Exhibit 10.1
REPAYMENT AGREEMENT*
[*Translation only. The only legally valid version of this
document is the German one.]
between
Epicept GmbH
Xxxxxxxxxx(xxxx)x 0, 00000 Xxxxxx
hereinafter "Technologieunternehmen (TU)"
and
tbg Technologie-Beteiligungs-Gesellschaft mbH
Xxxxxx-Xxxxxxx-Xxxxx 0, 00000 Xxxx
hereinafter "TBG"
PREAMBLE
Within the framework of the "Investment Capital for Small Technology Companies
(BTU)" programme implemented with the German Federal Ministry for Business and
Technology (BMWI) and the German Reconstruction Loan Corporation (KfW), formerly
the German Compensation Bank, tbg concluded a typical silent partnership
agreement with TU on 26.8.1997 (hereinafter "BTU CONTRACT" relating to a sum of
(euro) 1,533,875.64. The investment was fully paid in by tbg. tbg has received
no repayments towards this sum.
At the end of the term of the silent partnership on 31.12.2007, the following
claims of tbg based on the BTU contract are due:
1. Nominal amount of undisclosed investment
as per ss. 2, Section 1 of the BTU contract EUR 1,533,875.64
2. Outstanding fixed payment (gross)
as per ss. 9, Section 1 of the BTU contract EUR 23,008.13
3. Final payment of 9.78%
contrary to ss. 9, Section 4 of the BTU contract EUR 150,000.00
4. Outstanding profit-based payment
as per ss. 9, Section 2 of the BTU contract EUR 0.00
TOTAL: EUR 1,706,883.77
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As TU is unable to repay the entire sum at the end of the contract on 31.12.2007
/ the liquidity position does not permit an immediate repayment, the parties
have agreed that the above-mentioned total amount shall be repaid as follows:
SS. 1 REPAYMENT OF THE ENTIRE SUM, INTEREST
(1) TU will repay to tbg the final payment due of (EURO) 150,000.00 and the
accrued fixed remuneration of (EURO) 23,008.13 on 31.12.2007 and the
nominal amount of (EURO) 1,533,875.64 by the end of 30.6.2008 at the
latEST. With the payment of EUR 150,000.00 KfW waives the final payment
provided for in ss. 9 Section 4 of the BTU contract.
(2) Interest will from the termination of the BTU contract onward be payable
at a total rate of 7.38% per annum on the total amount which remains
payable. This interest will be due retrospectively on 30 June and 31
December of each year or upon the final payment date, if earlier. It
includes a processing charge and a risk premium.
(3) TU is entitled to pay the nominal amount earlier instead.
(4) TU will ensure that the investment income tax payable by law and the
statutory solidarity surcharge on the final payment and the fixed
payments for the original undisclosed investment are paid. It will make
these payments when due directly to the tax authority responsible for TU
and issue a tax certificate to tbg in accordance with ss. 45a German
Income Tax Act to tbg on the forms provided by tbg.
SS. 2 INFORMATION AND MONITORING RIGHTS
(1) TU will continue to supply tbg with monthly reports in their current form
through vcontarget (information on profit trends, order book situation,
outstanding finance, employees, special factors) by the end of the
following month.
(2) Every six months, on 31 March and 30 September of each year, TU must
report to tbg on its economic position in the current form through
vcontarget (bulletin report).
(3) TU hereby undertakes to submit its annual financial statements to tbg
within a maximum of six months following the balance sheet date. In
exceptional cases, tbg may waive its entitlement in writing to
certification by an auditor / certified auditor pursuant to ss. 322
German Commercial Code.
tbg is also entitled to require other document/records etc. to be
submitted and to inspect TU's business accounts. tbg is also entitled to
employ third parties for the exercise of its monitoring rights.
(4) TU grants the BMWi and one of its representatives the same submission,
information and inspection/auditing rights as tbg. TU hereby consents to
tbg sending the data obtained about its business and the innovation
project promoted on to the BMWi or to an Institute employed by the latter
for the scientific evaluation of the programme on which this contract is
based. It also confirms that it is willing to supply the information
necessary for the scientific evaluation of the programme to BMWi and an
institute employed by it directly as well. The BMWi is entitled to pass
on the data supplied to it to the EU Commission for the exercise of
regulatory and supervisory authorities. In the preparation/formulation
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and if relevant in the publication of data about the programme, care will
be taken to ensure that no damage is caused to TU.
(5) The German Federal Financial Court is entitled to exercise auditing
rights pursuant to ss. 91 BHO vis-a-vis TU. For auditing purposes, TU
will supply the German Federal Audit Office and tbg with all
document/records etc. which the German Federal Audit Office considers
necessary, and supply the appropriate information.
SS. 3 PAYMENTS
Payments to tbg must be made into the latter's account No. 12 00000000 at KfW
Frankfurt (Sort Code 500 204 00) stating as intended use "Repayment of
investment Xxxxxxx XxxX, XX 000000, xxx-Xx. 000000"0.
SS. 4 TERM, TERMINATION
(1) This repayment agreement will terminate without any notice having to be
given when all of the payment obligations referred to in ss.1 (1) have
been completely satisfied, but at the latest on 30.6.2008. If the
contract terminates without the total sum referred to in ss. 1 (1) having
been paid to tbg, the total sum will be due for payment immediately.
(2) The contracting parties are entitled to terminate this contract by
written declaration without notice for good cause.
tbg will in particular be entitled to terminate for good cause if
a) bills of exchange accepted by TU are protested, TU stops payments,
insolvency proceedings with respect to TU's assets are commenced
or inability to pay is established in any other way;
b) TU is wound up or liquidation proceedings are carried out;
c) TU fails to comply with its reporting obligations in accordance
with contract.
SS. 5 GENERAL
(1) Amendments and additions to this contract, including this requirement for
the written form, must be in writing. Verbal agreements subsidiary to
this contract have no legal force. The German version alone of this
repayment agreement has legal force. Any English version is only a
translation of the decisive German text.
(2) Should any term of this contract be legally invalid, the remaining terms
will not be affected by this. TU and tbg must replace invalid contract
terms with provisions which are legally valid and which come as close as
possible to achieving the aim and purpose of the legally invalid ones.
The same will apply in the event of terms having been omitted.
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(3) For all legal disputes arising out of this contract or its
implementation, the legal venue is Bonn.
(4) All of the services provided by tbg under the terms of this contract are
VAT-exempt financial services. KfW's VAT identification number is DE 114
104 280 (relationship of control for VAT purposes with KfW).
Bonn, dated Munich, dated
tbg Technologie-Beteiligungs-Gesellschaft mbH Epicept GmbH
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