<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 7, 2000
REGISTRATION NO. 333-91923
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------------
MAXIM PHARMACEUTICALS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 87-0279983
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CALIFORNIA 92122
(858) 453-4040
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OR REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
DALE A. SANDER
VICE PRESIDENT, FINANCE, CHIEF FINANCIAL OFFICER AND SECRETARY
MAXIM PHARMACEUTICALS, INC.
8899 UNIVERSITY CENTER LANE, SUITE 400
SAN DIEGO, CALIFORNIA 92122
(858) 453-4040
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
STEVEN KAPLAN
ARNOLD & PORTER
555 TWELFTH STREET, N.W.
WASHINGTON, D.C. 20004-1202
(202) 942-5998
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /_________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF ADDITIONAL AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF ADDITIONAL
SECURITIES TO BE REGISTERED BE REGISTERED PER SHARE (1) OFFERING PRICE(1) REGISTRATION FEE (2)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.001. . . . . . 135,580 $18.875 $2,559,072.50 $675.60
====================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 of the Securities Act of 1933 based upon the average
of the high and low prices of Registrant's Common Stock on January 4, 2000
as reported on the American Stock Exchange.
(2) Previously paid $12,866.00 at original filing related to 3,544,225 common
shares.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
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PROSPECTUS
3,679,805 SHARES
MAXIM PHARMACEUTICALS, INC.
COMMON STOCK
The selling stockholders identified in this prospectus are selling
3,679,805 shares of Maxim Pharmaceuticals, Inc. common stock. Maxim will not
receive any of the proceeds from the sale of shares by the selling stockholders.
Our common stock is listed on the American Stock Exchange under the symbol "MMP"
and on the Stockholm Stock Exchange under the symbol "MAXM". The closing sale
price of the common stock, as reported on the American Stock Exchange on January
6, 2000, was $19.125 per share.
INVESTING IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS," BEGINNING ON PAGE 3.
Neither the Securities Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is January 7, 2000.
<PAGE>
SUMMARY
IN THIS PROSPECTUS, THE WORDS "WE," "OUR," AND "US" REFER ONLY TO MAXIM
AND NOT TO THE SELLING STOCKHOLDERS OR ANY OTHER PERSON. THIS PROSPECTUS
CONTAINS FORWARD-LOOKING STATEMENTS THAT INVOLVE CERTAIN RISKS AND
UNCERTAINTIES. OUR ACTUAL RESULTS COULD BE VERY DIFFERENT THAN THE RESULTS WE
DISCUSS IN THIS PROSPECTUS OR THE INFORMATION WE INCORPORATE BY REFERENCE INTO
THIS PROSPECTUS. FACTORS THAT COULD CAUSE OR CONTRIBUTE TO SUCH DIFFERENCES
INCLUDE, BUT ARE NOT LIMITED TO, THOSE DISCUSSED IN THE FOLLOWING SECTION AND
THOSE DISCUSSED IN THE SECTION ENTITLED "RISK FACTORS."
THE COMPANY
Maxim is developing a new generation of drugs, therapies and vaccines
for cancer, infectious diseases and topical disorders.
Our lead drug candidate, MAXAMINE-Registered Trademark-, is currently
being tested in Phase 3 clinical trials in malignant melanoma, the most deadly
form of skin cancer and acute myelogenous leukemia, the most common acute adult
leukemia, in 12 countries around the world. A Phase 3 trial is a large-scale
test designed to be the final human study demonstrating the safety and efficacy
of a drug and supporting an application to the U.S. Food and Drug Administration
or international regulatory agencies for marketing approval. The initial market
launch of MAXAMINE is planned for early 2001 in the U.S. and late 2001 in
certain countries outside the U.S, subject to the receipt of regulatory
approvals.
A series of Phase 2 clinical trials in patients with malignant melanoma
and acute myelogenous leukemia have shown a more than doubling of survival and
remission times for patients treated with MAXAMINE as well as the ability to
maintain patient quality of life during treatment with the drug. A Phase 2 trial
is an intermediate test designed to show a preliminary evidence of efficacy of
the drug being tested. These studies have shown a more than doubling of survival
and remission times for patients treated with MAXAMINE as well as the ability to
maintain patient quality of life during treatment with the drug. Earlier-stage
clinical studies have also suggested promise in the following diseases:
- Renal cell carcinoma, a cancer of the kidneys; and
- Multiple myeloma, a cancer of the bone marrow.
In November 1999 we announced preliminary 12-week results from a phase
2 study of MAXAMINE in combination in the treatment of previously untreated
hepatitis C-infected patients. Hepatitis C is a viral infection targeting the
liver, and the study is designed to evaluate the safety and activity of four
different dose regimens of MAXAMINE in combination with the standard dose of
interferon, an agent currently approved for the treatment of hepatitis C. After
12 weeks of therapy, the combination of MAXAMINE and interferon achieved a
complete biochemical and viral response, the accepted endpoints for measuring
effectiveness of treatment, in 72 percent of all patients compared to the 25 to
40 percent response that is commonly observed in patients with similar profiles
treated with interferon alone.
More than 800 patients have been treated in our completed and ongoing
clinical trials.
A second product platform under development is MAXDERM-Trademark-, A
MAXAMINE-related series of drugs for the treatment of certain topical disorders.
Randomized, blinded, placebo-controlled trials have been conducted in more than
75 patients. Studies in patients with oral mucositis, a serious side effect of
chemotherapy and radiation treatment of cancer patients, and cold sores
suggested that MAXDERM resolved lesions more effectively than a placebo control.
Other clinical data suggests that MAXDERM may be beneficial in the treatment of
bed sores, shingles, burns, eye infections and other related conditions. Our
third technology platform, MAXVAX-Trademark-, is currently in preclinical
development and is designed to facilitate a new class of needle-free mucosal
vaccines for several infectious diseases including respiratory infections,
sexually transmitted diseases, and gastrointestinal tract diseases.
THE OFFERING
We recently completed a preferred stock financing from which we received
aggregate proceeds of $23.8 million. We are obligated to register the common
stock issuable upon conversion of this preferred stock so that it can be resold
in the public market. We are also registering common stock, and the common stock
issuable upon
2.
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exercise of warrants held by certain advisors to Maxim. We will not receive any
of the proceeds from the sale of common stock pursuant to this prospectus.
The selling stockholders may sell the shares of common stock described
in this prospectus in public or private transactions, on or off the American
Stock Exchange, at prevailing market prices, or at privately negotiated prices.
The selling stockholders may sell shares directly to purchasers or through
brokers or dealers. Brokers or dealers may receive compensation in the form of
discounts, concessions or commissions from the selling stockholders. More
information is provided in the section entitled "Plan of Distribution."
Our principal executive offices are located at 8899 University Center
Lane, Suite 400, San Diego, California 92122 and our telephone number is (858)
453-4040.
3.
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RISK FACTORS
IN EVALUATING OUR BUSINESS, YOU SHOULD CAREFULLY CONSIDER THE FOLLOWING
RISK FACTORS IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS
AND INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
WE ARE NOT PROFITABLE AND EXPECT TO CONTINUE TO INCUR LOSSES. IF WE DO NOT
BECOME PROFITABLE, WE MAY ULTIMATELY BE FORCED TO DISCONTINUE OUR OPERATIONS.
We are a development-stage enterprise. We have experienced net losses
every year since our inception and, as of September 30, 1999 had an accumulated
deficit of approximately $81.9 million. We anticipate incurring substantial
additional losses over at least the next several years related to developing and
testing our product candidates and preparing for commercialization of our
products. If we do not become profitable, our stock price will be negatively
affected, and we may ultimately be forced to wind down our operations.
