OPKO HEALTH, INC. - and - OTI HOLDINGS LIMITED - and -
-
and
-
OTI
HOLDINGS LIMITED
-
and
-
EACH
HOLDER OF EXCHANGEABLE SHARES
in
the
capital of OTI Holdings Limited
DATED:
November
28,
2007
TABLE
OF CONTENTS
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Page
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ARTICLE
1 DEFINITIONS AND INTERPRETATION
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4 | |
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1.1
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DEFINITIONS
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4
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1.2
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RULES
OF INTERPRETATION
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7
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1.3
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ENTIRE
AGREEMENT
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8
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ARTICLE
2 REPRESENTATIONS AND WARRANTIES OF OPKO
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8 | |
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2.1
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REPRESENTATIONS
AND WARRANTIES OF OPKO
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8
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ARTICLE
3 EXCHANGE RIGHT
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10 | |
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3.1
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GRANT
OF EXCHANGE RIGHT
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10
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3.2
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EXERCISE
OF EXCHANGE RIGHT
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10
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3.3
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DELIVERY
OF EXCHANGE RIGHT CONSIDERATION
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11
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3.4
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EFFECT
OF EXERCISE
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11 |
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3.5
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DEEMED
EXERCISE OF EXCHANGE RIGHT SUBSEQUENT TO RETRACTION
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12 |
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3.6
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NOTICE
OF INSOLVENCY EVENT
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12
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ARTICLE
4 AUTOMATIC EXCHANGE RIGHT
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12 | |
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4.1
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NOTICE
OF OPKO LIQUIDATION EVENT
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12
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4.2
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AUTOMATIC
EXCHANGE
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13
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4.3
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CERTIFICATES
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13
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ARTICLE
5 ECONOMIC EQUIVALENCE
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13
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5.1
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ECONOMIC
EQUIVALENCE - OPKO OBLIGATIONS
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13
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5.2
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ECONOMIC
EQUIVALENCE - THE CORPORATION OBLIGATIONS
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14
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5.3
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COVENANTS
REGARDING EXCHANGEABLE SHARES
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15
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5.4
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ADDITIONAL
OPKO COVENANTS
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16
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5.5
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DELIVERY
OF OPKO COMMON SHARES
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16
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5.6
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PROVISION
OF FUNDS
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17
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5.7
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OWNERSHIP
OF COMMON SHARES
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17
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5.8
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OPKO
AND AFFILIATES NOT TO VOTE EXCHANGEABLE SHARES
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17
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5.9
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GRANT
OF CALL RIGHTS
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18
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5.10
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NOTIFICATION
OF CERTAIN EVENTS
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18
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5.11
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QUALIFICATION
OF OPKO COMMON SHARES
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18
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5.12
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TENDER
OFFERS
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19
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ARTICLE
6 TAX MATTERS
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19 | |
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6.1
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RIGHT
TO WITHHOLD
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19
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6.2
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SECTION
116 CLEARANCE CERTIFICATE FOR NON-RESIDENT HOLDERS
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19
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6.3
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TRANSFER
TAXES
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21
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TABLE
OF CONTENTS
(continued)
Page
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ARTICLE
7 REGISTRATION
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21
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7.1
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PIGGYBACK
REGISTRATION.
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21
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7.2
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REGISTRATION
EXPENSES.
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22
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7.3
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OBLIGATIONS
OF OPKO.
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22
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7.4
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OBLIGATIONS
OF THE HOLDERS.
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25
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7.5
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TERMINATION
OF REGISTRATION RIGHTS.
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25
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7.6
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DISPOSITIONS.
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25
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7.7
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SEC
RULE144 REPORTING.
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25
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7.8
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INDEMNIFICATION
AND CONTRIBUTION.
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26
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ARTICLE
8 GENERAL
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29 | |
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8.1
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TRANSFER
AND ISSUANCE RESTRICTIONS
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29
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8.2
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LEGENDS
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29
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8.3
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SELLER
ACKNOWLEDGEMENTS AND AGREEMENTS
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30
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8.4
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COMPLIANCE
WITH OTHER INSTRUMENTS
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30
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8.5
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CHANGES
IN CAPITAL OF OPKO AND THE CORPORATION
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31
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8.6
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TERM
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31
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8.7
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ENUREMENT
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31
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8.8
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NOTICES
TO PARTIES
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31
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8.9
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NOTICE
TO HOLDERS
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32
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8.10
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AMENDMENT
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32
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8.11
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ASSIGNMENT
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32
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8.12
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FURTHER
ASSURANCES
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32
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8.13
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EXECUTION
AND DELIVERY
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33
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EXCHANGE
AND
SUPPORT AGREEMENT
THIS
AGREEMENT
is made
November
28,
2007
AMONG:
OPKO
HEALTH, INC. , a
corporation incorporated pursuant to the laws of Delaware
(“Opko”)
-
and
-
OTI
Holdings Limited,
a
corporation incorporated under the laws of the Province of Ontario,
(the
“Corporation”)
-
and
-
EACH
HOLDER OF EXCHANGEABLE SHARES
in the
capital of the Corporation listed in Schedule A to this Agreement, as amended
from time to time
(collectively,
the “Holders”).
