Lunai Bioworks Inc 8-K, filed Aug 7, 2023
Lunai Bioworks Inc. (LNAI)
About this 8-K
Lunai Bioworks Inc filed this 8-K on August 7, 2023, reporting on events of August 1, 2023.
Items reported
- Item 1.01: Entered into a material agreement
- Item 3.02: Unregistered sale of equity
- Item 3.03: Change to shareholders' rights
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 9.01: Financial statements and exhibits
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction | (Commission File Number) | (I.R.S. Employer | ||
| of incorporation) | Identification No.) |
(Address of principal executive offices)
+1
(Registrant’s telephone number, including area code)
ENOCHIAN BIOSCIENCES INC.
(Former name, if changed since last report)
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:
| 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 | Name of Each Exchange on Which Registered | ||
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.
The information under Item 3.02 below is incorporated by reference into this Item 1.01.
Item 3.02 Unregistered Sales of Equity Securities
August 2023 Private Placement
On August 1, 2023, Renovaro Biosciences Inc. (formerly Enochian Biosciences Inc.), a Delaware corporation (the “Company”) closed a private placement (the “Private Placement”) of 280,005 of the Company’s units (the “Units”), each such Unit consisting of (i) one share of the Company’s Series A Convertible Preferred Stock, $0.0001 par value per share (the “Preferred Stock”) and (ii) one common stock purchase warrant (each, a “Warrant”, and together with the Units and the shares of Preferred Stock, the “Securities”) to purchase five shares of the Company’s common stock, $0.0001 par value per share (the “Common Stock”) at a price per Unit equal to $7.13 for aggregate proceeds to the Company of $2,000,000 in cash. In addition, the Company issued 280,005 Units in connection with the conversion of $2,000,000 of the Promissory Note, as further described below under the heading “Amendment and Conversion of Previously Issued Promissory Note”.
In connection with the Private Placement, the Company sold an aggregate of 561,010 shares of Preferred Stock, which are initially convertible into an aggregate of 5,610,100 shares of Common Stock. In connection with the Private Placement, the Company sold Warrants to purchase an aggregate of 2,805,050 shares of Common Stock, which represents 50% warrant coverage. The Warrants are exercisable for five years from the date of issuance and have an exercise price of $0.65 per share, payable in cash.
The Private Placement was completed pursuant to Regulation S promulgated under the Securities Act of 1933, as amended (“Regulation S”). In connection with the Private Placement, each investor executed a Subscription Agreement (each, a “Subscription Agreement”) in the form of Exhibit 10.1 attached hereto. Each Subscription Agreement contains customary representations and warranties of the Company and of each investor, including that all investors purchasing the Securities are not “U.S. persons” as defined by Rule 902 of Regulation S. The Company intends to use the net proceeds from the Private Placement for general corporate purposes. The Private Placement was made directly by the Company and no underwriter or placement agent was engaged by the Company. The Company did not engage in general solicitation or advertising and did not offer the Securities to the public in connection with the Private Placement.
The foregoing description of the Warrants and the Subscription Agreement does not purport to be complete, and is qualified in its entirety by reference to the form of Warrant attached hereto as Exhibit 4.1 and the form of Subscription Agreement attached hereto as Exhibit 10.1, which are incorporated by reference herein. The disclosure contained in this Current Report on Form 8-K does not constitute an offer to sell or a solicitation of an offer to buy any securities of the Company, and is made only as required under applicable rules for filing current reports with the Securities and Exchange Commission.
Amendment and Conversion of Previously Issued Promissory Note
On March 30, 2020, the Company issued a promissory note (the “Promissory Note”) to an existing stockholder of the Company. On July 31, 2023, the Company and the holder agreed to amend the Promissory Note (the “Fourth Amendment”) to provide the holder with limited conversion rights in connection with the Private Placement. Per the terms of the Fourth Amendment, the Holder could elect to convert $2,000,000 of the outstanding principal balance of the Promissory Note into the Units being offered in the Private Placement at the price per Unit being paid by the investors in the Private Placement (the “Conversion Right”).
As mentioned above, on August 1, 2023, the holder of the Promissory Note notified the Company of their election to exercise the Conversion Right. Therefore, $2,000,000 of the outstanding principal balance of the Amended Secured Convertible Note was converted into 280,505 Units, comprised of an aggregate of (i) 280,505 shares of Preferred Stock and (ii) Warrants to purchase an aggregate of 1,402,525 shares of Common Stock. A principal balance of $3,000,000 remained outstanding under the Promissory Note after the forgoing conversion. The Units issued in connection with the conversion were issued pursuant to Regulation S.
The foregoing description of the Fourth Amendment does not purport to be complete, and is qualified in its entirety by reference to the Fourth Amendment attached hereto as Exhibit 10.2, which is incorporated by reference herein.
