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October 13 2023 - 5:26PM
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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 EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): October 12, 2023
Biofrontera
Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-40943 |
|
47-3765675 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
120
Presidential Way, Suite 330
Woburn,
Massachusetts |
|
01801 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (781) 245-1325
Not
Applicable
(Former
name or former address, if changed since last report)
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 Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Exchange Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange
on which registered |
Common
stock, par value $0.001 per share |
|
BFRI |
|
The
Nasdaq Stock Market LLC |
Preferred
Stock Purchase Rights |
|
|
|
The
Nasdaq Stock Market LLC |
Warrants
to purchase common stock |
|
BFRIW |
|
The
Nasdaq Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (the “Exchange Act”) (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item
1.01 | Entry
into a Material Definitive Agreement |
As
previously reported in a Current Report of Form 8-K filed with the Securities and Exchange Commission on April 17, 2023, Biofrontera
Inc., a Delaware corporation (the “Company”), and each member of its Board of Directors, in their individual capacities,
entered into a settlement agreement (the “Settlement Agreement”) with Biofrontera AG, a significant stockholder of the Company.
On October 12, 2023, the Company and Biofrontera AG entered into an amendment to the Settlement Agreement (the “Amendment”)
Pursuant
to the Amendment, the search for an additional independent director to be mutually selected by the Company and Biofrontera AG, which
was to occur in 2023, will now take place at a mutually agreed time that is no earlier than January 1, 2024 and no later than September
1, 2024. The candidate will be selected by means of the search process set forth in the Amendment and will be nominated at our 2024 annual
meeting to serve as a Class III Director.
The
foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment,
a copy of which is filed herewith as Exhibit 10.1 and incorporated herein by reference.
Item
9.01 | Financial
Statements and Exhibits. |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
October
13, 2023
(Date) |
|
Biofrontera
Inc.
(Registrant) |
|
|
|
|
/s/
E. Fred Leffler, III |
|
|
E.
Fred Leffler, III
Chief
Financial Officer |
Exhibit
10.1
Amendment
NO. 1 to SeTTLEMENT Agreement
This
amendment number 1 (this “Amendment”), dated as of October 12, 2023 (the “Effective Date”) and entered
into by and among Biofrontera Inc. (“BFRI”), Hermann Luebbert, John J. Borer, Beth J. Hoffman, Kevin D. Weber (collectively,
the “BFRI Parties”) and Biofrontera AG (each, a “Party” and collectively, the “Parties”), hereby
amends that certain Settlement Agreement entered into between the Parties as of April 11, 2023 (the “Agreement”) pursuant
to the following terms and conditions.
1. |
Definitions.
Capitalized terms used and not defined herein shall have the respective meanings assigned to them in the Agreement. |
|
|
2. |
Amendments.
As of the Effective Date, the Agreement is hereby amended as follows: |
|
(a) |
Section
III.C.3. Section III.C.3 as set forth in the Agreement shall be deleted in its entirety and replaced with the following: |
“In
addition, at a mutually agreeable time as determined by Biofrontera AG and BFRI, but in any case (i) no earlier than January 1, 2024,
and (ii) no later September 1, 2024, Biofrontera AG and BFRI shall engage a third-party board search firm (the “Search Firm”)
to assist in the search for an additional independent director candidate, who shall be mutually selected by BFRI and Biofrontera AG,
and nominated for election as an additional “Class III Director,” as such term is defined in BFRI’s Amended and Restated
Certificate of Incorporation, as amended (the “Additional Class III Director”), effective at BFRI’s 2024 annual meeting
of stockholders (the “2024 Annual Meeting”), pursuant to the following process. To select the Additional Class III Director,
Biofrontera AG and BFRI shall engage the Search Firm to identify no fewer than three and no more than five candidates (the “Board
Candidates” and each a “Board Candidate”), each of whom (i) is fully independent of BFRI, Biofrontera AG, and DB (and
each of their respective affiliates); (ii) meets the independence qualifications under the NASDAQ listing standards and the rules of
the U.S. Securities and Exchange Commission (the “SEC”) and any exchange on which the securities of BFRI are listed, including
for purposes of Rule 10A-3 promulgated under the Securities Exchange Act of 1934, as amended (or any successor rule thereto); and (iii)
has the relevant financial and business experience to be a director of BFRI. The Biofrontera AG Non-Independent Director shall be given
the opportunity to participate in any NGC interview of the Board Candidates and shall have the right, but not the obligation, to strike
one Board Candidate. The NGC shall select one individual from the Board Candidates, subject to the Biofrontera AG Non-Independent Director’s
strike right, to be nominated for election to serve as the Additional Class III Director, effective no later than the date of BFRI’s
2024 Annual Meeting (the “Independent Nominee”). After the Independent Nominee has been selected, the Board shall take all
necessary action to increase the size of the Board to seven directors, effective as of the date of the 2024 Annual Meeting, and to nominate
the Independent Nominee for election to fill the newly-created directorship. For the avoidance of doubt, Biofrontera AG agrees that it
shall vote all shares of BFRI stock owned by Biofrontera AG in favor of the election of the Independent Nominee selected and nominated
pursuant to this process.
