Biofrontera Inc. 10-Q

Item 1. Financial Statements BIOFRONTERA INC. CONDENSED CONSOLIDATED BALANCE SHEETS ( In thousands, except par value and share amounts ) September 30, 2023 December 31, 2022 (Unaudited) ASSETS Current assets: Cash and cash equivalents $ 3,422 $ 17,208 Investment, related party 3,341 10,548 Accounts receivable, net 3,793 3,748 Other receivables, related party 2,713 3,658 Inventories, net 16,068 7,168 Prepaid expenses and other current assets 274 810 Total current assets 29,611 43,140 Other receivables long term, related party - 2,813 Property and equipment, net 154 204 Operating lease right-of-use assets 1,129 1,375 Intangible asset, net 2,718 3,032 Other assets 492 320 Total assets $ 34,104 $ 50,884 LIABILITIES AND STOCKHOLDERS’ EQUITY Current liabilities: Accounts payable 1,634 1,278 Accounts payable, related parties 6,988 1,312 Accounts payable 6,988 1,312 Acquisition contract liabilities, net 7,211 6,942 Operating lease liabilities 555 498 Accrued expenses and other current liabilities 11,039 10,864 Line of credit 1,697 - Total current liabilities 29,124 20,894 Long-term liabilities: Acquisition contract liabilities, net 2,500 2,400 Warrant liabilities 842 2,843 Operating lease liabilities, non-current 562 848 Other liabilities 38 21 Total liabilities 33,066 27,006 Commitments and contingencies (Note 18) - - Stockholders’ equity: Preferred Stock, $ 0.001 par value, 20,000,000 shares authorized, zero shares issued and outstanding as of September 30, 2023 and December 31, 2022 - - Common Stock, $ 0.001 par value, 15,000,000 shares authorized; 1,367,628 and 1,334,950 shares issued and outstanding as of September 30, 2023 and December 31, 2022 1 1 Additional paid-in capital 104,213 103,396 Accumulated deficit ( 103,176 ) ( 79,519 ) Total stockholders’ equity 1,038 23,878 Total liabilities and stockholders’ equity $ 34,104 $ 50,884 The accompanying notes are an integral part of these condensed consolidated financial statements. 3 BIOFRONTERA INC. CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS ( In thousands, except per share amounts and number of shares ) (Unaudited) 2023 2022 2023 2022 Three months ended September 30, Nine months ended September 30, 2023 2022 2023 2022 Product revenues, net $ 8,879 $ 4,290 $ 23,423 $ 18,467 Revenues, related party 17 32 52 63 Total revenues, net 8,896 4,322 23,475 18,530 Operating expenses Cost of revenues, related party 4,495 2,127 11,814 9,504 Cost of revenues, other 95 98 262 425 Selling, general and administrative 8,619 7,765 29,874 25,050 Selling, general and administrative, related party 74 171 193 612 Research and development 33 - 44 - Change in fair value of contingent consideration 200 ( 2,200 ) 100 ( 4,100 ) Total operating expenses 13,516 7,961 42,287 31,491 Loss from operations ( 4,620 ) ( 3,639 ) ( 18,812 ) ( 12,961 ) Other income (expense) Change in fair value of warrant liabilities 598 3,814 2,001 17,896 Warrant inducement expense - ( 2,629 ) - ( 2,629 ) Realized/Unrealized losses in investment, related party ( 2,212 ) - ( 6,635 ) - Interest expense, net ( 142 ) ( 89 ) ( 256 ) ( 160 ) Other income, net 35 ( 22 ) 65 30 Total other income (expense) ( 1,721 ) 1,074 ( 4,825 ) 15,137 Income (loss) before income taxes ( 6,341 ) ( 2,565 ) ( 23,637 ) 2,176 Income tax expense 1 1 20 31 Net income (loss) $ ( 6,342 ) $ ( 2,566 ) $ ( 23,657 ) $ 2,145 Income (loss) per common share: Basic $ ( 4.64 ) $ ( 2.26 ) $ ( 17.57 ) $ 2.19 Diluted $ ( 4.64 ) $ ( 2.26 ) $ ( 17.57 ) $ 2.19 Weighted-average common shares outstanding: Basic 1,366,842 1,136,291 1,346,264 978,018 Diluted 1,366,842 1,136,291 1,346,264 980,251 The accompanying notes are an integral part of these condensed consolidated financial statements. 4 BIOFRONTERA INC. CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY (In thousands, except number of shares) (Unaudited) Three and Nine Months Ended September 30, 2023 Shares Amount In Capital Deficit Total Common Stock Additional Paid- Accumulated Shares Amount In Capital Deficit Total Balance, June 30, 2023 1,343,538 $ 1 $ 104,006 $ ( 96,834 ) $ 7,173 Issuance of shares in reverse stock split (for fractional shares) 24,090 0 - - - Stock based compensation - - 207 - 207 Net loss - - - ( 6,342 ) ( 6,342 ) Balance, September 30, 2023 1,367,628 $ 1 $ 104,213 $ ( 103,176 ) $ 1,038 Balance, December 31, 2022 1,334,950 $ 1 $ 103,396 $ ( 79,519 ) $ 23,878 Issuance of shares for vested restricted stock units 8,588 0 - - - Issuance of shares in reverse stock split (for fractional shares) 24,090 0 - - - Stock based compensation - - 817 - 817 Net loss - - - ( 23,657 ) ( 23,657 ) Balance, September 30, 2023 1,367,628 $ 1 $ 104,213 $ ( 103,176 ) $ 1,038 Three and Nine Months Ended September 30, 2022 Common Stock Additional Paid- Accumulated Shares Amount In Capital Deficit Total Balance, June 30, 2022 950,573 $ 1 $ 91,400 $ ( 74,168 ) $ 17,233 Exercise of pre-funded warrants 78,450 0 2,841 2,841 Exercise of PIPE warrants 142,857 0 4,686 - 4,686 Issuance of shares for vested restricted stock units 5,668 0 - - - Stock based compensation - - 401 - 401 Net loss - - - ( 2,566 ) ( 2,566 ) Balance, September 30, 2022 1,177,548 $ 1 $ 99,328 $ ( 76,734 ) $ 22,595 Balance, December 31, 2021 855,237 $ 1 $ 90,216 $ ( 78,879 ) $ 11,338 Issuance of common stock and warrants under private placement, net of issuance costs 92,500 0 116 - 116 Exercise of pre-funded warrants 78,450 0 2,841 2,841 Exercise of PIPE warrants 142,857 0 4,686 - 4,686 Issuance of shares for vested restricted stock units 8,504 0 - - - Stock based compensation - - 1,469 - 1,469 Net income - - - 2,145 2,145 Net income (loss) - - - 2,145 2,145 Balance, September 30, 2022 1,177,548 $ 1 $ 99,328 $ ( 76,734 ) $ 22,595 The accompanying notes are an integral part of these condensed consolidated financial statements. 5 BIOFRONTERA INC. CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (In Thousands) (Unaudited) 2023 2022 Nine Months Ended September 30, 2023 2022 Cash flows from operating activities: Net income (loss) $ ( 23,657 ) $ 2,145 Adjustments to reconcile net income (loss) to cash flows used in operations: Depreciation 65 80 Amortization of right-of-use assets 390 - Amortization of acquired intangible assets 314 314 Realized/Unrealized losses in investment, related party 6,635 - Change in fair value of contingent consideration 100 ( 4,100 ) Change in fair value of warrant liabilities ( 2,001 ) ( 17,896 ) Warrant inducement expense - 2,629 Stock-based compensation 817 1,469 Provision for inventory obsolescence - 100 Provision for doubtful accounts 158 111 Non-cash interest expense 296 268 Changes in operating assets and liabilities: Accounts receivable ( 204 ) 2,111 Other receivables, related party 3,652 5,145 Prepaid expenses and other assets 347 4,121 Inventories ( 8,900 ) ( 7,728 ) Accounts payable and related party payables 6,137 3,519 Operating lease liabilities ( 375 ) - Accrued expenses and other liabilities 197 ( 216 ) Cash flows used in operating activities ( 16,029 ) ( 7,928 ) Cash flows from investing activities Disbursement for loan receivable - ( 3,033 ) Sales of equity investment, related party 560 - Purchases of property and equipment ( 14 ) ( 37 ) Cash flows provided by (used) in investing activities 546 ( 3,070 ) Cash flows from financing activities Proceeds from line of credit 13,546 - Proceeds from issuance of common stock and warrants in private placement, net of issuance costs - 9,391 Proceeds from exercise of warrants - 4,630 Repayment of line of credit ( 11,849 ) - Cash flows provided by financing activities 1,697 14,021 Net increase (decrease) in cash and cash equivalents ( 13,786 ) 3,023 Cash, cash equivalents and restricted cash, at the beginning of the period 17,408 24,742 Cash, cash equivalents and restricted cash, at the end of the period $ 3,622 $ 27,765 Supplemental disclosure of cash flow information Interest paid $ 31 $ 10 Interest paid, related party $ 22 - Income taxes paid, net $ 21 $ 30 Supplemental non-cash investing and financing activities Conversion of warrant liability to equity $ - $ 6,840 Addition of right-of-use assets in exchange for operating lease liabilities $ 147 $ - The accompanying notes are an integral part of these condensed consolidated financial statements. 6 Biofrontera Inc. Notes to Condensed Consolidated Financial Statements (Unaudited) 1. Business Overview Biofrontera Inc. (the “Company” or “Biofrontera”) is a U.S.