Exhibit 4.1
LOAN AGREEMENT
entered into between
1. Biofrontera AG, Hemmelrather Xxx 000, 00000 Xxxxxxxxxx, Xxxxxxx
- hereinafter also referred to as the "COMPANY"-
2. DNAPrint genomics, Inc., 000 Xxxxxxxx Xxx. Xxxxxxxxx, XX 00000, XXX
- hereinafter also referred to as "LENDER"-
Hereinafter this loan agreement is also referred to as the AGREEMENT.
1. GRANT OF LOAN
1.1 The Lender herewith grants a loan in the total amount of EUR 140,000.00
(GRANTED LOAN) to the Company payable in one installment of EUR
140,000.00.
1.2 The Granted Loan shall be paid out on December 27, 2004 to the
Company's bank account 704 545301 with Deutsche Bank AG, Leverkusen,
bank code 375 700 64. The credit entry in the Company's account shall
be decisive. The payment shall be made by bank wire transfer, in
immediately available funds, free of all costs and charges.
2. REPAYMENT
Subject to clause 3 and unless this Agreement is terminated earlier the
Granted Loan is due for repayment on December 31, 2005 (the DUE DATE).
If this Agreement is terminated pursuant to Clause 5(a) to 4(d) the
Granted Loan is due and repayable two weeks after the termination has
become effective. If this Agreement is terminated pursuant to Clause
5(e) the Granted Loan is due immediately.
3. CONVERSION
3.1 Instead of repaying the Granted Loan and interest pursuant to Clause 4
in cash the Company is entitled to repay the Granted Loan and the
interest by issuing non-par value registered shares as voting
preference shares class B with a proportional amount of the Company's
share capital of EUR 1.00 each (PREFERRED B) to the Lender. The Lender
is entitled to convert its repayment and interest claims into Preferred
B as provided for in this Clause 3 (the Company's and DNAPrint's rights
described in this Clause are also referred to as the CONVERSION RIGHT).
3.2 The Company is entitled to exercise the Conversion Right at any time
prior to the Due Date, provided it did not rescind the DNAPrint
Investment Agreement of September 2004. DNAPrint is entitled to
exercise the Conversion Right if the authorized capital provided for in
sec. 11.1 of the DNAPrint Investment Agreement of September 2004 is
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registered with the commercial register or the Company's shareholders
agreed to provide the new Preferred B in any other way.
3.3 Each Preferred B shall grant the right to participate in profits from
1st January, 2005. Each Preferred B shall grant one vote.
3.4 The Company is entitled to exercise or fulfil the Conversion Right
either by issuing the Preferred B in consideration of cash or in
consideration of a contribution in kind each as described in Subclause
3.5.
3.5 The Company may request at its sole discretion - subject to the
subscription rights of the Company's shareholders - from the Lender
either
(a) To subscribe for Preferred B issued in consideration of
contributing the Lender's repayment and interest claims under
this Agreement in relation to the Granted Loan to the Company
(by assigning or waiving it); or
(b) To subscribe for Preferred B issued at the lowest issue price
pursuant to s. 9 of the German Stock Corporations Act (AKTG)
in consideration of a cash contribution and to contribute the
Lender's repayment and interest claims under this Agreement in
relation to the Granted Loan to the Company as additional
payments in the sense of s. 272 sub-sec. 2 no. 4 of the German
Commercial Code (HGB).
3.6 The Company shall inform the Lender about the exercise of the
Conversation Right without undue delay but not later than one week in
advance. If the Conversion Right is exercised by the Lender, the
Company shall undertake all steps necessary to effect the conversion
without undue delay. The Lender undertakes to make all declarations and
acts which are necessary or appropriate to effect the Conversation
Right without undue delay at the request of the Company after the
Company has provided the Lender with all documents required in
connection with the issuance of new Preferred B as provided for in
Subclause 3.5.
3.7 The number of Preferred B to be issued by the Company to the Lender
pursuant to this Clause shall be calculated on an assumed issue price
of EUR 9.27. For calculating the number of Preferred B to be issued in
relation to Subclause 3.5(a) that means the sum of the Granted Loan
plus interest has to be divided by 9.27 and in relation to Subclause
3.5(b) that means the sum of the Granted Loan plus interest has to
divided by 8.27.
