UNITED STATES SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities and Exchange Act of 1934
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
December 31, 2014
NANOVIRICIDES, INC.
(Exact Name of Registrant as Specified in
its Charter)
Nevada |
001-36081 |
76-0674577 |
(State of Organization) |
(Commission File Number) |
(I.R.S. Employer |
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Identification No.) |
135 Wood Street, Suite 205, West Haven,
CT 06516
(Address of principal executive offices)
Registrant’s telephone number, including
area code: (203) 937-6137
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
Merger Act (17 CFR 240.14a -12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Merger Act (17 CFR 240.14d -2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Merger Act (17 CFR 240.13e -4(c)) |
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
On December 31, 2014, NanoViricides, Inc.,
a Nevada corporation (the “Registrant”), entered into and consummated an Agreement for the Purchase and Sale of a cGMP-compliant
pilot manufacturing and lab facility and property located in Shelton, Connecticut. The purchase price of the facility was comprised
solely of the repayment of the direct costs of the seller, Inno-Haven, LLC (“Inno-Haven”) incurred in acquiring and
renovating the property and the facility plus Inno-Haven’s closing costs in connection with the sale. The purchase price
consisted of the repayment of Inno-Haven’s acquisition and renovation expenses of $4,222,458.54 and its closing costs of
$77,480.22.
In addition to the costs incurred by Inno-Haven,
the Registrant undertook and paid for the costs of design and engineering to support its stringent specifications. The Registrant
also paid for certain additional equipment and fixtures, required for its specialized use of the facility. These additional costs
directly paid for by the Registrant amount to $5,145,329.71, as previously reported by the Registrant in prior filings, and are
not part of the purchase price reported above.
The 18,000 square foot facility is located
on approximately 4.2 acres of land. Anil Diwan, PhD., the Registrant’s founder, President and Chairman, is the sole member
and manager of Inno-Haven. Dr. Diwan abstained from participating in any capacity on the transaction on behalf of the Registrant.
ITEM 2.01. COMPLETION OF ACQUISITION OR DISPOSITION OF ASSETS.
The disclosures set forth in Item 1.01 are hereby incorporated
by reference to this Item 2.01
Item 9.01. Financial Statements and Exhibits.
Exhibit No. |
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Description |
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10.1 |
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Agreement of Purchase and Sale between NanoViricides, Inc. and Inno-Haven, LLC |
99.1 |
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Press Release dated January 7, 2015. |
SIGNATURES
Pursuant to the requirements of the Securities
and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
Date: January 7, 2015 |
NANOVIRICIDES, INC. |
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By: |
/s/ Eugene Seymour, MD, MPH |
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Name: Eugene Seymour |
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Title: Chief Executive Officer |
Exhibit 10.1
AGREEMENT OF PURCHASE AND SALE
This Agreement of
Purchase and Sale (“Agreement”) is made as of the 30th day of December 2014 (“Effective Date”)
between Inno-Haven, LLC, a Connecticut Limited Liability Company (“Seller”), and NanoViricides, Inc.., a Nevada
Corporation (“Purchaser”).
Subject to the terms
and conditions of this Agreement, Seller will sell to Purchaser, and Purchaser will purchase from Seller the Property (as defined
below), including an approximately 18,000 square foot, single story, laboratory and office building located at 1 Controls Drive,
Shelton, Connecticut 06484 (the “Building”).
ARTICLE 1. PROPERTY/PURCHASE PRICE
1.1. Property.
Subject to the terms and conditions of this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from
Seller, the following property (collectively, the “Property”):
(a) Seller’s interest
in the land described in Exhibit A attached hereto (the “Land”), and all other right, title and
interest of Seller in and to (i) all and singular the rights, benefits, privileges, easements, tenements, hereditaments, and
appurtenances thereon or in any way appertaining to such Land; and (ii) any land lying in the bed of any street, road or alley,
open or proposed, adjoining and appurtenant to such Land;
(b) The Building;
(c) All right, title
and interest of Seller in and to all improvements and fixtures located on or in the Land and Building (the “Improvements”),
except for tangible personal property and other trade fixtures and equipment owned by Purchaser, specifically excluded in Schedule
___ attached hereto, which shall not be part of the Improvements or this Agreement and shall remain the property of Purchaser;
provided, however, all electrical, plumbing, HVAC, life safety systems, attached laboratory benches, autoclaves,
climatized rooms, clean rooms, and gas and liquid distribution systems, shall be included as part of the Improvements and assigned
to Purchaser at Closing (the foregoing are included and not subject to separate consideration). The Building, Land and Improvements
are collectively referred to herein as the “Real Property”; and
(d) The “Intangible
Property,” being all, right, title and interest of Seller, if any, in and to: (i) all intangible personal property
now or hereafter used exclusively in connection with the operation, ownership, maintenance, management, or occupancy of the Real
Property (to the extent assignable); (ii) the plans and specifications for the Improvements (to the extent assignable); (iii) warranties,
indemnities, applications, permits, approvals and licenses (to the extent applicable in any way to the above referenced Real Property
or the Tangible Personal Property and assignable); (iv) all construction documents including architectural plans, engineering specifications,
facility documentation as may exist; and (iv) insurance proceeds and condemnation awards or claims thereto to the extent provided
be assigned to Purchaser hereunder.
1.2. Purchase
Price. The total purchase price to be paid to Seller by Purchaser for the Property shall be four million two hundred and
twenty two thousand five hundred and forty eight and 54/00 ($4,222,548.54) DOLLARS Plus all costs associated with
the closing and transfer of the property to the purchaser(the “Purchase Price”). The Purchase Price, as
adjusted for prorations, deposits and other adjustments as provided herein, shall be paid to Escrow Agent by wire transfer of
immediately available funds or by bank or certified check. The purchase price so paid shall reimburse Seller for all amounts
incurred or paid by seller in acquiring and improving the premises at 1 Controls Drive, Shelton, Ct.
1.3. Deposit of
Earnest Money. Within two (2) business days (in this Agreement, a business day shall mean any day of the year other than
any Saturday or Sunday or any other day on which banks located in New Haven, Connecticut generally are closed for business) after
the Effective Date, Purchaser shall deposit $1,000,000 in cash (such amount, including any interest earned thereon, the “Earnest
Money”) with the Escrow Agent (as defined below). The Escrow Agent shall hold and disburse the Earnest Money in accordance
with the escrow provisions in Exhibit B. Prior to the expiration of the Due Diligence Period (as defined below), the Earnest
Money shall be promptly returned to Purchaser upon termination of this Agreement pursuant to Section 2.2. Following the
expiration of the Due Diligence Period, the Earnest Money shall be non-refundable, except as otherwise provided herein. Seller
shall not deliver any instruction to the Escrow Agent calling for disbursement of the Earnest Money to Seller except following
the occurrence of Purchaser’s default hereunder and the expiration of any applicable cure period or as otherwise expressly
provided in this Agreement, and Seller further agrees to provide Purchaser with a copy of such instruction concurrently with the
delivery thereof to the Escrow Agent. Provided such supplemental escrow instructions are not in conflict with this Agreement as
it may be amended in writing from time to time, Seller and Purchaser agree to execute such supplemental escrow instructions as
may be appropriate to enable Escrow Agent to comply with the terms of this Agreement. The Escrow Agent, by signing this agreement
acknowledges that it currently holds one million ($1,000,000) dollars in escrow as collateral for a certain loan by made to the
Seller. Subject to the terms of such collateral, Purchaser provides such funds as the earnest money hereunder and Seller accepts
such funds.
1.4. Right of First Refusal: If at any
time subsequent to Closing, Purchaser shall receive a binding offer in writing, from an unrelated third party acceptable to Purchaser,
or to Purchaser's successor in interest, for the purchase of the premises, the Purchaser, prior to or as a condition of an acceptance
thereof, shall give the Seller, with respect to each such offer, written notice thereof and a copy of said offer including the
name and address of the proposed purchaser; and Seller shall have the option and right of first refusal for sixty (60) days after
receipt of such notice within which to elect to purchase the Premises on the terms of said offer.. If Seller shall elect to purchase
the Premises pursuant to the option and first refusal herein granted, it shall give notice of such election within such sixty(60)
day period.