-based biopharmaceutical company commercializing a portfolio of pharmaceutical products for the treatment of dermatological conditions with a focus on photodynamic therapy (“PDT”) and topical antibiotics. The Company’s licensed products are used for the treatment of actinic keratoses, which are pre-cancerous skin lesions as well as impetigo, a bacterial skin infection. In May 2023, the Company began research and development (“R&D”) activities to support PDT growth and will continue to opportunistically invest in these activities going forward. Our research and development program currently aims to improve the capabilities of our BF-RhodoLED ® lamps to better fulfill the needs of dermatologists and improve the effectiveness of our commercial team by letting sales representatives carry approved devices with them allowing for easier product demonstrations and evaluations. Biofrontera includes its wholly owned subsidiary Bio-FRI GmbH (“Bio-FRI”), a limited liability company organized under the laws of Germany. Our subsidiary, Bio-FRI was formed on February 9, 2022, as a German presence to facilitate our relationship with the Ameluz Licensor. Our principal licensed product is Ameluz ® , which is a prescription drug approved for use in combination with the RhodoLED ® lamp series, for PDT. In the United States, the PDT treatment is used for the lesion-directed and field-directed treatment of actinic keratoses of mild-to-moderate severity on the face and scalp. We are currently selling Ameluz ® for this indication in the U.S. under an exclusive license and supply agreement (“Ameluz LSA”) with Biofrontera Pharma (“Pharma”) GmbH and Biofrontera Bioscience GmbH (“Bioscience” and together, the “Ameluz Licensor”). Our second prescription drug licensed product is Xepi® (ozenoxacin cream, 1%), a topical non-fluorinated quinolone that inhibits bacterial growth. It is approved for use in the United States in adults and children 2 months and older. We are currently selling Xepi® for this indication in the United States under an exclusive license and supply agreement, as amended (“Xepi LSA”) with Ferrer Internacional S.A. (“Ferrer”) that was assumed by Biofrontera on March 25, 2019 through our acquisition of Cutanea Life Sciences, Inc.(“Cutanea”). There has been limited revenue during the current reporting periods and recent developments with the third-party manufacturer that was providing our supply of Xepi® have resulted in further delays of our commercialization of the product. However, Ferrer is qualifying a new Contract manufacturer, Cambrex, which is expected to begin production in 2024. Reverse Stock Split On June 28, 2023, the Company, filed a Certificate of Amendment to its Amended and Restated Certificate of Incorporation (the “Amendment”) with the Secretary of State of the State of Delaware to (i) effect a 1-for-20 reverse stock split (the “Reverse Stock Split”) of the Company’s common stock, par value $ 0.001 per share (the “Common Stock”), and (ii) effect a related proportional reduction in the number of the Company’s authorized shares of Common Stock from 300,000,000 to 15,000,000 (the “Authorized Share Reduction”). Pursuant to the Amendment, the Reverse Stock Split and Authorized Share Reduction was effective at 11:59 p.m. on July 3, 2023 (the “Split Effective Time”), and the Common Stock began trading on the Nasdaq Capital Market on a post-split basis on July 5, 2023. The par value and other terms of the Common Stock were not affected. Following the Split Effective Time, every 20 shares of Biofrontera Common Stock issued and outstanding were automatically combined and reclassified into one share of Common Stock. Outstanding equity-based awards, warrants and other equity rights were proportionately adjusted pursuant to their terms and the number of shares authorized and reserved for issuance upon vesting of restricted stock units or exercise of stock options and warrants were reduced proportionately. No fractional shares were issued as a result of the Reverse Stock Split. Stockholders who would otherwise hold a fractional share as a result of the Reverse Stock Split received an additional share of Common Stock. Under the terms of the applicable warrant agreement, the number of shares of Common Stock issuable on exercise of each warrant will be proportionately decreased. Specifically, following effectiveness of the Reverse Stock Split, every 20 shares of Common Stock that may be purchased pursuant to the exercise of public warrants now represents one share of Common Stock that may be purchased pursuant to such warrants. Accordingly, for the Company’s warrants trading under the symbol “BFRIW”, every 20 warrants will be exercisable for one share of Common Stock at an exercise price of $ 100.00 per share of Common Stock. The Reverse Stock Split affected all stockholders uniformly and did not alter any stockholder’s percentage interest in the Company’s equity (other than as a result of the rounding up of fractional shares). All information included in these consolidated financial statements has been adjusted, on a retrospective basis, to reflect the Reverse Stock Split as if it had been effective from the beginning of the earliest period presented, unless otherwise stated. All outstanding securities entitling their holders to purchase shares of Common Stock or acquire shares of Common Stock, including stock options, restricted stock units, and warrants, were adjusted as a result of the Reverse Stock Split. Liquidity and Going Concern The Company’s primary sources of liquidity are its existing cash balances, cash collected from the sales of its products, proceeds from the sale of our investment, related party, and cash flows from a revolving line of credit. As of September 30, 2023, we had cash and cash equivalents of $ 3.4 million and investment, related party of $ 3.3 million, compared to $ 17.2 million and $ 10.5 million as of December 31, 2022, respectively. Since we commenced operations in 2015, we have generated significant losses. For the nine months ended September 30, 2023 and 2022, we incurred loss from operations of $ 18.8 million and $ 13.0 million, respectively. We incurred net cash outflows from operations of $ 16.0 million and $ 7.9 million, for the same periods, respectively. We had an accumulated deficit as of September 30, 2023 of $ 103.2 million. Additionally, we expect to continue to incur operating losses due to significant discretionary sales and marketing, medical affairs, and dermatology community outreach efforts as we seek to expand the commercialization of our licensed products in the United States. In connection with our assessment of going concern considerations under applicable accounting standards, the Company’s management has determined that substantial doubt exists about our ability to continue as a going concern for at least one year from the date the unaudited condensed consolidated financial statements were issued. The future viability of the Company is dependent on its ability to continue to execute its growth plan and raise additional capital or find alternative methods of financing to fund its operations during the first half of 2024, and until cash flow from operations is sufficient, if ever. We have implemented plans to improve our working capital position, particularly around inventory levels, and do not expect to need a delivery until sometime in Q3 2024, depending on actual sales until then. Management believes that the anticipated implementation of such plans, together with the recent net capital raise of $ 4.1 million (See Note 21, Subsequent Events ) will provide the opportunity for the Company to continue as a going concern. However, no assurance can be given that the Company will be successful in these efforts. The accompanying financial statements have been prepared on a going concern basis, which contemplates the realization of assets and satisfaction of liabilities in the ordinary course of business. The financial statements do not include any adjustments relating to the recoverability and classification of recorded asset amounts or the amounts and classification of liabilities that might result from the outcome of the uncertainties described above. There could be a material adverse effect on the Company and its financial statements if management’s plans are not achieved on a timely basis. 