Exhibit 10.1


 





PLACEMENT
AGENCY AGREEMENT


 


December 20, 2017


 


Applied DNA Sciences, Inc.


50 Health Sciences Drive


Stony Brook, New York 11790


 


Ladies and Gentlemen:


 


This letter (the “Agreement”)
constitutes the agreement among Maxim Group LLC (“Maxim” or the “Placement Agent”) and Applied
DNA Sciences, Inc. (the “Company”), that the Placement Agent shall serve as the exclusive placement agent for
the Company, on a “reasonable best efforts” basis, in connection with the proposed placement (the “Placement”)
of shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common
Stock”) and warrants to purchase shares of Common Stock (the “Warrants”). The Shares, the Warrants
and the shares of Common Stock underlying the Warrants (the “Warrant Shares”) are hereinafter referred to collectively
as the “Securities”). The Shares and the Warrants are being offered pursuant to the registration statement on
Form S-3 (File No. 333-218158) filed by the Company with the Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (the “Securities Act”), on May 22, 2017 and declared effective on May 26, 2017,
and the prospectus supplement filed pursuant to Rule 424(b)(5) promulgated under the Securities Act and dated December 20, 2017
(the “Prospectus Supplement”). The terms of the Placement and the Securities shall be mutually agreed upon by the Company
and the purchasers (each, a “Purchaser” and collectively, the “Purchasers”) and nothing herein
shall be construed to provide either that the Placement Agent has the power or authority to bind the Company or any Purchaser or
an obligation for the Company to issue any Securities or complete the Placement. This Agreement and the documents executed and
delivered by the Company and the Purchasers in connection with the Placement shall be collectively referred to herein as the “Transaction
Documents.” The date of the closing of the Placement shall be referred to herein as the “Closing Date.”
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 Securities
and does not ensure the successful placement of the Securities or any portion thereof or the success of the Placement Agent with
respect to securing any other financing on behalf of the Company. The Placement Agent may retain other brokers or dealers to act
as sub-agents or selected-dealers on their behalf in connection with the Placement.  The sale of the Securities to any
Purchaser will be evidenced by a purchase agreement (the “Securities Purchase Agreement”) between the Company
and such Purchasers in a form reasonably acceptable to the Company and the Placement Agent.  Capitalized terms that are
not otherwise defined herein have the meanings given to such terms in the Securities Purchase Agreement. Prior to the signing of
any Securities Purchase Agreement, officers of the Company will be reasonably available to answer inquiries from prospective Purchasers.


 


Notwithstanding anything
herein to the contrary, in the event the Placement Agent determines that any of the terms provided for hereunder shall not comply
with a FINRA rule, including but not limited to FINRA Rule 5110, then the Company shall agree to amend this Agreement in writing
upon the request of the Placement Agent to comply with any such rules; provided that any such amendments shall not provide for
terms that are less favorable to the Company.


 






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Section
1              
COMPENSATION.  As compensation for the services provided by the Placement
Agent hereunder, the Company agrees as follows:


 


(A)              
To pay to the Placement Agent a cash fee equal to: 6.5% of the aggregate gross proceeds raised
in the Placement, which shall be paid at the Closing of the Placement from the gross proceeds of the Securities sold and shall
be paid directly to the Placement Agent.


 


(B)              
Subject to compliance with FINRA Rule 5110(f)(2)(D), the Company also agrees to reimburse
the Placement Agent for all out-of-pocket expenses, including without limitation the reasonable fees and disbursements of legal
counsel and all reasonable travel and other out-of-pocket expenses in an amount not to exceed $45,000.


 


Section
2              
REPRESENTATIONS AND WARRANTIES INCORPORATED BY REFERENCE. Each of the representations
and warranties (together with any related disclosure schedules thereto) made by the Company to the Purchasers in that certain
Securities Purchase Agreement dated as of December 20, 2017, between the Company and each Purchaser, is hereby incorporated herein
by reference (as though fully restated herein) and is, as of the date of this Agreement, hereby made to, and in favor of, the
Placement Agent.


