Renzenbrink & Partner achieves success for Biofrontera AG

Biofrontera AG (“Biofrontera”) has achieved an important success with Renzenbrink & Partner before the Higher Regional Court of Cologne in an approval procedure under stock corporation law (Section 246a AktG). In a decision dated September 22, 2022, the Cologne Higher Regional Court ruled that a capital increase resolved on April 7, 2022, can be entered in the commercial register even though a shareholder of Biofrontera has filed an action for rescission and nullity against the underlying resolution of the Annual General Meeting before the Cologne Regional Court.

Biofrontera is a global biopharmaceutical company based in Leverkusen, Germany. It specializes in the development of innovative medicines and products to heal, protect and care for the skin. Biofrontera was founded in 1997 and employs around 100 people worldwide. Biofrontera shares are listed on the Frankfurt Stock Exchange and on the US over-the-counter market.

On April 7, 2022, the Annual General Meeting of Biofrontera resolved to increase the company’s share capital by issuing up to 7,089,673 new no-par value registered shares against cash contributions and by granting indirect subscription rights. A shareholder of Biofrontera has filed an action for rescission and nullity against this resolution of the Annual General Meeting with the Cologne Regional Court. The complaint alleges that the agenda item was incorrectly announced and that the shareholders were not adequately informed in advance of the Annual General Meeting. The Supervisory Board and Management Board had adopted the proposed resolutions under the impression of special interests. Another shareholder of Biofrontera had wanted to gain unlawful special advantages.

In order to ensure that the resolution of the Annual General Meeting is entered in the commercial register despite the action for rescission and nullity, Biofrontera has initiated release proceedings in accordance with Section 246a AktG before the Cologne Higher Regional Court. The Cologne Higher Regional Court granted Biofrontera’s application for release in a ruling dated September 22, 2022, meaning that the capital measure can now be entered in the commercial register and implemented despite the action for rescission and nullity. The Higher Regional Court found that Biofrontera’s interest in the implementation of the capital measure outweighed the interest of the plaintiff shareholder in the suspension of the capital measure. This will enable Biofrontera to drive forward its strategic corporate development and further market penetration as quickly as possible. The court’s release order is incontestable.

The Renzenbrink & Partner team consisted of Dr. Lars Kirschner (Litigation/Arbitration, Partner), Bastian Harms, LL.M. (Washington), Antonia Neumerkel and Lara Boras (both Litigation/Arbitration, Associates).

The 18th Senate of the Higher Regional Court of Cologne was composed of the judges at the Higher Regional Court Dr. Schmidt (chair), Dr. Dilger and Dr. Kurth (associate judges).