TONIX PHARMACEUTICALS HOLDING CORP. 8-K


 


Exhibit 10.01


 





January
11, 2021


 


Tonix
Pharmaceuticals Holding Corp.


26
Main St. – Suite 101


Chatham,
NJ 07926





	Attention:	Seth Lederman
	 	Chief
Executive Officer












 


Dear
Dr. Lederman:


 


This
letter (the “Agreement”) constitutes the agreement between A.G.P./Alliance Global Partners, as exclusive placement
agent (“A.G.P.” or the “Placement Agent”), and Tonix Pharmaceuticals Holding Corp., a company
organized under the laws of the state of Nevada (the “Company”), that
the Placement Agent shall serve as the placement agent for the Company, on a “reasonable best efforts” basis, in connection
with the proposed placement (the “Placement”) of shares of common stock,
par value, $0.001 per share (the “Shares”). The Shares actually placed
by the Placement Agent are referred to herein as the “Placement Agent Securities.” The Placement Agent Securities
shall be offered and sold under both of the Company’s registration statements on Form
S-3 (File Nos. 333-237610 and 333-224586) with respect to the Placement Agent Securities. The documents executed and delivered
by the Company and the Purchasers (as defined below) in connection with the Placement,
including, without limitation, a securities purchase agreement (the “Purchase Agreement”), shall be collectively
referred to herein as the “Transaction Documents.” The purchase
price to the Purchasers for each Share is $0.80.  The Placement Agent may retain
other brokers or dealers to act as sub-agents or selected-dealers on its behalf in connection with the Placement. 


 


The
terms of the Placement shall be mutually agreed upon by the Company and the purchasers listed in the Purchase Agreement (each,
a “Purchaser” and collectively, the “Purchasers”),
and nothing herein constitutes that the Placement Agent would have the power or authority to bind the Company or any Purchaser,
or an obligation for the Company will issue any Shares or complete the Placement. The Company expressly acknowledges and agrees
that the Placement Agent’s obligations hereunder are on a reasonable best efforts basis only and that the execution of this
Agreement does not constitute a commitment by the Placement Agent to purchase the Shares and does not ensure the successful placement
of the Shares or any portion thereof or the success of the Placement Agent with respect to securing any other financing on behalf
of the Company. Certain affiliates of the Placement Agent may participate in the Placement by purchasing some of the Placement
Agent Securities. The sale of Placement Agent Securities to any Purchaser will be evidenced by the Purchase Agreement between
the Company and such Purchaser, in a form reasonably acceptable to the Company and the Purchaser. Capitalized terms that are not
otherwise defined herein have the meanings given to such terms in the Purchase Agreement. Prior to the signing of any Purchase
Agreement, officers of the Company will be available to answer inquiries from prospective Purchasers.


 


SECTION
1.        REPRESENTATIONS AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.


 


A.         Representations
of the Company. With respect to the Placement Agent Securities, each of the representations and warranties and covenants made
by the Company to the Purchasers in the Purchase Agreement in connection with the Placement, is hereby incorporated herein by
reference into this Agreement (as though fully restated herein) and is, as of the date of this Agreement and as of the Closing
Date, hereby made to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants
that there are no affiliations with any FINRA member firm among the Company’s officers,
directors or, to the knowledge of the Company, any five percent (5.0%) or greater stockholder of the Company.


  


B.         Covenants
of the Company. The Company covenants and agrees to continue to retain (i) a firm of independent PCAOB registered public accountants
for a period of at least three (3) years after the Closing Date and (ii) a competent
transfer agent with respect to the Placement Agent Securities for a period of three (3) years after the Closing
Date.


 




    	 	 	 



    	 



    

 


SECTION
2.       REPRESENTATIONS OF THE PLACEMENT AGENT. The Placement Agent represents and warrants
that it (i) is a member in good standing of the Financial Industry Regulatory Authority (“FINRA”),
(ii) is registered as a broker/dealer under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
(iii) is licensed as a broker/dealer under the laws of the United States of America, applicable to the offers and sales of the
Placement Agent Securities by the Placement Agent, (iv) is and will be a corporate body validly existing under the laws of its
place of incorporation, and (v) has full power and authority to enter into and perform its obligations under this Agreement. The
Placement Agent will immediately notify the Company in writing of any change in its status with respect to subsections (i) through
(v) above. The Placement Agent covenants that it will use its reasonable best efforts to conduct the Placement hereunder in compliance
with the provisions of this Agreement and the requirements of applicable law.  


