AGREEMENT
between
(1) tbg Technologie-Beteiligungs-Gesellschaft mbH, with its registered seat in
Bonn, registered in the commercial register of the local court Bonn under
HRB 4990, Xxxxxx-Xxxxxx-Xxxxx 0, 00000 Xxxx, Xxxxxxx
hereafter referred to as tbg
(2) DNAPrint genomics, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, XXX
hereafter referred to as the Purchaser
and
(3) Biofrontera AG, with its registered seat in Leverkusen, registered in the
commercial register of Cologne under HRB 49717, Xxxxxxxxxxxx Xxx 000,
00000 Xxxxxxxxxx, Xxxxxxx
hereafter referred to as Biofrontera AG
Preamble:
Biofrontera AG is a German stock corporation. As of the date of the signing of
this agreement the share capital of Biofrontera AG amounts to EUR 1,862,869 and
is divided into 1,862,869 non-par value shares with a proportional amount of the
share capital of EUR 1.00 each. The shares are in registered form and not
certified; no single or multiple share certificates have been issued.
tbg holds 89,880 preferred shares class A in Biofrontera AG. Biofrontera AG
intends - with the consent of the holders of the preferred shares class A and B
and the consent of Biofrontera AG's general meeting - to convert all preferred
shares class A and B into common shares. All shares held by tbg - as of the date
of the signing of this agreement and after the conversion of the preferred
shares class A into common shares - are referred to as the tbg-Shares.
tbg entered into a participation agreement with the legal predecessor of
Biofrontera AG, the BioFrontera Pharmaceuticals GmbH, concerning the formation
of a silent partnership about DM 2 mill. dated 2/10 October 1998 (the
Participation Agreement I). Further, tbg entered into a participation agreement
with the legal predecessor of Biofrontera AG, BioFrontera Pharmaceutical GmbH
concerning the formation of another silent partnership about DM 3 mill. dated
2/10 October 1998 (the Participation Agreement II). Finally, tbg entered into a
third participation agreement with Biofrontera AG concerning the formation of a
third silent partnership about EUR 2,945,800 dated 8 January 2001 (the
Participation Agreement III). The Participation Agreement I, II and III are also
collectively referred to as the tbg-Participation Agreements. The
tbg-Participation Agreements are hereto attached as Annex 1, Annex 2 and Annex
3.
I. SALE AND ASSIGNMENT OF THE tbg-SHARES
1. SALE AND ASSIGNMENT OF THE TBG-SHARES
1.1 tbg herewith irrevocably sells to the Purchaser the tbg-Shares including
and together with all ancillary and associated rights of the tbg-Shares.
The Purchaser herewith irrevocably accepts the sale of the tbg-Shares.
1.2 Subject to the payment of the Purchase Price, tbg herewith assigns
irrevocably to the Purchaser the tbg-Shares including and together with
all ancillary and associated rights of the tbg-Shares. The Purchaser
accepts herewith the assignment of the tbg-Shares.
1.3 The right to all profits of Biofrontera AG of the current fiscal year and
relating to all possible profits of Biofrontera AG incurred in previous
fiscal years upon which as of the date of the assignment of the tbg-Shares
the shareholders' meeting has not resolved upon shall be sold and assigned
as well.
2. Purchase Price
2.1 The purchase price for each Share shall be EUR 2.00. Hence, the total
purchase price for the tbg-Shares is EUR 179,760 (Euro one hundred seventy
nine thousand seven hundred sixty) (the Purchase Price).
2.2 The Purchase Price becomes due immediately after the signing of this
Agreement. The Purchase Price is to be paid to tbg's bank account, account
number 12 2089 4473 at KfW Bankengruppe Frankfurt, bank code 500 204 00.
2.3 Should any relevant tax authority or court rule that the
sale and assignment of the tbg-Shares set out in Clause 1 is taxable for VAT,
the Purchaser agrees to pay the VAT to tbg in accordance with such decision and
applicable law.
