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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): December 29, 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 |
On
December 29, 2023, Biofrontera, Inc. (the “Company”), entered into a Confidential Settlement Agreement and Mutual Release
(the “Release”), dated as of December 27, 2023 and effective as of December 22, 2023, with Maruho Co. Ltd. (“Maruho”),
and a Share Transfer Agreement (the “STA” and, together with the Release, the “Settlement Agreement”), dated
as of December 27, 2023 and effective as of December 22, 2023, by and among the Company, Maruho, and Maruho Deutschland GmbH. The Settlement
Agreement resolves an arbitration proceeding initiated by the Company against Maruho in the International Chamber of Commerce (the “Arbitration”)
in which the Company alleged certain claims against Maruho concerning the Share Purchase and Transfer Agreement (the “SPA”),
dated as of March 25, 2019, referred to in the Settlement Agreement. In the Arbitration, the Company sought, in part, a declaration that
it is not obligated to repay $7.3 million of “start-up costs” to Maruho.
The
Settlement Agreement contains a mutual release whereby each of the Company and Maruho agreed to release and discharge the other party
from any and all claims, actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and
demands whatsoever, in law, admiralty, equity, arbitration or otherwise, which against the other arising from or in connection with or
in any manner relating to the SPA, including but not limited to any claims that were or could have been asserted in the Arbitration.
Under
the Settlement Agreement, the obligations
of the Company to i) repay the $7.3 million of “start-up costs” to Maruho, and ii) make certain profit-sharing
payments related to the products acquired by the Company pursuant to the SPA were released. In addition, the Company agreed to transfer
5,451,016 shares of stock of Biofrontera AG, a German corporation, to Maruho.
This
description of the Settlement Agreement does not purport to be complete and is qualified in its entirety by reference to the Release
and STA, which are filed within Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by
reference.
| Item
7.01. | Regulation
FD Disclosure. |
On
December 29, 2023, the Company entered into the Settlement Agreement as described under Item 1.01 above. The description of the Settlement
Agreement under Item 1.01 above is incorporated into this Item 7.01 by reference.
| Item
9.01 | Financial
Statements and Exhibits |
(d)
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.
| January
3, 2024 |
Biofrontera
Inc. |
| (Date) |
(Registrant) |
| |
|
| |
/s/
E. Fred Leffler III |
| |
E.
Fred Leffler, III |
| |
Chief
Financial Officer |
Exhibit
10.1
CONFIDENTIAL
SETTLEMENT AGREEMENT
AND
MUTUAL RELEASE
This
Confidential Settlement Agreement and Mutual Release (the “Settlement Agreement”) is entered into effective as of December
22, 2023 (the “Effective Date”) by and among Biofrontera Inc. (“B- Inc.”), a Delaware corporation (on behalf
of itself and as successor to Biofrontera Newderm LLC, a Delaware limited liability company (“B-Newderm”) and as successor
to Cutanea Life Sciences, Inc., a Delaware corporation (“Cutanea”)), and Maruho Co., Ltd. (“Maruho”), a Japanese
corporation, all collectively referred to as the “Parties.”
RECITALS
WHEREAS,
the certain of the Parties entered into a Share Purchase and Transfer Agreement among Maruho, Cutanea, B-Newderm and B-AG (as defined
below), dated as of March 25, 2019, as amended July 16, 2019 and as further amended December 10, 2019 (the “SPA”); and
WHEREAS,
on February 13, 2023, B-Inc. initiated an arbitration against Maruho in the International Court of Arbitration, International Chamber
of Commerce (“ICC”), reference number 27583/PDP (the “Arbitration”) alleging certain claims against Maruho in
connection with the SPA; and
WHEREAS,
Maruho has indicated that it believes it has certain claims against B-Inc. in connection with the SPA; and
WHEREAS,
all of the above Parties have now agreed to settle and resolve the potential differences between Maruho and B-Inc. amicably and in accordance
with the terms of this Settlement Agreement;
NOW,
THEREFORE, in consideration of the mutual promises set forth below, the Parties agree as follows:
SETTLEMENT
AMOUNT
1.
B-Inc. will initiate a transfer to Maruho Deutschland GmbH, a German limited liability company that is wholly owned by Maruho (“MDG”),
without further consideration from MDG or Maruho (other than the releases and discharges specified herein), a total of 5,451,016
(five million four hundred fifty-one thousand and sixteen) registered shares (Namensaktien) of Biofrontera AG, a German stock
corporation (“B-AG”) (the “Shares”) within seven (7) days after the last of the Parties has signed this Settlement
Agreement. B-Inc. will transfer all such Shares to the account of MDG in accordance with the provisions of the Share Transfer Agreement
attached as Exhibit 1, which will be executed by the Parties simultaneously with the execution of this Settlement Agreement. B-Inc. will
promptly execute, at Maruho’s or MDG’s request and without any further consideration from Maruho or MDG, any such document
and instruments that Maruho or MDG shall reasonably require in order to effectuate the stock transfers referenced above.
RELEASE
AND DISCHARGE
2.