 


Section
3              
REPRESENTATIONS OF THE PLACEMENT AGENT. The Placement Agent represents and
warrants and/or agrees (as the case may be) as of the date of this letter and as of the Closing, that it:


 


(i)                 
is a member in good standing of 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 States applicable to the offers and sales
of Securities by such Placement Agent,


 


(iv)              
is and will be a limited liability company duly formed and validly existing under the laws
of the State of Delaware, 


 


(v)               
has full power and authority to enter into and perform its obligations under this Agreement,


 


(vi)              
has a substantive, preexisting relationship with each Purchaser introduced by such Placement
Agent,


 


(vii)            
has not had and will not have any discussions with any person that is not a party to this
Agreement on the basis of which such person would be able to assert a claim for a finder’s fee or similar fee in connection
with Placement of the Securities,


 


(viii)          
has not and will not engage in or employ any form of general solicitation with respect to
the offering of the Securities to any Purchaser, including but not limited to any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented
at any seminar or any other general solicitation or general advertisement. In effecting the Placement, the Placement Agent each
agrees to comply in all material respects with applicable provisions of the Securities Act of 1933, as amended (the “Securities
Act”), and any regulations thereunder and any applicable laws, rules, regulations and requirements (including, without
limitation, all U.S. state laws); and


 






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(ix)              
is not, and none of its Covered Persons (as defined below) is, subject to a “Bad Actor”
disqualification event described in Rule 506(d)(1)(i) to (viii) of Regulation D promulgated pursuant to the Securities Act (a “Disqualifying
Event”), except for a Disqualifying Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. Furthermore,
such Placement Agent agrees to notify the Company promptly if it or any of its Covered Persons becomes the subject of a Disqualifying
Event such that the safe harbor provisions of the Securities Act Rule 506 cease to be available in connection with the Placement.
For the purposes hereof, “Covered Persons” with respect to the Placement Agent, means such Placement Agent,
or any predecessor or affiliate of such Placement Agent, or (i) such Placement Agent's (A) directors, (B) executive officers, (C)
other officers (as the term “officer” is defined in Rule 405 under the Securities Act) participating in the Placement
or (D) managing members, if any, (ii) any such managing members' directors, executive officers and other officers participating
in the Placement, if any, and (iii) each person who has been or shall be paid (direct or indirect) remuneration by such Placement
Agent or any of its affiliates for the solicitation of purchasers in connection with the Placement, or any other person identified
in Rule 506(d)(1). Such Placement Agent agrees to provide subsequent certifications in regards to the above as reasonably requested
by the Company from time to time.


 


Such Placement Agent
will immediately notify the Company in writing of any change in its status as such. Such Placement Agent covenants that it will
conduct the Transaction hereunder in compliance with the provisions of this Agreement and the requirements of applicable law, including
the rules and regulations under the Securities Act.  


 


Section
4              
INDEMNIFICATION. The Placement Agent and the Company agree to the indemnification
and other agreements set forth in the Indemnification Provisions (the “Indemnification Provisions”) attached
hereto as Addendum A, the provisions of which are incorporated herein by reference and shall survive the termination or expiration
of this Agreement.


 


Section
5              
ENGAGEMENT TERM. The Placement Agent’s engagement hereunder will expire
on the earlier of (i) the final closing date of the Placement and (ii) December 28, 2017 (such date, the “Termination
Date”). In the event, however, in the course of the Placement Agent’s performance of due diligence they deem it
necessary to terminate the engagement, the Placement Agent may do so prior to the termination date and upon immediate written
notice. If, within six (6) months after the Termination Date, the Company completes any private financing of equity, equity-linked
or debt or other capital raising activity of the Company, other than (i) the exercise by any person or entity of any options,
warrants or other convertible securities and excluding (ii) the Securities, with any of the purchasers who were first introduced
to the Company in connection with the financing contemplated hereby by the Placement Agent, then the Company will pay to the Placement
Agent upon the closing of such financing the compensation set forth in Section 1 herein (the “Termination Fee”).
Notwithstanding anything to the contrary contained herein, the provisions concerning confidentiality, indemnification, contribution
and the Company’s obligations to pay fees and reimburse expenses contained herein and the Company’s representations
and warranties and obligations contained in the Indemnification Provisions will survive any expiration or termination of this
Agreement, irrespective of whether a closing occurs. All such fees and reimbursements due shall be paid to the Placement Agent
on or before the Termination Date (in the event such fees and reimbursements are earned or owed as of the Termination Date) or
upon the closing of the Placement or any applicable portion thereof (in the event such fees are due pursuant to the terms of Section
1 hereof). The Placement Agent agrees not to use any confidential information concerning the Company provided to them by the Company
for any purposes other than those contemplated under this Agreement.


