Exhibit 10.1


 


Membership Interest Purchase Agreement








 


This Membership Interest
Purchase Agreement (this “Agreement”), dated as of May 28, 2020 (the “Effective Date”), is
entered into between HaloVax, LLC, a Delaware limited liability company (the “Company”), and Hoth Therapeutics,
Inc., a Nevada corporation (“Purchaser”).


 


Recitals


 


WHEREAS, the
Company wishes to sell to the Purchaser, and Purchaser wishes to purchase from the Company, a percentage of the Company’s
outstanding membership interests (the “Membership Interests”), subject to the terms and conditions set forth
herein.


 


NOW, THEREFORE,
in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:


 


1. Subscription.
The Purchaser, intending to be legally bound, hereby irrevocably agrees to purchase one percent (1%) of the Company’s outstanding
Membership Interests (the “Membership Interests”) as of the Closing Date (as defined below) for a purchase price
of $100,000.


 


2. The
Offering. The offering of the Membership Interests contemplated hereby (the “Offering”) is being made in
reliance on the exemption from registration provided in Section 4(a)(2) of the Securities Act of 1933, as amended (the “Act”).


 


3. Deliveries
and Payment.


 


(a) Simultaneously
with the execution hereof, the Purchaser shall deliver to the Company a completed and executed signature page to this Agreement.


 


(b) The
Membership Interests will be issued and sold by the Company to the Purchaser at a closing (the “Closing”) to
occur on or before June 15, 2020 (the “Closing Date”). At the Closing, the Company shall issue and sell to the
Purchaser and the Purchaser shall purchase from the Company the Membership Interests.


 


(c) On
or before the Closing, the Purchaser shall make a wire transfer payment in the full amount of the purchase price for the Membership
Interests to an account specified in writing by the Company.


 


4. Acceptance
of Subscription. The Purchaser understands and agrees that the Company, in its sole discretion, reserves the right to accept
or reject this subscription or any other subscription for the Membership Interests, in whole or in part, notwithstanding prior
receipt by the Purchaser of notice of acceptance of a subscription. The Company shall have no obligation hereunder until the Company
executes and delivers to the Purchaser an executed copy of this Agreement. If any subscription is rejected in whole or in part
or the Offering is terminated, all funds received from the Purchaser will be returned without interest or offset, and this Agreement
shall thereafter be of no further force or effect.


 






     


     


    

 


Within five (5) calendar
days of the Closing, the Company shall deliver the Membership Interests to the Purchaser at the address set forth on the signature
page hereto.


 


5. Representations
and Warranties.


 


The Company hereby
represents and warrants to Purchaser as of the date of this Agreement as set forth below.


 


(a) The
Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.
The Company has all requisite power and authority to (1) own and operate its properties and assets, (2) execute and deliver this
Agreement, (3) issue and sell the Membership Interests, (4) carry out the provisions of this Agreement, and (5) carry on its business
as presently conducted and as presently proposed to be conducted. The Company is duly authorized to do business and is in good
standing in all jurisdictions in which the nature of its activities and of its properties makes such qualification necessary, except
for those jurisdictions in which failure to do so would not have a material adverse effect on the Company or its business.


 


(b) All
action on the part of the Company, its officers, board of managers and members necessary for the authorization of this Agreement,
the performance of all obligations of the Company hereunder at the Closing and the authorization, sale, issuance and delivery of
the Membership Interests pursuant hereto has been taken or will be taken prior to the Closing. This Agreement, when executed and
delivered, will be a valid and binding obligation of the Company enforceable in accordance with its terms except (1) as limited
by the applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement
of creditors’ rights, and (2) general principles of equity that restrict the availability of equitable remedies.


