As
filed with the Securities and Exchange Commission on September 20, 2024
Registration
No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER
THE
SECURITIES ACT OF 1933
TONIX
PHARMACEUTICALS HOLDING CORP.
(Exact
name of registrant as specified in its charter)
| Nevada |
|
26-1434750 |
(State or other jurisdiction
of incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
| |
|
|
26
Main Street, Suite 101
Chatham,
New Jersey 07928
(862)
904-8182
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Seth
Lederman
Chief
Executive Officer
Tonix
Pharmaceuticals Holding Corp.
26
Main Street, Suite 101
Chatham,
New Jersey 07928
(862)
904-8182
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
With
copies to:
Michael
J. Lerner, Esq.
Steven
M. Skolnick, Esq.
Lowenstein
Sandler LLP
One
Lowenstein Drive
Roseland,
New Jersey 07068
(973)
597-6394
APPROXIMATE
DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please
check the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check
the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following
box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act:
| Large accelerated filer |
☐ |
Accelerated filer |
☐ |
| Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
| |
|
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 7(a)(2)(B) of the Securities Act.
☐
The
registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective
on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities under this prospectus until
the registration statement of which it is a part and filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer
or sale is not permitted.
PRELIMINARY
PROSPECTUS
SUBJECT
TO COMPLETION, DATED SEPTEMBER 20, 2024
$300,000,000
Common
Stock
Preferred
Stock
Warrants
Units
We
may offer and sell, from time to time in one or more offerings, any combination of common stock, preferred stock, warrants, or
units having an aggregate initial offering price not exceeding $300,000,000. The preferred stock, warrants, and units may be convertible
or exercisable or exchangeable for common stock or preferred stock or other securities of ours and have not been approved for
listing on any market or exchange, and we have not made any application for such listing.
Each
time we sell a particular class or series of securities, we will provide specific terms of the securities offered in a supplement
to this prospectus. The prospectus supplement may also add, update or change information in this prospectus. You should read this
prospectus and any prospectus supplement, as well as the documents incorporated by reference or deemed to be incorporated by reference
into this prospectus, carefully before you invest in any securities.
This
prospectus may not be used to offer or sell our securities unless accompanied by a prospectus supplement relating to the offered
securities.
Our common stock is presently
listed on The NASDAQ Capital Market under the symbol “TNXP”. On September 19, 2024, the last reported sale price of our common
stock was $0.15. Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
These
securities may be sold directly by us, through dealers or agents designated from time to time, to or through underwriters or dealers
or through a combination of these methods on a continuous or delayed basis. See “Plan of Distribution” in this prospectus.
We may also describe the plan of distribution for any particular offering of our securities in a prospectus supplement. If any
agents, underwriters or dealers are involved in the sale of any securities in respect of which this prospectus is being delivered,
we will disclose their names and the nature of our arrangements with them in a prospectus supplement. The net proceeds we expect
to receive from any such sale will also be included in a prospectus supplement.
Investing
in our securities involves various risks. See “Risk Factors” beginning on page 3 of this prospectus and in the applicable
prospectus supplement, and in the risks discussed in the documents incorporated by reference in this prospectus and in the applicable
prospectus supplement, as they may be amended, updated or modified periodically in our reports filed with the Securities and Exchange
Commission. You should carefully read and consider these risk factors before you invest in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This
prospectus is dated , 2024
TABLE
OF CONTENTS
PAGES
ABOUT
THIS PROSPECTUS
This
prospectus is part of a shelf registration statement that we filed with the Securities and Exchange Commission (the “SEC”)
using a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities
described in this prospectus in one or more offerings from time to time having an aggregate initial offering price of $300,000,000.
This prospectus provides you with a general description of the securities we may offer. Each time we offer securities, we will
provide you with a prospectus supplement that describes the specific amounts, prices and terms of the securities we offer. The
prospectus supplement also may add, update or change information contained in this prospectus. You should read carefully both
this prospectus and any prospectus supplement together with additional information described below under the caption “Where
You Can Find More Information.”
This
prospectus does not contain all the information provided in the registration statement we filed with the SEC. You should read
both this prospectus, including the section titled “Risk Factors,” and the accompanying prospectus supplement, together
with the additional information described under the heading “Where You Can Find More Information.”
You
should rely only on the information contained or incorporated by reference in this prospectus or a prospectus supplement. We have
not authorized any other person to provide you with different information. If anyone provides you with different or inconsistent
information, you should not rely on it. This prospectus is not an offer to sell securities, and it is not soliciting an offer
to buy securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing
in this prospectus or any prospectus supplement, as well as information we have previously filed with the SEC and incorporated
by reference, is accurate as of the date on the front of those documents only. Our business, financial condition, results of operations
and prospects may have changed since those dates.
OUR
BUSINESS
Except
where the context otherwise requires, the terms, “we,” “us,” “our” or “the Company,”
refer to the business of Tonix Pharmaceuticals Holding Corp., a Nevada corporation and its wholly-owned subsidiaries.
Overview
Tonix is
a fully-integrated biopharmaceutical company focused on transforming therapies for pain management and modernizing solutions for public
health challenges. Tonix’s development portfolio is focused on central nervous system (CNS) disorders. Tonix’s priority is
to submit a New Drug Application (NDA) to the U.S. Food and Drug Administration (FDA) in October 2024 for TNX-102 SL, a product candidate
for which two statistically significant Phase 3 studies have been completed for the management of fibromyalgia. The FDA has granted Fast
Track designation to TNX-102 SL for the management of fibromyalgia. TNX-102 SL is also being developed to treat acute stress reaction.
