EXHIBIT 1.1
EXCHANGE AGREEMENT
AGREEMENT made as of the 23rd day of March 1999, among Advanced Deposition
Technologies, Inc., a Delaware corporation ("ADTECH"), DNA Export, S.A., a
corporation organized under the laws of the Kingdom of Spain ("DNA") and
Xxxxxxxxx Xxxxxx, an individual residing in Madrid, Spain. For convenience,
each of the parties may be referred to separately as a "Party" and collectively
as the "Parties".
WHEREAS, DNA owns Three Thousand Three Hundred and Sixty (3,360) shares of
the capital stock (the "ABSA Capital Stock") of DNA-ADTECH, S.A., a corporation
organized under the laws of the Kingdom of Spain (formerly known as Xxxxxxxxx
Xxxxxx, S.A.); and
WHEREAS, DNA wishes to transfer Three Thousand Three Hundred and Sixty
(3,360) shares of ABSA Capital Stock (the "ABSA Shares") to ADTECH, such amount
representing sixteen percent (16%) of the outstanding capital stock of DNA-
ADTECH, S.A. on a fully-diluted basis, in exchange for Five Hundred Ninety-Eight
Thousand One Hundred Ninety-Eight (598,198) shares (the "ADTECH Shares") of the
common stock, par value $01 per share of ADTECH (the "Common Stock").
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties agree as follows:
1. Exchange of ABSA Shares for ADTECH Shares. Upon the terms and
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conditions set forth herein and in reliance upon the representations and
warranties set forth below, DNA agrees to transfer to ADTECH the ABSA Shares and
ADTECH agrees to issue to DNA the ADTECH Shares in exchange therefor (the
"Exchange").
2. Closing. The Exchange shall take place at a closing (the "Closing")
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to be held at 11:00 a.m at the offices of Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., as soon as possible, but in no event later than September 30,
1999 (the "Closing Date"), or at such other place and time as the Parties shall
designate. At the Closing, DNA shall deliver to ADTECH a certificate(s)
representing the ABSA Shares, duly endorsed for transfer to ADTECH and ADTECH
will instruct American Securities Transfer & Trust Company to issue and to
deliver to DNA a certificate representing the ADTECH Shares.
3. Representations and Warranties of DNA. As an inducement to ADTECH to
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enter into this Agreement and to consummate the transactions contemplated
hereby. DNA hereby represents and warrants to ADTECH as follows:
(a) DNA is a corporation duly incorporated, validly existing and in
good standing under the laws of the Kingdom of Spain.
(b) All corporate action necessary for the execution, delivery and
performance by DNA of this Agreement and the consummation by DNA of the
transactions contemplated hereby has been duly taken. This Agreement
constitutes the legal, valid and binding obligation of DNA enforceable against
DNA in accordance with its terms.
(c) Neither the execution and delivery of this Agreement by DNA nor
the consummation of the transactions contemplated hereby will (i) violate,
conflict with or result in the breach or termination of, or constitute a default
under DNA's organizational documents or the terms of any material agreement or
instrument to which DNA is a party or by which DNA is bound or subject, (ii)
violate any judgment, order, injunction, decree or award against or binding upon
DNA, or (iii) constitute a violation of any applicable law or regulation of any
applicable jurisdiction.
(d) DNA is the record and beneficial owner of the ABSA Shares and has
good and marketable title thereto, free and clear of all liens, claims, pledges,
security interests, charges, options, restrictions or other encumbrances. DNA
has the right, power and authority to enter into this Agreement and to perform
its obligations hereunder.
(e) (i) DNA is acquiring the ADTECH Shares for its own account for
investment only and not with a view to the distribution or public offering
thereof within the meaning of the Securities Act of 1933, as amended (the
"Securities Act").
(ii) DNA is an "accredited investor" as that term is defined in
Rule 501(a) of Regulation D of the Securities Act.