3. |
Date
of Effectiveness. This Amendment, including all of the changes set forth in Section 2 hereof, shall become effective as of the
Effective Date. On and after the Effective Date, each reference in the Agreement to “this Agreement,” “the Agreement,”
“hereunder,” “hereof,” “herein,” or words of like import, and each reference to the Agreement
in any other agreements, documents, or instruments executed and delivered pursuant to, or in connection with, the Agreement, will
mean and be a reference to the Agreement as amended by this Amendment. |
|
|
4. |
Representations
and Warranties. Each of the Parties hereby represents and warrants that it has entered into this Amendment voluntarily and of
its own volition. Each Party acknowledges that no other Party, nor any agent or attorney of any other Party, has made any promise,
representation, or warranty whatsoever, express or implied, not expressly contained in this Amendment concerning the subject matter
hereof, or any other matter whatsoever, to induce said Party to execute or authorize the execution of this Amendment. Each Party
acknowledges that it has not executed or authorized the execution of this Amendment in reliance upon any promise, representation,
or warranty not expressly contained herein. |
|
|
5. |
Jurisdiction.
This Amendment, and any dispute arising out of or relating in any way to this Amendment, shall be governed by the laws of the
State of Delaware, without regard to conflicts of law principles. Any action relating to this Amendment shall be brought, heard,
and determined exclusively in the Court of Chancery of the State of Delaware (the “Court”) (provided that, in the event
that subject matter jurisdiction is unavailable in the Court, then all such claims shall be brought, heard and determined exclusively
in any other state or federal court sitting in Delaware). Subject to the preceding sentence, each Party (i) irrevocably submits to
the sole and exclusive personal jurisdiction of any state or federal court sitting in Delaware, as well as to the sole and exclusive
jurisdiction of all courts to which an appeal may be taken from such courts, in any such action arising out of or relating to this
Agreement (but no other action); (ii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from such court; (iii) consents to service of process by registered mail on such Party and/or such Party’s
attorney in the Action; (iv) waives any objection to venue in such court and any claim that the Court (or, in the event that subject
matter jurisdiction is unavailable in the Court, any other state or federal court sitting in Delaware) is an inconvenient forum;
and (v) expressly waives, and agrees not to plead or to make any claim that any such action is subject (in whole or in part) to a
jury trial. |
|
|
6. |
Miscellaneous. |
|
(a) |
This
Amendment shall inure to the benefit of and be binding upon each of the Parties and each of their respective successors and permitted
assigns. |
|
|
|
|
(b) |
This
Amendment may be executed in one or more original, facsimile, or PDF counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument. |
|
|
|
|
(c) |
This
Amendment and the Agreement, together, constitute the sole and entire agreement between the Parties with respect to its subject matter,
and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with
respect to such subject matter. |
7. |
Remainder
of Agreement. Except as expressly provided in this Amendment, all of the terms and provisions of the Agreement are and will remain
in full force and effect and are hereby ratified and confirmed by the Parties in all respects. Without limiting the generality of
the foregoing, the amendments contained herein will not be construed as an amendment to or waiver of any other provision of the Agreement
(or of any other agreement or document relating to the subject matter hereof), or as a waiver of or consent to any further or future
action on the part of any Party that would require the waiver or consent of another Party. |
[Remainder
of page intentionally left blank; Signature page follows]
IN
WITNESS WHEREOF, the Parties have executed this Amendment as of the Effective Date.
Biofrontera
Inc.
Signature: |
/s/
Hermann Luebbert |
|
|
|
|
Name: |
Hermann
Luebbert |
|
|
|
|
Title: |
Chief
Executive Officer |
|
/s/
Hermann Luebbert |
|
Hermann
Luebbert |
|
|
|
/s/
John J. Borer |
|
John
J. Borer |
|
|
|
/s/
Beth J. Hoffman |
|
Beth
J. Hoffman |
|
|
|
/s/
Kevin D. Weber |
|
Kevin
D. Weber |
|
Biofrontera
AG
Signature: |
/s/
Pilar de la Huerta |
|
|
|
|
Name: |
Pilar
de la Huerta |
|
|
|
|
Title: |
Chief
Financial Officer |
|
v3.23.3
Cover
|
Oct. 12, 2023 |
Document Type |
8-K
|
Amendment Flag |
false
|
Document Period End Date |
Oct. 12, 2023
|
Entity File Number |
001-40943
|
Entity Registrant Name |
Biofrontera
Inc.
|
Entity Central Index Key |
0001858685
|
Entity Tax Identification Number |
47-3765675
|
Entity Incorporation, State or Country Code |
DE
|
Entity Address, Address Line One |
120
Presidential Way
|
Entity Address, Address Line Two |
Suite 330
|
Entity Address, City or Town |
Woburn
|
Entity Address, State or Province |
MA
|
Entity Address, Postal Zip Code |
01801
|
City Area Code |
(781)
|
Local Phone Number |
245-1325
|
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|
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|
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Common stock, par value $0.001 per share |
|
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Common
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|
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|
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NASDAQ
|
Preferred Stock Purchase Rights |
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NASDAQ
|
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