash and Shares, based on
the degree to which performance standards established by the Committee or the
CEO, as the case may be, and specified in the Agreement have been achieved. Such
performance standards may be particular to an Employee, Covered Employee, Key
Employee, Consultant-Director or Consultant or the department, branch,
Subsidiary or other division in which the Optionee works, or may be based on the
performance of the Company generally, and may cover such period as may be
specified by the Committee or the CEO, as the case may be. The performance
standards may be based on earnings or earnings growth, return on assets, equity
or investment, regulatory compliance, improvement of financial ratings,
achievement of balance sheet or income statement objectives, or any other
objective goals established by the Committee or the CEO, as the case may be, and
may be absolute in their terms or measured against or in relationship to other
companies comparably, similarly or otherwise situated.
9.4 The Performance Period shall be determined by the Committee, or, in
the case of a Performance Unit granted to an Employee or Consultant, by the CEO,
and specifically set forth in the Agreement; provided, however, a Performance
Unit will
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expire no later than the earlier of (A) ten years from the Date of Grant, or (B)
in the case of a Related Performance Unit, the expiration of the Related Option.
9.5 Each Agreement granting Performance Units shall specify the number
of Performance Units granted, provided, however, that the maximum number of
Related Performance Units may not exceed the maximum number of Shares subject to
the Related Option.
9.6 The exercise, in whole or in part, of a Related Performance Unit
shall cause a reduction in the number of Shares subject to the Related Option
and the number of Performance Units in accordance with the terms of the
Agreement. Similarly, the exercise, in whole or in part, of a Related Option
shall cause a reduction in the number of Shares subject to the Related
Performance Unit equal to the number of Shares with respect to which the Related
Option is exercised.
9.7 The Company intends that the Article shall comply with the
requirements of Rule 16b-3 during the term of this Plan. Should any provisions
of this Article not be necessary to comply with the requirements of Rule 16b-3,
the Board or Committee may amend this Plan to delete, add to or modify the
provisions of the Plan accordingly. The Company's failure for any reason
whatsoever to comply with the requirements of Rule 16b-3, and the resultant
unavailability of Rule 16b-3 shall not impose any liability on the Company to
any Covered Employee, Key Employee, Consultant Director, or to any other party.
10. EXERCISE
10.1 An Option, Right or Performance Unit may, subject to the
provisions of the Agreement under which it was granted, be exercised in whole or
in part by the delivery to the Company of written notice of the exercise, in
such form as the Committee or the CEO, in the case of an Option, Right or
Performance Unit granted to an Employee or Consultant, may prescribe,
accompanied, in the case of an Option, either (i) by full payment for the Shares
with respect to which the Option is exercised (unless and to the extent that the
Committee, or the CEO, as the case may be, agreed in an Agreement to accept a
promissory note as provided in Section 10.2 hereof); (ii) by delivery of shares
of Common Stock (including constructive delivery) having a Fair Market Value on
the date of surrender equal to the aggregate exercise price of the Shares as to
which such Option shall be exercised; or (iii) a properly executed exercise
notice and irrevocable instructions to a broker promptly to deliver to the
Company cash equal to the exercise price.
10.2 To the extent permitted by applicable law, the Committee or the
CEO, in the case of an Option, Right or Performance Unit granted to an Employee
or Consultant, may agree in the Agreement in which an Option is granted to
accept as partial payment
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for the Shares a promissory note of the Optionee evidencing his or her
obligation to make future cash payment thereof; provided, however, that in no
event may the Committee or the CEO accept a promissory note for an amount in
excess of the difference between the aggregate Option Price and the par value of
the Shares. Promissory notes made pursuant to this Section 10.2 shall be payable
as determined by the Committee or the CEO, in the case of an Option granted to
an Employee or Consultant, shall be secured by a pledge of the Shares and shall
bear interest at a rate fixed by the Committee or the CEO, in the case of an
Option granted to an Employee or Consultant.
11. NONTRANSFERABILITY
Except as otherwise provided in an Agreement, Options, Rights,
Performance Units and Incentive Shares granted or awarded under the Plan shall
not be transferable otherwise than by will or the laws of descent and
distribution, and an Option, Right or Performance Unit may be exercised during
the Optionee's lifetime only by the Optionee or, in the event of the Optionee's
legal disability, by his or her legal representative. A Related Right or Related
Performance Unit is transferable only when the Related Option is transferable
and only with the Related Option and under the same conditions.
12. RESTRICTED STOCK AWARDS
12.1 The Committee is hereby authorized to award shares of Restricted
Stock to Covered Employees, Key Employees and Consultant-Directors, and the CEO
is hereby authorized to award shares of Restricted Stock to Employees and
Consultants.
12.2 Restricted Stock awards under the Plan shall consist of Shares
that are restricted against transfer, subject to forfeiture, and subject to such
other terms and conditions intended to further the purposes of the Plan as may
be determined by the Committee or the CEO, in the case of Restricted Stock
awarded to an Employee or Consultant.
