Filed
Pursuant to Rule 424(b)(3)
Registration
No. 333-217671
Prospectus
4,121,216
Shares of Common Stock
Issuable
Upon Exercise of Outstanding Warrants
This
prospectus relates to the resale of an aggregate of 4,121,216 shares of our common stock, which may be offered for sale from time
to time by the selling stockholders (the “Selling Stockholders”) named in this prospectus, that they may receive if
they exercise their outstanding warrants (the “Warrants”).
We
are not selling any shares of common stock under this prospectus and will not receive any proceeds from the sale of common stock
by the Selling Stockholders. The shares of common stock to which this prospectus relates may be offered and sold from time to
time directly by the Selling Stockholders or alternatively through underwriters, broker-dealers or agents. The shares of common
stock may be sold in one or more transactions, at fixed prices, at prevailing market prices at the time of sale or at negotiated
prices. The Selling Stockholders will be responsible for any underwriting fees, discounts and commissions due to underwriters,
brokers-dealers or agents. Please see the section titled “Plan of Distribution” of this prospectus for a more complete
description of how the offered common stock may be sold.
You
should carefully read this prospectus and any prospectus supplement before you invest. You also should read the documents we have
referred you to in the “Where You Can Find More Information” and the “Incorporation by Reference” sections
of this prospectus for information about us and our financial statements.
Our
common stock is traded on the NYSE MKT under the symbol “HEB.” On May 22, 2017, the last reported sale price
for our common stock on the NYSE MKT was $0.55 per share.
Investing
in our securities involves risks. See “
Risk Factors“
on page
4
of this Prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus
is May 23, 2017
TABLE
OF CONTENTS
Neither
we nor the Selling Stockholders have authorized any dealer, salesman or other person to provide you with information other than
the information contained in or incorporated by reference into this prospectus. This prospectus does not constitute, and may not
be used in connection with, an offer to sell, or a solicitation of an offer to buy, the common stock offered by this prospectus
by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation. You should not
assume that the information contained in this prospectus is accurate as of any date other than the date on the front cover of
the prospectus, or that the information contained in any document incorporated by reference into this prospectus is accurate as
of any date other than the date of the document incorporated by reference, regardless of the time of delivery of this prospectus
or any sale of a security. Our business, financial condition, results of operations and prospects may have changed since those
dates.
This
prospectus contains forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond
our control. See “Risk Factors” and “Cautionary Statement Regarding Forward-Looking Statements”.
PROSPECTUS
SUMMARY
This
summary description about us and our business highlights selected information contained elsewhere in this prospectus or incorporated
by reference into this prospectus. It does not contain all the information you should consider before investing in our securities.
Important information is incorporated by reference into this prospectus. To understand this offering fully, you should read carefully
the entire prospectus, including “Risk Factors,” together with the additional information described under “Incorporation
By Reference.”
Unless
otherwise stated or the context otherwise requires, references in this prospectus to “Hemispherx”, “we”,
“us”, “our” and “ours” refer to Hemispherx Biopharma, Inc.
About
Hemispherx
We
are a specialty pharmaceutical company headquartered in Philadelphia, Pennsylvania and engaged in the clinical development of
new drug therapies based on natural immune system enhancing technologies for the treatment of viral and immune based disorders.
We were first formed in 1966 and in the early 1970s were doing contract research for the National Institutes of Health. Since
that time, we have established a strong foundation of laboratory, pre-clinical and clinical data with respect to the development
of natural interferon and nucleic acids to enhance the natural antiviral defense system of the human body and to aid the development
of therapeutic products for the treatment of certain chronic diseases.
Our
flagship products include Alferon N Injection® and the experimental therapeutic Ampligen®. Alferon N Injection® is
approved for a category of STD infection, and Ampligen® represents an experimental RNA being developed for globally important
viral diseases and disorders of the immune system. Hemispherx’ platform technology includes components for potential treatment
of various severely debilitating and life threatening diseases.
The
chart below provides an overview of clinical indications for both Ampligen® and Alferon® currently under development.
We
own and operate a 30,000 sq. ft. facility in New Brunswick, NJ with the ability to produce Alferon® and Ampligen®, and
completed the construction of our $8 million facility enhancement project in 2015 which, upon FDA approval, should provide for
a higher capacity, more cost effective manufacturing process for the production of Alferon N Injection®.