 


SECTION
3.      COMPENSATION.  In consideration of the services to be provided for hereunder,
the Company shall pay to the Placement Agent or its respective designees a total cash fee equal to seven percent (7.0%) of gross
proceeds from the Placement of the total amount of Placement Agent Securities sold and an
accountable expense allowance as set forth in Section 4 below. A.G.P. reserves the right to reduce any item of compensation or
adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Placement
Agent’s aggregate compensation is in excess of FINRA Rules or that the terms thereof
require adjustment.


 


SECTION
4.       EXPENSES.  The Company agrees to pay all costs, fees and expenses incurred
by the Company in connection with the performance of its obligations hereunder and in connection with the transactions contemplated
hereby, including, without limitation: (i) all expenses incident to the issuance, delivery and qualification of the Shares (including
all printing and engraving costs); (ii) all fees and expenses of the registrar and transfer agent of the Shares; (iii) all necessary
issue, transfer and other stamp taxes in connection with the issuance and sale of the Placement Agent Securities; (iv) all
fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors; (v) all
costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the Registration
Statements (including financial statements, exhibits, schedules, consents and certificates of experts), the Base
Prospectuses and the Prospectus Supplement, and all amendments and supplements
thereto, and this Agreement; (vi) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company in connection
with qualifying or registering (or obtaining exemptions from the qualification or registration of) all or any part of the Shares
for offer and sale under the state securities or blue sky laws or the securities laws of any other country; (vii) the fees and
expenses associated with including the Shares on the Trading Market; (ix) up to $50,000
for accountable expenses related to legal fees of counsel to the Placement Agent, IPREO software related expenses, background
check expenses, tombstones and marketing related expenses, including road show expenses if they are incurred. Notwithstanding
the foregoing, any advance received by the Placement Agent will be reimbursed to the Company to the extent not actually incurred
in compliance with FINRA Rule 5110(f)(2)(C). In the event that this Agreement shall not be carried out for any reason whatsoever,
within the time specified herein or any extensions thereof pursuant to the terms herein, the Company shall be obligated to pay
to the Placement Agent their actual and accountable out-of-pocket expenses related to the transactions contemplated herein then
due and payable (including the fees and disbursements of A.G.P.’s counsel) up to $20,000 and upon demand the Company shall
pay the full amount thereof to the Placement Agent; provided, however, that such expense cap in no way limits or
impairs the indemnification and contribution provisions of this Agreement.


 


SECTION
5.       INDEMNIFICATION.


 


A.          To
the extent permitted by law, with respect to the Placement Agent Securities, the Company will indemnify the Placement Agent and
its affiliates, stockholders, directors, officers, employees, members and controlling persons (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) against all losses, claims, damages, expenses and liabilities, as the
same are incurred (including the reasonable fees and expenses of counsel), relating to or arising out of its activities hereunder
or pursuant to this Agreement, except to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect
thereof) are found in a final judgment (not subject to appeal) by a court of law to have resulted primarily and directly from
the Placement Agent’s willful misconduct or gross negligence in performing the services described herein.


 


B.           Promptly
after receipt by the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which
the Placement Agent is entitled to indemnity hereunder, the Placement
Agent will promptly notify the Company in writing of such claim or of the commencement of such action or proceeding, but failure
to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except and only to the extent
such failure results in the forfeiture by the Company of substantial rights and defenses. If the Company so elects or is requested
by the Placement Agent, the Company will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory
to the Placement Agent and will pay the fees and expenses of such counsel. Notwithstanding the preceding sentence, the Placement
Agent will be entitled to employ its own counsel separate from counsel for the Company and from any other party in such action
if counsel for the Placement Agent reasonably determines that it would be inappropriate under the applicable rules of professional
responsibility for the same counsel to represent both the Company and the Placement Agent. In such event, the reasonable fees
and disbursements of no more than one such separate counsel will be paid by the Company, in addition to fees of local counsel.
The Company will have the right to settle the claim or proceeding, provided that the Company will not settle any such claim, action
or proceeding without the prior written consent of the Placement Agent, which will not be unreasonably withheld.