1. 5. Title Company
and Escrow Agent. The “Escrow Agent” is Harry Schochat, Esq. and “Title Company” is :
Chicago Title Company, 2 Corporate Drive, Suite 144, Shelton, CT 06484.
1.6.
Closing Date. The “Closing Date” shall mean as of June 30, 2014.
Closing shall take place on December 30, 2014.
ARTICLE 2. INSPECTION
2.1. Seller’s
Delivery of Specified Documents. To the extent such items exist and are in Seller’s possession or control, Seller shall
provide or make available to Purchaser at the Property the information and documents set forth on Exhibit C attached hereto
(the “Property Information”) on the Effective Date. Seller agrees to cooperate with Purchaser and make copies,
at Purchaser’s expense, of such documentation as Purchaser may request during the course of Purchaser’s review of the
Property Information. The terms “Operating Statements,” and “Service Contracts” are defined
in Exhibit C. Seller shall have the continuing obligation during the pendency of this Agreement to provide Purchaser with
any document described in Exhibit C and coming into Seller’s or its property manager’s possession or produced
by or for Seller after the initial delivery of the Property Information.
2.2. Due Diligence.
Purchaser shall have until closing (the “Due Diligence Period”) in which to examine, inspect, and investigate
the Property, and, in Purchaser’s sole and absolute judgment and discretion, to determine whether the Property is satisfactory
to Purchaser to proceed with this transaction. Purchaser may terminate this Agreement pursuant to this Section 2.2
by giving written notice of termination to Seller on or before the last day of the Due Diligence Period, and in the event Purchaser
terminates this Agreement, Purchaser shall promptly thereafter return to Seller all documents that Seller shall have provided to
Purchaser in connection with the Property, the Earnest Money shall be refunded to Purchaser immediately upon request, and all further
rights and obligations of the parties under this Agreement shall terminate except for those that expressly survive such termination.
2.3. Access.
Upon reasonable prior notice to Seller, Purchaser and its agents, employees, consultants, lenders and representatives shall have
reasonable access to the Property and all books and records for the Property that are in Seller’s possession or control for
the purpose of conducting surveys, appraisals, architectural, engineering, structural, mechanical, geotechnical and environmental
inspections and tests, and any other inspections, studies, or tests reasonably required by Purchaser; provided, however, Purchaser
may not conduct any invasive testing without Seller’s prior written consent (which consent shall not be unreasonably withheld)
and Seller shall have the right to accompany Purchaser during all activities conducted at the Property. Invasive testing shall
include but not be limited to any testing, studies or inspections that may disturb the Property in a material respect or interfere
with the use of the Building or Seller’s business. If any inspection or test disturbs the Property in a material respect,
Purchaser will restore the Property to its condition before any such inspection or test. Purchaser shall provide to Seller, at
Seller’s expense, copies of the results of all such inspections, studies or tests required by Purchaser. During the pendency
of this Agreement, Purchaser and its agents, employees, consultants, lenders and representatives shall have a continuing right
of reasonable access to the Property and any office where the records of the Property are kept, with at least two (2) days
prior notice, for the purpose of examining and making copies, at Purchaser’s sole expense, of all books and records and other
materials relating to the Property in Seller’s possession or control. Purchaser shall have the right to conduct a “walk-through”
of the Property before the Closing upon at least two (2) days prior notice to Seller. In the course of its investigations,
Purchaser may make inquiries concerning the Real Property to third parties, including, without limitation, representatives, contractors,
parties to Service Contracts and municipal, local and other government officials and representatives in accordance with the terms
of this Agreement, and Seller consents to such inquiries. Purchaser hereby indemnifies, protects, defends (with counsel reasonably
acceptable to Seller) and holds Seller and the Property free and harmless from and against any and all costs, losses, liabilities,
damages, lawsuits, judgments, actions, proceedings, penalties, demands, attorneys’ fees, mechanic’s liens, or expenses
of any kind or nature whatsoever (“Claims”), to the extent caused by any entry and/or activities upon the Property
by Purchaser, Purchaser’s agents, contractors and/or subcontractors, provided, however, Purchaser shall not indemnify Seller
against any Claims caused by Seller’s negligence or willful misconduct, or Claims arising out of conditions that were present
before Purchaser entered the Property, except to the extent that Purchaser’s activities (a) are unreasonable in the
context of the information provided to Purchaser, or reasonably evident to Purchaser, with respect to such existing condition,
and (b) exacerbate such existing conditions. The foregoing indemnity obligations shall survive the termination of this Agreement
and the Closing.
2.4. Service Contracts.
During the Due Diligence Period, Purchaser shall notify Seller as to which Service Contracts Purchaser will assume and which Service
Contracts shall be terminated by Seller in Purchaser’s sole discretion. Purchaser will assume the obligations arising from
and after the Closing Date under those Service Contracts which Purchaser has elected to assume. Seller shall terminate at Closing
all Service Contracts that are not so assumed, provided that such termination does not expose Seller to liability. Seller shall
terminate at Closing, and Purchaser shall not assume, any property management or leasing agreement affecting the Property.
ARTICLE 3. TITLE AND SURVEY REVIEW
3.1. Delivery of
Preliminary Title Report and Survey. Seller shall cause to be delivered to Purchaser on the Effective Date, any existing survey
of the Land and the Building in Seller’s possession or control. Purchaser may, in its sole discretion, and at its sole expense,
obtain a new ALTA-ACSM Urban survey of the Property (the “Survey”) prior to the expiration of the Due Diligence
Period, including a certification addressed to Purchaser, substantially in the form attached hereto as Exhibit F. The
Survey shall plot all plotable easements benefiting the Property. Purchaser may, in its sole discretion, obtain a preliminary title
report (the “Preliminary Title Report”) issued by the Title Company. The Preliminary Title Report, the documents
referred to therein, and the Survey are referred to herein collectively as the “Title Documents.”
3.2. Title Review and Cure. During
the Due Diligence Period, Purchaser shall review title to the Property as disclosed by the Title Documents. Purchaser shall be
entitled to object to any title matters shown in the Title Documents, in its sole discretion, by a written notice of objections
delivered to Seller on or before the expiration of the Due Diligence Period. Purchaser shall notify the Seller before the expiration
of the Due Diligence Period which title exceptions (excluding survey matters), if any, will not be accepted by Purchaser (the “Title
Notice”). If Purchaser fails to notify Seller in writing of its disapproval of any exceptions before the expiration of
the Due Diligence Period, Purchaser shall be deemed to have approved the condition of title to the Real Property. If Purchaser
notifies Seller in writing that Purchaser objects to any exceptions to title, Seller shall have one (1) business day after
receipt of the Title Notice to notify Purchaser of either of the following: (a) that Seller will remove all such objectionable
exceptions from title on or before the Closing; (b) that Seller will remove certain objectionable exceptions from title on
or before the Closing; or (c) that Seller elects not to cause such exceptions to be removed. If Seller fails to notify Purchaser
within such one (1) business day period, then Seller shall be deemed to have made an election under the foregoing clause (c).