B-Inc., on its own behalf and on behalf of its subsidiaries, and each of their respective present, former and future officers, subsidiaries,
directors, shareholders, managers, members, employees and agents in their respective capacities as such, and the heirs, executors, administrators,
successors and assigns of each of them (collectively, “Biofrontera Releasors”) hereby irrevocably, unconditionally and generally
releases and discharges Maruho and each of its subsidiaries, and their respective present, former and future officers, subsidiaries,
directors, shareholders, managers, members, employees and agents in their respective capacities as such, and the heirs, executors, administrators,
successors and assigns of each of them (collectively, the “Maruho Releasees”) to the fullest extent permitted by law, from
all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever,
in law, admiralty, equity, arbitration or otherwise, which against the Maruho Releasees, or any of them, the Biofrontera Releasors ever
had, now has or hereafter can, shall or may have for, upon, or by reason of any matter, cause or thing whatsoever, whether known or unknown,
and whether heretofore asserted or unasserted, from the beginning of the world to the date of this Settlement Agreement or any time thereafter,
arising from or in connection with or in any manner relating to the the SPA, including but not limited to any claims that were or could
have been asserted in the Arbitration. This release does not release any obligations of the Maruho Releasees under this Settlement Agreement.
3.
The Biofrontera Releasors hereby covenant and agree not to sue on or assert in court, arbitration, or any other forum any matter otherwise
stated to be released under the terms of this Settlement Agreement.
4.
Maruho, on its own behalf and on behalf of each of its subsidiaries, and each of their respective present, former and future officers,
subsidiaries, directors, shareholders, managers, members, employees and agents in their respective capacities as such, and the heirs,
executors, administrators, successors and assigns of each of them (collectively, “Maruho Releasors”) hereby irrevocably,
unconditionally and generally releases and discharges B-Inc. and each of its subsidiaries, and their respective present, former and future
officers, subsidiaries, directors, shareholders, managers, members, employees and agents in their respective capacities as such, and
the heirs, executors, administrators, successors and assigns of each of them (collectively, the “Biofrontera Releasees”)
to the fullest extent permitted by law, from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty, equity, arbitration or otherwise, which against the Biofrontera Releasees,
or any of them, the Maruho Releasors ever had, now has or hereafter can, shall or may have for, upon, or by reason of any matter, cause
or thing whatsoever, whether known or unknown, and whether heretofore asserted or unasserted, from the beginning of the world to the
date of this Settlement Agreement or any time thereafter, arising from or in connection with or in any manner relating to the SPA, including
but not limited to any claims for repayment of loans made by Maruho pursuant to Section 2 of the SPA, any claims for earnout payments
under Section 2 of the SPA, and any claims for participation in or entitlement to Xepi (as defined in the SPA) profits or revenue in
connection with the marketing or sale of Xepi, and any claims that could have been asserted in the Arbitration. This release does not
release any obligations of the Biofrontera Releasees under this Settlement Agreement.
5.
The Maruho Releasors hereby covenant and agree not to sue on or assert in court, arbitration, or any other forum any matter otherwise
stated to be released under the terms of this Settlement Agreement.
REPRESENTATIONS
AND WARRANTIES OF B-INC.
6.
B-Inc. hereby represents and warrants to Maruho that the following statements are correct:
a.
B-Inc. is a corporation duly organized, validly existing and in good standing under the laws of Delaware. B-Inc. has all requisite power
and authority to execute and deliver this Settlement Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Settlement Agreement have been duly authorized by B-Inc. This Settlement Agreement, when executed and delivered by
all the Parties in accordance with the terms hereof (and assuming due authorization, execution and delivery by each of the other parties
hereto) constitutes or will constitute a valid and binding obligation of B-Inc., enforceable against B-Inc. in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights or by general principles of equity affecting the availability of specific
performance and other equitable remedies.
b.
The execution, delivery and performance by B-Inc. of this Settlement Agreement do not and will not (whether with or without the passage
of time, the giving of notice or both): (i) violate or conflict with any provision of the organizational documents of B-Inc., (ii) violate,
conflict with, or result in the breach of, or constitute a default under, any contract or arrangement to which B-Inc. is a party or otherwise
bound, (iii) result in the creation of any lien or encumbrance upon any of the Shares or (iv) violate or result in a breach of or constitute
a default under any law to which B-Inc. or any of its properties or assets is subject.
c.
B-Inc. is the sole record and beneficial owner and has good and valid title to the Shares, free and clear of all liens and encumbrances,
and B-Inc. will transfer to MDG good and valid title to the Shares free and clear of all liens and encumbrances. All of the Shares have
been duly authorized, validly issued, are fully paid up and non-assessable and were not issued in violation of any applicable laws or
(to the best knowledge of B-Inc.) in violation of any preemptive rights. All of the Shares are listed on and will be immediately tradeable
by MDG, without restrictions, on the Deutsche Borse Xetra Exchange. B-Inc. has no information regarding B-AG concerning the decision
to enter into this Settlement Agreement or the matters being resolved by this Settlement Agreement which would constitute insider information
within the meaning of Art. 7 of the EU Market Abuse Regulation (“MAR”) that has not been disclosed to the market so far in
compliance with Art. 17 MAR.
d.