Our
principal executive office is located at One Penn Center, 1617 JFK Boulevard, Philadelphia, Pennsylvania 19103, and our telephone
number is 215-988-0080.
The
Offering
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Common
Stock offered by Selling Stockholders:
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4,121,216
Shares of common stock, $0.001 par value per share, issuable upon exercise of Warrants.
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Common
Stock Outstanding:
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26,589,092
Shares of common stock outstanding as of May 22, 2017.
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Use
of Proceeds:
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We
will not receive any of the proceeds from the sale of any shares of common stock by the Selling Stockholders. However, we
will receive proceeds from the exercise of the Warrants if and when they are exercised. See “Use of Proceeds”.
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Risk
Factors:
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Investing
in our common stock involves a high degree of risk. Please see “Risk Factors” and the risk factors set forth in
the documents incorporated by reference herein for a discussion of risks to consider before deciding to purchase shares of
our common stock.
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NYSE
MKT trading symbol:
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HEB
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RISK
FACTORS
Investing
in our common stock involves a high degree of risk. Before deciding whether to purchase shares of our common stock, you should
carefully consider the risks and uncertainties described under “Risk Factors” in the Annual Report on Form 10-K for
the fiscal year ended December 31, 2016, any subsequent Quarterly Report on Form 10-Q and our other filings with the Securities
and Exchange Commission (the “SEC”), all of which are incorporated by reference herein (please see “Incorporation
by Reference”). If any of these risks actually occur, our business, financial condition and results of operations could
be materially and adversely affected and we may not be able to achieve our goals, the value of our securities could decline and
you could lose some or all of your investment. Additional risks not presently known to us or that we currently deem immaterial
may also impair our business operations.
CAUTIONARY
STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain
statements in this prospectus and in the other filings incorporated by reference, constitute “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Private Securities Litigation Reform
Act of 1995. Certain, but not necessarily all, of such forward-looking statements can be identified by the use of forward-looking
terminology such as “believes”, “expects”, “may”, “will”, “should”,
or “anticipates” or the negative thereof or other variations thereon or comparable terminology, or by discussions
of strategy that involve risks and uncertainties. These statements involve known and unknown risks, uncertainties and other important
factors that may cause our actual results, performance or achievements to be materially different from any future results, performances
or achievements expressed or implied by the forward-looking statements. We can give no assurances that any of the events anticipated
by the forward-looking statements will occur or, if any of them do, what impact they will have on our business, results of operations
and financial condition. New factors emerge from time to time, and it is not possible for us to predict which will arise. We cannot
assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual
results to differ materially from those contained in any forward-looking statements. All statements other than statements of historical
fact included in or incorporated by reference in this prospectus regarding our financial position, business strategy and plans
or objectives for future operations are forward-looking statements.
Among
the factors that could cause actual results to differ materially from those indicated in the forward-looking statements are risks
and uncertainties inherent in our business including, without limitation: our ability to adequately fund our projects, the potential
therapeutic effect of our products, the possibility of obtaining regulatory approval, our ability to find senior co-development
partners with the capital and expertise needed to commercialize our products and to enter into arrangements with them on commercially
reasonable terms, our ability to manufacture and sell any products, our ability to enter into arrangements with third party vendors,
market acceptance of our products, our ability to earn a profit from sales or licenses of any drugs, our ability to discover new
drugs in the future, changing market conditions, changes in laws and regulations affecting our industry, and issues related to
our New Brunswick, New Jersey facility. We have disclosed that in February 2013, we received a Complete Response from the U.S.
Food and Drug Administration (the “FDA”) declining to approve our Ampligen® New Drug Application (“NDA”)
for Chronic Fatigue Syndrome Treatment, sometimes referred to as myalgic encephalomyelitis/chronic fatigue syndrome (“ME/CFS”)
stating that we should conduct at least one additional clinical trial, complete various nonclinical studies and perform a number
of data analyses. Accordingly, the remaining steps to potentially gain FDA approval of the Ampligen® NDA, the final results
of these and other ongoing activities could vary materially from our expectations and could adversely affect the chances for approval
of the Ampligen® NDA. These activities and the ultimate outcomes are subject to a variety of risks and uncertainties, including
but not limited to risks that (i) the FDA may ask for additional data, information or studies to be completed or provided; and
(ii) the FDA may require additional work related to the commercial manufacturing process to be completed or may, in the course
of the inspection of manufacturing facilities, identify issues to be resolved. With regard to our NDA for Ampligen® to treat
ME/CFS, we noted above that there are additional steps which the FDA has advised Hemispherx to take in our seeking approval. The
final results of these and other ongoing activities, and of the FDA review, could vary materially from Hemispherx’ expectations
and could adversely affect the chances for approval of the Ampligen® NDA. Any failure to satisfy the FDA’s requirements
could significantly delay, or preclude outright, approval of our drugs for commercial sale in the United States.
