As filed with the Securities and Exchange Commission on March 16, 2001
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
HEMISPHERX BIOPHARMA, INC.
(Exact name of registrant as specified in its charter)
Delaware 5417 52-0845822
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
1617 JFK Boulevard
Philadelphia, Pennsylvania 19103
(215) 988-0080
(Address and Telephone Number of Registrant's Principal Executive Office)
(Zip Code)
1990 AMENDED AND RESTATED EMPLOYEE STOCK OPTION PLAN
(460,798 shares of Common Stock)
1992 AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
(92,160 shares of Common Stock)
1993 AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN
(138,240 shares of Common Stock)
(full title of the plans)
William A. Carter, M.D., Chief Executive Officer
Hemispherx Biopharma, Inc.
1617 JFK Boulevard
Philadelphia, Pennsylvania 19103
(215) 988-0080
(Name, Address & Telephone number, including area code, of agent for service)
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Copies to:
Gary W. Mair, Esq.
Silverman, Collura & Chernis, P.C.
381 Park Avenue South - Suite 1601
New York, New York 10016
(212) 779-8600
CALCULATION OF REGISTRATION FEE
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Title of Each Class Amount to be Proposed Proposed Amount of
of Securities to Registered(4) Offering Aggregate Registration
be Registered Price Per Offering Fee(2)
Share(1) Price
- --------------------------------------------------------------------------------
Shares of Common
Stock, $.001
par value 691,198 $4.40 $3,041,271 $760
================================================================================
Total Registration
Fee $760
================================================================================
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rules 457(c) and 457(h) of the Securities Act by multiplying (1)
691,198, the maximum number of shares of common stock of the Registrant to be
issued pursuant to the exercise of options granted under the Hemispherx
Biopharma, Inc. 1990, 1992 and 1993 Employee Stock Purchase Plans, by (2) $4.40,
the average of the bid and asked prices of the shares of common stock of the
Registrant reported on the American Stock Exchange on March 12, 2001.
(2) The registration fee has been calculated pursuant to Rules 457(c)and 457(h)
of the Securities Act by multiplying (1) $3,041,271, the proposed maximum
aggregate offering price by (2) .00025.
(3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Hemispherx Biopharma, Inc. 1991, 1992 and 1993
Employee Stock Purchase Plans described in this registration statement. Plus
such additional number of shares as may be required in the event of a stock
dividend, stock split, recapitalization or other similar event in accordance
with Rule 416(a) of the Securities Act of 1933.
(4) Represents the maximum number of shares of Common Stock issuable upon
exercise of options granted or to be granted under the Hemispherx Biopharma,
Inc. 1991, 1992 and 1993 Stock Purchase Plans.
PART I
Plan Information.
Item 1.
This Form S-8 relates to 691,198 shares of common stock, par value $.001
per share, of Hemispherx Biopharma, Inc., which may be issued upon the exercise
of options granted under the Hemispherx Biopharma, Inc. 1990, 1992 and 1993
Employee Stock Purchase Plans.
The documents containing information required in the Section 10(a)
prospectus specified in Part 1 (plan information and registrant information)
will be sent or given to employees as specified by Rule 428(b)(1). Such
documents need not be filed with the Securities and Exchange Commission either
as part of this registration statement or as prospectuses or prospectus
supplements pursuant to Rule 424. These documents and the documents incorporated
by reference in this registration statement pursuant to Item 3 of Part 2 of this
form taken together constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act of 1933, as amended.
Registrant Information And Stock Purchase Plan Annual Information.
Item 2.
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the Commission's public reference rooms in Washington,
D.C., New York, NY and Chicago, IL. Please call the Commission at 1-800-SEC-0330
for further information on the public reference rooms. Our Commission filings
are also available to the public from the Commission's web site at
http://www.sec.gov. The Commission allows us to "incorporate by reference"
information into this registration statement, which means that we can disclose
important information to you by referring you to another document filed
separately with the Commission. The information incorporated by reference is
considered to be part of this registration statement, and later information that
we file with the Commission will automatically update this registration
statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Incorporation Of Documents By Reference.
Item 3.
We incorporate by reference the following documents listed below and any
future filings made with the Commission under Sections 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934, prior to the termination of the
offering:
1. A description of our common stock contained in our registration
statement on Form S-1, File No. 333-08941, and any amendment or report filed for
the purpose of updating this description filed subsequent to the date of this
prospectus and prior to the termination of this offering;
2. our annual report on Form 10-K/A for our fiscal year ended December 31,
1999 (File No. 0-27072 and filing date of March 29, 2000);
3. our quarterly report on Form 10-Q for the quarterly period ended March
31, 2000 (File No. 0-27072 and filing date of May 5, 2000);
4. our current report on Form 8-K filed with the SEC on May 11, 2000, for
the event of May 3, 2000, (File No. 0-27072);
5. our current report on Form 8-K filed with the SEC on May 22, 2000, for
the event of May 3, 2000, (File No. 0-27072);
6. our current report on Form 8-K filed with the SEC on June 6, 2000, for
the event of May 3, 2000, (File No. 0-27072);
7. our current report on Form 8-K filed with the SEC on July 12, 2000, for
the event of May 3, 2000, (File No. 0-27072);
8. our current report on Form 8-K filed with the SEC on July 13, 2000, for
the event of May 3, 2000, (File No. 0-27072);
9. our proxy statement on schedule 14A for the 2000 annual meeting (File
No. 0-27072 and filing date of July 13, 2000); and
10. quarterly report on Form 10-Q for the quarterly period ended June 30,
2000 (File No. 0-27072) and filing date of August 14, 2000.