WHEREAS:
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A.
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The
parties wish to set out their understanding with respect to certain
rights
and obligations in connection with the exchange of shares of the
Corporation for shares of Opko.
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B.
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Schedule
A shall be automatically amended by the Corporation to include each
additional investor that executes a counterpart instrument of accession
to
this Agreement in the form attached as Schedule
B.
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NOW
THEREFORE IN CONSIDERATION of
the
premises and the mutual covenants and agreements hereinafter contained and
for
other good and valuable consideration (the receipt and adequacy of which are
hereby acknowledged), the Parties agree as follows:
-3-
ARTICLE 1
DEFINITIONS
AND INTERPRETATION
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1.1
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Definitions
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Whenever
used in this Agreement, the following words and terms have the meanings set
out
below.
“Affiliate”
means,
with respect to any Person, (i) any other Person directly or indirectly
controlling, controlled by, or under common control with such Person, (ii)
any
Person owning or controlling ten percent or more of the outstanding voting
interests of such Person, (iii) any officer, director, or general partner of
such Person, (iv) any family member of such Person or any trust, family limited
partnership or other similar entity controlled by such Person or his or her
family members, or (v) any Person who is an officer, director, general partner,
trustee, or holder of ten percent or more of the voting interests of any Person
described in clauses (i) through (iv). For purposes of this definition, the
terms “controlling”,
“controlled
by,”
or
“under
common control with”
shall
mean the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Agreement”
means
this agreement, including all schedules, and all amendments or restatements
as
permitted, and references to “Article”,
“Section”
or
“Schedule”
mean
the specified Article, Section or Schedule of this Agreement.
“Articles”
means
the articles of incorporation of the Corporation, as amended by articles of
amendment filed on the date of this Agreement, and as may be amended or restated
from time to time.
“Automatic
Exchange Right”
means
the benefit associated with the obligation of Opko or any Permitted Subsidiary
that may be designated by Opko, to effect the automatic exchange of Exchangeable
Shares for Opko Common Shares pursuant to Section 4.2.
“Business
Day”
means
any day except a Saturday, Sunday or any day on which banks are generally not
open for business in either of the Cities of Toronto, Ontario and New York,
New
York.
“Common
Shares”
means
the common shares in the capital of the Corporation.
“Equity
Split”
and
“as
adjusted for Equity Splits”
have
the meanings given to them in the Exchangeable Share Provisions.
“Exchange
Right”
has
the
meaning given to it in Section 3.1.
“Exchange
Right Consideration”
means,
in respect of each Exchangeable Share:
-4-
| (a) | one Opko Common Share (as adjusted for Equity Splits); and |
|
(b)
|
an
amount equal to the Outstanding Dividend Amount on such Exchangeable
Share
on the date of exchange.
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“Exchangeable
Share Provisions”
means
the rights, privileges, restrictions and conditions attaching to the
Exchangeable Shares as set out in the Articles.
“Exchangeable
Shares”
means
the exchangeable shares in the capital of the Corporation.
“Opko
Common Shares”
means
the common shares in the capital of Opko and any other securities into which
such shares may be changed.
“Opko
Liquidation Event”
has
the
meaning given to it in Section 4.1.
“Opko
Liquidation Event Effective Date”
means
the effective date of a Opko Liquidation Event.
“Opko
Sale”
has
the
meaning given to it in the Exchangeable Share Provisions.
“GAAP”
means
United States generally accepted accounting principles in effect from time
to
time applied consistently.
“Holder”
means
a
registered holder of Exchangeable Shares, other than Opko and its
Affiliates.