 






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Section
6              
PLACEMENT AGENT’S 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 (other than references to the historical fact of the Placement) in any manner without the Placement
Agent’s prior written consent.


 


Section
7              
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
8              
CLOSING. The obligations of the Placement Agent, and the closing of the sale
of the 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 and its Subsidiaries contained herein and in the Securities Purchase Agreement, to the accuracy of
the statements of the Company and its Subsidiaries made in any certificates pursuant to the provisions hereof, to the performance
by the Company and its Subsidiaries of their obligations hereunder, and to each of the following additional terms and conditions:


 


(A)              
Except for the 8-K/A dated July 22, 2016 and periodic updates to its existing Form S-1 and
S-3 registration statements, the Company has filed all reports, schedules, forms, statements or other documents required to be
filed by the Company under the Securities Act or Exchange Act, during the two years preceding the date hereof (the foregoing materials
filed during such two-year period, including the exhibits thereto and documents incorporated by reference therein, the “SEC
Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports
prior to the expiration of any such extension; as of their respective filing or amendment dates, the SEC Reports complied in all
material respects with the requirements of the Exchange Act and the rules and regulations of the Securities and Exchange Commission
(the “Commission”) promulgated thereunder; and as of their respective filing or amendment dates, the SEC Reports
did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading.


 


(B)              
All corporate proceedings and other legal matters incident to the authorization, form, execution,
delivery and validity of each of this Agreement, the Placement, the Transaction Documents and the Securities, and all other legal
matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects
to counsel for the Placement Agent, and the Company shall have furnished to such counsel all documents and information that they
may reasonably request to enable them to pass upon such matters.


 


(C)              
The Placement Agent shall have received as of the Closing Date a certificate of the Secretary
of the Company (A) certifying, as complete and accurate as of the Closing, attached copies of the certificate of incorporation
and bylaws of the Company, (B) certifying and attaching all requisite resolutions or actions of the Company’s board of directors
and shareholders approving the execution and delivery of this Agreement, the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby, (C) certifying and attaching a Certificate of Good Standing, dated within four (4)
business days of the Closing Date, certified by the Secretary of State of the State of Delaware and (D) certifying to the incumbency
and signatures of the authorized representatives of the Company executing this Agreement and any other document relating to the
transactions contemplated hereby.


 






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(D)              
The Placement Agent shall have received as of the Closing Date the favorable opinion of legal
counsel to the Company dated as of such Closing Date, addressed to the Placement Agent in form and substance reasonably satisfactory
to the Placement Agent.


 


(E)               
The Placement Agent shall have received as of the Closing Date the favorable intellectual
property opinion of intellectual property counsel to the Company dated as of such Closing Date, addressed to the Placement Agent
in form and substance reasonably satisfactory to the Placement Agent.


 


(F)               
The Placement Agent shall have received as of the Closing Date the favorable legal opinion
of British Virgin Island counsel to the to the Company, dated as of such Closing Date, addressed to the Placement Agent in form
and substance reasonably satisfactory to the Placement Agent. 


 


(G)              
The Placement Agent shall have received a cold comfort letter from Marcum LLP, addressed to
the Placement Agent in form and substance reasonably satisfactory in all material respects to the Placement Agent.


 


(H)              
The Placement Agent shall have received a comfort letter from the Chief Financial Officer
of the Company, addressed to the Placement Agent in form and substance reasonably satisfactory in all material respects to the
Placement Agent.