WE WILL LIKELY NEED TO RAISE ADDITIONAL FUNDS IN THE FUTURE. IF WE ARE UNABLE TO
OBTAIN THE FUNDS NECESSARY TO CONTINUE OUR OPERATIONS, WE MAY BE REQUIRED TO
DELAY, SCALE BACK OR ELIMINATE ONE OR MORE OR OUR PRODUCT COMMERCIALIZATION
PROGRAMS.
We have already spent substantial funds developing our products and
business. We expect to continue to have negative cash flow from our operations
for at least the next several years. We will likely have to raise substantial
additional funds to complete the development of our products and to bring them
to market. Our future capital requirements will depend on numerous factors,
including:
- the results of our clinical trials;
- the timing and scope of any additional clinical trials
undertaken;
- the scope and results of our research and development
programs;
- the time required to obtain regulatory approvals;
- our ability to establish marketing alliances and collaborative
agreements;
- the cost of our internal marketing activities; and
- the cost of filing, prosecuting and, if necessary, enforcing
patent claims.
Additional financing may not be available on acceptable terms, if at
all. If adequate funds are not available, we may be required to delay, scale
back or eliminate one or more of our product development programs or obtain
funds through arrangements with collaborative partners or others that may
require us to relinquish rights to certain of our technologies or products that
we would not otherwise relinquish.
THE DEVELOPMENT OF OUR PRODUCTS IS SUBJECT TO UNCERTAINTIES, MANY OF WHICH ARE
BEYOND OUR CONTROL. IF WE FAIL TO SUCCESSFULLY DEVELOP OUR PRODUCTS, OUR ABILITY
TO GENERATE REVENUES WILL BE SUBSTANTIALLY IMPAIRED.
Potential products based on our MAXAMINE, MAXDERM and MAXVAX
technologies will require extensive clinical testing, regulatory approval and
substantial additional investment before we can sell them. We cannot assure you
that any of our products will:
- be successfully developed;
- prove to be safe and effective in clinical trials;
- meet applicable regulatory standards;
- be capable of being produced in commercial quantities at
acceptable costs;
- be eligible for third party reimbursement from governmental or
private insurers; or
- be successfully marketed or achieve market acceptance.
We have not completed final testing for efficacy or safety in humans
for any of our products, and any delay in our expected testing and development
schedules, or any elimination of product development program entirely, will
negatively impact our ability to generate revenues from the sale of our
products.
4.
<PAGE>
OUR PRODUCT CANDIDATES ARE SUBJECT TO SIGNIFICANT GOVERNMENT REGULATION WHICH
COULD INCREASE THE COST OF DEVELOPING OUR PRODUCTS AND DELAY OR PREVENT THE
SALES OF OUR PRODUCTS.
Our product candidates are subject to significant regulation by the
U.S. Food and Drug Administration, or the FDA, as well as similar agencies in
countries outside the United States. Satisfaction of lengthy and detailed
laboratory and clinical testing procedures required to submit an application for
regulatory approval is costly and may take a number of years. If we do not
receive FDA approval for our products under development, we will not be able to
market or sell our products in the United States. This would prevent us from
generating product revenue in the United States and would be extremely
detrimental to our business and financial condition. European and other
international regulatory approvals are subject to similar risks and
uncertainties as regulatory approvals in the United States.
We are expending substantial time and financial resources to conduct
clinical trials, but we cannot be sure that the results of our clinical trials
will support the submission of an investigational new drug application or a
product license application, or that any applications we do file will be
approved by the FDA or any similar foreign agency on a timely basis, or at all.
Once we do receive regulatory approval, we will still be subject to
ongoing regulatory requirements. Moreover, government regulation may increase at
any time, creating additional costs and delays for us.
IF WE FAIL TO SECURE ADEQUATE PROTECTION OF OUR INTELLECTUAL PROPERTY OR THE
RIGHT TO USE CERTAIN INTELLECTUAL PROPERTY OF OTHERS, WE MAY NOT BE ABLE TO
PROTECT OUR PRODUCTS AND TECHNOLOGIES FROM COMPETITORS.
Our success depends in large part on our ability to obtain, maintain
and protect patents and trade secrets and to operate without infringing upon the
proprietary rights of others. If we are unable to do so, our products and
technologies may not provide us with any competitive advantage.
The patent positions of biotechnology and pharmaceutical companies are
highly uncertain and involve complex legal and factual questions, and the
breadth of claims allowed in biotechnology and pharmaceutical patents cannot be
predicted. As a result, patents may not issue from any of our patent
applications. Further, patent applications in the United States are secret until
a patent issues, and we cannot be certain that others have not filed patent
applications for technology covered by our pending applications or that we were
the first to file patent applications for this technology. In addition, patents
currently held by us or issued to us in the future, or to licensors from whom we
have licensed technology rights, may be challenged, invalidated or circumvented
so that our intellectual property rights may not protect our technologies or
provide commercial advantage to us. In addition, we also rely on unpatented
trade secrets and proprietary know-how, and we cannot be sure that others will
not obtain access to or independently develop such trade secrets and know-how.
The pharmaceutical industry has experienced extensive litigation
regarding patent and other intellectual property rights. Although, to date, we
are not aware of any intellectual property claims against us, in the future, we
could be forced to incur substantial costs in defending ourselves in lawsuits
that are brought against us claiming that we have infringed the patent rights of
others or in asserting our patent rights in lawsuits against other parties. We
may also be required to participate in interference proceedings declared by the
United States Patent and Trademark Office for the purpose of determining the
priority of inventions in connection with our patent applications or other
parties' patent applications. Adverse determinations in litigation or
interference proceedings could require us to seek licenses that may not be
available on commercially reasonable terms or subject us to significant
liabilities to third parties.
5.
<PAGE>
OUR FAILURE TO ATTRACT AND RETAIN QUALIFIED PERSONNEL COULD PREVENT US FROM
GROWING OUR BUSINESS.
Our future performance and growth depends in part upon the continued
contributions of our senior management team and on our ability to attract and
retain qualified management and scientific personnel. Competition for such
personnel is intense, and we do not know if we will be able to continue to
attract, assimilate or retain highly qualified technical and management
personnel. The loss of key personnel or the failure to recruit additional
personnel or develop needed expertise could have a material and adverse affect
on our efficiency and on our ability to grow our business.
BECAUSE WE ARE DEPENDENT ON OUR COLLABORATIVE PARTNERS AND CONTRACTORS FOR
CLINICAL TESTING AND FOR CERTAIN RESEARCH AND DEVELOPMENT ACTIVITIES, THE
RESULTS OF OUR CLINICAL TRIALS AND SUCH RESEARCH ACTIVITIES ARE, TO A CERTAIN
EXTENT, BEYOND OUR CONTROL.
Our business strategy requires us to rely on our collaborative partners
and contractors to assist us with clinical testing and certain research and
development activities. As a result, our success is dependent upon the success
of these outside parties in performing their responsibilities. Although we
believe our collaborative partners are economically motivated to perform on
their contractual obligations, we can not control the amount of and timing of
resources and skill applied to these activities by our collaborators. In
addition, we may not be able in the future to negotiate acceptable collaborative
arrangements required to implement our business strategy, and even if we are
able to enter into further collaborative arrangements in the future, we cannot
be sure that these arrangements will be successful.
WE HAVE NO EXPERIENCE MARKETING OR SELLING PHARMACEUTICAL PRODUCTS.
Although we currently intend to co-market MAXAMINE in the United
States, we have never marketed or sold any pharmaceutical product before. In
order to co-market and co-sell MAXAMINE or other products, we will need to
develop a sales force and a marketing group with relevant pharmaceutical
experience, and also to make appropriate arrangements with strategic partners.
