As filed with the Securities and Exchange Commission on September 10, 2004
Registration No. 333-
---------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
HEMISPHERX BIOPHARMA, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-0845822
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
1617 JFK Boulevard
Philadelphia, PA 19103
(215) 988-0080
(Address of Registrant's Principal Executive Office)(Zip Code)
2003 DIRECTORS COMPENSATION PLAN; and
HEMISPHERX 2004 EQUITY INCENTIVE PLAN
(full title of the plan)
William A. Carter, M.D., CEO
Hemispherx Biopharma, Inc.
1617 JFK Boulevard, Suite 660
Philadelphia, PA 19103
(215) 988-0080
(Name, Address & Telephone number, including area code, of agent for service)
Copies to:
Richard Feiner, Esq.
Silverman Sclar Shin & Byrne PLLC
381 Park Avenue South - Suite 1601
New York, New York 10016
(212) 779-8600
CALCULATION OF REGISTRATION FEE
======================================================================================================================
Proposed Proposed
Title of Securities Maximum Maximum Amount of
to be Registered Amount to be Registered(1) Offering Price Aggregate Registration Fee
Per Share(2) Offering Price
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----------------------------------------------------------------------------------------------------------------------
Shares of Common Stock, $.001 par 9,000,000 $2.56 $23,040,000 $2,919.17
value ............................
----------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------
Total Registration Fee.............. $2,919.17
======================================================================================================================
(1) 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 Plans described in this registration statement.
(2) Estimated solely for the purpose of computing the registration fee in
accordance with Rules 457(c) of the Securities Act based on the closing price of
the shares of common stock of the Registrant reported on the American Stock
Exchange on September 8, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing information specified in Part I (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 II of this form taken together constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation Of Documents By Reference.
We incorporate by reference the following documents listed below and
any future filings made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act of 1934, prior to the termination of the offering:
(a) Our amended annual report on Form 10-K for our fiscal year ended December
31, 2003, File No. 1-13441.
(b) Our quarterly report on Form 10-Q for the quarterly period ended March 31,
2004, File No. 1-13441.
(c) Our proxy statement on schedule 14A for our 2004 annual meeting, File No.
1-13441.
(d) Our current report on Form 8-K filed on July 15, 2004, File No. 1-13441.
(e) Our current report on Form 8-K filed on August 2, 2004, File No. 1-13441.
(f) Our current report on Form 8-K filed on August 6, 2004, File No. 1-13441.
(g) Our quarterly report on Form 10-Q for the quarterly period ended June 30,
2004, File No. 1-13441.
(h) Our Registration Statement on Form S-1, SEC File No. 333-117178, declared
effective by the SEC on August 2, 2004.
(i) A description of our common stock contained in our registration statement on
Form S-1, File No. 33-93314, 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.
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.
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).
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of named experts and counsel.
Not Applicable.
Item 6. Indemnification of directors and officers.
The Registrant's Amended and Restated Certificate of Incorporation
provides that the Registrant shall indemnify to the extent permitted by Delaware
law any person whom it may indemnify thereunder, including directors, officers,
employees and agents of the Registrant. Such indemnification (other than an
order by a court) shall be made by the Registrant only upon a determination that
indemnification is proper in the circumstances because the individual met the
applicable standard of conduct. Advances for such indemnification may be made
pending such determination. In addition, the Registrant's Amended and Restated
Certificate of Incorporation eliminates, to the extent permitted by Delaware
law, personal liability of directors to the Registrant and its stockholders for
monetary damages for breach of fiduciary duty as directors.
The Registrant's authority to indemnify its directors and officers is
governed by the provisions of Section 145 of the Delaware General Corporation
Law, as follows:
(a) A corporation shall have the power to 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 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, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person 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 reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which 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 reasonable
cause to believe that the person's conduct was unlawful.
