Exhibit 4.1


 


SECURITIES PURCHASE AGREEMENT


 


THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”),
dated as of September 22, 2003, is made by and between Maxim Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), and each investor whose
name appears on the signature pages hereof (each, an “Investor” and,
collectively, the “Investors”).


 


A.                                   The Company wishes
to sell to each Investor, and each Investor wishes to purchase from the
Company, (i) shares (collectively with the other shares to be purchased under
this Agreement, the “Shares”) of the Company’s common stock, par value
$0.001 per share (the “Common Stock”), and (ii) a warrant
substantially in the form attached hereto as Exhibit A (a “Warrant”
and, collectively with the other warrants to be purchased under this Agreement,
the “Warrants”) entitling the holder to purchase shares of Common Stock
(the “Warrant Shares”).  The Shares, the
Warrants and the Warrant Shares are collectively referred to herein as the “Securities”.


 


B.                                     In connection with
the purchase and sale of the Securities, the Company and each Investor will
enter into a registration rights agreement, in substantially the form attached
hereto as Exhibit B (the “Registration Rights Agreement”),
providing for the registration of the Shares and Warrant Shares for resale by
such Investor under the Securities Act of 1933, as amended (the “Securities
Act”).


 


In consideration of the mutual promises
contained herein, the parties agree as follows:


 


1.                                       Purchase and Sale of Shares and
Warrants.


 


1.1                                 Issuance and Sale.  Upon the terms and subject to the conditions
contained in this Agreement, the Company shall issue and sell to each Investor,
and each Investor shall purchase from the Company, (i) the number of Shares set
forth on the signature page hereof executed by such Investor and (ii) a Warrant
exercisable for five and one-half (5-1/2) years following the issuance thereof
into a number of Warrant Shares equal to thirty percent (30%) of the number of
Shares purchased by such Investor hereunder, at an Exercise Price (as defined
below) equal to one hundred and ten percent (110%) of the Market Price (as
defined below) on the Effective Date; provided, however, that, as
more specifically described in the Warrant, such Exercise Price shall be
greater than the Closing Bid Price (as defined below) on the Trading Day (as
defined below) immediately preceding the Effective Date.


 


1.2                                 Purchase Price.  The purchase price (the “Purchase Price”)
to be paid by an Investor for the Shares and Warrant to be purchased by it
hereunder shall be equal to (A) eighty percent (80%) of the Market Price (as
defined below) on the Effective Date times (B) the number of Shares
purchased by such Investor hereunder; provided, however, that in
no event shall the Purchase Price per Share be less than $5.50 or greater than
$5.75.


 

















 


1.3                                 Closing.  The purchase and sale of the Securities (the
“Closing”) will take place on September 23, 2003, subject to the
satisfaction (or waiver by the appropriate party) of all of the conditions to
Closing set forth in this Agreement or, subject to the last sentence of this
Section 1.3, on such other date as the Company shall determine and shall
provide written notice thereof to each Investor at least one Business Day prior
to such date (the date on which the Closing occurs being referred to herein as
the “Closing Date”). 
Notwithstanding the foregoing, this Agreement will terminate and neither
the Company nor any Investor will have any further obligation or liability
hereunder if the Closing Date does not occur on or before 5 p.m. (eastern time)
on September 26, 2003 (the “Termination Date”).


 


1.4                                 Authorization
Letter.   On or before the Closing
Date, each Investor shall (i) execute an Authorization Letter to Disburse Funds
substantially in the form attached hereto as Exhibit C (the “Authorization
Letter”) and (ii) deliver to Cooley Godward LLP (the “Escrow Agent”) an
amount equal to the Purchase Price required to be paid by such Investor by wire
transfer of immediately available funds to such account as the Escrow Agent
shall designate in writing prior to the Closing Date.


 


1.5                                 Delivery of Shares
and Warrants; Purchase Price.  At
the Closing, and subject to the satisfaction (or waiver) of the Closing
Conditions (as defined below), (i) the Company shall deliver to each
Investor (A) a certificate representing the number of Shares being purchased by
such Investor hereunder, and (B) the Warrant being purchased by such Investor
hereunder; and (ii) the Escrow Agent shall deliver to such accounts as are
designated by the Company, in accordance with the Authorization Letter, an
amount equal to the Purchase Price required to be paid by such Investor.  In the event that the Closing Conditions are
not satisfied in full on or before the Termination Date, the Escrow Agent will
return such Purchase Price to such Investor in accordance with the terms of the
Authorization Letter.


 


2.                                       Closing Conditions.


 


2.1                                 Conditions to the
Company’s Obligations at Closing. The Company’s obligations at the Closing,
including without limitation its obligation to issue and sell the Shares and
Warrants to the Investors, shall be subject to the following conditions, each
of which may be waived by the Company in its sole discretion:


 


(a)                                  the representations
and warranties made by each Investor in this Agreement shall be true and
correct in all material respects as of the Closing Date;


 


(b)                                 each Investor shall
have performed in all material respects the agreements and obligations required
to be performed by it under this Agreement, or any other Transaction Document
(as defined below) to which it is a party, on or before the Closing;


 


(c)                                  no proceeding shall
have been instituted that seeks to enjoin the transactions contemplated by this
Agreement and the other Transaction Documents;


 


(d)                                 the aggregate Purchase
Price delivered by the Investors to the Escrow Agent shall be at least
$20,000,000 (the “Minimum Investment Amount”); and


 


(e)                                  the Investors
investing not less than the Minimum Investment Amount


 


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shall have executed and delivered this Agreement on or before 5 p.m.
(eastern time) on September 23, 2003.


 


2.2                                 Conditions to each
Investor’s Obligations at Closing. 
Each Investor’s obligations at the Closing, including without limitation
its obligation to purchase the Shares and Warrants being purchased by it
hereunder, shall be subject to the following conditions, each of which may be
waived by such Investor in its sole discretion:


 


(a)                                  the representations
and warranties made by the Company in this Agreement shall be true and correct
in all material respects as of the Closing Date;


 


(b)                                 the Company shall have
performed in all material respects the agreements and obligations required to
be performed by it under this Agreement, or any other Transaction Document (as
defined below), on or before the Closing;


 


(c)                                  such Investor shall
have received (i) the opinion of Cooley
Godward LLP, counsel to the Company, dated the Closing Date and
reasonably acceptable to such Investor, with such qualifications and
assumptions as are customary for opinions of the type expressed; (ii) a
certificate, dated the Closing Date and signed by the Chief Executive Officer
or Chief Financial Officer of the Company, to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date, and that the Company has satisfied all
of the Closing Conditions (to the extent not otherwise waived by such Investor)
as required by the terms of this Agreement; and (iii) certified resolutions of
the Board of Directors of the Company (or a duly authorized committee thereof),
and such other documents and certificates as the Investor shall reasonably
request, regarding the due authorization by the Company of the execution and delivery
of this Agreement and the other Transaction Documents and the performance of
its obligations hereunder and thereunder;


 


(d)                                 the Company shall have
duly executed and delivered to such Investor the Registration Rights Agreement;


 


(e)                                  the aggregate Purchase
Price delivered by the Investors to the Escrow Agent shall be at least the
Minimum Investment Amount;


 


(f)                                    the Investors
investing not less than the Minimum Investment Amount shall have executed and
delivered this Agreement on or before 5 p.m. (eastern time) on
September 23, 2003; and


 


(g)                                 no proceeding shall
have been instituted that seeks to enjoin the transactions contemplated by this
Agreement and the other Transaction Documents.


 


3.                                       Certain Definitions.


 


3.1                                 Definitions.  When used herein, the following terms shall
have the respective meanings indicated:


 


“Affiliate” means, as to any Person
(the “subject Person”), any other Person (a) that directly or
indirectly through one or more intermediaries controls or is controlled by, or


 


3

















 


is under direct or indirect common control with, the subject Person,
(b) that directly or indirectly beneficially owns or holds ten percent
(10%) or more of any class of voting equity of the subject Person, or
(c) ten percent (10%) or more of the voting equity of which is directly or
indirectly beneficially owned or held by the subject Person.  For the purposes of this definition, “control”
when used with respect to any Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, through representation on such Person’s Board
of Directors or other management committee or group, by contract or otherwise.


