Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-226059
PROSPECTUS
SUPPLEMENT
(To
Prospectus Dated August 3, 2018)
Up
to $10,409,565
Common
Stock
AIM
ImmunoTech Inc. (formerly, Hemispherx Biopharma, Inc.) previously entered into an Equity Distribution Agreement
with Maxim Group LLC, or Maxim, relating to the sale of our common stock, par value $0.001 per share, of which we have sold
$4,050,565 of shares pursuant to a prospectus supplement dated July 22, 2019 (and of which we may sell an additional $457,678
of shares as of the date hereof). In accordance with the terms of the Equity Distribution Agreement and the limitations under
General Instruction I.B.6 of Form S-3, as of the date hereof, we may offer and sell additional shares of our common stock
having an aggregate offering price of up to $10,867,245 from time to time through Maxim acting as agent. This prospectus
supplement is being filed for the offer and sale of an additional $10,409,565 of shares pursuant to the Equity Distribution Agreement.
Sales
of our common stock, if any, under this prospectus supplement and the accompanying base prospectus will be made in sales deemed
to be “at the market” offerings as defined in Rule 415 under the Securities Act of 1933, as amended, or the Securities
Act, including sales made directly on or through the NYSE American, the existing trading market for our common stock, sales made
to or through a market maker other than on an exchange or otherwise, in negotiated transactions at market prices prevailing at
the time of sale or at prices related to such prevailing market prices and/or any other method permitted by law, including in
privately negotiated transactions. Maxim will use its commercially reasonable efforts to sell on our behalf all the shares of
common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between
Maxim and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement. We provide more information
about how the shares of common stock will be sold in the section entitled “Plan of Distribution.”
Maxim
will be entitled to compensation at a fixed commission rate of 3.5% of the gross proceeds of each sale of shares of our common
stock. In connection with the sale of shares of our common stock on our behalf, Maxim will be deemed to be an “underwriter”
within the meaning of the Securities Act and the compensation of Maxim will be deemed to be underwriting commissions or discounts.
We have also agreed to provide indemnification and contribution to Maxim with respect to certain liabilities, including liabilities
under the Securities Act.
Our common stock is traded
on The NYSE American under the symbol “AIM.” On March 2, 2020, the last reported sale price of our common stock was
$1.80 per share.
As
of the date of this prospectus supplement, the aggregate market value of our outstanding common stock held by non-affiliates was
approximately $44,753,429 based on 21,830,941, shares of outstanding common stock held by non-affiliates, and a per share price
of $2.05 based on the closing sale price of our common stock on February 28, 2020. In no event will the aggregate market value
of securities sold by us or on our behalf under this prospectus supplement pursuant to General Instruction I.B.6 of Form S-3 during
the twelve-month period immediately prior to, and including, the date of any such sale, exceed one-third of the aggregate market
value of our common stock held by non-affiliates. We have offered $4,050,565 worth of securities pursuant to General Instruction
I.B.6 of Form S-3 during the twelve-month period that ends on and includes the date hereof.
Investing
in our common stock involves a high degree of risk. See “Risk Factors” beginning on page S-6 of this prospectus
supplement, page 4 of the accompanying base prospectus and under similar headings in the documents incorporated by
reference into this prospectus supplement and the accompanying base prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus supplement or the accompanying base prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
Maxim
Group LLC
The
date of this prospectus supplement is March 3, 2020
TABLE
OF CONTENTS
Prospectus
Supplement
Prospectus
ABOUT
THIS PROSPECTUS SUPPLEMENT
References
in this prospectus supplement, the accompanying base prospectus and the documents incorporated by reference herein or therein,
to the “Company,” “our,” “us” or “we” refer to AIM ImmunoTech Inc.
This
prospectus supplement and the accompanying base prospectus form a part of a registration statement on Form S-3 (File No. 333-226059),
which was declared effective on August 3, 2018, that we filed with the Securities Exchange Commission (“SEC”) utilizing
a “shelf” registration process. This document is in two parts. The first part is the prospectus supplement, which
describes the specific terms of this offering. The second part, the accompanying base prospectus, provides more general information
about the securities we may offer from time to time, some of which may not apply to the securities offered by this prospectus
supplement. Generally, when we refer to this prospectus, we are referring to both parts of this document combined. Before you
invest, you should carefully read this prospectus supplement, the accompanying base prospectus, all information incorporated by
reference herein and therein, and the additional information described under “Where You Can Find More Information”
in this prospectus supplement. These documents contain information you should consider when making your investment decision. This
prospectus supplement may add, update or change information contained in the accompanying base prospectus. To the extent that
any statement that we make in this prospectus supplement is inconsistent with statements made in the accompanying base prospectus
or any documents incorporated by reference therein, the statements made in this prospectus supplement will be deemed to modify
or supersede those made in the accompanying base prospectus and such documents incorporated by reference therein.
You
should rely only on the information contained or incorporated herein by reference in this prospectus supplement and contained
or incorporated therein by reference in the accompanying base prospectus. We have not authorized any other person to provide you
with any information that is different. If anyone provides you with different, additional or inconsistent information, you should
not rely on it.
We
are offering to sell our securities only in jurisdictions where offers and sales are permitted. The distribution of this prospectus
supplement and the accompanying base prospectus and the offering of the securities in certain jurisdictions may be restricted
by law. This prospectus supplement and the accompanying base prospectus do not constitute, and may not be used in connection with,
an offer to sell, or a solicitation of an offer to buy, any securities offered by this prospectus supplement and the accompanying
base prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.
We
further note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any
document that is incorporated by reference in the prospectus supplement and the accompanying base prospectus were made solely
for the benefit of the parties to such agreement, including, in some cases, for the purpose of allocating risk among the parties
to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations,
warranties or covenants were accurate only as of the date when made. Accordingly, such representations, warranties and covenants
should not be relied on as accurately representing the current state of our affairs.
Unless
otherwise indicated, all references to “dollars” and “$” in this prospectus supplement, the accompanying
base prospectus and documents incorporated by reference herein and therein, are to amounts presented in United States dollars.
Financial information presented in this prospectus supplement, the accompanying base prospectus and the documents incorporated
by reference herein and therein that is derived from the Company’s financial statements is prepared in accordance with accounting
principles generally accepted in the United States.
We
have authorized only the information contained or incorporated by reference in this prospectus supplement, the accompanying base
prospectus, and any free writing prospectus prepared by or on behalf of us or to which we have referred you. We have not, and
Maxim and any other underwriters have not, authorized anyone to provide you with information that is different. We and Maxim take
no responsibility for, and can provide no assurance as to the reliability of, any information that others may give you. We are
offering to sell, and seeking offers to buy, our common stock only in jurisdictions where offers and sales are permitted. The
information contained in or incorporated by reference in this document is accurate only as of the date such information was issued,
regardless of the time of delivery of this prospectus supplement or the date of any sale of our common stock.
PROSPECTUS
SUPPLEMENT SUMMARY
This
summary highlights selected information contained elsewhere in this prospectus supplement, the accompanying base prospectus and
in the documents we incorporate by reference. This summary does not contain all of the information you should consider before
investing in our common stock. You should read this entire prospectus supplement and the accompanying base prospectus carefully,
especially the risks of investing in our common stock discussed under “Risk Factors” beginning on page S-6 of this
prospectus supplement, page 4 of the accompanying base prospectus and page 11 of our Annual Report on Form 10-K for the year ended December 31, 2018, which is incorporated by reference in this prospectus supplement, along with our consolidated financial statements
and notes to those consolidated financial statements and the other information incorporated by reference in this prospectus supplement
and the accompanying base prospectus, before making an investment decision.
Company
Overview
We
are an immuno-pharma company headquartered in Ocala, Florida and focused on the research and development of therapeutics to treat
multiple types of cancers, various viruses, as well as immune-deficiency disorders. We have established a strong foundation of
laboratory, pre-clinical and clinical data with respect to the development of nucleic acids and natural interferon to enhance
the natural antiviral defense system of the human body and to aid the development of therapeutic products for the treatment of
certain cancers and chronic diseases.
AIM’s
flagship products include Ampligen® (Rintatolimod), a first-in-class drug of large macromolecular RNA (ribonucleic acid) molecules,
and Alferon N Injection® (Interferon Alfa-N3). A first-in-class drug also known as a new molecular entity, is a drug that
contains an active moiety that has not been approved by the FDA or marketed in the US.
Ampligen®
represents a double stranded RNA being developed for globally important cancers, viral diseases and disorders of the immune system.
Ampligen® has in the clinic demonstrated the potential for standalone efficacy in a number of solid tumors. We have also seen
synergistic success in increasing survival rates and efficacy in the treatment of animal tumors when Ampligen® is used in
combination with checkpoint blockade therapies. This success in the field of immuno-oncology has guided our focus toward the potential
use of Ampligen® as a combinational therapy for the treatment of a variety of solid tumor types. There are currently multiple
Ampligen® clinical trials — both underway and planned — at major cancer research centers around the country. Ampligen®
is also being used as a monotherapy to treat pancreatic cancer patients in an Early Access Program (EAP) approved by the Inspectorate
of Healthcare in the Netherlands at Erasmus Medical Center.