Notwithstanding the foregoing or any other provision of this Agreement, all monetary obligations (including, without limitation,
mechanics’ and materialmens’ liens or claims thereof, any liens or encumbrances that secure obligations for borrowed
money and any exceptions or encumbrances to title which are created by or through Seller after the Effective Date) disclosed in
the Preliminary Title Report constituting a lien against the Real Property are to be satisfied by Seller before Closing. With respect
to any other objections, Seller will reasonably cooperate with Purchaser in curing such objections. The procurement by Seller of
a commitment for the issuance of the Title Policy (as defined in Section 5.2(f) hereof) or an endorsement thereto insuring
Purchaser, in a manner acceptable to Purchaser, against any title exception which was disapproved pursuant to this Section 3.2
shall be deemed a cure by Seller of such disapproval. If Seller gives Purchaser notice under clause (b) or (c) above,
Purchaser shall have one (1) business day after the date of such notice in which to notify Seller that Purchaser will nevertheless
proceed with the purchase in accordance with the provisions of this Agreement and take title to the Property subject to such exceptions,
or that Purchaser will terminate this Agreement and receive a refund of the Earnest Money. If Purchaser does not terminate this
Agreement or deliver a Title Notice to Seller before the expiration of the Due Diligence Period pursuant to Section 2.2,
then Purchaser shall have been deemed to have approved any title exception set forth in the Title Documents that Seller is not
obligated to remove and Seller did not agree in writing to remove or cure. If after the expiration of the Due Diligence Period
the Title Company revises the Preliminary Title Report or the surveyor revises the Survey, to add or modify exceptions, then Purchaser
may terminate this Agreement and receive a refund of the Earnest Money if the provision for their removal or modification satisfactory
to Purchaser is not made. In such case, the Closing Date shall be extended for up to ten (10) days in order for Purchaser
and Seller to determine if such exception can be resolved and to give Purchaser the opportunity to terminate this Agreement and
receive a refund of the Earnest Money if the exception is not removed.
3.3. Permitted Exceptions
and Endorsements. “Permitted Exceptions” means the following exceptions approved or deemed approved by Purchaser
pursuant to this Agreement: real estate taxes not yet due and payable; and the exceptions approved (or deemed approved) by Purchaser
pursuant to the terms of Section 3.2 above. For the avoidance of doubt, the general exceptions in the Preliminary Title
Report will be removed upon issuance of the ALTA extended coverage title policy to be issued in this transaction and are not Permitted
Exceptions. “Purchaser’s Endorsements” shall mean, to the extent such endorsements are available under
the laws of the state in which the Property is located: (1) owner’s comprehensive; (2) access; (3) survey
(accuracy of survey); (4) location (survey legal matches title legal); (5) separate tax lot; (6) subdivision map
act; (7) zoning 3.1, with parking and loading docks; (8) mechanic’s lien; (9) deletion of creditors’
rights exception; (10) endorsement over environmental protection liens; (11) utilities endorsement; (12) leasehold
endorsement; and (13) such other endorsements as Purchaser may require during the Due Diligence Period based on its review
of the Preliminary Title Report and Survey.
3.4. ALTA Statement.
Seller shall execute at Closing an ALTA Statement (Owner’s Affidavit) and any other documents, undertakings or agreements,
including a mechanic’s lien indemnity, customarily required by the Title Company to enable it to issue the Title Policy (as
defined in Section 5.2(f) hereof) in accordance with the provisions of this Agreement.
ARTICLE 4. OPERATIONS AND RISK OF LOSS
4.1. Ongoing Construction
Operations. The parties hereto acknowledge that during the pendency of this Agreement Seller shall continue the construction
now progressing to completion at the premises. The agreed purchase price shall be adjusted to reflect any additional funds disbursed
by the Seller to complete the construction. Seller further agrees that during the pendency of this Agreement:
(a) Maintenance of
Insurance. Seller shall continue to carry its existing insurance through the Closing Date, and shall not allow any breach,
default, termination or cancellation of such insurance policies or agreements to occur or exist.
(b) New Contracts.
Without Purchaser’s prior written consent in each instance, Seller will not enter into or amend, terminate, waive any default
under, or grant concessions regarding any contract or agreement that will be an obligation affecting the Property or binding on
Purchaser after the Closing.
(d) Maintenance of
Permits. Seller shall maintain in existence all licenses, permits and approvals, if any, in its name necessary or reasonably
appropriate to the ownership, operation or improvement of the Property.
4.2. Damage.
All risk of loss with respect to the Property shall remain with Seller until the Closing and delivery of the Deed (as defined below)
vesting title in Purchaser, when full risk of loss with respect to the Property shall pass to Purchaser. Seller shall promptly
give Purchaser written notice of any damage to the Property, describing such damage, whether such damage is covered by insurance
and the estimated cost of repairing such damage, provided that such damage is known to Seller. If such damage is not material,
then the parties shall proceed to close this transaction, and Seller shall, to the extent possible, begin repairs prior to the
Closing out of any insurance proceeds received by Seller for the damage, and shall transfer and assign any remaining insurance
proceeds or rights thereto to Purchaser at the Closing. If such damage is material, Purchaser may elect (in its sole discretion)
by notice to Seller given within ten (10) days after Purchaser is notified of such damage (and the Closing shall be extended,
if necessary, to give Purchaser such ten (10) day period to respond to such notice) to proceed in the same manner as in the
case of damage that is not material or to terminate this Agreement, in which event the Earnest Money shall be returned to Purchaser.
Damage as to any one or multiple occurrences is material if the cost to repair the damage, as reasonably estimated by Seller’s
contractor (if Seller has engaged a contractor to perform the work), and otherwise by a contractor approved by both Purchaser and
Seller, acting reasonably, exceeds $100,000. An affiliate of Seller may be engaged as Seller’s contractor, provided Seller
discloses the relationship of such affiliate to Purchaser.
4.4. Condemnation.
Seller shall promptly give Purchaser notice of any eminent domain proceedings that are contemplated, threatened or instituted with
respect to the Property. By notice to Seller given within ten (10) days after Purchaser receives notice of proceedings in
eminent domain that are contemplated, threatened or instituted by any body having the power of eminent domain with respect to the
Property, and if necessary the Closing Date shall be extended to give Purchaser the full ten (10) day period to make such
election, Purchaser may terminate this Agreement, in which event the Earnest Money shall be returned to Purchaser, or proceed under
this Agreement, in which event Seller shall, at the Closing, assign to Purchaser its entire right, title and interest in and to
any condemnation award, and Purchaser shall have the right during the pendency of this Agreement to negotiate and otherwise deal
with the condemning authority in respect of such matter.
ARTICLE 5. CONDITIONS PRECEDENT
5.1. Conditions
to Seller’s Obligation to Close. In addition to all other conditions set forth herein, the obligation of Seller to consummate
the transactions contemplated hereunder shall be contingent upon the following:
(a) Representations.
Purchaser’s representations and warranties contained herein shall be true and correct as of the date of this Agreement and
the Closing Date;
(b)
Performance. As of the Closing Date, Purchaser shall have performed its obligations hereunder and all deliveries to be made
by Purchaser at Closing have been tendered;
(c) Other Condition.
Any other condition set forth in this Agreement to Seller’s obligation to close shall have been satisfied by the applicable
date.
5.2. Conditions
to Purchaser’s Obligation to Close. In addition to all other conditions set forth herein, the obligation of Purchaser
to consummate the transactions contemplated hereunder shall be contingent upon the following:
(a) Representations.
Seller’s representations and warranties contained herein shall be true and correct as of the date of this Agreement and the
Closing Date;
(b) Performance.
As of the Closing Date, Seller shall have performed its obligations hereunder and all deliveries to be made by Seller at Closing
have been tendered;
(c) Default. As
of the Closing Date, Seller shall not be in default under any agreement to be assigned to, or obligation to be assumed by, Purchaser
under this Agreement;
(d) Physical Condition.
The physical condition of the Property shall be substantially the same on the Closing Date as on the Effective Date, reasonable
wear and tear excepted and subject to the additional construction to be performed, unless the alteration of said physical condition
is caused by Purchaser during the due diligence inspections or the result of a casualty loss or proceeding in eminent domain, in
which case the provisions of Sections 4.2 and 4.3 shall govern;
(e) Title. Upon
the sole condition of payment of the premium, at Closing, the Title Company shall irrevocably commit to issue to Purchaser an ALTA
Owner’s Policy of title insurance, with extended coverage (i.e., with ALTA General Exceptions deleted), dated as of the date
and time of the recording of the Deed (as defined below) vesting title in Purchaser, in the amount of the Purchase Price, insuring
Purchaser as owner of good, marketable and indefeasible fee simple title to the Building and the Improvements, and Purchaser as
holder of the leasehold interest in the Land and improvements, subject only to the Permitted Exceptions, and containing the Purchaser’s
Endorsements (the “Title Policy”);
(f) Title Exceptions.