 


“Agreement” means this Agreement and
any and all amendments, modifications, supplements, renewals, extensions or
restatements hereof, and all attachments hereto.


 


“Authorization Letter” has the meaning
specified in Section 1.4 hereof.


 


“Business Day” means any day other
than a Saturday, Sunday or other day on which the New York Stock Exchange or
commercial banks located in the cities of New York or San Diego are required or
permitted by law to close.


 


“Capital Shares” means the Common
Stock and any shares of any other class of capital stock whether now or
hereafter authorized, having the right to participate in the distribution of
earnings and assets of the Company.


 


“Capital Share Equivalents” means any
securities, warrants, options, rights, or obligations that are convertible into
or exchangeable for or give any right to subscribe for any Capital Shares or
any other rights to subscribe for or purchase Capital Shares or Capital Share
Equivalents.


 


“Closing” and “Closing Date”
have the respective meanings specified in Section 1.3 hereof.


 


“Closing Bid Price” shall mean, for
the Common Stock as of any date, the closing bid price on such date for the
Common Stock on the Principal Market as reported by Bloomberg Financial Markets
(“Bloomberg”), or if the Principal Market begins to operate on an
extended hours basis, and does not designate the closing bid price, then the
last bid price at 4:00 p.m. (eastern time), as reported by Bloomberg, or if the
foregoing do not apply, the last closing bid price of the Common Stock in the
over-the-counter market on the electronic bulletin board for such security as
reported by Bloomberg, or, if no closing bid price is reported for such
security by Bloomberg, the last closing trade price for such security as
reported by Bloomberg, or, if no last closing trade price is reported for such
security by Bloomberg, the average of the bid prices of any market makers for
such security as reported in the “pink sheets” by Pink Sheets LLC (formerly the
National Quotation Bureau, Inc.). If the Closing Bid Price cannot be calculated
for the Common Stock on such date on any of the foregoing bases, then the
Company shall submit such calculation to an independent investment banking firm
of national reputation, and shall cause such investment banking firm to perform
such determination and notify the Company and each Investor of the results of
determination no later than two (2) Business Days from the time such
calculation was submitted to it by the Company. Such investment banking firm’s
determination shall be deemed conclusive absent manifest error. All such
determinations shall be


 


4

















 


appropriately adjusted for any stock dividend, stock split or other
similar transaction during such period.


 


“Closing Conditions” means the
conditions to closing specified in Section 2 hereof.


 


“Closing Price” shall mean, for the
Common Stock as of any date, the closing price on such date for the Common
Stock on the Principal Market as reported by Bloomberg, or if the Principal
Market begins to operate on an extended hours basis, and does not designate the
closing price, then the last sales price at 4:00 p.m. (eastern time), as
reported by Bloomberg, or if the foregoing do not apply, the Closing Bid Price.


 


“Commission” means the U.S. Securities
and Exchange Commission.


 


“Common Stock” has the meaning
specified in the preamble to this Agreement.


 


“Effective Date” means the date on
which Investors investing not less than the Minimum Investment Amount shall
have executed and delivered this Agreement.


 


“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
interpretations thereunder.


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


“Exchange Act Documents” means the
documents filed by the Company with the Commission under the Exchange Act since
the end of its most recently completed fiscal year and at least two (2)
Business Days prior to the date hereof, including, without limitation, its
report on Form 10-K for the year ended September 30, 2002 and its reports
on Form 10-Q for the quarters ending December 31, 2002, March 31,
2003 and June 30, 2003.


 


“Exercise Price” has the meaning
specified in the Warrants.


 


“GAAP” means generally accepted
accounting principles used in the United States, applied on a consistent basis,
as set forth in opinions of the Accounting Principles Board of the American
Institute of Certified Public Accountants and/or in statements of the Financial
Accounting Standards Board and/or their respective successors and which are
applicable in the circumstances as of the date in question.  Accounting principles are applied on a
“consistent basis” when the accounting principles applied in a current period
are comparable in all material respects to the principles applied in a
preceding period.


 


“Governmental Authority” means any
nation or government, any state, provincial or political subdivision thereof,
any department, commission, board, court, tribunal, agency or any other
instrumentality thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government, including without limitation any stock exchange, securities market
or self-regulatory organization.


 


“Governmental Requirement” means any
law, statute, code, ordinance, order, rule, regulation, judgment, decree,
injunction, franchise, license or other directive or requirement


 


5

















 


issued by any Governmental
Authority.


 


“Intellectual Property” means any U.S.
or foreign patents, patent applications, trademarks, trade names, service
marks, brand names, logos and other trade designations (including unregistered
names and marks), trademark and service mark registrations and applications,
copyrights and copyright registrations and applications, inventions, invention
disclosures, protected formulae, formulations, processes, methods, trade
secrets, computer software, computer programs and source codes, manufacturing
research and similar technical information, engineering know-how, customer and
supplier information, assembly and test data drawings and royalty rights.


 


“Irrevocable Transfer Agent Instructions”
means the Irrevocable Transfer Agent Instructions, substantially in the form of
Exhibit D attached hereto, from the Company to the Transfer Agent.


 


“Lien” means, with respect to any
Property, any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, tax lien, financing statement, pledge,
charge, or other lien, charge, easement (other than any easement not materially
impairing usefulness), encumbrance, preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever on or
with respect to such Property (including, without limitation, any conditional
sale or other title retention agreement having substantially the same economic
effect as any of the foregoing).


 


“Market Price” means, as of any date,
the lower of (i) the average of the Closing 
Prices for the Common Stock occurring during the five (5) Trading Day
period ending on (and including) the Trading Day immediately prior to such date
and (ii) the Closing Bid Price on the Trading Day immediately preceding such
date.


 


“Material Adverse Effect” means a
material and adverse effect on (i) the consolidated business, operations,
properties, financial condition, current prospects or results of operations of
the Company and its Subsidiaries taken as a whole or (ii) the ability of the
Company to perform its obligations under this Agreement or the other
Transaction Documents (as defined below).


 


“Material Contracts” means the
agreements and other instruments filed by the Company as exhibits to the
Exchange Act Documents.


 


“NASD” means the National Association
of Securities Dealers, Inc.


 


“Pension Plan” means an employee
benefit plan (as defined in ERISA) maintained by the Company for employees of
the Company or any of its Affiliates.


 


“Permitted Liens” means (i) liens for
current taxes not yet due, (ii) liens imposed by law and incurred in the
ordinary course of business for obligations not past due to carriers,
warehousemen, laborers, materialmen and the like, (iii) liens in respect of
pledges or deposits under workers’ compensation laws or similar legislation or
(iv) minor defects in title, none of which, individually or in the aggregate,
materially interferes with the use of the subject property.


 


6

















 


“Person” means any individual,
corporation, trust, association, company, partnership, joint venture, limited
liability company, joint stock company, Governmental Authority or other entity.


 


“Principal Market” means, initially,
the Nasdaq National Market, and at any time thereafter the principal trading
exchange or market for the Common Stock at such time, based upon share volume,
or if the Common Stock is not traded on an exchange or market, the OTC Bulletin
Board or Pink Sheets LLC (formerly the National Quotation Bureau), as the case
may be.


 


“Property” means property and assets
of all kinds, whether real, personal or mixed, tangible or intangible
(including, without limitation, all rights relating thereto).


 


“Purchase Price” has the meaning
specified in Section 1.2 hereof.


 


“Registration Rights Agreement” has
the meaning specified in the preamble to this Agreement.


 


“Registration Statement” has the
meaning specified in the Registration Rights Agreement.


 


“Related Party” means, as of any date,
(A) any Affiliate of the Company or its Subsidiaries, (B) any officer or
director of the Company or its Subsidiaries, (C) any Person who beneficially
owns five percent (5%) or more of the Common Stock, or (D) any Person related
by blood, marriage or adoption to any such individual.


 


“Restricted Period” has the meaning
specified in Section 6.6 hereof.