Item 3.03 Material Modifications to Rights of Securityholders
The information under Item 5.03 below is incorporated by reference into this Item 3.03.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On August 1, 2023, the Company filed with the Secretary of State of the State of Delaware the Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock (the “Certificate of Designation”) establishing the series of Preferred Stock designated as the Series A Convertible Preferred Stock with the rights and preferences discussed below.
Conversion. Each holder of Preferred stock may at any time elect to convert all or a portion of the outstanding shares of Preferred Stock held by such holder into an aggregate number of shares of Common Stock to be determined by multiplying the number of shares of Preferred Stock to be converted by ten (the “Conversion Ratio”). Upon the closing of a Qualified Merger (as defined in the Certificate of Designation), all outstanding shares of Preferred Stock shall automatically convert into an aggregate number of shares of Common Stock at a ratio equal to the Conversion Ratio.
Liquidation Preference. In the event of a liquidation, dissolution, or winding up of the Company’s affairs, holders of the Preferred Stock will be entitled to receive a liquidation distribution equal to $7.13 per share of Preferred Stock, as adjusted for any stock splits, stock dividends, recapitalizations, or similar transaction with respect to the Preferred Stock, to be paid out of the assets of the Company available for distribution to its shareholders, before any payment is made to the holders of the Common Stock and any other class of security expressly designated as junior to the Preferred Stock (the “Junior Securities”).
Voting Rights. Each holder of Preferred Stock will be entitled to vote on all matters required or permitted to be voted on by holders of Common Stock, and will be entitled to the number of votes equal to one vote for each share of Common Stock into which such holder’s shares of Preferred Stock could then be converted at the record date for determination of shareholders entitled to vote on a given matter, or, if there is no specified record date, as of the date of such vote or written consent. The holders of all outstanding Preferred Stock and Common Stock will vote together as a single class on all matters upon which holders of the Common Stock are entitled to vote.
The foregoing description of the Preferred Stock does not purport to be complete, and is qualified in its entirety by reference to the Certificate of Designation attached hereto as Exhibit 3.1, which is incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Exhibit | |
| 3.1 | Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock | |
| 4.1 | Form of Warrant | |
| 10.1 | Form of Subscription Agreement | |
| 10.2 | Fourth Amendment to Promissory Note | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| RENOVARO BIOSCIENCES INC. | ||
| By: | /s/ Luisa Puche | |
| Name: Luisa Puche | ||
| Title: Chief Financial Officer | ||
Date: August 7, 2023
EXHIBIT 3.1
EXHIBIT 4.1
NEITHER THIS WARRANT NOR THE SECURITIES FOR WHICH THIS WARRANT IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE, IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS, AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY.
FORM OF COMMON STOCK PURCHASE WARRANT
enochian biosciences inc.
| Warrant Shares: [●] | Issue Date: |
THIS COMMON STOCK PURCHASE WARRANT (this “Warrant”) certifies that, for value received [●] (the “Holder”) is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time after the Issue Date (the “Initial Exercise Date”) and on or prior to the close of business on the Termination Date (as defined below) but not thereafter, to subscribe for and purchase from Enochian Biosciences Inc., a Delaware corporation (the “Company”), of up to [●] shares (subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock, par value $0.0001 per share (“Common Stock”).
Section 1. Exercise; Termination Date.
a) Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company (or such other office or agency of the Company as it may designate by notice in writing to the registered Holder at the address of the Holder appearing on the books of the Company) of a duly executed copy of the Notice of Exercise Form annexed hereto as Annex A; and, within three (3) Business Days of the date said Notice of Exercise is delivered to the Company, the Company shall have received payment of the aggregate Exercise Price of the shares thereby purchased by wire transfer or cashier’s check drawn on a United States bank. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Business Days of the date the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise Form within two (2) Business Days of receipt of such notice. In the event of any dispute or discrepancy, the records of the Holder shall be controlling and determinative in the absence of manifest error. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof. As used herein, “Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in the State of Delaware are authorized or required by law to be closed for business.
b) Exercise Price. The exercise price (the “Exercise Price”) of this Warrant shall be $0.65 per Warrant Share, subject to adjustment hereunder.
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c) Mechanics of Exercise.
i. Delivery of Certificates Upon Exercise. Certificates for the Warrant Shares purchased or exercised hereunder shall be transmitted by the Company’s transfer agent to the Holder by crediting the account of the Holder’s broker with the Depository Trust Company through its Deposit Withdrawal Agent Commission (“DWAC”) system if the Company is then a participant in such system and there is an effective registration statement permitting the resale of the Warrant Shares and otherwise by physical delivery to the address specified by the Holder in the Notice of Exercise within three (3) Business Days from the delivery to the Company of the Notice of Exercise Form, surrender of this Warrant (if required), and payment of the aggregate Exercise Price (unless cashless exercise is utilize) as set forth above (the “Warrant Share Delivery Date”). This Warrant shall be deemed to have been exercised on the date the Exercise Price is received by the Company (or notice of cashless exercise is received). The Warrant Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised by payment to the Company of the Exercise Price and all taxes required to be paid by the Holder, if any, pursuant to Section 1(c)(v) hereof prior to the issuance of such shares, have been paid.