(iii) DNA understands that the ADTECH Shares are being offered
and transferred to it in reliance on specific exemptions from the
registration requirements of United States federal and state securities
laws and that ADTECH is relying in part upon the truth and accuracy of, and
DNA's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of DNA set forth herein in order to
determine the availability of such exemptions and the eligibility of DNA to
acquire the ADTECH Shares.
(iv) DNA understands that no governmental authority has passed
on or made any recommendation or endorsement of the ADTECH Shares or the
fairness or suitability of the investment in the ADTECH Shares nor has any
governmental authority passed upon or endorsed the merits of the sale of
the ADTECH Shares.
(v) DNA understands that (a) the ADTECH Shares have not been and
are not being registered under the Securities Act or any state securities
laws, and may not be offered for sale, sold, assigned or transferred unless
(1) subsequently registered thereunder, (2) DNA shall have delivered to
ADTECH an opinion of counsel, in a generally acceptable form, to the effect
that the ADTECH Shares to be sold, assigned or transferred may be sold,
assigned or transferred pursuant to an exemption from such registration, or
(3) the ADTECH Shares can be sold, assigned or transferred pursuant to Rule
144 promulgated under the Securities Act (or a successor rule thereto)
("Rule 144"); (b) any sale of the ADTECH Shares made in reliance on Rule
144 may be made only in accordance with the terms of Rule 144 and further,
if Rule 144 is not applicable, any resale of the ADTECH Shares under
circumstances in which the seller (or the person through whom the sale is
made) may be deemed to be an underwriter (as that term is defined in the
Securities Act) may require compliance with some other exemption under the
Securities Act or the rules and regulations of the Securities Exchange
Commission thereunder; and (c) neither ADTECH nor any other person is under
any obligation to register the ADTECH Shares under the Securities Act or
any state securities laws or to comply with the terms and conditions of any
exemption thereunder.
(vi) DNA understands that the certificate(s) or other
instrument(s) representing the ADTECH Shares shall bear a restrictive
legend in substantially the following form (and a stop-transfer order may
be placed against transfer of such stock certificates):
LEGEND
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY
NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS
OR AN OPINION OF COUNSEL. IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR
UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT.
(c) The representations and warranties of DNA shall survive the
Closing.
4. Representations and Warranties of ADTECH. As an inducement to DNA to
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enter into this Agreement and to consummate the transactions contemplated
hereby, ADTECH hereby represents and warrants to DNA as follows:
(a) ADTECH is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware and is duly licensed or
qualified to transact business as a foreign corporation and is in good standing
in each jurisdiction in which the ownership or leasing of its assets or
properties requires it to be so licensed or qualified, except where the failure
to be so licensed or qualified would not individually, or in the aggregate, have
a material adverse effect on the business or operations of ADTECH.
(b) Except for the requisite approval by its stockholders, all
corporate action necessary for the execution, delivery and performance by ADTECH
of this Agreement and the consummation by ADTECH of the transactions
contemplated hereby has been duly taken. This Agreement constitutes the legal,
valid and binding obligation of ADTECH enforceable against ADTECH in accordance
with its terms.
(c) Neither the execution and delivery of this Agreement by ADTECH nor
the consummation of the transactions contemplated hereby will (i) violate,
conflict with or result in the breach or termination of, or constitute a default
under ADTECH's organizational documents or the terms of any material agreement
or instrument to which ADTECH is a party or by which ADTECH is bound or subject,
(ii) violate any judgment, order, injunction, decree or award against or binding
upon ADTECH, or (iii) constitute a violation of any applicable law or regulation
of any applicable jurisdiction.
(d) The representations and warranties of ADTECH shall survive the
Closing.
5. Conditions to Closing.
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(a) The obligation of ADTECH to deliver the ADTECH Shares to DNA and
to consummate the transactions contemplated hereby is subject to the
satisfaction of the following conditions:
(i) All of the representations and warranties of DNA contained
in this Agreement shall be true, correct and complete in all material
respects on and as of the date hereof and on and as of the date of the
Closing, as if made on and as of the date of the Closing (except to the
extent any such representation or warranty speaks as of a different date,
in which case such representation or warranty shall still be true, correct
and complete as of such different date). On the date of the Closing, DNA
shall have executed and delivered to ADTECH a certificate, in form and
substance satisfactory to ADTECH and its counsel, to such effect.
