Filed Pursuant to Rule 424(b)(5)
Registration No. 333-205228
PROSPECTUS SUPPLEMENT
(To Prospectus Dated August 4, 2015)
3,333,334 Shares of Common Stock
HEMISPHERX BIOPHARMA, INC.
We are offering 3,333,334 shares of our common
stock to institutional investors pursuant to this prospectus supplement and the accompanying prospectus and a stock purchase agreement
with such investors. In a concurrent private placement, we are selling to such investors warrants to purchase 2,500,000 shares
of our common stock purchased by such investors in this offering, or the Warrants. The Warrants and the shares of our common stock
issuable upon the exercise of the Warrants are not being registered under the Securities Act of 1933, as amended, or the Securities
Act, are not being offered pursuant to this prospectus supplement and the accompanying prospectus and are being offered pursuant
to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder.
Our common stock is listed on the NYSE MKT
under the symbol “HEB.” The Warrants being issued in the concurrent private placement are not listed on any securities
exchange and we do not expect to list the Warrants. The last reported sale price of our common stock on the NYSE MKT on August
31, 2016 was $1.46 per share.
You should read “Risk Factors” beginning on page
S-6 of this prospectus supplement and the risk factors described in other documents incorporated by reference herein before buying
our securities.
We retained H.C. Wainwright & Co., LLC as our exclusive
placement agent to use their reasonable best efforts to solicit offers to purchase the securities in this offering. The placement
agent has no obligation to buy any of the securities from us or to arrange for the purchase or sale of any specific number or
dollar amount of the securities. We expect that delivery of the securities being offered pursuant to this prospectus supplement
and the accompanying prospectus will be made on or about September 6, 2016.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or determined if this prospectus supplement is truthful
or complete. Any representation to the contrary is a criminal offense.
Common Stock
|
|
Per Share
|
|
|
Total
|
|
Public offering price(1)
|
|
$
|
1.50
|
|
|
$
|
5,000,000
|
|
Placement agents fees(2)
|
|
$
|
0.21
|
|
|
$
|
350,000
|
|
Proceeds, before expenses, to us(3)
|
|
$
|
1.29
|
|
|
$
|
4,650,000
|
|
|
(1)
|
Includes $0.01 for each share as the purchase price
for warrants to purchase 75% of the number of shares sold in this offering. The warrants
are being sold in a concurrent private placement.
|
|
(2)
|
We have also agreed to pay the placement agent a
management fee of 1% and reimbursement it for legal fees and expenses of the placement
agent in the amount of $
70,000
For additional information about the compensation
paid to the placement agent, see “Plan of Distribution.”
|
|
(3)
|
The amount of the offering proceeds to us presented
in this table does not give effect to any exercise of the Warrants being issued in this
offering.
|
Rodman &
Renshaw
a unit of
H.C. Wainwright & Co.
The date of this prospectus supplement is
September 1, 2016.
TABLE OF CONTENTS
Prospectus Supplement
Prospectus
ABOUT THIS PROSPECTUS SUPPLEMENT
References in this prospectus supplement to
“Hemispherx,” the “Company,” “we,” “our” or “us” refer to Hemispherx
Biopharma, Inc. and its subsidiaries on a consolidated basis.
This prospectus supplement and the accompanying prospectus dated
August 4, 2015 are part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing
a “shelf” registration process. This prospectus supplement and the accompanying prospectus relate to the offer by
us of shares of our common stock to certain investors. We provide information to you about this offering of shares of our common
stock in two separate documents that are bound together: (1) this prospectus supplement, which describes the specific details
regarding this offering; and (2) the accompanying prospectus, which provides general information, some of which may not apply
to this offering. Generally, when we refer to this “prospectus,” we are referring to both documents combined. If information
in this prospectus supplement is inconsistent with the accompanying prospectus, you should rely on this prospectus supplement.
However, if any statement in one of these documents is inconsistent with a statement in another document having a later date—for
example, a document incorporated by reference in this prospectus supplement or the accompanying prospectus—the statement
in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results
of operations and prospects may have changed since the earlier dates. You should read this prospectus supplement, the accompanying
prospectus and the documents and information incorporated by reference in this prospectus supplement and the accompanying prospectus
when making your investment decision. You should also read and consider the information in the documents we have referred you
to under the headings “
Where You Can Find More Information; Information Incorporated by Reference
.”
You should rely only on information contained in or incorporated
by reference into this prospectus supplement and the accompanying prospectus. We have not, and the placement agent has not, authorized
anyone to provide you with information that is different. We are offering to sell and seeking offers to buy shares of our common
stock only in jurisdictions where offers and sales are permitted. The information contained in this prospectus supplement, the
accompanying prospectus and the documents and information incorporated by reference in this prospectus supplement and the accompanying
prospectus are accurate only as of their respective dates, regardless of the time of delivery of this prospectus supplement or
of any sale of our common stock.
PROSPECTUS SUPPLEMENT SUMMARY
The items in the following summary are described in more detail
later in this prospectus supplement and in the accompanying prospectus. This summary provides an overview of selected information
and does not contain all the information you should consider before investing in our common stock. Therefore, you should read
the entire prospectus supplement and the accompanying prospectus carefully, including the “Risk Factors” section,
and other documents or information included or incorporated by reference in this prospectus supplement and the accompanying prospectus
before making any investment decision.
Our Business
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 founded in the early 1970s 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.
Alferon® LDO (Low Dose Oral) is a formulation under development targeting influenza.
The below chart provides a summary of the clinical indications
for both Ampligen® and Alferon® currently under development.
Recent Developments
On August 18, 2016, we received approval of our New Drug Application
(“NDA”) 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 myalgic encephalomyelitis/chronic
fatigue syndrome (“ME/CFS”). The product will be marketed by GP Pharm, our commercial partner in Latin America. We
believe that rintatolimod is the first drug to receive approval for this indication anywhere in the world.
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 is launched 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.
Current Non-Compliance with NYSE MKT Continued Listing Requirements
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. The NYSE
MKT will assess whether we continue to be below continued listing standards in mid-September 2016. As a result of the reverse
stock split we believe, but cannot assure, that we will be in compliance with the continued listing standards.
Our Corporate Information
Our principal executive offices are located at One Penn Center,
1617 JFK Boulevard, Suite 500, Philadelphia, Pennsylvania 19103, and our telephone number is 215-988-0080. We maintain a website
at "http://www.hemispherx.net". Information contained on our website is not considered to be a part of, nor incorporated
by reference in, this prospectus.
THE OFFERING
Common Stock offered by us:
|
|
3,333,334 shares
|
|
|
|
Public offering price:
|
|
$1.50
|
|
|
|
Common Stock to be outstanding immediately after the offering:
|
|
24,077,686 shares
|
|
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Use of Proceeds:
|
|
We plan to allocate the net proceeds from the offering for preparation for technology transfer opportunities, expenses
related to Ampligen® manufacturing, working capital and general corporate purposes. See “
Use of Proceeds
”.
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|
|
|
Risk Factors:
|
|
This investment involves a high degree of risk. You should read the “Risk Factors” section of this prospectus
supplement and in the documents included in or incorporated by reference in this prospectus supplement and the accompanying
prospectus for a discussion of risks to consider before deciding to purchase shares of our common stock.
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|
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NYSE MKT trading symbol:
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|
HEB
|
|
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Concurrent offering
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|
In a concurrent private placement, we are selling to the purchasers of shares of our common stock in this offering warrants
to purchase 75% of the number of shares of our common stock purchased by such investors in this offering, or up to 2,500,000
warrants. We will receive gross proceeds from the concurrent private placement transaction solely to the extent such warrants
are exercised for cash. The warrants will be exercisable six months
after issuance
at an exercise price of $2.00 per share and will expire five years from the date on which first exercisable. The warrants
and the shares of our common stock issuable upon the exercise of the warrants are not being offered pursuant to this prospectus
supplement and the accompanying prospectus and are being offered pursuant to the exemption provided in Section 4(a)(2) under
the Securities Act and Rule 506(b) promulgated thereunder. See “
Private Placement of Warrants
” below.
|
RISK FACTORS
Investment in our common stock involves a high degree of risk.
In addition to the other information included or incorporated by reference in this prospectus supplement and the accompanying
prospectus, you should carefully consider the risks described below and in the section entitled “Risk Factors” in
our Annual Report on Form 10-K for our most recent fiscal year filed with the Securities and Exchange Commission, subsequent Quarterly
Reports on Form 10-Q, and in other reports we file with the Securities and Exchange Commission that are incorporated by reference
herein, before making an investment decision. The following risks are presented as of the date of this prospectus supplement and
we expect that these will be updated from time to time in our periodic and current reports filed with the Securities and Exchange
Commission, which will be incorporated herein by reference. Please refer to these subsequent reports for additional information
relating to the risks associated with investing in our common stock. The risks and uncertainties described therein and below could
materially adversely affect our business, operating results and financial condition, as well as cause the value of our common
stock to decline. You may lose all or part of your investment as a result. You should also refer to the other information contained
in this prospectus supplement and the accompanying prospectus, or incorporated by reference, including our financial statements
and the notes to those statements, and the information set forth under the caption “Special Note Regarding Forward-Looking
Statements.” Our actual results could differ materially from those anticipated in these forward-looking statements as a
result of certain factors, including the risks mentioned below. Forward-looking statements included in this prospectus supplement
are based on information available to us on the date hereof, and all forward-looking statements in documents incorporated by reference
are based on information available to us as of the date of such documents. We disclaim any intent to update any forward-looking
statements.
The risks described below and contained in our Annual Report on Form 10-K,
Form 10-Q and in our other periodic reports are not the only ones that we face. Additional risks not presently known to us or
that we currently deem immaterial may also affect our business operations.
Risks Related to this Offering
Investors in this offering will suffer immediate and substantial
dilution in the net tangible book value per share of our common stock.
The offering price per share of common stock in this offering is
considerably more than the net tangible book value per share of our outstanding common stock. As a result, investors purchasing
shares of common stock in this offering will pay a price per share that substantially exceeds the value of our tangible assets
after subtracting liabilities. Investors will incur immediate dilution of $0.63 per share, based on the public offering price
of $1.50 per share and the net tangible book value as of June 30, 2016. For a more detailed discussion of the foregoing, see the
section entitled “
Dilution
” below. In addition, the investors in this offering will receive unregistered warrants
to purchase 2,500,000 shares of our common stock purchased by such investors in this offering and the placement agent will receive
unregistered warrants to purchase up to 5% of the aggregate number of shares of common stock sold in this offering. To the extent
outstanding stock options or warrants are exercised, there will be further dilution to new investors. Furthermore, to the extent
we need to raise additional capital in the future and we issue additional equity or convertible debt securities, our then existing
stockholders may experience dilution and the new securities may have rights senior to those of our common stock offered in this
offering.