Seller shall have cured all exceptions that it agreed to cure, or was deemed to have agreed to cure, in accordance with Section 3.2.
In the event Seller has not cured such exceptions, in Purchaser’s sole discretion, Purchaser shall have the option to: (a) extend
the Closing for up to thirty (30) days to allow Seller the opportunity to cure such exceptions which Seller has agreed to
cure but has not yet cured, or (b) proceed with the Closing and receive a credit from Seller for the total cost to cure such
exceptions;
(g) Bankruptcy.
No proceeding has been commenced against Seller under the federal Bankruptcy Code or any state law for relief of debtors;
(h)
Moratorium. No moratorium, statute or regulation of any governmental agency or order
or ruling of any court has been enacted, adopted, or issued which would adversely affect Purchaser’s use or development of
the Property;
(i)
Financial Condition. No event shall have occurred that would be reasonably likely to
result in a material adverse change in the financial condition of the Seller on the Closing Date as compared to the financial condition
of the Seller on the Effective Date;
(j) Board Approval.
Purchaser shall have obtained approval from the board of directors of NanoViricides, Inc. to enter into this Agreement and to execute
the documents contemplated hereby. Upon the expiration of the Due Diligence Period, this condition shall be deemed to have been
satisfied; and
(k) Other Condition.
Any other condition set forth in this Agreement to Purchaser’s obligation to close shall have been satisfied by the applicable
date.
5.3. Failure of
Condition Precedent. So long as a party is not in default beyond applicable notice and cure periods hereunder, if any condition
to such party’s obligation to proceed with the Closing hereunder has not been satisfied as of the Closing Date or other applicable
date and such condition is not cured within five (5) days after receipt of notice of default from the non-defaulting party,
such non-defaulting party may, in its sole discretion, either (i) terminate this Agreement by delivering written notice to
the other party on or before the Closing Date or other applicable date whereupon the Earnest Money shall be returned to Purchaser
if Seller is the defaulting party or paid to Seller if Purchaser is the defaulting party, or (ii) elect to close, notwithstanding
the non-satisfaction of such condition, in which event such party shall be deemed to have waived any such condition.
ARTICLE 6. DEFAULT AND REMEDIES
6.1. Purchaser’s
Defaults; Seller’s Remedies.
(a) In the event of a
breach by Purchaser of its obligations under this Agreement to effect the Closing, which breach is not cured within five (5) days
after Purchaser’s receipt of notice of default from Seller (provided that no such cure period shall extend the Closing Date
or apply for a breach of the obligation to close by the Closing Date) and Seller is willing, ready and able to perform its obligations
hereunder, Seller’s sole remedy shall be to terminate this Agreement and receive and retain all Earnest Money and any earnings
thereon as liquidated damages, not as a penalty. PURCHASER AND SELLER AGREE THAT IT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL
TO QUANTIFY THE ACTUAL DAMAGES TO SELLER IN THE EVENT OF A BREACH BY PURCHASER, THAT THE AMOUNT OF ALL EARNEST MONEY IS A REASONABLE
ESTIMATE OF SUCH ACTUAL DAMAGES, AND THAT SELLER’S EXCLUSIVE REMEDY IN THE EVENT OF A BREACH BY PURCHASER SHALL BE TO RETAIN
ALL EARNEST MONEY AND ANY EARNINGS THEREON AS LIQUIDATED DAMAGES.
Initials of Seller |
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Initials of Purchaser |
(b) After Closing, in
the event of a breach by Purchaser of its obligations under this Agreement that survive Closing, Seller may exercise any rights
and remedies available at law or in equity.
6.2. Seller’s Defaults; Purchaser’s
Remedies.
(a) In the event of a
material breach by Seller of its obligations under this Agreement, which breach is not cured within five (5) days after Seller’s
receipt of notice of default from Purchaser (provided that no such cure period shall extend the Closing Date or apply for a breach
of the obligation to close by the Closing Date), Purchaser may elect one of the following two remedies: (a) terminate this
Agreement and receive: (i) a refund of the Earnest Money and any earnings thereon, plus (ii) reimbursement from Seller
for Purchaser’s reasonable out of pocket costs incurred in connection with the negotiation of this Agreement, Purchaser’s
diligence with respect to the Property, and Purchaser’s actions in furtherance of the transactions contemplated by this Agreement
(provided that said sum recoverable as reimbursement shall not exceed fifty thousand dollars ($50,000)); or (b) enforce specific
performance of this Agreement against Seller, including the right to recover reasonable attorneys’ fees. PURCHASER AND SELLER
AGREE THAT IT WOULD BE EXTREMELY DIFFICULT OR IMPRACTICAL TO QUANTIFY THE ACTUAL DAMAGES TO PURCHASER IN THE EVENT OF A BREACH
BY SELLER, THAT THE AMOUNT OF ALL EARNEST MONEY IS A REASONABLE ESTIMATE OF SUCH ACTUAL DAMAGES, AND THAT IN THE EVENT PURCHASER
SELECTS TO ENFORCE ITS REMEDIES UNDER (A) ABOVE, PURCHASER SHALL RECEIVE A REFUND OF ALL EARNEST MONEY AND ANY EARNINGS THEREON,
AND PURCHASER’S OUT OF POCKET COSTS.
(b) After Closing, in
the event of a breach by Seller of its obligations under this Agreement that survive Closing, Purchaser may exercise any rights
and remedies available at law or in equity.
ARTICLE 7. CLOSING
7.1. Closing and
Escrow. The consummation of the transaction contemplated herein (“Closing”) shall occur on the Closing Date
at the offices of the Escrow Agent. Closing shall occur through an escrow with the Escrow Agent. Funds shall be deposited into
and held by Escrow Agent in a closing escrow account with a bank satisfactory to Purchaser and Seller. Upon satisfaction or completion
of all closing conditions and deliveries, Escrow Agent shall immediately record and deliver the Deed and deliver the closing documents
to the appropriate parties and make disbursements according to the closing statements executed by Seller and Purchaser. Provided
such supplemental escrow instructions are not in conflict with this Agreement as it may be amended in writing from time to time,
Seller and Purchaser agree to execute such supplemental escrow instructions as may be appropriate to enable Escrow Agent to comply
with the terms of this Agreement. The parties understand that the Closing shall occur in Woodbridge, Connecticut or such other
location as the parties shall agree. If the closing is to be performed by electronic means, all necessary deliveries to escrow
must be completed by 11:00 A.M. on the Closing Date.
7.2. Seller’s
Deliveries in Escrow. On or before 11:00 A.M. on the Closing Date, Seller shall deliver in escrow to the Escrow Agent the following:
(a) Deed. That
certain Special Warranty Deed substantially in the form of Exhibit G attached hereto (“Deed”), sufficient
to vest title in Purchaser subject only to the Permitted Exceptions;
(b) Bill of Sale and
Assignment of Contracts. A counterpart of the Bill of Sale and Assignment of Contracts substantially in the form of Exhibit
H attached hereto (“Bill of Sale”), executed and acknowledged by Seller;
(c) Closing Certificate.
A certificate from Seller in the form of Exhibit I attached hereto that contains an updated list of the Service Contracts
to be assumed, each of which Seller shall certify to be true and correct as of Closing.
(d) State Law Disclosures.
Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property;
(e) FIRPTA. A
Foreign Investment in Real Property Tax Act affidavit executed by Seller;
(f) Terminations.
Subject to Section 2.5, terminations effective no later than Closing of those Service Contracts which Purchaser has
elected not to assume;
(g) Authority.
Evidence of the existence, organization and authority of Seller and of the authority of the persons executing documents on behalf
of Seller required by and reasonably satisfactory to Purchaser’s counsel and Escrow Agent;
(h) Indemnity.
A mechanic’s lien indemnity, if required, in form reasonably satisfactory to the Escrow Agent and the Title Company; and
(i) Other Deliveries.
Any other Closing deliveries required to be made by or on behalf of Seller hereunder or reasonably required to effect the Closing
of this transaction consistent with this Agreement.