Tonix’s CNS portfolio includes TNX-1300 (cocaine esterase), a biologic in Phase 2 development designed to treat cocaine intoxication
that has FDA Breakthrough Therapy designation. Tonix’s immunology development portfolio consists of biologics to address organ
transplant rejection, autoimmunity and cancer, including TNX-1500, which is a humanized monoclonal antibody targeting CD40-ligand (CD40L
or CD154) being developed for the prevention of allograft rejection and for the treatment of autoimmune diseases. Tonix also has product
candidates in development in the areas of rare disease, including TNX-2900 for Prader-Willi syndrome, and infectious disease, including
a vaccine for mpox, TNX-801 (horsepox, live-virus vaccine). Tonix recently announced the U.S. Department of Defense (DoD), Defense Threat
Reduction Agency (DTRA) awarded it a contract for up to $34 million over five years to develop TNX-4200, small molecule broad-spectrum
antiviral agents targeting CD45 for the prevention or treatment of infections to improve the medical readiness of military personnel
in biological threat environments. Tonix owns and operates a state-of-the art infectious disease research facility in Frederick, MD,
instrumental in progressing the development of TNX-4200. Tonix Medicines, our commercial subsidiary, markets Zembrace®
SymTouch® (sumatriptan injection) 3 mg and Tosymra® (sumatriptan nasal spray) 10 mg for the treatment of acute migraine
with or without aura in adults.
Tonix
Medicines. Inc. owns the Zembrace® SymTouch® and Tosymra® registered trademarks. All other
marks are the property of their respective owners.
All
of our product candidates in development are investigational new drugs or biologics and have not been approved for any indication.
We
have assembled a management team with significant industry experience to lead the development and commercialization of our product
candidates and marketed products. We complement our management team with a network of scientific, clinical, and regulatory advisors
that includes recognized experts in their respective fields.
Corporate
Information
We
were incorporated on November 16, 2007 under the laws of the State of Nevada as Tamandare Explorations Inc. On October 11, 2011,
we changed our name to Tonix Pharmaceuticals Holding Corp. Our principal executive offices are located at 26 Main St., Suite 101,
Chatham, New Jersey 07928, and our telephone number is (862) 904-8182. Our website addresses are www.tonixpharma.com, www.tonix.com,
and www.krele.com. The information on our websites is not part of this prospectus. We have included our website addresses as a
factual reference and do not intend them to be active links to our websites.
RISK
FACTORS
Investing
in our securities involves a high degree of risk. Prior to making a decision about investing in our securities, you should carefully
consider the risk factors discussed in the sections entitled “Risk Factors” contained in our annual report on Form
10-K for the fiscal year ended December 31, 2023 under the heading “Item 1A. Risk Factors,” and as described or may
be described in any subsequent quarterly report on Form 10-Q under the heading “Item 1A. Risk Factors,” as well as
in any applicable prospectus supplement and contained or to be contained in our filings with the SEC and incorporated by reference
in this prospectus, together with all of the other information contained in this prospectus, or any applicable prospectus supplement.
For a description of these reports and documents, and information about where you can find them, see “Where You Can Find
More Information” and “Incorporation of Certain Information by Reference.” If any of the risks or uncertainties
described in our SEC filings or any prospectus supplement or any additional risks and uncertainties actually occur, our business,
financial condition and results of operations could be materially and adversely affected.
DISCLOSURE
REGARDING FORWARD-LOOKING STATEMENTS
This
prospectus contains forward-looking statements. Such forward-looking statements include those that express plans, anticipation,
intent, contingency, goals, targets or future development and/or otherwise are not statements of historical fact. These forward-looking
statements are based on our current expectations and projections about future events and they are subject to risks and uncertainties
known and unknown that could cause actual results and developments to differ materially from those expressed or implied in such
statements.
In
some cases, you can identify forward-looking statements by terminology, such as “expects,” “anticipates,”
“intends,” “estimates,” “plans,” “believes,” “seeks,” “may,”
“should”, “could” or the negative of such terms or other similar expressions. Accordingly, these statements
involve estimates, assumptions and uncertainties that could cause actual results to differ materially from those expressed in
them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this prospectus.
You
should read this prospectus and any accompanying prospectus supplement and the documents that we reference herein and therein
and have filed as exhibits to the registration statement, of which this prospectus is part, completely and with the understanding
that our actual future results may be materially different from what we expect. You should assume that the information appearing
in this prospectus and any accompanying prospectus supplement is accurate as of the date on the front cover of this prospectus
or such prospectus supplement only. Because the risk factors referred to above, as well as the risk factors referred to on page
3 of this prospectus and incorporated herein by reference, could cause actual results or outcomes to differ materially from those
expressed in any forward-looking statements made by us or on our behalf, you should not place undue reliance on any forward-looking
statements. Further, any forward-looking statement speaks only as of the date on which it is made, and we undertake no obligation
to update any forward-looking statement to reflect events or circumstances after the date on which the statement is made or to
reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict
which factors will arise. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor,
or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
We qualify all of the information presented in this prospectus and any accompanying prospectus supplement, and particularly our
forward-looking statements, by these cautionary statements.
USE
OF PROCEEDS
Except
as otherwise provided in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities
offered by this prospectus for working capital and general corporate purposes.
