Exhibit 4.3


 


Exhibit A to the

Securities Purchase Agreement


 


THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT 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 SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS IS
AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE OR TRANSFER. SUBJECT TO
COMPLIANCE WITH THE REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS,  THIS
WARRANT AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS WARRANT MAY BE
PLEDGED OR HYPOTHECATED IN CONNECTION WITH A BONAFIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY THIS WARRANT OR ANY OF THE SECURITIES ISSUABLE UPON EXERCISE OF
THIS WARRANT.


 


WARRANT TO PURCHASE COMMON STOCK


 


OF


 


MAXIM PHARMACEUTICALS, INC.


 


	
  Issue Date: September 23, 2003

  	
  Warrant
  No.       

  



 


THIS CERTIFIES
that
                                            
or any subsequent holder hereof (the “Holder”), has the right to
purchase from MAXIM PHARMACEUTICALS, INC.,
a Delaware corporation (the “Company”), up to
                    
fully paid and nonassessable shares of the Company’s common stock, par value
$.001 per share (the “Common Stock”), subject to adjustment as provided
herein, at a price per share equal to the Exercise Price (as defined below), at
any time beginning on the date which is the six (6) month anniversary of the
date on which this Warrant is issued (the date of such issuance being referred
to as the “Issue Date”) and, subject to Section 6(c) hereof, ending
at 5:00 p.m., pacific time, on the date that is five and one-half (5-1/2) years
after the Issue Date (the “Expiration Date”).  This Warrant is issued pursuant to a Securities Purchase
Agreement, dated as of September 22, 2003 (the “Securities Purchase
Agreement”).  Capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth
in the Securities Purchase Agreement.


 

















 


1.                                       Exercise.


 


(a)                                  Right to Exercise;
Exercise Price.  The Holder shall
have the right to exercise this Warrant at any time and from time to time
during the period beginning on the six (6) month anniversary of the Issue Date
and ending on the Expiration Date as to all or any part of the shares of Common
Stock covered hereby (the “Warrant Shares”).  The “Exercise Price” for each Warrant Share purchased by
the Holder upon the exercise of this Warrant shall be equal to one hundred and
ten percent (110%) of the Market Price on the Effective Date (subject to
adjustment for the events specified in Section 6 below), provided,
that if the Exercise Price is equal to or less than the Closing Bid Price on
the Trading Day immediately prior to the Effective Date (subject to adjustment
for the events specified in Section 6 below), for purposes of this Warrant
the Exercise Price will be deemed to be equal to such Closing Bid Price plus
$.01.


 


(b)                                 Exercise Notice.  In order to exercise this Warrant, the
Holder shall send by facsimile transmission, at any time prior to 5:00 p.m.,
pacific time, on the Business Day on which the Holder wishes to effect such
exercise (the “Exercise Date”), to the Company (with a copy to the
Transfer Agent (as defined below)) an executed notice of exercise in the form
attached hereto as Exhibit A (the “Exercise Notice”), the original
Warrant and, in the case of a Cash Exercise (as defined below), the Exercise
Price.  In the case of a dispute as to
the calculation of the Exercise Price or the number of Warrant Shares issuable
hereunder (including, without limitation, the calculation of any adjustment
pursuant to Section 6 below), the Company shall promptly issue to the
Holder the number of Warrant Shares that are not disputed and shall submit the
disputed calculations to a certified public accounting firm of national
recognition (other than the Company’s independent accountants) within three (3)
Business Days following the date on which the Exercise Notice is delivered to
the Company. The Company shall cause such accountant to calculate the Exercise
Price and/or the number of Warrant Shares issuable hereunder and to notify the
Company and the Holder of the results in writing no later than three (3)
Business Days following the day on which such accountant received the disputed
calculations (the “Dispute Procedure”). Such accountant’s calculation
shall be deemed conclusive absent manifest error.  The fees of any such accountant shall be borne by the party whose
calculations were most at variance with those of such accountant.


