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EX-32.1 - AIM ImmunoTech Inc. | v182822_ex32-1.htm |
EX-31.2 - AIM ImmunoTech Inc. | v182822_ex31-2.htm |
EX-31.1 - AIM ImmunoTech Inc. | v182822_ex31-1.htm |
EX-32.2 - AIM ImmunoTech Inc. | v182822_ex32-2.htm |
FORM
10-K/A
SECURITIES
AND EXCHANGE COMMISSION
x ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For
the fiscal year ended December 31, 2009
OR
o TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
For
the transition period from ________ to ________
Commission
File No. 1-13441
HEMISPHERX
BIOPHARMA, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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52-0845822
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(State or other jurisdiction of
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(I.R.S. Employer Identification
|
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incorporation or organization)
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Number)
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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
Securities
registered pursuant to Section 12(b) of the Act:
Common
Stock, $.001 par value
Securities
registered pursuant to Section 12(g) of the Act:
(Title of
Each Class)
NONE
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes o No
x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes o No
x
Indicate
by check mark whether the registrant (1) has filed all reports to be filed by
Section 13 or 15(d) of the Securities and Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements for
the past 90 days.Yes x No o
Indicate
by check mark whether the registrant has submitted electronically and posted on
its corporate Web site, if any, every Interactive Data File required to be
submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this
chapter) during the preceding 12 months (or for such shorter period that the
registrant was required to submit and post such files). Yes o No x
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
definition of "large accelerated filer,” “accelerated filer" and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one): o Large accelerated
filerx Accelerated
filer o
Non-accelerated filer o Smaller Reporting
Company o
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act). Yeso
No x
The
aggregate market value of Common Stock held by non-affiliates at June 30, 2009,
the last business day of the registrant’s most recently completed second fiscal
quarter was $299,465,873.
The
number of shares of the registrant’s Common Stock outstanding as of April 27,
2010 was 132,876,924.
EXPLANATORY
NOTE
On March
12, 2010, Hemispherx Biopharma, Inc. (“Hemispherx,” the “Company,” “we,” “our”
or “us”) filed its Annual Report on Form 10-K for the year ended
December 31, 2009 (the “Original Filing”), with the Securities and Exchange
Commission (the “SEC”). The Original Filing intended to incorporate
Part III, Item
11 (Executive Compensation) of Form 10-K by reference to the Company’s
definitive proxy statement (to be subsequently filed). This Amendment No. 1
(this “Amendment”) on Form-10-K/A, which amends and restates the items
identified below with respect to the Original Filing, is being filed to provide
the disclosure required by Part III, Item 11 of Form 10-K.
This Form
10-K/A only amends information in Part III, Item 11 (Executive
Compensation) and Part IV, Item 15 (Exhibits, Financial Statement
Schedules). All other items as presented in the Original Filing are unchanged.
Except for the foregoing amended and restated information, this Amendment does
not amend, update or change any other information presented in the Original
Filing.
In
addition, as required by Rule 12b-15 of the Securities Exchange Act of
1934, this Form 10-K/A contains new certifications by our principal
executive officer and our principal financial and accounting officer, filed as
exhibits hereto.
TABLE
OF CONTENTS
Page
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PART III
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Item
11. Executive Compensation
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1
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PART IV
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Item
15. Exhibits and Financial Statement Schedules
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21
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Item
11. Executive Compensation.
Compensation
Discussion and Analysis
This
discussion and analysis describes our executive compensation philosophy,
process, plans and practices as they relate to our “Named Executive Officers”
(“NEO”) listed below and gives the context for understanding and evaluating the
more specific compensation information contained in the narratives, tables and
related disclosures that follow:
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·
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Dr.
William A. Carter, Chairman & Chief Executive Officer
(“CEO”);
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·
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Charles
T. Bernhardt, Chief Financial Officer (“CFO”) & Chief Accounting
Officer (“CAO”);
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·
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Dr.
David Strayer, Medical Director;
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·
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Robert
Dickey, IV, Senior (“Sr.”) Vice President; and
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·
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Wayne
Springate, Vice President (“VP”) of
Operations.
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Overview
of Our Business Environment
Hemispherx
is a specialty pharmaceutical company based in Philadelphia, Pennsylvania and
engaged in the clinical development of new drug therapies based on natural
immune system enhancing technologies for the treatment of viral and immune based
chronic disorders. We were founded in the early 1970s doing contract
research for the National Institutes of Health. Since that time,
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
current strategic focus is derived from four applications of our two core
pharmaceutical technology platforms Ampligen® and Alferon N
Injection®. The commercial focus for Ampligen® includes application
as a treatment for Chronic Fatigue Syndrome (“CFS”) and as an influenza vaccine
enhancer (adjuvant) for both therapeutic and preventative vaccine
development. Alferon N Injection® is a FDA approved product for
refractory or recurring genital warts. Alferon® LDO (Low Dose Oral)
is a formulation currently under development targeting influenza.
Governance
The
Compensation Committee consists of the following three directors, each of whom
is “independent” under applicable NYSE Amex rules, a “Non-Employee Director” as
defined in Rule 16b-3 under the Securities Exchange Act of 1934, as amended, and
an “Outside Director” as defined under the treasury regulations promulgated
under Section 162(m) of the Internal Revenue Code of 1986, as amended (the
“Internal Revenue Code”): Dr. William Mitchell, M.D., Richard C. Piani, and Dr.
Iraj E. Kiani, N.D. The Compensation Committee makes recommendations
concerning salaries and compensation for senior management and other highly paid
professionals or consultants to Hemispherx. The full text of the
Compensation Committee Charter, as approved by the Board, is available on our
website: www.hemispherx.net in the “Investor Relations” tab under “Corporate
Governance”. This Committee met three times in 2009 and all committee
members were in attendance. Our Chief Financial Officer and the
Director of Human Resources support the Compensation Committee in its
work.
1
Process
Our
Compensation Committee is responsible for determining the compensation of our
NEO included in the “Summary Compensation Table” below. For purposes
of determining compensation for our NEO, our Compensation Committee takes into
account the recommendation of our Chief Executive Officer. The
Compensation Committee is primarily responsible for overseeing our incentive
compensation plans and equity-based plans, under which stock option grants have
been made to employees, including the NEO, as well as non-employee directors and
strategic consultants.
The
following table summarizes the roles of each of the key participants in the
executive compensation decision-making process:
Compensation Committee
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·
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Fulfills
the Board of Directors' responsibilities relating to compensation of
Hemispherx’ NEO, other non-officer executives and
non-executives.
|
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·
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Oversees
implementation and administration of Hemispherx’ compensation and employee
benefits programs, including incentive compensation and equity
compensation plans.
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||
·
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Reviews
and approves Hemispherx’ goals and objectives and, in light of these,
evaluates the NEO's performance and sets his annual base salary, annual
incentive opportunity, long-term incentive opportunity and any
special/supplemental benefits or payments.
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||
·
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Reviews
and approves compensation for all other non-officer executives of
Hemispherx including annual base salary, annual incentive opportunity,
long-term incentive opportunity and any special/supplemental benefits or
payments.
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||
·
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In
consultation with the CEO and CFO, review the talent development process
within the Company to ensure it is effectively managed and sufficient to
undertake successful succession planning.
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·
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Review
and approve employment agreements, severance arrangements, issuance of
equity compensation and change in control agreements.
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Chairman
and CEO
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·
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Presents
to the Compensation Committee the overall performance evaluation of, and
compensation recommendations for, each of the NEO and other non-officer
executives.
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2
CFO and Human Resources
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·
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Reports
directly or indirectly to the Chief Executive Officer.
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·
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Assists
the Compensation Committee with the data for competitive pay and
benchmarking purposes.
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·
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Reviews
relevant market data and advises the Compensation Committee on
interpretation of information, including cost of living statistics, within
the framework of Hemispherx.
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·
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Informs
the Compensation Committee of regulatory developments and how these may
affect Hemispherx’ compensation
program.
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Objectives
and Philosophy of Executive Compensation
The primary objectives of the
Compensation Committee of our Board of Directors with respect to executive
compensation are to attract and retain the most talented and dedicated
executives possible, to tie annual and long-term cash and stock incentives to
achievement of measurable performance objectives, and to align executives'
incentives with stockholder value creation. To achieve these
objectives, the Compensation Committee expects to implement and maintain
compensation plans that tie a substantial portion of executives' overall
compensation to key strategic financial and operational goals such as the
establishment and maintenance of key strategic relationships, the development of
our products, the identification and advancement of additional product and the
performance of our common stock price. The Compensation Committee
evaluates individual executive performance with the goal of setting compensation
at levels the Committee believes are comparable with executives in other
companies of similar size and stage of development operating in the
biotechnology industry while taking into account our relative performance and
our own strategic goals.
Use
Of Compensation Data
Our
compensation plans are developed by utilizing publicly available compensation
data for national and regional companies in the biopharmaceutical industry as
well as web sites that specialize in compensation and/or employment
data. We believe that the practices of this group of companies and/or
data obtained from employment industry organizations, provide us with
appropriate compensation benchmarks necessary to review the compensation
recommendations by the CEO, CFO and/or Human Resources
Department. While not utilized in 2009 or 2008 due to our maintaining
Base Salary at existing levels with the exception of cost of living adjustments,
in past years we had engaged independent outside consultants to help us analyze
compensation data and compare our programs with the practices of the similar
national and/or regional companies represented in the biopharmaceutical
industry.