ii. Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender of this Warrant, at the time of delivery of the certificate or certificates representing Warrant Shares, deliver to Holder a new Warrant evidencing the rights of Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission Rights. If the Company fails to cause the Company’s transfer agent to transmit to the Holder a certificate or the certificates representing the Warrant Shares pursuant to Section 1(c)(i) by the Warrant Share Delivery Date, then, the Holder will have the right to rescind such exercise.
iv. No Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round up to the next whole share.
v. Charges, Taxes and Expenses. Issuance of certificates for Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental expense in respect of the issuance of such certificate, all of which taxes and expenses shall be paid by the Company, and such certificates shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in the event certificates for Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder, and such other documentation as the Company may require regarding the investor status of the assignee, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.
vi. Closing of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant, pursuant to the terms hereof.
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d) Termination Date. This Warrant shall be exercisable from the Initial Exercise Date until August 1, 2028 (the “Termination Date”).
Section 2. Certain Adjustments.
a) Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another person, (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Stock, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, (v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another person or group of persons whereby such other person or group acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other person or other persons making or party to, or associated or affiliated with the other persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder, the number, class, and series of shares of stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction. For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 2(a) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.
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b) Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged, subject to the limitation on fractional shares in Section 2(d)(iv) hereof. Any adjustment made pursuant to this Section 2(b) shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.
c) Calculations. All calculations under this Section 2 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be.
d) Notice to Holder.
i. Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 2, the Company shall promptly deliver to the Holder by facsimile or email a notice setting forth the Exercise Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, of any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by facsimile or email to the Holder at its last facsimile number of email address as it shall appear upon the Warrant Register of the Company, at least five (5) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder is entitled to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice.
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Section 3. Transfer of Warrant.
a) Transferability. Subject to compliance with any applicable securities laws and the reasonable conditions and documentation required by the Company, this Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto as Annex B (the “Assignment Form”), duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. The Warrant, if properly assigned, may be exercised by a new holder for the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 3(a) hereof, as to any transfer which may be involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual notice to the contrary.
Section 4. Miscellaneous.
a) No Rights as Stockholder Until Exercise. This Warrant does not entitle the Holder to any voting rights or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 1(a) hereof.
b) Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business Day.
d) Authorized Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve, from its authorized and unissued Common Stock, a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the duty of executing stock certificates to execute and issue the necessary certificates for the Warrant Shares upon the exercise of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without violation of any applicable law or regulation, or of any requirements of the business market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this Warrant will, upon exercise of the purchase rights represented by this Warrant, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
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e) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined by applying the laws of the State of Delaware, without regard to its conflicts of laws provisions.
f) Restrictions. The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant will have restrictions upon resale imposed by state and federal securities laws unless (i) such Warrant Shares are registered; or (ii) the resale of the Warrant Shares satisfies an exemption from registration under the Securities Act.
g) Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right or otherwise prejudice Holder’s rights, powers or remedies, notwithstanding the fact that all rights hereunder terminate on the Termination Date. If the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the Holder, the Company shall pay to Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices. All notices and other communications from the Company to the Holder of this Warrant shall be sent by electronic transmission or overnight courier or shall be mailed by first class registered or certified mail, postage prepaid, at such address as may have been furnished to the Company in writing by such Holder. All such notices and communications shall, when mailed, be effective when deposited in the mails and, when sent by electronic transmission or overnight courier, delivered, be effective when received.
i) Limitation of Liability. No provision hereof, in the absence of any affirmative action by Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of Holder, shall give rise to any liability of Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Successors and Assigns. Subject to applicable federal and state securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of all Holders from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.
k) Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
l) Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
m) Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
| ENOCHIAN BIOSCIENCES INC. | ||
| By | ||
| Name: | Mark Dybul, M.D. | |
| Title: | Chief Executive Officer | |
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EXHIBIT 10.1
FORM OF SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is made by and between Enochian BioSciences Inc., a Delaware corporation (the “Company”), and the other signatories listed on the signature pages hereto (each, a “Subscriber”, and collectively, the “Subscribers”) as of August 1, 2023.
WHEREAS, subject to the terms and conditions set forth in this Subscription Agreement, and pursuant to Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), the Company desires to issue and sell to each Subscriber, and each Subscriber desires to purchase from the Company, securities of the Company as more fully described in this Subscription Agreement, in a private placement to Persons (as defined below) who are not U.S. Persons under Regulation S (the “Offering”); and
WHEREAS, each Subscriber understands that the Offering is being made without registration of the securities under the Securities Act, or any securities law of any state of the United States or of any other jurisdiction, and is being made to only non-U.S. Persons.
