-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Pv6SNwxK3gsRfxi2oqqMaPJQd7WgtFN33h+FNAsFjCeMTc+Nnw20tARYgMuxvsBt ItdeOTlmYPUkNFfSVdcRqw== 0000891092-01-000413.txt : 20010319 0000891092-01-000413.hdr.sgml : 20010319 ACCESSION NUMBER: 0000891092-01-000413 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20010316 EFFECTIVENESS DATE: 20010316 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEMISPHERX BIOPHARMA INC CENTRAL INDEX KEY: 0000946644 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-DRUGS PROPRIETARIES & DRUGGISTS' SUNDRIES [5122] IRS NUMBER: 520845822 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-57134 FILM NUMBER: 1570213 BUSINESS ADDRESS: STREET 1: 1617 JFK BLVD #660 STREET 2: ONE PENN CENTER CITY: PHILADELPHIA STATE: PA ZIP: 19104 BUSINESS PHONE: 2159880080 MAIL ADDRESS: STREET 1: 1617 JFK BLVD STREET 2: ONE PENN CENTER CITY: PHILADELPHIA STATE: PA ZIP: 19103 S-8 1 0001.txt FORM S-8 As filed with the Securities and Exchange Commission on March 16, 2001 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT Under the Securities Act of 1933 HEMISPHERX BIOPHARMA, INC. (Exact name of registrant as specified in its charter) Delaware 5417 52-0845822 (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer of incorporation or Classification Code Number) Identification No.) organization) 1617 JFK Boulevard Philadelphia, Pennsylvania 19103 (215) 988-0080 (Address and Telephone Number of Registrant's Principal Executive Office) (Zip Code) 1990 AMENDED AND RESTATED EMPLOYEE STOCK OPTION PLAN (460,798 shares of Common Stock) 1992 AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN (92,160 shares of Common Stock) 1993 AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN (138,240 shares of Common Stock) (full title of the plans) William A. Carter, M.D., Chief Executive Officer Hemispherx Biopharma, Inc. 1617 JFK Boulevard Philadelphia, Pennsylvania 19103 (215) 988-0080 (Name, Address & Telephone number, including area code, of agent for service) ---------- Copies to: Gary W. Mair, Esq. Silverman, Collura & Chernis, P.C. 381 Park Avenue South - Suite 1601 New York, New York 10016 (212) 779-8600 CALCULATION OF REGISTRATION FEE ================================================================================ Title of Each Class Amount to be Proposed Proposed Amount of of Securities to Registered(4) Offering Aggregate Registration be Registered Price Per Offering Fee(2) Share(1) Price - -------------------------------------------------------------------------------- Shares of Common Stock, $.001 par value 691,198 $4.40 $3,041,271 $760 ================================================================================ Total Registration Fee $760 ================================================================================ (1) Estimated solely for the purpose of computing the registration fee in accordance with Rules 457(c) and 457(h) of the Securities Act by multiplying (1) 691,198, the maximum number of shares of common stock of the Registrant to be issued pursuant to the exercise of options granted under the Hemispherx Biopharma, Inc. 1990, 1992 and 1993 Employee Stock Purchase Plans, by (2) $4.40, the average of the bid and asked prices of the shares of common stock of the Registrant reported on the American Stock Exchange on March 12, 2001. (2) The registration fee has been calculated pursuant to Rules 457(c)and 457(h) of the Securities Act by multiplying (1) $3,041,271, the proposed maximum aggregate offering price by (2) .00025. (3) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Hemispherx Biopharma, Inc. 1991, 1992 and 1993 Employee Stock Purchase Plans described in this registration statement. Plus such additional number of shares as may be required in the event of a stock dividend, stock split, recapitalization or other similar event in accordance with Rule 416(a) of the Securities Act of 1933. (4) Represents the maximum number of shares of Common Stock issuable upon exercise of options granted or to be granted under the Hemispherx Biopharma, Inc. 1991, 1992 and 1993 Stock Purchase Plans. PART I Plan Information. Item 1. This Form S-8 relates to 691,198 shares of common stock, par value $.001 per share, of Hemispherx Biopharma, Inc., which may be issued upon the exercise of options granted under the Hemispherx Biopharma, Inc. 1990, 1992 and 1993 Employee Stock Purchase Plans. The documents containing information required in the Section 10(a) prospectus specified in Part 1 (plan information and registrant information) will be sent or given to employees as specified by Rule 428(b)(1). Such documents need not be filed with the Securities and Exchange Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part 2 of this form taken together constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended. Registrant Information And Stock Purchase Plan Annual Information. Item 2. We file annual, quarterly and special reports, proxy statements and other information with the Securities and Exchange Commission. You may read and copy any document we file at the Commission's public reference rooms in Washington, D.C., New York, NY and Chicago, IL. Please call the Commission at 1-800-SEC-0330 for further information on the public reference rooms. Our Commission filings are also available to the public from the Commission's web site at http://www.sec.gov. The Commission allows us to "incorporate by reference" information into this registration