 


(c)                                  Holder of Record.  The Holder shall, for all purposes, be
deemed to have become the holder of record of the Warrant Shares specified in
an Exercise Notice on the Exercise Date specified therein, irrespective of the
date of delivery of such Warrant Shares. 
Except as specifically provided herein, nothing in this Warrant shall be
construed as conferring upon the Holder hereof any rights as a stockholder of
the Company prior to the Exercise Date.


 


(d)                                 Cancellation of
Warrant.  This Warrant shall be
canceled upon its exercise and, if this Warrant is exercised in part, the
Company shall, at the time that it delivers Warrant Shares to the Holder
pursuant to such exercise as provided herein, issue a new warrant, and deliver
to the Holder a certificate representing such new warrant, with terms identical
in all respects to this Warrant (except that such new warrant shall be exercisable
into the number of shares of Common Stock with respect to which this Warrant
shall remain unexercised); provided, however, that the Holder
shall be entitled to exercise all or any portion of such new warrant at any
time following the time at which this Warrant is exercised, regardless of
whether the


 


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Company has actually issued
such new warrant or delivered to the Holder a certificate therefor.


 


2.                                       Delivery of
Warrant Shares Upon Exercise.  Upon
receipt of an Exercise Notice pursuant to Section 1 above, the Company
shall, (A) in the case of a Cash Exercise (as defined below) no later than the
close of business on the later to occur of (i) the third (3rd) Business Day
following the Exercise Date set forth in such Exercise Notice and (ii) such
later date on which the Company shall have received payment of the Exercise
Price, (B) in the case of a Cashless Exercise (as defined below), no later than
the close of business on the third (3rd) Business Day following the Exercise
Date set forth in such Exercise Notice, and (C) with respect to Warrant Shares
that are the subject of a Dispute Procedure, the close of business on the third
(3rd) Business Day following the determination made pursuant to
paragraph 1(b) (each of the dates specified in (A), (B) or (C) being referred
to as a “Delivery Date”), issue and deliver or caused to be delivered to
the Holder the number of Warrant Shares as shall be determined as provided
herein. The Company shall effect delivery of Warrant Shares to the Holder by,
as long as the Transfer Agent participates in the Depository Trust Company (“DTC”)
Fast Automated Securities Transfer program (“FAST”), crediting the
account of the Holder or its nominee at DTC (as specified in the applicable
Exercise Notice) with the number of Warrant Shares required to be delivered, no
later than the close of business on such Delivery Date. In the event that the
Transfer Agent is not a participant in FAST, or if the Warrant Shares are not
otherwise eligible for delivery through FAST, or if the Holder so specifies in
an Exercise Notice or otherwise in writing on or before the Exercise Date, the
Company shall effect delivery of Warrant Shares by delivering to the Holder or
its nominee physical certificates representing such Warrant Shares, no later
than the close of business on such Delivery Date.


 


3.                                       Failure to
Deliver Warrant Shares.


 


In the event that the Holder effects a sale
of Common Stock in anticipation of receiving Warrant Shares upon an exercise,
and has not received certificates (without any restrictive legend except as
expressly required by the Securities Purchase Agreement) representing the
number of Warrant Shares specified in the applicable Exercise Notice on or
before the Delivery Date therefor (an “Exercise Default”), the Holder
shall have the right to receive from the Company an amount equal to (A) the
aggregate amount paid by the Holder for shares of Common Stock purchased by the
Holder in order to make delivery on such sale minus (B) the aggregate
Exercise Price for such Warrant Shares (the payment of which shall not relieve
the Company from its obligation to deliver such Warrant Shares to the Holder);
provided, that if, in lieu of or in addition to purchasing shares of Common
Stock for the purpose of making delivery on such sale, the Holder borrows
shares of Common Stock in order to make such delivery, the Holder shall have
the additional right to be reimbursed by the Company for all costs associated
with effecting such borrowing transaction.


 


The Holder’s rights and remedies hereunder
are cumulative, and no right or remedy is exclusive of any other.  In addition to the amounts specified herein,
the Holder shall have the right to pursue all other remedies available to it at
law or in equity (including, without limitation, a decree of specific
performance and/or injunctive relief). The amounts specified herein shall be
paid to the Holder in immediately available funds on or before the fifth (5th)
Business Day following written notice thereof from the Holder.


