STOCK PURCHASE AGREEMENT
EXHIBIT
2
This
Stock Purchase Agreement is dated as of August 8, 2008 (this "Agreement"),
between OPKO Health, Inc., a Delaware corporation (the "Company"),
and
the purchasers listed on Annex
A
hereto
(collectively, the "Purchasers").
WHEREAS,
the Company desires to sell to Purchasers, and Purchasers desire to purchase
from the Company, shares of the Company's common stock, par value $.01 per
share
(the "Common
Stock"),
on
the terms and subject to the conditions set forth in this Agreement (the
“Transaction”).
WHEREAS,
the Purchase Price and the Shares (as hereinafter defined) issued shall be
allocated among the Purchasers in accordance with Annex
A.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
in this Agreement and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
Article
1
Purchase
and Sale of Common Stock
1.1 Purchase
and Sale of the Shares.
Subject
to the terms and conditions hereof, the Company hereby agrees to issue and
sell
to Purchasers, and Purchasers hereby agree to purchase from the Company,
13,513,514
shares of Common Stock (the "Shares") at a purchase price of $1.11 per share
for
an aggregate purchase price of $15 million (the "
Purchase Price").
1.2 Closing.
The
closing of the issuance and sale of the Shares (the "Closing")
shall
take place at the Company’s offices in Miami, Florida on, or as soon as possible
following, the date which is twenty (20) days after the Company first mails
to
stockholders an Information Statement on Schedule 14C notifying stockholders
that the Transaction was approved by the written consent of stockholders holding
a majority of the voting power of the outstanding capital stock of the Company
(the “Closing”). As payment in full for the Shares being purchased by them at
the Closing, Purchasers shall pay to the Company the Purchase Price by wire
transfer.
Article
2
Additional
Agreements
The
Company and Purchasers shall cooperate with each other and use their respective
commercially reasonable best efforts to take or cause to be taken all actions,
and do or cause to be done all things, necessary, proper or advisable under
this
Agreement and applicable laws and regulations to consummate and make effective
the sale of the Shares (the "Sale")
and
the other transactions contemplated by this Agreement as soon as practicable,
including preparing and filing as promptly as practicable all documentation
to
effect all necessary applications, notices, petitions, filings and other
documents and to obtain as promptly as practicable all permits, consents,
approvals and authorizations necessary or advisable to be obtained from any
third party and/or any governmental entity in order to consummate the Sale
or
any of the other transactions contemplated by this Agreement.
Article
3
Representations
and Warranties of the Company
The
Company represents and warrants to Purchasers as of the date hereof as
follows:
3.1 Authorization
of Agreements, etc.
The
execution and delivery by the Company of this Agreement, the performance by
the
Company of its obligations hereunder, and the issuance, sale and delivery of
the
Shares have been duly authorized by all requisite corporate action and will
not
result in any violation of, be in conflict with, or constitute a default under,
with or without the passage of time or the giving of notice: (a) any provision
of the Company's Certificate of Incorporation, as amended, or Bylaws, as
amended; (b) any provision of any judgment, decree or order to which the Company
is a party or by which it is bound; (c) any material contract or agreement
to
which the Company is a party or by which it is bound; or (d) any statute, rule
or governmental regulation applicable to the Company, except where such
violation, conflict, or default would not have a material adverse effect on
the
Company.
3.2 Valid
Issuance of Common Stock.
The
Shares have been duly authorized and, when issued, sold and delivered in
accordance with this Agreement for the consideration expressed herein will
be
validly issued, fully paid and nonassessable with no personal liability
attaching to the ownership thereof and will be free and clear of all liens,
charges and encumbrances of any nature whatsoever except for restrictions on
transfer under this Agreement and under applicable Federal and state securities
laws.
3.3 Validity.
This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as limited by
laws relating to the availability of specific performance, injunctive relief,
or
other equitable remedies.
3.4 Brokers
and Finders.
Neither
the Company nor any of its subsidiaries, officers, directors or employees has
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the Sale or the other
transactions contemplated by this Agreement.
Article
4
Representations
and Warranties of Purchasers
Each
of
the Purchasers hereby severally and not jointly represents and warrants to
the
Company as of the date hereof as follows:
2
4.1 Validity.
This
Agreement has been duly executed and delivered by Purchaser and constitutes
the
legal, valid and binding obligation of Purchaser, enforceable in accordance
with
its terms except:
(a) as
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
generally; and
(b) as
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
4.2 Investment
Representations.
(a) Purchaser
is an "accredited investor" within the meaning of Rule 501 of Regulation D
under
the Securities Act of 1933, as amended (the "Securities
Act")
and
was not organized for the specific purpose of acquiring the Shares;
(b) Purchaser
has sufficient knowledge and experience in investing in companies similar to
the
Company in terms of the Company's stage of development so as to be able to
evaluate the risks and merits of its investment in the Company and it is able
financially to bear the risks thereof;
(c) it
is the
present intention that the Shares being purchased by Purchaser are being
acquired for Purchaser's own account for the purpose of investment and not
with
a present view to or for sale in connection with any distribution
thereof;
(d) Purchaser
understands that:
(i) the
Shares have not been registered under the Securities Act by reason of their
issuance in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereof or Rule 505 or 506 promulgated
under the Securities Act;
(ii) the
Shares must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from such
registration;
(iii) the
Shares will bear a legend to such effect; and
(iv) the
Company will make a notation on its transfer books to such effect;
and
(e) the
Company has made available to Purchaser all documents and information that
the
Purchaser has requested relating to an investment in the Company.