Elements
Of Executive Compensation Program
The
Compensation Committee has adopted a mix among the compensation elements in
order to further our compensation goals. The elements
include:
3
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·
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Base
salary (impacted in 2009 by the Employee Wage Or Hours Reduction Program
and cost of living adjustments);
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·
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Variable
compensation consisting of a cash bonus based upon individual and
corporate performance;
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·
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Long-term
bonus incentive programs consisting of the Goal Achievement Program and
Employee Bonus Pool Program;
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·
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Stock
option grants with exercise prices set at the fair market value at the
time of grant and vesting over an extended
period.
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Executive
compensation consists of the following elements:
Base
Salary
Base
salaries for our executives are established based on the scope of their
responsibilities, taking into account competitive market compensation paid by
other companies for similar positions. Generally, we believe that
executive base salaries should be targeted near the median of the range of
salaries for executives in similar positions with similar responsibilities at
comparable companies, in line with our compensation philosophy. For
those NEO with employment agreements, base salary is determined and set forth in
the agreement and the Compensation Committee reviews the base salary prior to
renewal of such agreement. Base salaries for the other NEO are
normally reviewed annually, and adjusted from time to time to realign salaries
with market levels after taking into account individual responsibilities,
performance and experience. While this review process normally occurs
in the fourth quarter of each year, it was not undertaken regarding 2008, 2009
or 2010 base salaries. However after analysis of overall Company
compensation, the Committee authorized a non-discriminatory and universally
applied cost of living increases to the base salaries all full-time employees of
record effective July 1, 2009 and January 1, 2010. Therefore, with
the exception of these cost of living adjustments, no other modifications were
made to the base salary rate of our NEO during 2008, 2009 nor through April 30,
2010. However, additional changes to our NEO’s base salaries could be
undertaken in a future determination by the
Compensation Committee at its discretion.
Employee
Wage Or Hours Reduction Program (January 1 to May 31, 2009)
In an
effort to conserve our cash, the Employee Wage Or Hours Reduction Program (the
“Program”) was ratified by the Board effective January 1, 2009. In a
mandatory program that was estimated to be in effect for up to six months,
compensation of all active full-time employees as of January 1, 2009
(“Participants”) were reduced through a reduction in their base salary for which
they would be eligible to receive shares of our common stock (“Stock”) six
months after the shares were earned. All employees were also offered
the alternative option to reduce their work hours with a proportional decease in
wages. No employee elected this alternative.
On a
semi-monthly basis, Participants received rights to Stock (“Incentive Rights”)
that could not be traded. Six months after the date the Incentive
Rights were awarded, we established a process to have Incentive Rights converted
into Stock and issued to each Participant on a monthly basis. We have
established and maintained a record for the number of Incentive Rights awarded
to each Participant. At the end of each semi-monthly period, we
determined the number of Incentive Rights by converting the proportionate
incentive award to the value of the Stock by utilizing the closing price of the
Stock on the NYSE Amex based on the average daily closing price for the
period.
4
The
Program was administered for full-time employees as follows:
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·
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Employees
earning $90,000 or less per year elected a wage reduction of 10% per annum
and received an incentive of two times the value in
Stock;
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·
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Employees
earning $90,001 to $200,000 per year elected a wage reduction of 25% per
annum received an incentive of two times the value in
Stock;
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·
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Employees
earning over $200,000 per year elected a wage reduction of 50% per annum
and received an incentive of three times the value in
Stock;
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·
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Any
employee could have elected a 50% per annum wage reduction which would
allow them to be eligible for an incentive award of three times the value
of Stock.
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We have
worked with Wachovia Securities, LLC (“Wachovia Securities” or “Wells Fargo
Advisors”) to establish a trading account for each
Participant. Incentive Rights constitute income to the Participants
and be subject to payroll taxes upon Stock issuance. We bear all
expenses related to selling the Stock at Wachovia Securities (i.e.; broker fees,
transaction costs, commissions, etc.) for payroll withholding tax
purposes. Thereafter, for each Participant that remains an active
employee during the period, we continue to bear such costs from their Wachovia
Securities’ accounts for the maintenance of these account and all expenses
related to selling our Stock. Participants leaving us or voluntarily
separating from the Plan received the Stock earned upon the six month conversion
of their Incentive Rights. The Plan benefits for individuals that are
no longer Participants are fixed and we do not continue to bear such costs from
the designated brokerage firm for the maintenance of an account nor any expenses
related to selling Hemispherx stock except for the initial costs associated to
the selling of stock for payroll withholding tax purposes.
The
Program was suspended as of May 31, 2009 with employees returning back to their
rate of Base Salary of January 1, 2009. At the passage of six months
for each of their months of participation, non-affiliate employees have been
issued shares on July 31, August 31, September 30, October 30 and November 30,
2009. Individuals defined by Rule 144 in the Securities Act of 1933
as an “affiliate” have yet to receive their distribution of our common stock
from the Program with current projection of mid-2010:
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·
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Dr.
William Carter, Chairman & CEO (818,682
shares);
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·
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Charles
Bernhardt, CFO & CAO (198,135
shares);
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·
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Dr.
David Strayer, Medical Director (230,586 shares);
and
|
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·
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Wayne
Springate, V.P. of Operations (185,748
shares).
|
Annual
Bonus
Our compensation program includes
eligibility for an annual performance-based cash bonus in the case of all NEO
and certain senior, non-officer executives. The amount of the cash
bonus depends on the level of achievement of the stated corporate, department,
and individual performance goals, with a target bonus generally set as a
percentage of base salary. As provided in their respective employment
agreement, the following executives are eligible for an annual performance bonus
based of their salaries, the amount of which, if any, is determined by the Board
of Directors in its sole discretion based on the recommendation of the
Compensation Committee:
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·
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Dr.
William Carter, Chairman & CEO (bonus opportunity up to
25%);
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·
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Robert
Dickey, Sr. Vice President (bonus opportunity up to 25%);
and
|
5
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·
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Wayne
Springate, V.P. of Operations (bonus opportunity up to
20%).
|
The
Compensation Committee utilizes annual incentive bonuses to compensate NEO and
certain senior, non-officer executives for attainment or success towards overall
corporate financial and/or operational goals along with achieving individual
annual performance objectives. These objectives will vary depending
on the individual executive, but generally relate to strategic factors such as
establishment and/or maintenance of key strategic relationships, development of
our products, identification, research and/or
development of additional products, enhancing financial factors such as raising
capital, cost containment and/or improving the results of
operations.
On May
20, 2009, our Board of Directors awarded bonuses of $300,000 to Dr. William
Carter, CEO and Chairman of the Board, and $150,000 to Dr. David Strayer, Chief
Medical Officer, in recognition for their accomplishment of 2008 corporate goals
and objectives. The Compensation Committee and Board of Directors
reviewed the corporate goals established in March 2008 and determined that
significant progress had been made in terms of the preparation and filing the
Ampligen® NDA with the Federal Drug Administration and receipt of funding for
operating activities to award the bonus.
In
February 2010, the Compensation Committee reviewed the Executive Team’s
Company-wide goals as detailed in the Committee’s Meeting Minutes of May 15,
2009 and specific goals documented in each individual’s job
description. The Committee believed that the Executive Team had
excelled in meeting their goals and responsibilities as documented in each
individual’s job description as well as made significant progress in meeting
corporate goals with outstanding success in following areas:
1.
|
Attainment
of a favorable FDA response to utilize a subcontractor for manufacture of
Ampligen®;
|
2.
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Continued
development of microbiological enhancement of vaccines requiring
Ampligen®;
|
3.
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Success
in the protection of our intellectual
property;
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4.
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Continued
development towards a potential clinical launch of Alferon®
LDO;
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5.
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Maintaining
the overall financial strength of Hemispherx and operations consistent
with the Board approved budget.
|
On
February 8, 2010, Hemispherx’ Board of Directors approved the recommendations of
the Compensation Committee to award bonuses to NEO and certain senior,
non-officer executives for their performance in relation to their
attainment of 2009 Company-wide goals as well at their achievements in
individual goals and responsibilities. The Compensation Committee had
recommended, and the Board ratified, the award of bonus to Dr. William Carter,
Chairman & CEO ($182,772), Charles Bernhardt, CFO & CAO ($44,000), Dr.
David Strayer, Medical Director ($44,306) and Wayne Springate, V.P. of
Operations ($33,000) and certain senior,
non-officer executives.
Long-Term Bonus Incentive
Programs
The
Compensation Committee believes that team oriented performance by our NEO,
non-officer executive officers and all employees, consistent with our short and
long-term goals, can be achieved through the use of goal or result oriented
bonus programs. Accordingly, two programs have been established to
provide our employees, including our NEO and certain senior, non-officer
executives, with incentives to help align their financial interests with that of
Hemispherx and its stockholders. One program terminated in March 2010
and the other is ongoing.