 


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4.                                       Exercise
Limitations.  In no event shall the
Holder be permitted to exercise this Warrant, or part thereof, if, upon such
exercise, the number of shares of Common Stock beneficially owned by the Holder
(other than shares which would otherwise be deemed beneficially owned except
for being subject to a limitation on conversion or exercise analogous to the
limitation contained in this Section 4), would exceed 4.99% of the
number of shares of Common Stock then issued and outstanding (the “Exercise
Limit”). As used herein, beneficial ownership shall be determined in
accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended, and the rules thereunder. To the extent that the limitation contained
in this Section 4 applies, the submission of an Exercise Notice by the
Holder shall be deemed to be the Holder’s representation that this Warrant is
exercisable pursuant to the terms hereof and the Company shall be entitled to
rely on such representation without making any further inquiry as to whether
this Section 4 applies.  Nothing
contained herein shall be deemed to restrict the right of a Holder to exercise
this Warrant, or part thereof, at such time as such exercise will not violate
the provisions of this Section 4. 
This Section 4 may not be amended by the parties; provided, however,
that, in the event of a Major Transaction (as defined below), the Holder shall
have the right to increase the Exercise Limit to a percentage not greater than
9.9% by delivering notice thereof to the Company at any time following the
public announcement of such transaction.


 


5.                                       Payment of
the Exercise Price; Cashless Exercise. 
The Holder may pay the Exercise Price in either of the following forms
or, at the election of Holder, a combination thereof:


 


(a)                                  through a cash
exercise (a “Cash Exercise”) by delivering immediately available funds,
or


 


(b)                                 if
an effective Registration Statement is not available for the resale all of the
Warrant Shares issuable hereunder at the time an Exercise Notice is delivered
to the Company, through a cashless exercise (a “Cashless Exercise”).  The Holder may effect a Cashless Exercise by
surrendering this Warrant to the Company and noting on the Exercise Notice that
the Holder wishes to effect a Cashless Exercise, upon which the Company shall
issue to the Holder the number of Warrant Shares determined as follows:


 


X = Y x (A-B)/A


 


where:                                                                                                             X
= the number of Warrant Shares to be issued to the Holder;


 


Y = the number of Warrant Shares with respect
to which this Warrant is being exercised;


 


A = the Market Price as of the Exercise Date;
and


 


B = the Exercise Price.


 


For purposes of Rule 144, it is intended and acknowledged that the
Warrant Shares issued in a Cashless Exercise transaction shall be deemed to
have been acquired by the Holder, and the


 


4

















 


holding period for the Warrant Shares required by Rule 144 shall be
deemed to have been commenced, on the Issue Date.


 


6.                                       Anti-Dilution
Adjustments; Distributions; Other Events. The Exercise Price and the number
of Warrant Shares issuable hereunder shall be subject to adjustment from time
to time as provided in this Section 6. 
In the event that any adjustment of the Exercise Price or the number of
Warrant Shares as required herein results in a fraction of a cent or fraction
of a share, as applicable, such Exercise Price or number of Warrant Shares
shall be rounded up or down to the nearest cent or share, as applicable.


 


(a)                                  Subdivision
or Combination of Common Stock.  If
the Company, at any time after the Issue Date, subdivides (by any stock split,
stock dividend, recapitalization, reorganization, reclassification or
otherwise) its shares of Common Stock into a greater number of shares, then
after the date of record for effecting such subdivision, the Exercise Price in
effect immediately prior to such subdivision will be proportionately
reduced.  If the Company, at any time
after the initial issuance of this Warrant, combines (by reverse stock split,
recapitalization, reorganization, reclassification or otherwise) its shares of
Common Stock into a smaller number of shares, then, after the date of record
for effecting such combination, the Exercise Price in effect immediately prior to
such combination will be proportionally increased.