7.3. Purchaser’s
Deliveries in Escrow. On or before 11:00 AM on the Closing Date, Purchaser shall deliver in escrow to the Escrow Agent the
following:
(a) Purchase Price.
The Purchase Price, less the Earnest Money that is applied to the Purchase Price plus or minus applicable prorations, deposited
by Purchaser with the Escrow Agent in immediate, same-day federal funds wired for credit into the Escrow Agent’s escrow account;
(b) Bill of Sale and
Assignment of Contracts. A counterpart of the Bill of Sale, executed by Purchaser;
(c) State Law Disclosures.
Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property;
and
(d) Other Deliveries.
Any other Closing deliveries required to be made by or on behalf of Purchaser hereunder or reasonably required to effect the Closing
of this transaction consistent with this Agreement.
7.4. Closing Statements/Closing
Costs.
(a) Seller and Purchaser
shall deposit with the Escrow Agent executed closing statements consistent with this Agreement in the form required by the Escrow
Agent.
(b) Seller and Purchaser
shall execute such returns, questionnaires and other documents as shall be required with regard to all applicable real property
transaction taxes imposed by applicable federal, state or local law or ordinance.
(c) Seller shall pay
the fees of any counsel representing Seller in connection with this transaction. Seller shall also pay the following costs and
expenses:
(i) one-half of the
escrow fee, if any, which may be charged by the Escrow Agent or the Title Company;
(ii) the owner’s
title insurance premium for a standard title insurance policy;
(iii) the excise, recording,
deed, imposed transfer tax, documentary stamp tax or similar tax which becomes payable by reason of the transfer of the Property
under applicable state or local law, including, without limitation, any real estate excise tax;
(iv) all of its recording
fees.
(d) Purchaser shall pay
the fees of any counsel representing Purchaser in connection with this transaction. Purchaser shall also pay the following costs
and expenses:
(i) one-half of the
escrow fee, if any, which may be charged by the Escrow Agent or the Title Company;
(ii) the costs associated
with the issuance of an extended title insurance policy and the Purchaser’s Endorsements;
(iii) the cost of the
Survey; and
(iv) all of its recording
fees.
7.5. Possession.
At the time of Closing, Seller shall continue to possess the Property without interruption.
7.6. Delivery of
Books and Records. Immediately after the Closing, Seller shall deliver to the offices of Purchaser or Purchaser’s property
manager: originals of the Service Contracts (or copies thereof if originals are not available) and the following to the extent
the same exist and are in Seller’s possession or control and pertain to the Property: copies or originals of all books and
records of account, contracts, copies of correspondence with suppliers, receipts for deposits, unpaid bills and other papers or
documents which pertain to the Property; all permits and warranties; all advertising materials and booklets; and the original “as-built”
plans and specifications for the Building and all other available plans and specifications and all operation manuals. Seller shall
reasonably cooperate with Purchaser before and after Closing to transfer to Purchaser any such information stored electronically.
ARTICLE 8. PRORATIONS AND ADJUSTMENTS
8.1. Prorations.
On or before Closing, Seller shall provide to Purchaser such information and verification reasonably necessary to support the prorations
and adjustments under this Article 8. The items in Subsections (a) through (d) of this Section 8.1
shall be prorated between Seller and Purchaser, based on the actual number of days in the applicable period, as of the close of
the day immediately preceding the Closing Date, the Closing Date being a day of income and expense to Purchaser:
(a) Taxes and Assessments.
Purchaser shall receive a credit for any accrued but unpaid real estate taxes and assessments (including, without limitation, any
assessments imposed by private covenant) applicable to any period before the Closing Date, even if such taxes and assessments are
not yet due and payable. Purchaser shall receive a credit for any special assessments which are levied or charged against the Property
applicable to any period before the Closing Date, whether or not then due and payable.
(b) Service Contracts.
Seller or Purchaser, as the case may be, shall receive a credit for regular charges under Service Contracts assumed by Purchaser
pursuant to this Agreement paid and applicable to Purchaser’s period of ownership or payable and applicable to Seller’s
period of ownership, respectively.
(c) Utilities.
Seller shall cause the meters, if any, for utilities to be read the day on which the Closing Date occurs and to pay the bills rendered
on the basis of such readings for the period prior to the Closing Date. If any such meter reading for any utility is not available,
then adjustment therefor shall be made on the basis of the most recently issued bills therefor which are based on meter readings
no earlier than thirty (30) days before the Closing Date and such adjustment shall be re-prorated when the next utility bills
are received.
8.2. Utility Deposits.
Seller shall receive a credit for the amount of deposits, if any, with utility companies that are transferable and that are assigned
to Purchaser at the Closing.
8.3. Sales Commissions.
Seller and Purchaser represent and warrant each to the other that they have not dealt with any real estate broker, sales person
or finder in connection with this transaction. In the event of any claim for broker’s or finder’s fees or commissions
in connection with the negotiation, execution or consummation of this Agreement or the transactions contemplated hereby, each party
shall indemnify and hold harmless the other party from and against any such claim based upon any statement, representation or agreement
of such party.
8.4. Pre-Closing
Expenses. Except as otherwise specifically provided in this Agreement or in any other written agreement that may be entered
into between Seller and Purchaser, Seller has paid or will pay in full, prior to Closing (or promptly following receipt of a bill
therefor if not received by the Closing), all bills and invoices for labor, goods, material and services of any kind relating to
the Property and utility charges, relating to the period prior to Closing. Any alterations, installations, decorations and other
work required to be performed by Seller under any and all agreements affecting the Property have been or will, by the Closing,
be completed (except as otherwise provided in Section 4.3) and paid for in full by Seller.
ARTICLE 9. REPRESENTATIONS AND WARRANTIES
9.1. Seller’s
Representations and Warranties. As a material inducement to Purchaser to execute this Agreement and consummate this transaction,
Seller represents and warrants to Purchaser that:
(a) Organization and
Authority. Seller has been duly organized, is validly existing, and is in good standing as a Delaware corporation. Seller is
in good standing and is qualified to do business in the state in which the Real Property is located. Seller has the full right
and authority and has obtained any and all consents required to enter into this Agreement and the NPS Lease and to consummate or
cause to be consummated the transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered
by Seller at the Closing, including the NPS Lease, will be, authorized and properly executed and constitute, or will constitute,
as appropriate, the valid and binding obligations of Seller, enforceable in accordance with their terms.
(b) Conflicts and
Pending Actions or Proceedings. There is no agreement to which Seller is a party or, to Seller’s knowledge, binding on
Seller or the Property which is in conflict with this Agreement or the NPS Lease, or which challenges or impairs Seller’s
ability to execute or perform its obligations under this Agreement or the NPS Lease. There is not now pending or, to the best of
Seller’s knowledge, threatened, any action, suit or proceeding before any court or governmental agency or body against Seller
that would prevent Seller from performing its obligations hereunder or against or with respect to the Property. No condemnation,
eminent domain or similar proceedings are pending or, to Seller’s knowledge, threatened with regard to the Property. Seller
has not received any notice and has no knowledge of any pending or threatened liens, special assessments, impositions or increases
in assessed valuations to be made against the Property.
(c) Leases. Seller
is the sole occupant of the Property. As of the date hereof, there are no tenants under any leases affecting the Real Property
and there are no lease or occupancy agreements affecting any portion of the Real Property.
(d) Service Contracts;
Operating Statements. The list of Service Contracts, if any, to be delivered to Purchaser pursuant to this Agreement is or
will be true, correct, and complete as of the date of its delivery. The documents constituting the Service Contracts that are to
be delivered to Purchaser are true, correct and complete copies of all of the Service Contracts affecting the Property. Neither
Seller nor, to the best of Seller’s knowledge, any other party is in default under any Service Contract. The Operating Statements
to be delivered to Purchaser pursuant to this Agreement, if any, will show all items of income and expense (operating and capital)
incurred in connection with Seller’s ownership, operation, and management of the Property for the periods indicated and will
be true, correct, and complete in all material respects.