6
Goal
Achievement Incentive Program
On
November 17, 2008 the Board of Directors authorized the Goal Achievement
Incentive Program. This program is designed to intensify the efforts
of the parties involved in securing strategic partnering agreements with third
parties. We will pay the parties participating in the Program an
incentive bonus for each timely agreement (as defined below) entered into by us
with any and all third parties in which we receive cash (as defined below) from
such third parties as a result of the execution of such agreements (“Strategic
Partnering Agreements”), provided, however, Strategic Partnering Agreements
shall not include agreements whereby we receive cash as a result of (i) only the
sale of Ampligen® or other Hemispherx products, (ii) our only being reimbursed
for expenses, not including expenses for prior research conducted by us,
incurred by us, (iii) an agreement in which the only economic benefit to us is
one or more loans, and (iv) an agreement, other than an agreement which results
in a change of control of Hemispherx, in which the only economic benefit to us
is the sale of our equity or other securities. The incentive bonus shall be in
an amount equal to one percent (1%) of the amount of all cash received by us
pursuant to each such Strategic Partnering Agreement between the dates of the
execution of each such Strategic Partnering Agreement and the first commercial
sale of Ampligen® following the full commercial approval of the sale of
Ampligen® in each jurisdiction. All incentive bonus payments shall be
payable in readily available funds within ten (10) days following receipt by us
of readily available funds as a result of our receipt of such first
cash. For purposes hereof “timely agreements” means all agreements
entered into by us with any and all third parties (a) on or before June 30, 2009
and (b) on or before March 31, 2010 with third parties with which we had been in
active negotiations on or before June 30, 2009. For purposes hereof
“cash” means any asset which is either (a) readily available funds or (b)
capable of being converted into readily available funds in value equal to the
value ascribed to such asset in the Strategic Partnering Agreement within six
months of the receipt of such asset by Hemispherx. This program
presently includes Dr. William Carter, CEO, Dr. Chaunce Bogard, strategic
consultant, The Sage Group (strategic advisor firm), Anthony Bonelli, our former
President and Chief Operating Officer, Dr. David R. Strayer, Medical Director
and all of our active full-time employees as of January 1, 2009.
From the
inception through its March 31, 2010 expiration, Hemispherx paid no compensation
related to the Goal Achievement Incentive Program.
Employee
Bonus Pool Program
An
element of the Employee Wage Or Hours Reduction Program was the establishment of
a Bonus Pool (the “Pool”) in the case of FDA Approval (“Approval”) of
Ampligen®. This bonus is to award to each employee of record at
January 1, 2009 a pretax sum of 30% in wages, calculated on their base salary
per annum compensation at the time of the Approval, and awarded within three
months of Approval. Participants who terminate their employment prior
to the Approval will not qualify for this bonus.
For the
year ending 2009, Hemispherx paid no compensation related to the Employee Bonus
Pool Program.
7
Stock
Options
The
Compensation Committee believes that long-term performance is achieved through
an ownership culture that encourages such performance by our NEO, non-officer
executives and all employees through the use of stock and stock-based
awards. Our stock plans have been established to provide our
employees, including our NEO and senior non-officer executives, with incentives
to help align their interests with the interests of
stockholders. Accordingly, the Compensation Committee believes that
the use of stock and stock-based awards offers the best approach to achieving
long-term performance goals because:
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·
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Stock
options align the interests of executives and employees with those of the
stockholders, support a pay-for-performance culture, foster employee stock
ownership, and focus the management team on increasing value for the
stockholders;
|
|
·
|
Stock
options are performance based. All the value received by the
recipient of a stock option is based on the growth of the stock
price;
|
|
·
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Stock
options help to provide a balance to the overall executive compensation
program as base salary and our discretionary annual bonus program focus on
short-term compensation, while the vesting of stock options increases
stockholder value over the longer term;
and
|
|
·
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The
vesting period of stock options encourages executive retention and the
preservation of stockholder value.
|
We have
historically elected to use stock options as the primary long-term equity
incentive vehicle and expect to continue to use stock options as a long-term
incentive vehicle. We have adopted stock ownership guidelines and our
stock compensation plans have provided the principal method, other than through
direct investment for our executive officers to acquire equity in our
Company. The Compensation Committee believes that the annual
aggregate value of these awards should be set near competitive median levels for
comparable companies. However, in the early stage of our business, we
provided a greater portion of total compensation to our executives through our
stock compensation plans than through cash-based compensation.
In
determining the number of stock options to be granted to NEO, non-officer
executives and employees, we take into account the individual's position, scope
of responsibility, ability to affect profits and stockholder value and the
individual's historic and recent performance and the value of stock options in
relation to other elements of the individual's total compensation.
Our stock
plans authorize us to grant options to purchase shares of common stock to our
NEO, employees, Directors and consultants. Our Compensation Committee
oversees the administration of our stock option plan. The
Compensation Committee reviews and recommends approval by our Board of Directors
of stock option awards to NEO based upon a review of competitive compensation
data, its assessment of individual performance, a review of each executive's
existing long-term incentives and retention considerations. Periodic
stock option grants are made at the discretion of the Board of Directors upon
recommendation of the Compensation Committee to eligible NEO and employees and,
in appropriate circumstances, the Compensation Committee considers the
recommendations of the CEO.
In 2008,
the Compensation Committee and the Board authorized the renewal of expiring
options for certain named executives in the amounts indicated in the section
entitled "Stock Option Grants to Executive Officers”. Grants were
made to certain of our employees based on past performance, particularly, those
who worked hard and diligently on the preparation of our NDA. Stock
options granted by us have an exercise price equal to the fair market value of
our common stock on the day of grant and typically vest over a period of years
based upon continued employment, and generally expire ten years after the date
of grant. Incentive stock options also include certain other terms
necessary to assure compliance with the Internal Revenue Code.
8
In 2009,
Robert Dickey IV was the only employee granted stock options as an element of
his acceptance of the Senior Vice President position on June 11,
2009. He was granted the option to purchase 150,000 shares of
Hemispherx common stock at an exercise price of $2.81 per share, or 110% of the
$2.55 closing price of the stock on the NYSE Amex. These options are
designed to vest proportionately over each month for four years beginning July
1, 2009.
Other
Compensation
We
provide the following benefits to our NEO generally on the same bases as
benefits provided to all full-time employees:
|
·
|
Health,
vision and dental insurance;
|
|
·
|
Life
insurance;
|
|
·
|
Short
and long-term disability insurance;
|
|
·
|
401(k)
with company match of up to 6% of employee’s
contribution.
|
The
Compensation Committee believes that these benefits are consistent with those
offered by other companies, specifically those provided by our
peers. Occasionally, certain executives separately negotiate other
benefits in addition to the benefits described above. Such additional
benefits were provided in 2009 to Dr. William Carter, Chairman & CEO as an
element of his employment:
|
·
|
Automobile
allowance;
|
|
·
|
Reimbursement
of home office and phone expenses;
|
|
·
|
Supplementary
life insurance policies;
|
|
·
|
Incentive
bonus of 0.5% of the gross proceeds received by us from any joint venture
or corporate partnering
arrangement.
|
401(k)
Plan
In December 1995, we established a
defined contribution plan, effective January 1, 1995, entitled the Hemispherx
Biopharma employees 401(k) Plan and Trust Agreement. All of our
full-time employees are eligible to participate in the 401(k) plan following one
year of employment. Subject to certain limitations imposed by federal
tax laws, participants are eligible to contribute up to 15% of their salary
(including bonuses and/or commissions) per annum. Through March 14,
2008, Participants' contributions to the 401(k) plan were matched by Hemispherx
at a rate determined annually by the Board of Directors. Each
participant immediately vests in his or her deferred salary contributions, while
our contributions will vest over one year.
Effective
March 15, 2008 and continuing through December 31, 2009, we halted our matching
of 401(k) contributions provided to the account for each eligible
participant. Effective January 1, 2010, our Compensation Committee
reestablished Hemispherx’ 100% matching of up to 6% of the 401(k) contributions
provided to the account for each eligible participant, including without
exception each eligible Named Executive Officer.
9
Key
Employee Retention
On
December 31, 2008, we entered into a severance/consulting agreement with the
former Chief Financial Officer, Robert E. Peterson. This agreement
provide a monthly fee of $4,000 plus travel expenses and Options to purchase
20,000 shares of the our common stock at the end of each calendar quarter
through year-end 2011 in return for consulting services. The exercise
price of the Options is to be equal to 120% of the closing price of the our
stock on the NYSE Amex on the last trading day of the calendar quarter for which
the Options are
being issued. Additionally, the severance/consulting agreement allows
for the possibility of a one percent fee to be paid to Mr. Peterson in the event
of financial transactions to raise capital for a maximum potential pay-out value
of $518,328 (two times the amount of compensation paid to Peterson by the
Company for calendar year 2008). Mr.
Peterson may terminate the Advisory Services at any time upon giving us sixty
(60) days notice in writing of the intention to terminate his Advisory
Services.
Severance
Upon termination of employment, most
NEO are entitled to receive severance payments under their employment and/or
engagement agreements. In determining whether to approve and setting
the terms of such severance arrangements, the Compensation Committee recognizes
that executives, especially highly ranked executives, often face challenges
securing new employment following termination.
The Compensation Committee
believes that our current CEO, Sr. Vice President and Vice President of
Operations severance agreements are generally in line with severance packages
offered to executives officers of the companies of similar size to us
represented in the compensation data we reviewed. Mr.
Bernhardt and Dr. Strayer are not covered under a severance agreement and any
severance benefits payable to them under similar circumstances would be
determined by the Compensation Committee in its discretion. See
“Estimated Payments Following Severance — Current Named Executive Officers”
below.
The
Compensation Committee of our Board of Directors oversees Hemispherx’
compensation program on behalf of the Board. In fulfilling its
oversight responsibilities, the Committee reviewed and discussed with Management
the Executive Compensation Discussion and Analysis set forth in this amendment
to Form 10-K for the fiscal year ended December 31, 2009.