12.3 Restricted Stock awards shall be evidenced by Agreements
containing provisions setting forth the terms and conditions governing such
awards. Each such Agreement shall contain the following:
(i) prohibitions against the sale, assignment, transfer,
exchange, pledge, hypothecation, or other encumbrance of (A) the Shares awarded
as Restricted Stock under the Plan, (B) the right to vote the Shares, or (C) the
right to receive dividends thereon in each case during the restriction period
applicable to the Shares; provided, however, that the Grantee shall have all the
other rights of a shareholder including, but not limited to, the right to
receive dividends and the right to vote the Shares;
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(ii) at least one term, condition or restriction constituting
a "substantial risk of forfeiture" as defined in Section 83(c) of the Code;
(iii) such other terms, conditions and restrictions as the
Committee or the CEO, in the case of Restricted Stock awarded to Employees or
Consultants, in its or his discretion may specify (including, without
limitation, provisions creating additional substantial risks of forfeiture);
(iv) a requirement that each certificate representing shares
of Restricted Stock shall be deposited with the Company, or its designee, and
shall bear the following legend:
"This certificate and the shares of stock represented hereby
are subject to the terms and conditions (including the risks
of forfeiture and restrictions against transfer) contained in
the Maxim Pharmaceuticals, Inc. 1993 Long-Term Incentive Plan
and an Agreement entered into between the registered owner and
Maxim Pharmaceuticals, Inc. Release from such terms and
conditions shall be made only in accordance with the
provisions of the Plan and the Agreement, a copy of each of
which is on file in the office of the Secretary of Maxim
Pharmaceuticals, Inc."
(v) the applicable period or periods of any terms, conditions
or restrictions applicable to the Restricted Stock, provided, however, that the
Committee or the CEO, in the case of Restricted Stock awarded to an Employee or
Consultant, in its or his discretion may accelerate the expiration of the
applicable restriction period with respect to any part or all of the Shares
awarded to a Grantee; and
(vi) the terms and conditions upon which any restrictions upon
shares of Restricted Stock awarded under the Plan shall lapse and new
certificates free of the foregoing legend shall be issued to the Grantee or his
or her legal representative.
12.4 The Committee or the CEO, in the case of Restricted Stock awarded
to an Employee or Consultant, may include in an Agreement a requirement that in
the event of a Grantee's termination of employment or other service with the
Company for any reason prior to the lapse of restrictions, all shares of
Restricted Stock shall be forfeited by the Grantee to the Company without
payment of any consideration by the Company, and neither the Grantee nor any
successors, heirs, assigns or personal representatives of the Grantee shall
thereafter have any further rights or interest in the Shares or certificates.
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13. INCENTIVE SHARE AWARDS
13.1 The Committee is hereby authorized to award Incentive Shares to
Covered Employees, Key Employees and Consultant-Directors, and the CEO is hereby
authorized to award Incentive Shares to Employees and Consultants.
13.2 Incentive Shares shall be Shares that shall be issued at such
times, subject to achievement of such performance or other goals and on such
other terms and conditions as the Committee or the CEO, in the case of Incentive
Shares awarded to an Employee or Consultant, shall deem appropriate and specify
in the Agreement relating thereto.
14. CAPITAL ADJUSTMENTS
The number of Shares subject to each outstanding Option, Right or
Performance Unit or Restricted Stock or Incentive Share award and the aggregate
number of shares for which grants or awards thereafter may be made automatically
shall be adjusted proportionately in the event of a stock split or stock
dividend of or with respect to the Common Stock, and the number and class of
Shares subject to each outstanding Option, Right or Performance Unit or
Restricted Stock or Incentive Share award, the Option Price and the aggregate
number and class of shares for which grants or awards thereafter may be made
shall be subject to such adjustment, if any, as the Committee in its sole
discretion deems appropriate to reflect such events as adoption of stock rights
plans, recapitalizations, mergers, consolidations or reorganizations of or by
the Company.
15. TERMINATION OR AMENDMENT
The Board shall have the power to terminate the Plan and to amend it in
any respect, provided that, after the Plan has been approved by the shareholders
of the Company, the Board may not, without the approval of the shareholders of
the Company if such approval is then required under the laws of the State of
Delaware, in order for the Plan to continue to satisfy the requirements of Rule
16b-3 under the Exchange Act, in order for Incentive Stock Options to qualify as
such under Section 422 of the Code, or under the rules of any stock exchange or
quotation system on which the Shares are then listed or authorized for
quotation. The Board may in its sole discretion submit any other amendment to
the Plan for shareholder approval, including, but not limited to, amendments to
the Plan intended to satisfy the requirements of Section 162(m) of the Code and
the regulations promulgated thereunder regarding the exclusion of
performance-based compensation from the limit on corporate deductibility of
compensation paid to Covered Employees. No termination or amendment of the Plan
shall, without his or her consent, adversely affect the rights or obligations of
any Optionee or Grantee.