Ampligen®
is also being evaluated for the treatment of myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS). AIM is currently sponsoring
an expanded access program (EAP) for ME/CFS patients in the U.S. In August 2016, we received approval of our NDA from Administracion
Nacional de Medicamentos, Alimentos y Tecnologia Medica (ANMAT) for commercial sale of Ampligen® (trade name rintatolimod)
in the Argentine Republic for the treatment of severe CFS. With regulatory approval in Argentina, Ampligen® is the world’s
only approved therapeutic for ME/CFS. We continue to pursue our Ampligen New Drug Application, or NDA, for the treatment of CFS
with the U.S. Food and Drug Administration, or FDA.
Alferon
N Injection® is approved for a category of sexually transmitted diseases infection and patients that are intolerant to recombinant
interferon in Argentina. Alferon is the only natural-source, multi-species alpha interferon currently approved for sale in the
U.S. for the intralesional treatment of refractory (resistant to other treatment) or recurring external condylomata acuminata/genital
warts (GW) in patients 18 years of age or older. Certain types of human papilloma viruses cause GW. AIM also has approval from
ANMAT for the treatment of refractory patients that failed or were intolerant to treatment with recombinant interferon in Argentina.
We have developed and, with proper funding, will be seeking FDA Pre-Approval Inspection of a high-volume, high-efficiency, upgraded
manufacturing process to allow for the commercial viability of Alferon®.
We
operate a 30,000 sq. ft. facility in New Brunswick, NJ with the objective of producing Ampligen® and Alferon®. We are
committed to a focused business plan oriented toward finding senior co-development partners with the capital and expertise needed
to commercialize the many potential therapeutic aspects of Ampligen® and our FDA-approved drug Alferon® N and continue
to seek contract manufactures to facilitate high volume production.
Corporate
Information
Our
executive office is at 2117 SW Highway 484, Ocala, FL 34473. Our facility is located at 783 Jersey Ave., New Brunswick, New Jersey.
Our principal telephone number is (352) 448-7797. We maintain a website at “http://www.aimimmuno.com”. We have included
our website address in this prospectus solely as an inactive textual reference. The contents of our website are not part of this
prospectus, and you should not consider the contents of our website in making an investment decision with respect to our securities.
THE
OFFERING
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Common
Stock to be offered by us pursuant to this prospectus supplement
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Shares
of our common stock having an aggregate offering price of up to $10,409,565.
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Common
Stock outstanding prior to this offering
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22,065,318
shares of common stock.
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Common
Stock outstanding after this offering
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Up to 27,143,154 shares of common stock,
assuming sales of 5,077,836 shares of common stock at a price of $2.05 per share, which was the closing price of our
common stock on The NYSE American on February 28, 2020. The actual number of shares of our common stock issued will vary depending
on the sales price under this offering.
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NYSE
American Symbol
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AIM
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Manner
of offering
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Sales
of shares of our common stock, if any, will be made pursuant to the terms of the Equity Distribution Agreement between us
and Maxim Group LLC. Sales of the shares will be made in sales deemed to be “at-the-market” equity offerings as
defined in Rule 415 promulgated under the Securities Act. Maxim will act as sales agent and will use commercially reasonable
efforts to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading
and sales practices. See “Plan of Distribution.”
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Use
of Proceeds
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We
plan to use the net proceeds from this offering, if any, for general working capital, general corporate purposes and drug
development. See “Use of Proceeds.”
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Risk
Factors
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Investing
in our common stock involves substantial risk. You should read the “Risk Factors” section of this prospectus supplement
beginning on page S-6, page 4 of the accompanying base prospectus and the “Risk Factors” sections in our Annual Report on Form 10-K for the year ended December 31, 2018, as well as other reports filed with the SEC and which are incorporated
by reference, for a discussion of factors to consider carefully before deciding to invest in shares of our common stock.
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Exclusive
Sales Agent
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Maxim
Group LLC is acting as the exclusive sales agent in connection with the offering.
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Unless
we indicate otherwise, all information in this prospectus is based on 22,065,318 shares of common stock outstanding as of March
3, 2020 and excludes:
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198,608
shares of our common stock issuable upon the exercise of stock options under our 2018 and 2009 Equity Incentive Plans outstanding
as of March 3, 2020, at a weighted average exercise price of $15.84 per share;
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87,798
shares of common stock reserved for future issuance under our 2018 Equity Incentive Plan as of March 3, 2020;
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1,379,168
shares of common stock issuable upon the exercise of warrants outstanding as of March 3, 2020 at a weighted average exercise
price of $8.37 per share; and
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88,182
shares of common stock issuable upon the conversion of 776 shares of our Series B Convertible Preferred Stock outstanding
as of March 3 2020.
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Special
Note Regarding Forward-Looking Statements
Certain
statements in this prospectus supplement and the base prospectus and the documents incorporated by reference herein and therein
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 are based on our management’s current beliefs,
expectations and assumptions about future events, conditions and results and on information currently available to us. We discuss
many of the risks, uncertainties and other important factors related to forward-looking statements in greater detail under the
heading “Risk Factors” below, including those reports incorporated by reference. Because these risk factors 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.
All
statements, other than statements of historical fact, included or incorporated herein regarding our strategy, future operations,
financial position, future revenues, projected costs, plans, prospects and objectives are forward-looking statements. Words such
as “expect,” “anticipate,” “intend,” “plan,” “believe,” “seek,”
“estimate,” “think,” “may,” “could,” “will,” “would,”
“should,” “continue,” “potential,” “likely,” “opportunity” and similar
expressions or variations of such words are intended to identify forward-looking statements but are not the exclusive means of
identifying forward-looking statements.
Among
the factors that could cause actual results to differ materially from those indicated in the forward-looking statements are risks
and uncertainties inherent in our business including, without limitation: our ability to adequately fund our projects as we will
need additional funding to proceed with our objectives, the potential therapeutic effect of our products, the possibility of obtaining
regulatory approval, our ability to find senior co-development partners with the capital and expertise needed to commercialize
our products and to enter into arrangements with them on commercially reasonable terms, our ability to manufacture and sell any
products, our ability to enter into arrangements with third party vendors, market acceptance of our products, our ability to earn
a profit from sales or licenses of any drugs, our ability to discover new drugs in the future, changing market conditions, changes
in laws and regulations affecting our industry, and issues related to our New Brunswick, New Jersey facility.
With
the outbreak of the Wuhan Coronavirus and our prior research into Ampligen’s antiviral activity against Severe Acute Respiratory
Syndrome, or SARS, we now are focusing on the potential of Ampligen to serve as a protective therapeutic for the virus. Significant
testing and trials will be required to determine whether Ampligen will be effective in the treatment of the Wuhan Coronavirus
in humans and no assurance can be given that it will be the case. Our beliefs rely on a number of studies. No assurance can be
given that future studies will not result in findings that are different from those reported in the studies we refer to. We are
reaching out to numerous foreign governments related to the Wuhan Coronavirus and, if successful, will be working in these countries.
Operating in foreign countries carries with it a number of risks, including potential difficulties in enforcing intellectual property
rights. We cannot assure that our potential operations in foreign countries will not be adversely affected by these risks. We
have filed provisional patent applications related to the Wuhan Coronavirus. However, these filings do not assure that patents
will ultimately be granted.
In
February 2013, we received a Complete Response Letter from the Food and Drug Administration, or FDA, for our Ampligen New Drug
Application, or NDA, for the treatment of Chronic Fatigue Syndrome. The FDA communicated that we should conduct at least one additional
clinical trial, complete various nonclinical studies and perform a number of data analysis. 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.
In
August 2016, we received approval of our NDA from Administracion Nacional de Medicamentos, Alimentos y Tecnologia Medica, or ANMAT,
for commercial sale of rintatolimod (U.S. tradename: Ampligen®) in the Argentine Republic for the treatment of severe CFS.
The product will be marketed by GP Pharm, our commercial partner in Latin America. We believe, but cannot assure, that this approval
provides a platform for potential sales in certain countries within the European Union under regulations that support cross-border
pharmaceutical sales of licensed drugs. 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, or EAP, as discussed below and underway
in Europe in pancreatic cancer. 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.
In September 2019, AIM received clearance from the FDA to ship Ampligen to Argentina for the commercial launch and subsequent
sales. Commercialization in Argentina will require an appropriate reimbursement level, and appropriate marketing strategies. Approval
of rintatolimod for severe CFS in the Argentine Republic does not in any way suggest that the Ampligen NDA in the United States
or any comparable application filed in the European Union or elsewhere will obtain commercial approval.