7 2. Summary of Significant Accounting Policies Basis for Preparation of the Financial Statements The accompanying unaudited interim condensed consolidated financial statements of the Company have been prepared pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”) for interim financial reporting. Certain information and footnote disclosures normally included in the annual financial statements prepared in accordance with U.S. generally accepted accounting principles (“U.S. GAAP”) have been condensed or omitted pursuant to such rules and regulations. In the Company’s opinion, the unaudited condensed consolidated financial statements include all material adjustments, all of which are of a normal and recurring nature, necessary to present fairly the Company’s financial position as of September 30, 2023, the Company’s operating results for the three and nine months ended September 30, 2023 and 2022, and the Company’s cash flows for the nine months ended September 30, 2023 and 2022. The accompanying financial information as of December 31, 2022 is derived from audited financial statements. Interim results are not necessarily indicative of results for a full year. The information included in this Quarterly Report on Form 10-Q should be read in conjunction with the Company’s reaudited consolidated financial statements for the fiscal years ended December 31, 2022 and 2021 (“reaudited Consolidated Financial Statements”), and the revised Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal years ended December 31, 2022 and December 31, 2021 (“revised MD&A”), filed in a Current Report on From 8-K with the SEC on October 3, 2023. All amounts shown in these financial statements and tables are in thousands and amounts in the notes are in millions, except percentages and per share and share amounts. With the exception of the accounting policies below, there have been no new or material changes to the significant accounting policies discussed in the Company’s reaudited Consolidated Financial Statements.: Reverse Stock Split All information included in these consolidated financial statements has been adjusted, on a retrospective basis, to reflect the Reverse Stock Split as if it had been effective from the beginning of the earliest period presented, unless otherwise stated. All outstanding securities entitling their holders to purchase shares of Common Stock or acquire shares of Common Stock, including stock options, restricted stock units, and warrants, were adjusted as a result of the Reverse Stock Split, as required by the terms of those securities. Research and Development Costs Research and development costs are expensed as incurred. Research and development costs include external costs of outside vendors engaged to conduct research and development activities, and other operational costs related to the Company’s research and development activities. Use of Estimates The preparation of the financial statements in accordance with U.S. GAAP requires the use of estimates and assumptions by management that affect the reported amounts of assets and liabilities, as well as disclosure of contingent assets and liabilities, as reported on the balance sheet date, and the reported amounts of revenues and expenses arising during the reporting period. The main areas in which assumptions, estimates and the exercising of judgment are appropriate relate to, valuation allowances for receivables and inventory, valuation of contingent consideration and warrant liabilities, realization of intangible and other long-lived assets, product sales allowances and reserves, share-based payments and income taxes including deferred tax assets and liabilities. Estimates are based on historical experience and other assumptions that are considered appropriate in the circumstances. They are continuously reviewed but may vary from the actual values. Recently Adopted Accounting Pronouncements In September 2016, the FASB issued ASU 2016-13, Financial Instruments - Credit Losses (Topic 326): Measurement of Credit Losses on Financial Instruments , which requires entities to record expected credit losses for certain financial instruments, including trade receivables, as an allowance that reflects the entity’s current estimate of credit losses expected to be incurred. The new standard was effective for us on January 1, 2023, and did not have a material effect on our consolidated financial statements. 3. Acquisition Contract Liabilities On March 25, 2019, we entered into an agreement (as amended, the “Share Purchase Agreement”) with Maruho Co, Ltd. (“Maruho”) to acquire 100 % of the shares of Cutanea Life Sciences, Inc. (“Cutanea”). As of the date of the acquisition, Maruho owned approximately 29.9 % of Biofrontera AG through its fully owned subsidiary Maruho Deutschland GmbH. Biofrontera AG is our former parent, and currently a significant shareholder. 8 Pursuant to the Share Purchase Agreement, Maruho provided $ 7.3 million in start-up cost financing for Cutanea’s redesigned business activities (“start-up costs”). These start-up costs are to be paid back to Maruho by the end of 2023 in accordance with contractual obligations related to an earn-out arrangement. In addition, as part of the earn-out arrangement with Maruho, the product profit amount from the sale of Cutanea products as defined in the Share Purchase Agreement will be shared equally between Maruho and Biofrontera until 2030 (“contingent consideration”). The contingent consideration was recorded at acquisition-date fair value using a Monte Carlo simulation with an assumed discount rate of approximately 6.0 % over the applicable term. The contingent consideration is recorded within acquisition contract liabilities, net. The amount of contingent consideration that could be payable is not subject to a cap under the agreement. The Company re-measures contingent consideration and re-assesses the underlying assumptions and estimates at each reporting period utilizing a scenario-based method. The contingent consideration liability was valued at $ 2.5 million with payments coming due May of 2028 through May 2031. Acquisition contract liabilities, net consist of the following: Schedule of Acquisition Contract Liabilities (in thousands)  September 30, 2023 December 31, 2022 Short-term acquisition contract liabilities: Contingent consideration $ 2,500 $ 2,400 Start-up cost financing 7,300 7,300 Contract asset ( 89 ) ( 358 ) Acquisition contract liabilities, net $ 7,211 $ 6,942 Long-term acquisition contract liabilities: Contingent consideration $ 2,500 $ 2,400 Total acquisition contract liabilities: Contingent consideration $ 2,500 $ 2,400 Start-up cost financing 7,300 7,300 Contract asset ( 89 ) ( 358 ) Total acquisition contract liabilities, net $ 9,711 $ 9,342 4. Fair Value Measurements The following table presents information about the Company’s assets that are measured at fair value on a recurring basis at September 30, 2023 and December 31, 2022 and indicates the fair value hierarchy of the valuation inputs the Company utilized to determine such fair value: Schedule of Fair Value Hierarchy Valuation Inputs (in thousands) Level September 30, 2023 December 31, 2022 Assets: Investment, related party 1 $ 3,341 $ 10,548 Liabilities: Contingent Consideration 3 $ 2,500 $ 2,400 Warrant liability – 2022 Purchase Warrants 3 $ 366 $ 1,129 Warrant liability - 2022 Inducement Warrants 3 $ 476 $ 1,714 Warrant liability 3 $ 476 $ 1,714 9 Investment, related party A s of September 30, 2023 and December 31, 2022, the Company has an investment in 5,745,678 and 6,446,946 , respectively of common shares of Biofrontera AG, a company traded on the Frankfurt Stock Exchange and a significant shareholder of Biofrontera. The fair value of this investment was determined with Level 1 inputs through references to quoted market prices. See Note 6. Investment Related Party and Note 13. Related Party Transactions. Contingent Consideration Contingent consideration, which relates to the estimated profits from the sale of Cutanea products to be shared equally with Maruho, is reflected at fair value within acquisition contract liabilities, net on the consolidated balance sheets. The fair value is based on significant inputs not observable in the market, which represent a Level 3 measurement within the fair value hierarchy. The valuation of the contingent consideration utilizes a scenario-based method under which a set of payoffs are calculated using the term