“Insolvency
Event”
means
the institution by the Corporation of any proceeding to be adjudicated a
bankrupt or insolvent or to be dissolved or wound up, or the consent of the
Corporation to the institution of bankruptcy, insolvency, dissolution or winding
up proceedings against it, or the filing of a petition, answer or consent
seeking dissolution or winding up under any bankruptcy, insolvency or analogous
laws, including without limitation the Companies
Creditors’ Arrangement Act
(Canada)
and the Bankruptcy
and Insolvency Act
(Canada), and the failure by the Corporation to contest in good faith any such
proceedings commenced in respect of the Corporation within 15 days of becoming
aware thereof, or the consent by the Corporation to the filing of any such
petition or to the appointment of a receiver, or the making by the Corporation
of a general assignment for the benefit of creditors, or the admission in
writing by the Corporation of its inability to pay its debts generally as they
become due, or the Corporation not being permitted, pursuant to solvency
requirements of applicable law, to redeem any Retracted Shares pursuant to
Section 5.6 of the Exchangeable Share Provisions.
“Joint
Approval”
means
the prior approval of the Corporation and the prior approval of the Holders
given in accordance with Section 3.2of
the
Exchangeable Share Provisions.
“Law”
means
any federal, state, provincial, territorial, municipal, local or foreign
statute, law, by-law, ordinance, regulation, rule, code, order or rule of or
duty under common law, including any statute, law, by-law, ordinance,
regulation, rule, code, order or rule of or duty under common law in Canada,
the
United States, any province or territory of Canada or any state or territory
of
the United States.
-5-
“Liquidation
Call Right”
has
the
meaning given in the Exchangeable Share Provisions.
“Liquidation
Event”
has
the
meaning given in the Exchangeable Share Provisions.
“Outstanding
Dividend Amount”
has
the
meaning given in the Exchangeable Share Provisions.
“Parties”
means
the Corporation, Opko and the Holders; and “Party”
means
any one of them.
“Payer”
has the
meaning given to it in Section 6.1.
“Permitted
Subsidiary”
means
Ophthalmic Technologies Holdings Limited, or any Subsidiary of Opko designated
by Opko: (i) to exercise the Liquidation Call Right, Retraction Call Right
or
Redemption Call Right; or (ii) to be subject to the obligations of a Holder’s
Exchange Right.
“Person”
means
any individual, sole proprietorship, partnership, firm, entity, unincorporated
association, unincorporated syndicate, unincorporated organization, trust,
body
corporate, government, government regulatory authority, governmental department,
agency, commission, board, tribunal, dispute settlement panel or body, bureau
or
court, and where the context requires, any of the above when they are acting
as
trustee, executor, administrator or other legal representative.
“Redemption
Call Right”
has
the
meaning given in the Exchangeable Share Provisions.
“Redemption
Date”
has
the
meaning given in the Exchangeable Share Provisions.
“Registrable
Securities”
means
all of the OPKO Common Shares issued pursuant to this Agreement, together with
any securities issued or issuable pursuant to any stock split, dividend or
other
distribution, recapitalization, exchange or similar event with respect to the
foregoing.
“Retracted
Shares”
means
the Exchangeable Shares a Holder has required the Corporation to redeem under
the Exchangeable Share Provisions.
“Retraction
Call Right”
has
the
meaning given in the Exchangeable Share Provisions.
“Retraction
Request”
has
the
meaning given in the Exchangeable Share Provisions.
“Share
Purchase Agreement”
means
the share purchase agreement made as of the date hereof among ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, 1161983 Ontario Limited, ▇▇▇▇▇ Corporation Limited, ▇▇▇▇▇ ▇▇▇▇▇
and ▇▇▇▇▇▇ ▇▇▇▇▇, in Trust, Triple Net Properties Limited, the Corporation,
and
Opko
“Subsidiary”
of
any
Person means a Person Controlled by:
(a) such
first Person;
-6-
(b) such
first Person and one or more Persons each of which is Controlled by such first
Person; or
(c) two
or
more Persons each of which is Controlled by such first Person,
and
includes any indirect subsidiaries.
“Transfer”
includes any sale, transfer, exchange, assignment, gift, bequest, disposition,
mortgage, charge, pledge, encumbrance, grant of a security interest or other
arrangement by which possession, legal title or beneficial ownership passes
from
one Person to another, or to the same Person in a different capacity, whether
or
not voluntarily and whether or not for value, and any agreement to effect any
of
the above; but does not include the exchange or redemption of any Exchangeable
Shares or Opko Voting Shares under
the
terms of this Agreement, the Articles or the organizational documents of
Opko.
“U.S.
Securities Act”
means
the United
States Securities Act of 1933,
as
amended.