3. Warranty
As of the date of the signing of this Agreement and as of the date on
which the title to the tbg-Shares is transferred, tbg guarantees the
correctness and completeness of the following statements by means of an
independent guarantee promise within the meaning of section 311 para 1 of
the German Civil Code, hereafter referred to as the BGB, which - according
to the parties' expressed intentions - does not constitute a guarantee for
the quality of the tbg-Shares within the meaning of sections 443 para 1
alternative 1, 444 alternative 2 of the BGB but a promise which is made
from the start only with the content restricted to the following:
(a) tbg has full legal title to the tbg-Shares. The tbg-Shares are not
encumbered with third party's rights (except for obligations under
the agreements referred to in Subclause 8.3).
(b) The tbg-Shares have been fully paid up and the capital contributions
have not been paid back.
II. SALE AND TRANSFER OF THE INTEREST IN SILENT PARTNERSHIPS
4. Sale and transfer of the silent partnerships
4.1 tbg herewith irrevocably sells to the Purchaser all its interests in the
silent partnerships with Biofrontera AG pursuant to the tbg-Participation
Agreements, i.e. tbg sells any and all of its rights and obligations
pursuant to or in connection with the tbg-Participation Agreements
including any claims on profit sharing, interests and one-time
considerations. The Purchaser accepts the sale.
4.2 Subject to the payment of the S-Purchase Price tbg herewith irrevocably
transfers to the Purchaser all its interests in the silent partnerships
pursuant to the tbg-Participation Agreements, i.e. tbg transfers any and
all of its rights and obligations pursuant to or in connection with the
tbg-Participation Agreements including any claims on profit sharing,
interests and one-time considerations. The Purchaser accepts the transfer.
4.3 The sale and transfer shall include any and all current and future,
including contingent claims of tbg vis-a-vis Biofrontera AG under or in
connection with the tbg-Participation Agreements.
4.4 Biofrontera AG consents to the transfers.
5. S-Purchase Price
5.1 The purchase price for the sale and transfer of the interests in the
silent partnerships pursuant to Clause 4 shall be EUR 1,320,240 (Euro one
million three hundred twenty thousand two hundred forty) (the S-Purchase
Price). The part purchase price for the interest in the silent partnership
pursuant to the Participation Agreement I is EUR 245,300.59, for the
interest in the silent partnership pursuant to the Participation Agreement
II is EUR 368,082.91 (he S-II-Purchase Price) and for the interest in the
silent partnership pursuant to the Participation Agreement III is EUR
706,856.50.
5.2 The S-Purchase Price except for the S-II-Purchase Price becomes due
without undue delay after the signing of this Agreement. The S-II-Purchase
Price becomes due without undue delay after the consent requirement
pursuant to Clause 8.4 has been fulfilled. The S-Purchase Price is to be
paid to tbg's bank account as provided in Clause Error! Reference source
not found..
5.3 Should any relevant authority or court rule that the sale and transfer of
the interests in the silent partnerships pursuant to Clause 4 are taxable
for VAT, the Purchaser agrees to pay the VAT to tbg in accordance with
such decision and applicable law.
6. Warranties regarding the silent partnerships
As of the date of the signing of this Agreement and as of the date on
which the title to the interests in the silent partnerships pursuant to
Clause 4 is transferred, tbg guarantees the correctness and completeness
of the following statements by means of an independent guarantee promise
within the meaning of section 311 para 1 of the BGB, which - according to
the parties' express intention - does not constitute a guarantee for the
quality of the silent partnerships within the meaning of sections 443 para
1 alternative 1, 444 alternative 2 of the BGB but a promise which is made
from the start only with the content restricted to the following:
(a) Except for the tbg-Participation Agreements and the agreements
listed in Sublcause 8.3 tbg has no further agreements with
Biofrontera AG in relation to the silent partnerships and the
tbg-Shares.
(b) Each of the tbg-Participation Agreements was validly entered into
and has not been terminated by either party.
(c) tbg is the owner of each of the interests in the silent partnerships
pursuant to the respective Participation Agreement I, II or III and
has not disposed of any rights or claims which are sold and
transferred pursuant to Clause 4.
(d) tbg as silent partner has paid out to Biofrontera AG the capital
contributions of DM 2 mill., DM 3 mill. and EUR 2,945,800
respectively, these capital contributions have been transferred to
Biofrontera AG's assets and have not been paid back in any way.