(e) Legal Compliance.
Seller has all material licenses, permits and certificates necessary for the use and operation of the Property, including, without
limitation, all certificates of occupancy necessary for the lawful occupancy of the Property. Seller has received no written notice
that the Property or the use thereof violates any governmental law or regulation or any covenants or restrictions encumbering the
Property. Seller has not received any written notices of violations or alleged violations of any laws, rules, regulations or codes,
including building codes, with respect to the Property which have not been corrected to the satisfaction of the issuer of the notice.
(f) Environmental.
Seller has no knowledge of, and has received no notice of, any violation of Environmental Laws related to the Property or the presence
or release of Hazardous Materials on or from the Property in violation of Environmental Laws. Seller has not used the Property
or any part thereof for the release, generation, treatment, storage, handling or disposal of any Hazardous Materials, in violation
of any Environmental Laws. There are no underground storage tanks located on the Property. The term “Environmental Laws”
includes without limitation the Resource Conservation and Recovery Act and the Comprehensive Environmental Response Compensation
and Liability Act and other federal laws governing the environment as in effect on the date of this Agreement, together with their
implementing regulations, guidelines, rules or orders as of the date of this Agreement, and all state, regional, county, municipal
and other local laws, regulations, ordinances, rules or orders that are equivalent or similar to the federal laws recited above
or that purport to regulate Hazardous Materials. The term “Hazardous Materials” includes petroleum, including
crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or
mixtures of natural gas or such synthetic gas), and any substance, material, waste, pollutant or contaminant listed or defined
as hazardous or toxic under any Environmental Law and Phase I and Phase II Environment Document file.
(g) Withholding Obligation.
Seller’s sale of the Property is not subject to any federal, state or local withholding obligation of Purchaser under the
tax laws applicable to Seller or the Property.
(h) Disclosure.
Other than this Agreement, the documents delivered at Closing pursuant hereto, and the Permitted Exceptions, and the Service Contracts,
there are no contracts or agreements of any kind relating to the Property to which Seller or its agents is a party and which would
be binding on Purchaser after Closing. Copies of Property Information delivered to Purchaser pursuant to Section 2.1
hereof are or will be true, correct and complete. Seller has delivered to Purchaser all books, notices, documents and agreements
pertaining to the Property that are in Seller’s possession. To Seller’s knowledge, the Property Information does not
contain a material misstatement of fact or omit to state a fact necessary in order to make the statements therein not misleading
in any material respect. Seller is not aware of any current fact or circumstances pertaining to the condition of the Property that
(1) have not been disclosed to Purchaser, or will not be disclosed to Purchaser pursuant to the Property Information, and
(2) in Seller’s reasonable opinion have a material adverse impact on the value of the Property. Notwithstanding the
foregoing, Purchaser agrees that, so long as Seller discloses the foregoing information in a manner which is not misleading in
any material respect, Purchaser shall be fully responsible for all information that is: (a) readily apparent from a review
of the Property Information delivered to Purchaser pursuant to Section 2.1, the Survey, the Preliminary Title Report
and/or any reports or studies obtained by Purchaser; (b) apparent from an inspection of the Building, and/or (c) otherwise
disclosed to Purchaser.
(i) ERISA. Seller
is not and is not acting on behalf of an “employee benefit plan” within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended, a “plan” within the meaning of Section 4975 of the Internal
Revenue Code of 1986, as amended or an entity deemed to hold “plan assets” within the meaning of 29 C.F.R. § 2510.3-101
of any such employee benefit plan or plans.
(j) Zoning. The
Property’s zoning classification is Research Park, and permits the use of the Property in the manner in which it is currently
being used. There is no proceeding pending or, to Seller’s knowledge, threatened, to modify the zoning for the Property.
9.2. Purchaser’s
Representations and Warranties. As a material inducement to Seller to execute this Agreement and consummate this transaction,
Purchaser represents and warrants to Seller that:
(a) Organization and
Authority. Purchaser has been duly organized and is validly existing as a Connecticut Limited Liability Company, in good standing
and will be qualified to do business in the state in which the Real Property is located on the Closing Date. Subject only to obtaining
certain internal approvals on or before the expiration of the Due Diligence Period, Purchaser has the full right and authority
and has obtained any and all consents required to enter into this Agreement and to consummate or cause to be consummated the transactions
contemplated hereby. This Agreement has been, and all of the documents to be delivered by Purchaser at the Closing will be, authorized
and properly executed and constitutes, or will constitute, as appropriate, the valid and binding obligation of Purchaser, enforceable
in accordance with their terms.
(b) Conflicts and
Pending Action. There is no agreement to which Purchaser is a party or to Purchaser’s knowledge binding on Purchaser
which is in conflict with this Agreement. There is no action or proceeding pending or, to Purchaser’s knowledge, threatened
against Purchaser which challenges or impairs Purchaser’s ability to execute or perform its obligations under this Agreement.
(c) “As-Is”
Purchase. Purchaser is an experienced commercial real estate owner and, except as set forth in this Agreement or in any document
executed at Closing pursuant to or in connection with this Agreement, shall rely solely upon its own evaluation and investigation
of the condition and all aspects of the Property. Purchaser acknowledges that this Agreement grants to Purchaser the opportunity
to fully evaluate the condition and all aspects of the Property. Purchaser has asked for, and has obtained in this Agreement, disclosure
of information and documents regarding the Property which is in Seller’s possession or control. Accordingly, except to the
extent that Seller fraudulently or intentionally conceals or makes misrepresentations as to the condition or suitability of the
Property and except for Seller’s representations and warranties set forth in this Agreement and the warranties set forth
in any closing documents delivered to Purchaser from Seller, Purchaser acknowledges that it is not relying upon any representations
of Seller as to the condition of the Property or its suitability for Purchaser’s intended use. Subject to the foregoing,
in the event Purchaser does not terminate this Agreement pursuant to Section 2.2 above, Purchaser shall be deemed to
accept the Property “as is” in all respects and without representation and warranty except as specifically set forth
in this Agreement.
(d) Assumption.
See Exhibit ____
9.3. Survival of
Representations and Warranties. The representations and warranties set forth in this Article 9 and the Right of First
Refusal granted pursuant to Article 1, are made as of the Effective Date and are remade as of the Closing Date, and such representations
and warranties (and any representations and warranties in any other documents delivered to Purchaser pursuant to the provisions
of this Agreement) shall not be deemed to be merged into or waived by the instruments of Closing, but shall survive the Closing.
ARTICLE 10. MISCELLANEOUS
10.1. Parties Bound.
Neither party may assign this Agreement without the prior written consent of the other, and any such prohibited assignment shall
be void; provided, however, that Purchaser may assign this Agreement without Seller’s consent to an Affiliate. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of the respective legal representatives, successors,
assigns, heirs, and devisees of the parties. For the purposes of this paragraph, the term “Affiliate” means
(i) an entity that directly or indirectly controls, is controlled by or is under common control with Purchaser, or (ii) a
partnership or other entity in which Purchaser or an entity described in (i) is a partner or other owner; and the term “control”
means the power to direct the management of such entity through voting rights, ownership or contractual obligations.
10.2. Headings.
The article and paragraph headings of this Agreement are for convenience only and in no way limit or enlarge the scope or meaning
of the language hereof.
10.3. Expenses.
Except as otherwise expressly provided herein, each party hereto shall pay its own expenses incident to this Agreement and the
transactions contemplated hereunder, including all legal and accounting fees and disbursements.
10.4.
Invalidity and Waiver. If any portion of this Agreement is held invalid or inoperative, then so far as is reasonable and
possible the remainder of this Agreement shall be deemed valid and operative, and, to the
greatest extent legally possible, effect shall be given to the intent manifested by the portion held invalid or inoperative. The
failure by either party to enforce against the other any term or provision of this Agreement shall not be deemed to be a waiver
of such party’s right to enforce against the other party the same or any other such term or provision in the future.
10.5.