 


(I)                 
 (i) Neither the Company nor any of its Subsidiaries shall have sustained since the date of
the latest audited or unaudited financial statements included or incorporated by reference in the SEC Reports, any material loss
or interference with its business from fire, explosion, flood, terrorist act or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in or contemplated by the
SEC Reports and (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company
or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the business, general
affairs, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its
Subsidiaries, otherwise than as set forth in or contemplated by the SEC Reports, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Placement Agent, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by the Securities Purchase Agreement.


 


(J)                
The Common Stock, the Warrants and the Warrant Shares are registered under the Exchange Act
and, as of the Closing Date, the Common Stock shall be listed, admitted and authorized for trading on the NASDAQ Capital Market.
The Company shall have taken no action designed to, or likely to have the effect of terminating the registration of the Common
Stock, the Warrants and the Warrant Shares under the Exchange Act or delisting or suspending from trading the Common Stock from
the NASDAQ Capital Market, nor has the Company received any information suggesting that the Securities and Exchange Commission
(the “Commission”) or NASDAQ Capital Market is contemplating terminating such registration or listing.


 


(K)              
Subsequent to the execution and delivery of this Agreement and up to the Closing Date, there
shall not have occurred any of the following: (i) trading in securities generally on the NASDAQ Capital Market shall have been
suspended or minimum or maximum prices or maximum ranges for prices shall have been established generally on any such exchange
or such market by the Commission or by such exchange or by any other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by federal or state authorities or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, (iii) the United States shall have become engaged
in hostilities in which it is not currently engaged, the subject of an act of terrorism, there shall have been an escalation in
hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States,
or (iv) there shall have occurred any other calamity or crisis or any change in general economic, political or financial conditions
in the United States or elsewhere, if the effect of any such event in clause (iii) or (iv) makes it, in the sole judgment of the
Placement Agent, impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner
contemplated by the Securities Purchase Agreement.


 






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(L)               
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 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, state or foreign court of competent jurisdiction
shall have been issued as of the Closing Date which would prevent the issuance or sale of the Securities or materially and adversely
affect the business or operations of the Company.


 


(M)             
The Company shall have prepared and will file within one (1) business day hereof with the
Commission a Current Report on Form 8-K with respect to the Placement, including as an exhibit thereto this Agreement.


 


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


 


(O)              
Prior to the Closing Date, the Company shall have furnished to the Placement Agent such further
information, certificates and documents as the Placement Agent may reasonably request.


 


(P)               
On or prior to the Closing Date, the Placement Agent shall have received a Lock-Up Agreement
from such of the Company’s officers, directors and holders of five percent (5%) or greater of the Company’s common
stock issued and outstanding as of the date hereof as reasonably requested by the Placement Agent.


 


(Q)              
All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement
shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to
counsel for the Placement Agent.


 


(R)              
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, an Issuer Filing with FINRA pursuant to FINRA Rule 5110 with respect to the Registration
Statement and pay all filing fees required in connection therewith.


 


If any of the conditions
specified in this Section 8 shall not have been fulfilled when and as required by this Agreement, the obligations of the Placement
Agent to consummate the Closing hereunder may be cancelled by the Representative after notice of such cancellation shall have be
given to the Company in writing and the Company shall have been given a reasonable period of time to satisfy such condition (if
such condition is capable of being satisfied).


 


Section
9              
GOVERNING LAW. This Agreement, and any dispute, claim or action arising under
or in any way relating to 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. This Agreement may not be assigned by any party
without the prior written consent of the other parties. 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 knowingly, voluntarily and irrevocably waived to
the fullest extent permitted by applicable law. Each of the Placement Agent and the Company: (i) agrees that any legal suit, action
or proceeding arising out of or relating to this Agreement and/or the transactions contemplated hereby shall be instituted exclusively
in New York Supreme Court, County of New York, or in the United States District Court for the Southern District of New York, (ii)
waives any objection which it may have or hereafter to the venue of any such suit, action or proceeding, and (iii) irrevocably
consents to the jurisdiction of the New York Supreme Court, County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding. Each of the Placement Agent and the Company further agrees to accept
and acknowledge service of any and all process which may be served in any such suit, action or proceeding in the New York Supreme
Court, County of New York, or in the United States District Court for the Southern District of New York and agrees that service
of process upon the Company mailed by certified mail to the Company’s address shall be deemed in every respect effective
service of process upon the Company, in any such suit, action or proceeding, and service of process upon the Placement Agent mailed
by certified mail to such Placement Agent’s address shall be deemed in every respect effective service process upon such
Placement Agent, in any such suit, action or proceeding. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. 