We cannot guarantee that we will be able to attract, assimilate or retain highly
qualified marketing and sales personnel, or successfully employ them to
commercialize MAXAMINE. If we cannot develop the required marketing and sales
expertise both internally and through our partnering arrangements, our ability
to generate revenue from product sales will likely suffer.
We intend to rely on our collaborative partners to market and sell
MAXAMINE in international markets, and such arrangements may be sought to market
MAXDERM and MAXVAX in all markets. We have not yet entered into any
collaborative arrangement with respect to marketing or selling MAXAMINE with the
exception of agreements relating to Australia, New Zealand and Israel, and have
not entered into any agreements regarding MAXDERM or MAXVAX, and we cannot
guarantee that we will be able to enter into any such arrangements on terms
favorable to us, or at all. If we are able to enter into marketing and selling
arrangements with collaborative partners we cannot assure you that such
marketing collaborators will apply adequate resources and skills to their
responsibilities, or that their marketing efforts will be successful.
WE WILL BE DEPENDENT ON THIRD PARTY MANUFACTURERS OF OUR PRODUCTS. OUR ABILITY
TO SELL PRODUCT MAY BE HARMED TO THE EXTENT ADEQUATE QUANTITIES OF OUR PRODUCTS
ARE NOT MANUFACTURED ON A TIMELY BASIS.
We do not intend to acquire or establish our own dedicated
manufacturing facilities for MAXAMINE in the foreseeable future and have, and
expect to continue to, contract with established pharmaceutical manufacturers
for the production of the product. If we are unable to continue to contract with
third-party manufacturers on acceptable terms, our ability to conduct clinical
testing and to produce commercial quantities of MAXAMINE and other products will
be adversely affected. If we cannot adequately manufacture our products, it
could result in delays in submissions for regulatory approval and in commercial
product launches, which in turn could materially impair our competitive position
and the possibility of achieving profitability. We cannot guarantee that we will
be able to
6.
<PAGE>
maintain our existing contract manufacturing relationships, or acquire or
establish new, satisfactory third-party relationships to provide adequate
manufacturing capabilities in the future.
OUR PRODUCTS MAY NOT BE ACCEPTED, PURCHASED OR USED BY DOCTORS, PATIENTS OR
PAYORS.
MAXAMINE, and any of our other products in development, may not achieve
market acceptance even if the FDA and similar foreign regulatory agencies
approve the drug. The degree of market acceptance of our products will depend on
a number of factors, including:
- the scope of regulatory approvals;
- the establishment and demonstration in the medical community
of the clinical efficacy and safety of our products;
- their potential advantages over existing treatment methods;
and
- reimbursement policies of government and other third-party
payors.
We cannot guarantee that physicians, patients, payors or the medical
community in general will accept and utilize any products that we develop.
WE COMPETE AGAINST MANY COMPANIES AND RESEARCH INSTITUTIONS THAT ARE DEVELOPING
PRODUCTS TO TREAT THE SAME DISEASES AS OUR PRODUCTS. TO THE EXTENT THESE
COMPETITORS ARE SUCCESSFUL IN DEVELOPING AND MARKETING SUCH PRODUCTS, OUR FUTURE
POTENTIAL MARKET SHARE AND REVENUES COULD BE REDUCED.
There are many companies, both publicly and privately held, including
well-known pharmaceutical companies and academic and other research
institutions, engaged in developing pharmaceutical and biologically-derived
products for the treatment of cancer and vaccines and therapeutics for the
prevention or the treatment of infectious diseases. Products developed by any of
these companies or institutions may demonstrate greater safety or efficacy than
our products or be more widely accepted by doctors, patients or payors. Many of
our competitors and potential competitors have substantially greater capital,
research and development capabilities and human resources than we do and
represent significant competition. Many of these competitors also have
significantly greater experience than we do in undertaking preclinical testing
and clinical trials of new pharmaceutical products and obtaining FDA and other
regulatory approvals. If any of our products are approved for commercial sale,
we will also be competing with companies that have greater resources and
experience in manufacturing, marketing and selling pharmaceutical products. To
the extent that any of our competitors succeed in developing products that are
more effective, less costly, or have better side effect profiles than our
products, then our market share could decrease which may have a negative impact
on our business.
THE TECHNOLOGY IN OUR SECTOR IS DEVELOPING RAPIDLY, AND OUR FUTURE SUCCESS
DEPENDS ON OUR ABILITY TO KEEP ABREAST OF TECHNOLOGICAL CHANGE.
We are engaged in the pharmaceutical field, which is characterized by
extensive research efforts and rapid technological progress. New developments in
oncology, cancer therapy, medicinal pharmacology, biochemistry and other fields
are expected to continue at a rapid pace. Research and discoveries by others may
render some or all of our proposed programs or products noncompetitive or
obsolete. Our business strategy is subject to the risks inherent in the
development of new products using new technologies and approaches. Unforeseen
problems may develop with these technologies or applications, and we may not be
able to successfully address technological challenges we encounter in our
research and development programs. This may result in our inability to develop
commercially feasible products.
THERE ARE SUBSTANTIAL SHARES ELIGIBLE FOR FUTURE SALE. THE SALE OF THESE SHARES
MAY DEPRESS OUR STOCK PRICE.
Sales of substantial amounts of our common stock in the public market
could adversely affect prevailing market prices for our common stock and our
ability to raise equity capital in the future. As of December 1, 1999 we have
outstanding 12,523,538 shares of common stock. Of these shares, an aggregate of
11,599,198 shares are freely tradable in the public market, unless acquired by
our affiliates. The remaining 924,340 shares are "restricted
7.
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securities" as that term is defined in Rule 144 under the Securities Act, of
which 773,919 are eligible for immediate sale in the public market pursuant to
Rule 144, subject to certain volume and manner of sale limitations, and of which
23,021 are being registered hereby and will be eligible for immediate sale in
the public market pursuant to such registration. As of December 1, 1999 we also
have outstanding 267,664 shares of preferred stock which are convertible into
2,676,640 shares of common stock. All of these preferred shares are restricted
and none are eligible for immediate sale in the public market pursuant to Rule
144. However, the shares of common stock issuable upon conversion of such shares
of preferred stock are being registered hereby and will be eligible for
immediate sale in the public market pursuant to such registration.
As of December 1, 1999 approximately 3,121,216 shares of common stock
underlying warrants, 977,310 shares issued or reserved for issuance under our
equity incentive plan, and 41,909 shares reserved for issuance under our 401(k)
plan will be available for immediate sale in the public market, unless purchased
by our affiliates. There are 681,302 shares of common stock underlying certain
warrants outstanding as of December 1, 1999 which have not been registered for
public sale and will be subject to the public sale restrictions of Rule 144 or
Rule 701 under the Securities Act, where applicable if the warrants are
exercised. However, 509,024 of the shares of common stock underlying these
warrants are being registered hereby and will be available for immediate sale in
the public market upon such registration.
OUR STOCK PRICE MAY BE HIGHLY VOLATILE DUE TO EXTERNAL FACTORS.
Our common stock currently trades on the American Stock Exchange and on
the Stockholm Stock Exchange. Historically, our common stock has generally
experienced relatively low daily trading volumes in relation to the aggregate
number of shares outstanding. Sales of substantial amounts of our common stock
in the public market could adversely affect the prevailing market prices of our
common stock and our ability to raise equity capital in the future.
Factors that may have a significant impact on the market price or the
liquidity of our common stock also include:
- actual or potential clinical trial results relating to
products under development by us or our competitors;
- delays in our testing and development schedules;
- events or announcements relating to our collaborative
relationships with others;
- announcements of technological innovations or new products by
us or our competitors;
- developments or disputes concerning patents or proprietary
rights;
- regulatory developments in both the United States and
countries outside of the United States;
- economic and other external factors, as well as
period-to-period fluctuations in our financial results.