(b) A corporation shall have the power to 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 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,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or
suit 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
except that no indemnification shall 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
of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem
proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (a) and
(b) of this section, or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in
connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as
authorized in the specific case upon a determination that
indemnification of the present or former director, officer, employee
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made, with respect to a
person who is a director or officer at the time of such determination
(1) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, or (2) by
a committee of such directors designated by majority vote of such
directors, even though less than a quorum, or (3) if there are no such
directors, or if such directors so direct, by independent legal
counsel in a written
opinion, or (4) by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending a civil or criminal action, suit or proceeding
may be paid by the corporation in advance of the final disposition or
such action, suit or proceeding upon receipt of an undertaking by or
on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be
indemnified by the corporation as authorized in this section. Such
expenses incurred by former directors and officers and other employees
and agents may be so paid upon such terms and conditions, if any, as
the corporation deems appropriate.
(f) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other subsections of this section shall not
be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
by, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such person's official capacity and as
to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who 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, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by
such person in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify
such person against such liability under this section.
(h) For purposes of this section, references to the "corporation" shall
include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had the power and authority to indemnify its
directors, officers, and employees or agents, so that any person who
is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with respect to
the resulting or surviving corporation as such person would have with
respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans, references to "fines" shall include
any excise taxes assessed on a person with respect to any employee
benefit plan, and references to "serving at the request of the
corporation" shall include any service as a director, officer,
employee, or agent with respect to any employee benefit plan, its
participants or beneficiaries, and a person who acted in good faith
and in a manner such person reasonably believed to be in the interest
of the participants and beneficiaries of any employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best
interests of the corporation" as referred to in this section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or
indemnification brought under this section, or under any bylaw,
agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees).
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
4.1 2003 Directors Compensation Plan
4.2 Hemispherx 2004 Equity Incentive Plan*
5.1 Opinion of Silverman Sclar Shin & Byrne PLLC.
23.1 Consent of Silverman Sclar Shin & Byrne PLLC (included in Exhibit 5.1).
23.2 Consent of BDO Seidman, LLP, independent registered public accountants.
23.3 Consent of Eisner LLP, independent registered public accountants.
24.1 Powers of Attorney (included in Signature Pages to this Registration
Statement on Form S-8).
* Incorporated by reference from Appendix A to the Registrant's Definitive
Schedule 14A (proxy statement) for the 2004 Annual Meeting of Stockholders (No.
1-13441) filed on May 20, 2004.
Item 9. Undertakings
(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 this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(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 this Registration Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement; provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required to be included
in a post-effective amendment by those paragraphs is 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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement 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.
(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 SEC 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 by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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 9th day
of September 2004.
Hemispherx Biopharma, Inc.
By: /s/ William A. Carter
-----------------------------
William A. Carter, M.D.,
President,
Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William A. Carter, acting alone, his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for such person in his name, place and stead, in any and all
capacities, in connection with the Registrant's Registration Statement on Form
S-8 under the Securities Act of 1933, including, without limiting the generality
of the foregoing, to sign the Registration Statement in the name and on behalf
of the Registrant or on behalf of the undersigned as a director or officer of
the Registrant, and any and all amendments or supplements to the Registration
Statement, including any and all stickers and post-effective amendments to the
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission and any applicable securities exchange or securities self-regulatory
body, granting unto said attorney-in-fact and agents, each acting alone, 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 attorneys-in-fact and agents, or their substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
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.
Signature Title Date
/s/William A. Carter President, Chairman, Chief September 9, 2004
--------------------------- Executive Officer and Director
William A. Carter
/s/Robert E. Peterson Chief Financial Officer September 9, 2004
---------------------------
Robert E. Peterson
/s/Ransom Etheridge Director September 9, 2004
---------------------------
Ransom Etheridge
/s/Richard Piani Director September 9, 2004
---------------------------
Richard Piani
____________________ Director September __, 2004
Iraj-Eqhbal Kiani
/s/Antoni Esteve Director September 9, 2004
---------------------------
Antoni Esteve
/s/William Mitchell Director September 9, 2004
---------------------------
William Mitchell
Index to Exhibits
4.1 2003 Directors Compensation Plan
5.1 Opinion of Silverman Sclar Shin & Byrne PLLC.
23.1 Consent of Silverman Sclar Shin & Byrne PLLC (included in Exhibit 5.1).
23.2 Consent of BDO Seidman, LLP, independent registered public accountants.
23.3 Consent of Eisner LLP, independent registered public accountants.
24.1 Powers of Attorney (included in Signature Pages to this Registration
Statement on Form S-8).