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16. MODIFICATION, EXTENSION AND RENEWAL OF OPTIONS, RIGHTS, PERFORMANCE
UNITS, RESTRICTED STOCK AND INCENTIVE SHARES
Subject to the terms and conditions and within the limitations of the
Plan, the Committee or the CEO, in the case of a grant or award to an Employee
or Consultant, may modify, extend or renew outstanding Options, Rights and
Performance Units, or accept the surrender of outstanding options, rights and or
performance units (to the extent not theretofore exercised) granted under the
Plan or under any other plan of the Company or a company or similar entity
acquired by the Company or a Subsidiary, and authorize the granting of new
Options, Rights and Performance Units pursuant to the Plan in substitution
therefor (to the extent not theretofore exercised), and the substituted Options
may specify a lower exercise price than the surrendered options, and the
substituted Options, Rights and Performance Units may specify a longer term than
the surrendered options, rights and performance units or have any other
provisions that are authorized by the Plan. Subject to the terms and conditions
and within the limitations of the Plan, the Committee or the CEO, in the case of
a grant or award to an Employee or Consultant, may modify the terms of any
outstanding Agreement providing for the grant of options, rights or Performance
Units or the award of Restricted Stock or Incentive Shares. Notwithstanding the
foregoing, however, no modification of an Option, Right or Performance Unit, or
an award of Restricted Stock or Incentive Shares, shall, without the consent of
the Optionee or Grantee, alter or impair any of the Optionee's or Grantee's
rights or obligations.
17. EFFECTIVENESS OF THE PLAN
The Plan and any amendments requiring shareholder approval pursuant to
Article 15 are subject to approval by vote of the shareholders of the Company
within 12 months after their adoption by the Board. Subject to that approval,
the Plan and any amendments are effective on the date on which they are adopted
by the Board. Options, Rights, Performance Units, Restricted Stock and Incentive
Shares may be granted or awarded prior to shareholder approval of the Plan or
amendments, but each such Option, Right, Performance Unit, Restricted Stock or
Incentive Share grant or award shall be subject to the approval of the Plan or
amendments by the shareholders. Except to the extent required to satisfy the
requirements of Rule 16b-3 under the Exchange Act, the date on which any Option,
Right, Performance Unit, Restricted Stock or Incentive Shares granted or awarded
prior to shareholder approval of the Plan or amendment is granted or awarded
shall be the Date of Grant for all purposes as if the Option, Right, Performance
Units, Restricted Stock or Incentive Shares had not been subject to approval. No
Option, Right or Performance Unit may be exercised prior to such shareholder
approval, and any Restricted Stock or Incentive Shares awarded shall be
forfeited if such shareholder approval is not obtained.
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18. TERM OF THE PLAN
Unless sooner terminated by the Board pursuant to Article 15, the Plan
shall terminate on September 30, 2003 and no Options, Rights, Performance Units,
Restricted Stock or Incentive Shares awards may be granted or awarded after
termination. The termination shall not affect the validity of any Option, Right,
Performance Unit, Restricted Stock or Incentive Shares awards outstanding on the
date of termination.
19. INDEMNIFICATION OF COMMITTEE AND CEO
In addition to such other rights of indemnification as they may have as
Directors or as members of the Committee, the members of the Committee and the
CEO, in the case of a grant or award to an Employee or Consultant, shall be
indemnified by the Company against the reasonable expenses, including attorneys'
fees, actually and reasonably incurred in connection with the defense of any
action, suit or proceeding, or in connection with any appeal therein, to which
they or any of them may be a party by reason of any action taken or failure to
act under or in connection with the Plan or any Option, Right, Performance Unit,
Restricted Stock or Incentive Shares granted or awarded hereunder, and against
all amounts reasonably paid by them in settlement thereof or paid by them in
satisfaction of a judgment in any such action, suit or proceeding, if such
members or the CEO, as the case may be, acted in good faith and in a manner
which they believed to be in, and not opposed to, the best interests of the
Company.
20. GENERAL PROVISIONS
20.1 The establishment of the Plan shall not confer upon any Director,
Employee, Covered Employee, Key Employee, Consultant-Director or Consultant any
legal or equitable right against the Company, any Subsidiary, the Committee or
the CEO, except as expressly provided in the Plan.
20.2 The Plan does not constitute inducement or consideration for the
employment of any Employee, Covered Employee, or Key Employee, or the service of
any Director, Consultant-Director or Consultant, nor is it a contract between
the Company or a Subsidiary and any Director, Employee, Covered Employee, Key
Employee, Consultant-Director or Consultant. Participation in the Plan shall not
give a Director, Employee, Covered Employee, Key Employee, Consultant-Director
or Consultant any right to be retained in the service of the Company or a
Subsidiary.
20.3 The Company and a Subsidiary may assume options, warrants, or
rights to purchase stock issued or granted by other companies whose stock or
assets shall be acquired by the Company or a Subsidiary, or which shall be
merged into or consolidated with the Company or a Subsidiary. Neither the
adoption of this Plan, nor its submission to the shareholders, shall be taken to
impose any limitations on the powers of the
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Company or its affiliates to issue, grant, or assume options, warrants, rights,
performance units, restricted stock or incentive shares, otherwise than under
this Plan, or to adopt other stock option, stock appreciation right, performance
unit, restricted stock or incentive share plans or to impose any requirement of
shareholder approval upon the same.
20.4 The interests of any Director, Employee, Covered Employee, Key
Employee, Consultant-Director or Consultant under the Plan are not subject to
the claims of creditors and may not, in any way, be assigned, alienated or
encumbered except as provided in Article 11.