 


“Securities”, “Securities Act”
and “Shares” have the respective meanings specified in the preamble to
this Agreement.


 


“Subsidiary” means, with respect to
any Person, any corporation or other entity of which at least a majority of the
outstanding shares of stock or other ownership interests having by the terms
thereof ordinary voting power to elect a majority of the board of directors (or
Persons performing similar functions) of such corporation or entity is at the
time directly or indirectly owned or controlled by such Person or one or more
of its Subsidiaries.


 


“Trading Day” shall mean any day on
which the Principal Market is open for business and on which trading in the
Common Stock has not been suspended or otherwise curtailed on the Principal
Market.


 


“Transaction Documents” means (i) this
Agreement, (ii) the Registration Rights Agreement, (iii) the Warrants, (iv) the
Irrevocable Transfer Agent Instructions, (v) the Authorization Letter and (vi)
all other agreements, documents and other instruments executed and delivered by
or on behalf of the Company or any of its officers at the Closing.


 


“Transfer Agent” means the transfer
agent for the Company’s Common Stock.


 


7

















 


“Warrant” and “Warrant Shares”
have the respective meanings specified in the preamble to this Agreement.


 


3.2                                 Other Definitional
Provisions.  All definitions
contained in this Agreement are equally applicable to the singular and plural
forms of the terms defined.  The words
“hereof”, “herein” and “hereunder” and words of similar import refer to this
Agreement as a whole and not to any particular provision of this Agreement.


 


4.                                       Representations and Warranties of the Company.  The Company hereby represents and warrants
to, and covenants with, each Investor, as of the date of this Agreement, as
follows:


 


4.1                                 Organization; Good
Standing; Qualification.  Each of
the Company and its Subsidiaries is duly organized, validly existing, and in
good standing under the laws of the jurisdiction of its organization, and has
all requisite power and authority (corporate and other) to own and operate its
properties and assets and to carry on its business as now conducted and as
currently proposed to be conducted. The Company has all requisite corporate
power and authority (i) to execute and deliver this Agreement and the
other Transaction Documents; (ii) to issue and sell the Shares, the
Warrants and, upon exercise of the Warrants, the Warrant Shares; and
(iii) to perform its obligations under this Agreement and the other
Transaction Documents.  Each of the
Company and its Subsidiaries is duly qualified and is authorized to transact
business and is in good standing as a foreign entity in each jurisdiction in
which the failure to so qualify would have a Material Adverse Effect.


 


4.2                                 Authorization.  All action (corporate or otherwise) on the
part of the Company necessary for (i) the authorization, execution and
delivery of Transaction Documents; (ii) the authorization, issuance (or
reservation for issuance), sale, and delivery of the Shares and the Warrants
being sold hereunder and, upon exercise of the Warrants, the Warrant Shares;
and (iii) the performance of all obligations of the Company under the
Transaction Documents, has been taken or will be taken prior to the Closing,
and no further consent or authorization of the Company, its Board of Directors,
its stockholders, or any other Person is required to be obtained by the Company
(including without limitation, to the knowledge of the Company, pursuant to any
rule of the NASD or otherwise) in order to consummate the transactions
contemplated by this Agreement, the Warrants or the Registration Rights
Agreement. The Company’s Board of Directors has determined, at a duly convened
meeting (or pursuant to a duly executed written consent), that the issuance and
sale of the Shares and the Warrants, the issuance and sale of the Warrant
Shares upon exercise of the Warrants, and the consummation of the transactions
contemplated hereby and by the other Transaction Documents, are in the best
interests of the Company.


 


4.3                                 Due Execution and
Delivery; Enforceability.  This
Agreement has been and, upon the execution and delivery thereof by the Company,
the other Transaction Documents will be, duly executed and delivered by the
Company. This Agreement constitutes,
and the other Transaction Documents, when executed and delivered by the Company
will constitute, legal, valid and binding agreements of the Company
enforceable against the Company in accordance with their respective terms,
except (i) as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’
rights generally, or by general principles of equity (regardless of whether
such enforceability is


 


8

















 


considered in a proceeding in equity or at law) and (ii) to the extent
rights to indemnity or contribution may be limited by applicable law.


 


4.4                                 No Conflict.  The execution and delivery of this Agreement
and the other Transaction Documents, the issuance and sale of the Shares and
Warrants under this Agreement, the issuance and sale of the Warrant Shares upon
exercise of the Warrants, the fulfillment of the terms of this Agreement and
the other Transaction Documents and the consummation of the transactions
contemplated hereby and thereby do not and will not (A) conflict with or
constitute a violation of, or default (with the giving of notice, passage of
time or otherwise) under, (i) any Material Contract, (ii) the charter, by-laws
or other organizational documents of the Company or any Subsidiary or (iii) any
Governmental Requirement applicable to the Company or any Subsidiary or their
respective Properties (including without limitation, to the knowledge of the
Company, pursuant to any rule of the NASD or otherwise) or (B) result in the
creation or imposition of any Lien whatsoever upon any of the material
Properties of the Company or any Subsidiary (other than Permitted Liens) or the
acceleration of any indebtedness.


 


4.5                                 Valid Issuance of
Securities.  The Shares and Warrant
being purchased by such Investor hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the applicable Purchase Price
therefor, will be duly and validly issued, fully paid and nonassessable, and
will be free of all Liens and restrictions on transfer, other than restrictions
on transfer specified in this Agreement and in the Warrants and under
applicable federal and state securities laws. 
The Warrant Shares issuable upon exercise of the Warrant being purchased
by such Investor have been duly and validly reserved for issuance and, upon
issuance in accordance with the terms of such Warrant, will be duly and validly
issued, fully paid and nonassessable, and will be free of all Liens and
restrictions on transfer other than restrictions on transfer specified in this
Agreement and in the Warrants and under applicable federal and state securities
laws. The sale of the Shares and Warrants is not, and the subsequent exercise of
the Warrants and issuance and sale of the Warrant Shares will not be, subject
to any preemptive rights or rights of first refusal, or trigger any
anti-dilution, reset or similar provisions contained in any currently
outstanding securities of the Company.


 


4.6                                 Consents.  No consent, approval, authorization or other
order of, or registration, qualification or filing with, any Governmental
Authority or any other Person (including without limitation, to the knowledge
of the Company, pursuant to any rule of the NASD or otherwise) is required for
(i) the Company’s valid execution, delivery or performance of the
Transaction Documents; (ii) the offer, sale or issuance of the Shares and
the Warrants under this Agreement; or (iii) the issuance of Warrant Shares
upon exercise of the Warrants, other than such as have been made or obtained,
and except for any post-closing securities filings or notifications required to
be made under federal or state securities laws or any listing agreement to be
delivered to any securities exchange or market on which the Common Stock is
listed or traded.


 


4.7                                 Capitalization;
Registration Rights; Stockholder/Voting Agreements.  Except as set forth on Schedule 4.7,
the capitalization of the Company as of the date of this Agreement is as set
forth in the most recent Exchange Act Documents. The outstanding shares of
capital stock of the Company have been duly and validly issued and are fully
paid and nonassessable, have been issued in compliance with all federal and
state securities laws, and were not issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. Except


 


9

















 


as set forth on Schedule 4.7, there are no outstanding
rights (including, without limitation, preemptive rights, co-sale rights, and
rights of first refusal), warrants or options to acquire, or instruments
convertible into or exchangeable for, any unissued shares of capital stock or
other equity interest in the Company, or any contract, commitment, agreement,
understanding or arrangement of any kind to which the Company is a party, or of
which the Company has knowledge, relating to the issuance or sale of any
capital stock of the Company or any Subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options. Without limiting the
foregoing, other than the registration rights contemplated by the Registration
Rights Agreement, no right to require registration under the Securities Act or
to include securities on the Registration Statement filed by the Company
pursuant to the Registration Rights Agreement exists. The Company owns the
entire equity interest in each of its Subsidiaries, free and clear of any
Liens. There are no stockholder agreements, voting agreements or other similar
agreements with respect to the Common Stock to which the Company is a party or,
to the knowledge of the Company, between or among any of the Company’s
stockholders.