Governing Law and Venue. This Agreement shall, in all respects, be governed, construed, applied, and enforced in accordance
with the laws of the state of Connecticut and venue and jurisdiction in any action involving,
relating to or arising from this Agreement shall lie solely and exclusively with the courts in the County of Fairfield, State of
Connecticut..
10.6. Survival.
The provisions of this Agreement and the obligations of the parties not fully performed at the Closing shall survive the Closing
for one year and shall not be deemed to be merged into or waived by the instruments of Closing. Any claim for performance of an
obligation after Closing shall be barred and shall lapse unless a claim is made in writing, with a description of the claim made,
on or before the first anniversary of Closing.
10.7. No Third Party
Beneficiary. This Agreement is not intended to give or confer any benefits, rights, privileges, claims, actions, or remedies
to any person or entity as a third party beneficiary, decree, or otherwise.
10.8. Entirety and
Amendments. This Agreement embodies the entire agreement between the parties and supersedes all prior agreements and understandings
relating to the Property. This Agreement may be amended or supplemented only in writing by a non-electronic instrument executed
by the party against whom enforcement is sought. For the avoidance of doubt, copies of signed instruments that are electronically
transmitted constitute a writing for this purpose.
10.9. Time of the
Essence. Time is of the essence in the performance of this Agreement.
10.10. Time.
All times, whenever specified herein, shall be local time in San Diego, California.
10.11. Confidentiality.
Subject to Section 10.12, (i) the parties agree to keep all negotiations and the terms of this Agreement confidential,
and shall not disclose such terms to any person, without the prior written approval of the other party, and (ii) Purchaser
agrees that the books, records and other information relating to the Property reviewed by or delivered to Purchaser as well as
the results from all studies, tests and inspections conducted on the Real Property by Purchaser or its representatives are confidential
information under this Agreement and shall not be disclosed nor used by Purchaser except in furtherance of completing the transactions
contemplated by this Agreement. The confidentiality obligations set out in this Section 10.11 shall survive the termination
of this Agreement and the Closing.
10.12. Press Release.
Until the Closing, neither Seller nor Purchaser will release or cause or permit to be released any press notices, or publicity
(oral or written) or advertising promotion relating to, or otherwise announce or disclose or cause or permit to be announced or
disclosed, in any manner whatsoever, the terms, conditions or substance of this Agreement without first obtaining the written consent
of the other party except those disclosures that are required by law, including the federal securities laws, applicable stock exchange
requirements or contractual obligation (in which case notice shall be timely provided to the other party of such requirement and
disclosure). The foregoing shall not preclude either party from discussing the substance or any relevant details of such transactions
with any of its attorneys, accountants, professional consultants, lenders, partners, investors, or any prospective lender, partner
or investor, as the case may be, or prevent either party hereto, from complying with laws, rules, regulations and court orders,
including without limitation, governmental regulatory, disclosure, tax and reporting requirements, or from making disclosures in
the ordinary course of its due diligence inspections and contacts with third parties related thereto. Notwithstanding the foregoing,
any party to this transaction (and each employee, agent or representative of the foregoing) may disclose to any and all persons,
without limitation of any kind, the tax treatment and tax structure of the transaction and all materials of any kind (including
opinions or other tax analyses) that are provided to them relating to such tax treatment and tax structure except to the extent
maintaining such confidentiality is necessary to comply with any applicable federal or state securities laws. The authorization
in the preceding sentence is not intended to permit disclosure of any other information unrelated to the tax treatment and tax
structure of the transaction including (without limitation) (i) any portion of the transaction documents or related materials
to the extent not related to the tax treatment or tax structure of the transaction, (ii) the existence or status of any negotiations
unrelated to the tax issues, or (iii) any other term or detail not relevant to the tax treatment or the tax structure of the
transaction.
10.13. Attorneys’
Fees. Should either party employ attorneys to enforce any of the provisions hereof, the non-prevailing party agrees to pay
the prevailing party all reasonable costs, charges, and expenses, including reasonable attorneys’ fees, expended or incurred
by the prevailing party in connection therewith, whether incurred prior to, during or subsequent to any bankruptcy, receivership,
reorganization, appellate, or other legal proceeding.
10.14. Notices.
All notices required or permitted hereunder shall be in writing and shall be served on the parties at the addresses set forth in
Exhibit K. Any such notices shall be either (i) sent by overnight delivery using a nationally recognized overnight
courier, in which case notice shall be deemed delivered one business day after deposit with such courier, (ii) sent by facsimile
on a business day, in which case notice shall be deemed delivered upon transmission of such notice with confirmed receipt by the
sender’s machine, or (iii) sent by personal delivery, in which case notice shall be deemed delivered upon receipt or
refusal of delivery. A party’s address may be changed by written notice to the other party; provided, however, that no notice
of a change of address shall be effective until actual receipt of such notice. Copies of notices are for informational purposes
only, and a failure to give or receive copies of any notice shall not be deemed a failure to give notice. The attorney for a party
has the authority to send notices on behalf of such party.
10.15. Construction.
The parties acknowledge that the parties and their counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any exhibits or amendments hereto.
10.16. Remedies
Cumulative. Except as expressly provided to the contrary in this Agreement, the remedies provided in this Agreement shall be
cumulative and shall not preclude the assertion or exercise of any other rights or remedies available by law, in equity or otherwise.
10.17. Calculation
of Time Periods. Unless otherwise specified, in computing any period of time described herein, the day of the act or event
after which the designated period of time begins to run is not to be included and the last day of the period so computed is to
be included, unless such last day is a Saturday, Sunday or legal holiday for national banks in the location where the Property
is located, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday.
The last day of any period of time described herein and the time during any day by which an event must occur shall be deemed to
end at 5 p.m.
10.18.
Public Company Requirements. Upon Purchaser’s request, for a period of two (2) years after Closing, Seller shall
make any books and records of the Property remaining in possession of Seller available to Purchaser for inspection, copying and
audit by Purchaser’s designated accountants, and at Purchaser’s expense. Seller
shall provide Purchaser, but without third-party expense to Seller, with copies of, or access to, such factual information in connection
with this Agreement and/or the Property as may be reasonably requested by Purchaser, and in the possession or control of Seller,
to enable Purchaser to comply with applicable filing requirements of the Securities and Exchange Commission. Purchaser or its designated
independent or other accountants may audit the operating statements of the Property, and Seller shall supply such documentation
in its possession or control as Purchaser or its accountants may reasonably request in order to complete such audit and shall provide
to Purchaser’s auditors a representation letter from Seller or its representative reasonably satisfactory to Purchaser’s
auditors in connection with such audit.
10.19. Counterparts;
Facsimile and Electronic Signatures. This Agreement may be executed simultaneously in two or more counterparts, each
of which shall be deemed an original and all of which together shall constitute but one and the same instrument. For purposes
of this Agreement, a document (or signature page thereto) signed and transmitted by facsimile machine or other electronic means
is to be treated as an original document. The signature of any party on any such document, for purposes hereof, is to be
considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original
signature on an original document.
10.20. Further Assurances.
In addition to the acts and deeds recited herein and contemplated to be performed, executed or delivered by either party at Closing,
each party agrees to perform, execute and deliver, on or after the Closing any further actions, documents, and will obtain such
consents, as may be reasonably necessary or as may be reasonably requested to fully effectuate the purposes, terms and conditions
of this Agreement or to further perfect the conveyance, transfer and assignment of the Property to Purchaser.
10.21. Approval.
To the extent any approval or consent shall be required in this Agreement such approval or consent shall not be unreasonably withheld,
unless the terms of and conditions of such approval or consent are to the sole discretion of such party.
10.22. Waiver of
Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY
IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
[SIGNATURE PAGE: 1 CONTROLS DRIVE PURCHASE
AND SALE AGREEMENT]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement, as of the Effective Date.