 




    	 	 	 



    	 



    




 


C.           The
Company agrees to notify the Placement Agent promptly of the assertion against it or any other person of any claim or the commencement
of any action or proceeding relating to a transaction contemplated by this Agreement.


 


D.           If
for any reason the foregoing indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless,
then the Company shall contribute to the amount paid or payable by the Placement Agent as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one
hand and the Placement Agent on the other, but also the relative fault of the Company on the one hand and the liable Placement
Agent on the other that resulted in such losses, claims, damages or liabilities, as well as any relevant equitable considerations.
The amounts paid or payable by a party in respect of losses, claims, damages and liabilities referred to above shall be deemed
to include any legal or other fees and expenses incurred in defending any litigation, proceeding or other action or claim. Notwithstanding
the provisions hereof, the liable Placement Agent’s share of the liability hereunder
shall not be in excess of the amount of fees actually received, or to be received, by the Placement Agent under this Agreement
(excluding any amounts received as reimbursement of expenses incurred by the Placement Agent).


 


E.           These
indemnification provisions shall remain in full force and effect whether or not the transaction contemplated by this Agreement
is completed and shall survive the termination of this Agreement, and shall be in addition to any liability that the Company might
otherwise have to any indemnified party under this Agreement or otherwise.


 


SECTION
6.       COMPANY LOCK-UP AGREEMENTS.


 


(a)
Restriction on Sales of Capital Stock. The Company, on behalf of itself and any successor entity, agrees that, without
the prior written consent of the Placement Agent, it will not, for a period beginning on the date of this Agreement and ending
on the date that is the 45th day after the Closing Date (as defined in the Purchase Agreement) (the “Lock-Up
Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of capital stock of the Company or any securities convertible into or exercisable
or exchangeable for shares of capital stock of the Company; (ii) file or cause to be filed
any registration statement with the Commission relating to the offering of any shares
of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares
of capital stock of the Company; (iii) complete any offering of debt securities of the Company, other than entering into a line
of credit with a traditional bank or (iv) enter into any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of capital stock of the Company, whether any such transaction described in clause
(i), (ii), (iii) or (iv) above is to be settled by delivery of shares of capital stock of
the Company or such other securities, in cash or otherwise.


 


The
restrictions contained in this Section 6(a) (collectively, the “Restrictions”)
shall not apply to (i) the Placement Agent Securities, (ii) the issuance by the Company of securities of the Company pursuant
to any documents, agreements or securities existing or outstanding as of the Closing
Date, provided that such existing or outstanding documents, agreements or securities have not been amended since the date of this
Agreement to increase the number of securities or to decrease the exercise price, exchange price or conversion price of securities
(other than
in connection with stock splits or combinations) or to extend the term of such documents, agreements or securities, (iii) the
issuance by the Company of any securities of the Company under any equity compensation plan of the Company for services rendered
to the Company; or (iv) the issuance of any securities of the Company in connection with a merger, joint venture, licensing arrangement
or any other similar non-capital raising transaction, provided that any such issuance shall only be to a Person
(or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating
company or an owner of an asset in a business synergistic with the business of the Company
and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction
in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business
is investing in securities, provided that in each of (ii) through (iv) above, the securities shall be restricted from sale during
the entire Lock-Up Period.


 


 




    	 	 	 



    	 



    




 


(b)
Restriction on Continuous Offerings. Notwithstanding the restrictions contained
in Section 6(a), the Company, on behalf of itself and any successor entity, agrees that, without the prior written consent of
the Placement Agent, it will not engage, for a period of 90 days after the date of this Agreement, directly or indirectly in any
“at the market” or continuous equity transaction, offer to sell, sell, contract to sell, grant any option to sell
or otherwise dispose of shares of capital stock of the Company or any securities convertible
into or exercisable or exchangeable for shares of capital stock of the Company.