There is no legal or administrative proceeding pending against B-Inc. before any court, arbitral tribunal or public authority that in
any manner challenges or seeks to prevent, alter or materially delay the transaction contemplated in this Settlement Agreement.
e.
No bankruptcy proceedings, insolvency proceedings or similar proceedings under applicable law are pending regarding B-Inc., and B-Inc.
is not required under applicable law to file for any such proceedings.
REPRESENTATIONS
AND WARRANTIES OF MARUHO
7.
Maruho hereby represents and warrants to B-Inc. that the following statements are correct:
a.
Maruho is a corporation duly organized, validly existing and in good standing under the laws of Japan. Maruho has all requisite power
and authority to execute and deliver this Settlement Agreement and to perform its obligations hereunder. The execution, delivery and
performance of this Settlement Agreement have been duly authorized by Maruho. This Settlement Agreement, when executed and delivered
by all the Parties in accordance with the terms hereof (and assuming due authorization, execution and delivery by each of the other parties
hereto) constitutes or will constitute a valid and binding obligation of Maruho, enforceable against Maruho in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights or by general principles of equity affecting the availability of specific
performance and other equitable remedies.
b.
The execution, delivery and performance by Maruho of this Settlement Agreement do not and will not (whether with or without the passage
of time, the giving of notice or both): (i) violate or conflict with any provision of the organizational documents of Maruho, (ii) violate,
conflict with, or result in the breach of, or constitute a default under, any contract or arrangement to which Maruho is a party or otherwise
bound, or (iii) violate or result in a breach of or constitute a default under any law to which Maruho or any of its properties or assets
is subject.
c.
There is no legal or administrative proceeding pending against Maruho before any court, arbitral tribunal or public authority that in
any manner challenges or seeks to prevent, alter or materially delay the transaction contemplated in this Settlement Agreement.
d.
No bankruptcy proceedings, insolvency proceedings or similar proceedings under applicable law are pending regarding Maruho, and Maruho
is not required under applicable law to file for any such proceedings.
EXPENSES
AND FEES
8.
Each Party will bear its own costs, disbursements and expenses, including attorneys’ fees, incurred in connection with the Arbitration
and in negotiating and documenting this Settlement Agreement.
DISMISSAL
WITH PREJUDICE
9.
Immediately following execution of this Settlement Agreement, B-Inc. and Maruho and their counsel will halt all litigation and dispute
activities concerning the SPA, the Arbitration, and the claims that are the subject of this Settlement Agreement, will advise the ICC
that the Arbitration has been settled, and will jointly seek a continued stay of all proceedings pending implementation of the Settlement
Agreement.
10.
Simultaneously with B-Inc.’s transfer of the Shares to MDG, counsel for B-Inc. shall deliver to the ICC, via email and jointly
on behalf of the Parties, a notice of withdrawal, withdrawing all claims and terminating the Arbitration, with prejudice, with each Party
bearing its own costs. Upon submission of the notice of withdrawal, all claims arising from the subject matter of the Arbitration that
have been or could have been asserted by any of the Parties in the Arbitration will be dismissed with prejudice. If for any reason counsel
for B-Inc. fails to timely deliver the notice of withdrawal as required by this clause, the Parties agree that counsel for Maruho shall
be entitled to obtain the dismissal of the Arbitration with prejudice as described in this clause upon providing the ICC with a copy
of this Settlement Agreement, with a copy to counsel for B-Inc.
GOVERNING
LAW AND JURISDICTION
11.
This Settlement Agreement shall be governed by and construed in accordance with the internal law of the State of New York without reference
to conflict-of-laws principles.
12.
Each of the Parties consents and agrees that the Federal and State courts in New York County, USA will have exclusive personal jurisdiction
with respect to any dispute or controversy relating to this Settlement Agreement or its subject matter, and that process may be served
by air courier, regular mail or any other method in accordance with New York law, with a copy to current counsel for all of the Parties
(such copy shall not be deemed to constitute service on a Party), at the following addresses (or at any other address notified to the
other Party in accordance with the provisions of this Section 12):
| For Maruho: |
Maruho Co., Ltd., |
|
1-5-22, Nakatsu, Kita-Ku, |
|
Osaka,531-0071, Japan |
| |
Attention: Masahiro Akatsuka |
| For Maruho counsel: |
Baker & McKenzie LLP |
|
452 Fifth Avenue |
|
New York, New York 10018 |
| |
Attention: Jacob Kaplan, Esq. |
| For B-Inc.: |
Biofrontera Inc. |
|
120 Presidential Way, Suite
330 |
|
Woburn, MA 01801 |
| |
Attention: CEO |
| For B-Inc. Counsel: |
McGuireWoods LLP |
|
1251 Avenue of the Americas,
20th Floor |
| |
New York, New York 10020 |
|
Attention: Jeffrey J. Chapman,
Esq. |
Each
of the Parties agrees that, if so served, it will raise no objection to the personal jurisdiction of the court in any such dispute or
controversy involving the Settlement Agreement.