In
May 2016, we entered into a five-year agreement with myTomorrows, a Netherlands based company, for the commencement and management
of an EAP in Europe and Turkey related to CFS. Pursuant to the agreement, myTomorrows, as our exclusive service provider and distributor
in this territory, is performing EAP activities. In January 2017, the EAP was extended to pancreatic cancer patients beginning
in the Netherlands. In February 2018, we signed an amendment to extend the territory to cover Canada to treat pancreatic cancer
patients, pending government approval. In March 2018, we signed an amendment to which myTomorrows will be our exclusive service
provider for special access activities in Canada for the supply of Ampligen for the treatment of CFS. No assurance can be given
that we can sufficiently supply product should we experience an unexpected demand for Ampligen in our clinical studies, the commercial
launch in Argentina or pursuant to the EAPs. No assurance can be given that Ampligen will prove effective in the treatment of
pancreatic cancer.
Currently,
six Ampligen clinical trials are open for enrollment. All six of the trials are at university cancer centers testing whether tumor
microenvironments can be reprogrammed to increase the effectiveness of cancer immunotherapy, including checkpoint blockade. Four
are at Roswell Park Comprehensive Cancer Center and the other two are at the University of Pittsburgh Medical Center. No assurance
can be given as to the results of these underway trials. Five additional cancer trials in collaboration with University Medical/Cancer
Research Centers are in various pre-enrollment stages. These five trials are using Ampligen plus checkpoint blockade or chemokine
modulation. No assurance can be given as to whether some or all of the planned additional oncology clinical trials will occur,
and they are subject to many factors including lack of regulatory approval(s), lack of study drug, or a change in priorities at
the sponsoring Universities or Cancer Centers. Even if these additional clinical trials are initiated, we cannot assure that these
clinical studies or the six studies underway will be successful or yield any useful data. In addition, initiation of planned clinical
trials may not occur secondary to many factors including lack of regulatory approval(s) or lack of study drug. Even if these clinical
trials are initiated, the Company cannot assure that the clinical studies will be successful or yield any useful data or require
additional funding.
Our
overall objectives include plans to continue seeking approval for commercialization of Ampligen in the United States and abroad
as well as seeking to broaden commercial therapeutic indications for Alferon N Injection presently approved in the United States
and Argentina. We continue to pursue senior co-development partners with the capital and expertise needed to commercialize our
products and to enter into arrangements with them on commercially reasonable terms. Our ability to commercialize our products,
widen commercial therapeutic indications of Alferon N Injection and/or capitalize on our collaborations with research laboratories
to examine our products are subject to a number of significant risks and uncertainties including, but not limited to our ability
to enter into more definitive agreements with some of the research laboratories and others that we are collaborating with, to
fund and conduct additional testing and studies, whether or not such testing is successful or requires additional testing and
meets the requirements of the FDA and comparable foreign regulatory agencies. We do not know when, if ever, our products will
be generally available for commercial sale for any indication.
We
strive to maximize the outsourcing of certain components of our manufacturing, quality control, marketing and distribution while
maintaining control over the entire process through our quality assurance and regulatory groups. We cannot provide any guarantee
that the facility or our contract manufacturers will pass an FDA pre-approval inspection for Alferon manufacturing.
Because
forward-looking statements are inherently subject to risks and uncertainties, some of which cannot be predicted or quantified
and some of which are beyond our control, you should not rely on these forward-looking statements as predictions of future events.
The events and circumstances reflected in our forward-looking statements may not be achieved or occur and actual results could
differ materially from those projected in the forward-looking statements. Moreover, we operate in an evolving environment. New
risk factors and uncertainties may emerge from time to time, and it is not possible for management to predict all risk factors
and uncertainties. Except as required by applicable law, we do not plan to publicly update or revise any forward-looking statements
contained or incorporated herein, whether as a result of any new information, future events, changed circumstances or otherwise.
This
prospectus supplement and the base prospectus and the documents incorporated by reference herein and therein also refers to estimates
and other statistical data made by independent parties and by us relating to market size and growth and other data about our industry.
This data involves a number of assumptions and limitations, and you are cautioned not to give undue weight to such estimates.
In addition, projections, assumptions and estimates of our future performance and the future performance of the markets in which
we operate are necessarily subject to a high degree of uncertainty and risk.
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 base 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 base 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
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
have not allocated specific amounts of the net proceeds from this offering for any specific purpose. Accordingly, our management
will have flexibility in applying the net proceeds of this offering. You will be relying on the judgment of our management with
regard to the use of these net proceeds, and you will not have the opportunity, as part of your investment decision, to assess
whether the proceeds are being used appropriately. It is possible that the net proceeds will be invested in a way that does not
yield a favorable, or any, return for us. The failure of our management to use such funds effectively could have a material adverse
effect on our business, financial condition, operating results and cash flow.
You
may experience future dilution as a result of future equity offerings.
In
order to raise additional capital, we may in the future offer additional shares of our common stock, shares of preferred stock
or other securities convertible into or exchangeable for our common stock at prices that may not be the same as the prices per
share in this offering. We may sell shares or other securities in any other offering at a price per share that is less than the
prices per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have
rights superior to existing shareholders. The price per share at which we sell additional shares of our common stock, or securities
convertible or exchangeable into shares of our common stock, in future transactions may be higher or lower than the prices per
share paid by investors in this offering.
It
is not possible to predict the aggregate number of shares sold or the proceeds resulting from sales made under the Equity Distribution
Agreement.
Subject
to certain limitations in the Equity Distribution Agreement with Maxim and compliance with applicable law, we have the discretion
to deliver a placement notice to Maxim at any time throughout the term of the Equity Distribution Agreement. The number of shares
that are sold through Maxim after delivering a placement notice will fluctuate based on a number of factors, including the market
price of our common stock during the sales period, the limits we set with Maxim in any applicable placement notice, and the demand
for our common stock during the sales period. Because the price per share of each share sold will fluctuate during the sales period,
it is not currently possible to predict the aggregate proceeds to be raised in connection with those sales.
The
common stock offered hereby will be sold in “at-the-market” offerings, and investors who buy shares at different times
will likely pay different prices.
Investors
who purchase shares in this offering at different times will likely pay different prices, and so may experience different levels
of dilution and different outcomes in their investment results. We will have discretion, subject to market demand, to vary the
timing, prices, and numbers of shares sold in this offering. In addition, subject to the final determination by our board of directors,
there is no minimum or maximum sales price for shares to be sold in this offering. Investors may experience a decline in the value
of the shares they purchase in this offering as a result of sales made at prices lower than the prices they paid.
Sales
of a significant number of shares of our common stock in the public markets, or the perception that such sales could occur, could
depress the market price of our common stock.
Sales
of a significant number of shares of our common stock in the public markets, or the perception that such sales could occur as
a result of our utilization of our shelf registration statement, our equity distribution agreement with Maxim or otherwise could
depress the market price of our common stock and impair our ability to raise capital through the sale of additional equity securities.
We cannot predict the effect that future sales of our common stock or the market perception that we are permitted to sell a significant
number of our securities would have on the market price of our common stock.
The
market price for our securities may be volatile, which could result in substantial losses to investors.
The
market price of our common stock has been and is likely to be volatile. This is especially true given the current significant
instability in the financial markets. In addition to general economic, political and market conditions, the price and trading
volume of our stock could fluctuate widely in response to many factors, including:
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of legal actions against us and/or settlements or verdicts adverse to us;
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reactions to products;
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governmental
approvals, delays in expected governmental approvals or withdrawals of any prior governmental approvals or public or regulatory
agency comments regarding the safety or effectiveness of our products, or the adequacy of the procedures, facilities or controls
employed in the manufacture of our products;
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in U.S. or foreign regulatory policy during the period of product development;
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developments
in patent or other proprietary rights, including any third party challenges of our intellectual property rights;
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of new products or new contracts by us or our competitors;
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actual
or anticipated variations in our operating results due to the level of development expenses and other factors;
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changes
in financial estimates by securities analysts and whether our earnings meet or exceed the estimates;
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and trends in the pharmaceutical and other industries;
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accounting standards;
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investment market fluctuation;
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restatement
of prior financial results;
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notice
of NYSE American non-compliance with requirements; and
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occurrence
of any of the risks described in these risk factors and the risk factors incorporated by reference herein.
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Our
common stock is listed for quotation on the NYSE American. For the six months ended February 29, 2020, the trading price of our
common stock has ranged from $0.39 to $2.05 per share. We expect the price of our common stock to remain volatile. The average
daily trading volume of our common stock varies significantly.
USE
OF PROCEEDS
We
may offer and sell shares of our common stock pursuant to this prospectus supplement having aggregate sales proceeds of up to
$10,409,565 from time to time. The amount of proceeds we receive, if any, will depend on the actual number of shares of
our common stock sold and the market price at which such shares are sold. There can be no assurance that we will be able to sell
any shares or fully utilize the Equity Distribution Agreement with Maxim as a source of financing. Because there is no minimum
offering amount required as a condition to close this offering, the net proceeds to us, if any, are not determinable at this time.
We
currently intend to use the net proceeds from this offering, if any, primarily for working capital, general corporate purposes
and drug development.
