EXHIBIT 10.1


 


WARRANT EXCHANGE AGREEMENT


 


This WARRANT EXCHANGE
AGREEMENT (this “Agreement”), dated as of April 30, 2014, by and between Alliqua, Inc., a Florida
corporation (the “Company”), and each of the holders of the Company’s warrants set forth on the
signature pages hereto (each, a “Holder” and collectively, the “Holders”).


 


WHEREAS, in
May 2010, in connection with a series of private placement transactions, the Company issued (i) five year warrants to purchase
up to an aggregate of 140,709 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”)
at an exercise price of $8.75 per share (the “$8.75 Warrants”) and (ii) five year warrants to purchase
up to an aggregate of 140,709 shares of Common Stock at an exercise price of $7.00 per share (the “$7.00 Warrants”
and together with the $8.75 Warrants, the “Warrants”), to the investors in such private placements;


 


WHEREAS, each
Holder owns those certain Warrants to purchase such shares of Common Stock as are listed on Schedule A attached hereto (the
“Warrant Shares”) and has requested that the Company exchange such Holder’s Warrants, for no additional
consideration, for such number of shares of Common Stock that is equal to a fraction, (i) the numerator of which is the number
of Warrant Shares issuable upon the exercise of such Holder’s Warrants and (ii) the denominator of which shall be five (5)
(such shares, the “Exchange Shares” and such exchange of Warrants for Exchange Shares, the “Exchange”);


 


WHEREAS, in
order to improve the capital structure of the Company, the Company desires to consummate the Exchange pursuant to the terms proposed
by the Holders;


 


WHEREAS, following
the Exchange, the Warrants shall be automatically cancelled and terminated and the Holders shall have no further rights pursuant
to the Warrants; and


 


WHEREAS, the
Exchange is being made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933,
as amended (the “Securities Act”).


 


NOW, THEREFORE,
in consideration of the premises and mutual covenants herein below, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:


 


		1.	The Exchange. At the Closing (as defined below), the Company and the Holders shall, pursuant
to Section 3(a)(9) of the Securities Act, exchange the Warrants and the Exchange Shares, as follows:



 


		a.	Closing. The Exchange shall occur remotely via exchange of signatures on such later date
as is mutually agreed to by the Company and the Holders (the “Closing”). The Holders understand that
this Agreement is not binding on the Company until the Company accepts it, which acceptance is in the Company’s sole discretion,
by executing this Agreement where indicated.



 






    	 



    	 



    

 


		b.	Exchange Shares. The Holders shall receive the number of Exchange Shares equal to one-fifth
(1/5th) of the number of Warrant Shares and as further set forth on Schedule A hereto.



 


		c.	Consideration. At the Closing, the Exchange Shares shall be issued to each Holder in exchange
for such Holder’s Warrants without the payment of any other consideration by such Holder that would not be consistent with
the application of Section 3(a)(9) of the Securities Act to the issuance of the Exchange Shares. Each Holder hereby agrees that,
upon and subject to the Closing, all of the Company’s obligations under the terms and conditions of such Holder’s Warrants
shall be automatically terminated and cancelled in full without any further action required, and that this Section 1(c)
shall constitute an instrument of termination and cancellation of such Warrants.



 


		d.	Delivery. In the Exchange, the Company shall, at the Closing, deliver the Exchange Shares
to each Holder in certificated form. Each Holder shall deliver or cause to be delivered to the Company (or its designee), within
five (5) trading days after the Closing, the original Warrants. For the avoidance of doubt, as of the Closing all of the Holders’
rights under the terms and conditions of the Warrants shall be extinguished.



 


		e.	Other Documents. The Company and the Holders shall execute and/or deliver such other documents
and agreements as are reasonably necessary to effectuate the Exchange pursuant to the terms of this Agreement.



 


		2.	Representations and Warranties.



 


		a.	Holders’ Representations and Warranties. Each Holder hereby represents and warrants
to the Company:



 


		i.	Such Holder is either an individual or an entity validly existing and in good standing under the
laws of the jurisdiction of its organization.



 


		ii.	This Agreement has been duly authorized, validly executed and delivered by such Holder and is a
valid and binding agreement and obligation of such Holder enforceable against such Holder in accordance with its terms, subject
to limitations on enforcement by general principles of equity and by bankruptcy or other laws affecting the enforcement of creditors’
rights generally, and such Holder has full power and authority to execute and deliver this Agreement and the other agreements and
documents referred to in Section 1(e) and to perform its obligations hereunder and thereunder.



 


		iii.	Such Holder understands that the Exchange Shares are being offered, sold, issued and delivered
to it in reliance upon specific provisions of federal and applicable state securities laws, and that the Company is relying upon
the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of such Holder set forth
herein for purposes of qualifying for exemptions from registration under the Securities Act and applicable state securities laws.