 


SECTION
7.       ENGAGEMENT TERM. The Placement Agent’s engagement hereunder will
be until the earlier of (i) January 31, 2021 and (ii) the Closing Date. The date of
termination of this Agreement is referred to herein as the “Termination Date.” In the event, however, in the
course of the Placement Agent’s performance of due diligence it deems it necessary to terminate the engagement, the Placement
Agent may do so prior to the Termination Date. The Company may elect to terminate the engagement hereunder for any reason prior
to the Termination Date but will remain responsible for fees pursuant to Section 3 hereof with respect to the Placement Agent
Securities if sold in the Placement. Notwithstanding anything to the contrary contained herein, the provisions concerning the
Company’s obligation to pay any fees actually earned pursuant to Section 3 hereof and the provisions concerning confidentiality,
indemnification and contribution contained herein will survive any expiration or termination of this Agreement. If this Agreement
is terminated prior to the completion of the Placement, all fees due to the Placement Agent as set forth in Section 3 shall be
paid by the Company to the Placement Agent on or before the Termination Date (in the event such fees are earned or owed as of
the Termination Date). The Placement Agent agrees not to use any confidential information concerning the Company provided to the
Placement Agent by the Company for any purposes other than those contemplated under this Agreement.


 


 SECTION
8.      PLACEMENT AGENT INFORMATION. The Company agrees that any information or advice
rendered by the Placement Agent in connection with this engagement is for the confidential use of the Company only in their evaluation
of the Placement and, except as otherwise required by law, the Company will not disclose or otherwise refer to the advice or information
in any manner without the Placement Agent’s prior written consent.


 


SECTION
9.       NO FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not
be construed as creating rights enforceable by any person or entity not a party hereto, except those entitled hereto by virtue
of the indemnification provisions hereof. The Company acknowledges and agrees that the Placement Agent is not and shall not be
construed as a fiduciary of the Company and shall have no duties or liabilities to the equity holders or the creditors of the
Company or any other person by virtue of this Agreement or the retention of the Placement Agent hereunder, all of which are hereby
expressly waived.


 


SECTION
10.     CLOSING. The obligations of the Placement Agent, and the closing of the sale of the
Placement Agent Securities hereunder are subject to the accuracy, when made and on the Closing
Date, of the representations and warranties on the part of the Company contained herein and in the Purchase Agreement, to the
performance by the Company of its obligations hereunder, and to each of the following additional terms and conditions, except
as otherwise disclosed to and acknowledged and waived by the Placement Agent:


 


A.         All
corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each of
this Agreement, the Placement Agent Securities, and all other legal matters relating to this Agreement and the transactions contemplated
hereby with respect to the Placement Agent Securities shall be reasonably satisfactory in all material respects to the Placement
Agent.


 




    	 	 	 



    	 



    

 


B.         The
Placement Agent shall have received from outside counsels to the Company such counsel’s written opinion with respect to
the Placement Agent Securities, addressed to the Placement Agent and dated as of the Closing
Date, in form and substance reasonably satisfactory to the Placement Agent.


 


C.         The
Shares shall be registered under the Exchange Act. The Company shall have taken no action designed to, or likely to have the effect
of terminating the registration of the Common Stock under the Exchange Act or delisting
or suspending from trading the Shares from the Trading Market or other applicable
U.S. national exchange, nor has the Company received any information suggesting that the Commission
or the Trading Market or other U.S. applicable national exchange is contemplating
terminating such registration or listing.


 


D.         No
action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or sale of
the Placement Agent Securities or materially and adversely affect or potentially and adversely affect the business or operations
of the Company; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction
shall have been issued as of the Closing Date which would prevent the issuance or sale
of the Placement Agent Securities or materially and adversely affect or potentially and adversely affect the business or operations
of the Company.


 


E.         The
Company shall have entered into a Purchase Agreement with each of the Purchasers of the Placement Agent Securities and such agreements
shall be in full force and effect and shall contain representations, warranties and covenants of the Company as agreed upon between
the Company and the Purchasers.


 


F.         FINRA
shall have raised no objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition,
the Company shall, if requested by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s
behalf, any filing with the FINRA Corporate Financing Department pursuant
to FINRA Rule 5110 with respect to the Placement and pay all filing fees required in connection therewith.


