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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM 10-Q
[ x ] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the Quarter Ended March 31, 2000
or
[ ] Transition report pursuant to Section 13 or 15(d) of Securities
Exchange Act of 1934
Commission file number 1-14430
MAXIM PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware 87-0279983
___________________________________________________________________
(State of incorporation) (I.R.S. Employer Identification No.)
8899 University Center Lane, Suite 400, San Diego, CA 92122
___________________________________________________________________
(Address of principal executive offices) (Zip Code)
(858) 453-4040
___________________________________________________________________
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes X No ____
As of May 12, 2000, the registrant had 21,020,552 shares of Common Stock, $.001
par value, outstanding.
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MAXIM PHARMACEUTICALS, INC.
(A Development Stage Company)
INDEX
PART I - FINANCIAL INFORMATION PAGE
Item 1. Financial Statements
Balance Sheets -
March 31, 2000 (unaudited) and September 30, 1999 .........1
Statements of Operations (unaudited) -
Three Months and Six Months Ended March 31, 2000 and 1999
and from Inception (October 23, 1989) to
March 31, 2000.............................................2
Statements of Cash Flows (unaudited)
Six Months Ended March 31, 2000 and 1999
and from Inception (October 23, 1989) to
March 31, 2000.............................................3
Notes to Financial Statements..............................4
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations..............6
Item 3. Quantitative and Qualitative Disclosures About
Market Risk................................................8
PART II - OTHER INFORMATION
Item 2. Changes in Securities and Use of Proceeds..................9
Item 4. Submission of Matters to a Vote of Security Holders........9
Item 6. Exhibits and Reports on Form 8-K...........................10
SIGNATURE ...........................................................11
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BALANCE SHEETS
MAXIM PHARMACEUTICALS, INC. (A DEVELOPMENT STAGE COMPANY)
<TABLE>
<CAPTION>
March 31, 2000 September 30, 1999
------------------ ------------------
(Unaudited)
<S> <C> <C>>
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 132,275,576 $ 6,543,977
Short-term investments in marketable securities 72,598,113 11,398,363
Accrued interest and other current assets 4,031,556 2,800,611
------------------ ------------------
Total current assets 208,905,245 20,742,951
Patents and licenses, net 2,046,380 2,002,349
Property and equipment, net 1,339,127 1,473,807
Deposits and other assets 232,749 296,234
------------------ ------------------
Total assets $ 212,523,501 $ 24,515,341
================== ==================
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 13,160,197 $ 8,090,832
Accrued expenses 4,080,349 3,630,306
Accrued dividends - 482,844
Note payable 26,962 79,129
Current portion of long-term debt 51,249 480,640
------------------ ------------------
Total current liabilities 17,318,757 12,763,751
Long-term debt, less current portion 77,799 908,380
STOCKHOLDERS' EQUITY:
Preferred stock, $.001 par value, 5,000,000 shares authorized:
Series A convertible preferred stock, $.001 par value; none and
206,874 shares issued and outstanding at March 31, 2000
and September 30, 1999, respectively - 207
Common stock, $.001 par value, 40,000,000 shares authorized;
20,943,303 and 10,205,697 shares issued and outstanding at
March 31, 2000 and September 30, 1999, respectively 20,944 10,206
Additional paid-in capital 297,312,623 92,818,050
Deficit accumulated during the development stage (101,991,959) (81,912,974)
Deferred compensation (1,471) (2,943)
Accumulated other comprehensive loss (213,192) (69,336)
------------------ ------------------
Total stockholders' equity 195,126,945 10,843,210
------------------ ------------------
Total liabilities and stockholders' equity $ 212,523,501 $ 24,515,341
================== ==================
</TABLE>
SEE NOTES TO FINANCIAL STATEMENTS
1
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STATEMENTS OF OPERATIONS (UNAUDITED)
MAXIM PHARMACEUTICALS, INC. (A DEVELOPMENT STAGE COMPANY)
<TABLE>
<CAPTION>
From Inception
(October 23, 1989)
Three Months Ended Six Months Ended Through
March 31 March 31 March 31,
2000 1999 2000 1999 2000
------------------- --------------- ------------------ --------------- ----------------
<S> <C> <C> <C> <C> <C>
Research and collaboration revenue $ 147,500 $ 95,000 $ 287,500 $ 183,000 $ 4,492,051
Operating expenses:
Research and development 9,732,472 8,649,746 18,783,338 17,428,759 90,922,124
Marketing and business
development 635,047 439,164 1,193,176 892,495 4,801,949
General and administrative 1,013,036 925,101 1,856,844 1,619,075 16,748,434
------------------ --------------- ------------------ --------------- -----------------
Total operating expenses 11,380,555 10,014,011 21,833,358 19,940,329 112,472,507
Other income (expense):
Investment income 1,201,976 271,847 1,505,915 700,667 5,991,285
Interest expense (18,434) (38,312) (49,305) (77,019) (2,265,833)
Other income (expense) - - 10,263 - (25,429)
Gain on sale of subsidiary - - - - 2,288,474
----------------- --------------- ---------------- --------------- -----------------
Total other income 1,183,542 233,535 1,466,873 623,648 5,988,497
----------------- --------------- ---------------- --------------- -----------------
Net loss before preferred stock (10,049,513) (9,685,476) (20,078,985) (19,133,681) (101,991,959)
dividends ================= =============== ================ =============== ================
Dividends on preferred stock 2,599,967 - 5,012,839 - 5,495,683
----------------- --------------- ---------------- --------------- ----------------
Net loss applicable to common stock $ (12,649,480) $ (9,685,476) $ (25,091,824) $ (19,133,681) $ (107,487,642)
================= =============== ================ =============== ================
Basic and diluted net loss per share of
common stock $ (0.77) $ (0.97) $ (1.80) $ (1.92)
================= =============== ================ ===============
Weighted average shares outstanding 16,506,555 10,007,096 13,940,063 9,954,425
================= =============== ================ ===============
</TABLE>
SEE NOTES TO FINANCIAL STATEMENTS
2
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STATEMENTS OF CASH FLOWS (UNAUDITED)
MAXIM PHARMACEUTICALS, INC. (A DEVELOPMENT STAGE COMPANY)
<TABLE>
<CAPTION> From Inception
Six Months Ended (October 23,1989)
March 31 Through
----------------------------- March 31,
2000 1999 2000
OPERATING ACTIVITIES: -------------- ------------- -------------
<S> <C> <C> <C>
Net loss $ (20,078,985) $ (19,133,681) $(101,991,959)
Adjustments to reconcile net loss to net cash
used in operating activities:
Depreciation and amortization 343,224 326,905 2,473,585
Amortization of premium on investments 117,522 137,255 652,807
Common stock and stock options issued as compensation 208,223 128,345 827,348
Stock contributions to 401(k) plan 42,655 32,309 141,747
Net book value of disposed assets 3,565 2,922 213,851
Loss on write-off of patents - - 406,580
Gain on sale of subsidiary - - (2,288,474)
Other - - (283,658)
Loss on write-off of purchased research
and development - - 2,646,166
Cumulative effect of reorganization - - 1,152,667
Changes in operating assets and liabilities:
Accrued interest and other current assets (1,230,945) (193,082) (3,444,069)
Deposits and other assets 63,485 (167,332) (775,552)
Accounts payable 5,069,365 1,821,939 13,160,196
Accrued expenses 450,043 633,928 4,101,559
------------ ------------ --------------------
Net cash used in operating activities (15,011,848) (16,410,492) (83,007,206)
INVESTING ACTIVITIES:
Purchases of marketable securities (67,519,128) (6,978,089) (149,758,162)
Sales and maturities of marketable securities 6,058,000 16,059,000 76,294,050
Additions to patents and licenses (151,485) (437,697) (3,376,447)
Purchases of property and equipment (104,655) (198,231) (3,068,496)
Cash acquired in acquisition of business - - 985,356
Proceeds from sale of diagnostic division - - 496,555
------------ ------------ -------------------
Net cash provided (used) by investing activities (61,717,268) 8,444,983 (78,427,144)
FINANCING ACTIVITIES:
Net proceeds from issuance of common stock 181,523,706 1,076,632 247,728,427
Net proceeds from issuance of preferred stock 22,551,508 - 41,298,009
Payment of preferred stock dividends (302,361) - (302,361)
Proceeds from issuance of notes payable and
long-term debt - 444,434 6,432,078
Payments on notes payable and long-term debt (1,312,138) (202,728) (5,098,511)
Proceeds from issuance of notes payable to
related parties - - 4,982,169
Payments on notes payable to related parties - - (1,329,885)
------------ ---------- ------------------
Net cash provided by financing activities 202,460,715 1,318,338 293,709,926
----------- ----------- ------------------
Net increase (decrease) in cash and cash equivalents 125,731,599 (6,647,171) 132,275,576
Cash and cash equivalents at beginning of period 6,543,977 11,217,429 -
------------ ------------ -----------------
Cash and cash equivalents at end of period $132,275,576 $ 4,570,258 $ 132,275,576
============ ============ ==================
</TABLE>
SEE NOTES TO FINANCIAL STATEMENTS.
