UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date
of
report (Date of earliest event reported):
July
2,
2008
HEMISPHERX
BIOPHARMA, INC.
(Exact
Name of Registrant as Specified in Charter)
|
Delaware
(State
or Other Jurisdiction
of
Incorporation)
|
|
0-27072
(Commission
File
Number)
|
|
52-0845822
(IRS
Employer
Identification
No.)
|
|
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):
o
Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant
to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
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.
|
| Item
3.02 |
Unregistered
Sales of Equity Securities
|
On
July
2, 2008, we executed a $30.0 million common stock purchase agreement with Fusion
Capital Fund II, LLC, a Illinois limited liability company. Concurrently with
entering into the common stock purchase agreement, we entered into a
registration rights agreement with Fusion Capital. Under the registration rights
agreement, we agreed to file a registration statement related to the transaction
with the U.S. Securities & Exchange Commission (“SEC”) covering the shares
that have been issued or may be issued to Fusion Capital under the common stock
purchase agreement. After the SEC has declared effective the registration
statement related to the transaction, we have the right over a 25-month period
to sell our shares of common stock to Fusion Capital from time to time in
amounts between $120,000 and $1 million, depending on certain conditions as
set
forth in the agreement, up to a maximum of $30.0 million.
In
consideration for entering into the common stock purchase agreement, upon
execution of the agreement we issued to Fusion Capital 650,000 shares as a
commitment fee. Also, we will issue to Fusion Capital up to an additional
650,000 shares as a commitment fee pro rata as we receive up to the maximum
$30.0 million of future funding. The purchase price of the shares related to
this future funding will be based on the prevailing market prices of the
Company’s shares at the time of sales as computed under the agreement without
any fixed discount, and the Company will control the timing and amount of any
sales of shares to Fusion Capital. Fusion Capital shall not have the right
or
the obligation to purchase any shares of our common stock on any business day
that the price of our common stock is below $0.40. The common stock purchase
agreement may be terminated by us at any time at our discretion without any
cost
to us. There are no negative covenants, restrictions on future fundings,
penalties or liquidated damages in the agreement. This offering was made
pursuant to an exemption from registration provided by Section 4(2) of the
Securities Act of 1933, as amended.
The
Company anticipates using the proceeds from this financing to fund
infrastructure growth including manufacturing, regulatory compliance and market
development, as well as to prospectively fund market opportunities and strategic
partnerships.
The
foregoing description of the common stock purchase agreement and the
registration rights agreement are qualified in their entirety by reference
to
the full text of the common stock purchase agreement and the registration rights
agreement, a copy of each of which is attached hereto as Exhibit 10.1 and 10.2,
respectively, and each of which is incorporated herein in its entirety by
reference.
| Item
9.01. |
Financial
Statements and Exhibits.
|
(c)
Exhibits:
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10.1
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|
Common
Stock Purchase Agreement, dated July 2, 2008
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| |
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10.2
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Registration
Rights Agreement, dated July 2,
2008
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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:
July 2, 2008
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/s/
William A. Carter
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William
A. Carter, M.D.,
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