Hemispherx ATM Withdrawals Raise A Red Flag

PHILADELPHIA ( TheStreet) -- Red flag alert: Hemispherx Biopharma ( HEB) is selling stock stealthily ahead of December's Ampligen FDA advisory panel.

Uh oh, I sense another Hemispherx rant.

No rant, just a warning. Hemispherx used a Friday night SEC filing to disclose the sale of 10.9 million shares of stock at an average price of 92 cents per share. After expenses and commissions, Hemispherx net $9.5 million from the sale.

You said this stock sale was stealthy. Why?

Hemispherx is using an At-the-Market (ATM) equity financing facility to sell stock. These ATMs allow companies, through a broker or investment bank, to sell treasury stock to investors at current market prices. Small companies like ATMs because they're a relatively easy and cheap way to raise cash, but ATMs aren't great for current shareholders because companies do not have to disclose the sale of stock except in regulatory filings, often at the end of each quarter.

Didn't Peregrine Pharmaceuticals (PPHM) raise money through an ATM facility last spring?

Yes, Peregrine executives were talking publicly about the greatness of its lung cancer drug bavituximab, while in private, the company was selling millions of shares of stock for pennies through its ATM facility. We know how the Peregrine story turned out. Hemispherx is borrowing from the Peregrine playbook.

You mean, Hemispherx shouldn't be raising money now if the company has confidence in Ampligen?

Exactly. An FDA advisory panel is scheduled to review the chronic fatigue syndrome drug Ampligen on Dec. 20. Presumably, a positive panel vote will push Hemispherx shares much higher than where they trade today. Yet, Hemispherx is rushing to raise money now. That's not a good sign.

Maybe Hemispherx wants to raise a small amount of money now and then plans to raise more money later, hopefully at a higher share price if the Ampligen panel votes to recommend approval.

Perhaps, but then investors won't know when Hemispherx sells more stock because the ATM facility is so opaque. Hemispherx's ATM authorizes the sale of 40 million shares. With just under 11 million shares sold through Oct. 1, the company has 29 million shares remaining to sell.

And remember, Hemispherx received shareholder authorization to use those 40 million shares for financing activities on Sept. 18. The company didn't waste any time before starting to sell stock.

Small-cap biotech companies dilute shareholders all the time. Hemispherx needs money to develop Ampligen.

Ha! That's funny. The FDA rejected Ampligen as a chronic fatigue syndrome therapy in late 2009. Yet for the past three years, Hemispherx has done nothing to advance Ampligen, including refusing to run a new clinical trial that FDA asked for. Hemispherx has plenty of cash to develop Ampligen. The problem is that management is hoarding cash to pay its outrageously high salaries, not to spend on Ampligen.

How much does Hemispherx CEO Bill Carter earn?

Carter was paid $1 million in salary in 2011. With bonuses, stock options and other perks, his total compensation for the year was $1.5 million. Carter's salary alone has doubled since 2009 -- the year that Ampligen was rejected.

Hemipsherx is using an ATM to raise money ahead of the Ampligen FDA panel because Carter uses the company and its shareholders as a different sort of ATM -- an automated teller machine.

-- Reported by Adam Feuerstein in Boston.

Adam Feuerstein writes regularly for TheStreet. In keeping with company editorial policy, he doesn't own or short individual stocks, although he owns stock in TheStreet. He also doesn't invest in hedge funds or other private investment partnerships. Feuerstein appreciates your feedback; click here to send him an email.