Exhibit 4.6
ALS EXCHANGE AGREEMENT
THIS ALS EXCHANGE AGREEMENT (this "Agreement") is made as of December
13, 2004, by and between Advanced Life Sciences Holdings, Inc., a Delaware
corporation ("Holdings"), the Xxxxxxx X. Xxxxxx Revocable Trust, an Illinois
trust (the "Trust"), and Xxxxx Xxxx, and individual residing in the State of
Illinois ("Xxxx" and, together with the Trust, the "Shareholders").
WITNESSETH:
WHEREAS, the Trust owns 400,000 shares and Xxxx owns 10,500 shares of
common stock, no par value, of Advanced Life Sciences, Inc., an Illinois
corporation ("ALS"), representing all issued and outstanding shares of common
stock of ALS (the "ALS Shares"); and
WHEREAS, ALS is undergoing a recapitalization and reorganization as of
the date hereof (the "Recapitalization"); and
WHEREAS, in connection with the Recapitalization, the Shareholders
desire to transfer to Holdings the ALS Shares and, in return, Holdings desires
to deliver to the Shareholders an equivalent number of shares of Holdings'
common stock, $.01 par value per share ("Holdings Common 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 THE EXCHANGE. At the Closing (as hereinafter defined), on the
terms and subject to the conditions set forth herein, the Shareholders agree to
sell, transfer, assign and deliver to Holdings, free and clear of all liens,
pledges, encumbrances, claims and equities of every kind, the ALS Shares, and
Holdings agrees to sell, transfer, assign and deliver to the Shareholders, free
and clear of all liens, pledges, encumbrances, claims and equities of every
kind, 410,500 shares of Holdings Common Stock (the "Holdings Shares") (the
exchange of the ALS Shares and the Holdings Shares is hereafter referred to as
the "Exchange").
1.02 ALLOCATION BETWEEN SHAREHOLDERS. In the Exchange, the Trust
shall receive 400,000 Holdings Shares and Xxxx shall receive 10,500 Holdings
Shares.
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 mutually agreeable
to Holdings and the Shareholders.
SECTION 2. CONDITIONS PRECEDENT
2.01 CONDITIONS TO THE SHAREHOLDERS' OBLIGATION AT THE CLOSING. The
obligation of the Shareholders to deliver the ALS Shares as provided in Section
1 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 the Shareholders:
(i) certificates representing the newly issued Holdings
Shares; and
(ii) such other documents relating to the transactions
contemplated by this Agreement as the Shareholders 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 the
Shareholders.
(e) WAIVER. Any condition specified in Section 2.01 may be waived if
consented to by each Shareholder.
2.02 CONDITION TO HOLDINGS' OBLIGATION AT THE CLOSING. The obligation
of Holdings to deliver the Holdings Shares to the Shareholders 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 the Shareholders contained in Section 3 hereof shall be true
and correct at and as of the Closing.
(b) CLOSING DOCUMENTS. At the Closing, the Shareholders will have
delivered to Holdings:
(i) certificates representing the ALS Shares, each of which
certificates shall be duly endorsed or accompanied by a duly executed
stock power; and
(ii) such other documents relating to the transactions
contemplated by this Agreement as Holdings may reasonably request.
(c) SIMULTANEOUS CLOSINGS. The Closing shall take place
substantially simultaneously with the closings of the other
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 Holdings.
(e) WAIVER. Any condition specified in Section 2.02 may be waived if
consented to by Holdings.
SECTION 3. REPRESENTATIONS AND WARRANTIES
(a) Holdings and the Shareholders expressly disclaim any and all
representations and warranties, express or implied, except that:
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(i) Holdings warrants to the Shareholders 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) Each Shareholder warrants to Holdings that (A) it has the
requisite power and authority to make, deliver and perform this
Agreement, (B) this Agreement has been duly executed and delivered on
behalf of such Shareholder and (C) this Agreement constitutes a legal,
valid and binding obligation of such Shareholder enforceable against
such Shareholder in accordance with its terms.
(b) Holdings and the Shareholders each acknowledge that they have
had complete access to all information relating to the other 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, regardless of any investigation made by the Shareholders or Holdings
or on behalf of the Shareholders or Holdings.
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.
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.
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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.
THE XXXXXXX X. XXXXXX REVOCABLE
TRUST
/s/ Xxxxxxx X. Xxxxxx
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By: Xxxxxxx X. Xxxxxx
Trustee
/s/ Xxxxx Xxxx
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Xxxxx Xxxx, in her individual capacity
ADVANCED LIFE SCIENCES HOLDINGS, INC.
/s/ Xxxx X. Xxxxxx
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By: Xxxx X. Xxxxxx
Title: President
ALS EXCHANGE AGREEMENT