We will have broad discretion in how we use the proceeds,
and we may use the proceeds in ways in which you and other stockholders may disagree.
We plan to use the net proceeds from the offering
towards activities listed in “
Use of Proceeds
”. Pending these uses, we intend to invest the net proceeds in
a variety of capital preservation investments, including short-term, investment-grade and interest-bearing instruments. Our Management
will have broad discretion in the application of the proceeds from this offering and could spend the proceeds in ways that do
not necessarily improve our operating results or enhance the value of our common stock.
There is uncertainty regarding the application of the federal
and state securities laws to our offering of common stock and warrants, and there is a corresponding risk that we could be required
to refund the purchase price of securities offered to purchasers who so elect.
We are conducting an offering under a registration statement filed
with the SEC and a concurrent private placement intended to comply with the requirements of Section 4(a)(2) under the Securities
Act and Rule 506(b) promulgated thereunder. See “
Private Placement of Warrants
” below. Shares of common stock
and warrants are being offered and sold in combination. The shares of common stock are intended to be offered and sold in a transaction
registered under the Securities Act, while the warrants and shares of common stock issuable thereunder are intended to be offered
and sold in a private placement exempt from the registration requirements of the Securities Act.
While we are aware of other transactions using a concurrent public/private
offering approach, the SEC has not addressed whether concurrent public and private offerings and sales to the same prospective
investors could adversely impact the public offering or preclude the private offering from satisfying the requirements of Rule
506(b). If the securities offered in our concurrent private placement do not satisfy the conditions of Rule 506(b), the offering
could be a violation of Section 5 of the Securities Act and each purchaser could have the right to rescind its purchase of the
securities, meaning that we could be required to refund the purchase price of the securities to each purchaser electing rescission.
If that were to occur, we could face severe financial demands and reputational harm that could adversely affect our business and
operations. Additionally, if we did not in fact qualify for the exemptions upon which it has relied, we may become subject to
significant fines and penalties imposed by the SEC. It is also possible that additional remedies may be available to purchasers
under applicable state law.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
The statements in this prospectus supplement, the accompanying
prospectus and the documents incorporated by reference contain forward-looking statements within the meaning of Section 27A of
the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act.
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. Forward-looking statements reflect our current views with respect to future events are based
on assumptions and are subject to risks, uncertainties and other important factors. We discuss many of these risks, uncertainties
and other important factors in greater detail under the heading “Risk Factors” in this prospectus supplement. Because
the risk factors referred to above, in the Prospectus, in our Annual Report on Form 10-K for our most recent fiscal year filed
with the Securities and Exchange Commission, subsequent Quarterly Reports on Form 10-Q,
and in other reports we file with
the Securities and Exchange Commission that are incorporated by reference herein, could cause actual results or outcomes to differ
materially from those expressed in any forward-looking statements made by us, you should not place undue reliance on any such
forward-looking statements.
Further, these forward-looking statements represent our estimates
and assumptions only as of the date such forward-looking statements are made. You should carefully read this prospectus supplement
and the accompanying prospectus, together with the information incorporated by reference, completely and with the understanding
that our actual future results may be materially different from what we expect. 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. Any forward-looking statement speaks only as of the date on which it is made and we undertake
no obligation to update any forward-looking statement or statements to reflect events or circumstances after the date on which
such statement is made or reflect the occurrence of unanticipated events. 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. Any statements in this prospectus and the information incorporated herein by reference about our expectations, beliefs,
plans, objectives, assumptions or future events or performance that are not historical facts are forward-looking statements. You
can identify these forward-looking statements by the use of words or phrases such as “believe”, “may”,
“could”, “will”, “estimate”, “continue”, “anticipate”, “intend”,
“seek”, “plan”, “expect”, “should”, or “would,” and similar expressions
intended to identify 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: the potential therapeutic effect of our products, general industry conditions and competition; general economic factors;
the Company’s ability to adequately fund its projects; the impact of pharmaceutical industry regulation and healthcare legislation
in the United States and internationally; trends toward healthcare cost containment; technological advances, new products and
patents attained by competitors; challenges inherent in new product development, including obtaining regulatory approval; the
Company’s ability to accurately predict the future market conditions; manufacturing difficulties or delays; dependence on
the effectiveness of the Company’s patents and other protections for products; and the exposure to litigation, including
patent litigation, and/or regulatory actions
We have disclosed that in February 2013, we received a Complete
Response from the FDA declining to approve our Ampligen® New Drug Application (“NDA”) for Chronic Fatigue Syndrome
Treatment ("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 CFS, we note 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.
We completed the construction of the $8 million our facility enhancement
project in 2015 which, upon FDA approval, should provide for a higher capacity and more cost effective manufacturing process for
the production of Alferon N Injection®. Commercial sales of Alferon and Alferon API internationally are projected to begin
as soon as the necessary regulatory approvals are obtained. However, commercial sales of Alferon® in the USA will not resume
until new batches of commercial filled and finished product are produced and released by the FDA. We are continuing the validation
of Alferon® production and production of new Alferon® API inventory commenced in February 2015. While the facility is
approved by the FDA under the Biological License Application (“BLA”) for Alferon®, this status will need to be
reaffirmed by an FDA pre-approval inspection. We will also need the FDA’s approval to release commercial product once we
have submitted satisfactory stability and quality release data. We had anticipated that it would take approximately until at least
the 2nd half of 2015 before we would have Alferon® approved for commercial sales; however, during the final stage of the manufacturing
process we encountered issues regarding a change in both the contract supplier of leukocytes and the long term supply availability
related to a reagent used in the formulation of Alferon®. We have substantially resolved these issues through engaging in
multiple agreements with suppliers of leukocytes as well as entering into a licensing agreement with a foreign multinational chemicals
and biotechnology company that has been in business for over a century for the sourcing of the primary reagent allowing us to
manufacture Alferon®. However, due to the interruption of the required flow of leukocytes, production ceased, causing parts
to malfunction in the upstream process when the system was restarted for testing. We were working diligently to make the necessary
repairs to be able to restart the validation process; however, in the process of obtaining time estimates for the repairs we experienced
a flood within portions of our manufacturing facility. As a result, we will be constrained in our ability to manufacture product
in the near future due to this flood in the upstream processing cleanroom that contains the bioreactor. The flood occurred on
the afternoon of January 5, 2016, caused by a malfunctioning water supply pipe for the sprinkler system covering a large amount
of the cleanroom in stagnant water and silt from the sprinkler system. Our facility insurer has been proactive in addressing and
covering the loss. While repairs have required preapproval by our insurer, activity has moved forward quickly. The repairs noted
below required special action because of the need to keep this critical manufacturing room within International Organization for
Standardization (ISO) classifications and the need to certify that all the equipment that was exposed, or submerged, is in proper
condition and operating effectively following the corrective actions. All HEPA filters affected by the flood were tested by an
outside contractor and have passed all required tests. The flooring that was damaged has been repaired using a special epoxy that
is used in cleanrooms. A large portion of the walls in the ISO classified area were damaged. We had a damage mitigation company
come in to stop any moisture from seeping further into the ISO classified areas. Subsequently, all damaged walls and ceilings
have been replaced with cleanroom grade materials and need no further work. Six pumps that were affected by the flood were sent
back to the manufacturer for inspection and repair. Repairs that were required have been completed on the pumps and they were
reinstalled in the Alferon manufacturing facility after the floor repair work was completed. All pumps will need to be qualified
for use in the manufacturing process prior to the validation process for a Pre-Approval Inspection. All air ducts supplying the
Alferon manufacturing area needed to be cleaned and insulation replaced along with ceiling tiles. The duct insulation and ceiling
tile replacement will be performed after the duct cleaning work is completed. All smaller pieces of machinery and equipment that
could not be salvaged have been replaced. The final repair step required to be performed will be HVAC air balancing and qualification.
Currently, the manufacturing process is on hold and there is no
definitive timetable to have the facility back online. In addition, due to the repair issues mentioned above and the high cost
estimates to bring the facility back online, 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.
Approval of Ampligen® for CFS in the Argentine Republic does
not in any way suggest that the Ampligen® NDA in the United States will obtain commercial approval. Also, it is noted that
ANMAT approval is only an initial, but important, step in the overall successful commercialization. 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.
USE OF PROCEEDS
We estimate that the net proceeds to us from this offering, after
deducting placement agent fees but before paying offering expenses, will be approximately $4,650,000 assuming all offered shares
are sold.
We plan to allocate the net proceeds from the offering for preparation
for technology transfer opportunities, expenses related to Ampligen® manufacturing, working capital and general corporate
purposes.
We have not determined the amounts we plan to spend on any of the
areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to allocate the
net proceeds from this offering. Pending application of the net proceeds as described above, we intend to invest the net proceeds
to us from this offering in a variety of capital preservation investments, including short-term, investment-grade and interest-bearing
instruments.
PRIVATE PLACEMENT OF WARRANTS
Concurrently with the closing of the sale of shares of common stock
in this offering, we also expect to issue and sell to the investors warrants to purchase an aggregate of 2,500,000 shares of our
common stock, at an initial exercise price equal to $2.00 per share, or the Warrants.
Each Warrant shall be exercisable six months
after issuance
and have a term of exercise equal to five years from the date on which first exercisable. Subject to
limited exceptions, a holder of Warrants will not have the right to exercise any portion of its warrants if the holder, together
with its affiliates, would beneficially own in excess of 4.99% of the number of shares of our common stock outstanding immediately
after giving effect to such exercise.
Such securities will be issued and sold without registration under
the Securities Act, or state securities laws, in reliance on the exemptions provided by Section 4(a)(2) of the Act and/or
Regulation D promulgated thereunder and in reliance on similar exemptions under applicable state laws. Accordingly, the investors
may exercise those Warrants and sell the underlying shares only pursuant to an effective registration statement under the Securities
Act covering the resale of those shares, an exemption under Rule 144 under the Securities Act, or another applicable exemption
under the Securities Act.