 






    	 



    	 



    

 


		iv.	Such Holder is not acquiring the Exchange Shares as a result of any advertisement, article, notice
or other communication regarding the Exchange Shares published in any newspaper, magazine or similar media or broadcast over television
or radio or presented at any seminar or any other general advertisement.



 


		v.	Such Holder, 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 Exchange Shares, and has so evaluated the merits and risks of such investment. Such Holder is able to bear the economic
risk of an investment in the Exchange Shares and, at the present time, is able to afford a complete loss of such investment.



 


		vi.	Such Holder acknowledges that the offer, sale, issuance and delivery of the Exchange Shares to
it is intended to be exempt from registration under the Securities Act, by virtue of Section 3(a)(9) thereof. Such Holder understands
that the Exchange Shares may be sold or transferred only in compliance with all federal and applicable state securities laws.



 


		vii.	Such Holder understands that the Exchange Shares are “restricted securities” and have
not been registered under the Securities Act or any applicable state securities law and such Holder is acquiring the Exchange Shares
as principal for its own account and not with a view to or for distributing or reselling such Exchange Shares or any part thereof
in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of such
Exchange Shares in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Exchange Shares in violation of the
Securities Act or any applicable state securities law (this representation and warranty not limiting such Holder’s right
to sell the Exchange Shares in compliance with applicable federal and state securities laws). Such Holder is acquiring the Exchange
Shares hereunder in the ordinary course of its business.



 


		viii.	Such Holder owns and holds, beneficially and of record, the entire right, title, and interest in
and to such Holder’s Warrants free and clear of all rights and Encumbrances (as defined below). Such Holder has full power
and authority to transfer and dispose of the Warrants to the Company free and clear of any right or Encumbrance. Other than the
transactions contemplated by this Agreement, there is no outstanding vote, plan, pending proposal, or other right of any person
to acquire all or any of the Warrants. As used herein, “Encumbrances” shall mean any security or other
property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title
claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected, voluntarily
incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any of the
foregoing in the future. The Warrants set forth opposite such Holder’s name on Schedule A hereto constitutes all of the Warrants
owned or held of record or beneficially owned or held by such Holder.



 






    	 



    	 



    

 


		b.	Company Representations and Warranties. The Company hereby represents and warrants to the
Holders:



 


		i.	The Exchange Shares have been duly authorized by all necessary corporate action, and, when issued
and delivered in accordance with the terms hereof, the Exchange Shares shall be validly issued and outstanding, fully paid and
nonassessable, and, except as otherwise set forth herein, free and clear of all liens, encumbrances and rights of refusal of any
kind.



 


		ii.	This Agreement has been duly authorized, validly executed and delivered on behalf of the Company
and is a valid and binding agreement and obligation of the Company enforceable against the Company in accordance with its terms,
subject to limitations on enforcement by general principles of equity and by bankruptcy or other laws affecting the enforcement
of creditors’ rights generally, and the Company has full power and authority to execute and deliver this Agreement and the
other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder.



 


		iii.	The Company represents that it has not paid, and shall not pay, any commissions or other remuneration,
directly or indirectly, to any third party for the solicitation of the Exchange contemplated by this Agreement. Other than the
exchange of a Holder’s Warrants, the Company has not received and will not receive any consideration from such Holder for
the Exchange Shares to be issued to such Holder pursuant to this Agreement.



 


		iv.	The Company has not, nor has any person acting on its behalf, directly or indirectly made any offers
or sales of any security or solicited any offers to buy any security under circumstances that would cause the Exchange and the
issuance of the Exchange Shares pursuant to this Agreement to be integrated with prior offerings by the Company for purposes of
the Securities Act which would prevent the Company from delivering the Exchange Shares to each Holder pursuant to Section 3(a)(9)
of the Securities Act, nor will the Company take any action or steps that would cause the Exchange, issuance and delivery of the
Exchange Shares to be integrated with other offerings to the effect that the delivery of the Exchange Shares to the Holders would
be seen not to be exempt pursuant to Section 3(a)(9) of the Securities Act.



 


		v.	For the purposes of Rule 144 of the Securities Act, the Company acknowledges that the holding period
of the Exchange Shares may be tacked onto the holding period of the Warrants pursuant to Rule 144(d)(3)(ii).



 


		3.	Miscellaneous.



 


		a.	Entire Agreement. This Agreement constitutes the entire agreement, and supersedes all other
prior and contemporaneous agreements and understandings, both oral and written, between the Holders and the Company with respect
to the subject matter hereof.



 






    	 



    	 



    

 


		b.	Amendment. This Agreement may only be amended with the written consent of the Holders and
the Company.



 


		c.	Successors. All the covenants and provisions of this Agreement by or for the benefit of
the Holders or the Company shall bind and inure to the benefit of their respective successors and assigns.



 


		d.	Applicable Law; Consent to Jurisdiction. The validity, interpretation and performance of
this Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law
principles that would result in the application of the substantive laws of another jurisdiction. Each of the parties hereby agrees
that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced
in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive. Each party hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum.



