SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of report (date of earliest event reported): February 8, 2021
TONIX PHARMACEUTICALS HOLDING CORP.
(Exact name of registrant as specified in its charter)
(State or Other Jurisdiction
26 Main Street, Chatham, New Jersey 07928
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (212) 980-9155
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
|Title of each class||Trading Symbol(s)||Name of each exchange on which registered|
|Common Stock||TNXP||The NASDAQ Global Market|
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into a Material Definitive Agreement.
On February 8, 2021, Tonix Pharmaceuticals Holdings Corp. (the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain institutional investors (the “Purchasers”) for the sale by the Company of 58,333,334 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), in a registered direct offering (the “Offering”). The Purchasers in this offering have agreed to purchase, and the Company has agreed to sell, an aggregate of 58,333,334 shares of the Common Stock at a purchase price per share of Common Stock of $1.20 per share.
The aggregate gross proceeds for the sale of the shares of Common Stock will be $70.0 million, before deducting the placement agent fees and related offering expenses. The closing of the sales of the shares of Common Stock is expected to occur on or about February 9, 2021 and is subject to customary closing conditions.
The Purchase Agreement contains customary representations and warranties and agreements of the Company and the Purchasers and customary indemnification rights and obligations of the parties. Pursuant to the terms of the Purchase Agreement, the Company has agreed to certain restrictions on the issuance and sale of its shares of Common Stock during the 45-day period following the closing of the Offering.
As a condition to entering into the Purchase Agreement, the Company and Purchasers entered into an Investor Agreement (the “Investor Agreement”) on February 8, 2021. Pursuant to the terms of the Investor Agreement, each Purchaser agreed (i) to vote the shares of our common stock that they own or control on the record date of the stockholder meeting (or any postponement, adjournment or reconvening thereof) at which our stockholders consider and vote upon a proposal to approve an amendment to our articles of incorporation to increase the number of authorized shares of our common stock from 400,000,000 to 800,000,000, as previously approved by our board of directors, and (ii) to certain limitations on sales of our common stock that they own or control. This proposal will be submitted to our stockholders at a special meeting of stockholders scheduled to be held on March 26, 2021, and any adjournment thereof. The record date for the special meeting of stockholders will be set on or about February 9, 2021.
A.G.P./Alliance Global Partners acted as the sole placement agent (the “Placement Agent”) for the Company on a “reasonable best efforts” basis, in connection with the Offering. The Company entered into a Placement Agency Agreement, dated as of February 8, 2021, by and between the Company and the Placement Agent (the “Placement Agency Agreement”). Pursuant to the Placement Agency Agreement, the Placement Agent will be entitled to a cash fee of 7% of the gross proceeds paid to the Company for the securities.
The net proceeds to the Company from the transaction, after deducting the placement agent’s fees and expenses, and the Company’s estimated offering expenses, are expected to be approximately $65.0 million. The Company expects to use the net proceeds from the Offering for the acquisition and build out of research and development capabilities, working capital and other general corporate purposes.
The shares of Common Stock sold in the offering were offered and sold by the Company pursuant to two effective shelf registration statements on Form S-3, which were filed with the U.S. Securities and Exchange Commission (the “SEC”) on December 18, 2020 and April 8, 2020, and declared effective on January 4, 2021 (File No. 333-251500) and April 17, 2020 (File No. 333-237610), respectively (the “Registration Statements”), and the base prospectuses contained therein. The Company will file a prospectus supplement with the SEC in connection with the sale of the Common Stock.
The representations, warranties and covenants contained in the Purchase Agreement were made solely for the benefit of the parties to the Purchase Agreement. In addition, such representations, warranties and covenants (i) are intended as a way of allocating the risk between the parties to the Purchase Agreement and not as statements of fact, and (ii) may apply standards of materiality in a way that is different from what may be viewed as material by stockholders of, or other investors in, the Company. Accordingly, the Purchase Agreement is included with this filing only to provide investors with information regarding the terms of the transaction, and not to provide investors with any other factual information regarding the Company. Stockholders should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company or any of its subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Purchase Agreement, which subsequent information may or may not be fully reflected in public disclosures.
The foregoing descriptions of the Placement Agency Agreement, the Purchase Agreement and the Investor Agreement are not complete and are qualified in their entireties by reference to the full text of the Placement Agency Agreement, the Purchase Agreement and the Investor Agreement, copies of which are filed herewith as Exhibit 10.01, Exhibit 10.02 and 10.3, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
This Current Report on Form 8-K does not constitute an offer to sell any securities or a solicitation of an offer to buy any securities, nor shall there be any sale of any securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
A copy of the opinion of Brownstein Hyatt Farber Schreck, LLP, relating to the validity of the issuance of the shares of Common Stock, is attached as Exhibit 5.01 hereto.
Item 8.01. Other Events.
On February 8, 2021, the Company issued a press release announcing the pricing of the Offering. A copy of the press release is attached hereto as Exhibit 99.01 and is incorporated herein by reference.
Forward- Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 and Private Securities Litigation Reform Act, as amended, including those relating to the consummation of the Offering, the anticipated use of proceeds from the Offering, the Company’s product development, clinical trials, clinical and regulatory timelines, market opportunity, competitive position, possible or assumed future results of operations, business strategies, potential growth opportunities and other statement that are predictive in nature. These forward-looking statements are based on current expectations, estimates, forecasts and projections about the industry and markets in which we operate and management’s current beliefs and assumptions.
These statements may be identified by the use of forward-looking expressions, including, but not limited to, “expect,” “anticipate,” “intend,” “plan,” “believe,” “estimate,” “potential,” “predict,” “project,” “should,” “would” and similar expressions and the negatives of those terms. These statements relate to future events or our financial performance and involve known and unknown risks, uncertainties, and other factors which may cause actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by the forward-looking statements. Such factors include those set forth in the Company’s filings with the SEC. Prospective investors are cautioned not to place undue reliance on such forward-looking statements, which speak only as of the date of this press release. The Company undertakes no obligation to publicly update any forward-looking statement, whether as a result of new information, future events or otherwise.
|Item 9.01||Financial Statements and Exhibits.|
|5.01||Opinion of Brownstein Hyatt Farber Schreck, LLP|
|10.01||Placement Agency Agreement, dated February 8, 2021 between the Company and A.G.P./Alliance Global Partners|
|10.02||Form of Securities Purchase Agreement, dated February 8, 2021, by and between the Company and the Purchasers thereunder|
|10.03||Form of Investor Agreement, dated February 8, 2021, by and between the Company and the Purchasers thereunder|
|23.01||Consent of Brownstein Hyatt Farber Schreck, LLP (included in Exhibit 5.01)|
|99.01||Press release of the Company, dated February 8, 2021|
Pursuant to the requirement 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.
|TONIX PHARMACEUTICALS HOLDING CORP.|
|Date: February 9, 2021||By:||/s/ Bradley Saenger|
|Chief Financial Officer|