DILUTION
If you invest in our common stock in this offering, your interest
will be diluted to the extent of the difference between the public offering price per share and the net tangible book value per
share of our common stock after this offering. As of June 30, 2016, giving retroactive effect to the recent 12-to-1 reverse
stock split, our historical net tangible book value was $16,590,000, or $0.80 per share, based on 20,735,810 shares of our common
stock outstanding as of June 30, 2016. Our historical net tangible book value per share represents the amount of our total tangible
assets reduced by the amount of our total liabilities, divided by the total number of shares of our common stock outstanding as
of June 30, 2016. After giving effect to our sale in this offering of 3,333,334 shares of common stock at the public offering
price of $1.50 per share, and after deducting placement agent fees and estimated offering costs payable by us, our net tangible
book value as of June 30, 2016 would have been $21,040,001, or $0.87 per share. This represents an immediate increase of net tangible
book value of $0.07 per share to our existing stockholders and an immediate dilution of $0.63 per share to investors purchasing
shares in this offering. The following table illustrates this per share dilution.
Public offering price per share
|
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|
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$
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1.50
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|
Historical net tangible book value per share at June 30, 2016
|
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$
|
0.80
|
|
|
|
|
|
Increase per share attributable to investors purchasing shares in this offering
|
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0.07
|
|
|
|
|
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Pro forma net tangible book value per share, as adjusted to give effect to this offering
|
|
|
|
|
|
|
0.87
|
|
Dilution to investors in this offering
|
|
|
|
|
|
$
|
0.63
|
|
The above discussion and table are based on 20,735,810 shares outstanding
as of June 30, 2016 and exclude:
|
·
|
163,850 shares
of common stock issuable upon the exercise of warrants outstanding as of June 30, 2016,
at a weighted average exercise price of $4.91 per share;
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|
·
|
1,297,633 shares
of common stock issuable upon the exercise of options outstanding as of June 30, 2016,
at a weighted average exercise price of $13.19 per share;
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|
·
|
355,589 shares
of common stock reserved for future issuance under our equity incentive plans;
|
|
·
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2,500,000 shares
of common stock issuable upon exercise of warrants to be issued in a private placement,
as described above under “
Private Placement of Warrants
”; and
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166,667 shares
of common stock issuable upon exercise of warrants to be issued to the placement agent,
as described in “
Plan of Distribution
.”
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To the extent that outstanding exercisable options or warrants
are exercised, you may experience further dilution. In addition, we may choose to raise additional capital due to market conditions
or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent
that we raise additional capital by issuing equity or convertible debt securities, your ownership will be further diluted.
PLAN OF DISTRIBUTION
Pursuant to an engagement agreement dated July 26, 2016, we have
engaged H.C. Wainwright & Co., LLC, or the placement agent, to act as our exclusive placement agent in connection with this
offering of our shares of common stock pursuant to this prospectus supplement and accompanying prospectus. Under the terms of
the engagement agreement, the placement agent has agreed to be our exclusive placement agent, on a reasonable best efforts basis,
in connection with the issuance and sale by us of our shares of common stock in this takedown from our shelf registration statement.
The terms of this offering were subject to market conditions and negotiations between us, the placement agent and prospective
investors. The engagement agreement does not give rise to any commitment by the placement agent to purchase any of our shares
of common stock or the private placement warrants, and the placement agent will have no authority to bind us by virtue of the
engagement agreement. Further, the placement agent does not guarantee that it will be able to raise new capital in any prospective
offering. The placement agent may engage sub-agents or selected dealers to assist with the offering.
We will enter into securities purchase agreements directly with
investors in connection with this offering, and we will only sell to investors who have entered into securities purchase agreements.
We will deliver the shares of common stock being issued to the
investors electronically upon receipt of investor funds for the purchase of the shares of our common stock offered pursuant to
this prospectus supplement. We expect to deliver the shares of our common stock being offered pursuant to this prospectus supplement
on or about September 6, 2016.
We have agreed to pay the placement agent a total cash fee equal
to 7% of the gross proceeds of this offering. In addition, we have agreed to pay the placement agent a management fee equal to
1.0% of the gross proceeds of this offering, $20,000 for its expenses in connection with confidentially marketing the transaction
and to reimburse agent the placement agent’s legal fees and expenses in the amount of $50,000. In addition, we have agreed
to issue to the placement agent warrants to purchase up to 5% of the aggregate number of shares of common stock sold in this offering.
The placement agent warrants will have substantially the same terms as the private placement warrants being sold concurrently
to the investors in this offering, except that the placement agent warrant shall have an exercise price equal to 125% of the public
offering price. Pursuant to FINRA Rule 5110(g), the placement agent warrants and any shares issued upon exercise of the placement
agent warrants shall not be sold, transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short sale,
derivative, put or call transaction that would result in the effective economic disposition of the securities by any person for
a period of 180 days immediately following the date of effectiveness or commencement of sales of this offering, except the transfer
of any security: (i) by operation of law or by reason of our reorganization; (ii) to any FINRA member firm participating in the
offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction set
forth above for the remainder of the time period; (iii) if the aggregate amount of our securities held by the placement agent
or related persons do not exceed 1% of the securities being offered; (iv) that is beneficially owned on a pro-rata basis by all
equity owners of an investment fund, provided that no participating member manages or otherwise directs investments by the fund
and the participating members in the aggregate do not own more than 10% of the equity in the fund; or (v) the exercise or conversion
of any security, if all securities remain subject to the lock-up restriction set forth above for the remainder of the time period.
We have also agreed to give the placement agent a one year right
of first refusal to act as our lead underwriter or placement agent for any further capital raising transactions undertaken by
us; and a one year tail fee equal to the cash and warrant compensation in this offering, if any investor with which we have had
substantive discussions with respect to this offering, provides us with further capital during such one year period following
termination of our engagement (45 days after July 26, 2016).
We have agreed to indemnify the placement agent and specified other
persons against some civil liabilities, including liabilities under the Securities Act and the Exchange Act, and to contribute
to payments that the placement agent may be required to make in respect of such liabilities.
The placement agent may be deemed to be an underwriter within the
meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit realized on the resale of
the securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities
Act. As an underwriter, the placement agent would be required to comply with the requirements of the Securities Act and the Exchange
Act, including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and Regulation M under the Exchange
Act. These rules and regulations may limit the timing of purchases and sales of shares of common stock and warrants by the placement
agent acting as principal. Under these rules and regulations, the placement agent:
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may not engage
in any stabilization activity in connection with our securities; and
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may not bid
for or purchase any of our securities or attempt to induce any person to purchase any
of our securities, other than as permitted under the Exchange Act, until it has completed
its participation in the distribution.
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Our common stock is listed on the NYSE MKT under the symbol “HEB.”
LEGAL MATTERS
The validity of the issuance of the securities offered hereby will
be passed upon by our counsel, Silverman Shin & Byrne PLLC. The placement agent has been represented in connection with this
offering by Ellenoff Grossman & Schole LLP.
EXPERTS
The financial statements incorporated in this prospectus supplement
by reference from the Company's Annual Report on Form 10-K for the year ended December 31, 2016 have been audited by RSM LLP,
an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such financial
statements have been so 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
This prospectus is part of a registration statement on Form S-3
that we filed with the SEC. This prospectus does not contain all of the information included in the registration statement. The
registration statement that contains this prospectus supplement, including the exhibits to the registration statement, contains
additional information about us and the securities offered by this prospectus supplement. For further information about us and
our securities covered by this prospectus supplement and the accompanying prospectus, you should refer to the registration statement
and the exhibits filed with the registration statement. We are subject to the information requirements of the Securities Exchange
Act of 1934 and file annual, quarterly and current reports, proxy statements and other information with the SEC. You can read
our SEC filings, including the registration statement, over the Internet at the SEC's website at www.sec.gov or through our website
at www.hemispherx.net. Information contained on our website is not considered to be a part of, nor incorporated by reference in,
this prospectus. You may also read and obtain copies any document we file with the SEC at its Public Reference Room at 100 F Street,
NE, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the Public Reference
Room.
IMPORTANT INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate by reference” the
information that we file with them, which means that we can disclose important information to you by referring you to those documents.
The information incorporated by reference is considered to be an important part of this prospectus, and later information that
we file with the SEC will automatically update and supersede this information. We incorporate by reference the following documents
and any future filing 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:
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our annual
report on Form 10-K for the year ended December 31, 2015;
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our quarterly
reports on Form 10-Q for the quarters ended March 31, 2016 and June 30, 2016;
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our current
reports on Form 8-K filed with the Commission on August 15, 2016, August 17, 2016, August
19, 2016 and August 24, 2016;
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our 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 not, however, incorporating by reference any documents or
portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the SEC,
including our Compensation Committee report or any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related
exhibits furnished pursuant to Item 9.01 of Form 8-K.
You may request a copy of these filings (other than exhibits, unless
they are specifically incorporated by reference in the documents), at no cost, by writing or telephoning us at the following address:
Investor Relations
One Penn Center, 1617 JFK Blvd., Suite 500
Philadelphia, PA 19103
Phone: 215-988-0080
Fax: 215-988-1739
Email: ir@hemispherx.net
PROSPECTUS
HEMISPHERX BIOPHARMA, INC.
$77,849,014
Debt Securities
Preferred Stock
Common Stock
Debt Warrants
Equity Warrants
Units
We may from time to time offer to sell any combination
of debt securities, preferred stock, common stock, debt warrants, equity warrants and units described in this prospectus in one
or more offerings. The aggregate initial offering price of all securities sold under this prospectus will not exceed $77,849,014.
This prospectus provides a general description
of the securities we may offer. Each time we sell securities, we will provide specific terms of the securities offered in a supplement
to this prospectus. The prospectus supplement may also add, update or change information contained in this prospectus. You should
read this prospectus and the applicable prospectus supplement carefully before you invest in any securities. This prospectus may
not be used to consummate a sale of securities unless accompanied by the applicable prospectus supplement.
We will sell these securities directly to our
stockholders or to purchasers or through agents on our behalf or through underwriters or dealers as designated from time to time.
If any agents or underwriters are involved in the sale of any of these securities, the applicable prospectus supplement will provide
the names of the agents or underwriters and any applicable fees, commissions or discounts.