of the earnout, projections, and an appropriate metric risk premium. These payoffs are then discounted back from the payment date to the valuation date using a payment discount rate. The scenario-based method incorporates the following key assumptions: (i) the forecasted product profit amounts, (ii) the remaining contractual term, (iii) a metric risk premium, and (iv) a payment discount rate. The Company re-measures contingent consideration and re-assesses the underlying assumptions and estimates at each reporting period. The following table provides a roll forward of the fair value of the contingent consideration: Schedule of Fair Value of Contingent Consideration (in thousands) Balance at December 31, 2022 $ 2,400 Change in fair value of contingent consideration 100 Balance at September 30, 2023 $ 2,500 Balance at December 31, 2021 $ 6,200 Change in fair value of contingent consideration ( 4,100 ) Balance at September 30, 2022 $ 2,100 Warrant Liabilities The warrant liabilities are comprised of (i) currently outstanding warrants to purchase 170,950 shares of Common Stock originally issued in a private placement on May 16, 2022, expiring five and one-half years after the issue date and with an exercise price of $ 55.40 per share (the “Purchase Warrants”), and (ii) a warrant to purchase 214,286 shares of Common Stock issued on July 26, 2022, expiring on December 1, 2026 with an exercise price of $ 33.20 per share (the “Inducement Warrants”) and were accounted for as liabilities in accordance with ASC 815-40 and are presented within warrant liabilities in the accompanying consolidated balance sheets. The warrant liabilities are measured at fair value at inception and on a recurring basis, with changes in fair value presented within the consolidated statements of operations. The Company utilizes a Black-Scholes option pricing model to estimate the fair value of the Purchase Warrants and Inducement Warrants which is considered a Level 3 fair value measurement. Certain inputs utilized in our Black-Scholes pricing model may fluctuate in future periods based upon factors which are outside of the Company’s control. A significant change in one or more of these inputs used in the calculation of fair value may cause a significant change to the fair value of our warrant liabilities which could also result in material non-cash gain or loss being reported in our consolidated statements of operations. The fair value for the Level 3 warrants at September 30, 2023 was estimated using a Black-Scholes pricing model based on the following assumptions: Schedule of Fair Value Warrant by Using Black-Scholes Pricing Model Assumptions Purchase Inducement Stock price $ 8.77 $ 8.77 Expiration term (in years) 4.13 3.17 Volatility 80.0 % 80 .0 % Risk-free Rate 4.63 % 4.73 % Dividend yield 0.0 % 0.0 % The fair value for the Level 3 warrants at December 31, 2022 was estimated using a Black-Scholes pricing model based on the following assumptions: Purchase Inducement Stock price $ 18.40 $ 18.40 Expiration term (in years) 4.88 3.92 Volatility 70.0 % 75 . % Risk-free Rate 3.96 % 4.07 % Dividend yield 0.0 % 0.0 % The following table presents the changes in the Level 3 warrant liabilities measured at fair value (in thousands): Schedule of Changes in Level 3 Warrant Liabilities 2023 2022 Nine Months Ended September 30, 2023 2022 Fair value at beginning of period $ 2,843 $ 12,854 Issuance of new warrants - 13,217 Exercise of warrants - ( 6,840 ) Change in fair value of warrant liabilities ( 2,001 ) ( 15,267 ) Fair value at end of period $ 842 $ 3,964 10 5. Revenue We generate revenue primarily through the sales of our licensed products Ameluz®, BF-RhodoLED® lamps and Xepi®. Revenue from the sales of our BF-RhodoLED® lamp and Xepi® are relatively insignificant compared with the revenues generated through our sales of Ameluz®. Related party revenue relates to an agreement with Bioscience for BF-RhodoLED® leasing and installation service. Refer to Note 13, Related Party Transactions . An analysis of the changes in product revenue allowances and reserves is summarized as follows: Schedule of Revenue Allowance and Accrual Activties (in thousands): Returns Co-pay assistance program Prompt pay discounts Government and payor rebates Total Balance at December 31, 2021 $ 43 $ 101 $ 48 $ 54 $ 246 Provision related to current period sales 8 503 16 164 691 Credit or payments made during the period ( 5 ) ( 400 ) ( 23 ) ( 149 ) ( 577 ) Balance at September 30, 2022 $ 46 $ 204 $ 41 $ 69 $ 360 Balance at December 31, 2022 $ 48 $ 9 $ 5 $ 20 $ 82 Beginning Balance $ 48 $ 9 $ 5 $ 20 $ 82 Provision related to current period sales 4 156 3 266 429 Credit or payments made during the period - ( 145 ) ( 2 ) ( 231 ) ( 378 ) Balance at September 30, 2023 $ 52 20 6 55 133 Ending Balance $ 52 20 6 55 133 6. Investment, Related Party A s of September 30, 2023 and December 31, 2022, our investment in equity securities consisted solely of 5,745,678 and 6,446,946 , respectively of common shares of Biofrontera AG, a significant shareholder. (See Note 13. Related Party Transactions ). Of these shares, 3,377,346 are not fully in our control to vote or dispose of as we see fit as they are not held in a brokerage account registered in our name, however, we are currently engaged with advisors to transfer such shares to our brokerage account. Equity securities gains and losses include unrealized gains and losses from changes in fair values during the period on equity securities we still own, as well as gains and losses on securities we sold during the period. As reflected in the consolidated statements of cash flows, we received proceeds from sales of equity securities of approximately $ 0.6 million during the nine months ended September 30, 2023. Unrealized losses on investment, related party were $ 1.9 million and $ 6.2 million, respectively, for the three and nine months ended September 30, 2023. There were no unrealized gains and losses for the three and nine months ended September 30, 2022. Schedule of Unrealized Gains and Losses on Investments in Equity Securities (in thousands) 2023 2022 2023 2022 Three months ended September 30, Nine months ended September 30, (in thousands) 2023 2022 2023 2022 Net losses recognized during the period on equity securities $ ( 2,212 ) $ - $ ( 6,635 ) $ - Less: Net realized losses on equity securities sold 345 - 420 - Unrealized losses recognized during the reporting period on equity securities still held at the reporting date $ ( 1,867 ) $ - $ ( 6,215 ) $ - 7. Accounts Receivable, net Accounts receivables are mainly attributable to the sale of Ameluz ® . It is expected that all trade receivables will be settled within twelve months of the balance sheet date. Trade accounts receivable are stated at their net realizable value. The allowance for credit losses reflects our best estimate of expected credit losses of the receivables determined on the basis of historical experience and current information. In developing the estimate for expected credit losses, trade accounts receivables are segmented into pools of assets depending primarily on delinquency status, and fixed reserve percentages are established for each pool of trade accounts receivables. In determining the reserve percentages for each pool of trade accounts receivables, we considered our historical experience with certain customers, regulatory and legal environments and other relevant current and future forecasted macroeconomic factors. If we become aware of any customer-specific factors that impact credit risk, specific allowances for these known troubled accounts are recorded. The allowance for credit losses was $ 0.2 million and $ 0.1 million as of September 30, 2023 and December 31, 2022, respectively. 