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1.2
|
Rules
of Interpretation
|
In
this
Agreement:
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(a)
|
Consent
-
Whenever a provision of this Agreement requires an approval or consent
and
such approval or consent is not delivered within the applicable time
limit, then, unless otherwise specified, the Party whose consent
or
approval is required will be conclusively deemed to have withheld
its
approval or consent.
|
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(b)
|
Currency
-
Unless otherwise specified, all references to money amounts are to
the
lawful currency of the United States of
America.
|
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(c)
|
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(d)
|
Headings
-
Headings of Articles and Sections are inserted for convenience of
reference only and do not affect the construction or interpretation
of
this Agreement.
|
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(e)
|
Including
-
Where the word “including” or “includes” is used in this Agreement, it
means “including (or includes) without
limitation”.
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(f)
|
Number
and Gender
-
Unless the context otherwise requires, words importing the singular
include the plural and vice versa and words importing gender include
all
genders.
|
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(g)
|
Severability
-
If, in any jurisdiction, any provision of this Agreement or its
application to any party or circumstance is restricted, prohibited
or
unenforceable, such provision will, as to such jurisdiction, be
ineffective only to the extent of such restriction, prohibition or
unenforceability without invalidating the remaining provisions of
this
Agreement and without affecting the validity or enforceability of
such
provision in any other jurisdiction or without affecting its application
to other Parties or circumstances.
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-7-
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(h)
|
Statutory
references
-
A reference to a statute includes all regulations made pursuant to
such
statute and, unless otherwise specified, the provisions of any statute
or
regulation that amends, supplements or supersedes any such statute
or any
such regulation.
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(i)
|
Time
-
Time is of the essence in the performance of the Parties’ respective
obligations.
|
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(j)
|
Time
Periods
-
Unless otherwise specified, time periods within or following which
any
payment is to be made or act is to be done are calculated by excluding
the
day on which the period commences and including the day on which
the
period ends and by extending the period to the next Business Day
if the
last day of the period is not a Business
Day.
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1.3
|
Entire
Agreement
|
This
Agreement together with the Exchangeable Share Provisions, constitutes the
entire agreement between the Parties and sets out all the covenants, promises,
warranties, representations, conditions, understandings and agreements between
the Parties pertaining to the subject matter of this Agreement and supersedes
all prior agreements, understandings, negotiations and discussions, whether
oral
or written. There are no covenants, promises, warranties, representations,
conditions, understandings or other agreements, oral or written, express,
implied or collateral between the Parties in connection with the subject matter
of this Agreement except as specifically set forth in this Agreement and the
Exchangeable Share Provisions.
ARTICLE 2
Representations
AND WARRANTIES of opko
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2.1
|
Representations
and warranties of Opko
|
Opko
represents and warrants to the Holders as set out in the following Subsections
of this Section and acknowledges that the Holders are relying upon such
representations and warranties in entering into this Agreement:
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(a)
|
Authorized
and Outstanding Capital
-
At October 25, 2007, the authorized capital stock of OPKO consisted
of
500,000,000 shares of common stock, $.01 par value per share, of
which as
of November 9, 2007 163,214,203 shares were issued or outstanding,
fully
paid and non-assessable, and 10,000,000 shares of preferred stock,
$.01
par value per share, of which 869,366 shares were issued or outstanding,
fully paid and non-assessable. OPKO’s common stock has been duly and
validly registered pursuant to Section 12(b) of the Exchange Act
which
registration is in full force and
effect.
|
-8-
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(b)
|
Incorporation
and Organization
-
OPKO is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all necessary
corporate power to own all of its property and assets, to incur all
of its
liabilities and to carry on its business as presently conducted.
|
|
(c)
|
Interest
in each Subsidiary
-
All shares of, or interests in, each of OPKO’s wholly-owned subsidiaries,
held directly or indirectly by Opko are owned free and clear of all
mortgages, liens, charges, pledges, security interests, encumbrances,
claims and demands whatsoever and no person has any right, agreement
or
option, present or future, contingent or absolute, or any right capable
of
becoming a right, agreement or option, for the issue or allotment
of any
unissued shares of each of OPKO’s wholly-owned subsidiaries or any other
security convertible into or exchangeable for any shares of each
of OPKO’s
wholly-owned subsidiaries or to require each of OPKO’s wholly-owned
subsidiaries to purchase, redeem or otherwise acquire any of its
issued
and outstanding shares.