In
reliance on the review and discussions referred to above, the Committee
recommended to the Board that the Executive Compensation Discussion and Analysis
be included in Hemispherx’ Annual Report on Form 10-K for the fiscal year ended
December 31, 2009 and Hemispherx’ Proxy Statement to be filed in connection with
Hemispherx’ 2010 Annual Meeting of Stockholders.
COMPENSATION
COMMITTEE
|
|
Dr.
Iraj E. Kiani, N.D., Committee Chair
|
|
William
Mitchell, M.D.
|
|
Richard
Piani
|
The
foregoing Compensation Committee report shall not be deemed incorporated by
reference into any filing under the Securities Act of 1933 or the Securities
Exchange Act of 1934, and shall not otherwise be deemed filed under these acts,
except to the extent we incorporate by reference into such
filings.
10
COMPENSATION
COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
Our
Compensation Committee of the Board of Directors, consisting of Dr. Iraj E.
Kiani, N.D., the Committee Chair, William Mitchell, M.D. and, Richard Piani are
all independent directors. There are no interlocking
relationships.
11
EXECUTIVE
COMPENSATION
The
following table provides information on the compensation during the fiscal years
ended December 31, 2007, 2008 and 2009 of our Chief Executive Officer, Chief
Financial Officers and three other most highly compensated executive officers,
constituting the NEO, in 2009 for each fiscal year.
Summary
Compensation Table
Change
|
||||||||||||||||||||||||||||||||||
in
|
||||||||||||||||||||||||||||||||||
Pension
|
||||||||||||||||||||||||||||||||||
Valued
|
||||||||||||||||||||||||||||||||||
and
|
||||||||||||||||||||||||||||||||||
Option
|
Non-Equity
|
NQDC
|
||||||||||||||||||||||||||||||||
Name & Principal
|
Salary
/
|
Stock
|
Awards
|
Incentive
Plan
|
Earnings
|
All
Other
|
||||||||||||||||||||||||||||
Position
|
Year
|
Fees (7)
|
Bonus
|
Awards
|
(3)
|
Compensation
|
($)
|
Compensation
|
Total
|
|||||||||||||||||||||||||
William
A. Carter
|
2009
|
$ | 554,105 | $ | 482,072 | (8)(9) | $ | 188,311 | (7) | $ | -0- | $ | -0- | — | $ | 76,896 | (4) | $ | 1,301,384 | |||||||||||||||
Chief
Executive
|
2008
|
$ | 664,624 | $ | -0- | $ | -0- | $ | 316,571 | (10) | $ | -0- | — | $ | 106,094 | (5) | $ | 1,087,289 | ||||||||||||||||
Officer
|
2007
|
$ | 637,496 | $ | 166,156 | $ | -0- | $ | 1,688,079 | $ | -0- | — | $ | 123,063 | (6) | $ | 2,614,794 | |||||||||||||||||
Charles
T. Bernhardt
|
2009
|
$ | 134,662 | $ | 44,000 | (9) | $ | 45,334 | (7) | $ | -0- | $ | -0- | — | $ | 9,380 | (11) | $ | 233,376 | |||||||||||||||
Chief
Financial
|
2008
|
$ | -0- | $ | -0- | $ | -0- | $ | -0- | $ | -0- | — | $ | 26,000 | (1) | $ | 26,000 | |||||||||||||||||
Officer
(1)
|
2007
|
$ | -0- | $ | -0- | $ | -0- | $ | -0- | $ | -0- | — | $ | -0- | $ | -0- | ||||||||||||||||||
David
Strayer
|
2009
|
$ | 167,484 | $ | 194,306 | (8)(9) | $ | 53,054 | (7) | $ | -0- | $ | -0- | — | $ | 3,229 | (11) | $ | 418,073 | |||||||||||||||
Medical
Director
|
2008
|
$ | 201,389 | $ | -0- | $ | -0- | $ | 16,168 | (10) | $ | -0- | — | $ | -0- | $ | 217,557 | |||||||||||||||||
2007
|
|
$ | 240,348 | $ | 50,347 | $ | -0- | $ | 79,810 | $ | -0- | — | $ | -0- | $ | 370,505 | ||||||||||||||||||
Robert
Dickey (2)
|
2009
|
$ | 152,131 | $ | -0- | $ | -0- | $ | 252,312 | $ | -0- | — | $ | 4,824 | (11) | $ | 409,267 | |||||||||||||||||
Sr.
Vice President
|
2008
|
$ | -0- | $ | -0- | $ | -0- | $ | -0- | $ | -0- | — | $ | -0- | $ | -0- | ||||||||||||||||||
2007
|
|
$
|
-0- | $ | -0- | $ | -0- | $ | -0- | $ | -0- | — | $ | -0- | $ | -0- | ||||||||||||||||||
Wayne
Springate
|
2009
|
$ |
126,250
|
$ | 33,000 | (9) | $ | 42,500 | (7) | $ | -0- | $ | -0- | — | $ | 3,229 | (11) | $ | 204,979 | |||||||||||||||
V.P.,
Operations
|
2008
|
$ | 150,000 | $ | -0- | $ | -0- | $ | -0- | $ | -0- | — | $ | 7,354 | (12) | $ | 157,354 | |||||||||||||||||
2007
|
$ | 150,000 | $ | 37,500 | $ | -0- | $ | 36,253 | $ | -0- | — | $ | 13,429 | (12) | $ | 237,182 |
Notes:
(1)
|
Mr.
Bernhardt transitioned from the role of a contract consultant in
4th
Quarter 2008 to Chief Financial Officer
|
|
effective January 1, 2009. |
(2)
|
Mr.
Dickey joined Hemispherx effective June 11, 2010 and was granted the
Options to purchase Hemispherx common stock as an element of his
Employment Agreement.
|
(3)
|
Based
on Black-Scholes pricing model of valuing
options.
|
(4)
|
Consists
of a) Life Insurance premiums totaling $38,679; b) Healthcare premiums of
$28,586; and d) Company car expenses of
$9,631.
|
(5)
|
Consists
of a) Life Insurance premiums totaling $66,411; b) Healthcare premiums of
$28,586; and d) Company car expenses of
$11,097.
|
(6)
|
Consists
of a) Life Insurance premiums totaling $63,627; b) Healthcare premiums of
$28,586; d) Company car expenses of $12,017; and 401(k) matching funds of
$18,833.
|
(7)
|
Hemispherx’
“Employee Wage Or Hours Reduction Program” allowed an individual to
elected a 50% reduction in salary/fees which would them to be eligible for
an incentive award of three times the value of Stock based on the average
NYSE Amex closing value of the stock during the respective months of
January through May, 2009. The value was obtained using the Black-Scholes
pricing model for stock based
compensation.
|
(8)
|
On
May 20, 2009, our Board of Directors awarded bonuses of $300,000 to Dr.
William Carter, and $150,000 to Dr. David Strayer in recognition for their
accomplishment of 2008 corporate goals and
objectives.
|
12
(9)
|
OnFebruary
8, 2009, our Board of Directors awarded bonuses to certain NEO and senior,
non-officer executives in recognition for their achievement towards of
2009 Company-wide and individual
goals.
|
(10)
|
Issueof
options for options previously granted that expired
unexercised.
|
(11)
|
Consistsof
Healthcare premiums.
|
(12)
|
Consists
of Healthcare premiums and 401(k) matching
funds.
|
Grants
Of Plan Based Awards
Name
|
Grant Date
(3)
|
Estimated Future Payouts Under
Non-Equity
Incentive Plan
Awards(1)
|
Estimated
Future Payouts
Under
Equity Incentive Plan
Awards
|
All
Other
Stock
Awards:
Number
of
Shares
of
Stock
or
Units
(#)
|
All
Other
Option
Awards:
Number
of
Securities
of
Underlying
Options
(#)(2)
|
Exercise
or
Base
Price
of
Option
Awards
($/Sh)
|
Grant
Date
Fair
Value
of
Stock
and
Option
Awards
($)
|
|||||||||||||||||||||||||||||||||||||
Threshold
($)
|
Target
($)
|
Maximum
($)
|
Threshold
($)
|
Target
($)
|
Maximum
($)
|
|||||||||||||||||||||||||||||||||||||||
William
A. Carter,
|
N/A | — | 146,217 | 182,771 | — | — | — | — | — | $ | — | — | ||||||||||||||||||||||||||||||||
Chief
Executive Officer
|
||||||||||||||||||||||||||||||||||||||||||||
Charles
T. Bernhardt,
|
N/A | — | 38,720 | 44,000 | — | — | — | — | — | $ | — | — | ||||||||||||||||||||||||||||||||
Chief
Financial Officer
|
||||||||||||||||||||||||||||||||||||||||||||
David
Strayer,
|
N/A. | — | 44,306 | 55,363 | — | — | — | — | — | $ | — | — | ||||||||||||||||||||||||||||||||
Medical
Director
|
||||||||||||||||||||||||||||||||||||||||||||
Robert
Dickey,
|
N/A. | — | 55,000 | 68,750 | — | — | — | — | — | $ | — | — | ||||||||||||||||||||||||||||||||
Senior
Vice President
|
6/11/2009
|
131,200 | $ | 2.55 | 252,312 | |||||||||||||||||||||||||||||||||||||||
Wayne
Springate,
|
N/A. | — | 33,000 | 41,250 | — | — | — | — | — | $ | — | — | ||||||||||||||||||||||||||||||||
V.P.,
Operations
|
Notes:
(1)
|
For
2009, the Compensation Committee did not establish or estimate possible
future payouts to the NEO under a Cash Bonus Plan. Using
existing Employment Agreements as a benchmark, the “Target” was estimated
at 20% of Base Salary and “Maximum” estimated at 25% of Base
Salary. Details regarding all of which reported as Non-Equity
Incentive Plan Compensation in the 2009 is reported in the Summary
Compensation Table above.