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants hereinafter set forth, the parties hereto do hereby agree as follows:
1. Subscription for Securities.
(a) Subscription for Securities. Subject to the terms and conditions hereinafter set forth, each Subscriber hereby irrevocably subscribes for and agrees to purchase the number of units (the “Units”) set forth next to such Subscriber’s name on the signature page, each such Unit consisting of (i) one share of the Company’s Series A Convertible Preferred Stock, $0.0001 par value per share (the “Preferred Stock”) and (ii) one warrant in the form set forth as Exhibit A hereto (each, a “Warrant”, and together with the Units, the shares of Preferred Stock, and the Conversion Shares (as defined below), the “Securities”) to purchase five shares of the Company’s common stock, $0.0001 par value per share (the “Common Stock”) at a price per Unit equal to $7.13 (the “Purchase Price”), and the Company agrees to sell such Units to such Subscriber for the Purchase Price, subject to the Company’s right, in its sole discretion, to reject this subscription, in whole or in part, at any time prior to the Closing (as defined below). Each Subscriber acknowledges that such Subscriber is not entitled to cancel, terminate or revoke this Subscription Agreement. Each Subscriber further acknowledges that the Securities will be subject to restrictions on transfer as set forth in this Subscription Agreement.
2. Terms of Subscription.
(a) Payment. Each Subscriber shall make payment for the Units to an account designated by the Company in an amount equal to the Purchase Price by wire transfer of immediately available funds at or prior to the Closing, or pursuant to instructions as agreed between such Subscriber and the Company.
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(b) Acceptance of Subscription and Issuance of Securities. It is understood and agreed that the Company shall have the sole right, at its complete discretion, to accept or reject this subscription, in whole or in part, for any reason and that the same shall be deemed to be accepted by the Company only when it is signed by a duly authorized officer of the Company and delivered to each Subscriber at the Closing (as defined below). Notwithstanding anything in this Subscription Agreement to the contrary, the Company shall have no obligation to issue any of the Securities to any Person who is a resident of a jurisdiction in which the issuance of Securities to such Person would constitute a violation of securities, “blue sky”, or other similar laws.
(c) Closing. The Offering may be consummated at such place (or by electronic transmission) as may be reasonably determined by the Company (the “Closing”) to occur on a date and at a time as may be mutually acceptable to the Company and each Subscriber, subject to satisfaction of the terms herein. On the Closing Date, the Company shall inform each Subscriber in writing of the Purchase Price as determined pursuant to Section 1(a) hereof and the date and time of Closing, which shall be binding upon the Company and each Subscriber.
(d) Closing Deliverables. At the Closing: (i) Each Subscriber shall deliver the Purchase Price; and (ii) the Company shall deliver a share certificate representing the shares of Preferred Stock and a Warrant to such Subscriber that bears an appropriate legend referring to the fact that the Securities are subject to transfer restrictions as set forth in the Securities Act.
3. Representations and Warranties of Subscriber.
Each Subscriber represents and warrants to the Company that:
(a) Reliance on Exemptions. Such Subscriber understands that the Securities are being offered and sold in reliance upon specific exemptions from registration provided in the Securities Act, and acknowledges that the Offering has not been reviewed by the Securities and Exchange Commission or any state agency because it is intended to be an offering exempt from the registration requirements of the Securities Act pursuant to Regulation S under the Securities Act. Such Subscriber understands that the Company is relying upon, and intends that the Company rely upon, the truth and accuracy of, and such Subscriber’s compliance with, the representations, warranties, agreements, acknowledgments and understandings of such Subscriber set forth herein in order to determine the availability of such exemptions and the eligibility of Subscriber to acquire the Securities. The Company may only make offers to sell the Securities to an individual, corporation, association, general or limited partnership, joint venture, trust, estate, limited liability company, other legal entity or organization, or the foreign equivalent of any of the foregoing (each, a “Person”) outside the United States in this Offering and, if applicable, at the time any buy order is originated, the buyer is outside the United States. Such Subscriber has not received an offer to purchase Securities inside the United States and will not originate a buy order inside the United States.
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(b) Non-U.S. Person . Such Subscriber is not and is not acquiring the Securities for the account or benefit of any of the following (each, a “U.S. Person”):
(i) a natural person resident in the United States;
(ii) a partnership or corporation organized or incorporated under the laws of the United States;
(iii) an estate of which any executor or administrator is a U.S. Person;
(iv) a trust of which any trustee is a U.S. Person;
(v) an agency or branch of a foreign entity located in the United States;
(vi) a non-discretionary account or similar account (other than an estate or trust) held by a dealer or other fiduciary for the benefit or account any of the foregoing; or
(vii) a partnership or corporation (A) organized or incorporated under the laws of any foreign jurisdiction, and (B) formed by a U.S. Person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated, and owned, by accredited investors (as defined in Regulation D under the Securities Act) who are not natural persons, estates or trusts.
