Exhibit 5.1
SILVERMAN SCLAR SHIN & BYRNE PLLC
381 Park Avenue South, Suite 1601
New York, New York 10016
Tel. No. 212-779-8600
Telecopy Number - (212) 779-8858
July 6, 2004
Board of Directors
Hemispherx Biopharma, Inc.
1617 JFK Boulevard
Philadelphia, PA 19103
Re: Hemispherx Biopharma, Inc. - Registration Statement on Form S-1
Gentlemen:
We have acted as counsel for Hemispherx Biopharma, Inc., a Delaware corporation
(the "Company"), in connection with the preparation of the registration
statement on Form S-1 (the "Registration Statement") relating to the
registration under the Securities Act of 1933, as amended (the "Act"), of the
following shares of the Company's Common Stock, par value $0.001 per share (the
"Common Stock"): (i) 1,300,000 shares (the "Warrant Shares") issuable upon
exercise of certain outstanding warrants of the Company issued on May 14, 2004
to the Debenture holders (the "Warrants"), (ii) 455,000 shares (the
"Antidilution Shares") issuable upon exercise of the Warrants as a result of
adjustments to the exercise price of the Warrants in accordance with the terms
thereof, (iii) 5,000 shares issuable upon exercise of certain outstanding
warrants of the Company held by Christopher Chipman (the "Other Warrant Shares")
and (iv) 31,039 shares owned in the aggregate by CeoCast, Inc. and Business Asia
Consultants Inc.(the "Other Shares"). The Warrant Shares, Other Warrant Shares,
Other Shares, and Antidilution Shares are to be offered and sold by certain
securityholders of the Company (the "Selling Stockholders").
We have reviewed and are familiar with such corporate proceedings and other
matters as we have deemed necessary for this opinion. Based upon the foregoing,
we are of the opinion that (i) the Warrant Shares and Other Warrant Shares to be
offered and sold by the Selling Stockholders have been duly authorized and, when
issued by the Company upon exercise of the Warrants and Other Warrants in
accordance with the Warrants and Other Warrants, will be legally issued, fully
paid and nonassessable, (ii) the Other Shares to be offered and sold by the
Selling Stockholders have been duly authorized, legally issued, fully paid and
nonassessable, and (iii) the Antidilution Shares to be offered and sold by the
Selling Stockholders have been duly authorized and, when issued by the Company
upon exercise of the Warrants in accordance with the Warrants will be legally
issued, fully paid and nonassessable.
This opinion is limited to matters governed by the General Corporation Law of
the State of Delaware. No opinion is expressed as to the effect that the law of
any other jurisdiction may have upon the subject matter of the opinion expressed
herein under conflicts of law principles, rules and regulations or otherwise.
This opinion is limited to the specific issues addressed herein, and no opinion
may be inferred or implied beyond that expressly stated herein. We assume no
obligation to revise or supplement this opinion should the present laws of the
State of Delaware be changed by legislative action, judicial decision or
otherwise.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement and in the Prospectus included therein.
In giving this consent, we do not thereby admit that we are within the category
of persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
Very truly yours,
/s/ Silverman Sclar Shin & Byrne PLLC
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Silverman Sclar Shin & Byrne PLLC