4. INTEREST
4.1 The Granted Loan shall bear interest. The interest rate shall be twelve
(12) per cent per annum.
4.2 The interest is to be calculated pro rata temporis on the basis of a
year with 360 days with 12 months of 30 days each, compounded annually.
In the case of repayment of the Granted Loan pursuant to Clause 2, the
payment of accrued interest shall become due together with the
repayment of the Granted Loan. In the case of conversion interest shall
accrue until the Company has provided the Lender with all documents
required in connection with the issuance of new Preferred B pursuant to
Subclause 3.6.
5. TERMINATION FOR GOOD CAUSE
The Company and the Lender shall be entitled to terminate this
Agreement in writing with immediate effect for good cause without
notice. There shall be deemed good cause justifying termination by both
parties under the following circumstances, including but not limited
to:
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(a) the dissolution of the Company;
(b) the opening of insolvency proceedings with respect to the
assets of the Company or the refusal to open such proceedings
due to insufficiency of funds; the filing of an application
with a court of competent jurisdiction by the Company seeking
the opening of insolvency proceedings with respect to the
assets of the Company; the Company becoming unable or failing
generally to pay its debts as they become due;
(c) any breach by the Company or the Lender of material
obligations under this Agreement, including but not limited to
the repayment of the Granted Loan or the accrued interest
within the time limit;
(d) a change of control of the Company (save for the investment of
the Lender itself); and
(e) the exercise of the Conversion Right pursuant to Clause 3.
The Lender is additionally entitled to terminate this Agreement if the Company
rescinds the DNAPrint Investment Agreement of September 2004. In this case, the
Lender may claim immediate repayment of the Granted Loan and accrued but unpaid
interest or, at its sole discretion, exercise the Conversion Right pursuant to
Clause 3.
6. NOTICES
6.1 All notices, demands and other communications between the Company and
the Lender provided for or permitted hereunder shall be made in writing
and shall be by registered or certified first class mail, return
receipt requested, facsimile, courier service, overnight mail or
personal delivery, if
(a) to the Company: Xxxxxxxxxxx XX, Xxxxxxxxxxxx Xxx 000, 00000
Xxxxxxxxxx, Xxxxxxx;
(b) to DNAPrint: DNAPrint genomics, Inc., 000 Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000, XXX,
unless notified otherwise by the respective party.
7. FINAL PROVISIONS
7.1 Each party to this Agreement shall bear its own costs in relation to
this Agreement and its performance, including the exercise of the
Conversion Right.
7.2 No failure or delay on the part of any of the parties to this Agreement
in the exercise or implementation of any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power
or remedy. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available.
7.3 Amendments and additions to this Agreement and any waiver of and any
consent to any departure from any provision of this Agreement requires
the consent of all parties and must be made in writing to be effective,
to the extent that notarization is not required. This also applies to a
waiver of the written form requirement.
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7.4 This Agreement shall be governed exclusively by the laws of the Federal
Republic of Germany. The application of the provisions of the United
Nations Convention on the International Sale of Goods and German rules
on Conflict of Laws is hereby explicitly excluded. To the extent that
such an agreement is legally valid, the courts of Frankfurt shall have
exclusive jurisdiction over this Agreement.
7.5 Should individual terms of this Agreement be or become invalid or
unenforceable or should this Agreement contain unintentional gaps, this
shall not affect the validity of the remaining terms of this Agreement.
In place of the invalid, unenforceable or missing term, such valid term
which the parties would reasonably have agreed, had they been aware at
the conclusion of this Agreement that the relevant term was invalid,
unenforceable or missing, shall be deemed to have been agreed. 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.
7.6 The parties to this Agreement shall execute such documents and perform
such further acts (including, without limitation, obtaining any
consents, exemptions, authorizations or other actions by, or giving
notices to, or making any filings with, any governmental authority or
any other person) as may be reasonably required or desirable to carry
out or to perform the provisions of this Agreement.
7.7 This Agreement is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement
of the agreement and understanding of the parties hereto in respect of
the subject-matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject-matter.
Leverkusen, December 29, 2004 /s/
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Biofrontera AG
Sarasota, December29, 2004 /s/
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DNAPrint genomics Inc.
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