Exhibit 10.1


 





1010 Stony Hill Road, Suite 200


Yardley, PA 19067


Tel: 215.702.8550




 


March 13, 2017


 


Celgene Corporation


86 Morris Avenue


Summit, New Jersey 07901


Attention: Office of General Counsel


 


Re: Side Letter - Securities Purchase Agreement


 


Reference is made
to that certain Securities Purchase Agreement, dated as of February 27, 2017 (the “Purchase Agreement”),
by and between Alliqua BioMedical, Inc., a Delaware corporation (the “Company”), and Celgene Corporation,
a Delaware corporation (“Celgene”), pursuant to which the Company issued and sold to Celgene, and Celgene
purchased from the Company, 4,000,000 shares of common stock of the Company. Reference is further made to that certain warrant
issued by the Company to Celgene on November 18, 2013 (the “2013 Warrant”) and that certain warrant
issued by the Company to Celgene on April 14, 2014 (the “2014 Warrant” and together with the 2013 Warrant,
the “Warrants”). All capitalized terms in this letter (the “Letter Agreement”)
shall have the meanings assigned to them under the Purchase Agreement, unless otherwise defined herein.


 


By signature and countersignature
below, the Company and Celgene agree to the following:


 


		1)	Conditional Waiver of MFN.
                                         Effective as of February 27, 2017, the provisions of Section 4.15 of the Purchase Agreement
                                         are hereby waived to the extent that the MFN Adjustment would cause Celgene (together
                                         with its affiliates) to beneficially own (as determined in accordance with Section 13(d)
                                         of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated
                                         thereunder) in excess of 19.9% of the number of shares of Common Stock outstanding immediately
                                         after giving effect to such MFN Adjustment (the “Maximum MFN Aggregate Ownership
                                         Amount”) or control in excess of 19.9% of the total voting power of the
                                         Company's securities outstanding immediately after giving effect to such MFN Adjustment
                                         that are entitled to vote on a matter being voted on by holders of the Common Stock (the
                                         “Maximum MFN Aggregate Voting Amount”) until the earlier of
                                         (i) the Company obtaining stockholder approval of resolutions approving the issuance
                                         of any securities to Celgene as a result of the MFN Adjustment in excess of the Maximum
                                         MFN Aggregate Ownership Amount or Maximum MFN Aggregate Voting Amount, as the case may
                                         be, pursuant to Nasdaq Listing Rule 5635(b) (the “MFN Stockholder Approval”)
                                         or (ii) or a Change of Control (as hereinafter defined). If as a result of any MFN Adjustment,
                                         the issuance of any Company securities to Celgene would exceed the Maximum MFN Warrant
                                         Aggregate Ownership Amount or the Maximum MFN Warrant Aggregate Voting Amount, and the
                                         Company shall not have previously obtained MFN Stockholder Approval, then the Company
                                         shall issue to Celgene such number of Company securities as may be issued below the Maximum
                                         MFN Aggregate Ownership Amount or Maximum MFN Aggregate Voting Amount, as the case may
                                         be, and, with respect to the remaining securities that would otherwise be issuable to
                                         Celgene as a result of the MFN Adjustment, such securities shall be held in abeyance
                                         until MFN Stockholder Approval has been obtained or the occurrence of a Change of Control.
                                         “Change of Control” means any consolidation or merger of the
                                         Company with or into any other corporation or other entity or person, or any other corporate
                                         reorganization in which the Company shall not be the continuing or surviving entity of
                                         such reorganization or any transaction or series of related transactions by the Company
                                         in which in excess of 50% of the Company’s voting power is transferred, or a sale
                                         of all or substantially all of the assets of the Company, other than any transaction
                                         or series of related transactions which is primarily for the purpose of financing the
                                         Company or a reincorporation of the Company.



 




     


     


    

 


		2)	Warrant Share Cap.



 


		a.	Notwithstanding anything in the Warrants
                                         to the contrary, the Company shall not issue to Celgene any shares of Common Stock issuable
                                         upon exercise of the Warrants (the “Warrant Shares”), to the
                                         extent such shares after giving effect to such issuance after exercise, Celgene (together
                                         with its affiliates) would (a) beneficially own (as determined in accordance with Section
                                         13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations
                                         promulgated thereunder) in excess of 19.9% of the number of shares of Common Stock outstanding
                                         immediately after giving effect to such issuance (the “Maximum Warrant Aggregate
                                         Ownership Amount”) or (b) control in excess of 19.9% of the total voting
                                         power of the Company's securities outstanding immediately after giving effect to such
                                         issuance that are entitled to vote on a matter being voted on by holders of the Common
                                         Stock (the “Maximum Warrant Aggregate Voting Amount”), unless
                                         and until the Company obtains stockholder approval permitting such issuances in accordance
                                         with Nasdaq Listing Rule 5635(b) (the “Warrant Stockholder Approval”).