 


4.8                                 Reporting
Requirements.  The Company is
subject to the reporting requirements of the Exchange Act, and has timely filed
with the Commission all documents that the Company was required to file
pursuant to the Exchange Act during the twelve (12) months preceding the date
of this Agreement. Each such document, as of the date of the filing thereof
with the Commission, conformed in all material respects to the requirements of
the Exchange Act, and the rules and regulations thereunder and, as of the date
of such filing, the information contained therein did not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company is not
aware of any event occurring on or prior to the date of this Agreement (other
than the transactions effected hereby) that would require the filing or
issuance of, or with respect to which the Company intends to file or issue, a
Form 8-K or press release.


 


4.9                                 Financial Statements;
Independent Accountants.  The
consolidated financial statements of the Company and the related notes
contained in the Exchange Act Documents present fairly, in accordance with
GAAP, the financial position of the Company and its Subsidiaries as of the
dates and for the periods indicated, and the results of operations and cash
flows for the periods therein specified and are consistent with the books and
records of the Company and its Subsidiaries, except that the unaudited interim
financial statements were or are subject to normal and recurring year-end
adjustments which are not expected to be materially adverse to the consolidated
business or financial condition of the Company and its Subsidiaries taken as a
whole. Such financial statements (including the related notes) have been
prepared in accordance with GAAP, except as may be specifically described in
the notes to such financial statements, or in the case of unaudited statements,
as may be permitted by the accounting rules and regulations promulgated by the
Commission. The other financial information contained in the Exchange Act
Documents has been prepared on a basis consistent with the financial statements
of the Company contained therein. To the Company’s knowledge, KPMG LLP are independent accountants
as required by the Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder.


 


4.10                           No Material Adverse
Change. Except as disclosed in the Exchange Act


 


10

















 


Documents and the financial statements contained therein, since the
date of the Company’s latest audited financial statements, there has not been
(i) any material adverse change in the business or financial condition of the
Company and its Subsidiaries taken as a whole, (ii) to the Company’s knowledge,
any event affecting the Company or its Subsidiaries that has had or would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, (iii) any obligation, direct or contingent, that is material to
the Company and its Subsidiaries taken as a whole, incurred by the Company or
any of its Subsidiaries, except obligations incurred in the ordinary course of
business which, under GAAP, are not required to be reflected in such financial
statements and which, individually or in the aggregate, are not material to the
consolidated business or financial condition of the Company and its
Subsidiaries taken as a whole, (iv) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company or any of its
Subsidiaries, or (v) any loss or damage (whether or not insured) to the
physical property of the Company or any of its Subsidiaries which has been
sustained which has had or would reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect.


 


4.11                           Material Contracts.  Each Material Contract is valid and in full
force and effect as to the Company and, to the knowledge of the Company, the
other parties thereto.  The Company is
not in violation of, or default under (and there does not exist any event or
condition which, after notice or passage of time or both, would constitute a
default under), any Material Contract, except where any such violation or
default has not had and would not reasonably be expected to have a Material
Adverse Effect.  The Company has not
received notice of cancellation or termination of any Material Contract by any
party thereto.


 


4.12                           Related Party
Transactions.  Except as described
in the Exchange Act Documents, (A) no Related Party is indebted to the Company,
nor is the Company indebted (or committed to make loans or extend or guarantee
credit) to any such Person, other than (i) payment of salary for services
rendered, (ii) reimbursement for reasonable expenses incurred on behalf of
the Company, and (iii)  other standard employee benefits made generally
available to all employees (including, without limitation, stock option
agreements outstanding under any equity incentive plan approved by the Board of
Directors of the Company); (B) no Related Party has any direct or indirect
material interest in any transaction with the Company; and (C) to the Company’s
knowledge, no Related Party has any direct or indirect ownership interest in
excess of ten percent (10%) in any firm or corporation with which the Company
has a material business relationship.


 


4.13                           Governmental Permits, Etc.
Each of the Company and its Subsidiaries has all necessary franchises,
licenses, certificates and other authorizations from all Governmental
Authorities that are necessary for the operation of the business of the Company
and its Subsidiaries as currently conducted and as described in the Exchange
Act Documents, except where the failure to possess such documents or
authorizations has not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


4.14                           Compliance with
Applicable Law.  Neither the Company
nor any Subsidiary is in violation of its charter, bylaws, or other
organizational document, or in violation of any Governmental Requirement
applicable to the Company or any Subsidiary, which violation, individually or
in the aggregate, has had or would reasonably be expected to have a Material
Adverse Effect. The business of the Company is conducted in compliance with all
Governmental Requirements applicable to the Company or any Subsidiary, except
where any failure to comply


 


11

















 


therewith has not had and would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.  There are no unresolved notices of
deficiency or charges of violation brought or, to the knowledge of the Company,
threatened against the Company, including under any Governmental Requirement or
otherwise, and there are no facts or circumstances known to the Company that
would constitute a reasonable basis on which any such proceedings, notices or
actions may be instituted, issued or brought hereafter.  No investigation, inquiry or review by any
Governmental Authority with respect to the Company or any of its subsidiaries
is pending or, to the knowledge of the Company, threatened, nor, to the
knowledge of the Company, has any Governmental Authority indicated an intention
to conduct the same.


 


4.15                           Litigation.  Except as described in the Exchange Act
Documents, there is no suit, claim, action, proceeding or investigation pending
or, to the knowledge of the Company, threatened against the Company or any of
its Subsidiaries or any of their respective properties or assets which would
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect or would reasonably be expected to prevent or materially delay
the completion of the transactions contemplated by this Agreement.  The Company is not a party to, or to its
knowledge, named in or subject to any order, writ, injunction, judgment or
decree of any court, government agency or instrumentality. There is no action,
suit, proceeding or investigation by the Company currently pending or that the
Company currently intends to initiate.


 


4.16                           Title to Property and
Assets; Leases.  Except for
Permitted Liens or as described on Schedule 4.16 hereto, each of
the Company and its Subsidiaries has good and marketable title to its property
and assets free and clear of all Liens. 
With respect to the property and assets it leases, each of the Company
and its Subsidiaries is in compliance with such leases and, to the knowledge of
the Company, holds a valid leasehold interest free of any Liens, except for Permitted
Liens.


 


4.17                           Intellectual Property.  The Company, directly or through its
Subsidiaries, owns or possesses sufficient legal rights to all Intellectual
Property necessary for the conduct of its business as described in the Exchange
Act Documents.  Except as described in
the Exchange Act Documents, there are no outstanding options, licenses, or
agreements of any kind relating to any such Intellectual Property, nor is the
Company bound by or a party to any options, licenses, or agreements of any kind
with respect to the Intellectual Property of any other Person.  Neither the Company nor any of its
Subsidiaries is infringing, or has received any notice or has any knowledge of,
any asserted infringement by the Company or any of its Subsidiaries of, any rights
of a third party with respect to any Intellectual Property that, if the subject
of an unfavorable decision, ruling or finding, would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Neither the
Company nor any of its Subsidiaries has any knowledge of any infringement by a
third party with respect to any Intellectual Property rights of the Company or
of any Subsidiary that would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.


 


4.18                           Employees.  Except as set forth on Schedule 4.18
hereto, each executive officer (as defined in Rule 501(f) of the
Securities Act) of the Company is currently serving in the capacity indicated
in the most recently filed Exchange Act Documents. Except as disclosed in the
Exchange Act Documents, the Company has no knowledge of any fact or
circumstance (including without


 


12

















 


limitation (i) the terms of any agreement to which any such executive
officer is a party or any litigation in which any such executive officer is or
may become involved and (ii) any illness or medical condition that could
reasonably be expected to result in the disability or incapacity of such
executive officer) that would limit or prevent any such executive officer from
serving in such capacity on a full-time basis in the foreseeable future, or of
any intention on the part of any such individual to limit or terminate his or
her employment with the Company. There is no strike, labor dispute or union
organization activities pending or, to the knowledge of the Company, threatened
between it and its employees.  None of
the Company’s employees belong to any union or collective bargaining unit.