|
(2)
|
Consists
of stock options awarded during 2009 under our 2009 Equity Incentive
Plan. The stock option awards vest 25% on each of the first
four anniversaries of the grant date. The stock options have a
ten-year term and an exercise price equal to 110% of the closing market
price of the our common stock on the date of
grant.
|
(3)
|
N/A
represents Not Applicable.
|
13
Outstanding
Equity Awards At Fiscal Year End
Option
Awards
|
Stock
Awards
|
||||||||||||||||||||||||||||||||
Name
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
Number
of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
|
Equity
Incentive Plan
Awards:
Number
of
Securities
Underlying
Unexercised
Unearned
Options
(#)
|
Option
Exercise
Price
($)
|
Option
Expiration
Date
|
Number of
Shares
or
Units
of
Stock
That
Have
Not
Vested
(#)
|
Market Value
of
Shares or
Units of Stock
That Have Not
Vested
($)
|
Equity
Incentive
Plan
Awards:
Number
of
Unearned
Shares,
Units
or
Other
Rights
That
Have
Not
Vested (#)
|
Equity
Incentive
Plan Awards:
Market
or
Payout
Value
of
Unearned
Shares,
Units
or
Other
Rights
that
Have
Not
Vested
(#)
|
||||||||||||||||||||||||
Willam
A. Carter,
|
1,450,000 | 0 | 0 | 2.20 |
09/17/18
|
||||||||||||||||||||||||||||
Chief
Executive Officer
|
1,000,000 | 0 | 0 | 2.00 |
09/9/17
|
||||||||||||||||||||||||||||
190,000 | 0 | 0 | 4.00 |
02/18/18
|
|||||||||||||||||||||||||||||
73,728 | 0 | 0 | 2.71 |
12/31/10
|
|||||||||||||||||||||||||||||
10,000 | 0 | 0 | 4.03 |
01/3/11
|
|||||||||||||||||||||||||||||
167,000 | 0 | 0 | 2.60 |
09/7/14
|
|||||||||||||||||||||||||||||
153,000 | 0 | 0 | 2.60 |
012/7/14
|
|||||||||||||||||||||||||||||
100,000 | 0 | 0 | 1.75 |
04/26/15
|
|||||||||||||||||||||||||||||
465,000 | 0 | 0 | 1.86 |
06/30/15
|
|||||||||||||||||||||||||||||
70,000 | 0 | 0 | 2.87 |
12/9/15
|
|||||||||||||||||||||||||||||
300,000 | 0 | 0 | 2.38 |
01/1/16
|
|||||||||||||||||||||||||||||
10,000 | 0 | 0 | 2.61 |
12/9/15
|
|||||||||||||||||||||||||||||
376,650 | 0 | 0 | 3.78 |
02/22/16
|
|||||||||||||||||||||||||||||
1,400,000 | 0 | 0 | 3.50 |
09/30/17
|
|||||||||||||||||||||||||||||
Charles
T. Bernhardt
|
0 | 0 | 0 | 0 | |||||||||||||||||||||||||||||
Chief Financial Officer
|
|||||||||||||||||||||||||||||||||
David
Strayer,
|
50,000 | 0 | 0 | 2.00 |
09/9/17
|
||||||||||||||||||||||||||||
Medical
Director
|
50,000 | 0 | 0 | 4.00 |
02/28/18
|
||||||||||||||||||||||||||||
10,000 | 0 | 0 | 4.03 |
01/3/11
|
|||||||||||||||||||||||||||||
20,000 | 0 | 0 | 3.50 |
01/23/07
|
|||||||||||||||||||||||||||||
10,000 | 0 | 0 | 1.90 |
12/14/14
|
|||||||||||||||||||||||||||||
10,000 | 0 | 0 | 2.61 |
12/8/15
|
|||||||||||||||||||||||||||||
15,000 | 0 | 0 | 2.20 |
11/20/16
|
|||||||||||||||||||||||||||||
16,667 | 8,333 | 0 | 1.30 |
12/6/17
|
|||||||||||||||||||||||||||||
Robert
Dickey,
|
18,750 | 131,250 | 0 | 2.55 |
06/11/19
|
||||||||||||||||||||||||||||
Sr.
Vice President
|
|||||||||||||||||||||||||||||||||
Wayne
Springate,
|
1,812 | 0 | 0 | 1.90 |
12/7/14
|
||||||||||||||||||||||||||||
V.P.,
Operations
|
2,088 | 0 | 0 | 2.61 |
12/8/15
|
||||||||||||||||||||||||||||
5,000 | 0 | 0 | 2.20 |
11/20/16
|
|||||||||||||||||||||||||||||
20,000 | 0 | 0 | 1.78 |
04/30/17
|
|||||||||||||||||||||||||||||
13,333 | 6,667 | 0 | 1.30 |
12/6/17
|
14
Option
Exercises And Stock Vested
Option Awards
|
Stock Awards
|
|||||||||||||||
Name and Principal Position
|
Number of Shares
Acquired on Exercise (#)
|
Value Realized on
Exercise ($)
|
Number of Shares
Acquired on Vesting (#)
|
Value Realized
on Vesting ($)
|
||||||||||||
William
A. Carter,
|
— | — | — | — | ||||||||||||
Chief
Executive Officer
|
||||||||||||||||
Charles
T. Bernhardt,
|
— | — | — | — | ||||||||||||
Chief
Financial Officer
|
||||||||||||||||
David
Strayer,
|
— | — | — | — | ||||||||||||
Medical
Director
|
||||||||||||||||
Robert
Dickey,
|
— | — | — | — | ||||||||||||
Senior
Vice President
|
||||||||||||||||
Wayne
Springate,
|
— | — | — | — | ||||||||||||
VP,
Operations
|
Payments
on Disability
Each
current Named Executive Officer has the same short and long-term disability
coverage which are available to all eligible employees. The coverage
for short-term disability provides up to six months of full salary continuation
up to 60% of weekly pay, less other income, with a $1,500 weekly maximum
limit. The coverage for group long-term disability provides coverage
at the exhaustion of short-term disability benefits of full salary continuation
up to 60% of monthly pay, less other income, with a $10,000 monthly maximum
limit. The maximum benefit period for the group long-term disability
coverage is 60 months for those age 60 and younger at the time of the claim with
the coverage period proportionately reduced with the advanced age of the
eligible employee to a minimum coverage period of 12 months for those of 69
years old and elder as of the date of the claim.
Payments
on Death
Each NEO
has group life insurance along with accidental death and dismemberment benefits
which are available to all eligible employees. The benefit is equal
to two times current salary or wage with a maximum limit of $300,000, plus any
supplemental life insurance elected and paid for by the
NEO. Additionally, William A. Carter, Chief Executive Officer’s
beneficiaries will also receive a benefit of $4,850,000 payable under the terms
of a term life insurance policies paid for by us.
Estimated
Payments Following Severance — Current Named Executive Officers
We have
employment agreements with Dr. Carter, Mr. Dickey and Mr. Springate that entitle
them to severance benefits on certain types of employment terminations not
related to a change in control. Mr. Bernhardt and Dr. Strayer are not covered
under a general severance plan and any severance benefits payable to them under
similar circumstances would be determined by the Compensation Committee in its
discretion. The dollar amounts below assume that the termination occurred on
December 31, 2009. The actual dollar amounts to be paid can only be determined
at the time of the NEO’s separation from Hemispherx based on their prevailing
compensation and employment agreements along with any determination by the
Compensation Committee in its discretion.
