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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
Flavin Ventures, LLC, a Delaware limited
liability company ("Ventures").
WITNESSETH:
WHEREAS, Advanced Life Sciences, Inc., an Illinois corporation
("ALS"), and Michael T. Flavin ("Flavin")
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, Flavin
made
capital contributions to the Partnership in
the amount of $7,793,968 (the
"Flavin Contribution Amount") from December
1999 through September 2002; and
WHEREAS,
Flavin 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 Flavin
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 Michael
T. Flavin Revocable Trust and Karen Stec;
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").
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1.03 THE
CLOSING. The closing of the Exchange (the "Closing") will
take place at the offices of Winston &
Strawn LLP, 35 West Wacker Drive,
Chicago, Illinois 60601, 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