statement, which means that we can disclose important information to you by referring you to another document filed separately with the Commission. The information incorporated by reference is considered to be part of this registration statement, and later information that we file with the Commission will automatically update this registration statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Incorporation Of Documents By Reference. Item 3. We incorporate by reference the following documents listed below and any future filings made with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, prior to the termination of the offering: 1. A description of our common stock contained in our registration statement on Form S-1, File No. 333-08941, and any amendment or report filed for the purpose of updating this description filed subsequent to the date of this prospectus and prior to the termination of this offering; 2. our annual report on Form 10-K/A for our fiscal year ended December 31, 1999 (File No. 0-27072 and filing date of March 29, 2000); 3. our quarterly report on Form 10-Q for the quarterly period ended March 31, 2000 (File No. 0-27072 and filing date of May 5, 2000); 4. our current report on Form 8-K filed with the SEC on May 11, 2000, for the event of May 3, 2000, (File No. 0-27072); 5. our current report on Form 8-K filed with the SEC on May 22, 2000, for the event of May 3, 2000, (File No. 0-27072); 6. our current report on Form 8-K filed with the SEC on June 6, 2000, for the event of May 3, 2000, (File No. 0-27072); 7. our current report on Form 8-K filed with the SEC on July 12, 2000, for the event of May 3, 2000, (File No. 0-27072); 8. our current report on Form 8-K filed with the SEC on July 13, 2000, for the event of May 3, 2000, (File No. 0-27072); 9. our proxy statement on schedule 14A for the 2000 annual meeting (File No. 0-27072 and filing date of July 13, 2000); and 10. quarterly report on Form 10-Q for the quarterly period ended June 30, 2000 (File No. 0-27072) and filing date of August 14, 2000. 11. quarterly report on Form 10-Q for the quarterly period ended September 30, 2000, (File No. 0-27072) and filing date of November 14, 2000. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement, which indicates that all securities offered hereunder have been sold, or which de-registers all securities then remaining unsold under this registration statement, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. -2- You should rely only on the information incorporated by reference or provided in this registration statement or any supplement. We have not authorized anyone else to provide you with different information. We and the selling stockholders will not make offers of these shares in any state where the offer is not permitted. You should not assume that the information in this registration statement or any supplement is accurate as of any date other than the date on the front of those documents. Any statement contained in a document or incorporated or deemed to be incorporated by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part or this registrations statement. All information in this registration statement is qualified in its entirety by the information and financial statements (including the notes thereto). You may request a copy of these filings, at no cost, by writing or telephoning us at the following address: Hemispherx Biopharma, Inc., 1617 JFK Boulevard, Philadelphia, Pennsylvania 19103, telephone number (215) 988-0080. Description of Securities Item 4. Not Applicable. Interests of named experts and counsel. Item 5. The legality of the shares offered hereby has been passed upon for the Company by Silverman, Collura & Chernis, P.C., 381 Park Avenue South, New York, New York 10016. Indemnification of directors and officers. Item 6. Section 145(a) of the General Corporation Law of the State of Delaware provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against expenses, judgments, fines and amounts paid in settlement actually -3- and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no cause to believe his conduct was unlawful. Section 145(b) provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted under similar standards, except that no indemnification may be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the court in which such action or suit was brought shall determine that despite the adjudication of liability, such person is fairly and reasonably entitled to be indemnified for such expenses which the court shall deem proper. Section 145 further provides that (i) to the extent a director or officer of a corporation has been successful in the defense of any action, suit or proceeding referred to in subsections (a) and (b) or in the defense of any claim, issue, or matter therein, he shall be indemnified against expenses actually and reasonably incurred by him in connection therewith, (ii) indemnification provided for by Section 145 shall not be deemed exclusive of any other rights to which the indemnified party may be entitled, and (iii) the corporation may purchase and maintain insurance on behalf of a director or officer of the corporation against any liability asserted against him or incurred by him in any such capacity or arising out of his status as such whether or not the corporation would have the power to indemnify him against such liabilities under Section 145. Section 102(b)(7) of the General Corporation