DISCLOSURE
13.
Maruho expressly agrees and acknowledges that B-Inc. (i) will disclose this Settlement Agreement in accordance with applicable United
States Securities and Exchange Commission (“SEC”) rules; (ii) will only disclose the Share Transfer Agreement if it (x) determines
that such disclosure is required by SEC rules and (y) redacts any and all sensitive and confidential information included in the Share
Transfer Agreement, including but not limited to bank account information; and (iii) shall be permitted to discuss the financial implications
of this Settlement Agreement with current or prospective investors. Notwithstanding the above, neither Party shall issue a press release
or similar public communication announcing, discussing, or otherwise publicizing this Settlement Agreement.
INDEMNITY
14.
Each Party will indemnify and hold harmless the other Party and its subsidiaries, and each of their respective present, former and future
officers, subsidiaries, directors, shareholders, managers, members, employees and agents in their respective capacities as such, and
the heirs, executors, administrators, successors and assigns of each of them (including, in the event that litigation is commenced against
any of them) for any violation of such Party’s representations, warranties and covenants contained in this Settlement Agreement,
including without limitation such indemnitees’ payment of any applicable judgment incurred by them, applicable settlement paid
by them, and applicable costs incurred by them (including reasonable attorneys’ fees and costs).
EFFECTIVENESS,
NON-ADMISSION,
NON-MODIFICATION
AND EXECUTION
15.
This Settlement Agreement constitutes the entire agreement between the Parties hereto concerning the subject matter hereof and supersedes
any prior communication, understanding, or agreement, whether written or oral, concerning the subject matter hereof.
16.
The Parties warrant, represent and agree that, in executing this Settlement Agreement and in accepting the stated consideration, the
Parties do so with full knowledge of any and all rights which the Parties may have with respect to the controversies herein compromised
and that the Parties have sought independent legal advice from their attorneys with regard to the facts relating to said controversies
and with respect to the rights and asserted rights arising out of said facts.
17.
This Settlement Agreement is intended to be and is a settlement and compromise of a dispute between the Parties, and neither this Settlement
Agreement, nor any acts or omissions related thereto, shall constitute an admission or disclaimer of the existence of liability of any
kind; nor shall they be construed as a waiver, modification or retraction of the respective views and positions of the Parties.
18.
This Settlement Agreement shall not be modified, altered, amended or changed, except by a writing signed by the Parties hereto.
19.
This Settlement Agreement has been jointly negotiated and drafted. The language of this Settlement Agreement shall be construed as a
whole according to its fair meaning, and not strictly construed for or against any Party based upon that Party’s status as a drafter
of any particular provision or term of this Settlement Agreement.
20.
All representations and agreements set forth in this Settlement Agreement shall be deemed continuing and shall survive the effective
date of this Settlement Agreement.
21.
This Settlement Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together
shall be deemed to constitute one instrument. A signature produced by facsimile transmission or email shall be deemed to be an original
signature.
22.
This Settlement Agreement shall inure to the benefit of, and be binding upon, the Parties hereto and their respective subsidiaries, and
the respective directors, officers, employees, agents, executors, administrators, heirs, successors and assigns of each such Party.
23.
If any provision of this Settlement Agreement is not enforceable, the remaining portions of the Settlement Agreement shall be enforced
to the extent that they can be severed from the portion that is not enforceable.
24.
This Settlement Agreement shall become effective immediately following execution by each of the Parties.
25.
Each of the Parties expressly warrants and represents that the person signing this Settlement Agreement is fully authorized to execute
this Settlement Agreement on its behalf and is fully authorized and empowered to effectuate the terms of this Settlement Agreement.
26.
The Parties or their respective counsel, where appropriate, shall execute such other and further instruments as may be necessary to give
effect to the foregoing.
27.
The headings in this Settlement Agreement are provided for convenience only, and shall not be considered as substantive terms of this
Settlement Agreement, and shall not be used in the interpretation of this Settlement Agreement.
IN
WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be signed by their duly authorized representatives as of
the Effective Date above.
| Biofrontera,
Inc. |
|
Maruho
Co., Ltd. |
| |
|
|
|
|
| By: |
 |
|
By: |
|
| Name: |
Hermann
Luebbert |
|
Name: |
Masahiro
Akatsuka |
| Its
Duly Authorized: Chief Executive Officer |
|
Its
Duly Authorized: Senior Corporate Officer, Global Business Development, Research & Development |
| |
|
|
| Date: |
December
27, 2023 |
|
Date: |
December
_____, 2023 |
22.
This Settlement Agreement shall inure to the benefit of, and be binding upon, the Parties hereto and their respective subsidiaries, and
the respective directors, officers, employees, agents, executors, administrators, heirs, successors and assigns of each such Party.
23.
If any provision of this Settlement Agreement is not enforceable, the remaining portions of the Settlement Agreement shall be enforced
to the extent that they can be severed from the portion that is not enforceable.
24.
This Settlement Agreement shall become effective immediately following execution by each of the Parties.
25.