8. Other Receivables, Related Party As of September 30, 2023 the Company has a receivable, related party of $ 2.7 million primarily due from Biofrontera AG for its 50 % share of the balance of a legal settlement (See Note 18. Commitments and Contingencies – Legal proceedings ) for which both parties are jointly and severally liable. The Company has a contractual right to repayment of its share of the settlement payments, plus interest and other miscellaneous settlement costs, from Biofrontera AG under the Settlement Allocation Agreement (“Allocation Agreement”) entered into on December 9, 2021 and as amended on March 31, 2022, which provides that the settlement payments would first be made by the Company and then reimbursed by Biofrontera AG for its share. The Allocation Agreement, as amended, provides certain remedies to the Company, if Biofrontera AG fails to make timely reimbursements, which the Company may implement in its sole discretion, including the ability to charge interest at a rate of 6.0 % per annum for each day that any reimbursement is past due and the ability to offset any overdue reimbursement amounts against payments owed to Biofrontera AG by the Company (including amounts owed under the Company’s license and supply agreement for Ameluz ® ). A s such , no reserve for the receivable was deemed necessary as of September 30, 2023 or December 31, 2022. 11 9. Intangible Asset, Net Intangible asset, net consists of the following: Schedule of Intangible Asset Net (in thousands) September 30, 2023 December 31, 2022 Xepi® license $ 4,600 $ 4,600 Less: Accumulated amortization ( 1,882 ) ( 1,568 ) Intangible asset, net $ 2,718 $ 3,032 The Xepi® license intangible asset was recorded at acquisition-date fair value of $ 4.6 million and is amortized on a straight-line basis over the useful life of 11 years. Amortization expense for the three months ended September 30, 2023 and 2022 was $ 0.1 million and $ 0.3 million for the nine months ended September 30, 2023 and 2022. We review the Xepi ® license intangible asset for impairment whenever events or changes in circumstances indicate that the carrying amount of the assets may not be fully recoverable. There has been limited revenue during the current reporting periods and recent developments with the third-party manufacturer that was providing our supply of Xepi® have resulted in further constraints on the commercialization of the product. However, Ferrer is qualifying a new Contract manufacturer, Cambrex, which is expected to begin production in 2024. The Company performed an impairment analysis because of this situation and determined no impairment charges were deemed necessary during the three and nine months ended September 30, 2023. 10. Cash Balances and Statement of Cash Flows Reconciliation The Company maintains its cash balances at financial institutions that are insured by the Federal Deposit Insurance Corporation (“FDIC”). The FDIC provides coverage of up to $ 250,000 per depositor, per financial institution. At September 30, 2023, approximately $ 3.0 million of the Company’s cash balances were in excess of FDIC limits. The Company has not experienced any losses on these accounts and management does not believe that the Company is exposed to any significant risks. Restricted cash consists primarily of deposits of cash collateral held in accordance with the terms of our corporate credit cards. Long-term restricted cash was recorded in other assets in the consolidated balance sheet. The following table provides a reconciliation of cash, cash equivalents, and restricted cash that sum to the total shown in the consolidated statements of cash flows: Schedule of Reconciliation of Cash, Cash Equivalents, and Restricted Cash (in thousands) September 30, 2023 December 31, 2022 Cash and cash equivalents $ 3,422 $ 17,208 Long-term restricted cash 200 200 Total cash, cash equivalents, and restricted cash shown on the consolidated statements of cash flows $ 3,622 $ 17,408 11. Accrued Expenses and Other Current Liabilities Accrued expenses and other current liabilities consist of the following: Schedule of Accrued Expenses and Other Current Liabilities (in thousands) September 30, 2023 December 31, 2022 Legal settlement (See note 18) $ 6,028 $ 6,207 Employee compensation and benefits 2,948 2,850 Professional fees 1,253 1,353 Product revenue allowances and reserves 134 82 Other 676 372 Total $ 11,039 $ 10,864 12. Line of Credit On May 8, 2023, the Company entered into a Loan and Security Agreement (the “Loan Agreement”) with MidCap Business Credit LLC, providing us with a revolving line of credit in the aggregate principal amount of up to $ 6.5 million, subject to a borrowing base and an availability block, with a maturity date of May 8, 2026. The Loan Agreement is secured by a lien on substantially all of the assets of the Company, subject to customary exceptions. Advances under the Loan Agreement bear interest at the 30-Day Adjusted Term Secured Overnight Financing Rate (“SOFR Rate”), set monthly on the first day of the month based on 30-Day Term SOFR plus a spread adjustment of 15 basis points and subject to a floor of 2.25%, plus 4.00% calculated and charged monthly in arrears. In the event of a called event of default, a default interest rate of 3.00% percent shall be added to the aforementioned rate. Under the terms of the Loan Agreement, amounts available for advances would be subject to a borrowing base, which is a formula based on certain eligible receivables and inventory, and a block on such availability in the amount of $ 650,000 . Currently, our borrowing capacity is based on our eligible receivables with an additional $ 1.0 million borrowing capacity based on inventory. The borrowing base is up to 85% of accounts receivable, plus the least of (a) $ 1.0 million for inventory and (b) 85% of accounts receivable, less borrowing base reserve, if any, as defined in the Loan Agreement. The Loan Agreement also includes an Unused Line Fee Rate of 0.375 % of the Credit Limit less all outstanding advances, which shall be paid on a monthly basis. The interest rate as of September 30, 2023 was 5.48 % and interest expense for the nine months ended September 30, 2023 was negligible. The Company recorded approximately $ 0.2 million of costs related to the line of credit as an asset to be amortized on a straight-line basis over the term of the line of credit. The Company recognized minimal amortization expense in connection with this Line of Credit for the nine months ended September 30, 2023, which is recorded as interest expense on the accompanying consolidated statement of operations. 12 13. Related Party Transactions License and Supply Agreement On October 8, 2021, we entered into an amendment to the Ameluz LSA under which the price we pay per unit will be based upon our sales history. Under the agreement, the Company obtained an exclusive, non-transferable license to use Pharma’s technology to market and sell the licensed products, Ameluz® and BF-RhodoLED® and must purchase the licensed products exclusively from Pharma. As a result of this amendment, the purchase price we pay the Ameluz Licensor for Ameluz ® will be determined in the following manner: ● fifty percent of the anticipated net price per unit until we generate $ 30 million in revenue from sales of the products we license from the Ameluz Licensor during a given Commercial Year (as defined in the Ameluz LSA); ● forty percent of the anticipated net price per unit for all revenues we generate between $ 30 million and $ 50 million from sales of the products we license from the Ameluz Licensor; and ● thirty percent of the anticipated net price per unit for all revenues we generate above $ 50 million from sales of the products we license from the Ameluz Licensor. Purchases of the licensed products during the three and nine months ended September 30, 2023 were $ 5.1 million and $ 18.8 million, respectively, and $ 5.2 million and $ 16.6 million, respectively for the three and nine months ended September 30, 2022. Amounts due and payable to Pharma as of September 30, 2023 and December 31, 2022 were $ 7.0 million and $ 1.3 million, respectively, which were recorded in accounts payable, related parties in the consolidated balance sheets. Service Agreements In December 2021, we entered into an Amended and Restated Master Contract Services Agreement, or “Services Agreement”, which provides for the execution of statements of work that will replace the applicable provisions of our previous intercompany services agreement dated January 1, 2016, or 2016 Services Agreement, by and among us, Biofrontera AG, Biofrontera Pharma and Biofrontera Bioscience, enabling us to continue to use the IT resources of Biofrontera AG and its wholly owned subsidiaries (the “Biofrontera Group”) as well as providing access to the Biofrontera Group’s resources with respect to quality management, regulatory affairs and medical affairs. We currently have statements of work in place regarding IT, regulatory affairs, medical affairs, and pharmacovigilance, and are continuously