The
intended application of proceeds from the sale of any particular offering of securities using this prospectus will be described
in the accompanying prospectus supplement relating to such offering. The precise amount and timing of the application of these
proceeds will depend on our funding requirements and the availability and costs of other funds.
THE
SECURITIES WE MAY OFFER
The
descriptions of the securities contained in this prospectus, together with the applicable prospectus supplements, summarize all
the material terms and provisions of the various types of securities that we may offer. We will describe in the applicable prospectus
supplement relating to any securities the particular terms of the securities offered by that prospectus supplement. If we indicate
in the applicable prospectus supplement, the terms of the securities may differ from the terms we have summarized below. We will
also include in the prospectus supplement information, where applicable, about material United States federal income tax considerations
relating to the securities, and the securities exchange, if any, on which the securities will be listed.
We
may sell from time to time, in one or more offerings:
| ● | shares
of our common stock; |
| ● | shares
of our preferred stock; |
| ● | warrants
to purchase any of the securities listed above; and/or |
| ● | units
consisting of any of the securities listed above. |
The
terms of any securities we offer will be determined at the time of sale. We may issue securities that are exchangeable for or
convertible into common stock or any of the other securities that may be sold under this prospectus. When particular securities
are offered, a supplement to this prospectus will be filed with the SEC, which will describe the terms of the offering and sale
of the offered securities.
DESCRIPTION
OF COMMON STOCK
The
following is a summary of all material characteristics of our common stock as set forth in our articles of incorporation and bylaws.
The summary does not purport to be complete and is qualified in its entirety by reference to our articles of incorporation and
bylaws, each as amended, and to the provisions of Chapters 78 and 92A of the Nevada Revised Statutes, as amended (“NRS”).
Common
Stock
We are authorized to issue up
to 1,000,000,000 shares of our common stock, par value $0.001 per share. As of September 19, 2024, there were 137,256,441 shares of our
common stock issued and outstanding. The outstanding shares of our common stock are validly issued, fully paid and nonassessable.
Holders
of our common stock are entitled to one vote for each share on all matters submitted to a stockholder vote. Holders of our common
stock do not have cumulative voting rights. Therefore, holders of a majority of the shares of our common stock voting for the
election of directors can elect all of the directors. Holders of our common stock representing a majority of the voting power
of our capital stock issued, outstanding and entitled to vote, represented in person or by proxy, are necessary to constitute
a quorum at any meeting of stockholders. A vote by the holders of a majority of our outstanding shares is required to effectuate
certain fundamental corporate changes such as dissolution, merger or an amendment to our articles of incorporation. However, a
two-thirds vote is required for stockholders to amend our bylaws.
Subject
to the rights of holders of shares of our preferred stock, if any, the holders of our common stock are entitled to share in all
dividends that our Board of Directors, in its discretion, declares on our common stock from legally available funds. In the event
of a liquidation, dissolution or winding up, each outstanding share of our common stock entitles its holder to participate pro
rata in all assets that remain after payment of liabilities and after providing for each class of stock, if any, having preference
over our common stock. Our common stock has no pre-emptive, subscription or conversion rights and there are no redemption provisions
applicable to our common stock.
Transfer
Agent and Registrar
The
Transfer Agent and Registrar for our common stock is vStock Transfer, LLC, 18 Lafayette Place, Woodmere, NY 11598.
DESCRIPTION
OF PREFERRED STOCK
The
following is a summary of all material characteristics of our preferred stock as set forth in our articles of incorporation and
bylaws. The summary does not purport to be complete and is qualified in its entirety by reference to our articles of incorporation
and bylaws, each as amended, and to the provisions of Chapter 78 and 92A of the NRS.
Preferred
Stock
We
are authorized to issue up to 5,000,000 shares of preferred stock, par value $0.001 per share, none of which are currently outstanding.
The shares of preferred stock may be issued in series, and shall have such voting powers, full or limited, or no voting powers,
and such designations, preferences and relative participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issuance of such
stock adopted from time to time by the board of directors. The board of directors is expressly vested with the authority to determine
and fix in the resolution or resolutions providing for the issuances of preferred stock the voting powers, designations, preferences
and rights, and the qualifications, limitations or restrictions thereof, of each such series to the full extent now or hereafter
permitted by the laws of the State of Nevada.
Terms
of the Preferred Stock That We May Offer and Sell to You
We
summarize below some of the provisions that will apply to the preferred stock that we may offer to you unless the applicable prospectus
supplement provides otherwise. This summary may not contain all information that is important to you. You should read the prospectus
supplement, which will contain additional information and which may update or change some of the information below. Prior to the
issuance of a new series of preferred stock, we will further amend our articles of incorporation, as amended, designating the
stock of that series and the terms of that series. We will file a copy of the certificate of designation that contains the terms
of each new series of preferred stock with the Nevada Secretary of State and the SEC each time we issue a new series of preferred
stock. Each certificate of designation will establish the number of shares included in a designated series and fix the designation,
powers, privileges, preferences and rights of the shares of each series as well as any applicable qualifications, limitations
or restrictions. You should refer to the applicable certificate of designation as well as our articles of incorporation, as amended,
before deciding to buy shares of our preferred stock as described in the applicable prospectus supplement.