 


If
any of the conditions specified in this Section 9 shall not have been fulfilled when and as required by this Agreement, all obligations
of the Placement Agent hereunder may be cancelled by the Placement Agent at, or at any time prior to, the Closing
Date. Notice of such cancellation shall be given to the Company in writing or orally. Any such oral notice shall be confirmed
promptly thereafter in writing.


 


SECTION
11.     GOVERNING LAW. This Agreement will be governed by, and construed in accordance with, the
laws of the State of New York applicable to agreements made and to be performed entirely in such State, without regard to principles
of conflicts of law. This Agreement may not be assigned by either party without the prior written consent of the other party.
This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted
assigns. Any right to trial by jury with respect to any dispute arising under this Agreement or any transaction or conduct in
connection herewith is waived. Any dispute arising under this Agreement may be brought into the courts of the State of New York
or into the Federal Court located in New York, New York and, by execution and delivery
of this Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction
of aforesaid courts. Each party hereto hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by delivering a copy thereof via overnight delivery (with evidence of delivery) to such
party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of this Agreement,
then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and
other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.


  


SECTION
12.     ENTIRE AGREEMENT/MISCELLANEOUS. This Agreement embodies the entire agreement and understanding
between the parties hereto, and supersedes all prior agreements and understandings, relating to the subject matter hereof. If
any provision of this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect
such provision in any other respect or any other provision of this Agreement,
which will remain in full force and effect. This Agreement may not be amended or otherwise modified or waived except by an instrument
in writing signed by the Placement Agent and the Company. The representations, warranties, agreements and covenants contained
herein shall survive the Closing Date of the Placement and delivery of the Placement
Agent Securities. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other
party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or a .pdf format file, such signature shall create a valid and binding obligation of the party executing
(or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were
an original thereof.


 




    	 	 	 



    	 



    




 


SECTION
13.     NOTICES. Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date
of transmission, if such notice or communication is sent to the email address specified on the signature pages attached hereto
prior to 6:30 p.m. (New York City time) on a business day, (b) the next business day after the date of transmission, if such notice
or communication is sent to the email address on the signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (New York City time) on any business day, (c) the third business day following the date of mailing, if sent by
U.S. internationally recognized air courier service, or (d) upon actual receipt by the party to whom such notice is required to
be given. The address for such notices and communications shall be as set forth on the signature pages hereto.


 


SECTION
14.     Press Announcements. The Company agrees
that the Placement Agent shall, on and after the Closing Date, have the right to reference
the Placement and the Placement Agent’s role in connection therewith in the Placement Agent’s marketing materials
and on its website and to place advertisements in financial and other newspapers and journals, in each case at its own expense.


 


 


 


 


 


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remainder of this page has been intentionally left blank.]


 


 


 


 


 


 


 




    	 	 	 



    	 



    

       Please
confirm that the foregoing correctly sets forth our agreement by signing and returning to the Placement Agent the enclosed copy
of this Agreement.


 


	 	Very truly yours,
	 	 
	 	A.G.P./ALLIANCE GLOBAL PARTNERS
	 	 
	 	By:        	/s/
    Thomas J. Higgins 
	 	 	Name:  Thomas J. Higgins
	 	 	Title:    Managing Director
	 	 
	 	Address for notice:
	 	590
        Madison Avenue 36th Floor

        New
        York, New York 10022

        Attn:
        Thomas Higgins

        Email:
        thiggins@allianceg.com



 


 


 


 


 


 


 


[Signature
Page to Placement Agency Agreement.]


 




    	 	 	 



    	 



    

 


Accepted
and Agreed to as of


the
date first written above:


 


	TONIX PHARMACEUTICALS HOLDING
    CORP.	 
	 	 
	By:	/s/
    Seth Lederman 	 
	 	Name:  Seth Lederman	 
	 	Title:    Chief Executive Officer	 
	 	 
	Address for notice:	 


26
Main St. – Suite 101


Chatham,
NJ 07926





	Attention:	Seth Lederman
	 	Chief
Executive Officer



 








 


 


 


 


 


 


[Signature
Page to Placement Agency Agreement.]