11. quarterly report on Form 10-Q for the quarterly period ended September
30, 2000, (File No. 0-27072) and filing date of November 14, 2000.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement and prior to the filing of a post-effective amendment to
this registration statement, which indicates that all securities offered
hereunder have been sold, or which de-registers all securities then remaining
unsold under this registration statement, shall be deemed to be incorporated by
reference in this registration statement and to be a part hereof from the date
of filing of such documents.
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You should rely only on the information incorporated by reference or
provided in this registration statement or any supplement. We have not
authorized anyone else to provide you with different information. We and the
selling stockholders will not make offers of these shares in any state where the
offer is not permitted. You should not assume that the information in this
registration statement or any supplement is accurate as of any date other than
the date on the front of those documents.
Any statement contained in a document or incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement contained
herein or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part or this registrations statement. All
information in this registration statement is qualified in its entirety by the
information and financial statements (including the notes thereto).
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address: Hemispherx Biopharma, Inc., 1617 JFK
Boulevard, Philadelphia, Pennsylvania 19103, telephone number (215) 988-0080.
Description of Securities
Item 4.
Not Applicable.
Interests of named experts and counsel.
Item 5.
The legality of the shares offered hereby has been passed upon for the
Company by Silverman, Collura & Chernis, P.C., 381 Park Avenue South, New York,
New York 10016.
Indemnification of directors and officers.
Item 6.
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually
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and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no cause to believe his conduct was
unlawful.
Section 145(b) provides that a Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted under similar standards, except that no
indemnification may be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and
only to the extent that the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to be indemnified for such expenses which the court shall
deem proper.
Section 145 further provides that (i) to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith, (ii)
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled, and (iii) the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
Section 102(b)(7) of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders may eliminate or limit personal liability of
the members of its board of directors or governing body for breach of a
director's fiduciary duty. However, no such provision may eliminate or limit the
liability of a director for breaching his duty of loyalty, failing to act in
good faith, engaging in intentional misconduct or knowingly violating a law,
paying a dividend or approving a stock repurchase which was illegal, or
obtaining an improper personal benefit. A provision of this type has no effect
on the availability of equitable remedies, such as an injunction or rescission,
for breach of fiduciary duty. Our charter contains such a provision.
Our charter further provides that we shall indemnify our officers and
directors and, to the extent authorized by the board of directors, employees and
agents of ours to the fullest extent permitted by and in the manner permissible
under the laws of the State of Delaware.
Our directors' and officers' liability insurance policy is designed to
reimburse us for payments made by us pursuant to the foregoing indemnification.
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This summary is subject to the General Corporation Law of the State of
Delaware, our charter and the by-laws and the agreements referred to above.
Exemption from Registration Claimed
Item 7.
Not applicable.
Exhibits
Item 8.
Unless otherwise noted the following exhibits have been filed with this Form
S-8.
4.1 1990 Employee Stock Option Plan
4.2 1992 Employee Stock Purchase Plan
4.3 1993 Employee Stock Purchase Plan
5.1 Opinion of Silverman, Collura & Chernis, P.C.
23.1 Consent of Silverman, Collura & Chernis, P.C. to be named in the
Registration Statement. Reference is made to Exhibit 5.1 to this Registration
Statement which includes such consent.
23.2 Consent of KPMG, LLP.
Undertakings
Item 9.
(a) The undersigned registrant hereby undertakes;
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to the Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(ii) To reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change of such information in the Registration Statement;
Provided however that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply
to information contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions or otherwise, the
registrant has been advised that in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification is against public policy
as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Philadelphia state of Pennsylvania, on this 13th day
of March, 2001.
HEMISPHERX BIOPHARMA, INC.
By: /s/ William A. Carter
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William A. Carter, President and CEO
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William A. Carter his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to the registration
statement on Form S-8, and to file the same, with all exhibits thereto, and all
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Signature Title Date
- --------- ----- ----
/s/ William A. Carter Principal Executive Officer March 9, 2001
- ----------------------- and Chairman of the Board
William A. Carter, M.D. and as Power of Attorney
for Members of the Board
/s/ Robert E. Peterson Principal Financial Officer and March 9, 2001
- ----------------------- Principal Accounting Officer
Robert E. Peterson
/s/ Richard C. Piani Director March_12, 2001
- -----------------------
Richard C. Piani
/s/ Ransom W. Etheridge Director March 9, 2001
- -----------------------
Ransom W. Etheridge
/s/ William Mitchell Director March 12, 2001
- -----------------------
William Mitchell
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Index to Exhibits
Unless otherwise noted the following exhibits have been filed with this Form
S-8.
4.1 1990 Amended and Restated Employee Stock Option Plan
4.2 1992 Amended and Restated Employee Stock Purchase Plan
4.3 1993 Amended and Restated Employee Stock Purchase Plan
5.1 Opinion of Silverman, Collura & Chernis, P.C.
23.1 Consent of Silverman, Collura & Chernis, P.C. to be named in the
Registration Statement. Reference is made to Exhibit 5.1 to this Registration
Statement which includes such consent.
23.2 Consent of KPMG, LLP.