Our
board of directors has the authority, without further action by the stockholders, to issue preferred stock in one or more series
and to fix the number of shares, dividend rights, conversion rights, voting rights, redemption rights, liquidation preferences,
sinking funds, and any other rights, preferences, privileges and restrictions applicable to each such series of preferred stock.
The
issuance of any preferred stock could adversely affect the rights of the holders of common stock and, therefore, reduce the value
of the common stock. The ability of our board of directors to issue preferred stock could discourage, delay or prevent a takeover
or other corporate action.
The
terms of any particular series of preferred stock will be described in the prospectus supplement relating to that particular series
of preferred stock, including, where applicable:
| ● | the
designation, stated value and liquidation preference of such preferred stock; |
| ● | the
number of shares within the series; |
| ● | the
offering price; |
| ● | the
dividend rate or rates (or method of calculation), the date or dates from which dividends
shall accrue, and whether such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate; |
| ● | any
redemption or sinking fund provisions; |
| ● | the
amount that shares of such series shall be entitled to receive in the event of our liquidation,
dissolution or winding-up; |
| ● | the
terms and conditions, if any, on which shares of such series shall be convertible or
exchangeable for shares of our stock of any other class or classes, or other series of
the same class; |
| ● | the
voting rights, if any, of shares of such series; the status as to reissuance or sale
of shares of such series redeemed, purchased or otherwise reacquired, or surrendered
to us on conversion or exchange; |
| ● | the
conditions and restrictions, if any, on the payment of dividends or on the making of
other distributions on, or the purchase, redemption or other acquisition by us or any
subsidiary, of the common stock or of any other class of our shares ranking junior to
the shares of such series as to dividends or upon liquidation; |
| ● | the
conditions and restrictions, if any, on the creation of indebtedness by us or by any
subsidiary, or on the issuance of any additional stock ranking on a parity with or prior
to the shares of such series as to dividends or upon liquidation; and |
| ● | any
additional dividend, liquidation, redemption, sinking or retirement fund and other rights,
preferences, privileges, limitations and restrictions of such preferred stock. |
DESCRIPTION
OF WARRANTS
The
following description, together with the additional information we may include in any applicable prospectus supplements, summarizes
the material terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and
warrant certificates. While the terms summarized below will apply generally to any warrants that we may offer, we will describe
the particular terms of any series of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus
supplement, the terms of any warrants offered under that prospectus supplement may differ from the terms described below. If there
are differences between that prospectus supplement and this prospectus, the prospectus supplement will control. Thus, the statements
we make in this section may not apply to a particular series of warrants. Specific warrant agreements will contain additional
important terms and provisions and will be incorporated by reference as an exhibit to the registration statement which includes
this prospectus.
General
We
may issue warrants for the purchase of common stock and/or preferred stock in one or more series. We may issue warrants independently
or together with common stock and/or preferred stock, and the warrants may be attached to or separate from these securities.
We
will evidence each series of warrants by warrant certificates that we may issue under a separate agreement. We may enter into
the warrant agreement with a warrant agent. Each warrant agent may be a bank that we select which has its principal office in
the United States and a combined capital and surplus of at least $50,000,000. We may also choose to act as our own warrant agent.
We will indicate the name and address of any such warrant agent in the applicable prospectus supplement relating to a particular
series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
| |
● |
the offering price
and aggregate number of warrants offered; |
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● |
the currency for
which the warrants may be purchased; |
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● |
if applicable, the
designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such
security or each principal amount of such security; |
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|
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● |
if applicable, the
date on and after which the warrants and the related securities will be separately transferable; |
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|
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● |
in the case of warrants
to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise; |
| |
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● |
the warrant agreement
under which the warrants will be issued; |
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● |
the effect of any
merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants; |
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anti-dilution provisions
of the warrants, if any; |
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the terms of any
rights to redeem or call the warrants; |
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● |
any provisions for
changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants; |
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● |
the dates on which
the right to exercise the warrants will commence and expire or, if the warrants are not continuously exercisable during that
period, the specific date or dates on which the warrants will be exercisable; |
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● |
the manner in which
the warrant agreement and warrants may be modified; |
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● |
the identities of
the warrant agent and any calculation or other agent for the warrants; |
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● |
federal income tax
consequences of holding or exercising the warrants; |
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● |
the terms of the
securities issuable upon exercise of the warrants; |
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● |
any securities exchange
or quotation system on which the warrants or any securities deliverable upon exercise of the warrants may be listed; and |
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any other specific
terms, preferences, rights or limitations of or restrictions on the warrants. |
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Before
exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such
exercise, including in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any,
or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise
of Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise
price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to 5:00 p.m. Eastern Time on the expiration date that we set
forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become
void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together
with specified information, and paying the required amount to the warrant agent in immediately available funds, as provided in
the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate, and in the applicable
prospectus supplement, the information that the holder of the warrant will be required to deliver to the warrant agent.
Until
the warrant is properly exercised, no holder of any warrant will be entitled to any rights of a holder of the securities purchasable
upon exercise of the warrant.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities
purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we
will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement,
holders of the warrants may surrender securities as all or part of the exercise price for warrants.
Enforceability
of Rights By Holders of Warrants
Any
warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship
of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue
of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement
or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us.
Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants in accordance with their
terms.
Calculation
Agent
Calculations
relating to warrants may be made by a calculation agent, an institution that we appoint as our agent for this purpose. The prospectus
supplement for a particular warrant will name the institution that we have appointed to act as the calculation agent for that
warrant as of the original issue date for that warrant. We may appoint a different institution to serve as calculation agent from
time to time after the original issue date without the consent or notification of the holders.