 


4.19                           ERISA.  Except as described in the Exchange Act
Documents, the Company does not maintain or contribute to, or have any
obligation under, any Pension Plan.  The
Company is in compliance in all material respects with the presently applicable
provisions of ERISA and the United States Internal Revenue Code of 1986, as
amended, with respect to each Pension Plan except in any such case for any such
matters that, individually or in the aggregate, have not had, and would not
reasonably be expected to have, a Material Adverse Effect.


 


4.20                           Taxes. Each of the
Company and its Subsidiaries has filed all federal, state and foreign income
and franchise tax returns required to be filed by it and has paid or
established appropriate reserves for all taxes which are due, except for taxes
which it reasonably disputes, or which would not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, and the
Company has no knowledge of a tax deficiency which has been or might be
asserted or threatened against it which would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.


 


4.21                           Insurance.  The Company maintains insurance for itself
and its Subsidiaries in such amounts and covering such losses and risks as is
reasonably prudent and customary in the businesses in which the Company and its
Subsidiaries are engaged. No notice of cancellation has been received for any
of such policies and the Company is in compliance with all of the terms and
conditions thereof.  The Company has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business without a
significant increase in cost. Without limiting the generality of the foregoing,
the Company maintains Director’s and Officer’s insurance in an amount not less
than $10 million for each covered occurrence.


 


4.22                           Environment.  To the Company’s knowledge, except as
described in the Exchange Act Documents, (i) the Company and its Subsidiaries
have no environmental liabilities, nor do any factors exist that are reasonably
likely to give rise to any environmental liability, affecting any of the
properties of the Company or any of its Subsidiaries that, individually or in
the aggregate, has had or would reasonably be expected to have a Material
Adverse Effect and (ii) neither the Company nor any of the Subsidiaries has
violated any environmental law applicable to it now or previously in effect,
other than such violations or infringements that, individually or in the
aggregate, have not had and would not reasonably be expected to have a Material
Adverse Effect.


 


4.23                           Exempt Offering.
Assuming the accuracy of the representations and warranties made by each Investor
in this Agreement, the offer and sale of the Securities pursuant to the


 


13

















 


terms of this Agreement, are or, upon issuance, will be exempt from
registration requirements of the Securities Act. Neither the Company nor any of
its Subsidiaries or Affiliates nor, to the Company’s knowledge, any Person
acting on its or their behalf, (x) has engaged in any form of general
solicitation or general advertising, within the meaning of Regulation D under
the Securities Act, in connection with the offer or sale of the Securities, (y)
has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under any circumstances that would
require registration of the Securities under the Securities Act or (z) based in
part on the representations made by the Investors in the Agreements, has issued
any shares of Common Stock or shares of any series of preferred stock or other
securities or instruments convertible into, exchangeable for or otherwise
entitling the holder thereof to acquire shares of Common Stock which would be
integrated with the sale of the Securities to the Investors for purposes of the
Securities Act or of any applicable stockholder approval provisions, including,
without limitation, under the rules and regulations of the NASD.


 


4.24                           Exchange Act
Registration; Listing.  The
Company’s Common Stock is registered pursuant to Section 12(g) of the
Exchange Act and is listed on the Nasdaq National Market.  The Company currently meets the continuing
eligibility requirements for listing on the Nasdaq National Market and has not
received any notice from the Nasdaq National Market that it may not currently
satisfy such requirements or that such continued listing is in any way
threatened.  The Company has taken no
action designed to, or which, to the knowledge of the Company, is likely to
have the effect of, terminating the registration of the Common Stock under the
Exchange Act or delisting the Common Stock from the Nasdaq National Market.


 


4.25                           S-3 Eligibility.  The Company is eligible to register the
resale of the Common Stock by each Investor on a registration statement on Form
S-3 under the Securities Act.  To the
knowledge of the Company, there currently exists no facts or circumstances that
would prohibit or delay the preparation and filing of a registration statement
on Form S-3 in accordance with the Registration Rights Agreement.


 


4.26                           Independent Investors.  The Company acknowledges that (A) each
Investor is acting solely in the capacity of an arms’ length purchaser in
connection with the negotiation, execution and delivery of this Agreement and
the other Transaction Documents and the performance of such Investor’s
obligations hereunder and thereunder, (B) no Investor is acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with respect
to the Transaction Documents and the transactions contemplated thereby and any
statement made or information provided to the Company by any of the Investors
or any of their respective representatives or agents in connection with the
Transaction Documents and the transactions contemplated thereby is merely
incidental to such Investor’s purchase of the Shares and Warrant purchased by
it, and (C)  it is not aware of any
action taken by any Investor in connection with the negotiation, execution and
delivery of this Agreement and the other Transaction Documents, or the issuance
and sale of the Shares and Warrants by the Company in accordance with the terms
hereof, that would cause any Investor to be deemed to be part of a “group” (or
that would comprise evidence thereof) as described in Rule 13d-5(b)(1) under
the Exchange Act.


 


4.27                           Investment Company Status.
The Company is not, and immediately after receipt of payment for the Shares and
the Warrants issued under this Agreement will not be, an


 


14

















 


“investment company” or an entity “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as
amended (the “Investment Company Act”).


 


4.28                           Transfer Taxes. No
stock transfer or other taxes (other than income taxes) are required to be paid
in connection with the sale and transfer of the Shares and the Warrants, other
than such taxes for which the Company has established appropriate reserves and
intends to pay in full on or before the Closing.


 


4.29                           Brokers.  Except for Merriman Curhan Ford & Co., whose fees shall be payable by
and be the sole responsibility of the Company, no broker, finder, investment
banker or other Person is entitled to any brokerage, finder’s or other fee or
commission in connection with the transactions contemplated by this Agreement,
based upon arrangements made by or on behalf of the Company.


 


4.30                           No Other Agreements.  The Company has not, directly or indirectly,
entered into any agreement with or granted any right to any Investor relating
to the terms or conditions of the transactions contemplated by the Transaction
Documents, except as expressly set forth in the Transaction Documents.


 


5.                                       Representations and Warranties of Each Investor.  Each Investor, severally and not jointly,
hereby represents and warrants to, and covenants with, the Company, as of the
date of this Agreement, as follows:


 


5.1                                 Organization; Authorization.  Such Investor is duly and validly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation or organization with full power and authority to purchase the
Securities and to execute and deliver this Agreement and the other Transaction
Documents to which is it a party.  This
Agreement constitutes, and each of the Transaction Documents to which it is a
party, when executed and delivered, will constitute a valid and legally binding
obligation of such Investor, enforceable in accordance with its terms, except
(i) as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights
generally, or by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (ii) to
the extent rights to indemnity or contribution may be limited by applicable
law.


 


5.2                                 No Conflicts.  The execution, delivery and performance by
such Investor of this Agreement and the other Transaction Documents to which it
is a party, and the consummation by such Investor of the transactions
contemplated hereby and thereby, do not and will not (i) result in or
constitute a violation of such Investor’s organizational documents, (ii)
materially conflict with any agreement, indenture or instrument to which such
Investor is a party, or (iii) result in a material violation of any
Governmental Requirement applicable to such Investor.


 


5.3                                 Accredited
Investor; Purchase for Own Account. 
Such Investor is an “accredited investor” as that term is defined in
Rule 501(a)(3) of Regulation D, and is acquiring the Securities solely for its
own account as principal, for investment purposes only, and not with a present
view to the public resale or distribution of all or any part thereof; provided,
however that in making such representation, such Investor does not agree
to hold the Securities for any


 


15

















 


minimum or specific term and reserves the right to sell, transfer or
otherwise dispose of the Securities at any time in accordance with the
provisions of this Agreement and with federal and state securities laws
applicable to such sale, transfer or disposition.


 


5.4                                 Information.  The Company has provided such Investor with
information that such Investor considers necessary or appropriate regarding the
business, operations and financial condition of the Company, and has granted to
such Investor the opportunity to ask questions of and receive answers from
representatives of the Company, its officers, directors, employees and agents
concerning the Company and materials relating to the terms and conditions of
the purchase and sale of the Securities hereunder. Neither such information nor
any other investigation conducted by such Investor or any of its
representatives shall modify, amend or otherwise affect such Investor’s right
to rely on the Company’s representations and warranties contained in this
Agreement.