15
Name
|
Event
|
Cash
Severance
($)
|
Value of
Stock
Awards
That
Will
Become
Vested ($)
|
Continuation of
Medical Benefits
(1) ($)
|
Additional
Life
Insurance
(2) ($)
|
Total
($)
|
||||||||||||||||
William
A. Carter
|
Involuntary
(no cause)
|
731,086 | — | 67,265 | — | 798,351 | ||||||||||||||||
Chief
Executive Officer
|
Termination
(for cause)
|
— | — | — | — | — | ||||||||||||||||
Death
or disability
|
731,086 | — | 134,530 | — | 865,616 | |||||||||||||||||
Termination
by employee or retirement
|
60,924 | — | 5,605 | — | 66,529 | |||||||||||||||||
Charles
T. Bernhardt
|
Involuntary
(no cause)
|
6,769 | — | — | — | 6,769 | ||||||||||||||||
Chief
Financial Officer
|
Termination
(for cause)
|
6,769 | — | — | — | 6,769 | ||||||||||||||||
Death
or disability
|
— | — | — | — | — | |||||||||||||||||
Termination
by employee or retirement
|
6,769 | — | — | — | 6,769 | |||||||||||||||||
David
Strayer
|
Involuntary
(no cause)
|
— | — | — | — | — | ||||||||||||||||
Medical
Director
|
Termination
(for cause)
|
— | — | — | — | — | ||||||||||||||||
Death
or disability
|
— | — | — | — | — | |||||||||||||||||
Termination
by employee or retirement
|
— | — | — | — | — | |||||||||||||||||
Robert
Dickey
|
Involuntary
(no cause)
|
68,750 | — | — | — | 68,750 | ||||||||||||||||
Senior
Vice President
|
Termination
(for cause)
|
10,577 | — | — | — | 10,577 | ||||||||||||||||
Death
or disability
|
— | — | — | — | — | |||||||||||||||||
Termination
by employee or retirement
|
10,577 | — | — | — | 10.577 | |||||||||||||||||
Wayne
Springate
|
Involuntary
(no cause)
|
165,000 | — | — | — | 165,000 | ||||||||||||||||
VP,
Operations
|
Termination
(for cause)
|
— | — | — | — | — | ||||||||||||||||
Death
or disability
|
41,250 | — | — | — | 41,250 | |||||||||||||||||
Termination
by employee or retirement
|
13,750 | — | — | — | 13,750 |
16
Notes:
(1)
|
This
amount reflects the current premium incremental cost to us for
continuation of elected benefits to the extent required under an
applicable agreement.
|
(2)
|
The
life insurance benefit represents additional life insurance paid for by us
over the standard coverage.
|
Payments
On Termination in Connection With a Change in Control - Current Named Executive
Officers
We have
employment agreements with Dr. Carter and Mr. Dickey that entitle them to
severance benefits on certain types of employment terminations related to a
change in control. Mr. Bernhardt, Dr. Strayer and Mr. Springate are
not covered under a severance plan specific to a change in control with
severance benefits payable to them under similar circumstances to be determined
by the Compensation Committee in its discretion. The dollar
amounts below assume that the termination occurred on December 31,
2009. The actual dollar amounts to be paid can only be determined at
the time of the NEO’s separation from Hemispherx based on their prevailing
compensation and employment agreements along with any determination by the
Compensation Committee in its discretion.
Definition of
“Change in Control”. For
each agreement, a “Change in Control” is defined generally as any such event
that requires a report to the Security & Exchange Commission (“SEC”), but
includes any of the following:
·
|
Any person or entity other than
Hemispherx, any of our current directors or officers or a trustee or
fiduciary holding our securities, becomes the beneficial owner of more
than 50% of the combined voting power of our outstanding
securities;
|
·
|
An acquisition, sale, merger or
other transaction that results in a change in ownership of more than 50%
of the combined voting power of our stock or the sale/transfer of more
than 75% of our assets;
|
·
|
A change in the majority of our
Board of Directors over a two-year period that is not approved by at least
two-thirds of the directors then in office who were directors at the
beginning of the period; or
|
·
|
Execution of an agreement with
Hemispherx, which if consummated, would result in any of the above
events.
|
Definition of
“Constructive Termination”. A “Constructive Termination”
generally includes any of the following actions taken by Hemispherx without the
executive’s written consent following a change in control:
·
|
Significantly
reducing or diminishing the nature or scope of the executive’s authority
or duties;
|
17
·
|
Materially reducing the
executive’s annual salary or incentive compensation
opportunities;
|
·
|
Changing the executive’s office
location so that he must commute more than 50 miles, as compared to his
commute as of the date of the
agreement;
|
·
|
Failing to provide substantially
similar fringe benefits, or substitute benefits that were substantially
similar taken as a whole, to the benefits provided as of the date of the
agreement; or
|
·
|
Failing to obtain a satisfactory
agreement from any successor to Hemispherx to assume and agree to perform
the obligations under the
agreement.
|
However,
no constructive termination occurs if the executive:
·
|
Fails to give us written notice
of his intention to claim constructive termination and the basis for that
claim at least 10 days in advance of the effective date of the executive’s
resignation; or
|
·
|
We cure the circumstances giving
rise to the constructive termination before the effective date of the
executive’s resignation.
|
Estimated
Benefits on Termination Following a Change in Control — December 31,
2009
The
following table shows potential payments to the NEO if their employment
terminates following a change in control under existing contracts, agreements,
plans or arrangements. The amounts assume a December 31, 2009
termination date and use the closing price of $0.56 for our common stock as of
December 31, 2009.
Name
|
Aggregate
Severance
Pay ($)
|
PVSU
Acceleration
(3) ($)
|
Early
Vesting
of
Restricted
Stock (4)
($)
|
Early
Vesting
of Stock
Options
and SARs
(5) ($)
|
Acceleration
and
Vesting of
Supplemental
Award (6)
($)
|
Welfare
Benefits
Continuation
(7) ($)
|
Outplacement
Assistance
(8) ($)
|
Parachute
Tax
Gross-up
Payment
(9) ($)
|
Total
($)
|
|||||||||||||||||||||
William
A. Carter
|
3,641,573 | (1) | -0- | -0- | -0- | -0- | 201,795 | 35,000 | 1,745,266 | 5,623,634 | ||||||||||||||||||||
Charles
T. Bernhardt
|
-0- | -0- | -0- | -0- | -0- | -0- | -0- | -0- | -0- | |||||||||||||||||||||
David
Strayer
|
-0- | -0- | -0- | -0- | -0- | -0- | -0- | -0- | -0- | |||||||||||||||||||||
Robert
Dickey
|
412,500 | (2) | -0- | -0- | 220,773 | (10) | -0- | -0- | -0- | -0- | 633,273 | |||||||||||||||||||
Wayne
Springate
|
-0- | -0- | -0- | -0- | -0- | -0- | -0- | -0- | -0- |
Notes:
(1)
|
This
amount represents three times the sum of the NEO’s (a) highest annual base
salary in effect during the year of termination and (b) bonus received in
the prior year. These amounts are based on the salary rates in
effect on December 31, 2009 and bonuses paid during or related to
2009.
|
(2)
|
This
amount represents one and a half times the sum of the NEO’s (a) highest
annual base salary in effect during the year of termination and (b) bonus
received in the prior year. These amounts are based on the
salary rates in effect on December 31, 2009 and bonuses paid during or
related to 2009.
|
(3)
|
This
amount represents the payout of all outstanding performance-vesting share
units (“PVSU”) awards on a change in control at the target payout level
with each award then pro-rated based on the time elapsed for the
applicable three-year performance
period.
|
18
(4)
|
This
amount represents the value of all unvested restricted awards which would
become vested on a change in control (whether or not the awards were
deferred). The amount would be calculated by multiplying an
NEO’s number of unvested shares by the fair market value of a single share
on December 31, 2009, which was
$0.56.
|
(5)
|
This
amount is the intrinsic value [fair market value on December 31, 2009
($0.56 per share) minus the per share exercise price] of all unvested
stock options for each NEO, including Stock Appreciation Rights
(“SAR”). Any option with an exercise price of greater than fair
market value was assumed to be cancelled for no consideration and,
therefore, had no intrinsic
value.
|
(6)
|
This
amount represents the payout of the supplemental award on a change in
control at the target payout level with each award then pro-rated based on
the time elapsed for the applicable three-year performance
period.
|
(7)
|
This
amount represents the employer-paid portion of the premiums for medical,
dental and life insurance
coverage.
|
(8)
|
This
amount represents the estimated cost of providing outplacement
assistance.
|
(9)
|
This
amount reflects the gross-up an NEO would receive if he is subject to
income tax under Internal Revenue Code, Commonwealth of Pennsylvania and
City of Philadelphia. The estimated gross-up is calculated
using the assumption of a 45% tax imputed amount on the total value of all
elements in the severance
agreement.
|
(10)
|
Based
on aBlack-Scholes
pricing model of valuing options utilizing the fair market value of
a single share on December 31, 2009, which was
$0.56.
|
Available
Information
Our
Internet website is www.hemispherx.net and you may find our SEC filings in the
“Investor Relations” under “SEC Filings”. We provide access to our
filings with the SEC, free of charge through www.sec.gov, as soon as reasonably
practicable after filing with the SEC. Our Internet website and the
information contained on that website, or accessible from our website, is not
intended to be incorporated into this Annual Report on Form 10-K or any other
filings we make with the SEC.
Compensation
of Directors
Our
Compensation, Audit and Corporate Goverance Committees, consist of Dr. Iraj E.
Kiani, N.D., Compensation Committee Chair, William Mitchell, M.D., Goverance
Committee Chair, and Richard Piani, Audit Committee Chair, all of whom are
independent Board of Director members.
In 2008
and 2009, Non-employee Board member compensation consisted of an annual retainer
(“Directors’ fees”) of $150,000. In 2008 the Non-employee Board
members were paid two-thirds in cash and one-third in our common
stock. As a further cash conservation measure for first three months
of 2009, the Non-employee Board Member Compensation was paid 16.7% in cash and
83.3% in our common stock. Effective April 1, 2009, the Non-employee
Board members returned to being paid 100% in cash for their proportionate
portion of annual retainer. On September 9, 2003, the Directors
approved a 10 year plan which authorizes up to 1,000,000 shares for use in
supporting this compensation plan. The number of shares paid shall
have a value of $12,500 or $31,250 with the value of the shares being determined
by the closing price of our common stock on the NYSE Amex on the last day of the
calendar quarter. Director’s fees are paid quarterly at the end of
each calendar quarter.