Law provides that a corporation in its original certificate of incorporation or an amendment thereto validly approved by stockholders may eliminate or limit personal liability of the members of its board of directors or governing body for breach of a director's fiduciary duty. However, no such provision may eliminate or limit the liability of a director for breaching his duty of loyalty, failing to act in good faith, engaging in intentional misconduct or knowingly violating a law, paying a dividend or approving a stock repurchase which was illegal, or obtaining an improper personal benefit. A provision of this type has no effect on the availability of equitable remedies, such as an injunction or rescission, for breach of fiduciary duty. Our charter contains such a provision. Our charter further provides that we shall indemnify our officers and directors and, to the extent authorized by the board of directors, employees and agents of ours to the fullest extent permitted by and in the manner permissible under the laws of the State of Delaware. Our directors' and officers' liability insurance policy is designed to reimburse us for payments made by us pursuant to the foregoing indemnification. -4- This summary is subject to the General Corporation Law of the State of Delaware, our charter and the by-laws and the agreements referred to above. Exemption from Registration Claimed Item 7. Not applicable. Exhibits Item 8. Unless otherwise noted the following exhibits have been filed with this Form S-8. 4.1 1990 Employee Stock Option Plan 4.2 1992 Employee Stock Purchase Plan 4.3 1993 Employee Stock Purchase Plan 5.1 Opinion of Silverman, Collura & Chernis, P.C. 23.1 Consent of Silverman, Collura & Chernis, P.C. to be named in the Registration Statement. Reference is made to Exhibit 5.1 to this Registration Statement which includes such consent. 23.2 Consent of KPMG, LLP. Undertakings Item 9. (a) The undersigned registrant hereby undertakes; (1) To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; -5- (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change of such information in the Registration Statement; Provided however that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply to information contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. -6- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Philadelphia state of Pennsylvania, on this 13th day of March, 2001. HEMISPHERX BIOPHARMA, INC. By: /s/ William A. Carter --------------------- William A. Carter, President and CEO Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. -7- POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints William A. Carter his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to the registration statement on Form S-8, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Signature Title Date - --------- ----- ---- /s/ William A. Carter Principal Executive Officer March 9, 2001 - ----------------------- and Chairman of the Board William A. Carter, M.D. and as Power of Attorney for Members of the Board /s/ Robert E. Peterson Principal Financial Officer and March 9, 2001 - ----------------------- Principal Accounting Officer Robert E. Peterson /s/ Richard C. Piani Director March_12, 2001 - ----------------------- Richard C. Piani /s/ Ransom W. Etheridge Director March 9, 2001 - ----------------------- Ransom W. Etheridge /s/ William Mitchell Director March 12, 2001 - ----------------------- William Mitchell -8- Index to Exhibits Unless otherwise noted the following exhibits have been filed with this Form S-8. 4.1 1990 Amended and Restated Employee Stock Option Plan 4.2 1992 Amended and Restated Employee Stock Purchase Plan 4.3 1993 Amended and Restated Employee Stock Purchase Plan 5.1 Opinion of Silverman, Collura & Chernis, P.C. 23.1 Consent of Silverman, Collura & Chernis, P.C. to be named in the Registration Statement. Reference is made to Exhibit 5.1 to this Registration Statement which includes such consent. 23.2 Consent of KPMG, LLP. EX-4.1 2 0002.txt AMENDED AND RESTATED 1990 STOCK OPTION PLAN EXHIBIT 4.1 HEMISPHERx BIOPHARMA, INC. (FORMERLY HEM RESEARCH, INC.) AMENDED AND RESTATED 1990 STOCK OPTION PLAN 1. Administration of Plan This plan is intended to provide for the grant of stock options to persons whose contributions are important to the success of HEM Research, Inc. (the "Company"). This Plan shall be administered by the Board of Directors of the Company. The Board of Directors is authorized to interpret the Plan, the prescribe, amend and rescind rules and regulations relating to it, and to make all other determinations necessary or advisable for its administration. The Board of Directors may delegate to a committee thereof any or all of its powers and authority with respect to the administration of the Plan, and all references herein to the Board of Directors shall be deemed to include any such committee. 2. Shares Covered by Plan Options may be granted under the plan while the Plan is in effect for the purchase of not more than 460,798(1) shares of the Common Stock, $.001(1) par value ("Common Stock"), of the Company. Shares covered by unexercised options that are no longer exercisable for any reason shall continue to be available for issuance under options granted hereunder for purposes of applying for foregoing limitation. Shares delivered on exercise of options may be made available from authorized and unissued stock or from stock held in the Treasury of the Company. 