 


(c) The
execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated
hereby do not, and will not, (i) conflict with or violate any provision of the Company’s certificate or articles of organization,
bylaws or other organizational or charter documents, (ii) in any material respect, conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company debt or otherwise) or other understanding to which the Company is a party or by which any property
or asset of the Company is bound, or affected, or (iii) in any material respect, result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company is subject
(including, assuming the accuracy of the representations and warranties of the Purchaser set forth in this Section 5, federal and
state securities laws and regulations and the rules and regulations of any self-regulatory organization to which the Company or
their respective securities are subject, including all applicable trading markets), or by which any property or asset of the Company
is bound or affected, except in the case of clauses (ii) and (iii) such as would not, have a material adverse effect on the Company
or its business.


 






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The Purchaser hereby
acknowledges, represents, warrants, and agrees as follows:


 


(a) The
Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada with the
requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise
to carry out its obligations hereunder. The purchase by the Purchaser of the Membership Interests hereunder has been duly authorized
by all necessary corporate action on the part of the Purchaser. This Agreement has been duly executed and delivered by the Purchaser
and constitutes the valid and binding obligation of the Purchaser, enforceable against it in accordance with its terms, except
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws
of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the
availability of specific performance, injunctive relief or other equitable remedies.


 


(b) None
of the Membership Interests are registered under the Act, or any state securities laws. The Purchaser understands that the offering
and sale of the Membership Interests is intended to be exempt from registration under the Act by virtue of Section 4(a)(2) thereof
based, in part, upon the representations, warranties and agreements of the Purchaser contained in this Agreement.


 


(c) The
execution, delivery and performance by the Purchaser of this Agreement and the consummation by the Purchaser of the transactions
contemplated hereby do not and will not (i) result in a violation of the organizational documents of the Purchaser or (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the
Purchaser is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal
and state securities laws) applicable to the Purchaser, except in the case of clauses (ii) and (iii) above, for such that are not
material and do not otherwise affect the ability of the Purchaser to consummate the transactions contemplated hereby.


 


(d) The
Membership Interests to be received by the Purchaser hereunder will be acquired for such Purchaser’s own account, not as
nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the Act, and the Purchaser
has no present intention of selling, granting any participation in, or otherwise distributing the same in violation of the Act
without prejudice, however, to the Purchaser’s right at all times to sell or otherwise dispose of all or any part of such
Membership Interests in compliance with applicable federal and state securities laws. The Purchaser is not a broker-dealer registered
with the Securities and Exchange Commission (“SEC”) under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or an entity engaged in a business that would require it to be so registered.


 


(e) The
Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and
financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Membership Interests,
and has so evaluated the merits and risks of such investment. The Purchaser understands that it must bear the economic risk of
this investment in the Membership Interests indefinitely, and is able to bear such risk and is able to afford a complete loss of
such investment.


 






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(f) Neither
the SEC nor any state securities commission or other regulatory authority has approved the Membership Interests, or passed upon
or endorsed the merits of the Offering or confirmed the accuracy or determined the adequacy of any information provided by the
Company to the Purchaser in connection with the Offering.


 


(g) The
Purchaser has had an opportunity to receive all information related to the Company requested by it and to ask questions of and
receive answers from the Company regarding the Company, its business and the terms and conditions of the Offering of the Membership
Interests.


 


(h) The
Purchaser is unaware of, is in no way relying on, and did not become aware of the Offering through or as a result of, any form
of general solicitation or general advertising.


 


(i) The
Purchaser has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or
the like relating to this Agreement or the transactions contemplated hereby (other than commissions, if any, payable by the Company
pursuant to the terms of any contract to which the Company is a party).


 


(j) The
Purchaser is aware that an investment in the Company is subject to substantial risks.


 


(k) At
the time the Purchaser was offered the Membership Interests, it was, and at the date hereof it is an “accredited investor”
as defined in Rule 501(a) under the Act or a “qualified institutional buyer” as defined in Rule 144A(a) under the Act.