(d) Investment Purpose. The Securities, and any shares of Common Stock issuable upon conversion or exercise thereof (the “Conversion Shares”), are being purchased for such Subscriber’s own account, for investment purposes only and not with a view to sale or resale, distribution or fractionalization of the Securities under applicable U.S. federal or state securities laws. Such Subscriber is not acquiring such Securities for the account or benefit of any U.S. Person and was not organized for the specific purpose of acquiring such Securities. Such Subscriber will not (i) resell or offer to resell the Securities, or any portion thereof, or (ii) engage in hedging transactions, in each case, except in accordance with the terms of this Agreement and in accordance with Regulation S under the Securities Act, pursuant to registration under the Securities Act or pursuant to an available exemption from registration under the Securities Act and otherwise in compliance with all applicable securities laws. Furthermore, prior to engaging in any hedging transaction or any resale of the Securities, or any portion thereof, by such Subscriber, such Subscriber shall provide the Company with an opinion of counsel acceptable to the Company in its sole discretion and in a form acceptable to the Company in its sole discretion, that any such proposed sale or hedging transaction is in compliance with the Securities Act or an exemption therefrom. Such Subscriber has no contract, undertaking, agreement, or arrangement with any Person to sell, distribute, transfer, or pledge to such Person or anyone else the Securities which such Subscriber hereby subscribes to purchase, or any interest therein, and such Subscriber has no present plans to enter into any such contract, undertaking, agreement, or arrangement. Such Subscriber agrees that the Company and its affiliates shall not be required to give effect to any purported transfer of such Securities except upon compliance with the foregoing restrictions.
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(e) Risk of Investment. Such Subscriber recognizes that the purchase of the Securities involves a high degree of risk in that: (i) an investment in the Company is highly speculative and only investors who can afford the loss of their entire investment should consider investing in the Company and the Securities; (ii) transferability of the Securities is limited; and (iii) the Company may require substantial additional funds to operate its business and there can be no assurance that the Offering will be completed.
(f) Use of Proceeds. Such Subscriber understands that the net proceeds of the Offering will be used in the development of the Company’s therapies, and for working capital and general corporate purposes.
(g) Prior Investment Experience. Such Subscriber understands the business in which the Company is engaged and has such knowledge and experience in business and financial matters that such Subscriber is capable of evaluating the merits and risks of the investment in the Securities. Such Subscriber has prior investment experience, and Subscriber recognizes the highly speculative nature of this investment.
(h) Information and Non-Reliance.
(i) Such Subscriber acknowledges that such Subscriber has carefully reviewed this Subscription Agreement, which such Subscriber acknowledges has been provided to such Subscriber. Such Subscriber has been given the opportunity to ask questions of, and receive answers from, the Company concerning the terms and conditions of this Offering and the Subscription Agreement and to obtain such additional information, to the extent the Company possesses such information or can acquire it without unreasonable effort or expense, necessary to verify the accuracy of same as such Subscriber reasonably desires in order to evaluate the investment. Such Subscriber understands the Subscription Agreement, and such Subscriber has had the opportunity to discuss any questions regarding the Subscription Agreement with such Subscriber’s counsel or other advisor. Notwithstanding the foregoing, the only information upon which such Subscriber has relied is that set forth in the Subscription Agreement and the results of independent investigation by such Subscriber. Such Subscriber has received no representations or warranties from the Company, its employees, agents or attorneys in making this investment decision other than as set forth in the Subscription Agreement. Such Subscriber does not desire to receive any further information.
(ii) Such Subscriber represents that it is not relying on (and will not at any time rely on) any communication (written or oral) of the Company, as investment advice or as a recommendation to purchase the Securities, it being understood that information and explanations related to the terms and conditions of the Securities and the Subscription Agreement shall not be considered investment advice or a recommendation to purchase the Securities.
(iii) Such Subscriber confirms that the Company has not (i) given any guarantee or representation as to the potential success, return, effect or benefit (either legal, regulatory, tax, financial, accounting or otherwise) an of investment in the Securities or (ii) made any representation to such Subscriber regarding the legality of an investment in the Securities under applicable legal investment or similar laws or regulations. In deciding to purchase the Securities, such Subscriber is not relying on the advice or recommendations of the Company and such Subscriber has made its own independent decision that the investment in the Securities is suitable and appropriate for such Subscriber.
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(i) Tax Consequences. Such Subscriber acknowledges that the Offering may involve tax consequences and that the contents of the Subscription Agreement do not contain tax advice or information. Such Subscriber acknowledges that such Subscriber must retain such Subscriber’s own professional advisors to evaluate the tax and other consequences of an investment in the Securities. Such Subscriber intends to acquire the Securities without regard to tax consequences.