3
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NOTES TO FINANCIAL STATEMENTS (UNAUDITED)
MAXIM PHARMACEUTICALS, INC. (A DEVELOPMENT STAGE COMPANY)
1. PRINCIPLES OF INTERIM PERIOD REPORTING
Maxim Pharmaceuticals, Inc. (the "Company") has not earned significant
revenues from planned principal operations. Accordingly, the Company's
activities have been accounted for as those of a "Development Stage
Enterprise" as set forth in Financial Accounting Standards Board Statement
No. 7 ("SFAS 7").
In the opinion of the Company, the unaudited financial statements contain all
of the adjustments, consisting only of normal recurring adjustments and
accruals, necessary to present fairly the financial position of the Company
as of March 31, 2000, and the results of operations for the three months and
six months ended March 31, 2000 and 1999 and from inception (October 23,
1989) to March 31, 2000. The results of operations for the three months and
six months ended March 31, 2000 are not necessarily indicative of the results
to be expected in subsequent periods or for the year as a whole. For futher
information, refer to the financial statements and footnotes thereto in our
Annual Report on Form 10-K for the year ended September 30, 1999.
2. CASH, CASH EQUIVALENTS AND SHORT-TERM INVESTMENTS IN MARKETABLE SECURITIES
Investments with original maturities of less than 90 days are considered to be
cash equivalents. All other investments are classified as short-term
investments which are deemed by management to be available-for-sale and are
reported at fair value with net unrealized gains or losses reported within
stockholders' equity.
3. TOTAL OTHER COMPREHENSIVE LOSS
Total other comprehensive loss for the three months and six months ended
March 31, 2000 was $12,801,524 and $25,235,680, respectively, and was
composed entirely of unrealized losses on available-for-sale securities.
Total other comprehensive loss for the same period of the prior year was
equal to net loss.
4. NET LOSS PER SHARE OF COMMON STOCK
Basic net loss per share of common stock is computed by dividing the net loss
after deduction for dividends on preferred stock by the weighted average
number of shares of common stock outstanding during the period. All common
equivalent shares from stock options and warrants, totaling 3,389,918 and
3,986,476 shares for the quarters ended March 31, 2000 and 1999,
respectively, are excluded from the calculation of diluted loss per share
because their effect is antidilutive. As a result, diluted net loss per share
of common stock is equal to basic net loss per share of common stock.
5. STOCKHOLDERS' EQUITY
COMMON STOCK OFFERING - On February 28, 2000 the Company completed a follow-on
public offering in which it sold 3,205,000 shares of common stock at a price
of $55.00 per share. The Company received net proceeds of approximately
$165,000,000 after underwriting discounts and other issuance cost.
PRIVATE PLACEMENT AND AUTOMATIC CONVERSION OF SERIES B PREFERRED - On November
10, 1999 the Company sold 267,664 shares of Series B Convertible Preferred
Stock ("Series B Preferred") in a private transaction at a price of $89.25
per share. The Company received net proceeds of approximately $22.5 million
after placement fees and other issuance costs. Each share of Series B
Preferred was convertible into 10 shares of the Company's common stock at a
price of $8.925 per share of common stock and had an annual dividend of 12%.
The Company had the right to convert the Series B Preferred into common stock
at any time subsequent to 90 days after issuance. On February 8, 2000 the
Company effected the automatic conversion of the Series B Preferred. The
conversion of the Series B Preferred resulted in the issuance of 3,012,180
shares of common stock, 335,540 of which related to the
4
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settlement of dividend and conversion obligations. The Company recorded
$2,998,117 in dividends over the life of the Series B Preferred. Of the total
Series B Preferred dividends, $3,423 were paid in cash, and the remainder
were paid through the issuance of common stock.
AUTOMATIC CONVERSION OF SERIES A PREFERRED - In July 1999 the Company sold
206,874 share of Series A Convertible Preferred Stock ("Series A Preferred")
in a private transaction at a price of $97.25 per share. Each share of Series
A Preferred was convertible into 10 shares of the Company's common stock at a
price of $9.725 per share of common stock and had an annual dividend of 12%.