On
August 18, 2016, we received approval of our New Drug Application from Administracion Nacional de Medicamentos, Alimentos y Tecnologia
Medica (“ANMAT”) for commercial sale of rintatolimod (U.S. tradename: Ampligen®) in the Argentine Republic for
the treatment of severe ME/CFS. The product will be marketed by GP Pharm, our commercial partner in Latin America.
We
believe that this approval provides a platform for potential commercial sales in certain countries within the European Union under
regulations that support cross-border pharmaceutical sales of licensed drugs. We and GP Pharm are now working to expand the approval
of rintatolimod to additional countries with a focus on Latin America. In Europe, approval in a country with a stringent regulatory
process in place, such as Argentina, should add further validation for the product as the Early Access Program discussed below
is underway in Europe. ANMAT approval is only an initial, but important, step in the overall successful commercialization of our
product. There are a number of actions that must occur before we could be able to commence commercial sales in Argentina. Commercialization
in Argentina will require, among other things, an appropriate reimbursement level, appropriate marketing strategies, completion
of manufacturing preparations for launch (including possible requirements for approval of final manufacturing), and there are
no assurances as to whether or when such multiple subsequent steps will be successfully performed to result in an overall successful
commercialization and product launch. Approval of rintatolimod for ME/CFS in the Argentine Republic does not in any way suggest
that the Ampligen® NDA in the United States will obtain commercial approval.
On
May 24, 2016, we entered into an amended and restated agreement with Impatients, N.V. (“Impatients”), a Netherlands
based company doing business as myTomorrows, for the commencement and management of an Early Access Program (“EAP”)
in Europe and Turkey (the “Territory”) related to ME/CFS. Pursuant to the agreement, Impatients, as our exclusive
service provider and distributor in the Territory, is performing EAP activities directed to (a) the education of physicians and
patients regarding the possibility of early access to innovative medical treatments not yet the subject of a Marketing Authorization
(regulatory approval) through named-patient use, compassionate use, expanded access and hospital exemption, (b) patient and physician
outreach related to a patient-physician platform, (c) the securing of Early Access Approvals (exemptions and/or waivers required
by regulatory authorities for medical treatments prior to Marketing Authorization) for the use of such treatments, (d) the distribution
and sale of such treatments pursuant to such Early Access Approvals, (e) pharmacovigilance (drug safety) activities and/or (f)
the collection of data such as patient-reported outcomes, doctor-reported experiences and registry data. No assurance can be given
that activities under the EAP will result in Marketing Authorization or the sale of substantial amounts of Ampligen® in the
Territory.
Our
overall objectives include plans to continue seeking approval for commercialization of Ampligen® in the United States and
abroad as well as seeking to broaden commercial therapeutic indications of Alferon N Injection® presently approved in the
United States and Argentina. We continue to pursue senior co-development partners with the capital and expertise needed to commercialize
our products and to enter into arrangements with them on commercially reasonable terms. In addition, we have formed collaborations
with multiple research laboratories around the world to examine Ampligen®, an experimental therapeutic, and Alferon® N,
an FDA-approved commercial product (for refractory venereal warts (HPV)) as potential preventatives for, and treatments of, Ebola
Virus Disease (EVD) among others. Our ability to commercialize our products, widen commercial therapeutic indications of Alferon
N Injection® and/or capitalize on our collaborations with research laboratories to examine our products as potential preventatives
for, and treatments of, MERS, among others, are subject to a number of significant risks and uncertainties including, but not
limited to our ability to enter into more definitive agreements with some of the research laboratories and others that we are
collaborating with, to fund and conduct additional testing and studies, whether or not such testing is successful or requires
additional testing and meets the requirements of the FDA and comparable foreign regulatory agencies. We do not know when, if ever,
our products will be generally available for commercial sale for any indication.
We
outsource certain components of our manufacturing, quality control, marketing and distribution while maintaining control over
the entire process through our quality assurance and regulatory groups. We cannot provide any guarantee that the facility or our
contract manufacturer will necessarily pass an FDA pre-approval inspection for Alferon® manufacture.