 


(b)                                 Distributions.  If the Company or any of its Subsidiaries
shall at any time distribute to holders of Common Stock (or to a holder, other
than the Company, of the common stock of any such Subsidiary) cash, evidences
of indebtedness or other securities or assets including any dividend or
distribution in shares of capital stock of a Subsidiary of the Company
(collectively, a “Distribution”) then, in any such case, the Holder of
this Warrant shall be entitled to receive, at the same time as such assets are
received by a holder of such stock, the same amount and type of securities and
assets being distributed pursuant to such Distribution as though the Holder
was, as of the record date for such Distribution, the holder of a number of
shares of Common Stock into which this Warrant is exercisable as of such record
date (without regard to any limitation on exercise of this Warrant).


 


(c)                                  Major
Transactions.  In the event of a
merger, consolidation, business combination, tender offer, exchange of shares,
recapitalization, reorganization, redemption or other similar event, as a
result of which shares of Common Stock of the Company shall be changed into the
same or a different number of shares of the same or another class or classes of
stock or securities or other assets of the Company or another entity or the
Company shall sell all or substantially all of its assets (each of the
foregoing being a “Major Transaction”), the Company will give the Holder
at least twenty (20) days’ prior written notice of the closing of such Major
Transaction, and:  (i) in the event that
the holders of Common Stock receive consideration consisting of any combination
of cash, common stock or other assets (the “Major Transaction Consideration”)
that has a value per share of Common Stock that is less than $32.50 (as
adjusted for stock splits, stock dividends and similar events) (the “Major
Transaction Threshold”), the Holder shall be permitted to exercise this
Warrant in whole or in part at any time prior to the closing of such Major
Transaction and shall be entitled to receive, for each share of Common Stock
issued or issuable to the Holder pursuant to any such exercise, the same per
share consideration payable with respect to all other shares of Common Stock in
connection with


 


5

















 


such Major Transaction, and
(ii) in the event that the Holder retains any portion of this Warrant following
such closing, the Company will cause the surviving or, in the event of a sale
of assets, purchasing entity, as a condition precedent to such Major
Transaction, to assume the obligations of the Company under this Warrant, with
such adjustments to the Exercise Price and the securities covered hereby as may
be necessary in order to preserve the economic benefits of this Warrant to the
Holder; provided, however, that if the  value per share of the Major Transaction Consideration is equal
to or greater than the Major Transaction Threshold, this Warrant shall expire
as to the unexercised portion of this Warrant at the time of such closing.


 


(d)                                 Adjustments;
Additional Shares, Securities or Assets. 
In the event that at any time, as a result of an adjustment made
pursuant to this Section 6, the Holder of this Warrant shall, upon
exercise of this Warrant, become entitled to receive securities or assets
(other than Common Stock) then, wherever appropriate, all references herein to
shares of Common Stock shall be deemed to refer to and include such shares
and/or other securities or assets; and thereafter the number of such shares
and/or other securities or assets shall be subject to adjustment from time to
time in a manner and upon terms as nearly equivalent as practicable to the
provisions of this Section 6. Any adjustment made herein that results in a
decrease or increase in the Exercise Price shall also effect a proportional
increase or decrease, as the case may be, in the number of shares of Common
Stock into which this Warrant is exercisable.


 


7.                                       Fractional
Interests.


 


No fractional shares or scrip representing
fractional shares shall be issuable upon the exercise of this Warrant, but on
exercise of this Warrant, the Holder hereof may purchase only a whole number of
shares of Common Stock.  If, on exercise
of this Warrant, the Holder hereof would be entitled to a fractional share of
Common Stock or a right to acquire a fractional share of Common Stock, the
Company shall, in lieu of issuing any such fractional share, pay to the Holder
an amount in cash equal to the product resulting from multiplying such fraction
by the Market Price as of the Exercise Date.