External factors may also adversely affect the market prices for our
common stock. The price and liquidity of our common stock may be significantly
affected by the overall trading activity and market factors on the American
Stock Exchange and the Stockholm Stock Exchange, and these factors may differ
between the two markets. In addition, the securities markets have from time to
time experienced significant price and volume fluctuations that may be unrelated
to the operating performance of particular companies. The market prices of the
common stock of many publicly traded pharmaceutical or biotechnology companies
have in the past been, and can in the future be expected to be, especially
volatile.
8.
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The following table sets forth the high and the low sales prices for our common
stock for the quarter indicated as reported on the American Stock Exchange:
<TABLE>
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HIGH LOW
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YEAR ENDED SEPTEMBER 30, 1998:
First Quarter.................................................... $ 19-1/4 $ 12-1/4
Second Quarter................................................... 16-5/8 13-3/4
Third Quarter.................................................... 23 14-1/8
Fourth Quarter................................................... 20-1/2 14
YEAR ENDED SEPTEMBER 30, 1999:
First Quarter.................................................... $ 16-1/2 $ 11-5/8
Second Quarter................................................... 15-5/8 10-1/2
Third Quarter ................................................... 11-3/8 9
Fourth Quarter................................................... 10-5/8 7-1/2
YEAR ENDING SEPTEMBER 30, 2000:
First Quarter.................................................... $ 20-1/8 $ 8
Second Quarter (through January 6, 2000)......................... $ 20-1/2 $ 18-1/4
</TABLE>
WHERE YOU CAN GET MORE INFORMATION
We are a reporting company and file annual, quarterly and current
reports, proxy statements and other information with the SEC. You may read and
copy these reports, proxy statements and other information at the SEC's public
reference rooms in Washington, D.C., New York, NY and Chicago, IL. You can
request copies of these documents by writing to the SEC and paying a fee for the
copying cost. Please call the SEC at 1-800-SEC-0330 for more information about
the operation of the public reference rooms. Our SEC filings are also available
at the SEC's Web site at "HTTP://WWW.SEC.GOV". In addition, you can read and
copy our SEC filings at the office of the American Stock Exchange at 86 Trinity
Place, New York, New York.
The SEC allows us to "incorporate by reference" information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. Our SEC file number for the information we
have incorporated by reference is 001-14430. The information incorporated by
reference is an important part of this prospectus, and information that we file
later with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934:
- Annual Report on Form 10-K for the year ended September 30,
1999; and
- Our registration statement on Form 8-A filed on June 28, 1996
which includes a description of our common stock.
9.
<PAGE>
You may request a copy of these filings at no cost, by writing or
telephoning us at the following address or telephone number:
Maxim Pharmaceuticals
8899 University Center Lane, Suite 400
San Diego, CA 92122
Attn: Corporate Secretary
(858) 453-4040
This prospectus is part of a larger registration statement we filed with the
SEC. In deciding whether to buy our common stock, you should rely only on the
information incorporated by reference or provided in this prospectus. We have
not authorized anyone else to provide you with different information. We are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus is
accurate as of any date other than the date on the front of the document
USE OF PROCEEDS
Maxim will not receive any of the proceeds from the sale of the shares
of common stock offered by the selling stockholders.
10.
<PAGE>
SELLING STOCKHOLDERS
The following table sets forth the names of each of the selling
stockholders, the number of shares of common stock beneficially owned by the
selling stockholders as of December 1, 1999 and the number of shares of common
stock being offered by each of them pursuant to this prospectus. This
information is based upon information provided by each respective selling
stockholder. Because the selling stockholders may offer all, some or none of
their respective shares of common stock, no definitive estimate can be provided
as to the number of shares or percentage of outstanding common stock that will
be held by the selling stockholders after such offering. The term "selling
stockholders" includes the stockholders listed below and their transferees,
pledgees, donees or other successors.
- To our knowledge, the persons named in the table below have
sole voting and investment power with respect to all shares of
the common stock shown as beneficially owned by them, subject
to community property laws where applicable and the
information contained in the footnotes to this table.
- Percentage ownership is based on 12,523,538 shares of common
stock outstanding as of December 1, 1999 plus shares of common
stock that may be received upon conversion of the Series B
Preferred Stock or exercise of warrants held by the selling
stockholder.
- The number of shares being offered includes shares of common
stock issuable in connection with dividends payable on such
shares, assuming such dividends are paid in stock in lieu of
cash.
Unless otherwise indicated in the footnotes below, the number of shares
beneficially owned before this offering by each selling stockholder and the
number of shares being offered consist solely of shares of common stock issuable
upon conversion of our Series B Preferred Stock. For each selling stockholder,
we have included shares issuable in connection with required dividends on the
Series B Preferred Stock assuming that each selling stockholder will elect to
take such dividends in shares of stock instead of cash. For any stockholder that
elects to take all such dividends in cash, the number of shares of common stock
issuable upon conversion of such holder's Series B Preferred Stock would be
approximately 11% less than the number indicated in the table below.
None of the selling stockholders has, or within the past three years
has had, any position, office or other material relationship with Maxim
Pharmaceuticals, Inc. or any of its predecessors or affiliates.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED NUMBER OF SHARES BENEFICIALLY OWNED
BEFORE OFFERING SHARES AFTER OFFERING
BEING
SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------- ------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C>
AP Asset Management AG (1) 271,160 2.12% 271,160 - -
Werkstrasse 2
8806 Bach
Switzerland
The Aries Master Fund (2) 340,170 2.66% 263,210 76,960 *
787 Seventh Avenue, 48th Floor
New York, NY 10019
Aries Domestic Fund, L.P.(3) 140,990 1.12% 106,740 34,250 *
787 Seventh Avenue, 48th Floor
New York, NY 10019
Aries Domestic Fund II, L.P.(4) 9,420 * 8,300 1,120 *
787 Seventh Avenue, 48th Floor
New York, NY 10019
</TABLE>
11.
<PAGE>
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED NUMBER OF SHARES BENEFICIALLY OWNED
BEFORE OFFERING SHARES AFTER OFFERING
BEING
SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------- ------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C>
Caduceus Capital II L.P. 105,280 * 105,280 - -
767 Third Avenue, 6th Floor
New York, NY 10017
Cappello Capital Corp. (5) 5,602 * 5,602 - -
1299 Ocean Avenue, Suite 306
Santa Monica, CA 90401
Clarion Capital Corporation 37,800 * 37,800 - -
1801 East 9th Street, Suite 1120
Cleveland, Ohio 44114
DVG Deutsche Vermogensbildungsgesellschaft mbH (6) 841,200 6.52% 378,290 462,910 3.70%
Feldbergstra(beta)e 22
60323 Frankfurt, Germany
DWS Investment GmbH 1,125,500 8.25% 1,125,500 - -
Gruneburgweg 113-115
60323 Frankfurt Am Main, Germany
Evolution Capital (7) 180,000 1.42% 180,000 - -
156 West 56th Street, 11th Floor
New York, NY 10019
Forsakringsbolaget SPP Omsesidigt (8) 736,540 5.82% 129,820 606,720 4.84%
SE-103 73 Stockholm, Sweden
Kristoffer Hellstrand 30,815 * 23,021 7,794 *
Brodragatan 19
S-412 74 Goteborg, Sweden
Index Special Situations Fund, Ltd. 37,800 * 37,800 - -
Montague Sterling Centre, East Bay Street
P.O. Box SS-6238
Nassau, Bahamas
Charles Johnston (9) 29,420 * 12,580 16,840 *
706 Ocean Drive
Juno Beach, FL 33408
The Kriegsman Group (10) 240,232 1.88% 7,842 232,390 1.82%
920 Greentree Road
Pacific Palisades, CA 90272
Livforsahringsahtiebolaget Skandia (publ) (11) 951,300 7.45% 252,200 699,100 5.58%
SE-103 50 Stockholm
Sweden
Merced Partners, LP 126,090 1.00% 126,090 - -
601 Carlson Parkway, Suite 200
Minnetonka, MN 55305
</TABLE>
12.