19
On
November 28, 2008, Thomas K. Equels joined our Board of Directors as a
non-employee Board member in which his compensation of $150,000 for all director
fees were agreed to be paid in the form of our common stock. The
number of shares paid were determined by the closing price of our common stock
on the NYSE Amex on the last day of the calendar quarter. Effective
April 1, 2009, Mr. Equels began receiving payment in cash for his proportionate
portion of annual retainer.
Hemispherx
reimburses Directors for travel expenses incurred in connection with attending
board, committee, stockholder and special meetings along with other Company
business-related expenses. Hemispherx does not provide retirement
benefits or other perquisites to non-employee Directors under any current
program.
All
Directors have been granted options to purchase common stock under our Stock
Option Plans and/or Warrants to purchase common stock. We believe
such compensation and payments are necessary in order for us to attract and
retain qualified outside directors. To the extent that Share
Compensation would exceed 1,000,000 shares in the aggregate for the ten year
period commencing January 1, 2003 as previously approved by Resolution of the
Board of September 9, 2003, shares for Share Compensation shall be issued under
the our 2007 Equity Incentive Plan.
Commencing
as of January 1, 2010, Board member Directors’ fee compensation was increased to
an annual retainer of $165,000. Director’s fees will continue to be
paid in cash quarterly at the end of each calendar quarter.
Director
Compensation - 2009
Name and
Title
|
Fees
Earned
or Paid
in Cash
($)
|
Stock
Awards
($)
|
Option
Awards
($)
(2)
|
Non-
Equity
Incentive
Plan
Compensation ($)
|
Change in
Pension
Value and
Nonqualified
Deferred
Compensation
Earnings ($)
|
All Other
Compensation ($)
|
Total
($)
|
||||||||||||||||
T.
Equels, Director, Secretary & General Counsel
|
112,500 | 37,500 | 0 | 0 | 0 | 386,809 | (1) | 536,809 | |||||||||||||||
W.
Mitchell, Director
|
118,750 | 31,250 | 0 | 0 | 0 | 0 | 150,000 | ||||||||||||||||
R.
Piani, Director
|
118,750 | 31,250 | 0 | 0 | 0 | 0 | 150,000 | ||||||||||||||||
I.
Kiani, Director
|
118,750 | 31,250 | 0 | 0 | 0 | 39,764 | (3) | 189,764 |
Notes:
(1)
|
General
Counsel fees as per Engagement
Agreement.
|
(2)
|
No
options were awarded in 2009.
|
(3)
|
Director
was unintentionally overlooked in the September 10, 2007 issuance of an
option to purchase 100,000 shares of our common stock at the original
valuation of $67,406. This payment was based on the
Black-Scholes valuation of these options at December 4,
2009.
|
20
ITEM
15. Exhibits and Financial Statement Schedules.
(a)
|
Financial
Statements and Schedules - See index to financial statements on page F-1
of this Annual Report.
|
All other
schedules called for under regulation S-X are not submitted because they are not
applicable or not required, or because the required information is included in
the financial statements or notes thereto.
(b)
|
Exhibits
- See exhibit index below.
|
Except as
disclosed in the footnotes, the following exhibits were filed with the
Securities and Exchange Commission as exhibits to our Form S-1 Registration
Statement (No. 33-93314) or amendments thereto and are hereby incorporated by
reference:
Exhibit | ||
No.
|
Description
|
|
1.1
|
Engagement
Letter between the Company and Rodman & Renshaw, LLC.
(23)
|
|
2.1
|
First
Asset Purchase Agreement dated March 11, 2003, by and between the Company
and ISI.(1)
|
|
2.2
|
Second
Asset Purchase Agreement dated March 11, 2003, by and between the Company
and ISI.(1)
|
|
3.1
|
Amended
and Restated Certificate of Incorporation of the Company, as amended,
along with Certificates of Designations.
|
|
3.1.1
|
Series
E Preferred Stock.
|
|
3.2
|
Amended
and Restated By-laws of Registrant. (17)
|
|
4.1
|
Specimen
certificate representing our Common Stock.
|
|
4.2
|
Rights
Agreement, dated as of November 19, 2002, between the Company and
Continental Stock Transfer & Trust Company. The Right Agreement
includes the Form of Certificate of Designation, Preferences and Rights of
the Series A Junior Participating Preferred Stock, the Form of Rights
Certificate and the Summary of the Right to Purchase Preferred
Stock.(2)
|
|
4.3
|
Form
of 6% Convertible Debenture of the Company issued in March
2003.(1)
|
|
4.4
|
Form
of Warrant for Common Stock of the Company issued in March
2003.(1)
|
|
4.5
|
Form
of Warrant for Common Stock of the Company issued in June
2003.(3)
|
|
4.6
|
Form
of 6% Convertible Debenture of the Company issued in July
2003.(4)
|
|
4.7
|
Form
of Warrant for Common Stock of the Company issued in July
2003.(4)
|
|
4.8
|
Form
of 6% Convertible Debenture of the Company issued in October
2003.(5)
|
|
4.9
|
Form
of Warrant for Common Stock of the Company issued in October
2003.(5)
|
|
4.10
|
Form
of 6% Convertible Debenture of the Company issued in January
2004.(6)
|
|
4.11
|
Form
of Warrant for Common Stock of the Company issued in January
2004.(6)
|
|
4.12
|
Form
of Warrant for Common Stock of the Company. (9)
|
|
4.13
|
Amendment
Agreement, effective October 6, 2005, by and among the Company and
debenture holders.(11)
|
|
4.14
|
Form
of Series A amended 7% Convertible Debenture of the Company (amending
Debenture due October 31, 2005).(11)
|
|
4.15
|
Form
of Series B amended 7% Convertible Debenture of the Company (amending
Debenture issued on January 26, 2004 and due January 31,
2006).(11)
|
21
4.16
|
Form
of Series C amended 7% Convertible Debenture of the Company (amending
Debenture issued on July 13, 2004 and due January 31,
2006).(11)
|
|
4.17
|
Form
of Warrant issued effective October 6, 2005 for Common Stock of the
Company.(11)
|
|
4.18
|
Form
of Commitment Warrant issued in February 2009 under the Standby Financing
Agreement.*
|
|
4.19
|
Form
of Indenture filed with Universal shelf registration statement.
(18)
|
|
4.20
|
Form
of Series I common stock purchase warrant pursuant to May 10, 2009
Securities Purchase Agreement. (23)
|
|
4.21
|
Form
of Series II common stock purchase warrant pursuant to May 10, 2009
Securities Purchase Agreement. (23)
|
|
4.22
|
Form
of common stock purchase warrant pursuant to May 18, 2009 Securities
Purchase Agreement. (24)
|
|
10.1
|
1990
Stock Option Plan.
|
|
10.2
|
1992
Stock Option Plan.
|
|
10.3
|
1993
Employee Stock Purchase Plan.
|
|
10.4
|
Form
of Confidentiality, Invention and Non-Compete
Agreement.
|
|
10.5
|
Form
of Clinical Research Agreement.
|
|
10.6
|
Form
of Collaboration Agreement.
|
|
10.7
|
Amended
and Restated Employment Agreement by and between the Company and Dr.
William A. Carter, dated as of July 1, 1993. (7)
|
|
10.8
|
Employment
Agreement by and between the Registrant and Robert E. Peterson, dated
April 1, 2001.
|
|
10.9
|
License
Agreement by and between the Company and The Johns Hopkins University,
dated December 31, 1980.
|
|
10.10
|
Technology
Transfer, Patent License and Supply Agreement by and between the Company,
Pharmacia LKB Biotechnology Inc., Pharmacia P-L Biochemicals Inc. and E.I.
du Pont de Nemours and Company, dated November 24,
1987.
|
|
10.11
|
Pharmaceutical
Use Agreement, by and between the Company and Temple University, dated
August 3, 1988.
|
|
10.12
|
Assignment
and Research Support Agreement by and between the Company, Hahnemann
University and Dr. David Strayer, Dr. lsadore Brodsky and Dr. David
Gillespie, dated June 30, 1989.
|
|
10.13
|
Lease
Agreement between the Company and Red Gate Limited Partnership, dated
November 1, 1989, relating to the Company's Rockville, Maryland
facility.
|
|
10.14
|
Agreement
between the Company and Bioclones (Proprietary)
Limited.
|
|
10.15
|
Amendment,
dated August 3, 1995, to Agreement between the Company and Bioclones
(Proprietary) Limited (contained in Exhibit 10.14).
|
|
10.16
|
Licensing
Agreement with Core BioTech Corp.
|
|
10.17
|
Licensing
Agreement with BioPro Corp.
|
|
10.18
|
Licensing
Agreement with BioAegean Corp.
|
|
10.19
|
Agreement
with Esteve.
|
|
10.20
|
Agreement
with Accredo (formerly Gentiva) Health Services.
|
|
10.21
|
Agreement
with Biovail Corporation International.
|
|
10.22
|
Forbearance
Agreement dated March 11, 2003, by and between ISI, the American National
Red Cross and the Company.(1)
|
|
10.23
|
Forbearance
Agreement dated March 11, 2003, by and between ISI, GP Strategies
Corporation and the Company.(1)
|
|
10.24
|
Securities
Purchase Agreement, dated March 12, 2003, by and among the Company and the
Buyers named therein.(1)
|
|
10.25
|
Registration
Rights Agreement, dated March 12, 2003, by and among the Company and the
Buyers named therein.(1)
|
|
10.26
|
Securities
Purchase Agreement, dated July 10, 2003, by and among the Company and the
Buyers named therein.(4)
|
|
10.27
|
Registration
Rights Agreement, dated July 10, 2003, by and among the Company and the
Buyers named therein.(4)
|
|
10.28
|
Securities
Purchase Agreement, dated October 29, 2003, by and among the Company and
the Buyers named therein.(5)
|
|
10.29
|
Registration
Rights Agreement, dated October 29, 2003, by and among the Company and the
Buyers named therein.(5)
|
22
10.30
|
Securities
Purchase Agreement, dated January 26, 2004, by and among the Company and
the Buyers named therein.(6)
|
|
10.31
|
Registration
Rights Agreement, dated January 26, 2004, by and among the Company and the
Buyers named therein.(6)
|
|
10.32
|
Memorandum
of Understanding with Fujisawa. (8)
|
|
10.33
|
Securities
Purchase Agreement, dated July 30, 2004, by and among the Company and the
Purchasers named therein.(9)
|
|
10.34
|
Registration
Rights Agreement, dated July 30, 2004, by and among the Company and the
Purchasers named therein. (9)
|
|
10.35
|
Agreement
for services of R. Douglas Hulse, (12)
|
|
10.36
|
Amended
and Restated Employment Agreement of Dr. William A. Carter.