The
production of new Alferon® API inventory will not commence until the validation phase is complete. While the facility is approved
by FDA under the Biological License Application (“BLA”) for Alferon®, this status will need to be reaffirmed by
a successful Pre-Approval Inspection by the FDA prior to commercial sale of newly produced inventory product. The validation phase
was delayed because of the damage caused by the flood that occurred on January 5, 2016 at the facility. At this time, the Company
believes that all repairs to the manufacturing facility have been completed. If and when the Company obtains a reaffirmation of
FDA BLA status and has begun production of new Alferon® API, it will need FDA approval as to the quality and stability of
the final product to allow commercial sales to resume. We most likely will need additional funds to finance the revalidation process
in our facility to initiate commercial manufacturing, thereby readying ourselves for an FDA Pre-Approval Inspection. If we are
unable to gain the necessary FDA approvals related to the manufacturing process and/or final product of new Alferon® inventory,
our operations most likely will be materially and/or adversely affected. In light of these contingencies, there can be no assurances
that the approved Alferon N Injection® product will be returned to production on a timely basis, if at all, or that if and
when it is again made commercially available, it will return to prior sales levels.
On
March 15, 2016, we received written notice from the NYSE MKT LLC that we were not in compliance with its continued listing standards
because our common stock had been selling for a low price per share for a substantial period of time. The NYSE MKT determined
that the continued listing of our common stock was predicated on our effecting a reverse stock split of our common stock. Our
stockholders approved a reverse stock split, our Board effected a 12-to-1 reverse stock split effective August 26, 2016 and our
reverse split shares started trading on August 29, 2016. On September 15, 2016, we received written notice from the NYSE MKT LLC
that we were back in compliance with the continued listing standards set forth in Section 1003(f)(v) of the NYSE MKT Company Guide
referenced in the Exchange’s letter dated March 15, 2016. The Company will be subject to NYSE Regulation’s normal
continued listing monitoring. However, in accordance with Section 1009(h) of the Company Guide, if the Company is again determined
to be below any of the continued listing standards within 12 months of the date of this letter, NYSE MKT will examine the relationship
between the two incidents of noncompliance and re-evaluate the Company’s financial recovery from the first incident. NYSE
Regulation will then take appropriate action, which depending on the circumstances, may include truncating the compliance procedures
described in Section 1009 of the Company Guide or immediately initiate delisting procedures.
We
do not undertake and specifically decline any obligation to publicly release the results of any revisions which may be made to
any forward-looking statement to reflect events or circumstances after the date of such statements or to reflect the occurrence
of anticipated or unanticipated events.
USE
OF PROCEEDS
We
will not receive any of the proceeds from the sale of any shares of common stock by the Selling Stockholders. However, we will
receive proceeds from the exercise of the Warrants if and when they are exercised. At present, the exercise prices of the Warrants
are significantly above the current trading price of our common stock.
MARKET
PRICE OF OUR COMMON STOCK
The
following table sets forth the high and low prices for our common stock for the last two fiscal years and the first quarter of
2017 as reported by the NYSE MKT. Such prices reflect inter-dealer prices, without retail mark-up, mark-downs or commissions and
may not necessarily represent actual transactions. The following prices give retroactive effect to the 12-to-1 reverse stock split
effected on August 26, 2016.
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High
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Low
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COMMON STOCK
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Time
Period:
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January 1, 2017 through
March 31, 2017
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$
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0.93
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$
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0.39
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January 1, 2016 through March 31,
2016
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$
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2.40
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$
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0.78
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April 1, 2016 through June 30, 2016
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$
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1.92
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$
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1.24
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July 1, 2016 through September 30,
2016
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$
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2.64
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$
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1.24
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October 1, 2016 through December
31, 2016
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$
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1.26
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$
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0.65
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January 1, 2015 through March 31,
2015
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$
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3.96
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$
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2.52
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April 1, 2015
through
June 30, 2015
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$
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3.48
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$
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2.40
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July 1, 2015 through
September 30, 2015
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$
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2.52
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$
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1.68
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October 1, 2015
through December 31, 2015
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$
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2.16
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$
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0.72
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On
May 22, 2017, the last sale price for our common stock on the NYSE MKT was $0.55 per share.
