EXHIBIT 10.1
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 June 26, 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 (i) shares set forth next to such Subscriber’s name on the signature page a
hereto (the “Shares”) of the Company’s common stock, $0.0001 par value per share (“Common Stock”)
and (ii) Common Stock purchase warrants (the “Warrants” and together with the Shares, the “Securities”)
at a price per Share equal to $0.53 (the “Purchase Price”), and the Company agrees to sell such Securities 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 Securities 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.
(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. Three days prior to Closing, the Company shall inform each Subscriber in writing of the Purchase Price as determined pursuant
to Section 1(a) 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 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.
(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 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.
(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.
(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 prior to the earlier of (i) the date
on which public disclosure of the Confidential Information, as defined and covered by the Confidentiality Agreement, is made in accordance
with terms of the Confidentiality Agreement or (ii) December 13, 2023. 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.
(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 Annex
A (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, will be duly and validly issued,
fully paid and nonassessable.
(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.
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 Annex B attached hereto, and agrees to provide to the Company true and correct copies of the applicable documentation
pursuant to the requirements of Annex C, 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.
0000 XX 0xx Xxx, #00
Miami, FL 33138
Phone: (000) 000-0000
E-mail: xxxxxx@xxxxxxxxxxx.xxx
Attention: Xxxxx Xxxxx
with a copy to: K&L
Gates LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Suite 3900
Miami, FL 33131
Facsimile: (000) 000-0000
E-mail: xxxxxxx.xxxxxx@xxxxxxx.xxx
Attention: Xxxxxxx X. Xxxxxx, 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.
(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(f) .
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 annexes 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]
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.
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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.