We
have broad discretion in determining how the proceeds of this offering will be used, and our discretion is not limited by the
aforementioned possible uses. Our board of directors believes the flexibility in application of the net proceeds is prudent. See
“Risk Factors—Risks Relating to 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.”
PLAN
OF DISTRIBUTION
Pursuant
to the Equity Distribution Agreement, dated July 19, 2019, by and between us and Maxim Group LLC (“Maxim”), Maxim
has agreed to act as exclusive sales agent in connection with this offering of our common stock pursuant to this prospectus supplement
and the accompanying base prospectus. Maxim is not purchasing or selling any of the shares of our common stock offered by this
prospectus supplement, nor is it required to arrange the purchase or sale of any specific number or dollar amount of shares of
our common stock, but has agreed to use its reasonable best efforts to arrange for the sale of all of the shares of our common
stock offered hereby.
Upon
delivery of a placement notice and subject to the terms and conditions of the Equity Distribution Agreement, Maxim may sell shares
of our common stock by any method permitted by law deemed to be an “at-the-market” equity offering as defined in Rule
415 promulgated under the Securities Act, including sales made directly on or through the NYSE American, the existing trading
market for our common stock, sales made to or through a market maker other than on an exchange or otherwise, in negotiated transactions
at market prices prevailing at the time of sale or at prices related to such prevailing market prices, and/or any other method
permitted by law, including in privately negotiated transactions.
We
will pay Maxim in cash, upon each sale of shares of our common stock pursuant to the Equity Distribution Agreement, a commission
equal to 3.5% of the gross proceeds from each sale of shares of our common stock. Because there is no minimum offering amount
required as a condition to this offering, the actual total public offering amount, commissions and proceeds to us, if any, are
not determinable at this time. We have also agreed to reimburse Maxim for certain specified
expenses, including the fees and disbursements of its legal counsel in an amount not to exceed $50,000. In addition to
such fees, at the end of each quarter in which the offering is open we have agreed to pay Maxim’s legal counsel an additional
$5,000.
Settlement
for sales of shares of our common stock will occur on the second business day following the date on which any sales are made,
or on some other date that is agreed upon by us and Maxim in connection with a particular transaction, in return for payment of
the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement. Sales of
shares of our common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company
or by such other means as we and Maxim may agree upon.
We
have agreed to provide indemnification and contribution to Maxim and specified persons against certain civil liabilities, including
liabilities under the Securities Act, and the Exchange Act, and to contribute to payments that Maxim may be required to make in
respect of such liabilities.
Maxim
may be deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received
by them and any profit realized on the resale of the shares sold by them while acting as principal might be deemed to be underwriting
discounts or commissions under the Securities Act. As an underwriter, Maxim 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 by
the agent acting as principal. Under these rules and regulations, Maxim:
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not engage in any stabilization activity in connection with our securities; and
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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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The
offering of shares of our common stock pursuant to the Equity Distribution Agreement will terminate upon the earlier of (i) the
sale of the maximum dollar amount of common stock under the Equity Distribution Agreement or (ii) the termination of the Equity
Distribution Agreement by us, Maxim or mutual written agreement of us and Maxim.
Maxim
and its affiliates may in the future provide various investment banking, commercial banking and other financial services for us
and our affiliates, for which services they may in the future receive customary fees. To the extent required by Regulation M,
Maxim will not engage in any market making activities involving our shares of our common stock while the offering is ongoing under
this prospectus.
This
prospectus supplement and the accompanying base prospectus in electronic format may be made available on a website maintained
by Maxim and Maxim may distribute this prospectus supplement and the accompanying base prospectus electronically.
Our
common stock is traded on the NYSE American under the symbol “AIM.”
The
foregoing does not purport to be a complete statement of the terms and conditions of the Equity Distribution Agreement. A copy
of the Equity Distribution Agreement is included as an exhibit to our Current Report on Form 8-K filed with the SEC on July 19, 2019 and incorporated by reference into the registration statement of which this prospectus supplement and the accompanying base
prospectus form a part. See “Important Information Incorporated By Reference” and “Where You Can Find More Information”.
LEGAL
MATTERS
The
validity of the common stock offered by this prospectus supplement and the accompanying base prospectus will be passed upon for
us by Silverman Shin & Byrne PLLC, New York, New York. Ellenoff Grossman & Schole
LLP, New York, New York, is counsel for Maxim in connection with this offering.
EXPERTS
The
financial statements as of and for the year ended December 31, 2018 incorporated in this prospectus supplement by reference from
the Company’s Annual Report on Form 10-K for the year ended December 31, 2018 have been audited by Morrison, Brown, Argiz &
Farra, LLC, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference
(which report expresses an unqualified opinion on the consolidated financial statements). The financial statements as of and for
the year ended December 31, 2017 incorporated in this prospectus supplement by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2018 have been audited by RSM LLP, an independent registered public accounting firm, as stated
in their report, which is incorporated herein by reference (which report expresses an unqualified opinion on the consolidated
financial statements). Such financial statements have been so incorporated in reliance upon the reports of such firms given upon
their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-3 under the
Securities Act, with respect to the securities covered by this prospectus. This prospectus, which is a part of the registration
statement, does not contain all of the information set forth in the registration statement or the exhibits and schedules filed
therewith. For further information with respect to us and the securities covered by this prospectus, please see the registration
statement and the exhibits filed with the registration statement. The SEC maintains an Internet website that contains reports,
proxy and information statements and other information regarding registrants that file electronically with the SEC. The address
of the website is http://www.sec.gov.
We
are subject to the information and periodic reporting requirements of the Exchange Act and, in accordance therewith, we file periodic
reports, proxy statements and other information with the SEC. Such periodic reports, proxy statements and other information are
available for inspection and copying at the website of the SEC referred to above. We maintain a website at http://www.aimimmuno.com.
You may access our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to
those reports filed pursuant to Sections 13(a) or 15(d) of the Exchange Act with the SEC free of charge at our website as soon
as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. We have included our website
address as a textual reference and do not intend it as an active link to our website. The contents of our website are not part
of this prospectus, and you should not consider the contents of our website in making an investment decision with respect to our
securities.
IMPORTANT
INFORMATION INCORPORATED BY REFERENCE
The
SEC allows us to “incorporate by reference” information from other documents that we file with it, 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 part of this prospectus supplement and the accompanying base prospectus.
We
incorporate by reference into this prospectus supplement and the accompanying base prospectus the information or documents listed
below that we have filed with the SEC, and any future filings we will make with the SEC under Sections 13(a), 13(c), 14, or 15(d)
of the Exchange Act (other than information furnished under Item 2.02 or Item 7.01 of Form 8-K) until the offering of the securities
under the registration statement is terminated or completed:
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our Annual Report on Form 10-K for the year ended December 31, 2018;
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our
Quarterly Report on Form 10-Q for the quarters ended March 31, 2019, June 30, 2019 and September 30, 2019;
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our
Current Reports on Form 8-K filed on February 7, 2019, February 11, 2019, February 27, 2019, March 8, 2019, March 15, 2019,
May 2, 2019, May 31, 2019, June 5, 2019, June 28, 2019, July 22, 2019, August 23, 2019, August 26, 2019, September 9, 2019,
September 16, 2019, September 24, 2019, September 27, 2019, October 7, 2019, October 17, 2019, December 4, 2019, December 11, 2019, February 11, 2020 and February 18, 2020; 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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Any
statement contained in this prospectus supplement, the accompanying base prospectus or in a document incorporated or deemed to
be incorporated by reference into this prospectus supplement and the accompanying base prospectus will be deemed to be modified
or superseded for purposes of this prospectus supplement and the accompanying base prospectus to the extent that a statement contained
in this prospectus supplement and the accompanying base prospectus or any other subsequently filed document that is deemed to
be incorporated by reference into this prospectus supplement and the accompanying base prospectus modifies or supersedes the statement.
Any statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this
prospectus supplement and the accompanying base prospectus.
We
will provide, without charge, to each person to whom a copy of this prospectus supplement is delivered, including any beneficial
owner, upon the written or oral request of such person, a copy of any or all of the documents incorporated by reference herein,
including exhibits. Requests should be directed to Investor Relations, AIM ImmunoTech Inc., 2117 SW Highway 484, Ocala,
FL 34473, Attention: Corporate Secretary or by calling (352) 448-7797.
In
addition, you may obtain a copy of these filings from the SEC as described in the section entitled “Where You Can Find More
Information.”
PROSPECTUS
$75,000,000
HEMISPHERX
BIOPHARMA, INC.
Common
Stock
Preferred
Stock
Debt
Securities
Warrants
Units
We
may offer and sell up to $75,000,000 in the aggregate of the securities identified above from time to time in one or more offerings.
This prospectus provides you with a general description of the securities.
Each
time we offer and sell securities, we will provide a supplement to this prospectus that contains specific information about the
offering and the amounts, prices and terms of the securities. The supplement may also add, update or change information contained
in this prospectus with respect to that offering. You should carefully read this prospectus and the applicable prospectus supplement
before you invest in any of our securities.
