Exhibit 10.1

 

SUBLEASE

 

THIS AGREEMENT, made as of the         day of April, 2014 between 87AM HOLDINGS LLC, a New York Limited Liability Company, having an office at 42-52 West 39th Street, 4th Floor, New York, New York (the “Sublessor’’) and DIPEXIUM PHARMACEUTICALS, INC., a Delaware Limited Liability Company with an office at 61 Broadway, Suite 1905, New York, New York (the “Sublessee”).

 

W I T N E S S E T H :

 

WHEREAS, by Agreement of Lease dated as of January 22, 2013, a redacted copy of which is attached hereto as Exhibit “A” and made a part hereof, (the “Master Lease”) Sublessor currently leases from 61 BROADWAY OWNER LLC (the “Master Lessor “) a portion of the 19th floor, known as Suite 1905 (the “Premises”) in the building known as 61 Broadway, New York New York (the “Building”); and

 

WHEREAS, Sublessor, pursuant to the Master Lease between Sublessor and Master Lessor is currently in possession of the Premises, as shown on Exhibit “B”; and

 

WHEREAS, Sublessee desires to sublease the Premises from Sublessor,

 

NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, Sublessor and Sublessee stipulate, covenant and agree as follows:

 

	
PREMISES
    	
 
    	
1.         Sublessor does hereby sublease to   Sublessee the Premises as indicated on the floor plan as outlined on Exhibit “B”,   attached hereto and made a part hereof. The parties agree and acknowledge   that the rentable square feet, as indicated on Schedule “B”, is 4,233.
    
	
 
    	
 
    	
 
    
	
TERM
    	
 
    	
2.         The term shall commence on the later   of April 1, 2014 or the date Sublessor receives Master Lessor’s written   consent to this Sublease, (“Commencement Date”) and expire at 11:59:59pm on   March 30, 2016 (the “Expiration Date”) (collectively the period between   the Commencement Date and the Expiration Date is referred to as the “Term”).   In the event the Term commences on a date other than the Commencement Date,   Sublessor and Sublessee shall execute a memorandum setting forth the actual   date of commencement of the Term, and such date shall become the Commencement   Date. Possession of the Premises (“Possession”) shall be delivered to   Sublessee on the Commencement Date. If for any reason Sublessor does not   deliver Possession to Sublessee on the Commencement Date, Sublessor shall not   be subject to any liability for such failure, the Term shall not be extended   by the delay, and the validity of this Sublease shall not be impaired, but   rent shall abate until delivery of Possession.
    
	
 
    	
 
    	
 
    
	
USES
    	
 
    	
3.         Sublessee shall use and occupy the   Premises for general, administrative and executive offices only and for no   other purpose.
    


 











 

	
RENT   AND ADDITIONAL RENT
    	
 
    	
4.         (a) Sublessee shall pay to   Sublessor in U.S. currency the Rent as follows: (i) from the   Commencement Date through December 31, 2014, Sublessee shall pay monthly   Rent in the amount of Twelve Thousand Three Hundred Forty Six and 25/100   Dollars ($12,346.25) ($148,155.00 per annum, pro-rated); (ii) From   January 1, 2015 through December 31, 2015, Sublessee shall pay monthly   Rent in the amount of Twelve Thousand Seven Hundred Sixteen and 64/100 Dollars   ($12,716.64) ($152,599.65 per annum); and (iii) From January 1, 2016   though the Expiration Date, Sublessee shall pay monthly Rent in the amount of   Thirteen Thousand Ninety Eight and 14/100 Dollars ($13,098.14) ($157,177.64,   per annum, pro-rated).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Rent   for any portion of a month shall be prorated on a thirty (30) day basis.   Accordingly, Rent from the Commencement Date through April 30, 2014   shall be pro-rated. Rent payments shall be delivered to the office of   Sublessor or such other place as Sublessor may designate.
    
	
 
    	
 
    	
 
    
	
REAL   ESTATE TAXES
    	
 
    	
(b) During   the Term, Sublessee shall be responsible for the Sublessor’s increase in real   estate taxes on the Premises over the 2014 fiscal base year (July 1, 2013 to   June 30, 2014) (the “Real Estate Taxes”), and shall pay such Real Estate   Taxes directly to Sublessor as additional rent. Sublessee’s proportionate   share of such Real Estate taxes shall mean 0.7% of any Building increase.
    
	
 
    	
 
    	
 
    
	
CLEANING
    	
 
    	
(d) Sublessee   shall be solely responsible for complying with the terms of Articles 4, 5, 8   and 29 of the Master Lease, and Sublessor shall have no obligation or   liability therefore.
    