3. Eligibility The Board of Directors may grant stock options under the Plan to employees, directors and officers of the Company and to consultants, advisors and other persons whose contributions are important to the success of the Company, provided that bonafide services shall be rendered by such consultants other than in connection with the offer and sale of securities in a capital-raising transaction. 4. Grant of Options The recipients of options granted under the Plan, the number of shares to be covered by each option, and the exercise price, vesting terms, if any, duration and other terms of each option (not inconsistent with the Plan) shall be determined by the Board of Directors. Page 2 - -------------------------------------------------------------------------------- 5. Option Agreements Each person to whom an option is granted shall enter into a written agreement with the Company setting forth the terms and conditions of the option granted to him. 6. Duration of Options No option granted under the Plan shall be exercisable more than ten years and one month from the date as of which the option agreement is executed. 7. Rights of a Stockholder An optionee shall have no rights as a stockholder with respect to any shares covered by his options until he shall have become the holder of record of such shares, and no adjustment shall be made, except adjustments pursuant to section 8 hereof, for dividends (ordinary or extraordinary whether in cash, securities or other property) or distributions or other rights in respect of such shares for which the record date is prior to the date on which he shall have become the holder of record thereof. 8. Effect of Change in Stock Subject to the Plan If there is any change in the shares of Common Stock of the Company through the declaration of stock dividends or through recapitalization resulting in stock split-ups or combinations or exchanges of shares or otherwise, the number of shares available for option, the exercise price of outstanding options, and the number of shares subject to any option shall be appropriately adjusted by the Board of Directors, and in their discretion, in such cases, fractional parts of shares may be disregarded. 9. Amendment and Discontinuance The Board of Directors may from time to time alter or suspend and at any time discontinue the Plan. However, no action of the Board of Directors may alter or impair an optionee's rights under any outstanding option previously granted under the Plan without the consent of the holder of the option. 10. Termination Date The Plan shall remain in effect until terminated by the Board of Directors. Date: October 23, 1989 Page 3 - -------------------------------------------------------------------------------- Note (1): Plan amended to reflect stock splits since 1990 consisting of a 10:1 Reverse Stock Split effected in 1992, a 2.17015:1 Reverse Stock Split effected on May 9, 1994 and a 2:1 Forward Stock Split on November 30, 1994. Also reflects a change in par value to $.001 per share effective June 29, 1994. EX-4.2 3 0003.txt AMENDED & RESTATED 1992 EMPLOYEE STOCK OPTION PLAN EXHIBIT 4.2 HEMISPHERx BIOPHARMA, INC. (FORMERLY HEM PHARMACEUTICALS CORP.) AMENDED AND RESTATED 1992 EMPLOYEE STOCK OPTION PLAN 1. Administration of Plan This plan is intended to provide for the grant of incentive stock options, as defined in Section 422 of the Internal Revenue code of 1986, as amended (the "Code"), to employees of HEM Pharmaceuticals Corp. (the "Company") and its subsidiaries from time to time, and for the grant of non-qualified stock options to employees, directors, consultants and others whose efforts are important to the success of the Company. This Plan shall be administered by a committee of the Board of Directors, consisting of at least three "disinterested persons" within the meaning of SEC Rule 16b-3 (the "Option Committee"). Subject to the provisions of Section 13, the Option Committee is authorized to interpret the Plan, to prescribe, amend and rescind rules and regulations relating to it, and to make all other determinations necessary or advisable for its administration. 2. Shares Covered by Plan Options may be granted under the Plan while the Plan is in effect for the purchase of not in excess of 92,160(1) shares of the Common Stock, $.001(1) par value ("Common Stock"), of the Company. Shares covered by unexercised options which are no longer exercisable for any reason shall be available for issuance under options granted hereunder for purposes of computing the foregoing limitation unless the Plan has been terminated. Shares delivered on exercise of options may be made available from authorized and unissued stock or from stock held in the Treasury of the Company. 3. Eligibility All employees, directors, consultants and others whose efforts are important to the success of the Company shall be eligible to receive options under this Plan; provided, that incentive stock options may be granted only to employees of the Company or its corporate subsidiaries. 