We
may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters,
dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents
are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount
arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus
supplement. See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution”
for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing
the method and terms of the offering of such securities.
INVESTING
IN OUR SECURITIES INVOLVES RISKS. SEE THE “RISK FACTORS” ON PAGE 4 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED
IN THE APPLICABLE PROSPECTUS SUPPLEMENT CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR SECURITIES.
Our
common stock is listed on the NYSE American under the symbol “HEB”. On July 18, 2018, the last reported sale price
for our common stock on the NYSE American was $03.052 per share.
As
of July 18, 2018, the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was approximately
$15,209,359 based on 46,872,554 shares of outstanding common stock, at a price of $0.33 per share, which was the last reported
sale price of our common stock on the NYSE American on June 5, 2018. We have offered and sold $4,324,000 of securities pursuant
to General Instruction I.B.6 of Form S-3 during the prior 12 calendar month period that ends on and includes the date of this
prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration
statement in a public primary offering with a value exceeding more than one-third of our public float in any 12-month period so
long as our public float remains below $75.0 million.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The
date of this prospectus is August 3, 2018
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 SEC, utilizing
a “shelf” registration process. By using a shelf registration statement, we may sell securities from time to time
and in one or more offerings up to a total dollar amount of $75,000,000 as described in this prospectus. Furthermore, in no event
will we sell securities with a value exceeding more than one-third of our “public float” (the market value of our
common stock and any other equity securities that we may issue in the future that are held by non-affiliates) in any 12 calendar
month period so long as our public float remains below $75.0 million. Each time that we offer and sell securities, we will provide
a prospectus supplement to this prospectus that contains specific information about the securities being offered and sold and
the specific terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may
contain material information relating to these offerings. The prospectus supplement may also add, update or change information
contained in this prospectus with respect to that offering. If there is any inconsistency between the information in this prospectus
and the applicable prospectus supplement, you should rely on the prospectus supplement. Before purchasing any securities, you
should carefully read both this prospectus and the applicable prospectus supplement, together with the additional information
described under the headings “Where You Can Find More Information” and “Incorporation of Certain Information
by Reference.”
We
have not authorized anyone to provide you with any information or to make any representations other than those contained in this
prospectus, any applicable prospectus supplement or any free writing prospectuses prepared by or on behalf of us or to which we
have referred you. We take no responsibility for, and can provide no assurance as to the reliability of, any other information
that others may give you. We will not make an offer to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus and the applicable prospectus supplement to this
prospectus is accurate only as of the date on its respective cover, and that any information incorporated by reference is accurate
only as of the date of the document incorporated by reference, unless we indicate otherwise. Our business, financial condition,
results of operations and prospects may have changed since those dates. This prospectus incorporates by reference, and any prospectus
supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts
that are based on independent industry publications and other publicly available information. Although we believe these sources
are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this
information. Although we are not aware of any misstatements regarding the market and industry data presented in this prospectus
and the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change
based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus,
the applicable prospectus supplement and any related free writing prospectus, and under similar headings in other documents that
are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.
As
used in this prospectus, unless the context indicates or otherwise requires, the “Company,” “we,” “us,”,
“our” or “Hemispherx” refer to Hemispherx Biopharma, Inc., a Delaware corporation, and its subsidiaries.
ABOUT
HEMISPHERX BIOPHARMA, INC.
We
are a specialty pharmaceutical company headquartered in Ocala, Florida and engaged in the development of new drug therapies based
on natural immune system enhancing technologies for the treatment of viral and immune based disorders. 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.
We
operate a 30,000 sq. ft. facility in New Brunswick, N.J. with the objective of producing Alferon and Ampligen upon FDA approval.
We
are committed to a focused business plan oriented toward finding senior co-development partners with the capital and expertise
needed to commercialize the many potential therapeutic aspects of our experimental drug, Ampligen, and our FDA approved drug,
Alferon N Injection.
Our
Corporate Information
Our
principal executive office is at 2117 SW Highway 484, Ocala, FL 34473 and our accounting and human resource office are at 600
Main Street, Suite 2, Riverton, NJ 08077. Our facility is located at 783 Jersey Ave., New Brunswick, New Jersey. Our principal
telephone number is (407) 839-0095. 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.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. Prior to making a decision about investing in our securities, you
should carefully consider the risks, uncertainties and assumptions discussed under Item 1A, “Risk Factors,” in our
Annual Report on Form 10-K for the fiscal year ended December 31, 2017, as updated by our subsequent filings with the Securities
and Exchange Commission, or the SEC, under the Securities Exchange Act of 1934, as amended, or the Exchange Act, which are incorporated
herein by reference, together with the information in this prospectus and the applicable prospectus supplement, and any other
information incorporated by reference into this prospectus or the applicable prospectus supplement. See the sections of this prospectus
entitled “Where You Can Find More Information” and “Incorporation of Certain Information by Reference.”
Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business,
financial condition or results of operations. The occurrence of any of these known or unknown risks might cause you to lose all
or part of your investment in our securities.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus and the documents incorporated by reference herein 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 and 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” above, including those reports incorporated
by reference. Because these risk factors 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 and future prospectus supplements, 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: our ability to adequately fund our projects as we will
need additional funding to proceed with our objectives, the potential therapeutic effect of our products, the possibility of obtaining
regulatory approval, our ability to find senior co-development partners with the capital and expertise needed to commercialize
our products and to enter into arrangements with them on commercially reasonable terms, our ability to manufacture and sell any
products, our ability to enter into arrangements with third party vendors, market acceptance of our products, our ability to earn
a profit from sales or licenses of any drugs, our ability to discover new drugs in the future, changing market conditions, changes
in laws and regulations affecting our industry, and issues related to our New Brunswick, New Jersey facility. We have disclosed
that in February 2013, we received a Complete Response from the U.S. Food and Drug Administration (the “FDA”) declining
to approve for our Ampligen® New Drug Application (“NDA”) for Chronic Fatigue Syndrome Treatment, sometimes referred
to as myalgic encephalomyelitis/chronic fatigue syndrome (“ME/CFS”), stating that we should conduct at least one additional
clinical trial, complete various nonclinical studies and perform a number of data analyses. Accordingly, the remaining steps to
potentially gain FDA approval of the Ampligen® NDA, the final results of these and other ongoing activities could vary materially
from our expectations and could adversely affect the chances for approval of the Ampligen® NDA. These activities and the ultimate
outcomes are subject to a variety of risks and uncertainties, including but not limited to risks that (i) the FDA may ask for
additional data, information or studies to be completed or provided; and (ii) the FDA may require additional work related to the
commercial manufacturing process to be completed or may, in the course of the inspection of manufacturing facilities, identify
issues to be resolved. With regard to our NDA for Ampligen® to treat ME/CFS, as noted above, there are additional steps which
the FDA has advised Hemispherx to take in our seeking approval. The final results of these and other ongoing activities, and of
the FDA review, could vary materially from Hemispherx’ expectations and could adversely affect the chances for approval
of the Ampligen® NDA. Any failure to satisfy the FDA’s requirements could significantly delay, or preclude outright,
approval of our drugs for commercial sale in the United States.
We
also have disclosed that, in August 2016, we received approval of our 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 ME/CFS. The product will be marketed by GP Pharm, our commercial partner in Latin America.
We believe, but cannot assure, that this approval provides a platform for potential sales in certain countries within the European
Union under regulations that support cross-border pharmaceutical sales of licensed drugs. 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 as discussed below and underway in Europe. ANMAT approval is only an initial, but important, step in the overall successful
commercialization of our product. There are a number of actions that must occur before we could be able to commence commercial
sales in Argentina. Commercialization in Argentina will require, among other things, an appropriate reimbursement level, appropriate
marketing strategies, completion of manufacturing preparations for launch (including possible requirements for approval of final
manufacturing) and we may need additional funds to manufacture product at a sufficient level for a commercial launch. There are
no assurances as to whether or when such multiple subsequent steps will be successfully performed to result in an overall successful
commercialization and product launch. Approval of rintatolimod for ME/CFS in the Argentine Republic does not in any way suggest
that the Ampligen® NDA in the United States or any comparable application filed in the European Union or elsewhere will obtain
commercial approval.
We
also have disclosed that, in May 2016, we entered into a five year agreement with myTomorrows, a Netherlands based company, for
the commencement and management of an Early Access Program (“EAP”) in Europe and Turkey (the “Territory”)
related to CFS. Pursuant to the agreement, myTomorrows, as our exclusive service provider and distributor in the Territory, is
performing EAP activities. In January 2017, we announced that the EAP has been extended to pancreatic cancer patients beginning
in the Netherlands. In June 2017, we signed an amendment to provide support services to Hemispherx with respect to the execution
of the 511-Program (“511-Services”) and that the 511-Services shall be rendered free of charge. In February 2018,
we signed an amendment to extend the territory to cover Canada to treat pancreatic cancer patients, pending government approval.
