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Nuclea to Auction Assets as Part of Chapter 7 Bankruptcy Proceedings

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NEW YORK (GenomeWeb) – Nuclea Biotechnologies is auctioning its assets as part of Chapter 7 bankruptcy proceedings.

Heritage Global Partners will manage the auction, set for Jan. 18, 2017. The sale will include Nuclea's intellectual property and other assets such as its HER-2/neu assay, a blood-based test for monitoring women with metastatic breast cancer that overexpressed the HER2/neu protein.

Nuclea filed a voluntary Chapter 7 petition in US Bankruptcy Court for the District of Delaware on Aug. 30, 2016. According to filings, the company had at that time $235,144 in assets and debts of $9.6 million.

Nuclea's single largest creditor is Wilex AG, to which the company owes $2.7 million stemming from its acquisition in 2013 of Wilex AG subsidiary Wilex Inc. Under the terms of that deal, Nuclea purchased all of Wilex Inc.'s assets, which included the Her-2/neu assay and additional assays for measuring carbonic anhydrase IX, or CAIX. Nuclea also assumed responsibility for repayment of a $2.5 million loan between Wilex Inc. and Wilex AG and was required to make to Wilex AG single-digit royalty payments on net sales of the HER2/neu and CAIX assays.

In October, Wilex AG filed a motion seeking transfer of Nuclea's bankruptcy case to Massachusetts Bankruptcy Court, noting that a number of involved parties, including Wilex AG's US counsel and potential witnesses familiar with Nuclea's business are located in that state.

The court has not ruled on this motion, but in the filing Wilex AG indicated it might pursue additional actions, including investigation of members Nuclea's former management team and attempting to obtain payment from Nuclea spin-out, NanoDX, which launched last year with Patrick Muraca, Nuclea's founder and former CEO, as president.

Arguing to move the case to Massachusetts, Wilex AG asserted that "there have been allegations of, at a minimum, negligence or possible improprieties, and fraudulent transfers of assets, by or to the former CEOs and other officers of the Debtor, which may require 2004 examinations in connection with the Debtor's case." (A 2004 examination allows parties to question witnesses under oath and demand relevant documents within a bankruptcy proceeding.)

Wilex also noted that it believes "the Debtor’s technology is being utilized by a company owned and operated by the Debtor's founder and former CEO," a reference to Muraca and Nano DX. This fact, it said, warrants "the need to consider substantive consolidation with the Debtor," under which NanoDx could become part of Nuclea's bankruptcy.

Nuclea spun out NanoDx in 2015, at which time Muraca was replaced as Nuclea's President and CEO by Donald Pogorzelski, a former president of Genzyme Diagnostics. NanoDx is affiliated with the State University of New York Polytechnic Institute in Albany and is part of the Start-Up New York program, under which businesses operate tax-free for 10 years when they expand or relocate to certain New York colleges. According to a release from the office of New York Governor Andrew Cuomo, NanoDx has committed to creating 15 new jobs and investing $265,000. In its bankruptcy filings, the Research Foundation of SUNY is listed as one of Nuclea's creditors, with the company owing the organization $279,300 for sponsored research.

According to NanoDX's website, it is using biochip technology to develop assays for detection of various diseases. In 2013, Nuclea announced a $1 million research partnership with SUNY's College of Nanoscale Science & Engineering, where NanoDX is housed, to develop a nanochip platform for analysis of cancer biomarkers.

Founded by Muraca in 2005, Cambridge, Massachusetts-based Nuclea, according to company statements, raised more than $40 million in funding and established a number of research collaborations over the course of its 12-year history, but ultimately generated little in the way of commercial assets. The Heritage Global Partners auction page lists among the company's assets only four commercially ready tests, two of which, the HER2/neu and CAIX tests, it acquired from Wilex AG. Nuclea also has research-use-only assays for measuring fatty acid synthase, and EGFR, as well as components of assays for the proteins RAS, PDGRF, VEGF, IGF, TIMP-1, and uPA.

More recently, the company moved towards mass spec-based testing, hiring in 2015 six former employees of Thermo Fisher Scientific's Biomarker Research Initiatives in Mass Spectrometry (BRIMS) Center, including former BRIMS head Mary Lopez. The company announced plans to offer more than 50 research-use-only mass spec biomarker tests out of its CLIA/CAP-certified laboratory in Pittsfield, Massachusetts and was also developing clinical mass spec assays for plasma proteins associated with diabetes. It is not clear, however, whether the company ever actually performed these assays, and no mass spec assays are included among the assets being sold at the January auction.

Lopez, who led Nuclea's mass spec efforts, declined to comment for the story.

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