4.3 Brokers
and Finders.
The
Purchaser has not employed any broker or finder or incurred any liability for
any brokerage fees, commissions or finders' fees in connection with the Sale
or
the other transactions contemplated by this Agreement.
3
Article
5
Miscellaneous
5.1 Lock-Up.
Each of
the Purchasers hereby irrevocably agrees that until the second anniversary
of
the date of Closing, he she or it will not, without the prior written consent
of
the Company, directly or indirectly:
(a) Offer
for
sale, sell, pledge or otherwise dispose of (or enter into any transaction or
device that is designed to, or could be expected to, result in the disposition
by any person at any time in the future, of any of the Shares;
(b) Enter
into any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of the
Shares, or
(c) Publicly
disclose the intention to do any of the foregoing, for a period commencing
on
the date hereof and ending on the second anniversary of the date hereof.
5.2 Legend.
Each
certificate that represents Shares shall have conspicuously endorsed thereon
the
following legends:
THIS
STOCK HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THIS STOCK MAY NOT BE OFFERED
OR TRANSFERRED BY SALE, ASSIGNMENT, PLEDGE OR OTHERWISE UNLESS (A) A
REGISTRATION STATEMENT FOR THE STOCK UNDER THE SECURITIES ACT IS IN EFFECT
OR
(B) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, WHICH OPINION IS
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OR THE RELEVANT STATE SECURITIES
LAWS.
THIS
STOCK IS SUBJECT TO RESTRICTIONS ON RESALE PURSUANT TO THAT CERTAIN STOCK
PURCHASE AGREEMENT WITH THE COMPANY DATED AUGUST 8, 2008 AND MAY NOT BE OFFERED
OR TRANSFERRED BY SALE, ASSIGNMENT, PLEDGE OR OTHERWISE WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY.
5.3 Brokerage.
Each
party hereto will indemnify and hold harmless the other against and in respect
of any claim for brokerage or other commissions relative to this Agreement
or to
the transactions contemplated hereby, based in any way on agreements,
arrangements or understandings made or claimed to have been made by such party
with any third party.
5.4 Parties
in Interest.
All
representations, covenants and agreements contained in this Agreement by or
on
behalf of any of the parties hereto shall bind and inure to the benefit of
the
respective successors and assigns of the parties hereto whether so expressed
or
not.
4
5.5 Notices.
All
notices, requests, consents, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on
the
date of service if served personally on the party to whom notice is to be given,
on the date of transmittal of services via telecopy to the party to whom notice
is to be given (with a confirming copy delivered within 24 hours thereafter),
or
on the third day after mailing if mailed to the party to whom notice is to
be
given, by first class mail, registered or certified, postage prepaid, or
overnight mail via a nationally recognized courier providing a receipt for
delivery and properly addressed as follows:
| If to the Company: |
OPKO
Health, Inc.
|
0000
Xxxxxxxx Xxxx.
Xxxxx
0000
Xxxxx,
XX
00000
Attn:
Xxxx Xxxxx, Esq.
If
to any
of the Purchasers: To
the
address specified on the signature pages hereto.
Any
party
may change its address for purposes of this paragraph by giving notice of the
new address to each of the other parties in the manner set forth
above.
5.6 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Florida for all purposes and in all respects, without regard to the
conflict of law provisions of such state.
5.7 Entire
Agreement.
This
Agreement constitutes the sole and entire agreement of the parties with respect
to the subject matter hereof.
5.8 Counterparts.
This
Agreement may be executed in two or more counterparts (including facsimiles),
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
5.9 Amendments
and Waivers.
This
Agreement may be amended or modified, and provisions hereof may be waived,
only
with the written consent of the Company and the Purchasers.
5.10 Severability.
If any
provision of this Agreement shall be declared void or unenforceable by any
judicial or administrative authority, the validity of any other provision and
of
the entire Agreement shall not be affected thereby.
5.11 Titles
and Subtitles.
The
titles and subtitles used in this Agreement are for convenience only and are
not
to be considered in construing or interpreting any term or provision of this
Agreement.
5
NOW
THEREFORE, the Company and Purchasers have executed this Stock Purchase
Agreement as of the date first above written.
OPKO
HEALTH, INC.
By:
_________________________________
Name:
Title:
6
INVESTORS
Xxx
Gamma
Investment, L.P.
By:
_________________________________
Name:
Xxxx Xxxxx
Title:
General Partner
Address:
0000 Xxxxxxxx Xxxx. Xxxxx 0000, Xxxxx. XX 00000
7
ANNEX
A
|
Purchaser
|
Number
of Shares of Common Stock
|
Purchase
Price
|
|
Xxx
Gamma Investment, L.P.
|
1,801,800
|
$1,999,998.00
|
|
Total:
|
13,513,514
|
$15,000,000.54
|
8