The
calculation agent’s determination of any amount of money payable or securities deliverable with respect to a warrant will
be final and binding in the absence of manifest error.
DESCRIPTION
OF UNITS
We
may issue units comprised of one or more of the other securities described in this prospectus in any combination. Each unit will
be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before
a specified date.
The
applicable prospectus supplement will describe:
| |
● |
the designation
and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities
may be held or transferred separately; |
| |
|
|
| |
● |
any unit agreement
under which the units will be issued; |
| |
|
|
| |
● |
any provisions for
the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
| |
|
|
| |
● |
whether the units
will be issued in fully registered or global form. |
| |
|
|
The
applicable prospectus supplement will describe the terms of any units. The preceding description and any description of units
in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by
reference to the unit agreement and, if applicable, collateral arrangements and depositary arrangements relating to such units.
PLAN
OF DISTRIBUTION
We
may sell the securities being offered pursuant to this prospectus through underwriters or dealers, through agents, or directly
to one or more purchasers or through a combination of these methods. The applicable prospectus supplement will describe the terms
of the offering of the securities, including:
| ● | the
name or names of any underwriters, if any, and if required, any dealers or agents; |
| ● | the
purchase price of the securities and the proceeds we will receive from the sale; |
| ● | any
underwriting discounts and other items constituting underwriters’ compensation; |
| ● | any
discounts or concessions allowed or reallowed or paid to dealers; and |
| ● | any
securities exchange or market on which the securities may be listed. |
We
may distribute the securities from time to time in one or more transactions at:
| ● | a
fixed price or prices, which may be changed; |
| ● | market
prices prevailing at the time of sale; |
| ● | prices
related to such prevailing market prices; or |
| ● | negotiated
prices. |
Only
underwriters named in the prospectus supplement are underwriters of the securities offered by the prospectus supplement.
If
underwriters are used in an offering, we will execute an underwriting agreement with such underwriters and will specify the name
of each underwriter and the terms of the transaction (including any underwriting discounts and other terms constituting compensation
of the underwriters and any dealers) in a prospectus supplement. The securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more investment banking firms or others, as designated.
If an underwriting syndicate is used, the managing underwriter(s) will be specified on the cover of the prospectus supplement.
If underwriters are used in the sale, the offered securities will be acquired by the underwriters for their own accounts and may
be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or
at varying prices determined at the time of sale. Any public offering price and any discounts or concessions allowed or reallowed
or paid to dealers may be changed from time to time. Unless otherwise set forth in the prospectus supplement, the obligations
of the underwriters to purchase the offered securities will be subject to conditions precedent and the underwriters will be obligated
to purchase all of the offered securities if any are purchased.
We
may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public offering
price, with additional underwriting commissions or discounts, as may be set forth in a related prospectus supplement. The terms
of any over-allotment option will be set forth in the prospectus supplement for those securities.
If
we use a dealer in the sale of the securities being offered pursuant to this prospectus or any prospectus supplement, we will
sell the securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to
be determined by the dealer at the time of resale. The names of the dealers and the terms of the transaction will be specified
in a prospectus supplement.
We
may sell the securities directly or through agents we designate from time to time. We will name any agent involved in the offering
and sale of securities and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, any agent will act on a best-efforts basis for the period of its appointment.
We
may authorize agents or underwriters to solicit offers by institutional investors to purchase securities from us at the public
offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery
on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation
of these contracts in the prospectus supplement.
In
connection with the sale of the securities, underwriters, dealers or agents may receive compensation from us or from purchasers
of the securities for whom they act as agents in the form of discounts, concessions or commissions. Underwriters may sell the
securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions
from the underwriters or commissions from the purchasers for whom they may act as agents. Underwriters, dealers and agents that
participate in the distribution of the securities, and any institutional investors or others that purchase securities directly
and then resell the securities, may be deemed to be underwriters, and any discounts or commissions received by them from us and
any profit on the resale of the securities by them may be deemed to be underwriting discounts and commissions under the Securities
Act.
We
may provide agents and underwriters with indemnification against particular civil liabilities, including liabilities under the
Securities Act, or contribution with respect to payments that the agents or underwriters may make with respect to such liabilities.
Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
In
addition, we may enter into derivative transactions with third parties (including the writing of options), or sell securities
not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement
indicates, in connection with such a transaction, the third parties may, pursuant to this prospectus and the applicable prospectus
supplement, sell securities covered by this prospectus and the applicable prospectus supplement. If so, the third party may use
securities borrowed from us or others to settle such sales and may use securities received from us to close out any related short
positions. We may also loan or pledge securities covered by this prospectus and the applicable prospectus supplement to third
parties, who may sell the loaned securities or, in an event of default in the case of a pledge, sell the pledged securities pursuant
to this prospectus and the applicable prospectus supplement. The third party in such sale transactions will be an underwriter
and will be identified in the applicable prospectus supplement or in a post-effective amendment.
To
facilitate an offering of a series of securities, persons participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the market price of the securities. This may include over-allotments or short sales of the securities,
which involves the sale by persons participating in the offering of more securities than have been sold to them by us. In those
circumstances, such persons would cover such over-allotments or short positions by purchasing in the open market or by exercising
the over-allotment option granted to those persons. In addition, those persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to
underwriters or dealers participating in any such offering may be reclaimed if securities sold by them are repurchased in connection
with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities
at a level above that which might otherwise prevail in the open market. Such transactions, if commenced, may be discontinued at
any time. We make no representation or prediction as to the direction or magnitude of any effect that the transactions described
above, if implemented, may have on the price of our securities.