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(d)
|
SEC
Filings
-
Except for the Current Report on form 8-K and certain financial statements
of Ophthalmic Technologies Inc. in connection with the initial investment
in Ophthalmic Technologies Inc., since March 27, 2007, OPKO has filed
all reports, documents and other information required of it to be
filed
with the SEC (the “OPKO
SEC Reports”).
The OPKO SEC Reports were prepared in accordance with the requirements
of
the Securities Act or the Exchange Act, as the case may be, and the
rules
and regulations of the SEC thereunder applicable to such OPKO SEC
Reports.
No disclosure included in any of the Parent SEC Reports included
any
statement that, when made or, if such Parent SEC Reports were subsequently
amended, when amended, contained an untrue statement of a material
fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances in which such statements were
made,
not materially misleading.
|
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(e)
|
Stock
Exchange Listing
-
The outstanding Common Shares of OPKO are listed for trading on the
American Stock Exchange, and Opko is, and at all times, has been
in
material compliance with the by-laws, rules and regulations of the
American Stock Exchange.
|
|
(f)
|
No
Material Changes
-
Since the date of the latest financial statements included within
a report
filed by OPKO with the Securities and Exchange Commission, and except
as
disclosed in OPKO’s reports filed with the SEC and other than this
transaction, there has not been any material change in the assets,
liabilities or obligations of Opko or any of OPKO’s wholly-owned
subsidiaries, and to OPKO’s knowledge, there has not been any material
adverse change in the business, operations or condition (financial
or
otherwise) or results of the operations of Opko or any of OPKO’s
wholly-owned subsidiaries.
|
-9-
ARTICLE 3
EXCHANGE
RIGHT
|
3.1
|
Grant
of Exchange Right
|
Opko
and
each Permitted Subsidiary grants to each Holder the right (the “Exchange
Right”)
to
require Opko or, as designated by Opko, a Permitted Subsidiary, to purchase
from
such Holder all or any part of the Exchangeable Shares held by such Holder
on
the terms set forth herein for the consideration described in
Section 3.3.
The
Exchange Right may be exercised at any time and from time to time upon the
occurrence and during the continuance of:
|
(a)
|
an
Insolvency Event;
|
|
(b)
|
the
failure of Opko or any Permitted Subsidiary to purchase all or any
part of
the Exchangeable Shares held by such Holder following exercise of
the
Liquidation Call Right as provided in the Exchangeable Share
Provisions;
|
|
(c)
|
subject
to Section 3.1(b),
the failure of the Corporation to redeem all the outstanding Exchangeable
Shares following a Liquidation Event as provided in the Exchangeable
Share
Provisions;
|
|
(d)
|
the
failure of Opko or any Permitted Subsidiary to purchase all or any
part of
the Exchangeable Shares held by such Holder following exercise of
the
Redemption Call Right as provided in the Exchangeable Share
Provisions;
|
|
(e)
|
subject
to Section 3.2(d),
the failure of the Corporation to redeem all the outstanding Exchangeable
Shares held by such Holder on the Redemption Date as provided in
the
Exchangeable Share Provisions;
|
|
(f)
|
the
failure of Opko or any Permitted Subsidiary to purchase all or any
part of
the Exchangeable Shares held by such Holder following exercise of
the
Retraction Call Right as provided in the Exchangeable Share Provisions;
or
|
|
(g)
|
subject
to Section 3.1(f),
the failure of the Corporation to redeem the Retracted Shares under
a
Retraction Request as provided in the Exchangeable Share Provisions.
|
|
3.2
|
Exercise
of Exchange Right
|
To
exercise the Exchange Right, the Holder must deliver to Opko, in person or
by
certified or registered mail, the certificates representing the Exchangeable
Shares to be exchanged, together with a written notice in the form set out
in
Schedule “C” hereto stating:
|
(a)
|
that
the Holder is exercising the Exchange
Right;
|
|
(b)
|
the
number of Exchangeable Shares in respect of which the Exchange Right
is
being exercised;
|
-10-
|
(c)
|
that
the Holder has good title to and owns all the Exchangeable Shares
free and
clear of all encumbrances, other than those stipulated under the
Share
Purchase Agreement or the Articles;
|
|
(d)
|
whether
the Holder is a non-resident of Canada for the purposes of the
Income
Tax Act
(Canada) (the “Tax Act”);
|
|
(e)
|
the
names in which the new certificates representing the Opko Common
Shares
are to be issued; and
|
|
(f)
|
the
name and address of the Person to whom such new certificates are
to be
delivered.