In March 2018, we signed an amendment to which myTomorrows will be our exclusive service provider for special access activities
in Canada for the supply of Ampligen® for the treatment of ME/CFS. No assurance can be given that we can sufficiently supply
product should we experience an unexpected demand for Ampligen® in our clinical studies, the commercial launch in Argentina
or pursuant to the EAPs. No assurance can be given that Ampligen® will prove effective in the treatment of pancreatic cancer.
Our
overall objectives include plans to continue seeking approval for commercialization of Ampligen® in the United States and
abroad as well as seeking to broaden commercial therapeutic indications for Alferon N Injection® presently approved in the
United States and Argentina. We continue to pursue senior co-development partners with the capital and expertise needed to commercialize
our products and to enter into arrangements with them on commercially reasonable terms. Our ability to commercialize our products,
widen commercial therapeutic indications of Alferon N Injection® and/or capitalize on our collaborations with research laboratories
to examine our products are subject to a number of significant risks and uncertainties including, but not limited to our ability
to enter into more definitive agreements with some of the research laboratories and others that we are collaborating with, to
fund and conduct additional testing and studies, whether or not such testing is successful or requires additional testing and
meets the requirements of the FDA and comparable foreign regulatory agencies. We do not know when, if ever, our products will
be generally available for commercial sale for any indication.
We
outsource certain components of our manufacturing, quality control, marketing and distribution while maintaining control over
the entire process through our quality assurance and regulatory groups. We cannot provide any guarantee that the facility or our
contract manufacturer will necessarily pass an FDA pre-approval inspection for Alferon® manufacture.
The
production of new Alferon® API inventory will not commence until the validation phase is complete. While the facility is approved
by FDA under the Biological License Application (“BLA”) for Alferon®, this status will need to be reaffirmed by
a successful Pre-Approval Inspection by the FDA prior to commercial sale of newly produced inventory product. If and when the
Company obtains a reaffirmation of FDA BLA status and has begun production of new Alferon® API, it will need FDA approval
as to the quality and stability of the final product to allow commercial sales to resume. We 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. In addition, we
are currently readying the New Brunswick facility to start manufacturing polymers used for the production of Ampligen to satisfy
our future needs, supplementing the polymers we have on hand. While we anticipate that we will be able to commence manufacturing
polymers at the New Brunswick facility, we may need additional funding to continue manufacturing. There cannot be any guarantee
that we will obtain adequate funds to sustain manufacturing at the New Brunswick facility or that the facility will be able to
manufacture sufficient lots for the commercial launch of Ampligen.
We
believe, and are investigating, Ampligen®’s potential role in enhancing the activity of influenza vaccines. While certain
studies involving rodents, non-human primates (monkeys) and healthy human subjects indicate that Ampligen® may enhance the
activity of influenza vaccines by conferring increased cross-reactivity or cross-protection, further studies will be required
and no assurance can be given that Ampligen® will assist in the development of a universal vaccine for influenza or other
viruses.
USE
OF PROCEEDS
We
intend to use the net proceeds from the sale of the securities as set forth in the applicable prospectus supplement.
RATIO
OF EARNINGS TO FIXED CHARGES
If
we offer preference equity securities or debt securities under this prospectus, then we will, at that time, provide a ratio of
earnings to fixed charges and/or ratio of combined fixed charges and preference dividends to earnings, respectively, in the applicable
prospectus supplement for such offering.
DESCRIPTION
OF CAPITAL STOCK
The
following description of our capital stock is not complete and may not contain all the information you should consider before
investing in our capital stock. This description is summarized from, and qualified in its entirety by reference to, our amended
and restated certificate of incorporation, as amended, which have been publicly filed with the SEC. See “Where You Can Find
More Information; Incorporation by Reference.”
Our
authorized capital stock consists of:
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350,000,000
shares of common stock, par value $0.001 per share; and
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5,000,000
shares of preferred stock, $0.01 par value per share.
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Common
Stock
As
of July 18, 2018, there were 46,872,554 shares of our common stock outstanding. Holders of our common stock are entitled to one
vote per share for the election of directors and on all other matters that require stockholder approval. Holders of shares of
common stock do not have any cumulative voting rights. Subject to any preferential rights of any outstanding preferred stock,
in the event of our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in the assets
remaining after payment of liabilities and the liquidation preferences of any outstanding preferred stock. Our common stock does
not carry any redemption rights or any preemptive or preferential rights enabling a holder to subscribe for, or receive shares
of, any class of our common stock or any other securities convertible into shares of any class of our common stock.
On
November 19, 2002, our Board of Directors declared a dividend distribution of one Right (a “Right”) for each outstanding
share of Common Stock to stockholders of record at the close of business on November 29, 2002. On November 14, 2017, at the direction
of the Board, we amended and restated our Rights Agreement with American Stock Transfer & Trust Company, LLC (as amended and
restated, the “Rights Agreement”). Each Right entitles the registered holder to purchase from us a unit consisting
of one one-hundredth of a share (a “Unit”) of Series A Junior Participating Preferred Stock, par value $0.01 per share
(the “Series A Preferred Stock”) at a Purchase Price of $21.00 per Unit, subject to adjustment. The description and
terms of the Rights are set forth in the Rights Agreement. The foregoing description of the Rights and the Rights Agreement are
qualified in their entire by reference to the disclosure in our Registration Statement on Form 8-A12B (No. 0-27072) and the Rights
Agreement filed therewith, filed with the SEC on November 14, 2017, with such filing and exhibit being herein incorporated by
reference.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer & Trust Company.
Preferred
Stock
We
currently have no outstanding shares of preferred stock. Under our amended and restated certificate of incorporation, our board
of directors has the authority, without further action by stockholders, to designate one or more series of preferred stock and
to fix the voting powers, designations, preferences, limitations, restrictions and relative rights granted to or imposed upon
the preferred stock, including dividend rights, conversion rights, voting rights, rights and terms of redemption, liquidation
preference and sinking fund terms, any or all of which may be preferential to or greater than the rights of the common stock.
Of our authorized preferred stock, 250,000 shares have been designated as Series A Junior Participating Preferred Stock. Please
see “Common Stock” above.
All
shares of preferred stock offered by this prospectus will, when issued, be fully paid and nonassessable and will not have any
preemptive or similar rights. Our board of directors may authorize the issuance of preferred stock with voting or conversion rights
that could adversely affect the voting power or other rights of the holders of the common stock. The issuance of preferred stock,
while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things,
have the effect of delaying, deferring or preventing a change in our control and may adversely affect the market price of the
common stock and the voting and other rights of the holders of common stock.
We
will describe in a prospectus supplement relating to any class or series of preferred stock being offered the following terms:
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the
designation and stated value, if any, of the class or series of preferred stock;
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the
number of shares of the class or series of preferred stock offered, the liquidation preference per share and the offering
price of the preferred stock;
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the
dividend rate(s), period(s) or payment date(s) or method(s) of calculation applicable to the class or series of preferred
stock;
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whether
dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends on the class or series of preferred
stock will accumulate;
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the
procedures for any auction and remarketing, if any, for the class or series of preferred stock;
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the
provisions for a sinking fund, if any, for the class or series of preferred stock;
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the
provision for redemption, if applicable, of the class or series of preferred stock;
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any
listing of the class or series of preferred stock on any securities exchange;
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the
terms and conditions, if applicable, upon which the class or series of preferred stock will be convertible into common stock,
including the conversion price or manner of calculation and conversion period;
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voting
rights, if any, of the class or series of preferred stock;
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a
discussion of any material or special U.S. federal income tax considerations applicable to the class or series of preferred
stock;
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the
relative ranking and preferences of the class or series of preferred stock as to dividend rights and rights upon the liquidation,
dissolution or winding up of our affairs;
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any
limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the class or series
of 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 of the class or series of preferred stock.
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Unless
we specify otherwise in the applicable prospectus supplement, the preferred stock will rank, relating to dividends and upon our
liquidation, dissolution or winding up:
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senior
to all classes or series of our common stock and to all of our equity securities ranking junior to the preferred stock;
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on
a parity with all of our equity securities the terms of which specifically provide that the equity securities rank on a parity
with the preferred stock; and
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junior
to all of our equity securities the terms of which specifically provide that the equity securities rank senior to the preferred
stock.
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As
used above, the term equity securities does not include convertible debt securities.
Warrants
As
of July 18, 2018, there were outstanding warrants to purchase an aggregate of 14,335,298 shares of our common stock.
Anti-Takeover
Effects of Delaware Law and Provisions of our Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws
Certain
provisions of Delaware law and our amended and restated certificate of incorporation and amended and restated bylaws could make
the following more difficult:
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acquisition
of us by means of a tender offer;
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acquisition
of us by means of a proxy contest or otherwise; or
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removal
of our incumbent directors.
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These
provisions, summarized below, could have the effect of discouraging certain types of coercive takeover practices and inadequate
takeover bids. These provisions may also encourage persons seeking to acquire control of us to first negotiate with our board
of directors.