20.5 The Plan shall be governed, construed and administered in
accordance with the laws of Delaware and the intention of the Company that
Incentive Stock Options granted under the Plan qualify as such under Section 422
of the Code.
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EXHIBIT 4.2
OPTION NO.:
OPTIONEE:
DATE OF GRANT: October 26, 1999
OPTION PRICE: $8.00
COVERED SHARES:
MAXIM PHARMACEUTICALS, INC.
* * *
NONSTATUTORY STOCK OPTION AGREEMENT
1. DEFINITIONS. In this Agreement, except where the context otherwise
indicates, the following definitions apply:
(a) "Affiliate" means any parent corporation or subsidiary
corporation, whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f) respectively, of the Code.
(b) "Agreement" means this Nonstatutory Stock Option
Agreement.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the committee charged with the
administration of the stock option grants. Unless otherwise determined by the
Board, the Compensation Committee of the Board shall be the Committee.
(f) "Common Stock" means the common stock, par value $.001 per
share, of the Company.
(g) "Company" means Maxim Pharmaceuticals, Inc.
(h) "Consultant" means any person, including an advisor,
engaged by the Company or an Affiliate to render consulting services and who is
compensated for such services, provided that the term "Consultant" shall not
include Directors who are paid only a director's fee by the Company or who are
not compensated by the Company for their services as Directors.
1.
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(i) "Covered Shares" means the Shares subject to the Option
set forth as the "Covered Shares" on page 1 of this Agreement.
(j) "Date of Exercise" means the date on which the Company
receives notice pursuant to Paragraph 5(a) of the exercise, in whole or in part,
of the Option.
(k) "Date of Expiration" means the date on which the Option
shall expire, which shall be seven years after the Date of Grant.
(l) "Date of Grant" means the date set forth as the "Date of
Grant" on page 1 of this Agreement.
(m) "Employee" means any person, including Officers and
Directors, employed by the Company or any Affiliate of the Company. Neither
service as a Director nor payment of a director's fee by the Company shall be
sufficient to constitute "employment" by the Company.
(n) "Fair Market Value" of a Share means the amount equal to
the closing sales price for a Share in the principal trading market for the
Shares as reported by such source as the Committee may select, or, if such price
quotations are not then reported, then the fair market value of a Share as
determined by the Committee pursuant to a reasonable method adopted in good
faith for such purpose.
(o) "Option" means the nonstatutory stock option granted to
the Optionee in Paragraph 2 of this Agreement.
(p) "Option Price" means the dollar amount per Share set forth
as the "Option Price" on page 1 of this Agreement.
(q) "Optionee" means the person identified as the "Optionee"
on page 1 of this Agreement.
(r) "Share" means a share of Common Stock.
2. GRANT OF OPTION. Subject to the terms of this Agreement, the Company
hereby grants to the Optionee or his successors the Option to purchase from the
Company that number of shares of Common Stock equal to the Covered Shares,
exercisable at the Option Price
3. TERMS OF THE OPTION.
(a) TYPE OF OPTION. The Option is intended to be a
nonstatutory stock option, and is not an incentive stock option within the
meaning of Section 422 of the Code.
2.
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(b) OPTION PERIOD. During the period commencing on the Date of
the Grant and terminating on the Date of Expiration, the Option may be exercised
with respect to all or a portion of the Covered Shares (in full shares) to the
extent that the Option has not been previously exercised with respect to such
Covered Shares.
(c) NONTRANSFERABILITY. The Option is not transferable by the
Optionee other than by will or the laws of descent and distribution and is
exercisable during the Optionee's lifetime only by the Optionee or, in the event
of the Optionee's Disability or death, by the Optionee's legal representative.
(d) PAYMENT OF OPTION PRICE. Payment of the Option Price is
due in full upon exercise, in whole or in part, of the Option. The Optionee may
elect, to the extent permitted by applicable statutes and regulations, to make
payment of the Option Price under one of the following alternatives:
(i) Payment of the Option Price in cash (including
check) at the time of exercise;
(ii) Payment pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board which, prior to the
issuance of Common Stock, results in either the receipt of cash (or check) by
the Company or the receipt of irrevocable instructions to pay the aggregate
Option Price to the Company from the sales proceeds;
(iii) Provided that at the time of exercise the
Company's Common Stock is publicly traded and quoted regularly in THE WALL
STREET JOURNAL, payment by delivery of already-owned shares of Common Stock,
held for the period required to avoid a charge to the Company's reported
earnings, and owned free and clear of any liens, claims, encumbrances or
security interests, which Common Stock shall be valued at its fair market value
on the date of exercise;
(iv) Provided that at the time of exercise the
Committee has granted its prior approval, payment by delivery of cash equal to
the par value of the Shares to be acquired on exercise together with a
promissory note (1) evidencing the Optionee's obligation to make future cash
payment(s) of principal in an amount equal to the difference between the
aggregate Option Price and the par value of the Shares to be acquired on
exercise, (2) secured by a pledge of such Shares and (3) bearing interest at a
rate fixed by the Committee; or
(v) Payment by a combination of the methods of
payment permitted by subparagraph 3(d)(i) through 3(d)(iv) above.