SELLING
STOCKHOLDERS
The
shares of common stock being offered by the Selling Stockholders pursuant to this prospectus are those issuable upon exercise
of Warrants previously issued to the Selling Stockholders (the “Warrant Shares”). We are registering the Warrant Shares
in order to permit the Selling Stockholders to offer the shares for resale from time to time. Except for the ownership of shares
acquired in a registered direct offering and the Warrants, the Selling Stockholders have not had any material relationship with
us within the past three years.
The
table below lists the Selling Stockholders and other information regarding the beneficial ownership of our common stock by each
of the Selling Stockholders, and is based on 26,589,092 shares of our common stock outstanding on May 22, 2017. The number
of shares listed as beneficially owned by each Selling Stockholder is based on its ownership of shares and Warrants as of May
3, 2017 and assumes exercise of the Warrants held by the Selling Stockholders on that date, without regard to any limitations
on exercises.
The
Warrants held by the Selling Stockholders consist of:
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(i)
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Warrants
dated February 6, 2017 exercisable for an aggregate of 1,363,639 shares of common stock at an exercise price of $0.75 per
share, initially exercisable on August 6, 2017 and for a five years thereafter (“2017 Investor Warrants”);
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(ii)
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Warrants
dated February 6, 2017 exercisable for an aggregate of 90,910 shares of common stock at an exercise price of $0.6875 per share,
initially exercisable on August 6, 2017 and for a five years thereafter (“2017 PA Warrants”);
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(iii)
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Warrants
dated September 6, 2016 exercisable for an aggregate of 2,500,000 shares of common stock at an exercise price of $2.00 per
share, initially exercisable on March 6, 2017 and for a five years thereafter (“2016 Investor Warrants”); and
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(iv)
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Warrants
dated September 6, 2016 exercisable for an aggregate of 166,667 shares of common stock at an exercise price of $1.875 per
share, initially exercisable from March 6, 2017 through September 1, 2021 (“2016 PA Warrants”).
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Although
some of the Warrants held by the Selling Stockholders are not exercisable until August 2017, for purposes of the table below,
the Shares of common stock and percentage ownership identified below assume that the Warrants are currently exercisable and thus
the shares of common stock underlying the Warrants are deemed to be outstanding and to be beneficially owned by the Selling Stockholders
holding the Warrants, but are not treated as outstanding for the purpose of computing the percentage ownership of any other Selling
Stockholders.
Under
the terms of the Warrants, a Selling Stockholder may not exercise Warrants to the extent that such Selling Stockholder, together
with its affiliates, would beneficially own, after such exercise more than 4.99% of the shares of common stock then outstanding
(subject to the right of the Selling Stockholder to increase or decrease such beneficial ownership limitation upon notice to us,
provided that such limitation cannot exceed 9.99%) and provided that any increase in the beneficial ownership limitation shall
not be effective until 61 days after such notice is delivered. The number of shares does not reflect this limitation. The Selling
Stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
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Shares
Beneficially Owned Prior to the Offering
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Shares
Beneficially Owned After Giving Effect to the Offering
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Name
of Selling Stockholder
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Number
of Shares of Common Stock Owned Prior to the Offering
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Percentage
of Shares Beneficially Owned Prior to the Offering
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Maximum
Number of Shares of Common Stock to be Sold Pursuant to this Prospectus (1)
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Number
of Shares of Common Stock Owned After the Offering
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Percentage
of Shares Beneficially Owned After Giving Effect to the Offering
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Sabby Healthcare Master
Fund, Ltd. (2)(4)
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1,376,575
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5.2
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%
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750,000
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626,575
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2.4
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%
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Sabby Volatility Warrant Master Fund,
Ltd. (3) (4)
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841,147
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3.2
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%
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500,000
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341,147
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1.3
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%
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Anson Investments Master Fund LP.
(5)
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1,590,909
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6.0
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%
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1,590,909
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0
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*
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JMM Trading LP (6)
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340,909
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1.3
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%
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340,909
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0
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*
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Hudson Bay Master Fund LTD (7)
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340,910
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1.3
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%
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340,910
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0
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*
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Intracoastal Capital LLC (8)
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340,911
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1.3
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%
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340,911
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0
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*
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Michael Vasinkevich (9)(14)
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88,866
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*
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88,866
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0
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*
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Noam Rubinstein (10)(14)
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81,136
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*
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81,136
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0
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*
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H.C. Wainwright & Co., LLC (11)
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78,939
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*
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78,939
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0
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*
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Mark Viklund (12)(14)
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6,060
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*
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6,060
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0
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*
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Charles Worthman (13)(14)
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2,576
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*
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|
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2,576
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|
|
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0
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|
|
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*
|
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*Represents
beneficial ownership of less than one percent.
