United
States
Securities
and Exchange Commission
Washington,
DC 20549
Form
8-A
For
Registration of Certain Classes of Securities
Pursuant
to Section 12(b) or 12(g) of The
Securities
Exchange Act of 1934
HEMISPHERX
BIOPHARMA, INC.
(Exact
Name of Registrant as Specified in Charter)
Delaware
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52-0845822
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(State
or Other Jurisdiction
of Incorporation)
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(IRS
Employer
Identification No.)
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860
N. Orange Avenue, Suite B, Orlando, FL 32801
(Address
of principal executive offices) (Zip code)
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Securities
to be registered pursuant to Section 12(b) of the Act:
Title
of each class
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Name
of each exchange on which
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to
be so registered
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each
class is to be registered
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Rights
to Purchase Series A
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NYSE
American
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Junior
Participating Preferred Stock
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If
this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective
pursuant to General Instruction A.(c), check the following box. [X]
If
this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(d), check the following box. [ ]
If
this form relates to the registration of a class of securities concurrently with a Regulation A offering, check the following
box. [ ]
Securities
Act registration statement or Regulation A offering statement file number to which this form relates:
Not Applicable
Securities
to be registered pursuant to Section 12(g) of the Act: None.
(Title
of Class)
ITEM
1. Description of Registrant’s Securities to be Registered.
On
November 19, 2002, the Board of Directors of Hemispherx Biopharma, Inc. (the “Company”) declared a dividend distribution
of one Right for each outstanding share of Common Stock to stockholders of record at the close of business on November 29, 2002
(the “Record Date”). On November 2, 2012, at the direction of the Board of Directors (the “Board”), the
Company amended and restated the Rights Agreement between the Company and its Rights Agent. On November 14, 2017, at the direction
of the Board, the Company again amended and restated the Rights Agreement between the Company and, American Stock Transfer &
Trust Company, LLC, its current Rights Agent (as amended and restated, the “Rights Agreement”). Each Right entitles
the registered holder to purchase from the Company a unit consisting of one one-hundredth of a share (a “Unit”) of
Series A Junior Participating Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”) at a Purchase
Price of $21.00 per Unit, subject to adjustment. The description and terms of the Rights are set forth in the Rights Agreement.
Initially,
the Rights attached to all Common Stock certificates representing shares outstanding at the Record Date. The Rights attach to
all certificates (or book entry notation) of shares of Common Stock issued after the Record Date. No separate Rights Certificates
will be distributed. Subject to certain exceptions specified in the Rights Agreement, the Rights will separate from the Common
Stock and a Distribution Date will occur upon the earlier of (i) 10 days following a public announcement that a person or group
of affiliated or associated persons (an “Acquiring Person”) has acquired beneficial ownership of 15% or more of the
outstanding shares of Common Stock (the “Stock Acquisition Date”), other than as a result of repurchases of stock
by the Company or certain inadvertent actions by institutional or certain other stockholders or (ii) 10 business days (or such
later date as the Board shall determine) following the commencement of a tender offer or exchange offer that would result in a
person or group becoming an Acquiring Person. Until the Distribution Date, (i) the Rights will be evidenced by certificates and
Book Entry Notations for the Common Stock (collectively, “Common Stock Certificates”) and will be transferred with
and only with such Common Stock Certificates, (ii) new Common Stock Certificates issued after the Record Date will contain a notation
incorporating the Rights Agreement by reference and (iii) the surrender for transfer of any Common Stock Certificates outstanding
will also constitute the transfer of the Rights associated with the Common Stock represented by such Common Stock Certificate.
Pursuant to the Rights Agreement, the Company reserves the right to require prior to the occurrence of a Triggering Event (as
defined below) that, upon any exercise of Rights, a number of Rights be exercised so that only whole shares of Preferred Stock
will be issued.
The
Rights are not exercisable until the Distribution Date and will expire at 5:00 P.M. (New York City time) on November 14, 2022,
unless such date is extended or the Rights are earlier redeemed or exchanged by the Company as described below.
As
soon as practicable after the Distribution Date, Rights Certificates will be mailed to holders of record of the Common Stock as
of the close of business on the Distribution Date and, thereafter, the separate Rights Certificates alone will represent the Rights.
Except as otherwise determined by the Board of Directors, only shares of Common Stock issued prior to the Distribution Date will
be issued with Rights.