Our common stock is traded on the NYSE MKT under
the symbol “HEB.” On June 1, 2015, the last reported sale price for our common stock on the NYSE MKT was $0.23 per
share. The aggregate market value of the outstanding shares of our common stock held by non-affiliates was $54,904,932, based
on 242,554,673 shares of common stock outstanding, of which 238,717,096 are held by non-affiliates, and a closing sale price on
NYSE MKT of $0.23 on June 1, 2015. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities in a
public primary offering with a value exceeding more than one-third of our “public float” (the market value of our
common stock held by our non-affiliates) in any 12-month period so long as our public float remains below $75,000,000. We have
sold 16,677,755 shares of our common stock pursuant to General Instruction I.B.6. of Form S-3 during the twelve calendar months
prior to and including the date of this prospectus.
Investing in our securities involves risks.
See “
Risk Factors
” on page 3.
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 August 4,
2015
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is a part of a registration
statement that we filed with the Securities and Exchange Commission, or the Commission, utilizing a “shelf” registration
process. Under this shelf registration process, we may offer to sell any combination of the securities described in this prospectus
in one or more offerings up to a total dollar amount of $77,849,014. This prospectus provides you with a general description of
the securities we may offer. Each time we sell securities under this shelf registration, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. To the extent that any statement that we make in a prospectus supplement is inconsistent
with statements made in this prospectus, the statements made in this prospectus will be deemed modified or superseded by those
made in the prospectus supplement. You should read both this prospectus and any prospectus supplement, including all documents
incorporated herein or therein by reference, together with additional information described under “Where You Can Find More
Information” and “Information Incorporated by Reference.” We may only use this prospectus to sell the securities
if it is accompanied by a prospectus supplement.
We have not authorized any dealer, salesman
or other person to give any information or to make any representation other than those contained or incorporated by reference
in this prospectus and the accompanying prospectus supplement. You must not rely upon any information or representation not contained
or incorporated by reference in this prospectus or the accompanying prospectus supplement. This prospectus and the accompanying
prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the
registered securities to which they relate, nor do this prospectus and the accompanying prospectus supplement constitute an offer
to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus and the accompanying
prospectus supplement is accurate on any date subsequent to the date set forth on the front of the document or that any information
we have incorporated by reference is correct on any date subsequent to the date of the document incorporated by reference, even
though this prospectus and any accompanying prospectus supplement is delivered or securities are sold on a later date.
ABOUT HEMISPHERX
Hemispherx Biopharma, Inc. and its subsidiaries
(collectively, “Hemispherx”, “Company”, “we" or “us”) 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 founded in the early 1970s
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. We have three domestic subsidiaries BioPro Corp., BioAegean Corp., and Core BioTech Corp., all of which are incorporated
in Delaware and are dormant. Our foreign subsidiary is Hemispherx Biopharma Europe N.V./S.A. which was established in Belgium
in 1998.
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.
Alferon® LDO (Low Dose Oral) is a formulation under development targeting influenza. We own and operate a 43,000 sq. ft. FDA
approved facility in New Brunswick, NJ.
Our principal executive offices are located
at One Penn Center, 1617 JFK Boulevard, Suite 500, Philadelphia, Pennsylvania 19103, and our telephone number is 215-988-0080.
We maintain a website at “http://www.hemispherx.net.” Information contained on our website is not considered to be
a part of, nor incorporated by reference in, this prospectus. Unless the context requires otherwise, references in this prospectus
to “Hemispherx,” the Company,” “we,” “us” and “our” refer to Hemispherx
Biopharma, Inc.
RISK FACTORS
You should carefully consider the specific risks
set forth under “Risk Factors” in the applicable prospectus supplement, under “Risk Factors” under Item
1A of Part I of our most recent annual report on Form 10-K, and under “Risk Factors” under Item 1A of Part II of our
subsequent quarterly reports on Form 10-Q, as updated by our subsequent filings under the Securities Exchange Act of 1934, as
amended, or the Exchange Act, each of which is incorporated by reference in this prospectus, before making an investment decision.
For more information, see “Information Incorporated by Reference.”
SPECIAL NOTE REGARDING
FORWARD-LOOKING STATEMENTS
Any statements in this prospectus and the information
incorporated herein by reference about our expectations, beliefs, plans, objectives, assumptions or future events or performance
that are not historical facts are forward-looking statements. You can identify these forward-looking statements by the use of
words or phrases such as “believe”, “may”, “could”, “will”, “estimate”,
“continue”, “anticipate”, “intend”, “seek”, “plan”, “expect”,
“should”, or “would”. 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:
the potential therapeutic effect of our products, the possibility of obtaining regulatory approval, our ability to manufacture
and sell any products, our ability to enter into arrangements with third party vendors, market acceptance or 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, issues related to operations at of our New Brunswick, New
Jersey facility; and other risks detailed in the documents incorporated by reference in this prospectus. If any of these risks
or uncertainties materializes or any of these assumptions proves incorrect, our results could differ materially from the expectations
in these statements. The forward-looking statements included in this prospectus are made only as of the date of this prospectus,
and we are not under any obligation to update our respective forward-looking statements and do not intend to do so.
USE OF PROCEEDS
Unless otherwise indicated in the applicable
prospectus supplement, we plan to allocate the net proceeds from the offering towards research and development, operations and
general and administrative purposes related to the commercialization of Ampligen® and Alferon® related products, including,
but not limited to, the following: (1) costs associated with validation of Alferon® production and preparation for the FDA
pre-approval inspections of the facility, (2) manufacture of commercial product, (3) potential new preclinical and/or clinical
studies in order to gain commercial approval for Ampligen® and broader approvals for Alferon® and Alferon LDO®, (4)
working capital to build and maintain sufficient inventory by procuring raw materials, supplies and other items for the New Brunswick
manufacturing facility, as well as to remunerate outside contractors for necessary services, such as, final filling and finishing
operations in order to meet any anticipated demand from normal operations as well as through the possible pursuit of other disease
areas and/or geographic regions that may present themselves, (5) potential establishment of sales and marketing capabilities,
as well as consideration towards the expansion of our manufacturing capacity, and (6) working capital for general and administrative
expenses. We will set forth in the particular prospectus supplement our intended use for the net proceeds we receive from the
sale of our securities under such prospectus supplement. Pending the uses described above, we plan to invest the net proceeds
of this offering in short and medium-term, interest-bearing obligations, investment-grade instruments, certificates of deposit
or direct or guaranteed obligations of the U.S. government.
RATIO OF EARNINGS TO FIXED CHARGES
The following summary is qualified by the more
detailed information appearing in the computation table found in Exhibit 12.1 to the registration statement of which this prospectus
is part and the historical financial statements, including the notes to those financial statements, incorporated by reference
in this prospectus. Our ratio of earnings to fixed charges for each of the years ended December 31, 2010 to 2014 and the
three months ended March 31, 2015 was as follows:
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Year Ended December 31,
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Three Months
Ended
March 31,
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2010
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2011
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2012
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2013
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2014
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2015
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Ratio of earnings to fixed charges(1)
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—
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—
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(1)
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For purposes of computing this ratio of earnings to fixed
charges, fixed charges consist of interest expense and premiums, discounts and capital expenses related to debt (loss) before
income taxes plus fixed charges. Earnings were insufficient to cover fixed charges by approximately $13.1 million, $9.0 million,
$17.3 million, $16.2 million and $17.5 million for the years ended December 31, 2010, 2011, 2012, 2013 and 2014 and $3.4 million
for the first three months of 2015. We have not included a ratio of earnings to combined fixed charges and preferred stock dividends
because we do not have any preferred stock outstanding as of the date of this prospectus.
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We have incurred approximately $103,000 in
fixed charges in the past five years. Fixed charges mainly represent interest expensed as well as amortized discounts related
to indebtedness. We have incurred Net Losses totaling approximately $13.1 million, $9.0 million, $17.4 million, $16.2 million
and $17.5 million for the years ended December 31, 2010, 2011, 2012, 2013 and 2014, respectively, and $3.4 million for the first
three months of 2015. Until we achieve profitability, we will not be able to cover our fixed charges from earnings.
PLAN OF DISTRIBUTION
We may sell the securities from time to time
pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell
the securities separately or together:
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through one or more underwriters or dealers in a public
offering and sale by them;
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directly to one or more purchasers.
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We
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may distribute the securities from time to time in one
or more transactions:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to such prevailing market prices; or
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We may solicit directly offers to purchase the
securities being offered by this prospectus. We may also designate agents to solicit offers to purchase the securities from time
to time. We may sell the securities being offered by this prospectus by any method permitted by law, including sales deemed to
be an “at the market” offering as defined in Rule 415(a)(4) of the Securities Act of 1933, as amended, or the Securities
Act, including without limitation sales made directly on the NYSE MKT, on any other existing trading market for our securities
or to or through a market maker. We will name in a prospectus supplement any agent involved in the offer or sale of our securities.
If we utilize a dealer in the sale of the securities
being offered by this prospectus, we will sell the securities to the dealer, as principal. The dealer may then resell the securities
to the public at varying prices to be determined by the dealer at the time of resale.
If we utilize an underwriter in the sale of
the securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter at the time of
sale and we will provide the name of any underwriter in the prospectus supplement that the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we or the purchasers of securities for whom the
underwriter may act as agent may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter
may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts, concessions
or commissions.
We will provide in the applicable prospectus
supplement any compensation we will pay to underwriters, dealers or agents in connection with the offering of the securities,
and any discounts, concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents
participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act,
and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to
be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against
civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in
respect thereof.
Unless otherwise specified in the prospectus
supplement, each series of the securities will be a new issue with no established trading market, other than our common stock,
which is currently listed on the NYSE MKT. We will apply to the NYSE MKT to list any additional shares of common stock that we
offer and sell pursuant to a prospectus supplement. To facilitate the offering of securities, certain persons participating in
the offering may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involves the sale by persons participating in the offering of more securities
than we sold to them. In these circumstances, these persons would cover such over-allotments or short positions by making purchases
in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain the price
of the securities by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions
allowed to dealers participating in the offering may be reclaimed if securities sold by them are repurchased in connection with
stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. These transactions may be discontinued at any time.
We may authorize underwriters, dealers or agents
to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts
will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth
any commissions we pay for solicitation of these contracts.
We may enter into derivative transactions with
third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the
applicable prospectus supplement so indicates, in connection with any derivative transaction, the third parties may sell securities
covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party
may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings
of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings
of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be
identified in the applicable prospectus supplement or a post-effective amendment to the registration statement of which this prospectus
is a part. In addition, we may otherwise loan or pledge securities to a financial institution or other third party that in turn
may sell the securities short using this prospectus. Such financial institution or other third party may transfer its economic
short position to investors in our securities or in connection with a concurrent offering of other securities.