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(1)
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We
do not know when or in what amounts a Selling Stockholder may offer shares for sale. The Selling Stockholders may choose not
to sell any or all of the shares offered by this prospectus. Because the Selling Stockholders may offer all or some of the
shares pursuant to this offering, we cannot estimate the number of the shares that will be held by the Selling Stockholders
after completion of the offering. However, for purposes of this table, we have assumed that, after completion of the offering,
all of the shares covered by this prospectus will be sold by the Selling Stockholders.
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(2)
|
750,000
shares of common stock are registered for sale under this prospectus and are issuable upon conversion of 2016 Investor Warrants.
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(3)
|
500,000
shares of common stock are registered for sale under this prospectus and are issuable upon conversion of 2016 Investor Warrants.
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(4)
|
Sabby
Management, LLC is the investment manager of Sabby Healthcare Master Fund, Ltd. and Sabby Volatility Warrant Master Fund,
Ltd. and shares voting and investment power with respect to these shares in this capacity. As manager of Sabby Management,
LLC, Hal Mintz also shares voting and investment power on behalf of each Selling Stockholder. Each of Sabby Management, LLC
and Hal Mintz disclaims beneficial ownership over the securities listed except to the extent of their pecuniary interest therein.
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(5)
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1,590,909
shares of common stock are registered for sale under this prospectus, 1,250,000 of which are issuable upon conversion of 2016
Investor Warrants and 340,909 of which are issuable upon conversion of 2017 Investor Warrants. Anson Advisors Inc and Anson
Funds Management LP, the Co-Investment Advisers of Anson Investments Master Fund LP (“Anson”), hold voting and
dispositive power over the Common Shares held by Anson. Bruce Winson is the managing member of Anson Management GP LLC, which
is the general partner of Anson Funds Management LP. Moez Kassam and Adam Spears are directors of Anson Advisors Inc. Mr.
Winson, Mr. Kassam and Mr. Spears each disclaim beneficial ownership of these Common Shares except to the extent of their
pecuniary interest therein.
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(6)
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340,909
shares of common stock are registered for sale under this prospectus and are issuable upon conversion of 2017 Investor Warrants.
Richard Hennig acting alone, has voting and dispositive power over the shares beneficially owned by JMM Trading LP.
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(7)
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340,910
shares of common stock are registered for sale under this prospectus and are issuable upon conversion of 2017 Investor Warrants.
Hudson Bay Capital Management, L.P., the investment manager of Hudson Bay Master Fund Ltd., has voting and investment power
over these securities. Sander Gerber is the managing member of Hudson Bay Capital GP LLC, which is the general partner of
Hudson Bay Capital Management, L.P. Each of Hudson Bay Master Fund Ltd. and Sander Gerber disclaims beneficial ownership over
these securities.
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(8)
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340,911
shares of common stock are registered for sale under this prospectus and are issuable upon conversion of 2017 Investor Warrants.
Mitchell P. Kopin (“Mr. Kopin”) and Daniel B. Asher (“Mr. Asher”), each of whom are managers of Intracoastal
Capital LLC (“Intracoastal”), have shared voting control and investment discretion over the securities reported
herein that are held by Intracoastal. As a result, each of Mr. Kopin and Mr. Asher may be deemed to have beneficial ownership
of the securities reported herein that are held by Intracoastal. Mr. Asher, who is a manager of Intracoastal, is also a control
person of a broker-dealer. As a result of such common control, Intracoastal may be deemed to be an affiliate of a broker-dealer.
Intracoastal acquired the Warrants in the ordinary course of business, and at the time of the acquisition of the Warrants
described herein, Intracoastal did not have any arrangements or understandings with any person to distribute such securities.
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(9)
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88,866
shares of common stock are registered for sale under this prospectus, 57,500 of which are issuable upon conversion of 2016
PA Warrants and 31,366 of which are issuable upon conversion of 2017 PA Warrants.
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(10)
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81,136
shares of common stock are registered for sale under this prospectus, 52,500 of which are issuable upon conversion of 2016
PA Warrants and 28,636 of which are issuable upon conversion of 2017 PA Warrants.