(j) Transfer or Resale. Such Subscriber understands that the Securities have not been registered under the Securities Act or the securities laws of any state and, as a result thereof, are subject to substantial restrictions on transfer. Such Subscriber acknowledges that such Subscriber may be precluded from selling or otherwise disposing of the Securities for an indefinite period of time and that in no circumstance may the Securities be transferred to any U.S. Person for six (6) months. Such Subscriber understands and hereby acknowledges that the Company is under no obligation to register the Securities under the Securities Act. Such Subscriber consents that the Company may, if it desires, permit the transfer of the Securities out of Subscriber’s name only when Subscriber’s request for transfer is accompanied by an opinion of counsel reasonably satisfactory to the Company that neither the sale nor the proposed transfer results in a violation of the Securities Act or any applicable state “blue sky” laws. Such Subscriber also understands that sales or transfers of the Securities are further restricted by the Confidentiality Agreement (as defined below). Such Subscriber acknowledges and agrees that such Subscriber will not sell or transfer the Securities to any Person while in possession of material non-public information regarding the Company. Notwithstanding any of the foregoing, such Subscriber acknowledges that the Company may refuse to register any transfer of the Securities if such transfer is not made in accordance with the provisions of this Regulation S under the Securities Act or this Section 3(j).
(k) Due Authorization; Enforcement. Such Subscriber has all requisite power and authority (and in the case of an individual, capacity) to purchase and hold the Securities, to execute, deliver and perform such Subscriber’s obligations under this Subscription Agreement and when executed and delivered by such Subscriber, this Subscription Agreement will constitute legal, valid and binding agreements of such Subscriber enforceable against such Subscriber in accordance with their terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally, and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(l) Address. The residence address of such Subscriber furnished by such Subscriber on the signature page hereto is such Subscriber’s principal residence if such Subscriber is an individual or its principal business address if it is a corporation, partnership, trust or other entity.
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(m) Compliance with Laws. Such Subscriber will comply with all applicable laws and regulations in effect in any jurisdiction in which such Subscriber purchases or sells Securities and obtain any consent, approval or permission required for such purchases or sales under the laws and regulations of any jurisdiction to which such Subscriber is subject or in which such Subscriber makes such purchases or sales, and the Company shall have no responsibility therefore. Such Subscriber shall not effect any transactions in the Company’s securities other than the purchase of the Securities while Subscriber is in possession of material non-public information, until such time all material non-public information has been disclosed by the Company.
(n) Accuracy of Representations and Warranties. The information set forth herein concerning such Subscriber is true and correct. Such Subscriber understands that, unless such Subscriber notifies the Company in writing to the contrary at or before the Closing, each of such Subscriber’s representations and warranties contained in this Subscription Agreement will be deemed to have been reaffirmed and confirmed as of the Closing, taking into account all information received by such Subscriber.
(o) Entity Representation. If such Subscriber is a corporation, partnership, trust or other entity, such entity further represents and warrants that it was not formed for the purpose of investing in the Company.
(p) Confidentiality . Such Subscriber has executed and delivered to the Company that certain Confidentiality Agreement in the form attached hereto as Exhibit B (the “Confidentiality Agreement”).
4. Representations and Warranties of the Company.
The Company represents and warrants to each Subscriber that:
(a) Organization. The Company is organized and validly existing in good standing under the laws of the state of Delaware
.
(b) Due Authorization, Enforcement and Valid Issuance. The Company has all requisite power and authority to execute, deliver and perform its obligations under this Subscription Agreement, and when executed and delivered by the Company, this Subscription Agreement will constitute legal, valid and binding agreements of the Company enforceable against the Company in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting parties’ rights generally, and except as enforceability may be subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Securities have been duly authorized and, when issued and paid for in accordance with the terms of this Subscription Agreement,
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will be duly and validly issued, fully paid and nonassessable. In the event that Conversion Shares are issued in accordance with the Company’s Certificate of Designations of Preferences, Rights and Limitations of Series A Convertible Preferred Stock in the form attached as Exhibit C hereto (the “Certificate of Designation”), such Conversion Shares will be duly authorized by all necessary corporate action and validly issued and outstanding, fully paid and nonassessable, and the holders shall be entitled to all rights afforded to a holder of Common Stock. In the event that Conversion Shares are issued in accordance with the Warrant, such Conversion Shares will be duly authorized by all necessary corporate action and validly issued and outstanding, fully paid and nonassessable, and the holders shall be entitled to all rights afforded to a holder of Common Stock. The Company has and will continue to reserve a sufficient amount of Common Stock for the issuance of the Conversion Shares.
(c) Noncontravention. The execution and delivery of this Subscription Agreement and the consummation of the transactions contemplated hereby will not conflict with or constitute a violation of, or default under (i) any material agreement to which the Company is a party or by which it or any of its properties are bound or (ii) the organizational documents of the Company.