The underwriters, dealers and agents may engage
in transactions with us, or perform services for us, in the ordinary course of business.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the
additional information we include in any applicable prospectus supplement, summarizes certain general terms and provisions of
the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we
will describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the prospectus supplement
the extent to which the general terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately,
or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt
securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement
to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an
indenture between us and a trustee to be identified in the applicable prospectus supplement. We have summarized select portions
of the indenture below. The summary is not complete. The form of the indenture has been filed as an exhibit to the registration
statement of which this prospectus forms a part and you should read the indenture for provisions that may be important to you.
In the summary below, we have included references to the section numbers of the indenture so that you can easily locate these
provisions. Capitalized terms used in the summary and not defined herein have the meanings specified in the indenture.
As used in this section only, “Hemispherx,”
“we,” “our” or “us” refer to Hemispherx Biopharma, Inc. excluding our subsidiaries, unless
expressly stated or the context otherwise requires.
General
The terms of each series of debt securities
will be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided
in a resolution of our board of directors, in an officer’s certificate or by a supplemental indenture. (Section 2.2) The
particular terms of each series of debt securities will be described in a prospectus supplement relating to such series (including
any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities
under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount.
(Section 2.1) We will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series
of debt securities being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
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the title and ranking of the debt securities (including
the terms of any subordination provisions);
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the price or prices (expressed as a percentage of the principal
amount) at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt
securities;
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the date or dates on which the principal of the debt securities
of the series is payable;
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the rate or rates (which may be fixed or variable) per annum
or the method used to determine the rate or rates (including any commodity, commodity
index, stock exchange index or financial index) at which the debt securities will bear
interest, the date or dates from which interest will accrue, the date or dates on which
interest will commence and be payable and any regular record date for the interest payable
on any interest payment date;
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the place or places where principal of, and interest, if
any, on the debt securities will be payable (and the method of such payment), where the
securities of such series may be surrendered for registration of transfer or exchange,
and where notices and demands to us in respect of the debt securities may be delivered;
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the period or periods within which, the price or prices
at which and the terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem or purchase the debt securities
pursuant to any sinking fund or analogous provisions or at the option of a holder of
debt securities and the period or periods within which, the price or prices at which
and in the terms and conditions upon which debt securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
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the dates on which and the price or prices at which we will
repurchase debt securities at the option of the holders of debt securities and other
detailed terms and provisions of these repurchase obligations;
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the denominations in which the debt securities will be issued,
if other than denominations of $1,000 and any integral multiple thereof;
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whether the debt securities will be issued in the form of
certificated debt securities or global debt securities;
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the portion of principal amount of the debt securities payable
upon declaration of acceleration of the maturity date, if other than the principal amount;
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the currency of denomination of the debt securities, which
may be United States Dollars or any foreign currency, and if such currency of denomination
is a composite currency, the agency or organization, if any, responsible for overseeing
such composite currency;
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the designation of the currency, currencies or currency
units in which payment of principal of, premium and interest on the debt securities will
be made;
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if payments of principal of, premium or interest on the
debt securities will be made in one or more currencies or currency units other than that
or those in which the debt securities are denominated, the manner in which the exchange
rate with respect to these payments will be determined;
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the manner in which the amounts of payment of principal
of, premium, if any, or interest on the debt securities will be determined, if these
amounts may be determined by reference to an index based on a currency or currencies
other than that in which the debt securities are denominated or designated to be payable
or by reference to a commodity, commodity index, stock exchange index or financial index;
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any provisions relating to any security provided for the
debt securities;
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any addition to, deletion of or change in the Events of
Default described in this prospectus or in the indenture with respect to the debt securities
and any change in the acceleration provisions described in this prospectus or in the
indenture with respect to the debt securities;
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any addition to, deletion of or change in the covenants
described in this prospectus or in the indenture with respect to the debt securities;
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any depositaries, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to the debt securities;
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the provisions, if any, relating to conversion or exchange
of any securities of such series, including if applicable, the conversion or exchange
price and period, provisions as to whether conversion or exchange will be mandatory,
the events requiring an adjustment of the conversion or exchange price and provisions
affecting conversion or exchange; and
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any other terms of the debt securities, which may supplement,
modify or delete any provision of the indenture as it applies to that series, including
any terms that may be required under applicable law or regulations or advisable in connection
with the marketing of the securities. (Section 2.2)
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We may issue debt securities that provide for
an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity pursuant
to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special
considerations applicable to any of these debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of
the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium
and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units,
we will provide you with information on the restrictions, elections, general tax considerations, specific terms and other information
with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the
applicable prospectus supplement.
Transfer and Exchange
Each debt security will be represented by either
one or more global securities registered in the name of The Depository Trust Company, or the Depositary, or a nominee of the Depositary
(we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate
issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated
debt security”) as set forth in the applicable prospectus supplement. Except as set forth under the heading “Global
Debt Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities.
You may
transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the
indenture. (Section 2.4) No service charge will be made for any transfer or exchange of certificated debt securities, but we may
require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
(Section 2.7)
You may effect the transfer of certificated
debt securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering
the certificate representing those certificated debt securities and either reissuance by us or the trustee of the certificate
to the new holder or the issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System.
Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary,
and registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities. (Article IV)
No Protection In the Event of a Change of Control
Unless we state otherwise in the applicable
prospectus supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection
in the event we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results
in a change in control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or
into, or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”)
unless:
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we are the surviving corporation or the successor person
(if other than us) is a corporation organized and validly existing under the laws of
any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities
and under the indenture; and
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immediately after giving effect to the transaction, no Default
or Event of Default, shall have occurred and be continuing.
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Notwithstanding the above, any of our subsidiaries
may consolidate with, merge into or transfer all or part of its properties to us. (Section 5.1)
Events of Default
“Event of Default”
means
with respect to any series of debt securities, any of the following:
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default in the payment of any interest upon any debt security
of that series when it becomes due and payable, and continuance of such default for a
period of 30 days (unless the entire amount of the payment is deposited by us with the
trustee or with a paying agent prior to the expiration of the 30-day period);
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default in the payment of principal of any debt security
of that series at its maturity;
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default in the performance or breach of any other covenant
or warranty by us in the indenture (other than a covenant or warranty that has been included
in the indenture solely for the benefit of a series of debt securities other than that
series), which default continues uncured for a period of 60 days after we receive written
notice from the trustee or Hemispherx and the trustee receive written notice from the
holders of not less than 25% in principal amount of the outstanding debt securities of
that series as provided in the indenture;
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certain voluntary or involuntary events of bankruptcy, insolvency
or reorganization of Hemispherx; or
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any other Event of Default provided with respect to debt
securities of that series that is described in the applicable prospectus supplement.
(Section 6.1)
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No Event of Default with respect to a particular
series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an
Event of Default with respect to any other series of debt securities. (Section 6.1) The occurrence of certain Events of Default
or an acceleration under the indenture may constitute an event of default under certain of our indebtedness or that of our subsidiaries
outstanding from time to time.
If an Event of Default with respect to debt
securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than 25%
in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if
given by the holders), declare to be due and payable immediately the principal of (or, if the debt securities of that series are
discount securities, that portion of the principal amount as may be specified in the terms of that series) and accrued and unpaid
interest, if any, on all debt securities of that series. In the case of an Event of Default resulting from certain events of bankruptcy,
insolvency or reorganization, the principal (or such specified amount) of and accrued and unpaid interest, if any, on all outstanding
debt securities will become and be immediately due and payable without any declaration or other act on the part of the trustee
or any holder of outstanding debt securities. At any time after a declaration of acceleration with respect to debt securities
of any series has been made, but before a judgment or decree for payment of the money due has been obtained by the trustee, the
holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration
if all Events of Default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities
of that series, have been cured or waived as provided in the indenture. (Section 6.2) We refer you to the prospectus supplement
relating to any series of debt securities that are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of such discount securities upon the occurrence of an Event of Default.
The indenture provides that the trustee will
be under no obligation to exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory
to it against any cost, liability or expense which might be incurred by it in exercising such right of power. (Section 7.1(e))
Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of
any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the
trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series. (Section
6.12)
No holder of any debt security of any series
will have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of
a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written
notice of a continuing Event of Default with respect to debt securities of that series;
and
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the holders of not less than 25% in principal amount of
the outstanding debt securities of that series have made written request, and offered
reasonable indemnity or security, to the trustee to institute the proceeding as trustee,
and the trustee has not received from the holders of not less than a majority in principal
amount of the outstanding debt securities of that series a direction inconsistent with
that request and has failed to institute the proceeding within 60 days. (Section 6.7)
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Notwithstanding any other provision in the indenture,
the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium
and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the
enforcement of payment. (Section 6.8)
The indenture requires us, within 120 days after
the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. (Section 4.3) If a Default
or Event of Default occurs and is continuing with respect to the debt securities of any series and if it is known to a responsible
officer of the trustee, the trustee shall mail to each Securityholder of the debt securities of that series notice of a Default
or Event of Default within 90 days after it occurs. The indenture provides that the trustee may withhold notice to the holders
of debt securities of any series of any Default or Event of Default (except in payment on any debt securities of that series)
with respect to debt securities of that series if the trustee determines in good faith that withholding notice is in the interest
of the holders of those debt securities. (Section 7.5)
Modification and Waiver
We and the trustee may modify and amend the
indenture or the debt securities of any series without the consent of any holder of any debt security:
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to cure any ambiguity, defect or inconsistency;
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to comply with covenants in the indenture described above
under the heading “Consolidation, Merger and Sale of Assets”;
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to provide for uncertificated securities in addition to
or in place of certificated securities;
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to make any change that does not adversely affect the rights
of any holder of debt securities;
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to provide for the issuance of and establish the form and
terms and conditions of debt securities of any series as permitted by the indenture;
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to effect the appointment of a successor trustee with respect
to the debt securities of any series and to add to or change any of the provisions of
the indenture to provide for or facilitate administration by more than one trustee; or
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to comply with requirements of the Commission in order to
effect or maintain the qualification of the indenture under the Trust Indenture Act.
(Section 9.1)
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We may also modify and amend the indenture with
the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected
by the modifications or amendments.