3.
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4. CAPITAL ADJUSTMENTS. The number of Covered Shares and the Option
Price automatically shall be adjusted proportionately in the event of a stock
split or stock dividend of or with respect to the Common Stock, and the number
and class of Covered Shares and the Option Price shall be subject to such
adjustment, if any, as the Committee in its sole discretion deems appropriate to
reflect such events as adoption of stock rights plans, recapitalizations,
mergers, consolidations or reorganizations of or by the Company.
5. EXERCISE.
(a) NOTICE. The Option shall be exercised, in whole or in
part, by the delivery to the Company of written notice of such exercise, in such
form as the Committee may from time to time prescribe, accompanied by (i) full
payment of the Option Price with respect to that portion of the Option being
exercised as provided in Paragraph 3(d) of this Agreement and, if required under
applicable income tax laws, (ii) any amounts required to be withheld pursuant to
applicable income tax laws in connection with such exercise. Until the Committee
notifies the Optionee to the contrary, the form attached to this Agreement as
Exhibit A shall be used to exercise the Option.
(b) EFFECT. The exercise, in whole or in part, of the Option
shall cause a reduction in the number of Covered Shares equal to the number of
Shares of Common Stock with respect to which the Option is exercised.
(c) REPRESENTATIONS AND WARRANTIES. Upon exercise of the
Option in whole or in part, the Optionee, if required by the Company, shall
represent, warrant and acknowledge the following:
(i) The Optionee has made such investigations as the
Optionee deems necessary and appropriate of the business and/or financial
prospects of the Company.
(ii) The Optionee acknowledges that the Company has
made available to the Optionee the opportunity to obtain information to evaluate
the merits and risks associated with this Agreement and the transactions
contemplated thereby. The Optionee acknowledges that the investment contemplated
by the Option involves a high degree of risk, including risks associated with
the Company's business operations and prospects including competition and the
dependence on the Company's technology and events beyond the Company's control,
the limits on transferability of the Option and Covered Shares, and the absence
of a public market for the Covered Shares.
4.
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6. RIGHTS AS STOCKHOLDER. The Optionee shall have no rights as a
stockholder with respect to any Shares subject to the Option until and unless a
certificate or certificates representing such Shares are issued to the Optionee
pursuant to this Agreement. Except as provided in Paragraph 4, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the issuance of such certificate or certificates.
7. SERVICE AS CONSULTANT. Neither the granting of the Option evidenced
by this Agreement nor any term or provision of this Agreement shall constitute
or be evidence of any understanding, express or implied, on the part of the
Company or any of its Affiliates to engage the services of the Optionee for any
period.
8. RESTRICTION UPON SHARES OF COMMON STOCK ISSUED UPON EXERCISE.
Notwithstanding any other provision of this Agreement, the Optionee agrees, for
himself and his successors, that, if required under applicable federal or state
securities laws, upon the issuance of any Shares upon the exercise of the
option, he will, upon the request of the Company, agree in writing that he is
acquiring such Shares for investment only and not with a view to resale, and
that he will not sell, pledge or otherwise dispose of such Shares so issued
unless and until (a) the Company is furnished with an opinion of counsel to the
effect that registration of such Shares pursuant to the Securities Act of 1933,
as amended, is not required by that Act and the rules and regulations
thereunder; (b) the staff of the Securities and Exchange Commission has issued a
"no-action" letter with respect to such disposition; or (c) such registration or
notification as is, in the opinion of counsel for the Company, required for the
lawful disposition of such Shares has been filed by the Company and has become
effective; provided, however, that the Company is not obligated hereby to file
any such registration or notification. The Optionee further agrees that the
Company may place a legend embodying such restriction on the certificates
evidencing such Shares.
9. General Provisions.
(a) This Agreement shall not confer upon any Director,
Employee, or Consultant any legal or equitable right against the Company, any
Subsidiary, the Committee, except as expressly provided in this option grant.
(b) This Agreement does not constitute inducement or
consideration for the employment of any Employee or the service of any Director
or Consultant. This Agreement shall not give a Director, Employee or Consultant
any right to be retained in the service of the Company or a Subsidiary.
5.
<PAGE>
(c) The interest of any Director, Employee or Consultant under
this Agreement is not subject to the claims of creditors and may not, in any
way, be assigned, alienated or encumbered except as provided in Item 3(c).
(d) This Agreement shall be governed, construed and
administered in accordance with the laws of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
on its behalf effective as of the Date of Grant.
ATTEST: MAXIM PHARMACEUTICALS, INC.
By:
- ---------------------------------- ----------------------------------
Larry G. Stambaugh
President and Chief Executive
Officer
Accepted and agreed to as of the Date of Grant.
-------------------------------------
Optionee
6.
<PAGE>
EXHIBIT A
EXERCISE OF OPTION
Board of Directors
Maxim Pharmaceuticals, Inc.
