Exhibit 4.5
PARTNERSHIP EXCHANGE AGREEMENT
THIS PARTNERSHIP EXCHANGE AGREEMENT (this "Agreement") is made as of
December 13, 2004, by and between Advanced Life Sciences Holdings, Inc., a
Delaware corporation ("Holdings"), and Xxxxxx Ventures, LLC, a Delaware limited
liability company ("Ventures").
WITNESSETH:
WHEREAS, Advanced Life Sciences, Inc., an Illinois corporation
("ALS"), and Xxxxxxx X. Xxxxxx ("Xxxxxx") entered into that certain Amended and
Restated Partnership Agreement, dated as of December 22, 2001 (the "Partnership
Agreement"), relating to Advanced Life Sciences General Partnership (the
"Partnership"); and
WHEREAS, under the terms of the Partnership Agreement, Xxxxxx made
capital contributions to the Partnership in the amount of $7,793,968 (the
"Xxxxxx Contribution Amount") from December 1999 through September 2002; and
WHEREAS, Xxxxxx contributed and assigned his entire interest in the
Partnership to Ventures pursuant to that certain Contribution, Assignment and
Assumption Agreement dated as of September 30, 2002; and
WHEREAS, from October 2002 through and including the date hereof,
Ventures has made capital contributions to the Partnership in the amount of
$3,717,509 (the "Ventures Contribution Amount" and, together with the Xxxxxx
Contribution Amount, the "Total Partnership Contribution Amount"); and
WHEREAS, ALS is undergoing a recapitalization and reorganization (the
"Recapitalization") as of the date hereof pursuant to which, among other things,
ALS has become a wholly-owned subsidiary of Holdings pursuant to that certain
ALS Exchange Agreement dated as of the date hereof between Holdings, the Xxxxxxx
X. Xxxxxx Revocable Trust and Xxxxx Xxxx; and
WHEREAS, pursuant to the Recapitalization, Ventures desires to
exchange with Holdings its Interest (as defined in the Partnership Agreement) in
the Partnership for shares of common stock, $.01 per share, of Holdings
("Holdings Stock").
NOW, THEREFORE, in consideration of the covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. EXCHANGE
1.01 PARTNERSHIP INTEREST. At the Closing (as hereinafter defined),
on the terms and subject to the conditions set forth herein, Ventures agrees to
sell, transfer, assign and deliver to Holdings, free and clear of all liens,
pledges, encumbrances, claims and equities of every kind, its Interest in the
Partnership.
1.02 HOLDINGS STOCK. In exchange and as consideration for the
transfer of Ventures' Interest to Holdings, at the Closing, on the terms and
subject to the conditions set forth herein, Holdings agrees to sell, transfer,
assign and deliver to Ventures, free and clear of all liens, pledges,
encumbrances, claims and equities of every kind, a number of shares of Holdings
Stock determined by dividing (a) the Total Partnership Contribution Amount by
(b) $5.82 (the "Exchange").
1.03 THE CLOSING. The closing of the Exchange (the "Closing") will
take place at the offices of Winston & Xxxxxx LLP, 00 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, at such date and time and as may be agreeable to the
parties.
SECTION 2. CONDITIONS PRECEDENT TO THE EXCHANGE
2.01 CONDITIONS TO THE OBLIGATION OF VENTURES. The obligation of
Ventures to transfer the Interest as provided in Section 1.01 hereof on the
Closing Date is subject to the satisfaction as of the date of the Closing of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Holdings contained in Section 3 hereof shall be true and
correct at and as of the Closing.
(b) CLOSING DOCUMENTS. At the Closing, Holdings will have delivered
to Ventures:
(i) certificates representing 1,977,917 shares of Holdings
Stock issued pursuant to Section 1.02; and
(ii) such other documents relating to the transactions
contemplated by this Agreement as Ventures may reasonably request.
(c) SIMULTANEOUS CLOSINGS. The Closing shall take place
substantially simultaneously with the closings of the other agreement and
other transactions contemplated by the Recapitalization (the
"Recapitalization Transactions").