 


5.5                                 Acknowledgement of
Risk. Such Investor acknowledges and agrees that its investment in the
Securities involves a significant degree of risk, including, without
limitation, that (i) the Company is a development stage business and will
require substantial funds in addition to the proceeds from the sale of the
Securities to operate its business; (ii) an investment in the Company is
speculative, and a Person who can afford the loss of their entire investment
should consider investing in the Company and the Securities; (iii) such
Investor may not be able to liquidate its investment; (iv) transferability of
the Securities is extremely limited; (v) in the event of a disposition of the
Securities, such Investor could sustain the loss of its entire investment; and
(vi) the Company has not paid any dividends on its Common Stock since inception
and does not anticipate the payment of dividends in the foreseeable future.


 


5.6                                 Reliance on
Exemptions.  Such Investor
understands that the Securities are being offered and sold to it in reliance
upon specific exemptions from the registration requirements of federal and
state securities laws and that the Company is relying upon the truth and
accuracy of the representations and warranties of such Investor set forth
herein in order to determine the availability of such exemptions and the
eligibility of such Investor to acquire the Securities.


 


5.7                                 Legends.  Such Investor acknowledges and understands
that, upon issuance, each certificate or other document evidencing any of the
Securities will be endorsed with a legend in substantially the following form:


 


The securities represented by this
certificate have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”), or any state securities law, and may not be
offered for sale, sold or transferred unless a registration statement under the
Securities Act and applicable state securities laws is effective with respect
thereto, or an exemption from registration under the Securities Act and such
laws is available in connection with such offer, sale or transfer. The
securities represented by this certificate may be pledged or hypothecated in
connection with a bona fide margin loan.


 


Notwithstanding the foregoing, to the extent that (1) the resale,
transfer or assignment of any of the Securities is registered pursuant to an
effective registration statement; (2) any of the Securities have been sold
pursuant to Rule 144 under the Securities Act or any successor


 


16

















 


provision (“Rule 144), and such Investor provides the
Company with customary seller’s and broker’s representation letters; or
(3) the Securities are eligible for resale under Rule 144(k) or any
successor provision, such Securities shall be issued without any legend or
other restrictive language and, with respect to the Securities upon which such
legend is stamped, the Company shall issue new certificates without such legend
to the holder thereof (or its designee) upon request.


 


5.8                                 Residency.  Such Investor is a resident of the
jurisdiction set forth immediately below such Investor’s name on the signature
pages hereto.


 


5.9                                 Ownership.  Such Investor does not, and immediately
following the Closing will not, beneficially own more than 19.99% of the number
of shares of Common Stock then outstanding, without regard to any limitations
on exercise contained in the Warrant owned by such Investor.


 


6.                                       Certain Covenants of the Company.


 


6.1                                 Public Disclosure.  The Company shall issue a press release
disclosing the material terms of this Agreement and the transactions
contemplated hereby and by the other Transaction Documents (i) if this
Agreement is executed and delivered by the Company and the Investors investing
not less than the Minimum Investment Amount prior to 5:00 p.m. (eastern time)
on the Effective Date and the Effective Date is a Business Day, then on such
Business Day, and (ii) if this Agreement is executed and delivered by the
Company and the Investors investing not less than the Minimum Investment Amount
after 5:00 p.m. (eastern time) on the Effective Date and/or the Effective Date
is not a Business Day, then prior to 9:30 a.m. (eastern time) on the Business
Day immediately following such Effective Date. 
Within one (1) Business Day following the Effective Date, the Company
shall file with the Commission a Form 8-K with the Commission disclosing the
material terms of this Agreement and the transactions contemplated hereby and
including as exhibits this Agreement, the Registration Rights Agreement and the
form of Warrant, in the form required by the Exchange Act.  Thereafter, the Company shall timely file
any filings and notices required by the Commission or applicable law with
respect to the transactions contemplated hereby.


 


6.2                                 Non-public
Information. The Company shall not disclose material non-public information
to any Investor, or to any of its advisors or representatives, unless prior to
disclosure of such information the Company identifies such information as being
non-public information and obtains the written consent of such Investor to
accept disclosure of such information. The Company may, as a condition to
disclosing any non-public information hereunder, require an Investor’s advisors
and representatives to enter into a confidentiality agreement in form and
content reasonably satisfactory to the Company.  The Company acknowledges and agrees that, immediately following
the issuance of the press release described in Section 6.1 above, no
Investor will possess any material non-public information concerning or
relating to (i) the Company, to the extent that such information was provided
to such Investor by or on behalf of the Company, or (ii) the transactions
contemplated hereby.


 


6.3                                 Best Efforts.  The Company shall use its best efforts to
timely satisfy each of the conditions to be satisfied by it as provided in
Section 2.2 of this Agreement.


 


17

















 


6.4                                 Reservation of
Common Stock.  From and after the
date of this Agreement, the Company shall reserve and keep available at all
times prior to the issuance thereof, solely for the purpose of effecting the
issuance of the Shares and the Warrant Shares, a number of shares of Common
Stock equal to (A) the number of Shares issuable at the Closing plus (B)
the number of Warrant Shares issuable upon exercise of all then outstanding
Warrants (without regard to any limitations on such exercise), as such number
may be adjusted from time to time, and shall promptly take any and all action
necessary to increase the amount so reserved in order to ensure compliance
therewith, and shall provide reasonable evidence thereof to any Investor
promptly upon request. The Company further agrees that if at any time the
number of shares of Common Stock authorized for issuance is less than the
amount so reserved, the Company shall promptly commence all corporate and
stockholder action, and seek such authorizations and consents, as may be
necessary in order to increase its authorized capital so as to eliminate such
deficiency.


 


6.5                                 Listing of Shares
and Warrant Shares.  The Company
will, on or before the Closing, make such filings and take such action as may
be necessary in order to list the Shares and the Warrant Shares on the
Principal Market. The Company further agrees, if the Company applies to have
the Common Stock traded on a market or exchange other than its current
Principal Market, it will include in such application all outstanding Shares
and the Warrant Shares that have not been distributed to the public, and will
take such other action as may be necessary or desirable to cause such Shares
and Warrant Shares to be listed on such other market as promptly as possible.


 


6.6                                 Registration/Listing
of Common Stock.  During the period
beginning on the date of this Agreement and ending on the earlier to occur of
(i) the date on which the Investors have publicly sold all of the Shares and
the Warrant Shares and (ii) the sixth (6th) anniversary of the
Closing Date (the “Restricted Period”), the Company will (A) use
commercially reasonable to cause the Common Stock to continue to be registered
under Section 12(b) or (g) of the Exchange Act, (B) use commercially
reasonable efforts to comply in all material respects with its reporting and
filing obligations under the Exchange Act, (C) refrain from taking any action
or filing any document (whether or not permitted by the Exchange Act or the
rules thereunder) the intended effect of which would be to terminate or suspend
such registration or its reporting and filing obligations under the Exchange
Act, (D) use commercially reasonable efforts to maintain the listing of the
Common Stock on the Nasdaq National Market, the Nasdaq SmallCap Market, the New
York Stock Exchange or the American Stock Exchange, and (E) use commercially
reasonable efforts to comply in all respects with the continued listing
criteria of its Principal Market.


 


6.7                                 Corporate
Existence; Conflicting Agreements. 
During the Restricted Period, the Company (A) will take all steps
necessary to preserve and continue the corporate existence of the Company and
(B) will not enter into any agreement or arrangement, the terms of which would
restrict or impair the right or ability of the Company to perform any of its
obligations under this Agreement or any of the other Transaction Documents.


 


6.8                                 Legends.  The certificates evidencing the Shares and
Warrant Shares shall be free of legends, except as set forth in
Section 5.7.