Each of the Parties expressly warrants and represents that the person signing this Settlement Agreement is fully authorized to execute
this Settlement Agreement on its behalf and is fully authorized and empowered to effectuate the terms of this Settlement Agreement.
26.
The Parties or their respective counsel, where appropriate, shall execute such other and further instruments as may be necessary to give
effect to the foregoing.
27.
The headings in this Settlement Agreement are provided for convenience only, and shall not be considered as substantive terms of this
Settlement Agreement, and shall not be used in the interpretation of this Settlement Agreement.
IN
WITNESS WHEREOF, the Parties hereto have caused this Settlement Agreement to be signed by their duly authorized representatives as of
the Effective Date above.
| Biofrontera,
Inc. |
|
Maruho
Co., Ltd. |
| |
|
|
|
|
| By: |
|
|
By: |
 |
| Name: |
|
|
Name: |
Masahiro
Akatsuka |
| Its
Duly Authorized: |
|
Its
Duly Authorized:_Senior Corporate Officer, Global Business Development, Research & Development |
| |
|
|
| Date: December
___, 2023 |
|
Date: |
December 22,
2023 |
EXHIBIT
1
SHARE
TRANSFER AGREEMENT
Share
Transfer Agreement
dated
December 22, 2023
between
| (1) | Biofrontera
Inc., a corporation incorporated under the laws of Delaware, with business address at
120 Presidential Way, Suite 330, Woburn, Massachusetts 01801, USA (the “Transferor”); |
| | |
| (2) | Maruho
Co., Ltd., a corporation incorporated under the laws of Japan, with business address
at 1-5-22, Nakatsu, Kita-Ku, Osaka, 531-0071, Japan (“Maruho”); and |
| | |
| (3) | Maruho
Deutschland GmbH, a limited liability company incorporated under the laws of Ger- many,
which is wholly owned by Maruho, and with registered seat in Düsseldorf, registered
in the commercial register of the local court of Düsseldorf under no. HRB 69727, with
business address at Hemmelrather Weg 201, 51377 Leverkusen, Germany (the “Transferee”). |
Preamble
| (A) | Biofrontera
AG, a German listed stock corporation, having its registered seat in Leverkusen, reg- istered
in the commercial register of the local court of Cologne under no. HRB 49717, with reg- istered
business address at Hemmelrather Weg 201, 51377 Leverkusen, Germany (the “Com- pany”)
has a registered share capital of EUR 63,807,058 that is divided into 63,807,058 no-par value
registered shares (Namensaktien) (the “Company Shares”). |
| | |
| (B) | The
Company Shares are evidenced by one or several global share certificates (Globalurkunden)
held in custody at Clearstream Banking AG (“Clearstream”) and are admitted
to trading on the regulated market of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse)
(sub-segment Prime Standard) under ISIN DE0006046113. |
| | |
| (C) | On
the date hereof, Transferor and Maruho have entered into a settlement agreement (the “Set-
tlement Agreement”) in which Transferor undertook to initiate transfer to Transferee,
without further consideration from Maruho or Transferee (other than the releases and discharges
specified in the Settlement Agreement), of a total of 5,451,016 (five million four hundred
fifty-one thou- sand and sixteen) of the Company Shares (the “Shares”)
within seven (7) days after the last of the Parties has signed the Settlement Agreement. |
| | |
| (D) | Therefore,
Transferor, Maruho and Transferee (together the “Parties”, each a “Party”)
agree as follows (the “Agreement”): |
| 1.1 | Transferor
hereby transfers title in (übereignen), and assigns (abtreten) any and
all rights pertain- ing to, the Shares, pursuant to the transfer and delivery procedures
set forth in Sections 2 and 3 below to Transferee. |
| 1.2 | Transferee
accepts the transfer of title and assignment pursuant to Section 1.1. |
| 2. | Procedure
of Transfer of Title |
| 2.1 | The
Parties hereby agree that, in accordance with the delivery procedures set out in Section
3 below, the ownership in the Shares shall pass to the Transferee (Einigung within
the meaning of section 929 sentence 1 of the German Civil Code (Bürgerliches Gesetzbuch))
and the Shares, in- cluding all ancillary rights pertaining thereto, shall be transferred
and assigned to Transferee. |
| 2.2 | For
such purpose, Transferor hereby also transfers (übereignen) to Transferee its
co-ownership right (Miteigentumsanteil) in the global share certificate (Globalurkunde)
issued for the Shares together with all of Transferor’s rights for surrender of possession
(Abtretung des Herausgabeanspruchs within the meaning of section 931 of the German
Civil Code (Bürgerliches Gesetzbuch)) with regard to the Shares against (i) Clearstream
and (ii) the bank at which the Transferor’s securities deposit, into which the Shares
are booked (the “Transferor’s Securities Deposit”), is maintained
in its capacity as depositary bank (“Transferor’s Bank”). |
| 3.1 | Immediately
following the execution of this Agreement, the Parties shall take the following ac- tions: |
| 3.1.1 | Transferor
shall irrevocably instruct the Transferor’s Bank in writing to transfer the Shares
from the Transferor’s Securities Deposit to the securities deposit of Transferee to
be designated by Transferee and notified to Transferor on the date hereof (the “Transferee’s
Securities Deposit”, and the bank at which the Transferee’s Securities Deposit
is maintained, the “Transferee’s Bank”) by making a corresponding
book-entry transfer (Girosammelgutschrift). |
For
purposes of effecting the transfer of title and delivery of the Shares in accordance with the above procedures, Transferor and Transferee
agree to enter via their relevant depositary banks matching instructions in the settlement system of Clearstream (CASCADE) to provide
the receiv- ing and/or instructing depositary bank the respective instruction. The point in time the transfer of the Shares is completed
by way of the procedure pursuant to this Section 3.1 is referred to as the “Completion”.