8899 University Center Lane, Suite 400
San Diego, California 92122
Gentlemen:
The undersigned, the Optionee under the Nonstatutory Stock Option Agreement
identified as Option No. ___ - ___, granted by Maxim Pharmaceuticals, Inc.
hereby irrevocably elects to exercise the Option granted in the Agreement to
purchase _____ shares of Common Stock of Maxim Pharmaceuticals, Inc., par value
$.001 per share, and herewith makes payment of $_______________ the form of
_______________ [cash, Common Stock, cash plus Common Stock.] (Please complete.)
Dated:
------------------------ ----------------------------------
(Signature of Optionee)
Date Received by Maxim Pharmaceuticals, Inc.:
--------------------------
Received by:
------------------------
[Note: Shares of Common Stock being delivered in payment of all or any part of
the exercise price must be represented by certificates registered in the name of
the Optionee and duly endorsed by the Optionee and by each and every other
co-owner in whose name the shares may also be registered. If the Committee has
agreed to permit the exercise of this option pursuant to a promissory note and
pledge of shares, the original executed note and pledge agreement must accompany
this notice of exercise.]
1.
<PAGE>
EXHIBIT 4.3
OPTION NO.:
OPTIONEE:
DATE OF GRANT: October 26, 1999
OPTION PRICE: $8.00
COVERED SHARES:
MAXIM PHARMACEUTICALS, INC.
* * *
NONSTATUTORY STOCK OPTION AGREEMENT
1. DEFINITIONS. In this Agreement, except where the context otherwise
indicates, the following definitions apply:
(a) "Affiliate" means any parent corporation or subsidiary
corporation, whether now or hereafter existing, as those terms are defined in
Sections 424(e) and (f) respectively, of the Code.
(b) "Agreement" means this Nonstatutory Stock Option
Agreement.
(c) "Board" means the Board of Directors of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as
amended.
(e) "Committee" means the committee charged with the
administration of the stock option grants. Unless otherwise determined by the
Board, the Compensation Committee of the Board shall be the Committee.
(f) "Common Stock" means the common stock, par value $.001 per
share, of the Company.
(g) "Company" means Maxim Pharmaceuticals, Inc.
(h) "Continuous Status as an Employee, Director or Consultant"
means that the service of an individual to the Company, whether as an Employee,
Director or
1.
<PAGE>
Consultant, is not interrupted or terminated. The Board, or the chief executive
officer of the Company may determine, in that party's sole discretion, whether
Continuous Status as an Employee, Director or Consultant shall be considered
interrupted in the case of: (i) any leave of absence approved by the Board or
the chief executive officer of the Company, including sick leave, military
leave, or any other personal leave; or (ii) transfers between the Company,
Affiliates or their successors.
(i) "Consultant" means any person, including an advisor,
engaged by the Company or an Affiliate to render consulting services and who is
compensated for such services, provided that the term "Consultant" shall not
include Directors who are paid only a director's fee by the Company or who are
not compensated by the Company for their services as Directors.
(j) "Covered Shares" means the Shares subject to the Option
set forth as the "Covered Shares" on page 1 of this Agreement.
(k) "Date of Exercise" means the date on which the Company
receives notice pursuant to Paragraph 5(a) of the exercise, in whole or in part,
of the Option.
(l) "Date of Expiration" means the date on which the Option
shall expire, which shall be seven years after the Date of Grant.
(m) "Date of Grant" means the date set forth as the "Date of
Grant" on page 1 of this Agreement.
(n) "Disability" means permanent and total disability within
the meaning of Section 422(c)(6) of the Code.
(o) "Employee" means any person, including Officers and
Directors, employed by the Company or any Affiliate of the Company. Neither
service as a Director nor payment of a director's fee by the Company shall be
sufficient to constitute "employment" by the Company.
(p) "Fair Market Value" of a Share means the amount equal to
the closing sales price for a Share in the principal trading market for the
Shares as reported by such source as the Committee may select, or, if such price
quotations are not then reported, then the fair market value of a Share as
determined by the Committee pursuant to a reasonable method adopted in good
faith for such purpose.
(q) "Option" means the nonstatutory stock option granted to
the Optionee in Paragraph 2 of this Agreement.
2.
<PAGE>
(r) "Option Price" means the dollar amount per Share set forth
as the "Option Price" on page 1 of this Agreement.
(s) "Optionee" means the person identified as the "Optionee"
on page 1 of this Agreement.
(t) "Share" means a share of Common Stock.
2. GRANT OF OPTION. Subject to the terms of this Agreement, the Company
hereby grants to the Optionee or his successors the Option to purchase from the
Company that number of shares of Common Stock equal to the Covered Shares,
exercisable at the Option Price
3. TERMS OF THE OPTION.
(a) TYPE OF OPTION. The Option is intended to be a
nonstatutory stock option, and is not an incentive stock option within the
meaning of Section 422 of the Code.
(b) OPTION PERIOD. During the period commencing on the Date of
the Grant and terminating on the Date of Expiration, the Option may be exercised
with respect to all or a portion of the Covered Shares (in full shares) to the
extent that the Option has not been previously exercised with respect to such
Covered Shares subject to the following limitations:
[Insert Vesting Schedule]
Notwithstanding the above provisions of the Paragraph 3(b),
the Option may be exercised in full at any time during the period commencing on
the Date of Grant and terminating on the Date of Expiration if (i) there is a
Change of Control, (ii) the Optionee's employment with the Company or a
subsidiary terminates due to the Optionee's retirement, death or disability, or
(iii) the Optionee's employment with the Company or a Subsidiary is terminated
by the Company without Cause or by the Optionee due to a Constructive Discharge.