assessing the other services historically provided to us by Biofrontera AG to determine 1) if they will be needed, and 2) whether they can or should be obtained from other third-party providers. As of September 30, 2023, we have migrated away from Biofrontera AG to third party providers for most of our significant IT services. Expenses related to the service agreement were $ 0.1 million and $ 0.2 million for the three and nine months ended September 30, 2023 and $ 0.2 million and $ 0.6 million for the three and nine months ended September 30, 2022, respectively. These expenses were recorded in selling, general and administrative, related party. Amounts due to Biofrontera AG related to the service agreement as of September 30, 2023 and December 31, 2022 were $ 0.2 million and $ 0.2 million, respectively, which were offset against other receivables, related party in the consolidated balance sheet. Clinical Lamp Lease Agreement On August 1, 2018, the Company executed a clinical lamp lease agreement with Bioscience to provide lamps and associated services. Total revenue related to the clinical lamp lease agreement was minimal and $ 0.1 million for the three and nine months ended September 30, 2023, respectively and minimal for the three and nine months ended September 30, 2022, and was recorded as revenues, related party. Amounts due from Bioscience for clinical lamp and other reimbursements were approximately $ 0.1 million as of September 30, 2023 and December 31, 2022, which were recorded as other receivables, related party in the consolidated balance sheets. 13 Others The Company has recorded a receivable of $ 2.8 million and $ 6.4 million as of September 30, 2023 and December 31, 2022, respectively, due from Biofrontera AG for its 50 % share of the balance of a legal settlement for which both parties are jointly and severally liable. (See Note 8. Other Receivables, Related Party ) . There was no interest income recognized for the nine months ended September 30, 2023 and $ 0.1 million of interest income for the nine months ended September 30, 2022, in connection with this receivable. As of September 30, 2023, our investment, related party is valued at $ 3.3 million and consists of 5,745,678 common shares of Biofrontera AG, a significant shareholder of the Company. See Note 6. Investment, Related Party. 14. Stockholders’ Equity Under the Company’s Certificate of Amendment to the Amended and Restated Certificate of incorporation, effective July 3, 2023, the Company is authorized to issue 15,000,000 shares of Common Stock and 20,000,000 shares of preferred stock, par value $ .001 per share. See Note 1. Reverse Stock Split for information and disclosures relating to adjustments for the 1-for-20 Reverse Stock Split. The holders of Common Stock are entitled to one vote for each share held. Common Stockholders are not entitled to receive dividends, unless declared by the Board of Directors. The Company has not declared dividends since inception. In the event of liquidation of the Company, dissolution or winding up, the holders of Common Stock are entitled to share ratably in all assets remaining after payment of liabilities. The Common Stock has no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the Common Stock. The outstanding shares of Common Stock are fully paid and non-assessable. 14 15. Equity Incentive Plans and Share-Based Payments 2021 Omnibus Incentive Plan In 2021, our Board of Directors adopted and our shareholders approved, the 2021 Omnibus Incentive Plan (“2021 Plan). Under the original 2021 Plan, 137,500 shares are reserved and authorized for awards and the maximum contractual term is 10 years for stock options issued under the 2021 Plan. On December 12, 2022, the 2021 Plan was amended by our stockholders and the number of shares authorized for awards under the 2021 Plan was increased by 129,490 to 266,990 . As of September 30, 2023, there were 163,362 shares available for future awards under the amended 2021 Plan. Non-qualified stock options We maintain the 2021 Plan for the benefit of our officers, directors and employees. Employee stock options granted under the 2021 Plan generally vest in equal annual installments over three years and are exercisable for a period of up to ten years from the grant date. Non-employee director options vest in equal monthly installments following the date of grant and will be fully vested on the one-year anniversary of the date of grant. All stock options are exercisable at a price as set by the Company at the time of the grant but shall not be less than the market value of the common shares underlying the option on the grant date. The Company recognizes the grant-date fair value of share-based awards granted as compensation expense on a straight-line basis over the requisite service period. The fair value of stock options is estimated at the time of grant using the Black-Scholes (“BSM”) option pricing model, which requires the use of inputs and assumptions such as the fair value of the underlying stock, exercise price of the option, expected term, risk-free interest rate, expected volatility and dividend yield. The Company elects to account for forfeitures as they occur. The fair value of each option was estimated on the date of the grant using the BSM option pricing model with the following assumptions: Schedule of Stock Options Assumptions Nine Months Ended September 30, 2023 2022 Expected volatility 70 % - 95 % 55 % - 70 % Expected term (in years) 6.0 5.24 - 6.0 Risk-free interest rate 3.5 % - 3.9 % 1.34 % - 4.10 % Expected dividend yield 0.0 % 0.0 % Share-based compensation expense of approximately $ 0.1 million and $ 0.5 million was recorded in selling, general and administrative expenses on the accompanying consolidated statement of operations for the three and nine months ended September 30, 2023, respectively and $ 0.3 million and $ 0.6 million for the three and nine months ended September 30, 2022. Options outstanding and exercisable under the employee share option plan as of September 30, 2023 and a summary of option activity during the nine months then ended is presented below. Schedule of Stock Option Activity Shares Weighted Average Exercise Price Weighted Average Remaining Contractual Term Aggregate Intrinsic Value (1) Outstanding at December 31, 2022 86,951 $ 62.16 Granted 22,477 $ 13.98 Exercised - $ - Canceled or forfeited ( 31,480 ) $ 53.58 Outstanding at September 30, 2023 77,948 $ 51.74 8.45 $ 0 Exercisable at September 30, 2023 24,210 $ 62.23 7.75 $ 0 (1) The aggregate intrinsic value is calculated as the difference between the exercise price of the underlying options and the fair value of the Common Stock for the options that were in the money at September 30, 2023. As of September 30, 2023, there was $ 1.0 million of unrecognized compensation cost related to unvested stock options, which is expected to be recognized over a weighted-average period of approximately 1.8 years. Share-Based Compensation (RSUs) Restricted Stock Units (“RSUs”) will vest annually over two years, subject to the recipient’s continued service with the Company through the applicable vesting dates. The fair value of each RSU is estimated based on the closing market price of the Company’s Common Stock on the grant date. Share-based compensation expense of $ 0.1 million and $ 0.3 million for the RSUs for the three and nine months ended September 30, 2023, respectively, and $ 0.1 million and $ 0.9 million for the three and nine months ended September 30, 2022 and was recorded in selling, general and administrative expenses in the accompanying consolidated statements of operations. 15 Schedule of Restricted Stock Units Shares Weighted Average Remaining Contractual Term Weighted Average Grant Date Fair Value Outstanding at December 31, 2022 17,176 $ 52.20 Awarded - $ - Vested ( 8,588 ) $ 52.20 Canceled or forfeited ( 3,817 ) 0.63 $ - Outstanding at September 30, 2023 4,771 0.63 $ 52.20 As of September 30, 2023, there was $ 0.2 million of unrecognized compensation cost related to unvested RSUs, which is expected to be recognized over a weighted-average period of approximately 0.6 years. 