The Company had the right to convert the Series A Preferred into common stock
at any time subsequent to 90 days after issuance. On November 15, 1999 the
Company effected the automatic conversion of the Series A Preferred. The
conversion of the Series A Preferred resulted in the issuance of 2,294,820
shares of common stock, 226,080 of which related to the settlement of
dividend and conversion obligations. The Company recorded $2,497,567 in
dividends over the life of the Series A Preferred, of which $2,014,722 was
recorded during the six months ended March 31, 2000. Of the total Series A
Preferred dividends, $298,938 were paid in cash, and the remainder were paid
through the issuance of common stock.
SHARES ISSUED UPON EXERCISE OF COMMON STOCK OPTIONS AND WARRANTS - During the
six months ended March 31, 2000, the Company issued 2,037,773 shares of
common stock upon the exercise of warrants and 163,033 shares of common stock
upon the exercise of options resulting in proceeds of $15,688,942 and
$1,005,933, respectively.
6. TERM LOANS
In February 2000, the Company repaid two bank term loans with outstanding
principal totaling approximately $1.1 million.
5
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MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
MAXIM PHARMACEUTICALS, INC. (A DEVELOPMENT STAGE COMPANY)
THIS MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS CONTAINS CERTAIN FORWARD-LOOKING STATEMENTS THAT INVOLVE RISKS AND
UNCERTAINTIES. SUCH FORWARD-LOOKING STATEMENTS INCLUDE STATEMENTS REGARDING CASH
REQUIREMENTS. FORWARD-LOOKING STATEMENTS DO NOT RELATE STRICTLY TO HISTORICAL OR
CURRENT FACTS AND ARE IDENTIFIED BY WORDS SUCH AS "ANTICIPATE," "EXPECT,"
"INTEND," "PLAN," "BELIEVE," AND OTHER TERMS OF SIMILAR MEANING IN CONNECTION
WITH ANY DISCUSSION OF FUTURE OPERATING OR FINANCIAL PERFORMANCE. SUCH
STATEMENTS ARE ONLY PREDICTIONS, AND OUR ACTUAL RESULTS COULD DIFFER MATERIALLY
FROM THOSE ANTICIPATED OR PROJECTED IN SUCH FORWARD-LOOKING STATEMENTS. FACTORS
THAT COULD CAUSE OR CONTRIBUTE TO DIFFERENCES INCLUDE RISKS ASSOCIATED WITH
CLINICAL TRIALS AND PRODUCT DEVELOPMENT, REGULATORY APPROVAL AND GOVERNMENT
REGULATION OF OUR PRODUCTS, THE NEED FOR ADDITIONAL FUNDS AND THE UNCERTAINTY OF
ADDITIONAL FUNDING AND DEPENDENCE ON COLLABORATIVE PARTNERS. THESE FACTORS AND
OTHERS ARE MORE FULLY DESCRIBED IN THE FILINGS WITH THE SECURITIES AND EXCHANGE
COMMISSION. THE COMPANY WILL NOT UPDATE THESE FORWARD-LOOKING STATEMENTS,
WHETHER AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE.
RESULTS OF OPERATIONS FOR THE THREE MONTHS AND SIX MONTHS ENDED MARCH 31,
2000 AND 1999
RESEARCH AND COLLABORATION REVENUE - Research and collaboration revenue for the
quarter ended March 31, 2000 was $148,000, compared to $95,000 for the same
period in the prior year. Research revenue for the six-month period ended March
31, 2000 totaled $288,000, compared to $183,000. The revenue consists of
collaborative support related to our clinical trials, and the increase relates
to the expansion of such trials.
RESEARCH AND DEVELOPMENT EXPENSES - Research and development expenses for the
quarter ended March 31, 2000, were $9,732,000, an increase of $1,083,000, or
13%, over the same period in the prior year. Research and development
expenses relate primarily to three Phase III cancer clinical trials and four
Phase II clinical trials of MAXAMINE -Registered Trademark- (histamine
dihydrochloride). The current year increase in expense relates to the
increased resources we employed to complete on a timely basis the U.S. Phase
III trial for the treatment of advanced malignant melanoma, our most advanced
clinical trial. The remaining increase related to our efforts to complete
other activities associated with the preparation of a New Drug Application
related to the advanced malignant melanoma clinical trial expected to be
filed with the Food and Drug Administration this year. In addition, the
current quarter includes efforts associated with two clinical trials
commenced in 1999, a Phase II clinical trial in hepatitis C and a Phase II
trial in advanced malignant melanoma. Costs associated with these trials
include clinical trial site and contract research organization costs, hiring
additional clinical and development personnel and other clinical costs.