We may not make any modification or amendment without the consent
of the holders of each affected debt security then outstanding if that amendment will:
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reduce the amount of debt securities whose holders must
consent to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest
(including default interest) on any debt security;
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reduce the principal of or premium on or change the fixed
maturity of any debt security or reduce the amount of, or postpone the date fixed for,
the payment of any sinking fund or analogous obligation with respect to any series of
debt securities;
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reduce the principal amount of discount securities payable
upon acceleration of maturity;
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waive a default in the payment of the principal of, premium
or interest on any debt security (except a rescission of acceleration of the debt securities
of any series by the holders of at least a majority in aggregate principal amount of
the then outstanding debt securities of that series and a waiver of the payment default
that resulted from such acceleration);
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make the principal of or premium or interest on any debt
security payable in currency other than that stated in the debt security;
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make any change to certain provisions of the indenture relating
to, among other things, the right of holders of debt securities to receive payment of
the principal of, premium and interest on those debt securities and to institute suit
for the enforcement of any such payment and to waivers or amendments; or
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waive a redemption payment with respect to any debt security.
(Section 9.3)
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Except for certain specified provisions, the
holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders
of all debt securities of that series waive our compliance with provisions of the indenture. (Section 9.2) The holders of a majority
in principal amount of the outstanding debt securities of any series may on behalf of the holders of all the debt securities of
such series waive any past default under the indenture with respect to that series and its consequences, except a default in the
payment of the principal of, premium or any interest on any debt security of that series; provided, however, that the holders
of a majority in principal amount of the outstanding debt securities of any series may rescind an acceleration and its consequences,
including any related payment default that resulted from the acceleration. (Section 6.13)
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance.
The indenture provides
that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and all
obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the
deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated
in a single currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such
currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount
sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge
each installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities
of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other
things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published
by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change
in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal
income tax purposes as a result of the deposit, defeasance and discharge and will be subject to United States federal income tax
on the same amounts and in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge
had not occurred. (Section 8.3)
Defeasance of Certain Covenants.
The
indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with
certain conditions:
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we may omit to comply with the covenant described under
the heading “Consolidation, Merger and Sale of Assets” and certain other
covenants set forth in the indenture, as well as any additional covenants which may be
set forth in the applicable prospectus supplement; and
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any omission to comply with those covenants will not constitute
a Default or an Event of Default with respect to the debt securities of that series (“covenant
defeasance”).
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The conditions include:
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depositing with the trustee money and/or U.S. government
obligations or, in the case of debt securities denominated in a single currency other
than U.S. Dollars, government obligations of the government that issued or caused to
be issued such currency, that, through the payment of interest and principal in accordance
with their terms, will provide money in an amount sufficient in the opinion of a nationally
recognized firm of independent public accountants or investment bank to pay and discharge
each installment of principal of, premium and interest on and any mandatory sinking fund
payments in respect of the debt securities of that series on the stated maturity of those
payments in accordance with the terms of the indenture and those debt securities; and
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delivering to the trustee an opinion of counsel to the effect
that the holders of the debt securities of that series will not recognize income, gain
or loss for United States federal income tax purposes as a result of the deposit and
related covenant defeasance and will be subject to United States federal income tax on
the same amounts and in the same manner and at the same times as would have been the
case if the deposit and related covenant defeasance had not occurred. (Section 8.4)
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Covenant Defeasance and Events of Default.
In the event we exercise our option to effect covenant defeasance with respect to any series of debt securities and the debt
securities of that series are declared due and payable because of the occurrence of any Event of Default, the amount of money
and/or U.S. government obligations or foreign government obligations on deposit with the trustee will be sufficient to pay amounts
due on the debt securities of that series at the time of their stated maturity but may not be sufficient to pay amounts due on
the debt securities of that series at the time of the acceleration resulting from the Event of Default. However, we shall remain
liable for those payments. (Section 8.4).
Governing Law
The indenture and the debt securities, including
any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State
of New York without regard to conflict of law principles that would result in the application of any law other than the laws of
the State of New York. (Section 10.10)
DESCRIPTION OF COMMON STOCK
The following summary
of the terms of our common stock does not purport to be complete and is subject to and qualified in its entirety by reference
to our Amended and Restated Certificate of Incorporation as subsequently amended, or certificate of incorporation, and Amended
and Restated Bylaws, or bylaws, copies of which are on file with the Commission as exhibits to registration statements previously
filed by us. See “Where You Can Find More Information.”
General
Our authorized capital stock currently consists
of 350,000,000 shares of common stock, par value $0.001 per share, and 5,000,000 shares of preferred stock, $0.01 par value per
share. As of June 1, 2015, we had 242,554,673 shares of common stock outstanding; an aggregate of 16,905,280 shares of common
stock reserved for issuance upon exercise of outstanding stock options and warrants; and an aggregate of 687,543 shares of common
stock reserved for issuance pursuant to future grants under our 2009 Equity Incentive Plan. As of June 1, 2015, we had approximately
660,684 shares of common stock that are not reserved for issuance or subject to restrictions (see “Limitations on Use”
below).
The following summary of the rights of our common
stock is not complete and is qualified in its entirety by reference to our amended and restated certificate of incorporation,
as subsequently amended, and amended and restated bylaws, copies of which are filed as exhibits to the registration statement
of which this prospectus is a part.
Limitations on Use
Pursuant to our Certificate of Incorporation,
there are specific limitations and restrictions on our ability to issue 150,000,000 of the 350,000,000 authorized shares of common
stock, unless such issuances are primarily in connection with strategic transactions or other non-fundraising purpose that met
certain significant criteria. If we want to issue any of these shares for other purposes, we must first seek stockholder approval.
In September 2012, our stockholders authorized our Board to use 75,000,000 of the 150,000,000 shares for fundraising purposes.
Voting Rights
Holders of our common stock are entitled to
one vote per share on all matters to be voted upon by the stockholders. The holders of common stock are not entitled to cumulate
voting rights with respect to the election of directors, which means that the holders of a majority of the shares voted can elect
all of the directors then standing for election.
Dividends
Subject to limitations under Delaware law and
preferences that may apply to any outstanding shares of preferred stock, holders of our common stock are entitled to receive ratably
such dividends or other distribution, if any, as may be declared by our board of directors out of funds legally available therefor.
Liquidation
In the event of our liquidation, dissolution
or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities,
subject to the liquidation preference of any outstanding preferred stock.
Rights and Preferences
The common stock has no preemptive, conversion
or other rights to subscribe for additional securities. There are no redemption or sinking fund provisions applicable to our common
stock. The rights, preferences and privileges of holders of common stock are subject to, and may be adversely affected by, the
rights of the holders of shares of any series of preferred stock that we may designate and issue in the future.
Fully Paid and Nonassessable
All outstanding shares of our common stock are,
and all shares of common stock to be outstanding upon completion of the offering will be, validly issued, fully paid and nonassessable.
Certificate of Incorporation and Bylaw Provisions
See “Certain Provisions of Delaware
Law and of the Company’s Certificate of Incorporation and Bylaws” for a description of provisions of our certificate
of incorporation and bylaws which may have the effect of delaying changes in our control or management.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Continental Stock Transfer & Trust Company.
DESCRIPTION OF PREFERRED STOCK
We currently have authorized 5,000,000 shares
of preferred stock, $0.01 par value per share. As of the date of this prospectus, we did not have any shares of preferred stock
outstanding.
General
Prior to issuance of shares
of each series of our undesignated preferred stock, our board of directors is required by the Delaware General Corporate Law,
or DGCL, and our Amended and Restated Certificate of Incorporation as subsequently amended, or certificate of incorporation, to
adopt resolutions and file a Certificate of Designations with the Secretary of State of the State of Delaware, fixing for each
such series the designations, powers, preferences, rights, qualifications, limitations and restrictions of the shares of such
series. Our board of directors could authorize the issuance of shares of preferred stock with terms and conditions which could
have the effect of discouraging a takeover or other transaction which holders of some, or a majority, of such shares might believe
to be in their best interests or in which holders of some, or a majority, of such shares might receive a premium for their shares
over the then-market price of such shares.
Subject to limitations prescribed by the DGCL,
our certificate of incorporation and our Amended and Restated Bylaws, or bylaws, our board of directors is authorized to fix the
number of shares constituting each series of preferred stock and the designations, powers, preferences, rights, qualifications,
limitations and restrictions of the shares of such series, including such provisions as may be desired concerning voting, redemption,
dividends, dissolution or the distribution of assets, conversion or exchange, and such other subjects or matters as may be fixed
by resolution of the board of directors. Each series of preferred stock that we offer under this prospectus will, when issued,
be fully paid and nonassessable and will not have, or be subject to, any preemptive or similar rights.
The applicable prospectus supplement(s) will
describe the following terms of the series of preferred stock in respect of which this prospectus is being delivered:
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the title and stated value of the preferred stock;
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the number of shares of the preferred stock offered, the
liquidation preference per share and the purchase price of the preferred stock;
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the dividend rate(s), period(s) and/or payment date(s) or
the method(s) of calculation for dividends;
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whether dividends shall be cumulative or non-cumulative
and, if cumulative, the date from which dividends on the preferred stock shall accumulate;
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the procedures for any auction and remarketing, if any,
for the preferred stock;
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the provisions for a sinking fund, if any, for the preferred
stock;
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the provisions for redemption, if applicable, of the preferred
stock;
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any listing of the preferred stock on any securities exchange
or market;
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the terms and conditions, if applicable, upon which the
preferred stock will be convertible into common stock or another series of our preferred
stock, including the conversion price (or its manner of calculation) and conversion period;
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the terms and conditions, if applicable, upon which preferred
stock will be exchangeable into our debt securities, including the exchange price, or
its manner of calculation, and exchange period;
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voting rights, if any, of the preferred stock;
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a discussion of any material and/or special U.S. federal
income tax considerations applicable to the preferred stock;
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whether interests in the preferred stock will be represented
by depositary shares;
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the relative ranking and preferences of the preferred stock
as to dividend rights and rights upon liquidation, dissolution or winding up of our affairs;
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any limitations on issuance of any series of preferred stock
ranking senior to or on a parity with the preferred stock as to dividend rights and rights
upon liquidation, dissolution or winding up of our affairs; and
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any other specific terms, preferences, rights, limitations
or restrictions on the preferred stock.