<PAGE>
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED NUMBER OF SHARES BENEFICIALLY OWNED
BEFORE OFFERING SHARES AFTER OFFERING
BEING
SELLING STOCKHOLDER NUMBER PERCENT OFFERED NUMBER PERCENT
- ------------------- ------ ------- ------- ------ -------
<S> <C> <C> <C> <C> <C>
Douglas & Laurie Moore Family Trust 12,580 * 12,580 - -
2455 Deer Valley Lane
Walnut Creek, CA 94598
Mr. Steven M. Oliveira 25,200 * 25,200 - -
4 Piper Court
Blauvelt, NY 10913
Roston Enterprises (12) 35,190 * 6,280 28,910 *
2201 Canyonback Road
Los Angles, CA 90049
Wayne Philip Rothbaum (13) 90,000 * 90,000 - -
156 West 56th Street, 11th Floor
New York, NY 10019
SEB Lakemedel och Bioteknikfond (14) 573,006 4.54% 107,180 465,826 3.72%
ST S6
SE-106 40 Stockholm, Sweden
SEB Lux (F) Lakemedel och Bioteknikfond (15) 37,520 * 18,890 18,630 *
SEB Private Bank
P.O. Box 487
L-2014, Sweden
Mitchell Silber (16) 90,000 * 90,000 - -
156 West 56th Street, 11th Floor
New York, NY 10019
Wechsler & Co., Inc. (17) 71,490 * 37,800 33,690 *
105 South Bedford Road, Suite 310
Mount Kisco, NY 10549
Wendt Family Revocable Trust (18) 29,040 * 10,700 18,340 *
4900 West Dry Creek Road
Healdsburg, CA 95448
Winchester Global Trust Company Limited 209,940 1.65% 209,940 - -
as Trustee for Caduceus Capital Trust
767 Third Avenue, 6th Floor
New York, NY 10017
</TABLE>
- -------------------------
* Less than 1%
(1) Includes warrants to purchase 271,160 shares of common stock at an
exercise price of $11.9375 per share, all of which are immediately
exercisable.
(2) Includes 76,960 shares of common stock beneficially owned by the Aries
Master Fund as of December 1, 1999.
(3) Includes 34,250 shares of common stock beneficially owned the Aries
Domestic Fund, L.P. as of December 1, 1999.
13.
<PAGE>
(4) Includes 1,120 shares of common stock beneficially owned by Aries
Domestic Fund II, L.P. as of December 1, 1999.
(5) Includes warrants to purchase 5,602 shares of common stock at an
exercise price of $8.925 per share, all of which are immediately
exercisable.
(6) Includes 462,910 shares of common stock beneficially owned by DVG
Deutsche Vermogensbildungsgesellschaft mbH as of December 1, 1999.
(7) Includes warrants to purchase 180,000 shares of common at an exercise
price of $11.15625 per share, all of which are immediately
exercisable.
(8) Includes 606,720 shares of common stock beneficially owned by
Forsakringsbolaget SPP Omsesidigt as of December 1, 1999.
(9) Includes 16,840 shares of common stock beneficially owned by Charles
Johnston as of December 1, 1999.
(10) Includes warrants to purchase 7,842 shares of common stock at an
exercise price of $8.925 per share, all of which are immediately
exercisable. Also includes warrants to purchase 32,390 shares of common
stock at an exercise price of $9.725 per share, all of which are
immediately exercisable and warrants to purchase 200,000 shares of
common stock at an exercise price of $13.00 per share, 75% of which are
immediately exercisable, and 25% of which will become exercisable on
December 6, 1999.
(11) Includes 699,100 shares of common stock beneficially owned by
Livforsahringsahtiebolaget Skandia (publ) as of December 1, 1999.
(12) Includes 28,910 shares of common stock beneficially owned by Roston
Enterprises as of December 1, 1999.
(13) Includes warrants to purchase 90,000 shares of common at an exercise
price of $11.15625 per share, all of which are immediately exercisable.
(14) Includes 465,826 shares of common stock beneficially owned by SEB
Lakemedel och Bioteknikfond as of December 1, 1999.
(15) Includes 18,630 shares of common stock beneficially owned by SEB Lux
(F) Lakemedel och Bioteknikfond as of December 1, 1999.
(16) Includes warrants to purchase 90,000 shares of common at an exercise
price of $11.15625 per share, all of which are immediately exercisable.
(17) Includes 33,690 shares of common stock beneficially owned by Wechsler &
Co., Inc. as of December 1, 1999.
(18) Includes 17,340 shares of common stock beneficially owned by the Wendt
Family Revocable Trust as of December 1, 1999 and warrants to purchase
1,000 shares of common stock, all of which are immediately exercisable.
14.
<PAGE>
PLAN OF DISTRIBUTION
We are registering the shares on behalf of the selling stockholders or
their respective pledgees, donees, transferees or other successors in interest.
All or part of the shares may be offered by the selling stockholders from time
to time in transactions on the American Stock Exchange, or such other exchange
on which the common stock may from time to time be trading, in privately
negotiated transactions, through the writing of options on the shares or a
combination of such methods of sale, at fixed prices that may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. The methods by which the
shares may be sold or distributed may include, but not be limited to, the
following:
- purchases by a broker or dealer as principal and resale by such broker
or dealer for its account;
- an exchange distribution in accordance with the rules of such
exchange;
- ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
- privately negotiated transactions;
- a cross or block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent, but may position and resell a
portion of the block as principal to facilitate the transaction;
- short sales, short sales against the box, puts and calls and other
transactions in our securities or derivatives thereof, in connection
with which the selling stockholders may sell and deliver the shares;
- short sales or borrowings, returns and reborrowings of the shares
pursuant to stock loan agreements to settle short sales;
- delivery in connection with the issuance of securities by issuers,
other than us, that are exchangeable for (whether optional or
mandatory), or payable in, such shares (whether such securities are
listed on a national securities exchange or otherwise) or pursuant to
which such shares may be distributed; and
- a combination of such methods of sale or distribution.
The selling stockholders may also sell such shares in accordance with
Rule 144 under the Securities Act.
In effecting sales, brokers or dealers engaged by the selling
stockholders may arrange for other brokers or dealers to participate. Brokers or
dealers may receive commissions or discounts from the selling stockholders or
from the purchasers in amounts to be negotiated.
This prospectus may also be used by donees of the selling stockholders
or other persons acquiring shares, including brokers who borrow the shares to
settle short sales of shares of common stock, and who wish to offer and sell
such shares under circumstances requiring or making desirable its use. From time
to time the selling stockholders may pledge its shares pursuant to the margin
provisions of its respective customer agreements with respective brokers or
otherwise. Upon a default by the selling stockholders, the broker or pledgee may
offer and sell the pledged shares from time to time.
The selling stockholders and any broker-dealers who act in connection
with the sale of shares hereunder may be deemed to be "underwriters" as that
term is defined in the Securities Act, and any commissions received by them and
any profit on the resale of the shares as principal might be deemed to be
underwriting discounts and commissions under the Securities Act. In addition, if
a selling stockholder is deemed to be an underwriter, the anti-manipulative
provisions of Regulation M promulgated under the Exchange Act may apply to its
sales.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling stockholders will bear the brokerage
commissions and similar selling expenses, if any, attributable to the sale of
their shares.
15.
<PAGE>
LEGAL MATTERS
The validity of the shares of common stock offered hereby has been
passed upon for us by Arnold & Porter, Washington, D.C.