For the six months ended March 31, 2000, research and development expenses were
$18,783,000, an increase of $1,355,000, or 8%, over the same period of the prior
year. The increase resulted primarily from the efforts related to the three
Phase III cancer clinical trials described above.
MARKETING AND BUSINESS DEVELOPMENT AND GENERAL AND ADMINISTRATIVE EXPENSES -
Marketing and business development expenses for the quarter ended March 31, 2000
were $635,000, an increase of $196,000, or 45%, over the same quarter of the
prior year. This increase was due to additional personnel and other resources
devoted to preparation for the potential market launch of MAXAMINE, including
market evaluations, sales launch planning and corporate partnering efforts. For
the quarter ended March 31, 2000, general and administrative expenses were
$1,013,000, an increase of $88,000, or 10%, over the same period in the prior
year due to general expenses associated with our expanded operations.
Marketing and business development expenses for the six-month period ended March
31, 2000 totaled $1,193,000, an increase of $301,000, or 34%, over the same
period of the prior year. General and administrative expenses for the six-month
period ended March 31, 2000 were $1,857,000, an increase of $238,000, or 15%
over the same period of the prior year. These increases resulted from the
expanded activities described above.
6
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OTHER INCOME (EXPENSE) - Investment income was $1,202,000 for the quarter ended
March 31, 2000, an increase of $930,000, or 342%, from the same period in the
prior year. This increase was a result of interest earned on the proceeds of the
follow-on public offering completed in February 2000 and the preferred stock
offering in November 1999. Interest expense for the quarter ended March 31, 2000
was $18,000, a decrease of $20,000, or 52%, from the same period of the prior
year. This decrease resulted from the February 2000 repayment of approximately
$1.1 million of bank notes payable.
Investment income totaled $1,506,000 for the six-month period ended March 31,
2000, compared to $701,000 for the same period of the prior year. The increase
of $805,000, or 115%, resulted from the investment income on the offering
proceeds described above. Interest expense for the six-month period ended March
31, 2000 totaled $49,000, a decrease of $28,000, or 36%, from the same period of
the prior year as a result of the repayment of debt described above.
NET LOSS - Net loss before preferred stock dividends for the quarter ended March
31, 2000 totaled $10,050,000, an increase of $365,000, or 4%, over the prior
year. The increase was due to the expansion of our research and development and
general corporate activities described above. Net loss attributable to common
stock for the quarter ended March 31, 2000 totaled $12,649,000, an increase of
$2,964,000, or 31%, over the same period in the prior year. The increase was
primarily the result of $2,600,000 in dividends associated with our Series B
preferred stock that was fully converted to common stock during the quarter.
Net loss before preferred stock dividends for the six months ended March 31,
2000 totaled $20,079,000, an increase of $945,000, or 5%, over the same period
of the prior year. Net loss attributable to common stock for the six months
ended March 31, 2000 totaled $25,092,000, an increase of $5,958,000, or 31%,
over the same period in the prior year. The increases are attributable to the
expansion of our research and development, general corporate activities and the
Series B preferred stock dividends.
During the six months ended March 31, 2000, we exercised our right to convert
our Series A and Series B preferred stock into common stock. As required in the
event of an automatic conversion, we paid the holders upon conversion, in cash
or additional shares of Series A or Series B preferred stock at the option of
the holder, an amount equal to the dividends that would have been paid had the
Series A or Series B preferred stock remained outstanding for one year after
issuance. We recorded $5,013,000 in dividends associated with the Series A and
Series B preferred stock during the six months ended March 31, 2000, of which
$4,494,000 related to the settlement of dividend obligations resulting from the
automatic conversion to common stock. Of the total Series A and Series B
preferred stock dividends recorded during the six months, $66,000 was paid in
cash, and the remainder was paid through the issuance of securities. No
preferred stock remains outstanding at March 31, 2000.
LIQUIDITY AND CAPITAL RESOURCES
As a development stage enterprise, we anticipate incurring substantial
additional losses over at least the next several years due to, among other
factors, the need to expend substantial amounts on our ongoing and planned
clinical trials, preparation for the planned market launch of MAXAMINE, other
research and development activities, and related marketing, business development
and general corporate expenses. We have financed our operations primarily
through the sale of our equity securities, including an initial public offering
in 1996, an international follow-on public offering in 1997, private offerings
of preferred stock in July and November 1999 and a follow-on public offering in
February 2000 that provided us with net proceeds of approximately $34 million
(including proceeds from the exercise of warrants), $35 million, $41 million and
$165 million, respectively.