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Rank
Unless otherwise specified in the prospectus
supplement, with respect to dividend rights and rights upon liquidation, dissolution or winding up of Hemispherx, the preferred
stock will rank:
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senior to all classes or series of our common stock, and
to all equity securities issued by us the terms of which specifically provide that such
equity securities rank junior to the preferred stock with respect to dividend rights
or rights upon the liquidation, dissolution or winding up of us;
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on a parity with all equity securities issued by us that
do not rank senior or junior to the preferred stock with respect to dividend rights or
rights upon the liquidation, dissolution or winding up of us; and
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junior to all equity securities issued by us the terms of
which do not specifically provide that such equity securities rank on a parity with or
junior to the preferred stock with respect to dividend rights or rights upon the liquidation,
dissolution or winding up of us (including any entity with which we may be merged or
consolidated or to which all or substantially all of our assets may be transferred or
which transfers all or substantially all of our assets).
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As used for these purposes, the term “equity
securities” does not include convertible debt securities.
Transfer Agent and Registrar
The transfer agent and registrar for any series
or class of preferred stock will be set forth in the applicable prospectus supplement.
DESCRIPTION OF WARRANTS
We may issue debt warrants to purchase debt
securities, as well as equity warrants to purchase common stock or preferred stock. The warrants may be issued independently or
together with any securities and may be attached to or separate from the securities. The warrants may be issued directly by us
or under warrant agreements to be entered into between us and a bank or trust company, as warrant agent, all as shall be set forth
in the prospectus supplement relating to warrants being offered pursuant to such prospectus supplement. The following description
of warrants will apply to the warrants offered by this prospectus unless we provide otherwise in the applicable prospectus supplement.
The applicable prospectus supplement for a particular series of warrants may specify different or additional terms.
Debt Warrants
The applicable prospectus supplement will describe
the terms of debt warrants offered, the warrant agreement relating to the debt warrants and the debt warrant certificates representing
the debt warrants, including the following:
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the title of the debt warrants;
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the aggregate number of the debt warrants;
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the price or prices at which the debt warrants will be issued;
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the designation, aggregate principal amount and terms of
the debt securities purchasable upon exercise of the debt warrants, and the procedures
and conditions relating to the exercise of the debt warrants;
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the designation and terms of any related debt securities
with which the debt warrants are issued, and the number of debt warrants issued with
each debt security;
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the date, if any, on and after which the debt warrants and
the related debt securities will be separately transferable;
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the principal amount of debt securities purchasable upon
exercise of each debt warrant;
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the date on which the right to exercise the debt warrants
will commence, and the date on which this right will expire;
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the maximum or minimum number of debt warrants which may
be exercised at any time;
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a discussion of any material Federal income tax considerations;
and
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any other terms of the debt warrants and terms, procedures
and limitations relating to the exercise of debt warrants.
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Debt warrants may be exercised at the corporate
trust office of the warrant agent or any other office indicated in the prospectus supplement. Prior to the exercise of their debt
warrants, holders of debt warrants will not have any of the rights of holders of the debt securities purchasable upon exercise
and will not be entitled to payment of principal or any premium, if any, or interest on the debt securities purchasable upon exercise.
Equity Warrants
The applicable prospectus supplement will describe
the following terms of equity warrants offered:
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the title of the equity warrants;
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the securities (i.e., common stock or preferred stock) for
which the equity warrants are exercisable;
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the price or prices at which the equity warrants will be
issued;
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if applicable, the designation and terms of the common stock
or preferred stock with which the equity warrants are issued, and the number of equity
warrants issued with each share of common stock or preferred stock;
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if applicable, the date on and after which the equity warrants
and the related common stock or preferred stock will be separately transferable;
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if applicable, a discussion of any material Federal income
tax considerations; and
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any other terms of the equity warrants, including terms,
procedures and limitations relating to the exchange and exercise of equity warrants.
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Prior to exercise of the equity warrants, holders
of equity warrants will not be entitled, by virtue of being such holders, to vote, consent, receive dividends, receive notice
as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter, or to exercise
any rights whatsoever as our stockholders.
The exercise price payable and the number of shares of common stock
or preferred stock purchasable upon the exercise of each equity warrant will be subject to adjustment in certain events, including
the issuance of a stock dividend to holders of common stock or preferred stock or a stock split, reverse stock split, combination,
subdivision or reclassification of common stock or preferred stock. In lieu of adjusting the number of shares of common stock
or preferred stock purchasable upon exercise of each equity warrant, we may elect to adjust the number of equity warrants. No
adjustments in the number of shares purchasable upon exercise of the equity warrants will be required until cumulative adjustments
require an adjustment of at least 1% thereof. We may, at our option, reduce the exercise price at any time. No fractional shares
will be issued upon exercise of equity warrants, but we will pay the cash value of any fractional shares otherwise issuable. Notwithstanding
the foregoing, in case of any consolidation, merger, or sale or conveyance of our property in its entirety or substantially in
its entirety, the holder of each outstanding equity warrant shall have the right to the kind and amount of shares of stock and
other securities and property, including cash, receivable by a holder of the number of shares of common stock or preferred stock
into which the equity warrant was exercisable immediately prior to such transaction.
Exercise of Warrants
Each warrant will entitle the holder to purchase
for cash such principal amount of securities or shares of stock at such exercise price as shall in each case be set forth in,
or be determinable as set forth in, the prospectus supplement relating to the warrants offered thereby. Warrants may be exercised
at any time up to the close of business on the expiration date set forth in the prospectus supplement relating to the warrants
offered thereby. After the close of business on the expiration date, unexercised warrants will become void.
The warrants may be exercised as set forth in
the prospectus supplement relating to the warrants offered. Upon receipt of payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the securities purchasable upon such exercise. If less than all of the warrants represented
by such warrant certificate are exercised, a new warrant certificate will be issued for the remaining warrants.
DESCRIPTION OF UNITS
The following description, together with the
additional information we include in any applicable prospectus supplement, summarizes the general features of the units that we
may offer under this prospectus. We may issue units consisting of two or more other constituent securities. These units may be
issuable as, and for a specified period of time may be transferable only as a single security, rather than as the separate constituent
securities comprising such units. While the features we have summarized below will generally apply to any units we may offer under
this prospectus, we will describe the particular terms of any units that we may offer in more detail in the applicable prospectus
supplement. The specific terms of any units may differ from the description provided below as a result of negotiations with third
parties in connection with the issuance of those units, as well as for other reasons. Because the terms of any units we offer
under a prospectus supplement may differ from the terms we describe below, you should rely solely on information in the applicable
prospectus supplement if that summary is different from the summary in this prospectus.
We urge you to read the applicable prospectus
supplement related to the specific units being offered, as well as the complete instruments that contain the terms of the securities
that comprise those units. Certain of those instruments, or forms of those instruments, have been or will be filed as exhibits
to the registration statement of which this prospectus is a part, and supplements to those instruments or forms may be incorporated
by reference into the registration statement of which this prospectus is a part from reports we file with the Commission.
If we offer any units, certain terms of that
series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
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the title of the series of units;
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identification and description of the separate constituent
securities comprising the units;
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the price or prices at which the units will be issued;
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the date, if any, on and after which the constituent securities
comprising the units will be separately transferable;
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a discussion of certain United States federal income tax
considerations applicable to the units; and
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any other terms of the units and their constituent securities.
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GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in a prospectus
supplement, the securities initially will be issued in book-entry form and represented by one or more global notes or global securities,
or, collectively, global securities. The global securities will be deposited with, or on behalf of, The Depository Trust Company,
New York, New York, as depositary, or DTC, and registered in the name of Cede & Co., the nominee of DTC. Unless and until
it is exchanged for individual certificates evidencing securities under the limited circumstances described below, a global security
may not be transferred except as a whole by the depositary to its nominee or by the nominee to the depositary, or by the depositary
or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC has advised us that it is:
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a limited-purpose trust company organized under the New
York Banking Law,
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a “banking organization” within the meaning
of the New York Banking Law,
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a member of the Federal Reserve System,
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a “clearing corporation” within the meaning
of the New York Uniform Commercial Code, and
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a “clearing agency” registered pursuant
to the provisions of Section 17A of the Exchange Act.
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DTC holds and provides asset servicing for
issues of U.S. and non-U.S. equity issues, corporate and municipal debt issues, and money market instruments from many countries
that its participants (“Direct Participants”) deposit with it. DTC also facilitates the post-trade settlement among
Direct Participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry
transfers and pledges between Direct Participants’ accounts. This eliminates the need for physical movement of securities
certificates. Direct Participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing
corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation
(“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing
Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to
the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies,
and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The DTC Rules applicable to its Participants are on file with the Securities and
Exchange Commission.
Purchases of securities under the DTC system
must be made by or through Direct Participants, which will receive a credit for the securities on DTC’s records. The ownership
interest of each actual purchaser of each security (“Beneficial Owner”) is in turn to be recorded on the Direct and
Indirect Participants’ records. Beneficial Owners will not receive written confirmation from DTC of their purchase. Beneficial
Owners are, however, expected to receive written confirmations providing details of the transaction, as well as periodic statements
of their holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers
of ownership interests in the securities are to be accomplished by entries made on the books of Direct and Indirect Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests
in securities, except in the event that use of the book-entry system for the securities is discontinued.
To facilitate subsequent transfers, all global
securities deposited by Direct Participants with DTC will be registered in the name of DTC’s partnership nominee, Cede &
Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their
registration in the name of Cede & Co. or such other DTC nominee will not effect any change in beneficial ownership. DTC has
no knowledge of the actual Beneficial Owners of the securities; DTC’s records reflect only the identity of the Direct Participants
to whose accounts such securities are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants
will be responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications
by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants
to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be
in effect from time to time. Beneficial Owners of securities may wish to take certain steps to augment the transmission to them
of notices of significant events with respect to the securities, such as redemptions, tenders, defaults, and proposed amendments
to the security documents. For example, Beneficial Owners of securities may wish to ascertain that the nominee holding the securities
for their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative, Beneficial Owners may wish
to provide their names and addresses to the registrar and request that copies of notices be provided directly to them.
Redemption notices will be sent to DTC. If
less than all of the Securities within an issue are being redeemed, DTC’s practice is to determine by lot the amount of
the interest of each Direct Participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other
DTC nominee) will consent or vote with respect to Securities unless authorized by a Direct Participant in accordance with DTC’s
MMI Procedures. Under its usual procedures, DTC mails an Omnibus Proxy to us as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.’s consenting or voting rights to those Direct Participants to whose accounts Securities are
credited on the record date, as identified in a listing attached to the Omnibus Proxy.
So long as the securities are in book-entry
form, you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect
participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities,
where notices and demands in respect of the securities and the indenture may be delivered to us and where certificated securities
may be surrendered for payment, registration of transfer or exchange.