(d) PROCEEDINGS. All corporate, legal and other proceedings taken
or required to be taken in connection with the transactions contemplated
hereby to be consummated at or prior to the Closing and all documents
incident thereto shall be satisfactory in form and substance to Ventures.
(e) WAIVER. Any condition specified in Section 2.01 may be waived
if consented to by Ventures.
2.02 CONDITION TO HOLDINGS' OBLIGATION AT THE CLOSING. The
obligation of Holdings to deliver the Holdings Stock on the Closing Date
pursuant to Section 1.02 is subject to the satisfaction as of the date of the
Closing of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Ventures contained in Section 3 hereof shall be true and
correct at and as of the Closing.
(b) RECEIPT OF PARTNERSHIP INTERESTS. At the closing, Holdings
shall have received Ventures' Interest in the Partnership.
(c) CLOSING DOCUMENTS. On or prior to the Closing, Ventures will
have delivered to Holdings such other documents relating to the
transactions contemplated by this Agreement as Holdings may reasonably
request.
(d) SIMULTANEOUS CLOSINGS. The Closing shall take place
substantially simultaneously with the closings of the other
Recapitalization Transactions.
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(e) PROCEEDINGS. All corporate, legal and other proceedings taken
or required to be taken in connection with the transactions contemplated
hereby to be consummated at or prior to the Closing and all documents
incident thereto shall be satisfactory in form and substance to Holdings.
(f) WAIVER. Any condition specified in Section 2.02 may be waived
if consented to by Holdings.
SECTION 3. REPRESENTATIONS AND WARRANTIES
(a) Holdings and Ventures expressly disclaim any and all
representations and warranties, express or implied, except that:
(i) Holdings warrants to Ventures that (A) it is duly
organized and validly existing under the laws of the State of
Delaware, (B) it has the requisite corporate power and authority to
make, deliver and perform this Agreement, (C) it has taken all
necessary action to authorize the execution, delivery and performance
of this Agreement and the transactions contemplated thereby, (D) this
Agreement has been duly executed and delivered on behalf of Holdings
and (E) this Agreement constitutes a legal, valid and binding
obligation of Holdings, enforceable against Holdings in accordance
with its terms; and
(ii) Ventures warrants to Holdings that (A) it is duly
organized and validly existing under the laws of the State of
Delaware, (B) it has the requisite limited liability company power and
authority to make, deliver and perform this Agreement, (C) it has
taken all necessary action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated
thereby, (D) this Agreement has been duly executed and delivered on
behalf of Ventures and (E) this Agreement constitutes a legal, valid
and binding obligation of Ventures, enforceable against Ventures in
accordance with its terms.
(b) Holdings and Ventures acknowledge that they have had complete
access to all information relating to the other parties necessary to make
an informed decision regarding the Exchange, and have had the opportunity
to negotiate the terms and conditions of the Exchange.
SECTION 4. MISCELLANEOUS
4.01 EXPENSES. Holdings shall pay all of the expenses incurred by
all parties to this Agreement in connection with this Agreement, including
without limitation, all legal fees.
4.02 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained herein will survive the execution and delivery of this
Agreement.
4.03 SUCCESSORS AND ASSIGNS. All terms and conditions contained in
this Agreement shall bind and inure to the benefit of the respective successors
and assigns of the parties hereto.
4.04 SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
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4.05 COUNTERPARTS. This Agreement may be executed simultaneously in
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the same
agreement.
4.06 DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
4.07 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with, the laws of the State of Illinois,
without regard to conflicts of laws principles.
4.08 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement of the parties in respect of the subject matter hereof and supersedes
any and all prior understandings (whether written or oral) in respect of such
subject matter.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
ADVANCED LIFE SCIENCES HOLDINGS, INC.
/s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
Title: President
XXXXXX VENTURES, LLC
/s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx
Member
Consent to the transfer of
Interest pursuant to Section 7.1
of the Partnership Agreement:
ADVANCED LIFE SCIENCES, INC.
/s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
Title: President
PARTNERSHIP EXCHANGE AGREEMENT