 


(l) It
is understood that the certificates representing the Membership Interests will bear the following legends:


 


THE SECURITIES
REPRESENTED HEREBY HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE
IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND, ACCORDINGLY, MAY NOT BE TRANSFERRED
UNLESS (I) SUCH MEMBERSHIP INTERESTS HAVE BEEN REGISTERED FOR SALE PURSUANT TO THE SECURITIES ACT OF 1933, AS AMENDED, (II) SUCH
MEMBERSHIP INTERESTS MAY BE SOLD PURSUANT TO RULE 144, OR (III) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO IT THAT SUCH TRANSFER MAY LAWFULLY BE MADE WITHOUT REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED.


 


TRANSFER OF
THE MEMBERSHIP INTERESTS REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE INITIAL
PURCHASER OF THIS SECURITY AND THE COMPANY’S OPERATING AGREEMENT, AS APPLICABLE. ANY PURPORTED TRANSFER IN VIOLATION OF SUCH
AGREEMENT IS NULL AND VOID, AB INITIO.


 






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6. Tag-Along
Rights.


 


(a) Tag-Along
Rights.


 


(i) If
the Company wishes to sell, give, assign, hypothetic, pledge, encumber, grant a security interest in or otherwise dispose of (whether
by operation of law or otherwise) (each a “Transfer”) fifty percent (50%) of its Membership Interests to a third-party
purchaser, then the Purchaser shall have the right to sell to such third-party purchaser, upon the same terms and conditions as
the Company, up to that number of Membership Interests held by the Purchaser equal to that percentage of the number of Membership
Interests proposed to be Transferred by the Company determined by dividing the total number of Membership Interests then owned
by the Purchaser by the total number of Membership Interests then owned by the Company.


 


(ii) The
Company shall give written notice to the Purchaser of each proposed sale by it of Membership Interests which gives rise to the
rights of the Purchaser set forth in this Section 6(a) at least fifteen (15) days prior to the proposed consummation of such sale,
setting forth the number of Membership Interests proposed to be sold, the name and address of the proposed third-party purchaser,
the proposed amount and form of consideration and terms and conditions of payment offered by such third-party purchaser, the percentage
of Membership Interests that the Purchaser may sell to such third-party purchaser (determined in accordance with Section 6(a)),
and a representation that such third-party purchaser has been informed of the “tag-along” rights provided for in this
Section 6(a) and has agreed to purchase Membership Interests in accordance with the terms hereof. The tag-along rights provided
by this Section 6(a) must be exercised by the Purchaser pursuant to this Section 6(a) within ten (10) days following receipt of
the notice required by the preceding sentence, by delivery of a written notice to the Company indicating the Purchaser wishes to
exercise its rights and specifying the number of Membership Interests (up to the maximum number of Membership Interests owned by
the Purchaser required to be purchased by such third-party purchaser) it wishes to sell. The failure of the Purchaser to respond
within such 10-day period shall be deemed to be a waiver of the Purchaser rights under this Section 6(a), provided that the Purchaser
may waive its rights under this Section 6(a) prior to the expiration of such 10-day period by giving written notice to the Company.
If a third-party purchaser fails to purchase Membership Interests from the Purchaser pursuant to this Section 6(a), then the Company
shall not be permitted to consummate the proposed sale of its Membership Interests unless and until, simultaneous with such sale,
the Company purchases from the Purchaser the number of Membership Interests the Purchaser is entitled to sell under this Section
6(a) on the same terms and conditions as the Company is Transferring its Membership Interests to the third-party purchaser.


 


(b)General.Any attempt
to Transfer any Membership Interests or any rights thereunder in violation of this Agreement shall be null and void ab initio.


 


7. Modification.
This Agreement shall not be modified or waived except by an instrument in writing signed by the party against whom any such modification
or waiver is sought.


 






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8. Notices.
Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be deemed effectively
given: (a) upon personal delivery to the party notified, (b) when sent by confirmed email or facsimile if sent during normal business
hours of the recipient, if not, then on the next business day, (c) five (5) days after having been sent by registered or certified
mail, return receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications shall be sent to the parties at their respective address,
email or facsimile number set forth on the signature page hereto, or to such other address as such party shall have furnished in
writing in accordance with the provisions of this Section 8.


