page 7 and last
18
opinion of the Commission this indemnification is against public policy as
expressed in the Securities Act and is, therefore unenforceable. In the event
that a claim for indemnification against these liabilities, other than our
payment of expense incurred or paid by one of our directors, officers, or
controlling persons in the successful defense of any action, suit or proceeding,
is asserted by that director, officer or controlling person in connection with
the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by a controlling precedent, submit to a court of
appropriate jurisdiction the question whether this indemnification by us is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of these issues.
19
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No dealer, salesman or any other person is authorized to give any
information or to represent anything not contained in this prospectus. You must
not rely on any unauthorized information or representations. This prospectus is
an offer to sell these securities and it is not a solicitation of an offer to
buy these securities in any state where the offer or sale is not permitted. The
information contained in this Prospectus is current only as of this date
TABLE OF CONTENTS
Page
Summary........................................................................2
Offering.......................................................................6
Use of Proceeds................................................................7
Risk Factors...................................................................8
Where you can find more
information about Hemispherx.................................................13
Description of Securities.....................................................14
Resales by Selling Stockholders...............................................14
Plan of Distribution..........................................................16
Transfer Agent................................................................18
Legal Matters.................................................................18
Experts.......................................................................18
Disclosure of Commission Position.............................................18
--------------------
================================================================================
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1,843,750 WARRANTS,
1,843,750 SHARES OF
COMMON STOCK UNDERLYING THE
WARRANTS
272,965 SHARES OF COMMON STOCK
HEMISPHERX BIOPHARMA, INC.
_______________
PROSPECTUS
_______________
____________, 1999
================================================================================
20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
SEC Registration Fee $ 8,801.69
Printing $ 2,500*
Legal Fees and Expenses $20,000*
Accounting Fees and Expenses $ 2,500*
Miscellaneous Expenses (including travel
and promotional expenses) $ 1,000*
TOTAL $34,140.05*
*Estimated
The Selling Stockholders will not pay any portion of the foregoing
expenses of issuance and distribution.
Item 15. Indemnification of Directors and Officers.
The Restated Certificate of Incorporation of the Company provides as
follows:
No person who is or was a director of this Corporation shall
be personally liable to the Corporation or its stockholders for
monetary damages for the breach of any fiduciary duty as a director,
unless, and only to the extent that, such director is liable (i) for
any breach of the director's duty of loyalty to the Corporation or its
stockholder, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction form which the director derived
an improper personal benefit.
Section 145 of the Delaware General Corporation Law gives Delaware
corporations the power to indemnify each of the Company's present and former
officers and directors under certain circumstances, if such person acted in good
faith and in a manner which he reasonably believed to be in, or not opposed to,
the best interests of the corporation. The Company's Restated Certificate of
Incorporation generally requires the Company to indemnify directors and officers
to the fullest extent permissible under Delaware law.
The Company has entered into indemnification agreements with its
current directors and certain of its executive officers. These agreements have
the practical effect in certain cases of eliminating the ability of stockholders
to collect monetary damages from such individuals.
II-1
Item 16. Exhibits and Financial Statement Schedule
(a) The following exhibits are filed herewith:
Exhibit No. Description
(1)3.1 Amended and Restated Certificate of Incorporation of
Registrant, as amended, along with Certificates of
Designations, Rights and Preferences of Series A1, A2, B and C
Preferred Stock, as amended
(1)3.2 By-laws of Registrant, as amended
(2)3.3 Certificate of Designations of Series D Preferred Stock
(2)3.4 Certificate of Correction to Certificate of Designations of
Series D Preferred Stock
(3)3.5 Certificate of Designations of Series E Preferred Stock
(4)10.1* Form of Agreement between Hemispherx and the selling
warrantholders.
(5)5.1* Opinion of Silverman, Collura & Chernis, P.C. with respect to
legality of the securities of the Registrant being registered
(5)23.1* Consent of Silverman, Collura &Chernis, P.C. (included in
Exhibit 5.1)
(4)23.2 Consent of KMPG LLP
(1) Incorporated by reference from the Company's Registration Statement on
Form S-1 (Registration No. 33-93314) declared effective by the
Securities and Exchange Commission on November 2, 1995.
(2) Incorporated by reference from the Company's Registration Statement on
Form S-1 (Registration No. 333-8941) declared effective by the
Securities and Exchange Commission on September 16, 1996.
(3) Incorporated by reference from the Company's Registration Statement on
Form S-1 (Registration No. 333-24983) declared effective by the
Securities and Exchange Commission on April 18, 1997.
(4) Filed with this Amendment No. 1.
(5) To be filed by amendment.
b. Financial Statement Schedules.
II-2
All schedules are omitted from this Registration Statement because they
are not required or the required information is included in the Consolidated
Financial Statement or the Notes thereto.
Item 17. Undertakings.
(a) Rule 415 Offerings.
The undersigned issuer hereby undertakes that it will:
(1) File, during any period in which it offers or sells
securities, a post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) Reflect in the prospectus any facts or events
which, individually or together, represent a
fundamental change in the information in the
Registration Statement; and
(iii) Includes any additional or changed material
information on the plan of distribution.
provided, however, the paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
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
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) For determining liability under the Securities Act, treat
each post-effective amendment as a new registration statement of the securities
offered, and the offering of the securities at that time to be the initial bona
fide offering.
(3) File a post-effective amendment to remove from
registration any of the securities that remain unsold at the end of the
offering.
(b) Request for acceleration of effective date.
(1) Insofar as indemnification for liabilities arising under
the Securities Act, may be permitted to directors, officers and controlling
persons of the small business issuer pursuant to the foregoing provisions, or
otherwise, the issuer has been advised that in the opinion of the Securities and
Exchange 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 issuer of expenses incurred or paid by a director, officer or controlling
person of the issuer in the successful defense of any action, suit or
II-3
proceedings) is asserted by such director, officer or controlling person in
connection with the securities being registered, the issuer 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 court.
(2) For determining any liability under the Securities Act,
treat each post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration statement,
and that offering of the securities at that time as the initial bona fide
offering of those securities.
II-4
SIGNATURES
In accordance with the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements of filing this Form S-3 Amendment No. 1, and authorized this
registration statement to be signed on its behalf by the undersigned, in the
City of Philadelphia, State of Pennsylvania, on September 2, 1999.
HEMISPHERX BIOPHARMA, INC.
By: s/ William A. Carter
---------------------------------------
William A. Carter, President and CEO
In accordance with the requirements of the Securities Act, this
Registration statement was signed by the following persons in the capacities and
on the dates stated.
Signature Title Date
--------- ----- ----
Principal Executive Officer
and Chairman of the Board
and as Power of Attorney
s/ William A. Carter for Members of the Board September 2, 1999
-----------------------------
William A. Carter, M.D.
Principal Financial Officer and
s/ Robert E. Peterson Principal Accounting Officer September 2, 1999
-----------------------------
Robert E. Peterson
s/ Richard Piani Director September 2, 1999
-----------------------------
Richard C. Piani
s/ Ransom W. Etheridge Director September 2, 1999
-----------------------------
Ransom W. Etheridge
Director
-----------------------------
William Mitchell
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