EXPERTS
The financial statements of Maxim Pharmaceuticals, Inc. as of September
30, 1999 and 1998, and for each of the years in the three-year period ended
September 30, 1999, and for the period from inception (October 23, 1989) through
September 30, 1999, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
16.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses payable by the
Company in connection with the sale of the shares of common stock being
registered. All amounts shown are estimates except for the SEC registration fee.
<TABLE>
<S> <C>
SEC Registration Fee $12,866
Legal Fees and expenses $10,000
Blue sky qualification fees and expenses $1,000
Accounting fees and expenses $3,000
Printing and engraving $10,000
Miscellaneous $13,134
-----------
Total $50,000
===========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws provide that the Company will indemnify its
directors and executive officers and may indemnify its other officers, employees
and other agents to the fullest extent permitted by Delaware law. The Company is
also empowered under its Bylaws to enter into indemnification contracts with its
directors and officers and to purchase insurance on behalf of any person whom it
is required or permitted to indemnify. Pursuant to this provision, the Company
has entered into indemnity agreements with each of its directors and officers
and currently maintains directors and officers insurance coverage.
In addition, the Company's Certificate of Incorporation provides that
to the fullest extent permitted by Delaware law, the Company's directors will
not be liable for monetary damages for breach of the directors' fiduciary duty
of care to the Company and its stockholders. This provision in the Certificate
of Incorporation does not eliminate the duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under Delaware law. Each director
will continue to be subject to liability for breach of the director's duty of
loyalty to the Company or its stockholders, for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, for any
transaction from which the director derived an improper personal benefit, and
for unlawful payments of dividends or unlawful stock purchase or redemption.
This provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation of Registrant. (1)
3.2 Certificate of Amendment of Amended and Restated Certificate of
Incorporation. (13)
3.3 Certificate of Designations, Preferences and Relative, Participating,
Optional and Other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions Thereof of Series A
Convertible Preferred Stock. (13)
3.4 Certificate of Designations, Preferences and Relative, Participating,
Optional and Other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions Thereof of Series B
Convertible Preferred Stock. (15)
3.5 Bylaws of Registrant. (1)
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4.
4.2 Form of Common Stock Certificate. (1)
</TABLE>
II-1
<PAGE>
<TABLE>
<S> <C>
5.1 Opinion of Arnold & Porter.
10.1 Form of Indemnification Agreement for directors and officers of the
Registrant. (1)
10.2 Form of Representative's Warrant Agreement between the Company and
National Securities Corporation, as representative of the several
Underwriters (the "Representative"), including form of Representative's
Warrant Certificate. (1)
10.3 Form of Warrant Agreement between the Company, the Representative and
American Stock Transfer & Trust Company, including form of Warrant
Certificate. (1)
10.4 Option to Buy Technology and Rights Agreement, dated March 30, 1993,
between the Registrant and Estero Anstalt. (1)(2)
10.5 Security Agreement, dated July 27,1993, between the Registrant and
Estero Anstalt. (1)(2)
10.6 Exclusive License Agreement, dated June 14, 1995, among the Registrant,
Jan Holmgren, M.D., Ph.D., Cecil Czerkinsky, Duotol AB and Triotol Ltd.
(1)(2)
10.7 Option and License Agreement, dated May 19, 1993, among the Registrant,
Vitec AB and SBL Vaccin AB, as amended. (1)(2)
10.8 License Agreement dated January 14, 1994, among the Registrant, Vitec
AB and SBL Vaccin, AB, as amended. (1)(2)
10.9 Agreement, dated December 2, 1995, among the Registrant, Syntello
Vaccine Development AB and Estero Anstalt. (1)(2)
10.10 Agreement, dated April 23, 1996, among the Registrant, Anders Vahlne,
M.D., Ph.D. and Syntello Vaccine Development AB. (1)(2)
10.11 Letter Agreement, dated February 15, 1996, between the Registrant and
Burrill & Craves, Inc.(1)
10.12 Lease dated November 1, 1996 between DM Spectrum LLC, a California
limited liability company, as Landlord and the Registrant for 3099
Science Park Road, Suite 150, San Diego, California 92121. (3)
10.13 Stock Purchase Agreement, dated as of July 5, 1996, by and between Dr.
Anders Vahlne and the Registrant. (1)
10.14 Amended and Restated 1993 Long-Term Incentive Plan and forms of stock
option agreements. (4)
10.15 Employment Agreement dated October 1, 1999 between the Registrant and
Kurt R. Gehlsen. (14)
10.16 Employment Agreement dated October 1, 1999 between the Registrant and
Dale A. Sander. (14)
10.17 Employment Agreement dated October 1, 1999 between the Registrant and
Larry G. Stambaugh.(14)
10.18 Loan and Security Agreement between the Registrant and Silicon Valley
Bank. (5)
10.19 Financial Advisory Services Agreement between the Registrant and Rodman
& Renshaw, Inc. dated September 17, 1997.(6)
10.20 Lease dated January 13, 1998 between British Pacific Properties
Corporation, a California Corporation, as Landlord, and the Registrant.
(7)
10.21 Amendment to Loan and Security Agreement dated March 16, 1998 between
the Registrant and Silicon Valley Bank. (8)
10.22 Lease dated July 2, 1998 between British Pacific Properties, a
California Corporation, as Landlord, and the Registrant. (9)
10.23 Employment Agreement dated October 1, 1999 between the Registrant and
Geoffrey B. Altman. (14)
10.24 Amendment to Loan and Security Agreement dated September 1, 1998
between the Registrant and Silicon Valley Bank. (10)
10.25 License Agreement dated November 6, 1998 among the Registrant,
Professional Pharmaceutical, Inc., Bruce A. Jack, D.D.S. and B. Thomas
White, R.PH. (11)
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C>
10.26 Series A Convertible Preferred Stock Purchase Agreement, dated July 20,
1999, between the Registrant and certain purchasers of Registrant's
preferred stock. (13)
10.27 Series A Convertible Preferred Stock Purchase Agreement, dated July 20,
1999 between the Registrant and Alfred Berg. (13)
10.28 Secured Promissory Note dated April 7, 1999 between Larry G. Stambaugh
and the Registrant. (12)
10.29 Secured Promissory Note dated April 14, 1999 between Larry G. Stambaugh
and the Registrant. (12)
10.30 Secured Promissory Note dated April 7, 1999 between Kurt R. Gehlsen and
the Registrant. (12)
10.31 Secured Promissory Note dated April 7, 1999 between Dale A. Sander and
the Registrant. (12)
10.32 Common Stock Purchase Warrant, No.#99AR-1, to purchase 200,000 shares
of the Registrant's common stock, issued to The Kriegsman Group on
March 3, 1999. (13)
10.33 Common Stock Purchase Warrant, No.#99PA-1, to purchase 32,390 shares of
the Registrant's common stock, issued to The Kriegsman Group on July
26, 1999. (13)
10.34 Common Stock Purchase Warrant to purchase 300,000 shares of the
Registrant's common stock issued to RGC International Investors, LDC on
July 20, 1999. (13)
10.35 Series B Convertible Preferred Stock Purchase Agreement, dated November
10, 1999, between the Registrant and certain purchasers of Registrant's
preferred stock. (15)
10.36 Form of Common Stock Purchase Warrant issued to AP Asset Management AG,
The Kriegsman Group and Cappello Partners, LLC. (15)
10.37 Form of Common Stock Purchase Warrant issued to Evolution Capital,
Wayne Philip Rothbaum and Mitchell Silber. (14)
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Arnold & Porter. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4.
</TABLE>
- -------
(1) Previously filed together with Registrant's Registration Statement on Form
SB-2 (File No. 333-4854-LA) or amendments thereto and incorporated herein
by reference.