(10)
|
|
10.37
|
Engagement
Agreement with Dr. William A. Carter. (10)
|
|
10.38
|
Amended
and restated employment agreement of Dr. William A. Carter
(12)
|
|
10.39
|
Amended
and restated engagement agreement with Dr. William A. Carter
(12)
|
|
10.40
|
Amended
and restated engagement agreement with Robert E. Peterson
(12)
|
|
10.41
|
Engagement
Agreement with Ransom W. Etheridge (12)
|
|
10.42
|
Change
in control agreement with Dr. William A. Carter (12)
|
|
10.43
|
Change
in control agreement with Dr. William A. Carter (12)
|
|
10.44
|
Change
in control agreement with Robert E. Peterson (12)
|
|
10.45
|
Change
in control agreement with Ransom Etheridge (12)
|
|
10.46
|
Supply
Agreement with Hollister-Stier Laboratories LLC
|
|
10.47
|
Manufacturing
and Safety Agreement with Hyaluron, Inc.
|
|
10.48
|
Common
Stock Purchase Agreement, dated July 8, 2005, by and among the Company and
Fusion Capital Fund II, LLC.(13)
|
|
10.49
|
Registration
Rights Agreement, dated July 8, 2005, by and among the Company and Fusion
Capital Fund II, LLC.(13)
|
|
10.48
|
Common
Stock Purchase Agreement, dated April 12, 2006, by and among the Company
and Fusion Capital Fund II, LLC.(14)
|
|
10.49
|
Registration
Rights Agreement, dated April 12, 2006, by and among the Company and
Fusion Capital Fund II, LLC.(14)
|
|
10.50
|
Supply
Agreement with Hollister-Stier Laboratories LLC. (15)
|
|
10.51
|
Manufacturing
and Safety Agreement with Hyaluron,
Inc. (15)
|
|
10.52
|
April
19, 2006 Amendment to Common Stock Purchase Agreement by and among the
Company and Fusion Capital Fund II, LLC.(15)
|
|
10.53
|
July
21, 2006 Letter Amendment to Common Stock Purchase Agreement by and among
the Company and Fusion Capital Fund II, LLC.(15)
|
|
10.54
|
Royalty
Purchase Agreement with Stem Cell Innovations, Inc.
(15)
|
|
10.55
|
Biken
Activating Agreement. (16)
|
|
10.56
|
Biken
Material Evaluation Agreement. (16)
|
|
10.57
|
Common
Stock Purchase Agreement, dated July 2, 2008, by and among the Company and
Fusion Capital.(19)
|
|
10.58
|
Registration
Rights Agreement, dated July 2, 2008, by and among the Company and Fusion
Capital.(19)
|
|
10.59
|
Amendment
to Common Stock Purchase Agreement, dated July 23, 2008, by and among the
Company and Fusion Capital.(20)
|
|
10.60
|
Employee
Wage Or Hours Reduction Program.(22)
|
|
10.61
|
Standby
Financing Agreement.(22)
|
|
10.62
|
Engagement
Agreement with Charles T. Bernhardt, CPA.(22)
|
|
10.63
|
Goal
Achievement Incentive Award Program. (21)
|
|
10.64
|
Form
of Securities Purchase Agreement entered into on May 10, 2009.
(23)
|
|
10.65
|
Form
of Securities Purchase Agreement entered into on May 18, 2009.
(24)
|
|
10.66
|
Engagement
Agreement with Robert Dickey IV, dated June 11, 2009. *
|
|
10.67
|
Engagement
Agreement with Robert Dickey IV, dated February 1, 2010.
*
|
|
10.68
|
Amendment
to Supply Agreement with Hollister-Stier Laboratories LLC dated February
25, 2010. *
|
|
10.69
|
August
2009 Material Evaluation Agreement with
Biken. *
|
23
21
|
Subsidiaries
of the Registrant.
|
|
23.1
|
McGladrey
& Pullen, LLP consent.*
|
|
31.1
|
Certification
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 from
the Company's Chief Executive Officer.**
|
|
31.2
|
Certification
pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 from the
Company's Chief Financial Officer.**
|
|
32.1
|
Certification
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 from
the Company's Chief Executive Officer.**
|
|
32.2
|
|
Certification
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 from the
Company's Chief Financial
Officer.**
|
* Previously filed with the Original Filing
** Filed herewith.
(1)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated March 12, 2003 and is hereby
incorporated by reference.
(2)
Filed with the Securities and Exchange Commission on November 20, 2002 as
an exhibit to the Company’s Registration Statement on Form 8-A (No. 0-27072) and
is hereby incorporated by reference.
(3)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated June 27, 2003 and is hereby
incorporated by reference.
(4)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated July 14, 2003 and is hereby
incorporated by reference.
(5)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated October 30, 2003 and is hereby
incorporated by reference.
(6)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated January 27, 2004 and is hereby
incorporated by reference.
(7)
Filed with the Securities and Exchange Commission as an exhibit to the
Company’s quarterly report on Form 10-Q (No. 1-13441) for the period ended
September 30, 2001 and is hereby incorporated by reference.
(8)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Form S-1 Registration Statement (No. 333-113796) and is hereby incorporated by
reference.
(9)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated August 6, 2004 and is hereby
incorporated by reference.
(10)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated September 15, 2004 and is hereby
incorporated by reference.
(11)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K/A-1 (No. 1-13441) filed on October 28, 2005 and is
hereby incorporated by reference.
(12)
Filed with the Securities and Exchange Commission as an exhibit to the
Company’s annual report on Form 10-K (No. 1-13441) for the year ended December
31, 2004 and is hereby incorporated by reference.
24
(13)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated September 15, 2005 and is hereby
incorporated by reference.
(14)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated April 12, 2006 and is hereby
incorporated by reference.
(15)
Filed with the Securities and Exchange Commission on July 31, 2006 as an exhibit
to the Company’s Form S-1 Registration Statement (No. 333-136187) and is hereby
incorporated by reference.
(16)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated December 13, 2007 and is hereby
incorporated by reference.
(17)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) filed October 22, 2008 and is hereby
incorporated by reference.
(18)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Form S-3 Registration Statement (No. 333-151696) and is hereby
incorporated by reference.
(19)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) filed July 8, 2008 and is hereby
incorporated by reference.
(20)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
quarterly report on Form 10-Q (No. 1-13441) for the period ended June 30, 2008
and is hereby incorporated by reference.
(21)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) filed November 28, 2008 and is hereby
incorporated by reference.
(22)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
annual report on Form 10-K (No. 1-13441) for the year ended December 31, 2008
and is hereby incorporated by reference.
(23)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
quarterly report on Form 10-Q (No. 1-13441) for the period ended March 31, 2009
and is hereby incorporated by reference.
(24)
Filed with the Securities and Exchange Commission as an exhibit to the Company’s
Current Report on Form 8-K (No. 1-13441) dated May 18, 2009 and is hereby
incorporated by reference.
25
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
HEMISPHERx
BIOPHARMA, INC.
By:
|
/s/ William A. Carter
|
William
A. Carter, M.D.
|
|
Chief
Executive Officer
|
April 30,
2010
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange of 1934,
as amended, this report has been signed below by the following persons on behalf
of this Registrant and in the capacities and on the dates indicated.
Chairman
of the Board, Chief
|
||||
/s/ William A.
Carter
|
Executive
Officer and
|
April
30, 2010
|
||
William
A. Carter, M.D.
|
Director
|
|||
/s/ Richard Piani
|
Director
|
April
30, 2010
|
||
Richard
Piani
|
||||
/s/ Charles T.
Bernhardt
|
Chief
Financial Officer and
|
April
30, 2010
|
||
Charles
T. Bernhardt CPA
|
Chief
Accounting Officer
|
|||
/s/ Thomas Equels
|
Director,
Secretary and
|
April
30, 2010
|
||
Thomas
Equels
|
General
Counsel
|
|||
/s/ William Mitchell
|
Director
|
April
30, 2010
|
||
William
Mitchell, M.D., Ph.D.
|
||||
/s/ Iraj E. Kiani
|
Director
|
April
30, 2010
|
||
Iraj
E. Kiani, N.D., Ph.D.
|
|
|
26