 


8.                                       Transfer of
this Warrant.


 


The Holder may sell, transfer, assign, pledge
or otherwise dispose of this Warrant, in whole or in part, as long as such sale
or other disposition is made in the pursuant to an effective registration
statement or an exemption to the registration requirements of the Securities
Act.  Upon such transfer or other
disposition, (A) the Holder shall deliver this Warrant to the Company together
with a written notice to the Company, substantially in the form of the Transfer
Notice attached hereto as Exhibit B (the “Transfer Notice”), indicating
the person or persons to whom this Warrant shall be transferred and, if less
than all of this Warrant is transferred, the number of Warrant Shares to be
covered by the part of this Warrant to be transferred to each such person, and
(B) the transferee of this Warrant shall deliver to the Company an investment
representation letter in a form reasonably satisfactory to counsel to the
Company. Within three (3) Business Days of receiving a Transfer Notice, the
original of this Warrant and such representation letter, the Company shall
deliver to the each transferee designated by the Holder a Warrant or Warrants
of like tenor and terms for the appropriate number of Warrant Shares and, if
less than all this Warrant is transferred, shall deliver to the Holder a
Warrant for the remaining 


 


6

















 


number of Warrant Shares.


 


9.                                       Benefits of
this Warrant.


 


This Warrant shall be for the sole and
exclusive benefit of the Holder of this Warrant and nothing in this Warrant
shall be construed to confer upon any person other than the Holder of this
Warrant any legal or equitable right, remedy or claim hereunder.


 


10.                                 Loss, theft,
destruction or mutilation of Warrant.


 


Upon receipt by the Company of evidence of
the loss, theft, destruction or mutilation of this Warrant, and (in the case of
loss, theft or destruction) of indemnity reasonably satisfactory to the
Company, and upon surrender of this Warrant, if mutilated, the Company shall
execute and deliver a new Warrant of like tenor and date.


 


11.                                 Notice or Demands.


 


Any notice, demand or request required or
permitted to be given by the Company or the Holder pursuant to the terms of
this Warrant shall be in writing and shall be deemed delivered (i) when
delivered personally or by verifiable facsimile transmission, unless such
delivery is made on a day that is not a Business Day, in which case such
delivery will be deemed to be made on the next succeeding Business Day, (ii) on
the next Business Day after timely delivery to an overnight courier and (iii)
on the Business Day actually received 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 the Holder, to such address as shall be designated by the
Holder in writing to the Company.


 


7

















 


12.                                 Applicable Law.


 


This Warrant
is issued under and shall for all purposes be governed by and construed in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed entirely within the State of Delaware.


 


 


[Signature
Page to Follow]


 


8

















 


IN WITNESS WHEREOF, the Company has duly
executed and delivered this Warrant as of the date first above written.


 


 


	
   

  	
  Maxim
  Pharmaceuticals, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Anthony E. Altig

  	
   

  
	
   

  	
  Name: Anthony E. Altig

  
	
   

  	
  Title: Chief Financial Officer

  



 


9

















 


EXHIBIT A to WARRANT


 


EXERCISE NOTICE


 


The undersigned Holder hereby irrevocably
exercises the right to
purchase                         of
the shares of Common Stock (“Warrant Shares”) of MAXIM PHARMACEUTICALS,
INC. evidenced by the attached Warrant (the “Warrant”).  Capitalized terms used herein and not
otherwise defined shall have the respective meanings set forth in the Warrant.


 


1.                                       Form of Exercise
Price.  The Holder intends that payment
of the Exercise Price shall be made as:


 


             
a Cash Exercise with respect to
                                         
Warrant Shares; and/or


 


             
a Cashless Exercise with respect to
                                         
Warrant Shares, as permitted by Section 5(b) of the attached Warrant.


 


2.                                       Payment of
Exercise Price.  In the event that the
Holder has elected a Cash Exercise with respect to some or all of the Warrant
Shares to be issued pursuant hereto, the Holder shall pay the sum of
$                             
to the Company in accordance with the terms of the Warrant.


 


 


	
  Date: 

  	
   

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Name of Registered Holder

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Title:

  
						



 


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EXHIBIT B to WARRANT


 


TRANSFER NOTICE


 


FOR VALUE RECEIVED, the undersigned Holder of the attached Warrant
hereby sells, assigns and transfers unto the person or persons named below the
right to purchase
               
shares of the Common Stock of MAXIM PHARMACEUTICALS, INC. evidenced by the
attached Warrant.


 


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  
	
  Name of Registered Holder

  	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  
	
  Title:

  
	
   

  
	
  Transferee Name and Address:

  
	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
						



 


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