Requirements
for Advance Notification of Stockholder Nominations and Proposals. Our amended and restated bylaws establish advance notice
procedures with respect to stockholder proposals and the nomination of candidates for election as directors, other than nominations
made by or at the direction of the board of directors.
No
Cumulative Voting. Our amended and restated certificate of incorporation and amended and restated bylaws do not provide for
cumulative voting in the election of directors.
Undesignated
Preferred Stock. The authorization of undesignated preferred stock in our amended and restated certificate of incorporation
makes it possible for our board of directors to issue preferred stock with voting or other rights or preferences that could impede
the success of any attempt to change control of the company. These and other provisions may have the effect of deferring hostile
takeovers or delaying changes in control or management of the company.
In
addition, Section 203 of the Delaware General Corporation Law generally prohibits a Delaware corporation from engaging in specified
corporate transactions (such as mergers, stock and asset sales, and loans) with an “interested shareholder” for three
years following the time that the shareholder becomes an interested shareholder. Subject to specified exceptions, an “interested
shareholder” is a person or group that owns 15% or more of the corporation’s outstanding voting stock (including any
rights to acquire stock pursuant to an option, warrant, agreement, arrangement, or understanding, or upon the exercise of conversion
or exchange rights, and stock with respect to which the person has voting rights only), or is an affiliate or associate of the
corporation and was the owner of 15% or more of the voting stock at any time within the previous three years. A Delaware corporation
may elect to “opt out” of, and not be governed by, Section 203 of the Delaware General Corporation Law through a provision
in either its original certificate of incorporation, or an amendment to its original certificate or bylaws that was approved by
majority shareholder vote. With a limited exception, this amendment would not become effective until 12 months following its adoption.
DESCRIPTION
OF DEBT SECURITIES
The
following description, together with the additional information we include in any applicable prospectus supplement or free writing
prospectus, 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 supplement to what extent the general terms and provisions described in this prospectus
apply to a particular series of debt securities. To the extent the information contained in the prospectus supplement differs
from this summary description, you should rely on the information in the prospectus supplement.
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 named in the 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 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.
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 on a particular series of debt securities 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 debt 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 the terms and
conditions upon which the debt securities of a particular 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 U.S. 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, and premium and interest on, the
debt securities will be made;
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if
payments of principal of, or 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, and premium, if any, and 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 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 debt 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;
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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; and
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whether
any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination,
if any, of such guarantees. (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 premium, if any, 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
(DTC 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 the section
entitled “Global Securities” for more information.
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 that 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) that could adversely affect holders of debt securities.
Consolidation,
Merger and Sale of Assets
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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 Hemispherx) 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;
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immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing; and
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certain
other conditions are met.
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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 or any debt security (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
indebtedness of ours or our subsidiaries outstanding from time to time.
We
will provide the trustee written notice of any Default or Event of Default within 30 days of becoming aware of the occurrence
of such Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default
and what action we are taking or propose to take in respect thereof (Section 6.1).
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 may refuse to perform any duty or exercise any of its rights or powers under the indenture,
unless the trustee receives indemnity satisfactory to it against any cost, liability or expense that might be incurred by it in
performing such duty or exercising such right or 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 indemnity or security satisfactory to the trustee, 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, and 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 securities of
any series and if it is known to a responsible officer of the trustee, the trustee shall mail to each holder of the securities
of that series notice of a Default or Event of Default within 90 days after it occurs or, if later, after a responsible officer
of the trustee has knowledge of such Default or Event of Default. 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, amend or supplement 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
add guarantees with respect to debt securities of any series or secure debt securities of any series;
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to
surrender any of our rights or powers under the indenture;
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to
add covenants or Events of Default for the benefit of the holders of debt securities of any series;
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to
comply with the applicable procedures of the applicable depositary;
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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 SEC 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 or Event of Default in the payment of the principal of, or 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, and 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, 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 or U.S. government obligations 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.
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 U.S. Internal Revenue Service a ruling or, since the date of execution of the indenture,
there has been a change in the applicable U.S. 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 U.S.
federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to U.S. 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 that 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 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 U.S. federal income tax
purposes as a result of the deposit and related covenant defeasance and will be subject to U.S. 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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No
Personal Liability of Directors, Officers, Employees or Stockholders
None
of our past, present or future directors, officers, employees or stockholders, as such, will have any liability for any of our
obligations under the debt securities or the indenture or for any claim based on, or in respect or by reason of, such obligations
or their creation. By accepting a debt security, each holder waives and releases all such liability. This waiver and release is
part of the consideration for the issue of the debt securities. However, this waiver and release may not be effective to waive
liabilities under U.S. federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
Governing
Law
The
indenture and the debt securities, including any claim or controversy arising out of or relating to the indenture or the debt
securities, will be governed by the laws of the State of New York (Section 10.10).
The
indenture will provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities)
irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to the indenture, the debt securities or the transactions contemplated thereby.
The
indenture will provide that any legal suit, action or proceeding arising out of or based upon the indenture or the transactions
contemplated thereby may be instituted in the federal courts of the United States of America located in the City of New York or
the courts of the State of New York in each case located in the City of New York, and we, the trustee and the holder of the debt
securities (by their acceptance of the debt securities) irrevocably submit to the non-exclusive jurisdiction of such courts in
any such suit, action or proceeding. The indenture will further provide that service of any process, summons, notice or document
by mail (to the extent allowed under any applicable statute or rule of court) to such party’s address set forth in the indenture
will be effective service of process for any suit, action or other proceeding brought in any such court. The indenture will further
provide that we, the trustee and the holders of the debt securities (by their acceptance of the debt securities) irrevocably and
unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the courts specified above
and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought
in an inconvenient forum.
DESCRIPTION
OF WARRANTS
We
may issue warrants for the purchase of shares of our common stock or preferred stock or of debt securities. We may issue warrants
independently or together with other securities, and the warrants may be attached to or separate from any offered securities.
Each series of warrants will be issued under a separate warrant agreement to be entered into between us and the investors or a
warrant agent. The following summary of material provisions of the warrants and warrant agreements is subject to, and qualified
in its entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to a particular
series of warrants. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.
We urge you to read the applicable prospectus supplement and any related free writing prospectus, as well as the complete warrant
agreements and warrant certificates that contain the terms of the warrants.
The
particular terms of any issue of warrants will be described in the prospectus supplement relating to the issue. Those terms may
include:
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the
number of shares of common stock or preferred stock purchasable upon the exercise of warrants to purchase such shares and
the price at which such number of shares may be purchased upon such exercise;
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the
designation, stated value, if any, and terms (including, without limitation, liquidation, dividend, conversion and voting
rights) of the class or series of preferred stock purchasable upon exercise of warrants to purchase preferred stock;
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the
principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants,
which may be payable in cash, securities or other property;
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the
date, if any, on and after which the warrants and the related debt securities, preferred stock or common stock will be separately
transferable;
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the
terms of any rights to redeem or call the warrants;
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the
date on which the right to exercise the warrants will commence and the date on which the right will expire;
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U.S.
federal income tax consequences applicable to the warrants; and
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any
additional terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement
of the warrants.
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Holders
of equity warrants will not be entitled to:
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vote,
consent or receive dividends;
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receive
notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter;
or
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exercise
any rights as stockholders of Hemispherx.
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Each
warrant will entitle its holder to purchase the principal amount of debt securities or the number of shares of preferred stock
or common stock at the exercise price set forth in, or calculable as set forth in, the applicable prospectus supplement. Unless
we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up
to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business
on the expiration date, unexercised warrants will become void. A holder of warrant certificates may exchange them for new warrant
certificates of different denominations, present them for registration of transfer and exercise them at the corporate trust office
of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase debt
securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities that can be purchased
upon exercise, including any rights to receive payments of principal, premium or interest on the underlying debt securities or
to enforce covenants in the applicable indenture. Until any warrants to purchase common stock or preferred stock are exercised,
the holders of the warrants will not have any rights of holders of the underlying common stock or preferred stock, including any
rights to receive dividends or payments upon any liquidation, dissolution or winding up on the common stock or preferred stock,
if any.
DESCRIPTION
OF UNITS
We
may issue units consisting of any combination of the other types of securities offered under this prospectus in one or more series.
We may evidence each series of units by unit certificates that we will issue under a separate agreement. We may enter into unit
agreements with a unit agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address
of the unit agent in the applicable prospectus supplement relating to a particular series of units.
The
following description, together with the additional information included in any applicable prospectus supplement, summarizes the
general features of the units that we may offer under this prospectus. You should read any prospectus supplement and any free
writing prospectus we may authorize to be provided to you related to the series of units being offered, as well as the complete
unit agreements that contain the terms of the units. Specific unit agreements will contain additional important terms and provisions
and we will file as an exhibit to the registration statement of which this prospectus is a part, or will incorporate by reference
from another report that we file with the SEC, the form of each unit agreement relating to units offered under this prospectus.