 


		e.	Counterparts. This Agreement may be executed in original or facsimile counterparts, each
of such counterparts shall for all purposes be deemed to be an original, and all of such counterparts shall together constitute
but one and the same instrument.



 


		f.	Severability. Whenever possible, each provision of this Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.



 


		g.	No Commissions. Neither the Company nor any Holder has paid or given, or will pay or give,
to any person, any commission, fee or other remuneration, directly or indirectly, in connection with the transactions contemplated
by this Agreement.



 


* * * * * * *


 






    	 



    	 



    

 


IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


	 	ALLIQUA, INC.
	 	 
	 	By:	 /s/ Brian Posner 
	 	Name:	 Brian Posner
	 	Title:	 Chief Financial Officer 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	Alexander Hasenfeld, Inc. Profit Sharing Plan 
	 	 
	 	By: /s/ Nachum Stein____________________
	 	Name: Nachum Stein
	 	Title: Trustee



 








	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 






 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	American European Group______
	 	 
	 	By: /s/ Nachum Stein___________
	 	Name: Nachum Stein
	 	Title: CEO


 





	 	 WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 





 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	American European Insurance Company
	 	 
	 	By: /s/ Nachum Stein___________
	 	Name: Nachum Stein
	 	Title: CEO



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	Blue Wave Advisors, LLC_______
	 	 
	 	By: /s/ Nic Lesmeister___________
	 	Name: Nic Lesmeister
	 	Title: VP



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	F&N Associates_____________
	 	 
	 	By: /s/ Nachum Stein_________
	 	Name: Nachum Stein
	 	Title: GP



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	HSI Partnership_______________
	 	 
	 	By: /s/ Nachum Stein___________
	 	Name: Nachum Stein
	 	Title: GP



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	___________________________
	 	 
	 	By: /s/ Eddy Hsu_____________
	 	Name: Eddy Hsu
	 	Title:



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 





 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	John S. Lemak IRA Rollover________
	 	 
	 	By:_/s/ John S. Lemak_____________
	 	Name:
	 	Title:



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	_______________________________
	 	 
	 	By:/s/ Joseph I. Kazarnovsky _______
	 	Name: Joseph I. Kazarnovsky
	 	Title:



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	                                                       
	 	 
	 	By:/s/ Ralph Reider _______
	 	Name: Ralph Reider
	 	Title:



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	Sandor Capital Master Fund________
	 	 
	 	By:/s/ John S. Lemak _____________
	 	Name: John S. Lemak
	 	Title: General Partner 



 


	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 








 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	/________________________________
	 	 
	 	By: /s/ Nachum Stein________________
	 	Name: Nachum Stein
	 	Title:



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


 


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IN WITNESS WHEREOF,
this Warrant Exchange Agreement has been duly executed by the undersigned as of the date first written above.


 


 


	 	HOLDER:
	 	Palladium Capital Advisors, LLC______________
	 	 
	 	By: /s/ Joel Padowitz________________________
	 	Name: Joel Padowitz
	 	Title: CEO



 





	 	WARRANT NUMBER:  E-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	WARRANT NUMBER:  F-                      	 	NUMBER OF WARRANT SHARES: ______________
	 	 	 	 


 


 


 


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SCHEDULE A


 


 


	Name of Warrant Holder	Warrant Number	Number of Warrant Shares	Number of Exchange Shares
	Alexander Hasenfeld, Inc. Profit Sharing Plan	E-1	3,657	731
	Alexander Hasenfeld, Inc. Profit Sharing Plan	F-1	3,657	731
	American European Group	E-2	4,571	914
	American European Group	F-2	4,571	914
	American European Insurance Company	E-3	22,857	4,571
	American European Insurance Company	F-3	22,857	4,571
	Blue Wave Advisors LLC	E-4	6,857	1,371
	Blue Wave Advisors LLC	F-4	6,857	1,371
	F&N Associates	E-5	914	183
	F&N Associates	F-5	914	183
	HSI Partnership	E-6	4,571	914
	HSI Partnership	F-6	4,571	914
	Eddy Hsu	E-7	9,143	1,829
	Eddy Hsu	F-7	9,143	1,829
	John S. Lemak IRA Rollover	E-8	9,143	1,829
	John S. Lemak IRA Rollover	F-8	9,143	1,829
	Joseph I. Kazarnovsky	E-9	11,429	2,286
	Joseph I. Kazarnovsky	F-9	11,429	2,286
	Ralph Reider	E-10	11,429	2,286
	Ralph Reider	F-10	11,429	2,286
	Sandor Capital Master Fund, L.P.	E-11	22,857	4,571
	Sandor Capital Master Fund, L.P.	F-11	22,857	4,571
	Nachum Stein	E-13	4,571	914
	Nachum Stein	F-13	4,571	914
	Palladium Capital Advisors, LLC	E-14	10,423	2,085
	Palladium Capital Advisors, LLC	F-14	10,423	2,085


 


 


 


 


 


 


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