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(11)
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78,939
shares of common stock are registered for sale under this prospectus, 51,667 of which are issuable upon conversion of 2016
PA Warrants and 27,272 of which are issuable upon conversion of 2017 PA Warrants. Mark Viklund is the Chief Executive Officer
of H.C. Wainwright & Co. and as such, exercises voting and dispositive power with respect to the shares held by this selling
stockholder. H.C. Wainwright was the placement agent in the private offerings in which the Warrants were sold, and at the
time of the acquisition of the Warrants by the Selling Stockholder, such Selling Stockholder did not have any arrangements
or understandings with any person to distribute such securities. The Selling Stockholder received the warrants as compensation
for the private offerings.
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(12)
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6,060
shares of common stock are registered for sale under this prospectus, 3,333 of which are issuable upon conversion of 2016
PA Warrants and 2,727 of which are issuable upon conversion of 2017 PA Warrants.
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(13)
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2,576
shares of common stock are registered for sale under this prospectus, 1,667 of which are issuable upon conversion of 2016
PA Warrants and 909 of which are issuable upon conversion of 2017 PA Warrants.
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(14)
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The
Selling Stockholder is an affiliate of H.C. Wainwright, the placement agent in the private offerings in which the Warrants
were sold, and at the time of the acquisition of the Warrants by the Selling Stockholder, such Selling Stockholder did not
have any arrangements or understandings with any person to distribute such securities. The Selling Stockholder received the
warrants as compensation for the private offerings.
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PLAN
OF DISTRIBUTION
We
are registering the offer and resale of the Warrant Shares to permit the sale of Warrant Shares, after issuance by us pursuant
to the terms of the Warrants, by the Selling Stockholders from time to time after the date of this prospectus. We will not receive
any of the proceeds from the sale of the Warrant Shares by the Selling Stockholders. We will bear all fees and expenses incident
to registration of the Warrant Shares, except that, if the Warrant Shares are sold through underwriters or broker-dealers, the
Selling Stockholders will be responsible for any underwriting discounts or commissions or agent’s commissions.
The
Selling Stockholders may sell all or a portion of the Warrant Shares beneficially owned by them and offered hereby from time to
time directly or through one or more underwriters, broker-dealers or agents. The Warrant Shares may be sold in one or more transactions
at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at
negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions:
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on
any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
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in
the over-the-counter market;
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in
transactions otherwise than on these exchanges or systems or in the over-the-counter market;
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through
the writing of options, whether such options are listed on an options exchange or otherwise;
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ordinary
brokerage transactions and transactions in which the broker-dealer solicits purchasers;
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block
trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its account;
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an
exchange distribution in accordance with the rules of the applicable exchange;
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privately
negotiated transactions;
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short
sales;
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sales
pursuant to Rule 144 of the Securities Act;
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broker-dealers
may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share;
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a
combination of any such methods of sale; and
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any
other method permitted pursuant to applicable law.
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If
the Selling Stockholders effect such transactions by selling Warrant Shares to or through underwriters, broker-dealers or agents,
such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from
the Selling Stockholders or commissions from purchasers of the Warrant Shares for whom they may act as agent or to whom they may
sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be
in excess of those customary in the types of transactions involved). In connection with sales of the Warrant Shares or otherwise,
the Selling Stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of our
common stock in the course of hedging in positions they assume. The Selling Stockholders may also sell shares of our common stock
short and deliver shares of our common stock covered by this prospectus to close out short positions and to return borrowed shares
in connection with such short sales. The Selling Stockholders may also loan or pledge shares of our common stock to broker-dealers
that in turn may sell such shares.
The
Selling Stockholders may pledge or grant a security interest in some or all of the shares of our common stock owned by them and,
if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares
of common stock from time to time pursuant to this prospectus or other applicable provisions of the Securities Act, amending,
if necessary, the list of Selling Stockholders to include the pledgee, transferee or other successors in interest as Selling Stockholders
under this prospectus. The Selling Stockholders also may transfer and donate the shares of our common stock in other circumstances
in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes
of this prospectus.
The
Selling Stockholders and any broker-dealer participating in the distribution of the shares of our common stock may be deemed to
be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions
allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the
time a particular offering of the shares of our common stock is made, a prospectus supplement, if required, will be distributed
which will set forth the aggregate amount of shares of our common stock being offered and the terms of the offering, including
the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the
Selling Stockholders and any discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.