(c) NONTRANSFERABILITY. The Option is not transferable by the
Optionee other than by will or the laws of descent and distribution and is
exercisable during the
3.
<PAGE>
Optionee's lifetime only by the Optionee or, in the event of the Optionee's
Disability or death, by the Optionee's legal representative.
(d) PAYMENT OF OPTION PRICE. Payment of the Option Price is
due in full upon exercise, in whole or in part, of the Option. The Optionee may
elect, to the extent permitted by applicable statutes and regulations, to make
payment of the Option Price under one of the following alternatives:
(i) Payment of the Option Price in cash (including
check) at the time of exercise;
(ii) Payment pursuant to a program developed under
Regulation T as promulgated by the Federal Reserve Board which, prior to the
issuance of Common Stock, results in either the receipt of cash (or check) by
the Company or the receipt of irrevocable instructions to pay the aggregate
Option Price to the Company from the sales proceeds;
(iii) Provided that at the time of exercise the
Company's Common Stock is publicly traded and quoted regularly in THE WALL
STREET JOURNAL, payment by delivery of already-owned shares of Common Stock,
held for the period required to avoid a charge to the Company's reported
earnings, and owned free and clear of any liens, claims, encumbrances or
security interests, which Common Stock shall be valued at its fair market value
on the date of exercise;
(iv) Provided that at the time of exercise the
Committee has granted its prior approval, payment by delivery of cash equal to
the par value of the Shares to be acquired on exercise together with a
promissory note (1) evidencing the Optionee's obligation to make future cash
payment(s) of principal in an amount equal to the difference between the
aggregate Option Price and the par value of the Shares to be acquired on
exercise, (2) secured by a pledge of such Shares and (3) bearing interest at a
rate fixed by the Committee; or
(v) Payment by a combination of the methods of
payment permitted by subparagraph 3(d)(i) through 3(d)(iv) above.
4. CAPITAL ADJUSTMENTS. The number of Covered Shares and the Option
Price automatically shall be adjusted proportionately in the event of a stock
split or stock dividend of or with respect to the Common Stock, and the number
and class of Covered Shares and the Option Price shall be subject to such
adjustment, if any, as the Committee in its sole discretion deems appropriate to
reflect such events as adoption of stock rights plans, recapitalizations,
mergers, consolidations or reorganizations of or by the Company.
5. EXERCISE.
4.
<PAGE>
(a) NOTICE. The Option shall be exercised, in whole or in
part, by the delivery to the Company of written notice of such exercise, in such
form as the Committee may from time to time prescribe, accompanied by (i) full
payment of the Option Price with respect to that portion of the Option being
exercised as provided in Paragraph 3(d) of this Agreement and, if required under
applicable income tax laws, (ii) any amounts required to be withheld pursuant to
applicable income tax laws in connection with such exercise. Until the Committee
notifies the Optionee to the contrary, the form attached to this Agreement as
Exhibit A shall be used to exercise the Option.
(b) EFFECT. The exercise, in whole or in part, of the Option
shall cause a reduction in the number of Covered Shares equal to the number of
Shares of Common Stock with respect to which the Option is exercised.
6. RIGHTS AS STOCKHOLDER. The Optionee shall have no rights as a
stockholder with respect to any Shares subject to the Option until and unless a
certificate or certificates representing such Shares are issued to the Optionee
pursuant to this Agreement. Except as provided in Paragraph 4, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the issuance of such certificate or certificates.
7. SERVICE AS CONSULTANT. Neither the granting of the Option evidenced
by this Agreement nor any term or provision of this Agreement shall constitute
or be evidence of any understanding, express or implied, on the part of the
Company or any of its Affiliate to engage the services of the Optionee for any
period.
8. RESTRICTION UPON SHARES OF COMMON STOCK ISSUED UPON EXERCISE.
Notwithstanding any other provision of this Agreement, the Optionee agrees, for
himself and his successors, that, if required under applicable federal or state
securities laws, upon the issuance of any Shares upon the exercise of the
option, he will, upon the request of the Company, agree in writing that he is
acquiring such Shares for investment only and not with a view to resale, and
that he will not sell, pledge or otherwise dispose of such Shares so issued
unless and until (a) the Company is furnished with an opinion of counsel to the
effect that registration of such Shares pursuant to the Securities Act of 1933,
as amended, is not required by that Act and the rules and regulations
thereunder; (b) the staff of the Securities and Exchange Commission has issued a
"no-action" letter with respect to such disposition; or (c) such registration or
notification as is, in the opinion of counsel for the Company, required for the
lawful disposition of such Shares has been filed by the Company and has become
effective; provided, however, that the Company is not obligated hereby to file
any such registration or notification. The Optionee further agrees that the
Company may place a legend embodying such restriction on the certificates
evidencing such Shares.
5.
<PAGE>
9. GENERAL PROVISIONS.
(a) This Agreement shall not confer upon any Director,
Employee, or Consultant any legal or equitable right against the Company, any
Subsidiary, the Committee or the CEO, except as expressly provided in this
option grant.