(2) Certain confidential portions deleted pursuant to Order Granting
Application Under the Securities Act of 1933 and Rule 406 thereunder
respecting confidential treatment.
(3) Previously filed together with Registrant's Annual Report on Form 10-K
(File No. 1-4430) dated September 30, 1996 and incorporated herein by
reference.
(4) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated December 31, 1996 and incorporated herein by
reference.
(5) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated March 31, 1997 and incorporated herein by
reference.
(6) Previously filed together with Registrant's Registration Statement on Form
S-1 (File No. 333-35895) dated September 18, 1997 and incorporated herein
by reference.
(7) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated December 31, 1997 and incorporated herein by
reference.
(8) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated March 31, 1998 and incorporated herein by
reference.
(9) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated June 30, 1998 and incorporated herein by reference.
II-3
<PAGE>
(10) Previously filed together with the Registrant's Annual Report on Form
10-K/A (File No. 1-4430) dated September 30, 1998 and incorporated herein
by reference.
(11) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated December 31, 1998 and incorporated herein by
reference.
(12) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated June 30, 1999 and incorporated herein by reference.
(13) Previously filed together with Registration Statement on Form S-3 (File No.
333-84711) or amendments thereto and incorporated herein by reference.
(14) Previously filed together with the Registrant's Annual Report on Form 10-K
(File No. 1-4430) dated September 30, 1999 and incorporated herein by
reference.
(15) Previously filed together with Registration Statement on Form S-3 (File No.
333-91923) dated December 1, 1999 and incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification by us for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Maxim Pharmaceuticals, Inc. pursuant to the provisions referenced above or
otherwise, we have been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended, and is, therefore unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by us of
expenses incurred or paid by a director, officer or controlling person of Maxim
Pharmaceuticals, Inc. in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, we will, unless in
the opinion of our counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by us is against public policy as expressed in the Securities
Act of 1933, as amended, and will be governed by the final adjudication of such
issue.
We hereby undertake:
(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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) 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 (A)(1)(i) and (A)(1)(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 with or furnished to the
II-4
<PAGE>
Securities and Exchange Commission by the Registrant pursuant to section 13 or
section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
We hereby undertake that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 the 7th day of January, 2000.
MAXIM PHARMACEUTICALS, INC.
By: /s/ DALE A. SANDER
-----------------------
Dale A. Sander
Vice President, Finance
Chief Financial Officer
II-6
<PAGE>
Pursuant to the requirements of the Securities Exchange Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
* Chairman of the Board, January 7, 2000
- ----------------------------------------------------- President and Chief Executive Officer
Larry G. Stambaugh (PRINCIPAL EXECUTIVE OFFICER)
/s/ DALE A. SANDER Vice President, Finance, January 7, 2000
- ----------------------------------------------------- Chief Financial Officer and Secretary
Dale A. Sander (PRINCIPAL FINANCIAL
AND ACCOUNTING OFFICER)
* Director January 7, 2000
- -----------------------------------------------------
Colin B. Bier, Ph.D.
* Director January 7, 2000
- -----------------------------------------------------
Gary E. Frashier
* Director January 7, 2000
- -----------------------------------------------------
Theodor H. Heinrichs
* Director January 7, 2000
- -----------------------------------------------------
Per-Olof Martensson
* Director January 7, 2000
- -----------------------------------------------------
F. Duwaine Townsen
*BY /s/ DALE A. SANDER
------------------------
Dale A. Sander
Attorney-in-Fact
</TABLE>
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
3.6 Amended and Restated Certificate of Incorporation of
Registrant. (1)
3.7 Certificate of Amendment of Amended and Restated Certificate
of Incorporation. (13)
3.8 Certificate of Designations, Preferences and Relative,
Participating, Optional and Other Special Rights of Preferred
Stock and Qualifications, Limitations and Restrictions Thereof
of Series A Convertible Preferred Stock. (13)
3.9 Certificate of Designations, Preferences and Relative,
Participating, Optional and Other Special Rights of Preferred
Stock and Qualifications, Limitations and Restrictions Thereof
of Series B Convertible Preferred Stock. (15)
3.10 Bylaws of Registrant. (1)
4.1 Reference is made to Exhibits 3.1, 3.2, 3.3 and 3.4.
4.2 Form of Common Stock Certificate. (1)
5.1 Opinion of Arnold & Porter.
10.1 Form of Indemnification Agreement for directors and officers
of the Registrant. (1)
10.2 Form of Representative's Warrant Agreement between the Company
and National Securities Corporation, as representative of the
several Underwriters (the "Representative"), including form of
Representative's Warrant Certificate. (1)
10.3 Form of Warrant Agreement between the Company, the
Representative and American Stock Transfer & Trust Company,
including form of Warrant Certificate. (1)
10.4 Option to Buy Technology and Rights Agreement, dated March 30,
1993, between the Registrant and Estero Anstalt. (1)(2)
10.5 Security Agreement, dated July 27,1993, between the Registrant
and Estero Anstalt. (1)(2)
10.6 Exclusive License Agreement, dated June 14, 1995, among the
Registrant, Jan Holmgren, M.D., Ph.D., Cecil Czerkinsky,
Duotol AB and Triotol Ltd. (1)(2)
10.7 Option and License Agreement, dated May 19, 1993, among the
Registrant, Vitec AB and SBL Vaccin AB, as amended. (1)(2)
10.8 License Agreement dated January 14, 1994, among the
Registrant, Vitec AB and SBL Vaccin, AB, as amended. (1)(2)
10.9 Agreement, dated December 2, 1995, among the Registrant,
Syntello Vaccine Development AB and Estero Anstalt. (1)(2)
10.10 Agreement, dated April 23, 1996, among the Registrant, Anders
Vahlne, M.D., Ph.D. and Syntello Vaccine Development AB.
(1)(2)
10.11 Letter Agreement, dated February 15, 1996, between the
Registrant and Burrill & Craves, Inc.(1)
10.12 Lease dated November 1, 1996 between DM Spectrum LLC, a
California limited liability company, as Landlord and the
Registrant for 3099 Science Park Road, Suite 150, San Diego,
California 92121. (3)
10.13 Stock Purchase Agreement, dated as of July 5, 1996, by and
between Dr. Anders Vahlne and the Registrant. (1)
10.14 Amended and Restated 1993 Long-Term Incentive Plan and forms
of stock option agreements. (4)
10.15 Employment Agreement dated October 1, 1999 between the
Registrant and Kurt R. Gehlsen. (14)
10.16 Employment Agreement dated October 1, 1999 between the
Registrant and Dale A. Sander. (14)
10.17 Employment Agreement dated October 1, 1999 between the
Registrant and Larry G. Stambaugh. (14)
10.18 Loan and Security Agreement between the Registrant and Silicon
Valley Bank. (5)
</TABLE>
<PAGE>
<TABLE>
<S> <C>
10.19 Financial Advisory Services Agreement between the Registrant
and Rodman & Renshaw, Inc. dated September 17, 1997.(6)
10.20 Lease dated January 13, 1998 between British Pacific
Properties Corporation, a California Corporation, as Landlord,
and the Registrant. (7)
10.21 Amendment to Loan and Security Agreement dated March 16, 1998
between the Registrant and Silicon Valley Bank. (8)
10.22 Lease dated July 2, 1998 between British Pacific Properties, a
California Corporation, as Landlord, and the Registrant. (9)
10.23 Employment Agreement dated October 1, 1999 between the
Registrant and Geoffrey B. Altman. (14)
10.24 Amendment to Loan and Security Agreement dated September 1,
1998 between the Registrant and Silicon Valley Bank. (10)
10.25 License Agreement dated November 6, 1998 among the Registrant,
Professional Pharmaceutical, Inc., Bruce A. Jack, D.D.S. and
B. Thomas White, R.PH. (11)
10.26 Series A Convertible Preferred Stock Purchase Agreement, dated
July 20, 1999, between the Registrant and certain purchasers
of Registrant's preferred stock. (13)
10.27 Series A Convertible Preferred Stock Purchase Agreement, dated
July 20, 1999 between the Registrant and Alfred Berg. (13)