All
securities we may offer, other than common stock, will be new issues of securities with no established trading market. Any agents
or underwriters may make a market in these securities, but will not be obligated to do so and may discontinue any market making
at any time without notice. We cannot guarantee the liquidity of the trading markets for any securities. There is currently no
market for any of the offered securities, other than our common stock which is listed on The NASDAQ Global Market. We have no
current plans for listing of the preferred stock, warrants, units or subscription rights on any securities exchange or quotation
system; any such listing with respect to any particular preferred stock, warrants, units or subscription rights will be described
in the applicable prospectus supplement or other offering materials, as the case may be. Any underwriters to whom securities are
sold by us for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do
so and may discontinue any market making at any time without notice.
In
order to comply with the securities laws of some states, if applicable, the securities offered pursuant to this prospectus will
be sold in those states only through registered or licensed brokers or dealers. In addition, in some states securities may not
be sold unless they have been registered or qualified for sale in the applicable state or an exemption from the registration or
qualification requirement is available and complied with.
LEGAL
MATTERS
The
validity of the issuance of the shares of common stock and shares of preferred stock offered hereby will be passed upon for us
by Brownstein Hyatt Farber Schreck, LLP, Las Vegas, Nevada. Lowenstein Sandler, LLP, New York, New York, will pass upon certain
legal matters relating to the issuance and sale of the securities offered hereby on behalf of Tonix Pharmaceuticals Holding Corp.
EXPERTS
The
consolidated balance sheets of Tonix Pharmaceuticals Holding Corp. and subsidiaries as of December 31, 2023 and 2022 and the related
consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for each of the years then ended
have been audited by EisnerAmper LLP, independent registered public accounting firm, as stated in their report which is incorporated
herein by reference, which report includes an explanatory paragraph about the existence of substantial doubt concerning the Company’s
ability to continue as a going concern. Such financial statements are incorporated herein by reference in reliance on the report of such
firm given upon their authority as experts in accounting and auditing.
WHERE
YOU CAN FIND MORE INFORMATION
This
prospectus constitutes a part of a registration statement on Form S-3 filed under the Securities Act. As permitted by the SEC’s
rules, this prospectus and any prospectus supplement, which form a part of the registration statement, do not contain all the
information that is included in the registration statement. You will find additional information about us in the registration
statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily
complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the
SEC for a more complete understanding of the document or matter.
We
file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read, without charge,
and copy the documents we file at the SEC’s public reference rooms in Washington, D.C. at 100 F Street, NE, Room 1580, Washington,
DC 20549. You can request copies of these documents by writing to the SEC and paying a fee for the copying cost. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the public
at no cost from the SEC’s website at http://www.sec.gov.
INCORPORATION
OF DOCUMENTS BY REFERENCE
We
have filed a registration statement on Form S-3 with the Securities and Exchange Commission under the Securities Act. This prospectus
is part of the registration statement but the registration statement includes and incorporates by reference additional information
and exhibits. The Securities and Exchange Commission permits us to “incorporate by reference” the information contained
in documents we file with the Securities and Exchange Commission, which means that we can disclose important information to you
by referring you to those documents rather than by including them in this prospectus. Information that is incorporated by reference
is considered to be part of this prospectus and you should read it with the same care that you read this prospectus. Information
that we file later with the Securities and Exchange Commission will automatically update and supersede the information that is
either contained, or incorporated by reference, in this prospectus, and will be considered to be a part of this prospectus from
the date those documents are filed. We have filed with the Securities and Exchange Commission, and incorporate by reference in
this prospectus:
| ● | our
Annual Report on Form 10-K for the year ended December 31, 2023, filed with the SEC on April
1, 2024; |
| ● | our
Definitive Proxy Statement on Schedule 14A filed with the SEC on April
15, 2024; |
| ● | our
Quarterly Reports on Form 10-Q for the quarters ended March 31, 2024 and June 30, 2024, filed with the SEC on May
13, 2024 and August 16, 2024; |
| ● | our
Current Reports on Form 8-K or Form 8-K/A filed with the SEC on January
2, 2024, January
8, 2024, January
19, 2024, January
25, 2024, January
29, 2024, January
31, 2024, February
12, 2024, February
13, 2024, February
15, 2024, February
27, 2024, February
28, 2024, March
5, 2024, March
6, 2024, March
7, 2024, March
11, 2024, March
19, 2024, March
20, 2024, March
21, 2024, March
25, 2024, March
29, 2024, April
1, 2024, May
13, 2024, May
21, 2024, May
22, 2024, May
22, 2024, May
30, 2024, June
3, 2024, June
6, 2024, June
6, 2024, June
10, 2024, June
13, 2024, June
14, 2024, June
20, 2024, June
26, 2024, June
28, 2024, July
1, 2024, July
8, 2024, July
10, 2024, July
16, 2024, July
24, 2024, July
25, 2024, July
30, 2024, August
9, 2024, August
12, 2024, August
19, 2024, August
20, 2024, August
26, 2024, August 29, 2024, August
30, 2024, September
6, 2024, September
9, 2024, September
10, 2024, September 16, 2024 and September 19, 2024; and |
| ● | the
description of our Common Stock contained in our registration statement on Form
8-A filed with the SEC on July 23, 2013, under the Exchange Act, as supplemented
and updated by the description of our Common Stock set forth in Exhibit
4.06 of our Annual Report on Form 10-K for the year ended December 31, 2023,
including any amendment or report filed for the purpose of updating such description. |
We
also incorporate by reference all additional documents that we file with the Securities and Exchange Commission under the terms
of Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, that are made after the initial filing
date of the registration statement of which this prospectus is a part until the offering of the particular securities covered
by a prospectus supplement or term sheet has been completed. We are not, however, incorporating, in each case, any documents or
information that we are deemed to furnish and not file in accordance with Securities and Exchange Commission rules.