(ii) ADTECH shall have obtained the necessary approval of the
Exchange by its stockholders.
(b) The obligation of DNA to deliver the ABSA Shares to ADTECH and to
consummate the transactions contemplated hereby is subject to the condition that
all of the representations and warranties of ADTECH contained in this Agreement
shall be true, correct and complete in all material respects on and as of the
date hereof and on and as of the date of the Closing, as if made on and as of
the date of the Closing (except to the extent any such representation or
warranty speaks as of a different date, in which case such representation or
warranty shall still be true, correct and complete as of such different date).
On the date of the Closing, ADTECH shall have executed and delivered to DNA a
certificate, in form and substance satisfactory to DNA and its counsel, to such
effect.
6. Termination.
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In the event that the conditions for Closing set forth in Section 5 of
this Agreement have not been satisfied on or before the Closing Date, either DNA
or ADTECH may terminate this Agreement, effective immediately, by written notice
to the other; provided, however, that (i) ADTECH shall not be entitled to elect
to terminate this Agreement if the Closing has not occurred due to a failure to
meet any of the conditions set forth in Section 5(a)(i) and (ii) DNA shall not
be entitled to elect to terminate this Agreement if the Closing has not occurred
due to a failure to meet any of the conditions set forth in Section 5(b).
7. Adjustments.
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In the event of any change in the common stock of either of DNA or
ADTECH, prior to the Closing by reason of stock dividends, split-ups,
recapitulations, combinations, exchanges of shares or the like, the number of
Shares which DNA or ADTECH, as the case may be, is obliged to transfer under
this Agreement shall be adjusted appropriately.
8. Indemnification.
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(a) ADTECH hereby agrees to indemnify, defend and hold DNA and his
successors and assigns harmless from any claim, liability, obligation, loss,
damage, assessment, judgment, cost and expense (including, without limitation,
reasonable attorneys' fees) of any kind
or character resulting from claims, charges, liens, contracts, rights, options,
security interests, encumbrances and restrictions of every kind and nature
against DNA arising out of or in any manner relating or attributable to any
inaccuracy in any representation or any breach of any warranty of ADTECH
contained herein.
(b) DNA hereby agrees to indemnify, defend and hold ADTECH and its
officers, directors and shareholders harmless from any claim, liability,
obligation, loss, damage, assessment, judgment, cost and expense (including,
without limitation, reasonable attorneys' fees) of any kind or character
resulting from claims, charges, liens, contracts, rights, options, security
interests, encumbrances and restrictions of every kind and nature against ADTECH
arising out of or in any manner relating or attributable to any inaccuracy in
any representation or any breach of any warranty of DNA contained herein.
9. Expenses. Boxall hereby agrees to pay the legal and accounting fees
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and expenses of ADTECH incurred in connection with the preparation and execution
of this Agreement and in obtaining stockholder approval of the transactions
contemplated hereby; provided, however, that such amount shall not exceed
$100,000.
10. Miscellaneous.
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(a) Entire Agreement. This Agreement constitutes the entire agreement
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of the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and undertakings, both written and oral.
(b) Assignment. This Agreement shall not be assigned by operation of
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law or otherwise without the prior written consent of the other parties hereto.
Notwithstanding the foregoing, DNA may assign its rights and/or obligations
under this Agreement to Boxall or any entity controlled by Boxall. This
Agreement shall be binding upon the heirs, legatees and devisees, executors,
administrators and legal representatives of the parties, and upon the permitted
assigns of the parties.
(c) Amendment; Waiver. This Agreement may not be amended or modified
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except by an instrument in writing signed by the parties.
(d) Governing Law. This Agreement shall be governed by, and construed
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in accordance with the law of The Commonwealth of Massachusetts, without giving
effect to the conflict of law principles thereof.