10.28 Secured Promissory Note dated April 7, 1999 between Larry G.
Stambaugh and the Registrant. (12)
10.29 Secured Promissory Note dated April 14, 1999 between Larry G.
Stambaugh and the Registrant. (12)
10.30 Secured Promissory Note dated April 7, 1999 between Kurt R.
Gehlsen and the Registrant. (12)
10.31 Secured Promissory Note dated April 7, 1999 between Dale A.
Sander and the Registrant. (12)
10.32 Common Stock Purchase Warrant, No.#99AR-1, to purchase 200,000
shares of the Registrant's common stock, issued to The
Kriegsman Group on March 3, 1999. (13)
10.33 Common Stock Purchase Warrant, No.#99PA-1, to purchase 32,390
shares of the Registrant's common stock, issued to The
Kriegsman Group on July 26, 1999. (13)
10.34 Common Stock Purchase Warrant to purchase 300,000 shares of
the Registrant's common stock issued to RGC International
Investors, LDC on July 20, 1999. (13)
10.35 Series B Convertible Preferred Stock Purchase Agreement, dated
November 10, 1999, between the Registrant and certain
purchasers of Registrant's preferred stock. (15)
10.36 Form of Common Stock Purchase Warrant issued to AP Asset
Management AG, The Kriegsman Group and Cappello Partners, LLC.
(15)
10.37 Form of Common Stock Purchase Warrant issued to Evolution
Capital, Wayne Philip Rothbaum and Mitchell Silber. (14)
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Arnold & Porter. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4.
</TABLE>
- -------
(1) Previously filed together with Registrant's Registration Statement on Form
SB-2 (File No. 333-4854-LA) or amendments thereto and incorporated herein
by reference.
(2) Certain confidential portions deleted pursuant to Order Granting
Application Under the Securities Act of 1933 and Rule 406 thereunder
respecting confidential treatment.
(3) Previously filed together with Registrant's Annual Report on Form 10-K
(File No. 1-4430) dated September 30, 1996 and incorporated herein by
reference.
(4) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated December 31, 1996 and incorporated herein by
reference.
(5) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated March 31, 1997 and incorporated herein by
reference.
(7) Previously filed together with Registrant's Registration Statement on Form
S-1 (File No. 333-35895) dated September 18, 1997 and incorporated herein
by reference.
(7) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated December 31, 1997 and incorporated herein by
reference.
(11) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated March 31, 1998 and incorporated herein by
reference.
(12) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated June 30, 1998 and incorporated herein by reference.
(13) Previously filed together with the Registrant's Annual Report on Form
10-K/A (File No. 1-4430) dated September 30, 1998 and incorporated herein
by reference.
(11) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated December 31, 1998 and incorporated herein by
reference.
(12) Previously filed together with Registrant's Quarterly Report on Form 10-Q
(File No. 1-4430) dated June 30, 1999 and incorporated herein by reference.
(13) Previously filed together with Registration Statement on Form S-3 (File No.
333-84711) or amendments thereto and incorporated herein by reference.
(14) Previously filed together with the Registrant's Annual Report on Form 10-K
(File No. 1-4430) dated September 30, 1999 and incorporated herein by
reference.
(15) Previously filed together with Registration Statement on Form S-3 (File No.
333-91923) dated December 1, 1999 and incorporated herein by reference.
<PAGE>
Exhibit 5.1
[Letterhead of Arnold & Porter]
January 6, 2000
Maxim Pharmaceuticals, Inc.
8899 University Center Lane
Suite 400
San Diego, California 92122
Re: Maxim Pharmaceuticals, Inc.
Registration Statement on Form S-3
File No. 333-91923
Ladies and Gentlemen::
We have acted as special counsel to Maxim Pharmaceuticals, Inc., a
Delaware corporation ("Company"), in connection with a Registration Statement on
Form S-3, as amended by Pre-Effective Amendment No. 1 thereto (the "Registration
Statement"), relating to the proposed offer and sale of up to 3,679,805 shares
of the Company's common stock, $.001 par value ("Common Stock"), by the selling
stockholders identified therein.
In connection with rendering the opinions set forth in this letter, we
have examined and relied upon the Registration Statement, the Company's
Certificate of Incorporation, as amended, the Bylaws of the Company, resolutions
of the Board of Directors of the Company, the Certificate of Designations,
Preferences and Relative, Participating, Optional and Other Special Rights of
Preferred Stock and Qualifications, Limitations and Restrictions Thereof of
Series B Convertible Preferred Stock, filed with the Delaware Secretary of State
on November 3, 1999, certain warrants issued by the Company, and the originals
or copies of such records, documents, certificates, memoranda and other
instruments as in our judgment are necessary or appropriate to enable us to
render the opinions expressed below.
The opinions set forth herein are subject to the following
qualifications, which are in addition to any other qualifications contained
herein:
(i) We have assumed without verification the genuineness of all
signatures on all documents, the authority of the parties (other than the
Company) executing such documents, the authenticity of all documents submitted
to us as originals, and the
<PAGE>
Maxim Pharmaceuticals, Inc.
January 6, 2000
Page 2
conformity to original documents of all documents submitted to us as copies.
(ii) The opinions set forth herein are based on existing laws,
ordinances, rules, regulations, judicial and administrative decisions as they
presently have been interpreted, and we can give no assurance that our opinions
would not be different after any change in any of the foregoing occurring after
the date hereof.
(iii) We have assumed without verification that, with respect to the
minutes of any meetings of the Board of Directors or any committees thereof of
the Company that we have examined, due notice of the meetings was given or duly
waived, the minutes accurately and completely reflect all actions taken at the
meetings and a quorum was present and acting throughout the meetings.
(iv) We have assumed without verification the accuracy and completeness
of all corporate records made available to us by the Company.
(v) We express no opinion as to the effect or application of any laws
or regulations other than the internal laws of the State of Delaware. As to
matters governed by the laws specified in the 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 assumption that there will be no
material changes in the documents we have examined and the matters investigated
referred to above, we are of the opinion that 3,656,784 shares, when issued upon
conversion of the Series B Convertible Preferred Stock or upon exercise of the
warrants, in each case in exchange for legal consideration of not less that
$.001 per share, will be validly issued, fully paid and nonassessable under the
Delaware General Corporation Law as in effect on this date.
Also based on the foregoing and subject to the qualifications set forth
in the preceding paragraphs, we are of the opinion that the remaining 23,021
shares of Common Stock included in the Registration Statement are validly
issued, fully paid and nonassessable under the Delaware General Corporation Law
as in effect on this date.
This letter does not address any matters other than those expressly
addressed herein. This letter is given for your sole benefit and use. No one
else is entitled to rely hereupon. This letter speaks only as of the date
hereof. We undertake no responsibility
<PAGE>
Maxim Pharmaceuticals, Inc.
January 6, 2000
Page 3
to update or supplement it after such date.
We hereby consent to your filing of this opinion as an exhibit to the
Registration Statement, and to reference to our firm under the caption "Legal
Opinion" contained in the Prospectus included therein. In giving such consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act.
Very truly yours,
/s/ ARNOLD & PORTER
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Maxim Pharmaceuticals, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the Prospectus.
KPMG LLP
San Diego, California
January 6, 2000