4. Allotment of Options and Number of Shares. The allotment of options among the eligible grantees, the number of shares to be covered by each option to be granted, and the designation of options as either incentive stock options or non-qualified stock options shall be determined by the Option Committee. Page 2 of 4 - -------------------------------------------------------------------------------- 5. Option Agreements; Terms of Options. Each grantee to whom an option is granted shall enter into a written agreement with the Company setting forth the terms and conditions of the option granted to him, which agreement may contain such terms, condition and restrictions not inconsistent with the terms of the Plan as the Option Committee shall approve in each case. 6. Option Price. The price to be paid by a grantee who exercises an option shall be determined by the Option Committee but except in the case of substituted options granted pursuant to Section 11 shall in no event be less than (a) in the case of an incentive stock option, the fair market value of the Common Stock on the date such option is granted, or (b) in the case of a non-qualified stock option, 50% of the fair market value of the Common Stock on the date such option is granted. 7. Duration and Rate of Exercise of Options. The option period shall be fixed by the Option Committee but in any event each option shall by its terms be exercisable no later than the expiration of ten years from the date such option is granted. The Option Committee shall determine the rate at which each option shall be exercisable. The Option Committee shall determine the manner in which each option shall be exercisable and the timing and form of the purchase price to be paid by a grantee upon the exercise of an option under the Plan. To the extent provided in the option agreement, payment of the purchase price may be in cash, part in cash and part by personal promissory note or in whole or in part by the surrender of a whole number of shares of previously issued Common Stock of the Company. Previously issued shares of Common Stock shall be accepted as payment in an amount equal to the then fair market value of the surrendered shares. 8. Nontransferability of Options. Each option granted under the Plan to any person shall by its terms not be transferable by him otherwise than by will or the laws of descent and distribution, and shall be exercisable during his lifetime only by him. Page 3 of 4 - -------------------------------------------------------------------------------- 9. Rights of a Stockholder. An optionee shall have no rights as a stockholder with respect to any shares covered by his options until he shall have become the holder of record of such shares, and no adjustment shall be made, except adjustments pursuant to section 10 hereof, for dividends (ordinary or extraordinary, whether in cash, securities or other property) or distributions or other rights in respect of such shares for which the record date is prior to the date on which he shall have become the holder of record thereof. 10. Effect of Change in Stock Subject to the Plan. If there is any change in the shares of Common Stock of the Company through the declaration of stock dividends or through recapitalizations resulting in stock split-ups or combinations or exchanges of shares or otherwise, the number of shares available for options, the exercise price of outstanding options, and the number of shares subject to any option shall be appropriately adjusted by the Option Committee, and in their discretion, in such cases, fractional parts of shares may be disregarded. 11. Grant of Options in Connection with Certain Acquisitions. The Option Committee may grant options under the Plan in substitution for options granted under plans of other employers, if such grant occurs in connection with a corporate merger, consolidation, separation, reorganization, or liquidation to which the Company or any of its subsidiaries is a party, or by reason of the acquisition of property or stock of another corporation by the Company or any of its subsidiaries, provided that such transaction is a transaction to which Section 424(a) of the Code applies. The Stock Option Committee may impose such terms and conditions upon the grant of any incentive stock option under this Section as are necessary to ensure that the substitution will qualify under said Section 424(a) and will not constitute a modification of the option under Section 424(h) of the Code, even though any such term or condition would otherwise be inconsistent with the provisions of this Plan. Options granted under the provisions of this Section may be granted at a price less than the fair market value of the Common Stock on the date such option is granted, so long as the ratio of the option price to the fair market value of the Common Stock is no more favorable to the optionee than the ratio of the option price to the fair market value of the stock subject to the old option immediately before such substitution. Except as otherwise specifically provided in the agreement setting forth the terms and conditions of such an option, the provisions of this Plan shall govern any options granted under this Section. Nothing in this Section shall be deemed to authorize Page 4 of 4 - -------------------------------------------------------------------------------- the grant of options under the Plan for a number of shares in excess of the number set forth in Section 2. 12. Use of Proceeds. The proceeds received by the Company from the sale of stock pursuant to the Plan may be used for general corporate purposes. 