You
may request, and we will provide you with, a copy of these filings, at no cost, by contacting us at:
Tonix
Pharmaceuticals Holding Corp.
26
Main Street, Suite 101
Chatham,
New Jersey 07928
Attention:
Investor Relations
Telephone
(862) 904-8182
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
expenses in connection with the issuance and distribution of the securities being registered, other than underwriting discounts
and commissions, are estimated below:
| SEC registration fee |
|
$ |
44,280 |
|
| FINRA filing fee |
|
|
45,500 |
|
| NASDAQ listing fee |
|
|
* |
|
| Legal fees and expenses |
|
|
* |
|
| Accounting fees and expenses |
|
|
* |
|
| Transfer agent fees and expenses |
|
|
* |
|
| Printing and engraving expenses |
|
|
* |
|
| Miscellaneous expenses |
|
|
* |
|
| Total |
|
|
* |
|
* Estimated
expenses are presently not known and cannot be estimated.
ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Nevada
Revised Statutes (“NRS”) 78.7502(1) provides that a corporation may indemnify, pursuant to the provisions of that
statute, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation),
by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred by the person in connection with the action, suit or proceeding if the person (i) is not liable
pursuant to NRS 78.138 or (ii) acted in good faith and in a manner which he or she reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe
the conduct was unlawful. NRS 78.7502(2) provides that a corporation may indemnify, pursuant to the provisions of that statute,
any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by
or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director,
officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses, including amounts
paid in settlement and attorneys’ fees actually and reasonably incurred by the person in connection with the defense or
settlement of the action or suit if the person (a) is not liable pursuant to NRS 78.138 or (ii) acted in good faith and in a manner
which he or she reasonably believed to be in or not opposed to the best interests of the corporation. To the extent that a director,
officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any such action, suit
or proceeding, or in defense of any claim, issue or matter therein, the corporation shall indemnify him or her against expenses,
including attorneys’ fees, actually and reasonably incurred by him or her in connection with the defense. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent,
does not, of itself, create a presumption that the person is liable pursuant to NRS 78.138 or did not act in good faith and in
a manner which he or she reasonably believed to be in or not opposed to the best interests of the corporation, or that, with respect
to any criminal action or proceeding, he or she had reasonable cause to believe that the conduct was unlawful. Indemnification
made pursuant to NRS 78.7502 may not be made for any claim, issue or matter as to which such a person has been adjudged by a court
of competent jurisdiction, after exhaustion of all appeals therefrom, to be liable to the corporation or for amounts paid in settlement
to the corporation, unless and only to the extent that the court in which the action or suit was brought or other court of competent
jurisdiction determines upon application that in view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
NRS
78.7502(3) provides that any discretionary indemnification pursuant to NRS 78.7502 (unless ordered by a court or advanced pursuant
to NRS 78.751(2)), may be made by the corporation only as authorized in the specific case upon a determination that indemnification
of the director, officer, employee or agent is proper in the circumstances. The determination must be made (i) by the stockholders;
(ii) by the board of directors by majority vote of a quorum consisting of directors who were not parties to the action, suit or
proceeding; (iii) if a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding
so orders, by independent legal counsel in a written opinion; or (iv) if a quorum consisting of directors who were not parties
to the action, suit or proceeding cannot be obtained, by independent legal counsel in a written opinion. NRS 78.751(2) provides
that unless otherwise restricted by the corporation’s articles of incorporation or bylaws, or an agreement made by the corporation,
the corporation may pay the expenses of officers and directors incurred in defending a civil or criminal action, suit or proceeding
must be paid by the corporation as they are incurred and in advance of the final disposition of the action, suit or proceeding,
upon receipt of an undertaking by or on behalf of the director or officer to repay the amount if it is ultimately determined by
a court of competent jurisdiction that the director or officer is not entitled to be indemnified by the corporation.