5. Conditions to Obligations of each Subscriber and the Company.
The obligations of each Subscriber to purchase and pay for the Securities specified on the signature page hereto and of the Company to sell the Securities are subject to the satisfaction at or prior to the Closing of the following conditions precedent:
(a) Representations and Warranties. The representations and warranties of such Subscriber contained in Section 3 hereof and of the Company contained in Section 4 hereof shall be true and correct as of the Closing in all respects with the same effect as though such representations and warranties had been made as of the Closing.
6. Legends.
The certificates representing the Securities sold pursuant to this Subscription Agreement will be imprinted with legends in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE WITH REGULATION S PROMULGATED UNDER THE ACT. IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED. HEDGING TRANSACTIONS INVOLVING THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE CONDUCTED EXCEPT IN COMPLIANCE WITH THE ACT.”
Certificates may also bear any other legend language that may be determined by the Company and its counsel from time to time.
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7. United States Anti-Money Laundering Program. Each Subscriber understands that the Company’s Board of Directors is required to comply with applicable anti-money laundering provisions under the United States PATRIOT Act of 2001, as amended (the “USA PATRIOT Act”). As a condition to acceptance of each Subscriber’s investment in the Company, such Subscriber makes the representations and agreements set forth on Exhibit D attached hereto, and agrees to provide to the Company true and correct copies of the applicable documentation pursuant to the requirements of Exhibit E, attached hereto. The Company reserves the right to request such additional information as is necessary to verify the identity of each Subscriber and the underlying beneficial owner of such Subscriber’s interest in the Company. In the event of delay or failure by such Subscriber to produce any information required for verification purposes, the Company may refuse to accept a subscription or may cause the withdrawal of such Subscriber from the Company.
8. Miscellaneous
(a) Notice. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Subscription Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by email or facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) business day after deposit with an overnight courier service, in each case properly addressed to the party to receive the same. The addresses, email and facsimile numbers for such communications shall be:
If to the Company: Enochian BioSciences Inc.
9480 NE 2nd Ave, #73
Miami, FL 33138
Phone: (305) 918-1980
E-mail: lpuche@enochianbio.com
Attention: Luisa Puche
with a copy to: K&L Gates LLP
200 South Biscayne Boulevard
Suite 3900
Miami, FL 33131
Facsimile: (305) 359-3306
E-mail: clayton.parker@klgates.com
Attention: Clayton E. Parker, Esq.
If to a Subscriber, to its residence address (or mailing address, if different), email and facsimile number set forth at the end of this Subscription Agreement, or to such other address, email and/or facsimile number and/or to the attention of such other individual as specified by written notice given to the Company five (5) calendar days prior to the effectiveness of such change.
(b) Entire Agreement; Amendment. This Subscription Agreement and the Confidentiality Agreement supersede all other prior oral or written agreements between each Subscriber, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and constitutes the entire understanding of the parties with respect to the matters covered herein. No provision of this Subscription Agreement may be amended or waived other than by an instrument in writing signed by the Company and each Subscriber.
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(c) Severability. If any provision of this Subscription Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Subscription Agreement in that jurisdiction or the validity or enforceability of any provision of this Subscription Agreement in any other jurisdiction.
(d) Governing Law. This Subscription Agreement shall be governed by and construed in accordance with the laws of the state of Delaware, without giving effect to any choice of law or conflict of law provision or rule.
(e) Consent to Personal Jurisdiction and Venue; Waiver of Jury Trial; Waiver of Service of Process. Each Subscriber hereby consents to personal jurisdiction and exclusive venue in the Circuit Court in and for Miami-Dade County, Florida. Furthermore, each Subscriber and Company hereby expressly waive a trial by jury in any action between such Subscriber and the Company arising out of or in connection with this Agreement. For purposes of this Section, the term “Subscriber” includes any business entity owned or controlled by the Subscriber. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such Notices on this signature page of this Subscription Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.
(g) Successors and Assigns. This Subscription Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. A Subscriber shall not assign its rights hereunder without the prior written consent of the Company.
(h) No Third Party Beneficiaries. This Subscription Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.
(i) Notification of Changes. Each Subscriber hereby covenants and agrees to notify the Company upon the occurrence of any event prior to the closing of the purchase of the Securities pursuant to this Subscription Agreement which would cause any representation, warranty or covenant of such Subscriber contained in this Subscription Agreement to be false or incorrect.
(j) Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Subscription Agreement and the consummation of the transactions contemplated hereby.
(k) Legal Representation. Each Subscriber acknowledges that: (i) such Subscriber has read this Subscription Agreement and the exhibits referred to herein; (ii) such Subscriber understands that the Company has been represented in the preparation, negotiation and execution of the Subscription Agreement; and (iii) such Subscriber understands the terms and conditions of the Subscription Agreement and is fully aware of their legal and binding effect.
(l) Expenses. Each party will bear its own costs and expenses (including legal and accounting fees and expenses) incurred in connection with this Subscription Agreement and the transactions contemplated hereby.