 






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Section
10           
ENTIRE AGREEMENT/MISC. This Agreement (including the attached Indemnification
Provisions) 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 both the Placement Agent and the Company. The representations, warranties, agreements and covenants contained
herein shall survive the closing of the Placement and delivery and/or exercise of the Securities, as applicable. 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. The
Company agrees that the Placement Agent may rely upon, and each is a third party beneficiary of, the representations and warranties,
and applicable covenants set forth in any such purchase, subscription or other agreement with the Purchasers in the Placement.  All
amounts stated in this Agreement are in US dollars unless expressly stated.


 


Section
11            NOTICES.
All notices and communications hereunder shall be in writing and mailed or delivered or by email if subsequently confirmed 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 follows: (a) if to the Placement Agent, c/o Maxim Group
LLC, 405 Lexington Avenue, New York, New York 10174, Attention: Equity Capital Markets, with a copy to Maxim Group LLC, 405
Lexington Avenue, New York, New York 10174, Attention: General Counsel, and to Harter Secrest & Emery LLP, 1600
Bausch & Lomb Place, Rochester, NY 14604, Attention: Alexander R. McClean, and (b) if to the Company, to the address set
forth above with a copy to Pepper Hamilton LLP, 620 Eighth Avenue, 37th Floor, New York, New York 10018,
Attention: Merrill M. Kraines. 


 


 


[The remainder of this page has been
intentionally left blank.]





 






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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,
	 	 
	 	MAXIM GROUP LLC
	 	 
	 	By: 	/s/ Clifford A. Teller
	 	 	Name: Clifford A. Teller
	 	 	Title: Executive Managing Director, Investment Banking 
	 	 


 


 


 


 


[Signature Page to Placement Agency Agreement]





 






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Accepted and Agreed to as of


the date first written above:


 


APPLIED DNA SCIENCES, INC.


 


	By: 	/s/ James A. Hayward 	 
	 	Name: James A. Hayward 	 
	 	Title: CEO	 


 


 


 


 


[Signature Page to Placement Agency Agreement]


  






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ADDENDUM
A


 


INDEMNIFICATION
PROVISIONS


 


In connection with
the engagement of Maxim Group LLC (“Maxim” or the “Placement Agent”) by Applied DNA Sciences, Inc. (the
“Company”) pursuant to a letter agreement dated December 12, 2017, between the Company and the Placement Agent,
as it may be amended from time to time in writing (the “Agreement”), the Company hereby agrees as follows:


 


	 	1.	The Company hereby agrees to indemnify and hold the Placement Agent, each of its respective officers, directors, principals, employees, affiliates, and stockholders, and their successors and assigns, harmless from and against any and all loss, claim, damage, liability, deficiencies, actions, suits, proceedings, costs and legal expenses or expense whatsoever (including, but not limited to, reasonable legal fees and other expenses and reasonable disbursements incurred in connection with defending any action, suit or proceeding, including any inquiry or investigation, commenced or threatened, or any claim whatsoever, or in appearing or preparing for appearance as witness in any proceeding, including any pretrial proceeding such as a deposition) (collectively the “Losses”) arising out of, based upon, or in any way related or attributable to, (i) any breach of a representation, warranty or covenant by the Company contained in this Agreement; or (ii) any activities or services performed hereunder by the Placement Agent, unless it is finally judicially determined (and not subject to appeal) in a court of competent jurisdiction that such Losses were the primary and direct result of the bad faith, willful misconduct or gross negligence of the Placement Agent in performing the services hereunder.
	 	 	 