(e) No further warranties and guarantees are granted. In particular, tbg
does not warrant Biofrontera AG's solvency and the value of the
interests in the silent partnerships.
III. JOINT PROVISIONS
7. Confirmation
The Purchaser herewith confirms that to the best of his knowledge the
funds which will be transferred in fulfilment of the Purchase Price and
the S-Purchase Price do not originate from one of the crimes listed in
section 261 of the German Criminal Code.
8. Consent Requirement/ Assignment of Contract
8.1 The parties acknowledge that the consent of Biofrontera AG pursuant to
Clause 8 (3) of Biofrontera AG's articles of association to the assignment
of the tbg-Shares has been given. A copy of the consent is attached as
Annex 4.
8.2 The parties acknowledge that the general meeting of Biofrontera AG has
consented to the transfer of the Participation Agreements. A copy of the
consent is attached as Annex 5.
8.3 The parties acknowledge further that all parties to the "Shareholders'
Agreement" dated 3 July 2003, the "Amendment to Shareholders' Agreement
dated 3 July 2003" dated July 2003, the "Investment Agreement" dated 3
July 2003 and the "Amendment to Investment Agreement dated 3 July" dated
19 December 2003 have waived their rights of first refusal,
tag-along-rights, blocking rights and further rights they might have in
connection with the sale and transfer of the tbg-Shares by the tbg to the
Purchaser. A copy of the Amendment to Shareholders' Agreement/Investment
Agreement and Loan Agreement is attached as Annex 6 to this Agreement.
8.4 The parties to this Agreement acknowledge further that tbg needs the
approval of the State Ministry of Economic Affairs and Employment for the
transfer of the interest in the silent partnership pursuant to the
Participation Agreement II. Thus, the parties agree that Clauses 4, Error!
Reference source not found. and 6 shall only become effective with respect
to the transfer of the interest in the silent partnership pursuant to the
Participation Agreement II with the receipt of the consent of the State
Ministry of Economic Affairs and Employment to the Purchaser.
9. Final Provision
9.1 tbg and Biofrontera AG agree that there are no further claims or rights of
tbg vis-a-vis Biofrontera AG in connection with the tbg-Shares or the
interests in the silent partnerships as sold and transferred pursuant to
Clause 4 if the sale and transfer of the tbg-Shares and the interests in
the silent partnerships pursuant to Clause 4 has been completed.
9.2 Each party shall bear its own costs and expenses in connection with this
Agreement, if any.
9.3 This Agreement is governed by and shall be construed in accordance with
the German law. To the extent legally permissible, jurisdiction for all
disputes arising out of, or in connection with this Agreement shall be
with the competent courts in Frankfurt am Main, Germany.
9.4 The parties irrevocably waive their right to seek dissolution or to claim
the nullity of this Agreement after it has been completed.
9.5 Amendments and additions to this Agreement are only effective if made in
writing, to the extent that notarisation is not required. The written form
requirement also applies to any waivers, including a waiver of the written
form requirement.
9.6 This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
9.7 Should individual terms of this Agreement be or become invalid or
unenforceable or should this Agreement contain gaps, the validity of the
remaining terms of the Agreement shall remain unaffected and in place of
the invalid, unenforceable or missing terms a valid term on which the
parties would have reasonably agreed, had they been aware at the signing
of this Agreement that the relevant term was invalid, unenforceable or
missing, shall be deemed to have been agreed upon. Should a term of this
Agreement be or become invalid because of the scope of performance for
which it provides then the agreed scope of performance shall be amended to
correspond with the extent legally permitted.
9.8 The German version of this Agreement is conclusive.
/s/ Xxxxxxx Xxxxxxxxxxx
------------------------ ---------------------------------------
Ort/Datum tbg Technologie-Beteiligungs-Gesellschaft mbH
/s/ Xxxxxxx Xxxxxxx
------------------------ ---------------------------------------
Ort/Datum DNAPrint genomics, Inc.
/s/ Xxxxxx Xxxxxxxx
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Ort/Datum Biofrontera AG