 


18

















 


6.9                                 Issuance of Shares
and Warrants.  The sale of the
Shares and the Warrants shall be made in accordance with the provisions and
requirements of Section 4(2) and/or Regulation D under the Securities Act,
and of any applicable state securities law. 
The Company shall make any necessary Commission and “blue sky” filings
required to be made by the Company in connection with the sale of such
securities to the Investors as required by all applicable laws, and shall
provide a copy thereof to each Investor promptly after such filing. Neither the
Company nor any of its Subsidiaries or Affiliates will take any action that
would subject the offer and sale of the Securities to the registration
requirements of the Securities Act or cause the offering of the Securities to
be so integrated with other offerings.


 


6.10                           Use of Proceeds.  The Company will use the proceeds from the
sale of the Shares and the Warrants for general working capital purposes;
provided, however, that the Company may not use such proceeds to repurchase or
redeem any securities issued by the Company or any Subsidiary or to make any
loan to a Related Party or repay any loan incurred by a Related Party.


 


6.11                           Transfer Agent
Instructions.  At or before the
Closing, the Company will issue to the Transfer Agent (and to any substitute or
replacement transfer agent for its Common Stock upon the Company’s appointment
of any such substitute or replacement transfer agent) the Irrevocable Transfer
Agent Instructions. Such instructions shall be irrevocable by the Company from
and after the date issued.


 


7.                                       Certain Covenants of Each Investor.  Each Investor, severally and not jointly,
covenants with the Company that:


 


7.1                                 Best Efforts.  Such Investor shall use its best efforts to
timely satisfy each of the conditions to be satisfied by it as provided in
Section 2.1 hereof.


 


7.2                                 Limitations on
Disposition.  Such Investor shall
not sell, transfer, assign or dispose of any Securities, unless:


 


(a)                                  there is then in
effect an effective registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with such registration
statement; or


 


(b)                                 such Investor has
notified the Company in writing of any such disposition and furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company,
that such disposition will not require registration of such Securities under
the Securities Act; provided, however, that no such opinion of
counsel will be required (A) if the sale, transfer or assignment is made
to an Affiliate of such Investor, (B) if the sale, transfer or assignment is
made pursuant to Rule 144 and such Investor provides the Company with
evidence reasonably satisfactory to the Company and its legal counsel that the
proposed transaction satisfies the requirements of Rule 144 or (C) in
connection with a bona fide
pledge or hypothecation of any Securities under a margin arrangement with a
broker-dealer or other financial institution.


 


19

















 


8.                                       Miscellaneous.


 


8.1                                 Entire Agreement.  This Agreement and the other Transaction
Documents set forth the entire agreement and understanding of the parties
relating to the subject matter hereof and supersede all prior and
contemporaneous agreements, negotiations and understandings between the
parties, both oral and written, relating to the subject matter hereof and
thereof.  The schedules and exhibits to
this Agreement are incorporated herein by reference and shall constitute a part
of this Agreement as if fully set forth herein.


 


8.2                                 Amendment; Waiver.  Except as expressly provided herein, neither
this Agreement nor any term hereof may be amended or supplemented unless such
amendment or supplement is in writing, the Company delivers a copy of such
amendment or supplement to each Investor who then holds Shares, Warrants or
Warrant Shares, and the Company obtains the written consent of each such
Investor. No provision hereof may be waived other than by a written instrument
executed by or on behalf of the party against whom enforcement of any such
waiver is sought. The failure of any party to exercise any right or remedy
under this Agreement or otherwise, or the delay by any party in exercising such
right or remedy, shall not operate as a waiver thereof.


 


8.3                                 Successors and
Assigns.  The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties.  Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. 
An Investor may assign its rights and obligations hereunder, in
connection with any private sale or transfer of Securities in accordance with
the terms hereof, as long as, as a condition precedent to such transfer, the
transferee executes an acknowledgment agreeing to be bound by the applicable
provisions of this Agreement, in which case the term “Investor” shall be deemed
to refer to such transferee as though such transferee were an original
signatory hereto. The Company may not assign it rights or obligations under
this Agreement.


 


8.4                                 No Reliance.  Each party acknowledges that (i) it has such
knowledge in business and financial matters as to be fully capable of
evaluating this Agreement, the other Transaction Documents and the transactions
contemplated hereby and thereby, (ii) it is not relying on any advice or
representation of any other party in connection with entering into this Agreement,
the other Transaction Documents or such transactions (other than the
representations made in this Agreement or the other Transaction Documents),
(iii) it has not received from such party any assurance or guarantee as to the
merits (whether legal, regulatory, tax, financial or otherwise) of entering
into this Agreement or the other Transaction Documents or the performance of
its obligations hereunder and thereunder, and (iv) it has consulted with its
own legal, regulatory, tax, business, investment, financial and accounting
advisors to the extent that it has deemed necessary, and has entered into this
Agreement and the other Transaction Documents based on its own independent
judgment and on the advice of its advisors as it has deemed necessary, and not
on any view (whether written or oral) expressed by such other party.


 


8.5                                 Independent Nature
of Investor’s Obligations and Rights. 
The obligations of each Investor hereunder are several and not joint
with the obligations of the other Investors hereunder,


 


20

















 


and no Investor shall be responsible in any way for the performance of
the obligations of any other Investor hereunder.  Nothing contained herein or in any Transaction Document, and no
action taken by any Investor pursuant hereto or thereto, shall be deemed to
constitute the Investors as a partnership, an association, a joint venture or
any other kind of entity, or constitute evidence that the Investors are in any
way acting in concert with respect to such obligations or the transactions
contemplated by this Agreement.  Each
Investor shall be entitled to protect and enforce its rights and remedies
independent of any other Investor, including without limitation the rights and
remedies arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Investor to be joined as
an additional party in any proceeding for such purpose.


 


8.6                                 Injunctive Relief.  The Company acknowledges and agrees that a
breach by it of its obligations hereunder will cause irreparable harm to each
Investor and that the remedy or remedies at law for any such breach will be
inadequate and agrees, in the event of any such breach, in addition to all
other available remedies, such Investor shall be entitled to seek an injunction
restraining any breach and requiring immediate and specific performance of such
obligations without the necessity of showing economic loss.


 


8.7                                 Governing Law;
Jurisdiction.  This Agreement shall
be governed by and construed under the laws of the State of Delaware applicable
to contracts made and to be performed entirely within the State of
Delaware.  Each party hereby irrevocably
submits to the non-exclusive jurisdiction of the state and federal courts
sitting in the City of Dover, State of Delaware, for the adjudication of any
dispute hereunder or under any Transaction Document or in connection herewith
or therewith, and hereby irrevocably waives, and agrees not to assert in any
suit, action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding
is improper.  Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address in effect for notices to it under this Agreement and
agrees that such service shall constitute good and sufficient service of
process and notice thereof.  Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.


 


8.8                                 Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. This Agreement, once
executed by a party, may be delivered to any other party hereto by facsimile
transmission.


 


8.9                                 Headings.  The headings used in this Agreement are used
for convenience only and are not to be considered in construing or interpreting
this Agreement.


 


8.10                           Notices. Any notice,
demand or request required or permitted to be given by the Company or an
Investor pursuant to the terms of this Agreement shall be in writing and shall
be deemed delivered (i) when delivered personally or by verifiable facsimile
transmission, unless such delivery is not made prior to 5:00 p.m. (eastern
time) on a Business Day, in which case such delivery will be deemed to be made
on the next succeeding Business Day, (ii) on the next succeeding Business Day
after timely delivery to an overnight courier and (iii) on the Business 


 


21

















 


Day actually received by the intended recipient if deposited in the
U.S. mail (certified or registered mail, return receipt requested, postage
prepaid), addressed as follows:


 


	
  If to the Company:

  
	
   

  
	
  Maxim
  Pharmaceuticals, Inc.

  
	
  8899 University Center Lane, Suite 400

  
	
  San Diego, CA 92122

  
	
  Attn:  Tony Altig, Chief
  Financial Officer

  
	
  Tel:  (858) 453-4040

  
	
  Fax: (858) 453-5005

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Cooley
  Godward LLP

  
	
  4401 Eastgate Mall

  
	
  San Diego, CA 92121

  
	
  Attn:  Lance Bridges, Esq.