13. Amendment and Discontinuance. The Board of Directors may from time to time alter or suspend and at any time discontinue the Plan. However, no action of the Board of Directors may, without approval of the stockholders, increase the maximum number of shares to be offered for sale under options in the aggregate (other than according to the terms of Section 10 above), modify the provisions of Section 3 hereof regarding eligibility, reduce the purchase price at which shares may be offered pursuant to options (other than according to the terms of Section 10) or extend the expiration date of the Plan; nor may any action of the Board of Directors or the stockholders alter or impair an optionee's rights under any outstanding option previously granted under the Plan, without the consent of the holder of the option. 14. Effective Date and Termination Date. This Plan and any amendment thereto requiring stockholder approval shall become effective upon the date of its adoption by the Board of Directors, subject, however to approval by the stockholders of the Company within twelve months of such date. The Plan shall remain in effect until terminated by the Board of Directors, but not later than ten years after the date the Plan is initially adopted by the Board of Directors, or is approved by the shareholders, whichever first occurs. December 3, 1992. Note (1): Plan amended to reflect stock splits consisting of a 2.17015:1 Reverse Stock Split effected on May 9, 1994 and a 2:1 Forward Stock Split on November 30, 1994. Also reflects a change in par value to $.001 per share effective June 29, 1994. EX-4.3 4 0004.txt AMENDED & RESTATED 1993 EMPLOYEE STOCK OPTION PLAN EXHIBIT 4.3 HEMISPHERx BIOPHARMA, INC. (FORMERLY HEM PHARMACEUTICALS CORP.) AMENDED AND RESTATED 1993 EMPLOYEE STOCK OPTION PLAN 1. PURPOSE. The purpose of this Employee Stock Purchase Plan (the "Plan") is to provide employees of HEM Pharmaceuticals Corp., a Delaware corporation (the "Company"), and its subsidiaries, who wish to become stockholders of the Company an opportunity to purchase shares of Common Stock of the Company (the "Shares"). The Plan is intended to qualify as an "employee stock purchase plan" within the meaning of Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. ELIGIBLE EMPLOYEES. Subject to provisions of Sections 7, 8 and 9 below, any individual who is in the full-time employment (as defined below) of the Company or any of its subsidiaries (as defined in Section 424 (f) of the Code) the employees of which are designated by the Company's Board of Directors (the "Board of Directors") as eligible to participate in the Plan, is eligible to participate in any Offering of Shares (as defined in Section 3 below) made by the Company hereunder. Full-time employment shall include all employees whose customary employment is: (a) in excess of 20 hours per week; and (b) more than five months in the relevant calendar year. 3. OFFERING DATES. From time to time the Company, by action of the Board of Directors, will grant right to purchase Shares to employees eligible to participate in the Plan pursuant to one or more offerings (each of which is an "Offering") on a date or series of dates (each of which is an "Offering Date") designated for this purpose by the Board of Directors. 4. PRICES. The Price per share for each grant of rights hereunder shall be the lessor of: (a) eighty-five percent (85%) of the fair market value of a Share on the Offering Date on which such right was granted; or (b) eighty-five percent (85%) of the fair market value of a Share on the date such right is exercised. At its discretion, the Board of Directors may determine a higher price for a grant of rights. For purposes of this Plan, the term "fair market value" on any date means (i) the average (on that date) of the high and low prices of the Company's Common Stock on the principal national securities exchange on which the Page 1 of 5 Common Stock is traded, if the Common Stock is then traded on a national securities exchange; or (ii) the last reported sale price (on that date) of the Common Stock on the NASDAQ National Market List, if the Common Stock is not then traded on a national securities exchange; and (iii) the average of the closing bid and asked prices last quoted (on that date) by an established quotation service for over-the-counter securities, if the Common Stock is not reported on the NASDAQ National Market List. If the Company's Common Stock is not publicly traded at the time right is granted under this Plan, "fair market value" shall mean the fair market value of the Common Stock as determined by the Board of Directors after taking into consideration all factors which it deems appropriate, including, without limitation, recent sale and offer prices of the Common Stock in private transactions negotiated at arm's length. 5. EXERCISE OF RIGHTS AND METHOD OF PAYMENT. (a) Rights granted under the Plan will be exercisable periodically on specified dates as determined by the Board of Directors. (b) The method of payment for Shares purchased upon exercise or rights granted hereunder shall be through regular payroll deductions or by lump sum cash payment, or both, as determined by the Board of Directors. No interest shall be paid upon payroll deductions unless specifically provided for the Board of Directors. (c) Any payments received by the Company from a participating employee and not utilized for the purchase of Shares upon exercise of a right granted hereunder shall be promptly returned to such employee by the Company after termination of the right to which the payment relates. 