Unassociated Document
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date of
report (Date of earliest event reported):
May 28,
2010
HEMISPHERX
BIOPHARMA, INC.
(Exact
Name of Registrant as Specified in Charter)
|
Delaware
(State
or Other Jurisdiction
of
Incorporation)
|
0-27072
(Commission
File
Number)
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52-0845822
(IRS
Employer
Identification
No.)
|
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1617
JFK Boulevard, Philadelphia, Pennsylvania, 19103
(Address
of Principal Executive Offices, including Zip
Code)
|
Registrant's
telephone number, including area code: (215) 988-0080
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
¨
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
¨
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item 1.01
Entry into a Material Definitive Agreement.
On May
28, 2010, Hemispherx Biopharma, Inc. (the “Company”) entered into an Equity
Distribution Agreement with Maxim Group LLC (the “Agreement”) to create an
at-the-market equity program under which it may sell up to 32,000,000 shares of
its common stock (the “Shares”) from time to time through Maxim Group LLC, as
sales agent (the “Agent”). Under the Agreement, the Agent will be entitled to a
commission at a fixed commission rate of 4.0% of the gross sales price per Share
sold, up to aggregate gross proceeds of $10,000,000, and, thereafter, at a fixed
commission rate of 3.0% of the gross sales price per Share sold.
Sales of the Shares, if any, under the
Agreement may be made in transactions that are deemed to be “at-the-market”
offerings as defined in Rule 415 under the Securities Act of 1933, as amended,
including sales made by means of ordinary brokers’ transactions, including on
the NYSE Amex, at market prices or as otherwise agreed with the Agent. The
Company has no obligation to sell any of the Shares, and may at any time suspend
offers under the Agreement or terminate the Agreement.
The
Shares will be issued pursuant to the Company’s previously filed and effective
Registration Statement on Form S-3 (File No. 333-159856). On June 22, 2009, the
Company filed a base Prospectus and on May 28, 2010, filed a Prospectus
Supplement relating to the offering with the Securities and Exchange Commission.
This Report shall not constitute an offer to sell or the solicitation of an
offer to buy nor shall there be any sale of the Shares in any state in which
such offer, solicitation or sale would be unlawful prior to registration of
qualification under the securities laws of any such state.
The
Agreement is filed as Exhibit 10.1 to this Report. The description of the
Agreement does not purport to be complete and is qualified in its entirety by
reference to the Agreement filed herewith as an exhibit to this
Report.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
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Exhibit
No.
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Description
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10.1
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Equity
Distribution Agreement, dated May 28,
2010.
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Signatures
Pursuant to the requirements of the
Securities Exchange Act of 1934, as amended, the registrant has caused this
report to be signed on its behalf by the undersigned hereunto duly
authorized.
Date: May
28, 2010
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HEMISPHERX
BIOPHARMA, INC.
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/s/ William A. Carter
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William
A. Carter, M.D.
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Chief
Executive Officer
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