(e) Counterparts. This Agreement may be executed in one or more
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counterparts, and by the parties hereto in separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
(f) Notices. All notices, consents, requests, instructions, approvals
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and other communications provided for herein shall be deemed validly given, made
or served if in writing
and delivered personally or sent by certified mail, postage prepaid, or by
recognized overnight courier delivery service (delivery charges prepaid), or by
telecopier:
(i) if to DNA, addressed to:
Xx. Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxxxx 00
Xxx Xxxxx
00000 Xxxxxx
Xxxxx
Telephone: 000-0000-0000000
Fax: 000-0000-0000000
with copies to:
Xxxxxx, Xxxx & Xxxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
Telephone: 000-000-0000
Fax: 000-000-0000
(ii) if to ADTECH, addressed to:
Advanced Deposition Technologies, Inc.
Xxxxx Xxxxxxxx Industrial Park
Taunton, MA 02780
Attn.: Xx. Xxxxx Xxxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
with copies to:
Mintz, Levin, Cohn, Ferris, Glovsky and Xxxx, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Esq.
Telephone: 000-000-0000
Fax: 000-000-0000
or such other address as shall be furnished in writing by any party to the
other. Any notice (i) sent by telecopier shall be deemed delivered when
received as verified by electronic confirmation, (ii) sent by overnight courier
shall be deemed delivered when received, (iii) sent by
certified mail shall be deemed delivered on the tenth day after it is sent and
(iv) given personally shall be deemed given when received; provided, however,
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that any notice received after 5:00 p.m. or on a day that it not a business day
in the place of receipt shall be deemed delivered at the opening of business on
the next business day in the place of receipt.
(g) Arbitration. Any claim, dispute disagreement or controversy that
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arises between the Parties that relates to the performance of either Party's
duties under this Agreement for the breach of any of the terms or conditions set
forth herein, that is not solved by amicable agreement shall be resolved
exclusively by arbitration initiated in accordance with the procedures
hereinafter set forth in this Section 10(g). All arbitrations pursuant to this
Section 10(g) shall be conducted in accordance with the rules then obtaining of
the American Arbitration Association by a single arbitrator appointed by the
Parties if they shall agree upon an arbitrator within thirty (30) days of the
commencement of such arbitration or by the American Arbitration Association if
they shall fail so to agree. Unless otherwise agreed by the Parties within
thirty (30) days of the initiation of such arbitration, all arbitration
proceedings shall be held in English in the city of Boston, Massachusetts. Each
Party agrees to comply with any award made or order issued in such proceeding
that has become final and to the entry of a judgment in any jurisdiction upon
any award rendered or order issued in such proceeding that has become final. The
decision of the arbitrator shall be tendered within forth-five (45) days of the
final submission of the Parties in writing or in a hearing before the
arbitrator. Each such arbitration award that has become final shall be
conclusive and binding upon the Parties and shall not be appealable. Attorney's
fees, costs and other out-of-pocket expenses may be awarded by the
arbitrator in his discretion to the Party that prevails in any such arbitration,
provided, that if there is no prevailing Party, the arbitrator may award such
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fees, costs and expenses in any manner the arbitrator sees fit. Each Party shall
pay its own expenses pending the awarding thereof to the Party that prevails in
any such arbitration.
(h) Severability. In the event any provision, or portion thereof, of
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this Agreement is held by a court having proper jurisdiction to be unenforceable
in any jurisdiction, then such portion or provision shall be deemed to be
severable as to such jurisdiction (but, to the extent permitted by law, not
elsewhere) and shall not affect the remainder of this Agreement, which shall
continue in full force and effect to the extent that the material purposes of
this Agreement can still be implemented. If any provision of this Agreement is
held to be so broad as to be unenforceable, such provision shall be interpreted
to be only so broad as is necessary for it to be enforceable.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered under seal as of the date first written above.
DNA EXPORT, S.A.
By: /s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx, President
ADVANCED DEPOSITION TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, its Chief Executive
Officer, President and Treasurer
/s/ Xxxxxxxxx Xxxxxx
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Xxxxxxxxx Xxxxxx