In
the event that a Person becomes an Acquiring Person, except pursuant to an offer for all outstanding shares of Common Stock which
the Board determines to be fair and not inadequate and to otherwise be in the best interests of the Company and its stockholders,
after receiving advice from one or more investment banking firms (a “Qualified Offer”), each holder of a Right will
thereafter have the right to receive, upon exercise, Common Stock (or, in certain circumstances, cash, property or other securities
of the Company) having a value equal to two times the exercise price of the Right. Notwithstanding any of the foregoing, following
the occurrence of the event set forth in this paragraph, all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will be null and void. However, Rights are not exercisable
following the occurrence of the event set forth above until such time as the Rights are no longer redeemable by the Company as
set forth below.
In
the event that, at any time following the Stock Acquisition Date, (i) the Company engages in a merger or other business combination
transaction in which the Company is not the surviving corporation (other than a merger or business combination with an entity
which acquired the shares pursuant to a Qualified Offer in which holders of the Company common stock receive the same consideration
per share as in the Qualified Offer), (ii) the Company engages in a merger or other business combination transaction in which
the Company is the surviving corporation and the Common Stock of the Company is changed or exchanged, or (iii) 50% or more of
the Company’s assets, cash flow or earning power is sold or transferred, each holder of a Right (except Rights which have
previously been voided as set forth above) shall thereafter have the right to receive, upon exercise, common stock of the acquiring
company having a value equal to two times the exercise price of the Right. The events set forth in this paragraph and in the second
preceding paragraph are referred to as the “Triggering Events”.
At
any time after a person becomes an Acquiring Person and prior to the acquisition by such person or group of fifty percent (50%)
or more of the outstanding Common Stock, the Board may exchange the Rights (other than Rights owned by such person or group which
have become void), in whole or in part, at an exchange ratio of one share of Common Stock, or one one-hundredth of a share of
Preferred Stock (or of a share of a class or series of the Company’s preferred stock having equivalent rights, preferences
and privileges), per Right (subject to adjustment).
The
Purchase Price payable, and the number of Units of Preferred Stock or other securities or property issuable, upon exercise of
the Rights subsequent to the reverse split of the Company’s outstanding shares of Common Stock effected in August 2016 are
subject to adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of, the Preferred Stock, (ii) if holders of the Preferred Stock are granted certain rights or warrants to
subscribe for Preferred Stock or convertible securities at less than the current market price of the Preferred Stock, or (iii)
upon the distribution to holders of the Preferred Stock of evidences of indebtedness or assets (excluding regular quarterly cash
dividends) or of subscription rights or warrants (other than those referred to above).
No
fractional Units will be issued and, in lieu thereof, an adjustment in cash will be made based on the market price of the Preferred
Stock on the last trading date prior to the date of exercise.
At
any time prior to such time as any Person becomes an Acquiring Person, the Company may redeem the Rights in whole, but not in
part, at a price of $0.01 per Right (payable in cash, Common Stock or other consideration deemed appropriate by the Board of Directors).
Immediately upon the action of the Board of Directors ordering redemption of the Rights, the Rights will terminate and the only
right of the holders of Rights will be to receive the $0.01 redemption price.
Until
a Right is exercised, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends. While the distribution of the Rights will not be taxable to stockholders or to the
Company, stockholders may, depending upon the circumstances, recognize taxable income in the event that the Rights become exercisable
for Common Stock (or other consideration) of the Company or for common stock of the acquiring company or in the event of the redemption
of the Rights as set forth above.
Any
of the provisions of the Rights Agreement may be amended by the Board of Directors of the Company prior to the Distribution Date.
After the Distribution Date, the provisions of the Rights Agreement may be amended by the Board in order to cure any ambiguity,
to make changes which do not adversely affect the interests of holders of Rights, or to shorten or lengthen any time period under
the Rights Agreement. The foregoing notwithstanding, no amendment may be made at such time as the Rights are not redeemable.
A
copy of the Rights Agreement has been filed with the Securities and Exchange Commission as an Exhibit to this Registration Statement
on Form 8-A, dated November 14, 2017. A copy of the Rights Agreement is available free of charge from the Company. This summary
description of the Rights does not purport to be complete and is qualified in its entirety by reference to the Rights Agreement,
which is incorporated herein by reference.
ITEM
2. Exhibits.
SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement
to be signed on its behalf by the undersigned, thereto duly authorized.
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Hemispherx
Biopharma, Inc.
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By:
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/s/
Thomas K. Equels
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Thomas
K. Equels,
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President
and Chief
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Executive
Officer
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Dated
as of: November 14, 2017
Hemispherx Biopharma (AMEX:HEB)
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