As of March 31, 2000, we had cash, cash equivalents and investments totaling
approximately $205 million. For the six months ended March 31, 2000, net cash
used in our operating activities was approximately $15 million. Our cash
requirements may fluctuate in future periods as we conduct additional research
and development activities including clinical trials, other research and
development activities, and efforts associated with the commercial launch of any
products that are approved for sale by government regulatory bodies. Among the
activities that may
7
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result in an increase in cash requirements are the three Phase III cancer
clinical trials and four Phase II clinical trials of MAXAMINE currently
underway, and preparation for the planned market launch of MAXAMINE.
Our cash requirements may vary materially from those now planned because of the
results and scope of clinical trials and other research and development
activities, the time required to obtain regulatory approvals, the cost of
filing, prosecuting, defending and enforcing patent claims and other
intellectual property rights, our ability to establish marketing alliances and
collaborative arrangements and the cost of our internal marketing activities. As
a result of these factors, it is difficult to predict accurately the timing and
amount of our cash requirements.
We may pursue the issuance of additional equity securities, and to pursue
corporate marketing alliances and collaborative agreements, as required to meet
our cash requirements. The issuance of additional equity securities, if any,
could result in substantial dilution to our stockholders. There can be no
assurance that additional funding will be available on terms acceptable to us,
if at all. The failure to fund our capital requirements would have a material
adverse effect on our business, financial condition and results of operations.
We have never paid a cash dividend on our common stock and do not contemplate
the payment of cash dividends on our common stock in the foreseeable future.
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Our exposure to market risk is principally confined to our cash equivalents and
investments that have maturities of less than two years. We maintain a
non-trading investment portfolio of investment grade, liquid debt securities
that limits the amount of credit exposure to any one issue, issuer or type of
instrument. The securities in our investment portfolio are not leveraged, are
classified as available-for-sale and are therefore subject to interest rate
risk. We currently do not hedge interest rate exposure. A hypothetical 100 basis
point change in interest rates during the quarter ended March 31, 2000 would
have resulted in approximately a $228,000 change in net loss. We have not used
derivative financial instruments in our investment portfolio.
NEW ACCOUNTING STANDARD AND ACCOUNTING BULLETIN
In December 1999, the Securities and Exchange Commission ("SEC") issued Staff
Accounting Bulleting No. 101, "Revenue Recognition in Financial Statements"
("SAB No. 101"). SAB No. 101 summarizes certain of the SEC's staff's views in
applying generally accepted accounting principles to revenue recognition in
financial statements. SAB No. 101 provides that specific facts and circumstances
may result in nonrefundable fees received under collaborative agreements not
being recognized as revenue upon payment, but instead recognized as revenue over
future periods, which could extend beyond the initial contractual period. We do
not believe the adoption of SAB No. 101 will have a material impact on our
financial statements.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities" ("Statement No. 133"). Statement
No. 133, as amended by statement of Financial Accounting Standards No.
137, requires companies to recognize all derivatives as either assets or
liabilities with the instruments measured at fair value and is effective on
January 1, 2001. The accounting for changes in fair value gains and losses
depends on the intended use of the derivative and its resulting
designation. We do not believe the adoption of Statement No. 133 will
have a material impact on our financial statements.
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PART II-OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
(a) Effective February 29, 2000, the Company's Articles of Incorporation were
amended to increase from 35,000,000 to 40,000,000 the authorized shares of
Common Stock thereunder. The rights of the holders of such Common Stock were not
modified. In addition, the Company filed Certificates of Elimination with
respect to the Series A and Series B Preferred stock following the automatic
conversion of such stock in accordance with its terms.
(c) During the quarter ended March 31, 2000, the Company issued 5,666 shares of
common stock upon exercise of warrants at an exercise price of $3.00 per share.
The Company issued such shares in reliance on the exemption provided by Section
4(2) of the Securities Act of 1933, as amended.
(d) Of the net offering proceeds to the Company of $33,909,000, including
$18,220,000 received at the time of the initial public offering and $15,689,000
received upon subsequent exercises of Redeemable Warrants, through March 31,
2000, the following payments have been made:
<TABLE>
<CAPTION>
(A) (B)
<S> <C> <C>
Purchase and installation of $1,241,000
machinery and equipment
Repayment of indebtedness $289,000 $2,187,000
Interest earning bonds and securities -
Research and development expenses $24,859,000
Business development expenses $1,508,000
General and administrative $2,904,000
Intellectual property $921,000
</TABLE>
(A) Direct or indirect payments to directors, officers, general partners of the
issuer or their associates; to persons owning ten percent or more of any
class of equity securities of the issuer; and to affiliates of the issuer.