There
can be no assurance that the Selling Stockholders will sell any or all of the shares of our common stock registered pursuant to
the registration statement of which this prospectus forms a part.
The
Selling Stockholders and any other person participating in such distribution will be subject to applicable provisions of the Exchange
Act, and the rules and regulations thereunder, including, without limitation, Regulation M of the Exchange Act, which may limit
the timing of purchases and sales of any of the shares of our common stock by the Selling Stockholders and any other participating
person.
We
will pay all expenses of the registration of the shares of our common stock pursuant to the registration statement of which this
prospectus forms a part; provided, however, that the Selling Stockholders will pay all underwriting discounts and selling commissions,
if any.
Once
sold under the registration statement of which this prospectus forms a part, the shares of our common stock will be freely tradable
in the hands of persons other than our affiliates.
LEGAL
MATTERS
Certain
legal matters in connection with our common stock offered hereby will be passed upon for us by Silverman Shin & Byrne PLLC.
EXPERTS
The
consolidated financial statements incorporated in this Prospectus by reference from the Company’s Annual Report on Form
10-K for the year ended December 31, 2016, have been audited by RSM US LLP, an independent registered public accounting firm,
as stated in their report incorporated herein by reference. Such consolidated financial statements have been incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
are required to file annual and quarterly reports and other information with the SEC. You may read and copy any materials we file
with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Room 1580, Washington, D.C., 20549. Please call 1-800-SEC-0330
for further information on the operation of the Public Reference Room. Our filings will also be available to the public from commercial
document retrieval services and at the web site maintained by the SEC at http://www.sec.gov. Except as described below, our reports
and other information that we have filed, or may in the future file, with the SEC are not incorporated by reference into and do
not constitute part of this prospectus.
We
have filed with the SEC a registration statement on Form S-1 (including the exhibits, schedules and amendments thereto) under
the Securities Act, with respect to the shares of our common stock common stock that may be issued upon exercise of Warrants offered
hereby. This prospectus does not contain all of the information set forth in the registration statement and the exhibits and schedules
thereto. For further information with respect to the common stock offered hereby, we refer you to the registration statement and
the exhibits and schedules filed therewith. Statements contained in this prospectus as to the contents of any contract, agreement
or any other document are summaries of the material terms of such contract, agreement or other document and are not necessarily
complete. With respect to each of these contracts, agreements or other documents filed as an exhibit to the registration statement,
reference is made to the exhibits for a more complete description of the matter involved.
We
also maintain a website at
www.hemispherx.net
through which you can access our filings with the Commission. The information
contained in, or accessible through, our website is not a part of this prospectus.
INCORPORATION
BY REFERENCE
We
“incorporate by reference” information from other documents that we file with the SEC into this prospectus, which
means that we disclose important information to you by referring you to those documents. The information incorporated by reference
is deemed to be part of this prospectus except for any information that is superseded by information included directly in this
prospectus, and the information that we file later with the SEC will automatically supersede this information. Any statement contained
in this prospectus or any prospectus supplement or a document incorporated by reference in this prospectus or in any prospectus
supplement will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained
in this prospectus or in any other subsequently filed document that is incorporated by reference in this prospectus modifies or
superseded the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus. You should not assume that the information in this prospectus is current as of the date
other than the date on the cover page of this prospectus.
The
following documents previously filed by us with the SEC are incorporated by reference in this prospectus:
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Our
Annual Report on Form 10-K for the year ended December 31, 2016;
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Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2017;
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Our
Amendment to Current Report on Form 8-K/A, as filed with the SEC on May 8, 2017;
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Our
Current Report on Form 8-K, as filed with the SEC on April 3, 2017;
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Our
definitive proxy statement on Schedule 14A filed on June 27, 2016; and
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A
description of our common stock contained in our registration statement on Form S-1, SEC File No. 333-117178, and any amendment
or report filed for the purpose of updating this description.
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We
are also incorporating by reference into this prospectus any additional documents that we may file with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the effective date of the registration statement and prior to the termination
of the offering.
You
may request a copy of any document incorporated by reference in this prospectus and any exhibit specifically incorporated by reference
in those documents, at no cost, by writing or telephoning us at the following address or phone number:
Hemispherx
Biopharma, Inc.
1617
JFK Boulevard, Ste. 500
Philadelphia,
Pennsylvania 19103
Attention:
Corporate Secretary
(215)
988-0800
Hemispherx Biopharma (AMEX:HEB)
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