Our
articles of incorporation provide that our directors or officers shall not be personally liable to us or our stockholders for
monetary damages for breach of such director’s or officer’s fiduciary duty, except for liability (i) for any breach
of the duty of loyalty to our company or our stockholders, (ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, or (iii) for any transaction from which the officer or director derived any improper
personal benefit. Our articles of incorporation and our amended and restated bylaws provide for the indemnification of any of
our directors and officers who was or is a party or is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was
a director or officer of the our company, against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, subject to certain
express limitations and conditions. We believe that these provisions in our articles of incorporation bylaws, as amended, are
necessary to attract and retain qualified persons as directors and officers.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
ITEM
16. EXHIBITS
| 1.01
* |
Form of Underwriting
Agreement. |
| |
|
| 3.01 |
Articles
of Incorporation, filed as an exhibit to the Registration Statement on Form S-1, filed with the Commission on April 9, 2008
and incorporated herein by reference. |
| |
|
| 3.02 |
Articles
of Merger between Tamandare Explorations Inc. and Tonix Pharmaceuticals Holding Corp., effective October 11, 2011, filed as
an exhibit to the Current Report on Form 8-K, filed with the Commission on October 17, 2011 and incorporated herein by reference. |
| |
|
| 3.03 |
Third
Amended and Restated Bylaws, filed as an exhibit to the Current Report on Form 8-K, filed with the Commission on June 3, 2016
and incorporated herein by reference. |
| 3.04 |
Certificate
of Change of Tonix Pharmaceuticals Holding Corp., dated March 13, 2017 and effective March 17, 2017, filed as an exhibit to
the Current Report on Form 8-K, filed with the Commission on March 16, 2017 and incorporated herein by reference. |
| |
|
| 3.05 |
Certificate
of Amendment to Tonix Pharmaceuticals Holding Corp.’s Articles of Incorporation, as amended, filed with the Secretary
of State of the State of Nevada on June 16, 2017, filed as an exhibit to the Current Report on Form 8-K, filed with the Commission
on June 16, 2017 and incorporated herein by reference. |
| |
|
| 3.06 |
Specimen
Common Stock Certificate, filed as an exhibit to the Current Report on Form 8-K, filed with the Commission on May 24, 2018
and incorporated herein by reference. |
| |
|
| 3.07 |
Certificate
of Amendment to Tonix Pharmaceuticals Holding Corp.’s Articles of Incorporation, as amended, filed with the Secretary
of State of the State of Nevada on May 3, 2019, filed as an exhibit to the Current Report on Form 8-K, filed with the Commission
on May 3, 2019 and incorporated herein by reference. |
| |
|
| 3.08 |
Certificate
of Amendment to Tonix Pharmaceuticals Holding Corp.’s Articles of Incorporation, as amended, filed with the Secretary
of State of the State of Nevada on March 26, 2021, filed as an exhibit to the Current Report on Form 8-K, filed with the Commission
on March 26, 2021 and incorporated herein by reference. |
| |
|
| 3.09 |
Certificate of Amendment
to Tonix Pharmaceuticals Holding Corp.’s Articles of Incorporation, filed as an exhibit to the Current Report on Form
8-K, filed with the Commission on May 16, 2022 and incorporated herein by reference. |
| |
|
| 4.01 |
Specimen
Common Stock Certificate of the Registrant, filed as an exhibit to the Current Report on Form 8-K, filed with the Commission
on May 24, 2018 and incorporated herein by reference. |
| |
|
| 4.02 * |
Form of Warrant
Agreement, including form of Warrant. |
| |
|
| 4.03 * |
Form of Unit Agreement. |
| |
|
| 5.01 |
Opinion of Brownstein Hyatt Farber Schreck, LLP. |
| |
|
| 5.02 |
Opinion of Lowenstein Sandler, LLP. |
| |
|
| 23.01 |
Consent of EisnerAmper LLP. |
| |
|
| 23.02 |
Consent of Brownstein Hyatt Farber Schreck, LLP (included in Exhibit 5.01). |
| |
|
| 23.03 |
Consent of Lowenstein Sandler, LLP (included in Exhibit 5.02). |
| |
|
| 24.01 |
Power
of Attorney (contained on the signature pages to the registration statement). |
| |
|
| 107 |
Calculation of Filing Fee Table |
| |
|
*
To be filed by amendment or as an exhibit to a Current Report on Form 8-K and incorporated herein by reference, if applicable.
ITEM
17. UNDERTAKINGS.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities
offered (if the total dollar value of the securities offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in this registration statement
or any material change to such information in this registration statement; provided, however, that the undertakings set forth
in paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are incorporated
by reference in this registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part
of this registration statement;
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)
If the registrant is relying on Rule 430B;
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of this registration statement as
of the date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424 (b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of
the earlier of the date of the Securities Act prospectus is first used after effectiveness or the date of the first contract of
sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with
a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or
(ii)
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part
of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify
any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such date of first use.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser
and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of
the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing of the Registration Statement on Form S-3 and has duly caused this Form S-3 to be signed on its behalf by the undersigned,
thereunto duly authorized, in Chatham, New Jersey, on the 20th day of September, 2024.
| |
TONIX PHARMACEUTICALS HOLDING
CORP. |
| |
|
|
| Date: September 20, 2024 |
By: |
/s/ SETH
LEDERMAN |
| |
|
Seth Lederman |
| |
|
Chief Executive Officer (Principal Executive
Officer) |
| |
|
|
| Date: September 20, 2024 |
By: |
/s/ BRADLEY
SAENGER |
| |
|
Bradley Saenger |
| |
|
Chief Financial Officer (Principal Accounting
Officer) |
| |
|
|
We consent to the incorporation
by reference in this Registration Statement of Tonix Pharmaceuticals Holding Corp. (the “Company”) on Form S-3 to be filed
on or about September 20, 2024 of our report dated April 1, 2024, on our audits of the consolidated financial statements as of December
31, 2023 and 2022 and for each of the years then ended, which report was included in the Annual Report on Form 10-K filed April 1, 2024.
Our report includes an explanatory paragraph about the existence of substantial doubt concerning the Company's ability to continue as
a going concern. We also consent to the reference to our firm under the caption “Experts” in this Registration Statement.