Redemption proceeds, distributions, and dividend
payments on the Securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative
of DTC. DTC’s practice is to credit Direct Participants’ accounts upon DTC’s receipt of funds and corresponding
detail information from us, on payable date in accordance with their respective holdings shown on DTC’s records. Payments
by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of
such Participant and not of DTC, or us, subject to any statutory or regulatory requirements as may be in effect from time to time.
Payment of redemption proceeds, distributions, and dividend payments to Cede & Co. (or such other nominee as may be requested
by an authorized representative of DTC) is our responsibility, disbursement of such payments to Direct Participants will be the
responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility of Direct and Indirect
Participants.
Except under the limited circumstances described
below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical
delivery of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise
any rights under the securities and the indenture.
The laws of some jurisdictions may require
that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability
to transfer or pledge beneficial interests in securities.
DTC may discontinue providing its services
as depository with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event
that a successor depository is not obtained, security certificates are required to be printed and delivered.
As noted above, beneficial owners of a particular
series of securities generally will not receive certificates representing their ownership interests in those securities. However,
if:
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DTC notifies us that it is unwilling or unable to continue
as a depositary for the global security or securities representing such series of securities
or if DTC ceases to be a clearing agency registered under the Exchange Act at a time
when it is required to be registered and a successor depositary is not appointed within
90 days of the notification to us or of our becoming aware of DTC’s ceasing to
be so registered, as the case may be;
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we determine, in our sole discretion, not to have such
securities represented by one or more global securities; or
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an Event of Default has occurred and is continuing with
respect to such series of securities,
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we will prepare and deliver certificates for
such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that
is exchangeable under the circumstances described in the preceding sentence will be exchangeable for securities in definitive
certificated form registered in the names that the depositary directs. It is expected that these directions will be based upon
directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
We have obtained the information in this section
and elsewhere in this prospectus concerning DTC and DTC’s book-entry system from sources that are believed to be reliable,
but we take no responsibility for the accuracy of this information.
CERTAIN PROVISIONS OF DELAWARE LAW AND OF
THE
COMPANY’S CERTIFICATE OF INCORPORATION
AND BYLAWS
Delaware Takeover Statute
We are subject to Section 203 of the DGCL.
This statute regulating corporate takeovers prohibits a Delaware corporation from engaging in any business combination with any
interested stockholder for three years following the date that the stockholder became an interested stockholder, unless:
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prior to the date of the transaction, the board of directors
of the corporation approved either the business combination or the transaction which
resulted in the stockholder becoming an interested stockholder;
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the interested stockholder owned at least 85% of the voting
stock of the corporation outstanding at the time the transaction commenced, excluding
for purposes of determining the number of shares outstanding (a) shares owned by
persons who are directors and also officers and (b) shares owned by employee stock
plans in which employee participants do not have the right to determine confidentially
whether shares held subject to the plan will be tendered in a tender or exchange offer;
or
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on or subsequent to the date of the transaction, the business
combination is approved by the board and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least 66 2/3%
of the outstanding voting stock which is not owned by the interested stockholder.
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Section 203 defines a business combination
to include:
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any merger or consolidation involving the corporation and
the interested stockholder;
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any sale, transfer, pledge or other disposition involving
the interested stockholder of 10% or more of the assets of the corporation;
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Subject to exceptions, any transaction that results in the
issuance or transfer by the corporation of any stock of the corporation to the interested
stockholder; or
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the receipt by the interested stockholder of the benefit
of any loans, advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
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In general, Section 203 defines an interested
stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any
entity or person affiliated with or controlling or controlled by the entity or person.
Certificate of Incorporation and Bylaw Provisions
Provisions of our certificate of incorporation
and bylaws may have the effect of making it more difficult for a third party to acquire, or discourage a third party from attempting
to acquire, control of our company by means of a tender offer, a proxy contest or otherwise. These provisions may also make the
removal of incumbent officers and directors more difficult. These provisions are intended to discourage certain types of coercive
takeover practices and inadequate takeover bids and to encourage persons seeking to acquire control of Hemispherx to first negotiate
with us. These provisions could also limit the price that investors might be willing to pay in the future for shares of our common
stock. These provisions may make it more difficult for stockholders to take specific corporate actions and could have the effect
of delaying or preventing a change in our control.
In particular, our certificate of incorporation
and bylaws, as currently amended, provide for the following:
Advance Notice Requirement
Stockholder proposals to be brought before an
annual meeting of our stockholders must comply with advance notice procedures. These advance notice procedures require timely
notice and apply in several situations, including stockholder proposals relating to the nominations of persons for election to
the board of directors. Generally, to be timely, notice must be received at our principal executive offices not less than 60 days
nor more than 90 days prior to the first anniversary date of the annual meeting for the preceding year, or where a Stockholder
Proposal relates to nomination of candidates for director, not less than 90 days nor more than 120 days prior to the first anniversary
date of the annual meeting for the preceding year.
Issuance of Undesignated Preferred Stock
Our board of directors is authorized to issue,
without further action by the stockholders, up to 5,000,000 shares of undesignated preferred stock with rights and preferences,
including voting rights, designated from time to time by the board of directors. As of the date of this prospectus, we have no
shares of preferred stock designated or outstanding. The existence of authorized but unissued shares of preferred stock enables
our board of directors to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender
offer, proxy contest or otherwise.
Limitation of Liability and Indemnification of Officers and
Directors
As permitted by Section 102 of the DGCL,
we have adopted provisions in our certificate of incorporation and bylaws that limit or eliminate the personal liability of our
directors for a breach of their fiduciary duty of care as a director. The duty of care generally requires that, when acting on
behalf of the corporation, directors exercise an informed business judgment based on all material information reasonably available
to them. Consequently, a director will not be personally liable to us or our stockholders for monetary damages or breach of fiduciary
duty as a director, except for liability for:
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any breach of the director’s duty of loyalty to us
or our stockholders;
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any act or omission not in good faith or that involves intentional
misconduct or a knowing violation of law;
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any act related to unlawful stock repurchases, redemptions
or other distributions or payment of dividends; or
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any transaction from which the director derived an improper
personal benefit.
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These limitations of liability do not affect
the availability of equitable remedies such as injunctive relief or rescission. Our certificate of incorporation also authorizes
us to indemnify our officers, directors and other agents to the fullest extent permitted under Delaware law.
As permitted by Section 145 of the DGCL,
our bylaws provide that:
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we may indemnify our directors, officers, employees and
agents to the fullest extent permitted by the DGCL, subject to limited exceptions;
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we may advance expenses to our directors, officers, employees
and agents in connection with a legal proceeding to the fullest extent permitted by the
DGCL, subject to limited exceptions; and
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the rights provided in our bylaws are not exclusive.
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We have purchased a policy of directors’
and officers’ liability insurance that insures our directors and officers against the cost of defense, settlement or payment
of a judgment in some circumstances.
LEGAL MATTERS
Silverman Shin Byrne & Gilchrest PLLC will
issue an opinion about certain legal matters with respect to the securities.
EXPERTS
The consolidated financial statements of Hemispherx Biopharma,
Inc. included in the Company’s Annual Report (Form 10-K) as of December 31, 2014 and 2013 and for the years then ended being
incorporated by reference in this Prospectus and Registration Statement have been audited by McGladrey LLP, an independent registered
public accounting firm, as stated in their report, included therein, and being incorporated herein by reference. Such financial
statements are incorporated herein by reference in reliance upon such report and upon the authority of such firm as experts in
accounting and auditing.
LIMITATION ON LIABILITY AND DISCLOSURE OF
COMMISSION POSITION ON
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our certificate of incorporation and bylaws
provide that we will indemnify our directors and officers, and may indemnify our employees and other agents, to the fullest extent
permitted by the DGCL. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion
of the Commission, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Commission a registration
statement on Form S-3 under the Securities Act, of which this prospectus forms a part. The rules and regulations of the Commission
allow us to omit from this prospectus certain information included in the registration statement. For further information about
us and our securities, you should refer to the registration statement and the exhibits and schedules filed with the registration
statement. With respect to the statements contained in this prospectus regarding the contents of any agreement or any other document,
in each instance, the statement is qualified in all respects by the complete text of the agreement or document, a copy of which
has been filed as an exhibit to the registration statement.
We file reports, proxy statements and other
information with the Commission under the Exchange Act. You may read and copy this information from the Public Reference Room
of the Commission, 100 F Street, N.E., Room 1580, Washington, D.C. 20549, at prescribed rates. You may obtain information on the
operation of the Public Reference Room by calling the Commission at 1-800-SEC-0330. The Commission also maintains an Internet
website that contains reports, proxy statements and other information about issuers, like us, that file electronically with the
Commission. The address of that website is
www.sec.gov
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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.
INFORMATION INCORPORATED BY REFERENCE
The Commission allows us to “incorporate
by reference” the information we file with it which means that we can disclose important information to you by referring
you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference
is considered to be part of this prospectus, and later information that we file with the Commission will automatically update
and supersede this information. We incorporate by reference the documents listed below and any future information filed (rather
than furnished) with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act between the date of this
prospectus and the termination of the offering and also between the date of the initial registration statement and prior to effectiveness
of the registration statement, provided, however, that we are not incorporating any information furnished under any of Item 2.02
or Item 7.01 of any current report on Form 8-K:
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our annual report on Form 10-K for the year ended December
31, 2014;
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our quarterly report on Form 10-Q for the quarter ended
March 31, 2015;
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our current report on Form 8-K filed with the Commission
on June 24, 2015;
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our preliminary proxy statement on Schedule 14A filed on
July 7, 2015; 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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These documents may also be accessed on our
website at
www.hemispherx.net
. Except as otherwise specifically incorporated by reference in this prospectus, information
contained in, or accessible through, our website is not a part of this prospectus.
We will furnish without charge to you, upon
written or oral request, a copy of any or all of the documents incorporated by reference, including exhibits to these documents
by writing or telephoning us at the following address:
Hemispherx Biopharma, Inc.
1617 JFK Boulevard, Ste. 500
Philadelphia, Pennsylvania 19103
Attention: Corporate Secretary
(215) 988-0800
HEMISPHERX BIOPHARMA, INC.
$77,849,014
Common Stock
Preferred Stock
Warrants
Debt Securities
PROSPECTUS
August 4, 2015
Hemispherx Biopharma (AMEX:HEB)
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