| 3.2 | Each
Party shall take any other actions and make any other declarations as may be necessary or
useful in order to effect the transfer of title and delivery of the Shares to the Transferee,
without any further payment or consideration made to any other Party. |
| 4. | Transferor’s
warranties |
Transferor
hereby warrants (garantiert) to Transferee by way of an independent promise of guar- antee (selbständiges Garantieversprechen)
pursuant to section 311 (1) of the German Civil Code (Bürgerliches Gesetzbuch, “BGB”) that the following
statements in this Section 4 are correct as of the day of this Agreement:
| a) | Transferor
is a corporation duly organized, validly existing and in good standing under the laws of
Delaware. Transferor has all requisite power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. The execution, delivery and per- formance of this
Agreement have been duly authorized by Transferor. This Agreement, when executed and delivered
by all the Parties in accordance with the terms hereof (and assuming due authorization, execution
and delivery by each of the other parties hereto) constitutes or will constitute a valid
and binding obligation of Transferor, enforceable against Transferor in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights or by general principles of equity affecting the availability of
specific performance and other equitable remedies. |
| | | |
| b) | The
execution, delivery and performance by Transferor of this Agreement do not and will not (whether
with or without the passage of time, the giving of notice or both): (i) violate or conflict
with any provision of the organizational documents of Transferor, (ii) violate, conflict
with, or result in the breach of, or constitute a default under, any contract or ar- rangement
to which Transferor is a party or otherwise bound, (iii) result in the creation of any lien
or encumbrance upon any of the Shares or (iv) violate or result in a breach of or constitute
a default under any law to which Transferor or any of its properties or assets is subject. |
| | | |
| c) | Transferor
is the sole record and the sole beneficial owner and has good and valid title to the Shares,
free and clear of all liens and encumbrances, and Transferor will transfer to Transferee
good and valid title to the Shares free and clear of all liens and encumbrances (dingliche
Belastungen). All of the Shares have been duly authorized, validly issued, are fully
paid up and non-assessable and were not issued in violation of any applicable laws or (to
the best knowledge of Transferor) in violation of any preemptive rights. All of the Shares
are listed on and will be immediately tradeable by Transferee, without restrictions, on the
Deutsche Borse Xetra Exchange. Transferor has no information regarding the Com- pany concerning
the decision to enter into the Settlement Agreement or the matters being resolved by the
Settlement Agreement which would constitute insider information within the meaning of Art.
7 of the EU Market Abuse Regulation (“MAR”) that has not been disclosed to the
market so far in compliance with Art. 17 MAR. |
| | | |
| d) | There
is no legal or administrative proceeding pending against Transferor before any court, arbitral
tribunal or public authority that in any manner challenges or seeks to prevent, alter or
materially delay the transaction contemplated in this Agreement. |
| | | |
| e) | No
bankruptcy proceedings, insolvency proceedings (Insolvenzverfahren) or similar proceedings
under applicable law are pending regarding Transferor, and Transferor is not required under
applicable law to file for any such proceedings. |
| 5. | Transferee’s
warranties |
Transferee
hereby warrants (garantiert) to Transferor by way of an independent promise of guar- antee (selbständiges Garantieversprechen)
pursuant to section 311 (1) BGB that the following statements in this Section 5 are correct as of the day of this Agreement:
| a) | Transferee
is a limited liability company duly organized, validly existing and in good stand- ing under
the laws of Germany. Transferee has all requisite power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. The execution, deliv- ery and performance
of this Agreement have been duly authorized by Transferee. This Agreement, when executed
and delivered by all the Parties in accordance with the terms hereof (and assuming due authorization,
execution and delivery by each of the other parties hereto) constitutes or will constitute
a valid and binding obligation of Transferee, enforce- able against Transferee in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors’ rights or by general principles of equity affecting the availability
of specific performance and other equitable remedies. |
| | | |
| b) | The
execution, delivery and performance by Transferee of this Agreement do not and will not (whether
with or without the passage of time, the giving of notice or both): (i) violate or conflict
with any provision of the organizational documents of Transferee, (ii) violate, conflict
with, or result in the breach of, or constitute a default under, any contract or ar- rangement
to which Transferee is a party or otherwise bound, or (iii) violate or result in a breach
of or constitute a default under any law to which Transferee or any of its properties or
assets is subject. |
| | | |
| c) | There
is no legal or administrative proceeding pending against Transferee before any court, arbitral
tribunal or public authority that in any manner challenges or seeks to prevent, alter or
materially delay the transaction contemplated in this Agreement. |
| | | |
| d) | No