	
 
    	
 
    	
 
    
	
SUBLESSOR’S   WORK
    	
 
    	
5.         At the Commencement Date, Sublessee shall accept the   Premises in its then “as is” condition, subject to Sublessor’s obligation to   deliver the Premises broom-clean and free of all occupants, except for the   furniture being left for the use of Sublessee as defined in Exhibit “C”.
    
	
 
    	
 
    	
 
    
	
INCORPORATION   OF MASTER-LEASE
    	
 
    	
6.         (a) This Sublease is subject to   and made upon all obligations, terms, covenants and conditions of the Master   Lease, with the same force and effect as if fully set forth herein at length,   except as otherwise specifically provided herein. All the terms, covenants   and conditions which Sublessor is bound to comply with under the Master Lease   as lessee thereunder shall, to the extent only that they apply to the   Premises and except as otherwise provided herein, be binding upon the   Sublessee. It is the intention of the parties that, except as otherwise   provided in this Sublease, the relationship between Sublessor and Sublessee   shall be governed by the language of the various articles of the Master Lease   as if they had been typed out herein in full (specifically excluding 1A, IC,   21, 23, 28, 33 and 36 and Exhibit “C” Exhibit “D” and Exhibit “F”,   and any other article which by its nature should be excluded to be consistent   with the terms of this Sublease), and the terms “Landlord”, “Tenant” and   “Lease” as used in the Master Lease read, respectively, “Sublessor”, “Sublessee”   and “Sublease”. Notwithstanding the foregoing, if any provision of the Master   Lease interpreted in accordance with the preceding sentence conflicts with a   term contained in this Sublease, the term contained in this Sublease shall   control. Sublessee represents and warrants that it will introduce no   Hazardous Substances to the Premises except for such cleaning and office   supplies as may be permitted by law in the quantities as are permitted by   law. Sublessee shall have no responsibility for Sublessor’s default or for   curing defaults related to the Premises that exist as of the Commencement   Date, and Sublessor shall immediately cure any such defaults.
    


 

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(b) For   the purposes of this Sublease, the following Articles of the Master Lease are   hereby deleted 1A, IC, 21, 23, 28, 33 and 36 and Exhibit “C”   Exhibit “D” and Exhibit “F”.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
(c) If   the Master Lease terminates, this Sublease shall terminate and the parties   shall be relieved of any further liability or obligation under this Sublease,   provided however, that (a) if the Master Lease terminates as a result of   a default or breach by Sublessee under this Sublease and/or the Master Lease,   then Sublessee shall be liable to Sublessor for the damages suffered as a   result of such termination; and (b) if the Master Lease terminates as a   result of a default or breach by Sublessor under the Master Lease, then   Sublessor shall be liable to Sublessee for all damages suffered by Sublessee   as a result of such termination.
    
	
 
    	
 
    	
 
    
	
QUIET   ENJOYMENT
    	
 
    	
7.         Sublessor convents and agrees with   Sublessee that as consideration for Sublessee paying the rent and additional   rent reserved in this Sublease and performing and observing all other terms,   covenants and conditions on its part to be performed under this Sublease,   Sublessee may peaceably and quietly enjoy the Premises during the Term,   provided that Sublessee is not in default of the payment of the rent and   additional rent due under this Sublease or in the performance and observance   of any of the other terms, covenants and conditions on Sublessee’s part to be   observed and performed by Sublessee under the Master Lease and this Sublease.
    
	
 
    	
 
    	
 
    
	
PHONES &   FURNITURE
    	
 
    	
8.         Sublessor shall not be required to   provide any phones, supporting systems, and furniture in the Premises   (jointly “the “Equiptment”) for use by the Subtenant during the Term.   Sublessor shall be permitted to leave furniture in the space for Sublessee’s   use during the Term.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Upon   the expiration of the Term, and provided the Subtenant is not in default   under the terms of this Sublease, the Subtenant shall remove all Phones and   Furniture from the Premises. Any items remaining in the Premises after the   Expiration of the Term shall be deemed forfeited and Sublessee shall be   required to compensate Sublessor for the removal of such items.
    
	
 
    	
 
    	
 
    
	
DIRECT   7 LISTINGS ANri SIGNAGE 
    	
 
    	
9.         Sublessee, subject to Landlord’s   approval, shall receive a) its pro-rata share of directory listings in the   Building and b) be permitted to install its signage and logo on the floor of   the Premises.
    