(B) Direct or indirect payments to others.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The Company's annual meeting of stockholders was held on February 25,
2000 (the "Annual Meeting").
(c) At the Annual Meeting, the stockholders considered and approved the
following proposals:
(i) Election of Directors. The stockholders voted to elect
Theodor Heinrichs and F. Duwaine Townsen as Directors
with 12,124,985 and 12,188,572 votes cast for the
nominees. A total of 233,497 and 169,910 shares were
withheld from the foregoing nominees, respectively.
(ii) Approval of Additional Shares for Issuance under the
1993 Long- Term Incentive Plan, as amended. The
stockholders approved an
9
<PAGE>
amendment to the 1993 Long-Term Incentive Plan, as
amended (the "Incentive Plan") to increase the
aggregate number of shares authorized for issuance
under the Incentive Plan from a total of 1,300,000
shares to 1,800,000 shares. This proposal received
12,118,226 votes in favor, 236,768 votes against and
3,488 abstentions.
(iii) Amendment of Certificate of Incorporation. The
stockholders approved an amendment to the Company's
Certificate of Incorporation to increase the number of
authorized shares of Common Stock from 35,000,000 shares
to 40,000,000 shares. This proposal received 12,156,090
votes in favor, 200,316 votes against and 2,076
abstentions.
(iv) Ratification of Appointment of KPMG LLP. The
stockholders ratified the selection of KPMG LLP as the
independent public accountants of the Company for the
fiscal year with 12,346,184 votes cast for ratification,
9,576 votes against ratification and 2,722 abstentions.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
3.1 Certificate of Amendment of Amended and
Restated Certificate of Incorporation.
3.2 Certificate of Elimination filed pursuant
to Section 151 of the General Corporation
Law of the State of Delaware.
10.1 Amended and Restated 1993 Long-Term
Incentive Plan as of December 28, 1999. *
27.1 Financial Data Schedule
- -----------------------------------------------------------------------
* Previously filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-8 (File No.333-34398) dated April 10, 2000 and
incorporated herein by reference.
10
<PAGE>
b.) REPORTS ON FORM 8-K
Date of Report Description of Exhibit Financial Statements Filed
February 25, 2000 Description of Capital Stock No
(Item 5)
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Maxim Pharmaceuticals, Inc.
Date: May 15, 2000 /s/ Dale A. Sander
-----------------------------------
Dale A. Sander
Chief Financial Officer
(Principal Financial and Accounting Officer
and Officer duly authorized to sign this
report on behalf of the registrant)
11
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
MAXIM PHARMACEUTICALS, INC.
MAXIM PHARMACEUTICALS, INC., a corporation organized and existing under
and by virtue of the General Corporation Law of the State of Delaware, hereby
certifies as follows:
1. The name of the corporation is Maxim Pharmaceuticals, Inc.
2. Maxim Pharmaceuticals, Inc. was originally incorporated on
September 24, 1954, under the name "Wilco Oil & Minerals, Corp."
3. This Certificate of Amendment amends certain provisions of the
Amended and Restated Certificate of Incorporation of the corporation and has
been duly adopted by the Board of Directors in accordance with the provisions of
Sections 141 and 242 of the General Corporation Law of the State of Delaware and
by the stockholders of the corporation in accordance with Section 242 of the
General Corporation Law of the State of Delaware.
4. Paragraph A of Article IV shall be amended to read in its
entirety as follows:
"A. This corporation is authorized to issue two classes of
stock to be designated, respectively, "Common Stock" and
"Preferred Stock." The total number of shares of all classes
of stock which the corporation shall have authority to issue
is Forty-Five Million (45,000,000) shares consisting of (a)
Forty Million (40,000,000) shares of Common Stock, each having
a par value of one tenth of one cent ($.001) and (b) Five
Million (5,000,000) shares of Preferred Stock, each having a
par value of one tenth of one cent ($0.001)."
IN WITNESS WHEREOF, Maxim Pharmaceuticals, Inc. has caused
this Certificate of Amendment to be signed by its President this 29th day of
February, 2000.
MAXIM PHARMACEUTICALS, INC.
