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)
January
5, 2011
HEMISPHERX
BIOPHARMA, INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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0-27072
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52-0845822
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(state
or other juris-
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(Commission
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(I.R.S.
Employer
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diction
of incorporation)
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File
Number)
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(Identification
No.)
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1617
JFK Boulevard, Philadelphia, Pennsylvania
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19103
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant's
telephone number, including area code: (215) 988-0080
(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
8.01 Other Events.
As
discussed in more detail in our Current Report on Form 8-K filed with the
Commission on December 28, 2010, a week after we filed our preliminary proxy
statement in September for our 2010 annual meeting of stockholders anticipated
to be held in November (the “2010 Meeting”), we received a comment letter from
the Security and Exchange Commission concerning its review of our annual report
on Form 10-K, as amended, for the year ended December 31, 2009 (the “2009 Annual
Report”). As we are required to send stockholders the 2009
Annual Report with the proxy statement related to the 2010 Meeting, we postponed
the 2010 Meeting until the Commission’s comments could be
resolved. In the course of resolving the comments, we determined,
among other things, that we needed to restate the financial statements contained
in the 2009 Annual Report and amend that Report, as well as our proxy statement
related to the 2010 Meeting. Due to the length of time it has taken
to resolve the Commission’s comments, we were unable to hold the 2010 Meeting in
2010. To expedite the process of convening the 2010 Meeting, on
January 5, 2011, our Board reduced the quorum required to hold the 2010 Meeting
and removed the resolution to amend our Certificate of Incorporation to increase
the number of shares authorized for issuance.
Quorum
Reduction
In
September, the Board approved an amendment to our Restated and Amended Bylaws
(the “Bylaws”) solely to reduce the quorum required for our 2010 Meeting from a
majority to 40%. The reason for the reduced quorum was the concern
that we would not be able to obtain the usual 50% quorum and the 2010 Meeting
would have to be postponed. We had to adjourn our 2008 annual
meeting of stockholders on three occasions due to the lack of a quorum
until we amended our Bylaws to reduce the quorum for that meeting to
44%. The Board again amended our Bylaws to reduce the quorum
requirement to 40% solely for the 2009 Meeting. With the reduced
quorum requirements, we barely received a sufficient number of votes to obtain a
quorum at both meetings. The Board believes that our difficulties in
obtaining a quorum directly result from the fact that more than approximately
40% of our outstanding shares are held outside the United States with many of
these shares being held at European banks or brokerage houses that do not
necessarily participate in the voting of proxies of American
companies.
Due to
the delay in holding the 2010 Meeting discussed above, the Board approved
another amendment to the Bylaws solely to further reduce the quorum for our 2010
Meeting to 33 1/3%.
The
foregoing description of the Bylaws is qualified in its entirety by reference to
the Restated and Amended Bylaws, a copy of which is attached and incorporated
herein as Exhibit 3.1.
Removal of
Resolution
The Board
also determined that the resolution to amend our Certificate of Incorporation to
increase the number of authorized shares of Common Stock should be removed as
there would not be sufficient time to garner the required number of votes for
passage of that resolution. We anticipate that the resolution will be
put before our stockholders at the 2011 Annual Meeting.
Item
9.01. Financial
Statements and Exhibits.
(c)
Exhibits:
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3.1
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Amended
and Restated
Bylaws.
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SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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HEMISPHERX
BIOPHARMA, INC.
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January
11, 2011
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By:
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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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