	
 
    	
 
    	
 
    
	
NOTICES
    	
 
    	
10.       Any notice or demand under this   Sublease shall be in writing and shall be considered properly delivered when   addressed as hereinafter provided, given or served personally or by nationally   recognized overnight courier service, by registered or certified mail (return   receipt requested) and deposited in the United States general or branch post   office. Any notice or demand by the Sublessee to Sublessor shall be addressed   to Sublessor at the address listed above, Attn: Carl Levin, with a copy to   Cabot J. Marks, Esq. 485 Madison Avenue, l3 ‘1’ Floor, New York, New   York 10022 unless otherwise directed by Sublessor. Any notice from Sublessor   to Sublessee, Diplexium Pharmaceuticals LLC., shall be addressed to Sublessee   at the Premises, Attention: David Luci, Esq., unless otherwise directed   in writing by Sublessee. Rejection or other refusal to accept or the   inability to deliver because of a changed address of which no notice was   given, shall be deemed to be receipt of the notice, demand or request sent.
    


 

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NO   ASSIGNMENT, SUBLETTING OR MORTGAGING
    	
 
    	
11,                     Supplementing   the provisions of Article 12 of the Master Lease, Sublessee covenants   that it shall not assign, sublease, mortgage, transfer, license, pledge or   encumber its interest in this Sublease, in whole or in part, or sublet or   permit the subletting of the Premises, permit Premises or any part thereof to   be occupied or used by any person or entity other than Sublessee without   first obtaining the prior written consent of the Sublessor, which consent   shall not be unreasonably be withheld or delayed provided the Master Lessor   consents to such assignment or sublease in writing.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
No   such assignment or sublease shall operate to release Sublessee from its   obligations under this Sublease. As a condition of obtaining Sublessor’s   consent, Sublessee shall pay Sublessor’s reasonable costs involved in the   review of the proposed Sub-Sublessee or assignee and any related   documentation. Notwithstanding anything to the contrary, Sublessee covenants   that it shall not assign, mortgage, transfer, pledge or encumber its interest   in this Sublease, in whole or in part, or sublet or permit the subletting of   the Premises, permit the Premises or any part thereof to be occupied or used   by any person or entity other than Sublessee without the prior written   consent of the Master Lessor being first obtained and in accordance with the   terms of the Master Lease.
    
	
 
    	
 
    	
 
    
	
MASTER   LESSOR’S RESPONSIBILITI ES
    	
 
    	
12.                     Sublessee   recognizes that Sublessor is not in a position to furnish the services set   forth in the Master Lease, obtain an agreement of non-disturbance, or to   perform certain other obligations which are not within the control of   Sublessor, such as maintenance, repairs and replacements to the building and   Premises, compliance with laws, and restoration of the Premises and building   after casualty or condemnation. Sublessee shall look to Master Lessor to   furnish these services and to perform these obligations. Sublessor shall use   best efforts to cause Master Lessor to perform its maintenance, repair and   service obligations under the Master Lease. Notwithstanding anything to the   contrary in this Sublease or in the Master Lease, Sublessee shall not be   liable to Sublessor or any other party in the event this Sublease terminates   due to a failure or default of Master Lessor under the Master Lease.
    
	
 
    	
 
    	
 
    
	
DAMAGE,   DESTRUCTION AND CONDEMNATION
    	
 
    	
13.                     Subject to   the Provisions of Articles 10 and 11 of the Master Lease, if any portion or   all of the Premises is damaged by fire, earthquake, act of God, terrorism war   (declared or undeclared) the elements or other action beyond the reasonable   control of Sublessee, or is lawfully taken by condemnation or in any other   manner for any public or quasi-public purpose, and if Master Lessor or   Sublessor terminates the Master Lease under the terms thereof, this Sublease   shall terminate therewith, and Sublessor shall not be liable to Sublessee,   and Sublessee shall not be liable to Sublessor, for such early termination of   this Sublease. If after damage to or condemnation of the Premises, the Master   Lease is not terminated, this Sublease shall continue in full force or   effect, provided that rent due under this Sublease shall be abated to the   extent that and so long as Sublessee’s occupancy in the Premises is   prohibited by such damage or condemnation, or if Sublessee’s occupancy is   substantially impaired but not prohibited, rent due under this Sublease shall   be abated proportionally to the degree of impairment. If the Master Lease   gives Sublessor any right to terminate the Master Lease in the event of the   partial or total damage, destruction, or condemnation of the Premises or the   building or project of which
    


 

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the   Premises are a part, then (a) the exercise of such right by Sublessor   shall not constitute a default or breach hereunder; and (b) such right   shall also be construed as a right by Sublessee to terminate this Sublease   upon notice to Sublessor without further obligation or penalty.
    