 


9. Assignability.
This Agreement and the rights, interests and obligations hereunder are not transferable or assignable by the Purchaser and the
transfer or assignment of any Membership Interests acquired by the Purchaser shall be made only in accordance with all applicable
laws and the terms of the Company’s Operating Agreement, as applicable. Any purported transfer in violation of this Agreement
or the Operating Agreement, as applicable, shall be null and void ab initio.


 


10. Applicable
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts
to be wholly- performed within said State.


 


11. Dispute
Resolution. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of New York
located in New York county and to the jurisdiction of the United States District Court for the Southern District of New York for
the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any
suit, action or other proceeding arising out of or based upon this Agreement except in such courts, and (c) hereby waive, and agree
not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that
the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement or the subject matter hereof may not be enforced in or by such court.


 


WAIVER OF JURY TRIAL:
EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT,
THE MEMBERSHIP INTERESTS OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF
ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS.


 


12. Blue
Sky Qualification. The purchase of the Membership Interests under this Agreement is expressly conditioned upon the exemption
from qualification of the offer and sale thereof, as applicable, from applicable federal and state securities laws. The Company
shall not be required to qualify the Offering or any issuance of the Membership Interests under the securities laws of any jurisdiction.


 






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13. Use
of Pronouns. All pronouns and any variations thereof used herein shall be deemed to refer to the masculine, feminine, neuter,
singular or plural as the identity of the person or persons referred to may require.


 


14. Miscellaneous.


 


(a) This
Agreement, including all attachments, schedules and exhibits thereto, constitutes the entire agreement between the Purchaser and
the Company with respect to the subject matter hereof and supersede all prior oral or written agreements and understandings, if
any, relating to the subject matter hereof.


 


(b) The
representations and warranties of the Purchaser made in this Agreement shall survive the execution and delivery hereof and delivery
of the Membership Interests.


 


(c) Each
of the parties hereto shall pay its own fees and expenses (including the fees of any attorneys, accountants, appraisers or others
engaged by such party) in connection with this Agreement and the transactions contemplated hereby whether or not the transactions
contemplated hereby are consummated.


 


(d) This
Agreement may be executed in one or more counterparts (including electronic counterparts), each of which shall be deemed an original,
but all of which shall together constitute one and the same instrument. This Agreement will be binding on the parties hereto and
their successors, permitted assigns and legal representatives.


 


(e) Each
provision of this Agreement shall be considered separable and, if for any reason any provision or provisions hereof are determined
to be invalid or contrary to applicable law, such invalidity or illegality shall not impair the operation of or affect the remaining
portions of this Agreement.


 


(f) Paragraph
and Section titles are for convenience and descriptive purposes only and are not to be considered in construing or interpreting
this Agreement.


 


[SIGNATURE PAGE FOLLOWS]


 






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In
Witness Whereof, the parties hereto have executed this Agreement as of the last date set forth in the spaces provided
below on which a party executed this Agreement.


 


	PURCHASER:	 
	 	 
	HOTH THERAPEUTICS, INC.	 
	 	 	 
	By:	/s/ Robb Knie	 
	Name:	Robb Knie	 
	Title:	Chief Executive Officer	 
	 	 	 
	Date:	May 28, 2020	 


 


Address: 1 Rockefeller Plaza, Suite 1039,
New York, NY 10020


 






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In
Witness Whereof, the parties hereto have executed this Agreement as of the last date set forth in the spaces provided
below on which a party executed this Agreement.


 


COMPANY:


 


	HALOVAX, LLC	 
	 	 	 
	By:	/s/ Matthew Duffy	 
	Name:	Matthew Duffy	 
	Title:	President	 
	 	 	 
	Date:	May 28, 2020	 


 


 


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