bankruptcy proceedings, insolvency proceedings (Insolvenzverfahren) or similar pro-
ceedings under applicable law are pending regarding Transferee, and Transferee is not re-
quired under applicable law to file for any such proceedings. |
Maruho
hereby warrants (garantiert) to Transferor by way of an independent promise of guaran- tee (selbständiges Garantieversprechen)
pursuant to section 311 (1) BGB that the following statements in this Section 6 are correct as of the day of this Agreement:
| a) | Maruho
is a corporation duly organized, validly existing and in good standing under the laws of
Japan. Maruho has all requisite power and authority to execute and deliver this Agreement
and to perform its obligations hereunder. The execution, delivery and perfor- mance of this
Agreement have been duly authorized by Maruho. This Agreement, when executed and delivered
by all the Parties in accordance with the terms hereof (and assuming due authorization, execution
and delivery by each of the other parties hereto) constitutes or will constitute a valid
and binding obligation of Maruho, enforceable against Maruho in accordance with its terms,
except as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting creditors’
rights or by general principles of equity affecting the availability of specific performance
and other equitable remedies. |
| | | |
| b) | The
execution, delivery and performance by Maruho this Agreement do not and will not (whether
with or without the passage of time, the giving of notice or both): (i) violate or conflict
with any provision of the organizational documents of Maruho, (ii) violate, conflict with,
or result in the breach of, or constitute a default under, any contract or arrangement to
which Maruho is a party or otherwise bound, or (iii) violate or result in a breach of or
constitute a default under any law to which Maruho or any of its properties or assets is
subject. |
| | | |
| c) | There
is no legal or administrative proceeding pending against Maruho before any court, arbitral
tribunal or public authority that in any manner challenges or seeks to prevent, alter or
materially delay the transaction contemplated in this Agreement. |
| | | |
| d) | No
bankruptcy proceedings, insolvency proceedings (Insolvenzverfahren) or similar pro-
ceedings under applicable law are pending regarding Maruho, and Maruho is not required under
applicable law to file for any such proceedings. |
| 7.1 | Costs:
Unless explicitly set forth otherwise herein, each Party shall bear its own costs incurred
in connection with the negotiation, conclusion or execution of this Agreement (including
the trans- actions stipulated in this Agreement), including any advisors’ fees, bank
fees, taxes, if any, and other duties incurred. |
| 7.2 | Counterparts:
This Agreement may be executed in any number of counterparts, and this has the same effect
as if the signatures on the counterparts were on a single copy of this Agreement. A telefax
or e-mail transmission of scanned or executed counterparts of this Agreement shall be sufficient
to bind a Party to the same extent as an original. |
| 7.3 | Amendments
and waivers: Any and all amendments to this Agreement or waivers must be made in writing
by all Parties, unless stricter requirements as to their form are required by mandatory law.
This shall also apply to any waiver of compliance with the provisions of this Section 7.3. |
| 7.4 | Interpretation:
This Agreement is made in the English language. Terms to which a German trans- lation has
been added in parenthesis will, however, be construed and interpreted throughout the document
as having the meaning assigned to them by the German translation. The headings of the sections
and subsections in this Agreement are for convenience purposes only and shall not affect
the interpretation of any of the provisions hereof. |
| 7.5 | Severability:
Should any provision of this Agreement be or become invalid, ineffective or unen- forceable
as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions
shall not be affected thereby. Any such invalid, ineffective or unenforceable provision shall
be deemed replaced by such valid, effective and enforceable provision that comes closest
to the economic intent and purpose of such invalid, ineffective or unenforceable provision
with re- gard to the subject matter, amount, time, place and extent. The aforesaid shall
apply mutatis mu- tandis to any gap in this Agreement. The Parties agree that the
provisions in this Section 7.5 shall not reverse the burden of proof but that Section 139
Bürgerliches Gesetzbuch shall be waived in its entirety. |
| 7.6 | Governing
law: This Agreement shall be governed by and construed in accordance with the laws of
the Federal Republic of Germany notwithstanding any conflict-of-law rules. |
| 7.7 | Jurisdiction:
Each of the Parties consents and agrees that the Federal and State courts in New York County,
USA will have exclusive personal jurisdiction with respect to any dispute or con- troversy
relating to this Agreement or its subject matter, and that process may be served by air courier,
regular mail or any other method in accordance with New York law, with a copy to cur- rent
counsel for all of the Parties (such copy shall not be deemed to constitute service on a
Party), at the following addresses (or at any other address notified to the other Party in
accordance with the provisions of this Section 7.7): |
For
Maruho: Maruho Co., Ltd.,
1-5-22,
Nakatsu, Kita-Ku,
Osaka,
531-0071, Japan
Attention:
Masahiro Akatsuka
For
Maruho counsel: Baker & McKenzie LLP
452
Fifth Avenue
New
York, New York 10018
Attention:
Jacob Kaplan, Esq.
For
B-Inc.: Biofrontera Inc.