	
 
    	
 
    	
 
    
	
SECURITY   DEPOSIT
    	
 
    	
14.                     Sublessee   shall deposit with Sublessor on the signing of this Sublease, a security   deposit in the amount in U.S. currency of Forty Nine Thousand Three Hundred   and Eighty Five Dollars ($49,385.00), which deposit shall be in the form of a   bank check or a “clean” unconditional, irrevocable, nontransferable letter of   credit (the “Letter of Credit”) in a form satisfactory to Sublessor, issued   and drawn on a bank satisfactory to Sublessor and which is a   member of the New York Clearing House Association, for the account of   Sublessor for a term expiring no earlier than thirty (30) days following the   Expiration Date as security for the faithful performance and observance by   Sublessee of the terms, covenants, conditions and provisions of this   Sublease, including without limitation the surrender of Possession of the   Premises to Sublessor as and when required by this Sublease. If Sublessor so   uses any portion of the security deposit, Sublessee shall, within   (10) days after written demand by Sublessor, restore the security deposit   to the amount then required in accordance with the schedule above, and   Sublessee’s failure to do so shall constitute a default under this Sublease.   Within thirty (30) days after the later of (a) the Expiration Date,   (b) the date Sublessee has vacated the Premises, and provided Sublessee   is not then in default of its obligations hereunder, the Letter of Credit   shall expire and be of no further force and effect.
    
	
 
    	
 
    	
 
    
	
ALTERATIONS
    	
 
    	
15.                     Sublessee may   not make any additions, alterations or improvements to the Premises without   prior written consent of Sublessor (and Master Lessor if so required under   the Master Lease).
    
	
 
    	
 
    	
 
    
	
BROKERS
    	
 
    	
16.                     Upon   execution of this Sublease and the written approval of this Sublease by the   Master Lessor, Sublessor shall pay any brokerage fee due to DTZ. Upon the   clearance of such funds in its account; DTZ shall pay all compensation due   Cassidy Turley, pursuant to a separate agreement between the brokers. Except   for DTZ and Cassidy Turley, Sublessor and Sublessee represent and warrant to each   other that neither has dealt with any real estate broker, nor is liable to   any real estate broker, with respect to this Sublease. Sublessee and   Sublessor covenant and agree to pay, hold harmless and indemnify each other   from and against any and all cost, expense (including reasonable attorneys’   fees) or liability for any compensation, commission or charges claimed by any   broker or agent other than such brokers with respect to this Sublease or the   negotiation thereof.
    
	
 
    	
 
    	
 
    
	
INDEMNIFICATI   ON
    	
 
    	
17.                     Sublessee   shall indemnify Sublessor against and hold Sublessor harmless from any and   all third party claims, damages, costs and expenses with respect to its   non-performance or non-observance by Sublessee of any of the terms, covenants   and conditions of the Master Lease. Sublessor shall indemnify Sublessee   against and hold Sublessee harmless from any and all third party claims,   damages, costs and expenses with respect to the non-performance or   non-observance by Sublessor of any of the terms, covenants and conditions of   the Master Lease.
    
	
 
    	
 
    	
 
    
	
EXCULPATION
    	
 
    	
18.                     Neither the   partners, entities or individuals comprising the Sublessor, nor the agents,   directors, or officers or employees of any of the foregoing shall be   personally liable for the performance of the Sublessor’s obligations   hereunder.
    


 

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Neither   the partners, entities or individuals comprising the Sublessee, nor the   agents, directors, or officers or employees of any of the foregoing shall be   personally liable for the performance of the Sublessee’s obligations   hereunder.
    
	
 
    	
 
    	
 
    
	
LIMITED   CONVEYANCE
    	
 
    	
19.                     Sublessor   cannot grant or convey any greater estate, rights or interest by virtue of   this Sublease than Sublessor has received under the terms of the Master   Lease, and Sublessee acknowledges that it has not received and cannot receive   greater estate, rights or interest pursuant to this Sublease than Sublessor   has received under the Master Lease.
    
	
 
    	
 
    	
 
    
	
ADDITIONAL   INSURED
    	
 
    	
20.                     Sublessee   agrees to obtain the insurance coverage for the Premises as required under   Article 9 and Exhibit “E” of the Master Lease and shall name   Sublessor as an additional insured under such policies. Sublessor   acknowledges that Sublessee may provide insurance coverage in any combination   of primary and umbrella coverage at its sole option. Sublessee shall provide   Sublessor with certificates of insurance evidencing such coverage, prior to   Sublessee taking possession of the Premises.
    