(m) Counterparts. This Subscription Agreement may be executed in counterparts, all of which shall be considered one and the same agreement. The exchange of signature pages by electronic signature, by electronic mail in “portable document format” (“.pdf”) form or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document shall constitute effective execution and delivery of this Agreement as to the parties.
[SIGNATURE PAGES FOLLOW]
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SUBSCRIBER SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT
IN WITNESS WHEREOF, and intending to be legally bound hereby, each Subscriber has caused this Subscription Agreement to be duly executed as of as of the date first set forth above, and by executing this signature page, hereby executes, adopts and agrees to all terms, conditions, and representations contained in the foregoing Subscription Agreement and hereby subscribes for the Securities offered by the Company in the amount set forth below.
SUBSCRIBER:
| Signature | |
| Print Name |
| Units (number of Units subscribed for): __________ |
|
Shares of Series A Convertible Preferred Stock included in the Units: __________ |
| Warrants included in the Units: __________ |
| Purchase Price (number of Units x $7.13): $__________ |
| Residence Address: | Mailing Address, if different from Residence Address: | |
COMPANY SIGNATURE PAGE TO SUBSCRIPTION AGREEMENT
IN WITNESS WHEREOF, and intending to be legally bound hereby, Enochian Biosciences Inc. has caused this Subscription Agreement to be duly executed as of as of the date first set forth above, and by executing this signature page, hereby executes, adopts and agrees to all terms, conditions, and representations contained in the foregoing Subscription Agreement.
| Accepted and Agreed: | ||
| ENOCHIAN BIOSCIENCES INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
EXHIBIT 10.2
FORM OF AMENDMENT NO. 4 TO
PROMISSORY NOTE
This Amendment No. 4 to Promissory Note (this “Amendment”), dated as of July 31, 2023 (the “Effective Date”), is entered into by and between ENOCHIAN BIOSCIENCES, INC., a Delaware corporation (the “Company”), and PASECO APS (the “Holder”).
RECITALS
WHEREAS, the Company issued to the Holder that certain Promissory Note in the principal amount of
$5,000,000, dated March 30, 2020 (the “Original Note”);
WHEREAS, Section 7(a) of the Original Note provides that the Original Note and any provision therein may be amended by the written agreement of the Company and the Holder; and
WHEREAS, Amendment No. 1 to Promissory Note the Company and the Holder amended the Original Note to extend the maturity of the Original Note until November 30, 2022.
WHEREAS, Amendment No. 2 to Promissory Note the Company and the Holder amended the Original Note to extend the maturity of the Original Note until November 30, 2023 and to revise the interest rate.
WHEREAS, Amendment No. 3 to Promissory Note the Company and the Holder amended the Original Note to secure the Original Note with a Security Agreement.
WHEREAS, the Company is conducting a private placement of units consisting of a share of preferred stock and warrants (the “Offering”).
NOW THEREFORE, in consideration of the mutual promises contained in this Amendment and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Holder, intending to be legally bound, hereby agree as follows:
| 1. | Capitalized Terms. Except as may be expressly provided herein, all capitalized terms used herein shall have the meanings assigned to them in the Original Note. |
| 2. | New Section 8. The Company and the Holder desire to amend the Original Note to provide limited conversion rights to the Holder in connection with the Offering: |
“Conversion. The Holder, at its election, may convert $2,000,000 of the outstanding principal balance of this Note into the units of preferred stock and warrants being offered by the Company in the Offering at the price per unit being paid by the investors in such Offering.”
| 3. | Conforming Changes. All provisions in the Original Note and any amendments, attachments, schedules or exhibits thereto in conflict with this Amendment shall be and hereby are changed to conform to this Amendment. |
| 4. | Full Force and Effect. The Original Note is not amended hereby and shall remain in full force and effect, except as otherwise set forth in this Amendment. The parties hereby ratify and confirm the terms and conditions of the Original Note, as supplemented and amended by this Amendment. |
| 5. | Recitals. The Recitals above are true and correct and are hereby incorporated by reference. |
| 6. | Applicable law. The substantive laws of the applicable state, as well as terms regarding forum and jurisdiction, as originally provided in the Original Note shall govern the construction of this Agreement and the rights and remedies of the parties hereto. |
| 7. | Counterparts. This Amendment may be executed in counterparts (including by means of electronic transmission), each of which shall be deemed an original but all of which, when taken together, will constitute one and the same agreement. |
** Signature Page Follows **
IN WITNESS WHEREOF, the Company and the Holder have made and executed this Amendment effective as of the Effective Date.
| COMPANY: | HOLDER: | |||
| ENOCHIAN BIOSCIENCES, INC. | PASECO APS | |||
| By: | /s/ Luisa Puche | By: | /s/ Ole Abildgaard | |
| Name: | Luisa Puche | Name: | Ole Abildgaard | |
| Title: | Chief Financial Officer | Title: | Chief Executive Officer, Paseco ApS | |
Signature Page to Amendment No. 4 to Promissory Note