 


		b.	If on any attempted exercise of any
                                         Warrant, the issuance of Warrant Shares would exceed the Maximum Warrant Aggregate Ownership
                                         Amount or the Maximum Warrant Aggregate Voting Amount, and the Company shall not have
                                         previously obtained Warrant Stockholder Approval at the time of exercise, then the Company
                                         shall issue to Celgene such number of Warrant Shares as may be issued below the Maximum
                                         Warrant Aggregate Ownership Amount or Maximum Warrant Aggregate Voting Amount, as the
                                         case may be, and, with respect to the remainder of the aggregate number of Warrant Shares,
                                         this Warrant shall not be convertible until and unless Warrant Stockholder Approval has
                                         been obtained or the occurrence of a Change of Control.



 




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		3)	Shareholder Approval.



 


		a.	The Company shall provide each Company
                                         stockholder entitled to vote at an annual or special meeting of stockholders of the Company
                                         (the “Stockholder Meeting”), which meeting shall be promptly
                                         called and held no later than May 31, 2017 (the “Stockholder Meeting Deadline”),
                                         a proxy statement meeting the requirements of Section 14 of the Securities Exchange Act
                                         of 1934, as amended, and the related rules and regulations promulgated thereunder (the
                                         “Proxy Statement”) soliciting the MFN Stockholder Approval
                                         and Warrant Stockholder Approval in accordance with applicable law, the rules and regulations
                                         of the NASDAQ Stock Market, the Company's certificate of incorporation and bylaws and
                                         the General Corporation Law of the State of Delaware, and the Company shall use its reasonable
                                         best efforts to solicit the MFN Stockholder Approval and Warrant Stockholder Approval
                                         and to cause the board of directors of the Company to recommend to the Company stockholders
                                         that they approve the MFN Stockholder Approval and Warrant Stockholder Approval.



 


		b.	The Proxy Statement shall be in a
                                         form reasonably acceptable to Celgene and accordingly, the Company shall provide Celgene
                                         with reasonable opportunity to review and comment on the Proxy Statement. The Company
                                         shall keep Celgene apprised of the status of matters relating to the Proxy Statement
                                         and the Stockholder Meeting, including promptly furnishing Celgene with copies of notices
                                         or other communications related to the Proxy Statement, the Stockholder Meeting or the
                                         transactions contemplated hereby received by the Company from the Commission or the NASDAQ
                                         Stock Market. If either the MFN Stockholder Approval or Warrant Stockholder Approval
                                         is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause
                                         an additional Stockholder Meeting to be held every three (3) months thereafter until
                                         such MFN Stockholder Approval and/or Warrant Stockholder Approval is obtained, as the
                                         case may be.



 


		4)	Integration. Except as otherwise
                                         modified pursuant to the paragraphs above, no other changes or modifications to the Purchase
                                         Agreement or the Warrants are intended or implied and in all other respects the Purchase
                                         Agreement and the Warrants are specifically deemed ratified, restated and confirmed by
                                         the parties hereto, effective as of the date hereof. To the extent that there exists
                                         any conflict between the terms of this Letter Agreement and the Purchase Agreement or
                                         the Warrants, the terms of this Letter Agreement shall control. This Letter Agreement
                                         together with the Purchase Agreement and the Warrants shall be read and construed as
                                         one agreement.



 


Please return an executed,
counter-signed copy of this Letter Agreement to the Company.


 


[Signature Page
Follows]


 




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[Signature Page to Side Letter]


 


	 	Very truly yours,
	 	 
	 	Alliqua BioMedical, Inc.
	 	 	 
	 	By:	/s/ Brian
    M. Posner
	 	Name:  	Brian M. Posner
	 	Title: 	CFO


 


Acknowledged and Agreed:





Celgene Corporation


 


	By:	/s/
    Jonathan Biller 	 
	 	Name:	Jonathan Biller	 
	 	Title:	Senior VP, Tax & Treasury	 


 




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