SELLER: |
|
PURCHASER: |
|
|
|
INNO-HAVEN, LLC,
a Connecticut Limited Liability
Company |
|
NANOVIRIDES, INC.,
a Nevada corporation |
|
|
|
|
|
By |
|
|
By |
|
Name: |
Anil R. Diwan |
|
Name: |
Eugene Seymour |
Title: |
Member |
|
Title: |
Chief Executive Officer |
Exhibit 99.1
NanoViricides, Inc. Completes Purchase
of cGMP-compliant Pilot Production Facility
WEST HAVEN,
CONNECTICUT — January 7, 2015 — NanoViricides, Inc. (NYSE MKT: NNVC) (the "Company"), has completed
the purchase of the state of the art cGMP-compliant Manufacturing and R&D facility located in Shelton, Connecticut, from Inno-Haven,
LLC.
The Company purchased the facility solely
by repaying for the costs borne by Inno-Haven, LLC, in acquiring and renovating the property. NanoViricides Board of Directors
had approved the purchase of the facility on these terms in July, 2014.
NanoViricides now intends to move its operations
to the new facility in a phased manner in order to minimize any potential impact on ongoing projects. The Company expects to manufacture
its drug candidates for human clinical trials at the new facility. The Company further reports that all of its drug development
programs are progressing satisfactorily.
NanoViricides believes that its cash in
hand enables this purchase without impacting any of its drug development programs. Further, the Company believes that this purchase
represents a net positive cash flow impact as compared to the leasing option, over the long term.
All of the infrastructure systems needed
for production of the nanoviricides® drug candidates are now operational at the new facility, and have either been validated
by outside experts, or are in the process of such validation.
The 18,000 sqft building at 1 Controls
Drive, Shelton, CT, was completely renovated in order to build a modern, state-of-the-art c-GMP-compliant manufacturing facility
for the production of clinical scale quantities of a wide variety of injectable nanomedicines drug substances and drug products,
modern nanomedicines research and development facilities, as well as an on-site state-of-the-art nanomedicines analysis and characterization
facility. The new facility comprises a small office space, R&D Chemistry Labs, R&D Biology Labs, R&D Analytical Lab
and cGMP supporting Analytical Lab, cGMP-compliant raw materials handling and dispensing area, and c-GMP compliant Clean Room Suites
for nanomedicines production and product packaging processes. All of the R&D labs employ class 100,000 or cleaner air systems.
The clean room suites comprise class 10,000 air quality areas as well as class 1,000 and the ultra-clean class 100 air quality
areas (the class specifies the number of particles per 1,000 liters of air). This allows production and handling of nanomedicines
with minimal risk of entraining foreign particles. All of the R&D labs employ deionized water. For critical processes, WFI-quality
water is also produced on site in quantities needed to support the production scale (WFI = water for injection, comprises a specification
of water quality that specifies minimal endotoxins and maximum sterility).
The Company reported previously that it
had reached an agreement with Inno-Haven to purchase the building outright, rather than to lease it from Inno-Haven. Since the
decision to purchase the facility, NanoViricides has been conducting extensive due diligence. NanoViricides CEO, Dr. Seymour and
Kane-Kessler firm attorneys representing NanoViricides, helped by external consultants, have been performing due diligence regarding
this purchase with Inno-Haven executive Dr. Diwan. The extensive due diligence involved, a study of the original floor plans and
drawings, the final floor plans, engineering drawings, as well as installed equipment and lab furniture, as well as a number of
additional aspects of the purchase. The due diligence process also involved inspection of the accounts of Inno-Haven and detailed
accounting of actual costs involved in this project. The due diligence process further involved a study of the facility description
documents submitted by the construction management firm of MPH Engineering, LLC. In addition, the due diligence process also involved
a study of the reports on (a) the Lease vs. Purchase options for buying this facility, and (b) price of the facility in comparison
to other like facilities. These reports were commissioned from Nanotech Plus, LLC, a specialized consultancy firm, by NanoViricides.
These reports determined that the facility had a replacement value substantially in excess of $15 Million. Dr. Diwan recused himself
from the NanoViricides’s processes pertaining to the lease or purchase of the facility including the discussions with consultants,
commissioning and study of reports, as well as the Board of Directors meetings and discussions.
Dr. Diwan originally purchased the existing
building and land at this location in August, 2011, using his savings, funds he had raised from a sale of his founders stock under
a 10b-5 plan, and certain private loans from other private parties. Inno-Haven, LLC was formed as a special purpose limited liability
company, with Dr. Diwan as its controlling member, to execute this project. The facility was intended to be a stand alone contract
manufacturing operation supporting multiple clients, including NanoViricides, Inc. Later, Inno-Haven obtained additional non-bank
commercial loans to further modify the facility as per the stringent specifications of NanoViricides, Inc. At the time that Dr.
Diwan engaged into this project, NanoViricides Inc. had limited finances available, and was unable to raise funding to engage into
this critical project on its own. NanoViricides common stock (NNVC) was trading on OTC bulletin board, with limited trading volume.
The Company had already identified in 2006 that cGMP manufacturing capability was going to be critical for advancing its drug candidates
towards human clinical trials and licensure. The Company diligently investigated contract manufacturing as well as leasing of existing
cGMP facilities to satisfy its needs. However, as a result of the novelty of its technology, it became apparent that external parties
did not have the necessary expertise. Dr. Diwan therefore took an extreme personal risk in order to advance the Company’s
goals, and engaged into this facility development project.
Subsequently, NanoViricides and Inno-Haven
executed a Memorandum of Understanding (MoU) in January, 2013, in which NanoViricides agreed to lease the facility from Inno-Haven
upon completion, with a right to purchase. NanoViricides, Inc. also commissioned external consultants for the purposes of determining
(a) fair lease ranges, and (b) the pros and cons of leasing as opposed to purchasing the facility. Based on these reports, the
Company determined that it was in the best interests of the Company and its shareholders to purchase the facility rather than to
lease it. Dr. Diwan recused himself from this entire process, including hiring of external consultants, their reports, and the
determination of the appropriate strategy.
Since February 2013, NanoViricides, Inc.
has raised more than approximately $48 Million dollars. Therefore, the Company is now in a strong financial position and is capable
of purchasing the facility outright without adversely impacting its R&D programs. The Company also determined that purchasing
is the low cost option in the long term.
About
NanoViricides:
NanoViricides,
Inc. (www.nanoviricides.com) is a development stage company that is creating special purpose nanomaterials for antiviral therapy.
The Company's novel nanoviricide® class of drug candidates are designed to specifically attack enveloped virus particles and
to dismantle them. The Company is developing drugs against a number of viral diseases including H1N1 swine flu, H5N1 bird flu,
seasonal Influenza, HIV, oral and genital Herpes, viral diseases of the eye including EKC and herpes keratitis, Hepatitis C, Rabies,
Dengue fever, and Ebola virus, among others.
This press release contains forward-looking
statements that reflect the Company's current expectation regarding future events. Actual events could differ materially and substantially
from those projected herein and depend on a number of factors. Certain statements in this release, and other written or oral statements
made by NanoViricides, Inc. are “forward-looking statements” within the meaning of Section 27A of the Securities Act
of 1933 and Section 21E of the Securities Exchange Act of 1934. You should not place undue reliance on forward-looking statements
since they involve known and unknown risks, uncertainties and other factors which are, in some cases, beyond the Company's control
and which could, and likely will, materially affect actual results, levels of activity, performance or achievements. The Company
assumes no obligation to publicly update or revise these forward-looking statements for any reason, or to update the reasons actual
results could differ materially from those anticipated in these forward-looking statements, even if new information becomes available
in the future. Important factors that could cause actual results to differ materially from the company's expectations include,
but are not limited to, those factors that are disclosed under the heading "Risk Factors" and elsewhere in documents
filed by the company from time to time with the United States Securities and Exchange Commission and other regulatory authorities.
Although it is not possible to predict or identify all such factors, they may include the following: demonstration and proof of
principle in pre-clinical trials that a nanoviricide is safe and effective; successful development of our product candidates; our
ability to seek and obtain regulatory approvals, including with respect to the indications we are seeking; the successful commercialization
of our product candidates; and market acceptance of our products.
Contact:
NanoViricides,
Inc.
Amanda Schuon,
310-550-7200
info@nanoviricides.com
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