	 	2.	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 legal action, suit or proceeding relating to a transaction contemplated by the Agreement.  If the Placement Agent receives written notice of the commencement of any legal action, suit or proceeding with respect to which the Company is or may be obligated to provide indemnification pursuant to this Addendum A, the Placement Agent shall, within twenty (20) days of the receipt of such written notice, give the Company written notice thereof (a “Claim Notice”). Failure to give such Claim Notice within such twenty (20) day period shall not constitute a waiver by the Placement Agent of its right to indemnity hereunder with respect to such action, suit or proceeding; provided, however, the indemnification hereunder may be limited by any such failure to provide a Claim Notice to the Company that materially prejudices the Company. Upon receipt by the Company of a Claim Notice from the Placement Agent with respect to any claim for indemnification which is based upon a claim made by a third party (“Third Party Claim”), the Company may assume the defense of the Third Party Claim with counsel of its own choosing, as described below. The Placement Agent shall cooperate in the defense of the Third Party Claim and shall furnish such records, information and testimony and attend all such conferences, discovery proceedings, hearings, trial and appeals as may be reasonably required in connection therewith. The Placement Agent shall have the right to employ their own counsel in any such action which shall be at the Company's expense if (i) the Company shall have failed in a timely manner to assume the defense and employ counsel or experts reasonably satisfactory to the Placement Agent in such litigation or proceeding or (ii) the named parties to any such litigation or proceeding (including any impleaded parties) include the Company and the Placement Agent and representation of the Company and the Placement Agent by the same counsel or experts would, in the reasonable opinion of the Placement Agent, be inappropriate due to actual or potential differing interests between the Company and the Placement Agent. The Company shall not satisfy or settle any Third Party Claim for which indemnification has been sought and is available hereunder, without the prior written consent of the Placement Agent, which consent shall not be conditioned or delayed and which shall not be required if the Placement Agent is granted a release in connection therewith. The indemnification provisions hereunder shall survive the termination or expiration of this Agreement.



 






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	 	3.	The Company further agrees, upon demand by the Placement Agent, to promptly reimburse the Placement Agent for, or pay, any loss, claim, damage, liability or expense as to which the Placement Agent has been indemnified herein with such reimbursement to be made currently as any loss, damage, liability or expense is incurred by the Placement Agent. Notwithstanding the provisions of the aforementioned Indemnification, any such reimbursement or payment by the Company of fees, expenses, or disbursements incurred by the Placement Agent shall be repaid by the Placement Agent in the event of any proceeding in which a final judgment (after all appeals or the expiration of time to appeal) is entered in a court of competent jurisdiction against the Placement Agent based solely upon its bad faith, gross negligence or willful misconduct in the performance of its duties hereunder, and provided further, that the Company shall not be required to make reimbursement or payment for any settlement effected without the Company’s prior written consent (which consent shall not be unreasonably withheld or delayed).
	 	 	 
	 	4.	If for any reason the foregoing indemnification is unavailable or is insufficient to hold such indemnified party harmless, the Company agrees to contribute the amount paid or payable by such indemnified party in such proportion as to reflect not only the relative benefits received by the Company, as the case may be, on the one hand, and the Placement Agent, on the other hand, but also the relative fault of the Company and the Placement Agent as well as any relevant equitable considerations. In no event shall the Placement Agent contribute in excess of the fees actually received by them pursuant to the terms of this Agreement.
	 	 	 
	 	5.	For purposes of this Agreement, each officer, director, stockholder, and employee or affiliate of the Placement Agent and each person, if any, who controls the Placement Agent (or any affiliate) within the meaning of either Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended, shall have the same rights as the Placement Agent with respect to matters of indemnification by the Company hereunder.


 


	 	MAXIM GROUP LLC
	 	 
	 	By: 	/s/ Clifford A. Teller
	 	 	Name: Clifford A. Teller
	 	 	Title: Executive Managing Director, Investment Banking


 


 


 


 


[Signature Page to Indemnification Provisions


Pursuant to Placement Agency Agreement]




 


 






    	 	Page 11 of 12



     


    

 


Accepted and Agreed to as of


the date first written above:


 


APPLIED DNA SCIENCES, INC.


 


	By: 	/s/ James A. Hayward 	 
	 	Name: James A. Hayward	 
	 	
        Title: CEO

         
	 


 


 


 


 


[Signature Page to Indemnification Provisions


Pursuant to Placement Agency Agreement]


 






    	 	Page 12 of 12