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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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 U.S. 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 any applicable prospectus supplement or free writing prospectus, 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 Depository Trust Company (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 securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities
transactions, such as transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants’
accounts, thereby eliminating the need for physical movement of securities certificates. “Direct participants” in
DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations.
DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation, or 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, which we sometimes
refer to as indirect participants, that clear through or maintain a custodial relationship with a direct participant, either directly
or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
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 the actual purchaser of a security, which we sometimes refer to as a beneficial
owner, is in turn recorded on the direct and indirect participants’ records. Beneficial owners of securities will not receive
written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing
details of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through
which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries made
on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing
their ownership interests in the global securities, except under the limited circumstances described below.
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 nominee will not change
the beneficial ownership of the securities. 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 the securities are credited, which may or may not
be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
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.
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 legal
requirements in effect from time to time.
Redemption
notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC’s practice
is to determine by lot the amount of the interest of each direct participant in the securities of such series to be redeemed.
Neither
DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures,
DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consenting or voting
rights of Cede & Co. to those direct participants to whose accounts the securities of such series are credited on the record
date, identified in a listing attached to the omnibus proxy.
So
long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the
registered owner of such securities, by wire transfer of immediately available funds. If securities are issued in definitive certificated
form under the limited circumstances described below, we will have the option of making payments by check mailed to the addresses
of the persons entitled to payment or by wire transfer to bank accounts in the United States designated in writing to the applicable
trustee or other designated party at least 15 days before the applicable payment date by the persons entitled to payment, unless
a shorter period is satisfactory to the applicable trustee or other designated party.
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 the payment date in accordance with their respective holdings
shown on DTC 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 account of customers in bearer form or registered in “street name.” Those
payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements
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 payments to direct
participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is 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 securities depositary with respect to the securities at any time by giving reasonable
notice to us. Under such circumstances, in the event that a successor depositary is not obtained, securities 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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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.
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 or through underwriters or dealers, through agents and/or directly to one or more purchasers. The
securities may be distributed 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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at
negotiated prices.
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Each
time that we sell securities covered by this prospectus, we will provide a prospectus supplement or supplements that will describe
the method of distribution and set forth the terms and conditions of the offering of such securities, including the offering price
of the securities and the proceeds to us, if applicable.
Offers
to purchase the securities being offered by this prospectus may be solicited directly. Agents may also be designated to solicit
offers to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified
in a prospectus supplement.
If
a dealer is utilized in the sale of the securities being offered by this prospectus, the securities will be sold 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
an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed
with the underwriter at the time of sale and the name of any underwriter will be provided 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 those dealers may receive compensation
in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for which they
may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a
dealer will purchase securities as a principal, and may then resell the securities at varying prices to be determined by the dealer.
Any
compensation paid 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 will be provided in the applicable prospectus supplement. 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 and to reimburse those persons for certain expenses.
Any
common stock or preferred stock will be listed on the Nasdaq Capital Market, but any other securities may or may not be listed
on a national securities exchange. 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 involve the sale by persons participating in the offering of more securities than were
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, if any. 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.
If
indicated in the applicable prospectus supplement, underwriters or other persons acting as agents may be authorized to solicit
offers by institutions or other suitable purchasers to purchase the securities at the public offering price set forth in the prospectus
supplement, pursuant to delayed delivery contracts providing for payment and delivery on the date or dates stated in the prospectus
supplement. These purchasers may include, among others, commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. Delayed delivery contracts will be subject to the condition that the purchase
of the securities covered by the delayed delivery contracts will not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which the purchaser is subject. The underwriters and agents will not have any responsibility
with respect to the validity or performance of these contracts.
We
may engage in at the market offerings into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act.
In addition, 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 those
derivatives, 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 named in the applicable prospectus supplement (or a post-effective amendment). 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 and an applicable prospectus supplement. 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
specific terms of any lock-up provisions in respect of any given offering will be described in the applicable prospectus supplement.
In
compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount
to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate proceeds of the offering.
The
underwriters, dealers and agents may engage in transactions with us, or perform services for us, in the ordinary course of business
for which they receive compensation.
LEGAL
MATTERS
Silverman
Shin & Byrne PLLC will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby
on behalf of Hemispherx Biopharma, Inc. Additional legal matters may be passed upon for us or any underwriters, dealers or agents,
by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The
consolidated financial statements as of December 31, 2017 and 2016 and for each of the three years in the period ended December
31, 2017 incorporated by reference in this prospectus have been so incorporated in reliance on the report of RSM US LLP, an independent
registered public accounting firm, incorporated herein by reference, given on the authority of said firm as experts in auditing
and accounting.
WHERE
YOU CAN FIND ADDITIONAL INFORMATION
We
have filed with the SEC a registration statement on Form S-3 under the Securities Act, of which this prospectus and any prospectus
supplement forms a part. This prospectus and any prospectus supplement does not contain all of the information included in the
registration statement and its exhibits. For further information with respect to us and the common stock offered by this prospectus,
we refer you to the registration statement and its exhibits. Statements contained in this prospectus and any prospectus supplement
as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance, we refer
you to the copy of the contract or other document filed as an exhibit to the registration statement. Each of these statements
is qualified in all respects by this reference. You may read and copy any document that we file at the SEC’s Public Reference
Room at 100 F Street, N.E., Washington, D.C. 20549, on official business days during the hours of 10:00 am and 3:00 pm. Please
call the SEC at 1-800-SEC-0330 for further information on the Public Reference Room. All filings we make with the SEC are also
available on the SEC’s web site at http://www.sec.gov. You may also request a copy of these filings, at no cost, by writing
us at 2117 SW Highway 484, Ocala, FL 34473 or telephoning us at (407) 839-0095.
We
are subject to the periodic reporting requirements of the Exchange Act, and we will file periodic reports, proxy statements and
other information with the SEC. These periodic reports, proxy statements and other information are available for inspection and
copying at the public reference room and website of the SEC referred to above. We maintain a website at http://www.hemispherx.net.
You may access our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to
those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act with the SEC free of charge at our website
as soon as reasonably practicable after such material is electronically filed with, or furnished to, the SEC. We have not incorporated
by reference into this prospectus or any prospectus supplement the information contained in, or that can be accessed through,
our website, and you should not consider it to be a part of this document.
INCORPORATION
OF CERTAIN INFORMATION BY REFERENCE
The
SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can
disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated
by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically
update and supersede that information. Any statement contained in a previously filed document incorporated by reference will be
deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus
modifies or replaces that statement. Any statement contained in this prospectus or in a document incorporated or deemed to be
incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes of this prospectus to
the extent that a statement contained in this prospectus or any other subsequently filed document that is deemed to be incorporated
by reference into this prospectus modifies or supersedes the statement. Any statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
We
incorporate by reference our documents listed below and any future filings made by us with the SEC 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 of the securities described
in this prospectus. We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed
below or filed in the future, that are not deemed “filed” with the SEC, including our Compensation Committee report
and performance graph 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.
This
prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously
been filed with the SEC:
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Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2017 filed with the SEC on March 30, 2018;
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Our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2018, filed with the SEC on May 15, 2018;
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Our
Current Reports on Form 8-K filed with the SEC on January 12, 2018, January 22, 2018, March 2, 2018, March 22, 2018, April 6, 2018, April 17, 2018, April 20, 2018 and May 2, 2018; and the amended Current Report on Form 8-K/A filed with the Commission
on March 19, 2018;
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Our
Definitive Proxy Statement on Schedule 14A (other than information furnished) filed with the SEC on July 17, 2017;
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A
description of our common stock contained in our registration statement on Form S-1, SEC File No. 333-117178, filed on July
6, 2004, and any amendment or report filed for the purpose of updating this description; and
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A
description of the Rights to purchase shares of our Series A Junior Participating Preferred Stock, which are attached to all
shares of Common Stock, is contained in our registration statement on Form 8-A12B, SEC File No. 0-27072, filed on November
14, 2017.
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All
reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of offerings under this prospectus, including all such documents we may file with the SEC after the date of the initial
registration statement of which this prospectus forms a part and prior to the effectiveness of the registration statement, but
excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus
and deemed to be part of this prospectus from the date of the filing of such reports and documents.
You
may request a free copy of any of the documents incorporated by reference in this prospectus (other than exhibits, unless they
are specifically incorporated by reference in the documents) by writing or telephoning us at the following address:
Hemispherx
Biopharma, Inc.
2117
SW Highway 484
Ocala,
FL 34473
Attn:
Secretary
(407)
839-0095
Up
to $10,409,565
Common
Stock
PROSPECTUS
SUPPLEMENT
Maxim
Group LLC
March
3, 2020
Hemispherx Biopharma (AMEX:HEB)
Gráfica de Acción Histórica
De Dic 2024 a Ene 2025
Hemispherx Biopharma (AMEX:HEB)
Gráfica de Acción Histórica
De Ene 2024 a Ene 2025