	
 
    	
 
    	
 
    
	
BINDING   EFFECT & ENTIRE AGREEMENT 
    	
 
    	
21,                     This Sublease   shall be binding on the parties and their respective heirs, executors,   representatives, successors and assigns, and i the case of partnership or   limited liability partnership, each of the partners shall be jointly and   severally liable. This Sublease contains the entire agreement of the parties   and may not be modified except by an instrument in writing, which is signed   by both parties.
    
	
 
    	
 
    	
 
    
	
CONSENT   OF MASTER LESSOR
    	
 
    	
22.                     Anything   hereinabove to the contrary notwithstanding, it is understood and agreed that   this Sublease shall not become effective unless and until Sublessor has   obtained and delivered to Sublessee the consent.of Master Lessor to the   subletting herein. Sublessor shall use commercially reasonable efforts to   obtain Master Lessor’s consent by the thirty (30) calendar day anniversary of   the effective date of this Sublease. In the event Master Lessor has failed to   provide such consent in writing by the ninety (90) calendar day anniversary   of the effective date of this Sublease, Sublessee shall have the right to terminate   this Sublease upon written notice to Sublessor without further obligation or   penalty.
    
	
 
    	
 
    	
 
    
	
SUBLESSOR   WARRANTY
    	
 
    	
23.                               Sublessor   warrants and represents to Sublessee, that (a) the Master Lease has not   been amended or modified except as expressly set forth herein, (b) the   Sublessor is not in receipt of any uncured notice(s) of default or   breach of any of the provisions of the Master Lease, (c) the Sublessor   has no knowledge of any claim by Master Lessor that Sublessor is in default   or breach of any of the provisions of the Master Lease, (d) the Master   Lessor is not in default or breach of any of the provisions of the Master   Lease, (e) to the best knowledge of Sublessor, there are no liens filed   against the Premises as of the commencement date of this Sublease which have   not been disclosed to Sublessee in writing prior to execution of this   Sublease, and (0 Sublessor has full right and authority to enter into this   agreement with Sublessee.
    


 

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GOVERNING   LAW
    	
 
    	
24.                     This Sublease   shall be governed by the laws of the State of New York without reference to   the conflicts of law principles of the State. The Parties hereby submit to   personal jurisdiction in the State of New York for the enforcement of this   Sublease and waive any and all personal rights to object to such jurisdiction   for the purposes of litigation to enforce this Sublease. Both parties hereby   waive the right to trial by jury in any action or proceeding that hereafter   may be instituted in respect of this Sublease.
    
	
 
    	
 
    	
 
    
	
iNTERPRETATION
    	
 
    	
25.                     The headings   of paragraphs or sections in this Sublease are for convenience only and shall   not be construed in any way to limit or define the content, scope or intent   of the provisions hereof. As used in this Sublease, the singular shall   include the plural, and masculine, feminine and neuter pronouns shall be   fully interchangeable where the context so requires. If any provision of this   Sublease, or any paragraph, sentence, clause, phrase or word, or the   application thereof, in any circumstances, is adjudicated by a court of   competent jurisdiction to be invalid, the validity of the remainder of this   Sublease shall be construed as if such invalid part were never included   herein. Time is of the essence of this Sublease. All payments to be made   hereunder shall be made in currency and coin of the United States of America   that is legal tender for public and private debts as of the time of payments.
    
	
 
    	
 
    	
 
    
	
FULL   AND COMPLETE AUTHORITY
    	
 
    	
26.                     The parties   executing the Sublease each warrants and represents for itself that the   person or entity executing this Sublease on behalf of the Sublessor and on   behalf of the Sublessee are authorized on behalf of such entity to enter into   this Sublease and has the full and complete authority to enter into same.
    


 

IN WITNESS WHEREOF, the parties hereto have executed. this Sublease as of the day and year first above written.

 

	
WITNESS:
    	
 
    	
87AM   Holdings, LLC
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
By:
    	

    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Title:   
    	
COO
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
 
    
	
WITNESS:
    	
 
    	
Dipexium   Pha aceuticals, Inc,
    
	
 
    	
 
    	
 
    
	

    	
 
    	
By:
    	

    
	
Yvonne   Montes
    	
 
    	
 
    
	
 
    	
 
    	
Title:   David P. Luci