  
	
  Tel:  (858) 550-6000

  
	
  Fax: (858) 550-6420

  



 


and if to any Investor, to such address for such Investor as shall
appear on the signature page hereof executed by such Investor, or as shall be
designated by such Investor in writing to the Company.


 


8.11                           Expenses.  The Company and each Investor each shall pay
all costs and expenses that it incurs in connection with the negotiation,
execution, delivery and performance of this Agreement, provided, however,
that the Company shall reimburse Castle Creek Healthcare Partners LLC for all
out-of-pocket expenses (including without limitation legal fees and expenses)
incurred by it in connection its due diligence investigation of the Company and
the negotiation, preparation, execution, delivery and performance of this
Agreement and the other Transaction Documents in an amount not to exceed thirty
thousand dollars ($30,000).


 


[Signature pages to follow]


 


22

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Castle Creek Healthcare
  Partners LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Thomas A. Frei

  	
   

  
	
   

  	
  Name: Thomas A. Frei

  
	
   

  	
  Title: Managing Director of
  the Investment Manager

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  535,714

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $2,999,998.40

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Address:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Tel:

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FEIN:

  	
   

  	
   

  	
   

  	
   

  
															



 


23

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   RHP Master Fund, Ltd.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   Rock Hill Investment
  Management, L.P.

  	
   

  
	
   

  	
  By:

  	
   RHP General Partner, LLC

  	
   

  
	
   

  	
  By: 

  	
   /s/ Keith Marlowe

  	
   

  
	
   

  	
  Name: Keith Marlowe

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  62,500

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $350,000

  	
   

  
											



 


23.1

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   SF Capital Partners Ltd.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Brian Davidson

  	
   

  
	
   

  	
  Name: Brian Davidson

  
	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  446,428

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $2,499,996.80

  	
   

  
											



 


23.2

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Smithfield Fiduciary LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Adam J. Chill

  	
   

  
	
   

  	
  Name: Adam J. Chill

  
	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  535,715

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $3,000,004.00

  	
   

  
											



 


23.3

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Mainfield Enterprises Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Avi Vigder

  	
   

  
	
   

  	
  Name: Avi Vigder

  
	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  535,714

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $3,000,000

  	
   

  
											



 


23.4

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Longwood Partners, LP

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ John P. McNiff

  	
   

  
	
   

  	
  Name:  John P. McNiff

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  100,000

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $560,000

  	
   

  
											



 


23.5

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Stratford Partners, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Chad Comiteau

  	
   

  
	
   

  	
  Name: Chad Comiteau

  
	
   

  	
  Title: G.P.

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  100,000

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $560,000

  	
   

  
											



 


23.6

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
  ProMed Partners, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Barry Kurokawa

  	
   

  
	
   

  	
  Name: Barry Kurokawa

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  76,313

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $427,352.80

  	
   

  
											



 


23.7

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
  ProMed Offshore Fund, Ltd.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Barry Kurokawa

  	
   

  
	
   

  	
  Name: Barry Kurokawa

  
	
   

  	
  Title: Managing Director

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  12,973

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $72,648.80

  	
   

  
											



 


23.8

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Vertical Ventures, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Joshua Silverman

  	
   

  
	
   

  	
  Name: Joshua Silverman

  
	
   

  	
  Title: Director

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  178,571

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $1,000,000

  	
   

  
											



 


23.9

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Midsummer Investment, Ltd.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Scott Kaufman

  	
   

  
	
   

  	
  Name: Scott Kaufman

  
	
   

  	
  Title: Managing Director
  Midsummer Capital, LLC as Investor Advisor to Midsummer Investment, Ltd.

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  89,286

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $500,002

  	
   

  
											



 


23.10

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   American High Growth Equities
  Retirement Trust

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Elyse R. Goodman for Brad
  Butler Trustee

  	
   

  
	
   

  	
  Name: Elyse R. Goodman

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  71,429

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $400,000

  	
   

  
										



 


23.11

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Omicron Master Trust

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Bruce Bernstein

  	
   

  
	
   

  	
  Name: Bruce Bernstein

  
	
   

  	
  Title: Managing Partner

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  89,286

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $500,001.60

  	
   

  
											



 


23.12

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Satellite Asset Management,
  L.P.,

  	
   

  
	
   

  	
   on behalf of one or more Account(s)
  under its discretionary investment 

  
	
   

  	
  authority

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Brian S. Kriftcher

  	
   

  
	
   

  	
  Name: Brian S. Kriftcher

  
	
   

  	
  Title: Chief Operating
  Officer and Principal

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  535,714

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  3,000,000

  	
   

  
											



 


23.13

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Integral Capital Partners V
  SLP Side Fund, LLC

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   ICP Management V, LLC its
  Manager

  	
   

  
	
   

  	
  By: 

  	
   /s/ Pamela K. Hagenah

  	
   

  
	
   

  	
  Name: Pamela K. Hagenah

  
	
   

  	
  Title: Manager

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  902

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $5,051.20

  	
   

  
											



 


23.14

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Integral Capital Partners VI,
  L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   Integral Capital Management
  VI, LLC

  	
   

  
	
   

  	
   

  	
   its General Partner

  	
   

  
	
   

  	
  By: 

  	
   /s/ Pamela K. Hagenah

  	
   

  
	
   

  	
  Name: Pamela K. Hagenah

  
	
   

  	
  Title: Manager

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  345,806

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $1,936,513.60

  	
   

  
											



 


23.15

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Integral Capital Partners V,
  L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   Integral Capital Management
  V, LLC

  	
   

  
	
   

  	
   

  	
   its General Partner

  	
   

  
	
   

  	
  By: 

  	
   /s/ Pamela K. Hagenah

  	
   

  
	
   

  	
  Name: Pamela K. Hagenah

  
	
   

  	
  Title: Manager

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  362,754

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $2,031,422,40

  	
   

  
											



 


23.16

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Integral Capital Partners V
  Side Fund, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   Integral Capital Management
  V, LLC

  	
   

  
	
   

  	
   

  	
   its General Partner

  	
   

  
	
   

  	
  By: 

  	
   /s/ Pamela K. Hagenah

  	
   

  
	
   

  	
  Name: Pamela K. Hagenah

  
	
   

  	
  Title: Manager

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  4,824

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $27,014.40

  	
   

  
											



 


23.17

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
  Portside
  Growth and Opportunity Fund

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Jeffrey Smith

  	
   

  
	
   

  	
  Name: Jeffrey Smith

  
	
   

  	
  Title: Authorized Person

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  89,286

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  500,001.60

  	
   

  
											



 


23.18

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
  Cranshire Capital, L.P.

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Mitchell Kopin

  	
   

  
	
   

  	
  Name: Mitchell Kopin

  
	
   

  	
  Title: President — Downsview
  Capital

  
	
   

  	
  The General Partner

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  178,571

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $1,000,000

  	
   

  
											



 


23.19

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   Micro Capital Fund LP

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Chris P. Swenson

  	
   

  
	
   

  	
  Name: Chris P. Swenson

  
	
   

  	
  Title: Vice Presidentl

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  134,000

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $750,400

  	
   

  
											



 


23.20

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
   MicroCapital Fund Ltd.

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Chris P. Swenson

  	
   

  
	
   

  	
  Name: Chris P. Swenson

  
	
   

  	
  Title: Vice-President

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  44,571

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $249,598

  	
   

  
											



 


23.21

















 


IN WITNESS WHEREOF, the Company and the
undersigned Investor have executed and delivered this Agreement as of the date
first written above.


 


	
   

  	
  MAXIM PHARMACEUTICALS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Name of Investor:  

  	
  Michael & Shelia Alessandro

  	
   

  
	
   

  	
  JTWROS

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   /s/ Michael Alessandro

  	
   

  
	
   

  	
   

  	
   /s/ Shelia Alessandro

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title: 

  
	
   

  	
   

  
	
   

  	
  Shares: 

  	
  25,000

  	
   

  
	
   

  	
   

  
	
   

  	
  Purchase Price: 

  	
  $140,000

  	
   

  
											



 


23.22