6. TERM OF RIGHTS. Rights granted on any Offering Date shall be exercisable upon the expiration of such period ("Offering Period") as shall be determined by the Board of Directors when it authorizes the Offering, provided that such Offering Period shall in no event be longer than twenty-seven (27) months. 7. SHARES SUBJECT TO THE PLAN. No more than 138,240(1) Shares may be sold pursuant to rights granted under the Plan; provided, however, that appropriate adjustment shall be made in such number, in the number of Shares covered by outstanding rights granted hereunder, in the exercise price of the rights and in the maximum number of Shares which an employee may purchase (pursuant to Section 9 below) to give effect to any mergers, consolidations, reorganizations, recapitalizations, stock splits, stock dividends or other relevant changes in the capitalization of the Company occurring after the effective date of the Plan, provided that no fractional Shares shall be subject to a right and each right shall be adjusted downward to the nearest full Share. Any agreement of merger or Page 2 of 5 consolidation will include provisions for protection of the then existing rights of participating employees under the Plan. Either authorized and unissued Shares or issued Shares heretofore or hereafter reacquired by the Company may be made subject to rights under the Plan. If for any reason any right under the Plan terminates in whole or in part, Shares subject to such terminated right may again be subjected to a right under the Plan. 8. LIMITATIONS ON GRANTS. (a) No employee shall be granted a right hereunder if such employee, immediately after the right is granted, would own stock or rights to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company, or of any subsidiary, computed in accordance with Sections 423(b)(3) and 424(d) of the Code. (b) No employee shall be granted a right which permits his right to purchase shares under all employee stock purchase plans of the Company and its subsidiaries to accrue at a rate of which exceeds twenty-five thousand dollars ($25,000) (or such other maximum as may be prescribed from time to time by the Code) of the fair market value of such Shares (determined at the time such right is granted) for each calendar year in which such right is outstanding at any time in accordance with the provisions of Section 423(b)(8) of the Code. (c) No right granted to any participating employee under a single Offering shall cover more shares than may be purchased at an exercise price equal to 10% of the compensation payable to the employee during the Offering not taking into consideration any changes in the employee's rate of compensation after the date the employee elects to participate in the Offering, or such other percentage as determined by the Board of Directors from time to time. 9. LIMIT ON PARTICIPATION. Participation in an Offering shall be limited to eligible employees who elect to participate in such Offering in the manner, and within the time limitation, established by the Board of Directors when it authorizes the offering. 10. CANCELLATION OF ELECTION TO PARTICIPATE. An employee who has elected to participate in an Offering may, unless the employee has waived this cancellation right at the time of such election in a manner established by the Board of Directors, cancel such election as to all (but not part) of the rights granted under such Offering by giving written notice of such cancellation to the Company before the expiration of the Offering Period. Any amounts paid by the employee for the Shares or withheld for the purchase of Shares from the employee's compensation through payroll deductions shall be paid to the employee, without interest, upon such cancellation. Page 3 of 5 11. TERMINATION OF EMPLOYMENT. Upon termination of employment for any reason, including the death of the employee, before the date of which any rights granted under the Plan are exercisable, all such rights shall immediately terminate and amounts paid by the employee for the Shares or withheld for the purchase of Shares from the employee's compensation through payroll deductions shall be paid to the employee or to the employee's estate, without interest. 12. EMPLOYEE'S RIGHTS AS STOCKHOLDER. No participating employee shall have any rights as a stockholder in the Shares covered by a right granted hereunder until such rights has been exercised, full payment has been made for the corresponding Shares and the Share certificate is actually issued. 13. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not assignable or transferable by a participating employee and are exercisable only by the employee. 14. LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN. The Plan is intended to provide shares of Common Stock for investment and not for resale. The Company does not, however, intent to restrict or influence any employee in the conduct of his/her own affairs. An employee may, therefore, sell stock purchased under the Plan at any time the employee chooses, subject to the compliance with any applicable Federal or state securities laws; provided, however, that because of certain Federal tax requirements, each employee agrees by entering the Plan, promptly to give the Company notice of any such stock disposed of within two years after the date of grant of the applicable right showing the number of such shares disposed of. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK. 15. AMENDMENTS TO OR DISCONTINUANCE OF THE PLAN. The Board of Directors may at any time terminate or amend this Plan without notice and without further action on the part of stockholders of the Company, provided that: (a) no such termination or amendment shall adversely affect the then existing rights of any participating employee; (b) any such amendment which: (i) increases the number of Shares subject to the Plan (subject to the provisions of Section 7); (ii) changes the class of persons eligible to participate under the Plan; or Page 4 of 5 (iii) materially increases the benefits accruing to participants under the Plan shall be subject to approval of the stockholders of the Company. 16. EFFECTIVE DATE AND APPROVALS. The Plan is being adopted by the Board of Directors on July 6, 1993 to become effective as of such time as an initial public offering of the Company's securities occurs. The Company's obligation to offer, sell and deliver its Shares under the Plan is subject to the approval of its stockholders and of any governmental authority required in connection with the authorized issuance or sale of such Shares and is further subject to the Company receiving the opinion of its counsel that all applicable securities laws have been complied with. 17. TERM OF PLAN. No rights shall be granted under the Plan after July 6, 2003. 18. ADMINISTRATION OF THE PLAN. The Board of Directors or any committee or persons to whom it delegates its authority (the "Administrator") shall administer, interpret and apply all provisions of the Plan. The Administrator may waive such provisions of the Plan as it deems necessary to meet special circumstances not anticipated or covered expressly by the Plan. Nothing contained in this Section shall be deemed to authorize the Administrator to alter or administer the provisions of the Plan in a manner inconsistent with the provisions of Section 423 of the Code. No member of the Administrator shall be liable for any action or determination made in good faith with respect to the Plan or any right granted under it. July 6, 1993 Note (1): Plan amended to reflect stock splits consisting of a 2.17015:1 Reverse Stock Split effected on May 9, 1994 and a 2:1 Forward Stock Split on November 30, 1994. Also includes a change in par value to $.001 per share effective June 29, 1994. EX-5.1 5 0005.txt OPINION RE: LEGALITY Exhibit 5.1 [LETTERHEAD OF SILVERMAN, COLLURA & CHERNIS, P.C.] March 15, 2001 Hemispherx Biopharma, Inc. 1617 JFK Boulevard Philadelphia, Pennsylvania 19103. Re: Registration Statement on Form S-8 Gentlemen: We have acted as counsel to Hemispherx Biopharma, Inc. (the "Company"), a Delaware corporation, pursuant to a Registration Statement on Form S-8, as filed with the Securities and Exchange Commission on March 16, 2001 (the "Registration Statement"), covering an aggregate of 691,198 shares of the Company's Common Stock, $.001 par value (the "Common Stock") issuable pursuant to the Company's 1990, 1992 and 1993 Employee Stock Purchase Plans. In acting as counsel for the Company and arriving at the opinions as expressed below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company, agreements and other instruments, certificates of officers and representatives of the Company, certificates of public officials and other documents as we have deemed necessary or appropriate as a basis for the opinions expressed herein. In connection with our examination we have assumed the genuineness of all signatures, the authenticity of all documents tendered to us as originals, the legal capacity of natural persons and the conformity to original documents of all documents submitted to us as certified or photostated copies. Based on the foregoing, and subject to the qualifications and limitations set forth herein, it is our opinion that: 1. The Company has authority to issue the Common Stock in the manner and under the terms set forth in the Registration Statement. 2. The Common Stock has been duly authorized and when issued, delivered and paid for by recipients in accordance with their respective terms, will be validly issued, fully paid and non-assessable. We express no opinion with respect to the laws other than those of the State of New York and Federal Laws of the United States of America, and we assume no responsibility as to the applicability or the effect of the laws of any other jurisdiction. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and its use as part of the Registration Statement. We are furnishing this opinion to the Company solely for its benefit in connection with the Registration Statement. It is not to be used, circulated, quoted or otherwise referred to for any other purpose. Other than the Company no one is entitled to rely on this opinion. Very truly yours, SILVERMAN, COLLURA & CHERNIS, P.C. EX-23.2 6 0006.txt LETTER OF CONSENT Exhibit 23.2 The Board of Directors Hemispherx Biopharma, Inc. We consent to incorporation by reference in the Registration Statement on Form S-8 of our report dated February 19, 2000, except for note 16 which is as of March 6, 2000 relating to the consolidated balance sheets of Hemispherx Biopharma, Inc. as of December 31, 1999 and 1998, and the related statements of operations, changes in stockholders' equity and comprehensive loss and cash flows for each of the years in the three-year period ending December 31, 1999 which report appears in the annual report on Form 10-K of Hemispherx Biopharma, Inc. KMPG LLP Philadelphia, Pennsylvania March 14, 2001 -----END PRIVACY-ENHANCED MESSAGE-----