Exhibit 4.1
HEMISPHERX BIOPHARMA, INC.
DIRECTOR'S COMPENSATION PLAN
1. Purpose.
The 2003 Director's compensation plan is intended to provide a method
whereby non-employee members of the Board of Directors of Hemispherx
Biopharma, Inc. receive fair compensation with incentives for their
duties as members of the board.
2. Administration of Plan.
The plan shall be administered by the Compensation Committee of the
Board of Directors. The Committee is authorized to interpret the plan,
to prescribe, amend and rescind rules and regulations relating to it.
3. Compensation.
For the ten year period commencing January 1, 2003, each of the
directors then serving shall receive annual director's fees consisting
of $50,000 ("Cash Compensation") and shares of common stock of the
company having a value of $50,000 ("Share Compensation"). The Cash
Compensation and Share Compensation shall be paid quarterly in each
year ("Quarterly Payment") on March 31, June 30, September 30 and
December 31. The Share Compensation Quarterly Payment shall be that
number of shares of the Company's common stock having a value equal to
$12,500, with the value of the shares being determined by the closing
share price of the Company's common stock on the American Stock
Exchange on the last trading day preceding the Quarterly Payment.
4. Limitation on Share Compensation.
In no event shall the number of shares issued for Share Compensation
exceed in the aggregate for the ten year period 1,000,000 shares
("Share Limit"). In the event the Share Limit would otherwise be
exceeded by any Share Compensation Quarterly Payment such Share
compensation Quarterly Payment shall be changed into and made as a Cash
Compensation Quarterly Payment.
5. Eligibility.
All members of the Board of Directors that are not employees of the
company and attend at least one board meeting per calendar quarter.
This plan was approved by the Board of Directors on September 9, 2003.
/s/Ransom W. Etheridge
--------------------------
Ransom W. Etheridge, Secretary
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
September 9, 2004
Board of Directors
Hemispherx Biopharma, Inc.
1617 JFK Boulevard
Philadelphia, PA 19103
Re: Hemispherx Biopharma, Inc. - Registration Statement on Form S-8
---------------------------------------------------------------
Gentlemen:
At your request, we have examined the Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission (the "SEC") in connection with
the registration under the Securities Act of 1933, as amended, of an aggregate
of 9,000,000 shares (the "Shares") of your common stock, $.001 par value
("Common Stock") issuable from time to time in connection with the Hemispherx
Biopharma, Inc. 2003 Directors Compensation Plan and the Hemispherx Biopharma,
Inc. 2004 Equity Incentive Plan (collectively, the "Plans").
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,
it is our opinion that the Shares, when issued and outstanding pursuant to the
terms of the Plans, will be validly 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
-------------------------------------
Silverman Sclar Shin & Byrne PLLC
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS
Hemispherx Biopharma, Inc.
Philadelphia, Pennsylvania
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 13, 2004 relating to the
consolidated financial statements of Hemispherx Biopharma, Inc. and subsidiaries
appearing in the Company's Annual Report on Form 10-K/A for the year ended
December 31, 2003.
/s/ BDO Seidman, LLP
---------------------
BDO Seidman, LLP
Philadelphia, Pennsylvania
September 10, 2004
Exhibit 23.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Hemispherx Biopharma, Inc. of our reports dated March
18, 2004 and June 10, 2003 on our audits of Interferon Sciences, Inc. and
subsidiary's consolidated financial statements as of December 31, 2003 and 2002
and for each of the years in the three-year period ended December 31, 2003
included in Hemispherx Biopharma, Inc.'s Registration Statement on Form S-1
(File No. 333-117178). We also audited Schedule II - Valuation and Qualifying
Accounts of Interferon Sciences, Inc. for the years ended December 31, 2003,
2002 and 2001.
/s/ Eisner LLP
-----------
Eisner LLP
New York, New York
September 8, 2004