16. Interest Expense, net Interest expense, net consists of the following: Schedule of Interest Expense (in thousands) 2023 2022 2023 2022 For three months ended September 30, For nine months ended September 30, (in thousands) 2023 2022 2023 2022 Interest expense $ ( 43 ) $ ( 3 ) $ ( 77 ) $ ( 10 ) Interest expense, related party $ ( 22 ) $ - $ ( 22 ) $ - Contract asset interest expense ( 90 ) ( 89 ) ( 268 ) ( 268 ) Interest income – related party - 1 - 110 Interest income – other 13 2 111 8 Interest expense, net $ ( 142 ) $ ( 89 ) $ ( 256 ) $ ( 160 ) Interest expense is comprised primarily of interest on our Loan and Security Agreement with MidCap Business Credit LLC. Contract asset interest expense relates to the $ 1.7 million contract asset in connection with the $ 7.3 million start-up cost financing received from Maruho under the Cutanea acquisition Share Purchase Agreement. The contract asset is amortized on a straight-line basis using a 6 % interest rate over the financing arrangement contract term, which ends on December 31, 2023 . Interest income - related party interest income relates to default interest on the recorded receivable of $ 6.1 million as of September 30, 2022 from Biofrontera AG for its 50 % share of the balance of a legal settlement. 17. Net Earnings (Loss) per Share Basic net earnings (loss) per common share are calculated by dividing net income by the weighted average number of common shares outstanding during the period. Diluted net earnings per common share are calculated by dividing net income (loss) by the diluted weighted average number of common shares outstanding during the period. The diluted shares include the dilutive effect of stock-based awards based on the treasury stock method. In periods where a net loss is recorded, no effect is given to potentially dilutive securities, since the effect would be anti-dilutive. The following table sets forth the computation of the Company’s basic and diluted net earnings (loss) per share attributable to common stockholders (in thousands, except share and per share data): Schedule of Basic and Diluted Net Loss per Share Attributable to Common Stockholders 2023 2022 2023 2022 Three Months Ended Nine Months Ended September 30, September 30, 2023 2022 2023 2022 Net income (loss) $ ( 6,342 ) $ ( 2,566 ) $ ( 23,657 ) $ 2,145 Shares: Basic weighted average common shares outstanding 1,366,842 1,136,291 1,346,264 978,018 Add: Effect of dilutive securities Stock options and restricted stock units - - - 2,233 Diluted weighted average common shares outstanding 1,366,842 1,136,291 1,346,264 980,251 Net earnings (loss) per share: Basic $ ( 4.64 ) $ ( 2.26 ) $ ( 17.57 ) $ 2.19 Diluted $ ( 4.64 ) $ ( 2.26 ) $ ( 17.57 ) $ 2.19 16 The following table sets forth the securities that were anti-dilutive for diluted EPS for the periods presented but which could potentially dilute EPS in the future: Schedule of Anti-dilutive Securities Excluded from Computation of Earnings per Share Nine Months Ended September 30, 2023 2022 Common stock warrants 459,856 459,856 Common stock options and RSUs 82,719 55,620 Unit Purchase Options 20,182 20,182 Anti-dilutive securities excluded from computation of earnings per share 20,182 20,182 Common Stock warrants include Purchase Warrants, Inducement Warrants and warrants issued in the Initial Public Offering. 18. Commitments and Contingencies Leases The Company leases its corporate headquarters under an operating lease that expires in August 2025. The Company has the option to extend the term of the lease for one five (5) year period upon written notice to the landlord. The extension period has not been included in the determination of the ROU asset or the lease liability as the Company concluded that it is not reasonably certain that it would exercise this option. The Company provided the landlord with a security deposit in the amount of $ 0.1 million, which was recorded as other assets in the consolidated balance sheets. The Company has also entered into a master lease agreement for its vehicles. After an initial non-cancelable twelve-month period, each vehicle is leased on a month-to-month basis. Based on historical retention experience of approximately three years, the vehicles have varying expiration dates through January 2027. The components of lease expense for the three and nine months ended September 30, 2023 were as follows (in thousands except lease term and discount rate): Schedule of Components of Lease Expense and Other Information Lease expense Operating Leases Amortization of ROU assets (operating lease cost) $ 390 Interest on lease liabilities 54 Total lease expense $ 444 Other Information Operational cash flow used for operating leases $ 428 Weighted -average remaining lease term (in years) 2.01 Weighted -average discount rate 6.75 % Future lease payments under non-cancelable leases as of September 30, 2023 were as follows (in thousands): Schedule of Future Commitments and Sublease Income Years ending December 31, Future lease commitments 2023 $ 171 2024 584 2025 393 2026 44 2027 1 Total future minimum lease payments 1,193 Less imputed interest ( 76 ) Total lease liability $ 1,117 Schedule of Operating Lease Liability Reported as: Operating lease liability, current $ 555 Operating lease liability, non-current 562 Total $ 1,117 Cutanea payments We have a contract in which we agreed to repay to Maruho $ 3.6 million on December 31, 2022 and $ 3.7 million on December 31, 2023 in start-up cost financing paid to us in connection with the Cutanea acquisition. We have filed for arbitration against Maruho with the International Chamber of Commerce regarding issues with Maruho’s contract manufacturer that were not disclosed at the time of the Share Purchase Agreement and therefore are withholding the repayment of the start-up cost financing until a decision is reached through the arbitration process. The arbitration notes that Maruho breached the agreement with Cutanea due to undisclosed manufacturing issues and seeks damages as well as a declaration that we are not obligated to repay Maruho. As such, the required contractual payments noted above have not been made as of the financial statement filing date. We are also obligated to share product profits with Maruho equally from January 1, 2020 through October 30, 2030. Refer to Note 3, Acquisition Contract Liabilities . 17 Milestone payments with Ferrer Internacional S.A. Under the Xepi LSA, we are obligated to make payments to Ferrer upon the occurrence of certain milestones. Specifically, we must pay Ferrer i) $ 2,000,000 upon the first occasion when annual net sales of Xepi ® under the Xepi LSA exceed $ 25,000,000 , and ii) $ 4,000,000 upon the first occasion annual net sales of Xepi ® under the Xepi LSA exceed $ 50,000,000 . No Xepi ® milestones have been achieved as of the financial statement filing date. Licensing Agreement with Optical Tools On December 2, 2022, the Company entered into the technology transfer agreement with Optical Tools LLC (“Optical Tools”), and Stephen Tobin and Paul Sowyrda (the “Agreement”). The Agreement allowed for the transfer of the assigned patents and trademarks, and upon notification by the Company to Optical Tools, the research and development of certain prototypes. The Company paid a licensing fee of $ 0.2 million which was expensed during the year ended December 31, 2022. On May 28, 2023, the Company authorized Optical Tools to design, develop, manufacture, and deliver at least two portable photodynamic therapy lamp prototypes (“PDT Device”) using the technology in the assigned patents. The PDT Device provides illumination, based on different light profiles, to the external skin surface of the human body. The Company shall reimburse Optical Tools for all reasonable out-of-pocket, material and labor costs per the Agreement. As part of the Agreement, Optical Tools will be eligible to receive regulatory and sales milestone payments totaling up to $ 1.0 million, and royalties of up to 3 % of net revenue of certain products developed under this Agreement. The Company did not make any milestone or royalty payments during the three or nine months ended September 30, 2023. 