(b) This Agreement does not constitute inducement or
consideration for the employment of any Employee or the service of any Director
or Consultant. This Agreement shall not give a Director, Employee or Consultant
any right to be retained in the service of the Company or a Subsidiary.
(c) The interest of any Director, Employee or Consultant under
this Agreement are not subject to the claims of creditors and may not, in any
way, be assigned, alienated or encumbered except as provided in Item 3(c).
(d) This Agreement shall be governed, construed and
administered in accordance with the laws of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
on its behalf effective as of the Date of Grant.
ATTEST: MAXIM PHARMACEUTICALS, INC.
By:
- -------------------- --------------------------------
Larry G. Stambaugh
President and Chief Executive
Officer
Accepted and agreed to as of the Date of Grant.
-------------------------------------
Optionee
6.
<PAGE>
EXHIBIT A
EXERCISE OF OPTION
Board of Directors
Maxim Pharmaceuticals, Inc.
8899 University Center Lane, Suite 400
San Diego, California 92122
Gentlemen:
The undersigned, the Optionee under the Nonqualified Stock Option Agreement
identified as Option No. ___ - ___, granted by Maxim Pharmaceuticals, Inc.
hereby irrevocably elects to exercise the Option granted in the Agreement to
purchase _____ shares of Common Stock of Maxim Pharmaceuticals, Inc., par value
$.001 per share, and herewith makes payment of $_______________ the form of
_______________ [cash, Common Stock, cash plus Common Stock. (Please complete.)
Dated:
-------------------------- -------------------------------
(Signature of Optionee)
Date Received by Maxim Pharmaceuticals, Inc.:
---------------------
Received by:
-------------------
[Note: Shares of Common Stock being delivered in payment of all or any part of
the exercise price must be represented by certificates registered in the name of
the Optionee and duly endorsed by the Optionee and by each and every other
co-owner in whose name the shares may also be registered. If the Committee has
agreed to permit the exercise of this option pursuant to a promissory note and
pledge of shares, the original executed note and pledge agreement must accompany
this notice of exercise.]
1.
<PAGE>
EXHIBIT 5
[ARNOLD & PORTER LETTERHEAD]
April 5, 2000
Board of Directors
Maxim Pharmaceuticals, Inc.
8899 University Center Lane
Suite 400
San Diego, California 92122
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as special counsel to Maxim Pharmaceuticals, Inc. (the
"Company") in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission relating to (i) the grant of options to certain directors and
officers covering 440,000 shares of common stock, par value $.001 per share (the
"Common Stock") and relating to (ii) up to 500,000 additional shares of Common
Stock reserved for issuance under the Company's Amended and Restated 1993
Long-Term Incentive Plan (the "1993 Plan").
In connection with rendering the opinions set forth in this letter, we
have examined such corporate records of the Company, including the 1993 Plan,
the Company's Certificate of Incorporation and Bylaws as in effect on the date
of this opinion, and resolutions of the Board of Directors and stockholders of
the Company, as well as made such investigation of matters of fact and law and
examined such other documents as we deem necessary for rendering the opinions
hereinafter expressed.
The opinions set forth herein are subject to the following
qualifications, which are in addition to any other qualifications contained
herein:
A. 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.
<PAGE>
Maxim Pharmaceuticals, Inc.
April 5, 2000
Page 2
B. 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 assurances that our
opinions would not be different after any change in any of the foregoing
occurring after the date hereof.
C. We have assumed without verification that, with respect to the
minutes of any meetings of the Board of Directors or any committees thereof of
the Company or of the stockholders 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.
D. We have assumed without verification the accuracy and completeness
of all corporate records made available to us by the Company.
E. 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 and the
federal laws of the United States. As to matters governed by the laws specified
in the foregoing 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 assumptions 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 440,000 shares of Common Stock
subject to the options granted to certain directors and officers, when issued
upon the exercise of such options for legal consideration of not less than $.001
per share, will be validly issued and will be fully paid and nonassessable.
We are also of the opinion that the 500,000 additional shares of Common
Stock reserved for issuance under the 1993 Plan (i) when issued upon the
exercise of options and stock appreciation rights or as incentive shares in
accordance with the terms of the 1993 Plan and for legal consideration of not
less than $.001 per share, will be validly issued and will be fully paid and
nonassessable and (ii) when issued pursuant to the award of restricted stock in
accordance with the terms of the 1993 Plan and for legal consideration of not
less than $.001 per share, will be validly issued, and upon the lapse of
restrictions provided under such award, will be fully paid and nonassessable.
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.
<PAGE>
Maxim Pharmaceuticals, Inc.
April 5, 2000
Page 3
We hereby consent to your filing of this opinion as Exhibit 5 to the
Registration Statement and to reference to our firm in Item 5 thereof. By giving
such consent we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/Arnold & Porter
-----------------------------
ARNOLD & PORTER
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Maxim Pharmaceuticals, Inc.:
We consent to the use of our report incorporated herein by reference in the
prospectus.
/s/ KPMG, LLP
- ---------------------
San Diego, California
April 5, 2000