By: /s/ LARRY G. STAMBAUGH
-------------------------------------
Larry G. Stambaugh,
President and Chief Executive Officer
Attest:
By: /s/ DALE A. SANDER
--------------------------
Dale A. Sander,
Secretary
<PAGE>
EXHIBIT 3.2
CERTIFICATE OF ELIMINATION
FILED PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW OF
THE STATE OF DELAWARE
Maxim Pharmaceuticals, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "Company"),
DOES HEREBY CERTIFY:
1. Attached hereto as Exhibit A is a true and complete copy of
the resolutions duly adopted by the Board of Directors of the Company on
February 25, 2000, relating to the issuance of Series A and Series B Convertible
Preferred Stock (the "Preferred Stock") and their respective Certificates of
Designations filed with the Secretary of State of the State of Delaware.
2. This Certificate of Elimination shall be effective upon its
filing.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
the 29 day of February, 2000.
By: /s/ DALE A. SANDER
-------------------------------
Name: Dale A. Sander
Title: Chief Financial Officer, Vice
President, Finance and
Secretary
<PAGE>
EXHIBIT A
RESOLUTIONS OF THE BOARD OF DIRECTORS OF
MAXIM PHARMACEUTICALS, INC. RELATING TO THE
STATUS OF THE SERIES A AND SERIES B CONVERTIBLE PREFERRED
STOCK
FEBRUARY 25, 2000
WHEREAS, the Board of Directors of Maxim Pharmaceuticals, Inc. (the
"Company") authorized the issuance of the Series A Convertible Preferred Stock
and Series B Convertible Preferred Stock (together, the "Preferred Stock")
having the terms set forth in the Certificate of Designations, Preferences and
Relative, Participating, Optional and Other Special Rights of Preferred Stock
and Qualifications, Limitations and Restrictions Thereof of Series A and Series
B Convertible Preferred Stock (the "Certificates") which were filed in the
office of the Secretary of State of the State of Delaware on July 23, 1999 and
November 3, 1999, respectively; and
WHEREAS, the Company has exercised its right to convert the Preferred
Stock into Common Stock in accordance with the terms of the Certificates;
NOW THEREFORE BE IT RESOLVED, that none of the shares of authorized
Series A Preferred Stock or Series B Preferred Stock remain outstanding;
FURTHER RESOLVED, that no additional shares of Series A Preferred Stock
or Series B Preferred Stock shall be issued pursuant to the Certificates;
FURTHER RESOLVED, that that the proper officers of the Company be, and
each of them hereby is, authorized, empowered and directed, on behalf of the
Company and in its name, to file a certificate with the Secretary of State of
the State of Delaware, which shall have the effect of eliminating all matters
set forth in the Certificates from the Company's Certificate of Incorporation;
FURTHER RESOLVED, that the shares of the Series A Preferred Stock and
the Series B Preferred Stock shall resume the status of authorized but unissued
shares of preferred stock;
<PAGE>
FURTHER RESOLVED, that the proper officers of the Company are
authorized to take such actions as they deem necessary and desirable for the
purposes of implementing the foregoing resolutions; and
FURTHER RESOLVED, that the proper officers of the Company for the
purposes of these resolutions are hereby declared to be the Chairman of the
Board, President and Chief Executive Officer; and the Chief Financial Officer,
Vice President, Finance and Secretary; that any action authorized to be taken by
the proper officers may be taken by any proper officer acting alone; and that
the Secretary is authorized to attest to, and affix the Company's seal on any
document.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE INTERIM
FINANCIAL STATEMENTS FOR THE PERIOD ENDED MARCH 31, 2000 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-2000
<PERIOD-START> OCT-01-1999
<PERIOD-END> MAR-31-2000
<CASH> 132,275,576
<SECURITIES> 72,598,113
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 208,905,245
<PP&E> 2,362,479
<DEPRECIATION> 1,023,352
<TOTAL-ASSETS> 212,523,501
<CURRENT-LIABILITIES> 17,318,757
<BONDS> 77,799
0
0
<COMMON> 20,944
<OTHER-SE> 195,106,001
<TOTAL-LIABILITY-AND-EQUITY> 212,523,501
<SALES> 0
<TOTAL-REVENUES> 287,500
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 18,783,388
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 49,305
<INCOME-PRETAX> 25,091,824
<INCOME-TAX> 0
<INCOME-CONTINUING> 25,091,824
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 25,091,824
<EPS-BASIC> (1.80)
<EPS-DILUTED> (1.80)
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