18 Legal proceedings At each reporting date, the Company evaluates whether or not a potential loss amount or a potential range of loss is probable and reasonably estimable under the provisions of FASB ASC Topic 450, Contingencies . The Company expenses as incurred the legal costs related to such legal proceedings. Settlement Agreement with DUSA Pharmaceuticals Inc. On November 29, 2021, the Company entered into a settlement and release agreement with respect to a lawsuit filed March 23, 2018 in the United States District Court for the District of Massachusetts in which we were alleged to have infringed on certain patents and misappropriated certain trade secrets. In the settlement, the Company and Biofrontera AG together agreed to make an aggregate payment of $ 22.5 million and engage a forensic expert to destroy data at issue in the litigation to settle the claims in the litigation. While Biofrontera AG has agreed to pay fifty percent of the settlement costs, we remain jointly and severally liable to DUSA Pharmaceuticals Inc. (“DUSA”) for the full cash settlement amount, meaning that in the event Biofrontera AG does not pay all or a portion of the amount it owes under the settlement agreement, DUSA could compel us to pay Biofrontera AG’s share. As of September 30, 2023, we have reflected a legal settlement liability in the amount of $ 6.0 million for the remaining payments due under the settlement, including the estimated remaining cost of the forensic expert and a related receivable from related party of $ 2.8 million for the remaining legal settlement costs to be reimbursed in accordance with the Settlement Allocation Agreement, which provided that the settlement payments, including the cost of the forensic expert, would first be made by the Company and then reimbursed by Biofrontera AG for its share. Pursuant to the Settlement Agreement, if DUSA believes Biofrontera has violated any terms of the settlement and release agreement, the parties must engage in certain alternative dispute resolution activities, including a meeting between company representatives and non-binding mediation before a court action can be initiated. Settlement Agreement with Biofrontera AG Pursuant to the terms of that certain Settlement Agreement, dated as of April 11, 2023, among the Company, Biofrontera AG and certain current and former directors of the Company (the “Settlement Agreement”), the Company has taken or committed, among other things, to take the following actions: ● On July 7, 2023, in connection with the Biofrontera AG settlement agreement, the board of directors of the Company appointed Heikki Lanckriet to the Board. Mr. Lanckriet will serve as a Class I Director to hold office for a term expiring at the annual meeting of the Company’s stockholders for fiscal year 2025. Mr. Lanckriet’s term as director began upon his appointment at the July 7, 2023 meeting. ● The Company will begin a search, pursuant to the conditions set forth in the Settlement Agreement including a strike right granted to the aforementioned director nominated by Biofrontera AG, for an additional director candidate, who is fully independent from Biofrontera AG, Deutsche Balaton Aktiengesellschaft (“DB”) and any of their respective affiliates, to be nominated for election as a Class II Director at the Company’s 2024 annual meeting of stockholders. ● The Board will increase its size to seven members, including the two directors appointed and elected pursuant to the Settlement Agreement as noted above. In addition, the Settlement Agreement contains provisions to maintain Biofrontera AG’s representation on the Board of Directors as long as it holds at least 20% of the Company’s outstanding common stock and to limit further increases in the size of the Board of Directors or changes to the Company’s stockholder rights plan. Under the Settlement Agreement, Biofrontera AG also agrees, subject to certain conditions, to vote in support of the directors nominated by, and the proposals recommended by, the Board of Directors. Legal Claim On September 13, 2023, Biofrontera was served with a complaint filed in United Stated District Court for the District of Massachusetts by DUSA Pharmaceuticals, Inc., Sun Pharmaceutical Industries, Inc., and Sun Pharmaceutical Industries LTD (collectively “DUSA” or “Plaintiffs”) in which DUSA alleges breach of contract, violation of the Lanham Act, and unfair trade practices. All claims stem from allegations that Biofrontera has promoted its Ameluz product in a manner that is inconsistent with its approved FDA labeling. Though this complaint was originally filed in the U.S. District Court for the District of Massachusetts, this matter has been transferred by agreement of the parties to the U.S. District Court for the District of New Jersey. The Company denies the Plaintiffs’ claims and intends to defend these matters vigorously. Based on the Company’s assessment of the facts underlying the above claims, the uncertainty of litigation and the preliminary stage of the case, the Company cannot estimate the possibility of a material loss, nor the potential range of loss that may result from this action. If the final resolution of the matter is adverse to the Company, it could have a material impact on the Company’s financial position, results of operations, or cash flows. 19. Retirement Plan The Company has a defined-contribution plan under Section 401(k) of Internal Revenue Code (the “401(k) Plan”). The 401(k) Plan covers all employees who meet defined minimum age and service requirements and allows participants to defer a portion of their annual compensation on a pre-tax basis. The Company matches 50% of employee contributions up to a maximum of 6% of employees’ salary. Matching contribution costs paid by the Company for the three and nine months ended September 30, 2023 were $ 0.1 million and $ 0.2 million, respectively and $ 0.1 million and $ 0.2 million for the three and nine months ended September 30, 2022, respectively. 20. Reclassification of Prior Year Presentation Certain prior year amounts have been reclassified to their own line items within the Consolidated Statement of Operations and Consolidated Statements of Cash Flow. Specifically, warrant inducement expense of $ 2.6 million was reclassed from change in fair value of warrant liabilities for prior year presentation. These reclassifications had no effect on the reported results of operations. 21. Subsequent Events We have completed an evaluation of subsequent events after the balance sheet date of September 30, 2023 through the date this Quarterly Report on Form 10-Q was submitted to the SEC. Capital Raise On October 30, 2023, the Company entered into a securities purchase agreement (“Purchase Agreement”) with an institutional investor for the purchase and sale, in a registered public offering by the Company (the “Public Offering”) of an aggregate of 1,205,000 shares of the Company’s Common Stock, or pre-funded warrants to purchase Common Stock in lieu thereof, each of which is coupled with a warrant to purchase one and one-half shares of Common Stock. Specifically, the Company agreed to issue and sell to the institutional investor: (i) 150,000 shares of Common Stock at a combined offering price of $3.74, (ii) 1,055,000 pre-funded warrants to purchase up to 1,055,000 shares of Common Stock (the “Pre-Funded Warrants”) at a combined offering price of $3.7399 and (iii) 1,205,000 warrants to purchase up to 1,807,500 shares of Common Stock (the “Common Warrants”), resulting in gross proceeds of approximately $4.5 million. The Public Offering closed on November 2, 2023 . The Common Warrants are exercisable upon issuance, will expire five years following the date of issuance and have an exercise price of $ 3.55 per share. The Pre-Funded Warrants are exercisable upon issuance, will expire five years following the date of issuance and have an exercise price of $ 0.0001 per share. Warrant Amendment As previously reported in a Current Report on Form 8-K filed with the SEC on May 20, 2022, the Company issued (i) a common stock purchase warrant, dated May 16, 2022 and exercisable until November 18, 2027 , to purchase up to 170,950 shares of Common Stock, at an exercise price of $ 55.40 and (ii) a common stock purchase warrant, dated July 26, 2022 and exercisable until December 1, 2026 , to purchase up to 214,286 shares of Common Stock at an exercise price of $ 33.20 (collectively, the “Existing Warrants”) to an institutional investor. On October 30, 2023, in connection with the Purchase Agreement, the Company entered into an amendment to the Existing Warrants pursuant to which the Company agreed, effective November 2, 2023, to (i) revise the exercise price of the Existing Warrants to $ 3.55 and (ii) extend the date until which the Existing Warrants can be exercised until November 2, 2028. No other terms of the Existing Warrants were revised or changed. 19