120
Presidential Way, Suite 330
Woburn,
MA 01801
Attention:
CEO
For
B-Inc. Counsel: McGuireWoods LLP
1251
Avenue of the Americas, 20th Floor
New
York, New York 10020
Attention:
Jeffrey J. Chapman, Esq.
For
MDG: Maruho Deutschland GmbH,
Hemmelrather
Weg 201,
51377
Leverkusen, Germany
Attention:
Takaharu Kato
For
MDG counsel: Gleiss Lutz
Dreischeibenhaus
1,
40211
Düsseldorf, Germany
Attention:
Martin Hitzer
Each
of the Parties agrees that, if so served, it will raise no objection to the personal jurisdiction of the court in any such dispute or
controversy involving this Agreement.
Signature
page follows
| Signatures
|
|
| |
|
| Biofrontera
Inc.: |
|
| |
|
|
| |
|
|
| |
|
|
| Name:
|
Hermann
Luebbert |
|
| |
|
|
| Position: |
Chief
Executive Officer |
|
| |
|
|
| Date: |
December
27, 2023 |
|
| Maruho
Co., Ltd.: |
|
| |
|
|
| |
|
|
| |
|
|
| Name: |
Masahiro
Akatsuka |
|
| |
|
|
| Position: |
Senior
Corporate Officer, |
|
| |
Global
Business Development, Research & Development |
|
| |
|
|
| Date: |
December
____, 2023 |
|
| Maruho
Deutschland GmbH: |
|
| |
|
|
| |
|
|
| |
|
|
| Name: |
Takaharu
Kato |
|
| |
|
|
| Position: |
Managing
Director |
|
| |
|
|
| Date: |
December
____, 2023 |
|
| Signatures
|
|
| |
|
| Biofrontera
Inc.: |
|
| |
|
|
| |
|
|
| |
|
|
| Name: |
|
|
| |
|
|
| Position: |
|
|
| |
|
|
| Date: |
December_, 2023 |
|
| Maruho
Co., Ltd.: |
|
| |
|
|
| |
 |
|
| |
|
|
| Name: |
Masahiro
Akatsuka |
|
| |
|
|
| Position: |
Senior
Corporate Officer, Global Business Development, Research & Development |
|
| |
|
|
| Date: |
December
22,2023 |
|
| Maruho
Deutschland GmbH: |
|
| |
|
|
| |
|
|
| |
|
|
| Name: |
Takaharu
Kato |
|
| |
|
|
| Position:
|
Managing
Director |
|
| |
|
|
| Date: |
December
___, 2023 |
|
| Signatures |
|
| |
|
| Biofrontera
Inc.: |
|
| |
|
| |
|
|
| |
|
|
| Name: |
|
|
| |
|
|
| Position: |
|
|
| |
|
|
| Date: |
December
__, 2023 |
|
| Maruho
Co., Ltd.: |
|
| |
|
|
| |
|
|
| |
|
|
| Name:
|
Masahiro
Akatsuka |
|
| |
|
|
| Position: |
Senior
Corporate Officer, Global Business Development, Research & Development |
|
| |
|
|
| Date: |
December
__, 2023 |
|
| Maruho
Deutschland GmbH: |
|
| |
|
|
| |
 |
|
| |
|
|
| Name: |
Takaharu
Kato |
|
| |
|
|
| Position: |
Managing
Director |
|
| |
|
|
| Date:
|
December
22,2023 |
|
v3.23.4
Cover
|
Dec. 29, 2023 |
| Document Type |
8-K
|
| Amendment Flag |
false
|
| Document Period End Date |
Dec. 29, 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
|
| Written Communications |
false
|
| Soliciting Material |
false
|
| Pre-commencement Tender Offer |
false
|
| Pre-commencement Issuer Tender Offer |
false
|
| Entity Emerging Growth Company |
true
|
| Elected Not To Use the Extended Transition Period |
false
|
| Entity Information, Former Legal or Registered Name |
Not
Applicable
|
| Common Stock Par Value 0. 001 Per Share [Member] |
|
| Title of 12(b) Security |
Common
stock, par value $0.001 per share
|
| Trading Symbol |
BFRI
|
| Security Exchange Name |
NASDAQ
|
| Preferred Stock Purchase Rights [Member] |
|
| Title of 12(b) Security |
Preferred
Stock Purchase Rights
|
| Security Exchange Name |
NASDAQ
|
| Warrants To Purchase Common Stock [Member] |
|
| Title of 12(b) Security |
Warrants
to purchase common stock
|
| Trading Symbol |
BFRIW
|
| Security Exchange Name |
NASDAQ
|
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dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
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| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
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dei_WrittenCommunications |
| Namespace Prefix: |
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xbrli:booleanItemType |
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duration |
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| X |
- Details
| Name: |
us-gaap_StatementClassOfStockAxis=BFRI_CommonStockParValue0.001PerShareMember |
| Namespace Prefix: |
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| Data Type: |
na |
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- Details
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| X |
- Details
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| Namespace Prefix: |
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na |
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Biofrontera (NASDAQ:BFRI)
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