|
If
only a
part of the Exchangeable Shares represented by any certificate or certificates
delivered to Opko are to be purchased by Opko or, as applicable, a Permitted
Subsidiary under the Exchange Right, a new certificate for the balance of such
Exchangeable Shares shall be issued to the Holder at the expense of the
Corporation.
|
3.3
|
Delivery
of Exchange Right
Consideration
|
Opko
or a
Permitted Subsidiary, as the case may be, will, as soon as reasonably practical
and, in any event, no later than five Business Days following receipt of the
notice of exercise of the Exchange Right and the certificates representing
the
Exchangeable Shares to be exchanged, deliver or cause to be delivered to the
Holder (or any other Persons properly designated by the Holder) the Exchange
Right Consideration for each Exchangeable Share in respect of which the Exchange
Right is exercised (i.e., certificates representing the Opko Common Shares
constituting the Exchange Right Consideration (which Opko Common Shares are
to
be duly issued as fully paid and non-assessable and free and clear of any lien,
claim, encumbrance, security interest or adverse claim) and a cheque of Opko
or,
as applicable, a Permitted Subsidiary, payable at par at any branch of the
bankers of the Corporation totalling the Outstanding Dividend
Amount).
|
3.4
|
Effect
of Exercise
|
Immediately
upon receipt by Opko of the notice of the exercise of the Exchange Right and
the
certificates representing the Exchangeable Shares to be exchanged, the exchange
is deemed to have occurred, the Holder is deemed to be the holder of the Opko
Common Shares comprising the Exchange Right Consideration and the Holder of
such
Exchangeable Shares shall be deemed to have transferred to Opko or, as
applicable, a Permitted Subsidiary all of its interest in such Exchangeable
Shares and shall cease to be a holder of such Exchangeable Shares and shall
not
be entitled to exercise any of the rights of a holder in respect thereof, other
than the right to receive its proportionate part of the total purchase price
therefor, unless such Exchange Right Consideration is not delivered to the
Holder (or to such other Persons, if any, properly designated by such Holder),
within three Business Days of the date of the giving of such notice by the
Holder, in which case the rights of the Holder shall remain unaffected until
such Exchange Right Consideration is so delivered to the Holder. Concurrently
with such Holder ceasing to be a holder of Exchangeable Shares, the Holder
shall
be considered and deemed for all purposes to be the holder of the Opko Common
Shares delivered to it pursuant to the Exchange Right.
-11-
|
3.5
|
Deemed
Exercise of Exchange Right Subsequent to
Retraction
|
If
a
Holder requires that the Corporation redeem the Holder’s Retracted Shares and is
notified by the Corporation that the Corporation is not permitted, as a result
of solvency requirements or other provisions of applicable Law, to redeem all
such Retracted Shares, then, if the Retraction Call Right has not been exercised
with respect to such Retracted Shares and the Holder has not revoked the
Retraction Request in accordance with the Exchangeable Share Provisions, the
Retraction Request will constitute the exercise of the Exchange Right with
respect to those Retracted Shares that the Corporation is unable to redeem.
In
any such event, the Corporation will immediately notify Opko (with a copy to
the
Holder) of the prohibition against the Corporation redeeming all of the
Retracted Shares and of the exercise of the Exchange Right (which notice will
constitute the notice of exercise of the Exchange Right for purposes of Section
3.2)
and
forward or cause to be forwarded to Opko all relevant materials delivered by
the
Holder to the Corporation (including without limitation a copy of the Retraction
Request in connection with such proposed redemption of the Retracted Shares)
and
Opko or such Permitted Subsidiary as may be designated by Opko , will thereupon
purchase the Retracted Shares that the Corporation is not permitted to redeem
in
accordance with the provisions of this Article 2.
|
3.6
|
Notice
of Insolvency Event
|
Immediately
upon the occurrence of an Insolvency Event or any event which with the giving
of
notice or the passage of time or both would be an Insolvency Event, each of
the
Corporation and Opko shall give written notice thereof to the Holders. As soon
as practicable after receiving notice from the Corporation, Opko or from any
other Person of the occurrence of an Insolvency Event, the Corporation will
mail
to each Holder, at the expense of the Corporation, a notice of such Insolvency
Event, which notice shall contain a brief statement of the right of the Holders
with respect to the Exchange Right.
ARTICLE 4
AUTOMATIC
EXCHANGE RIGHT
|
4.1
|
Notice
of Opko Liquidation Event
|
|
(a)
|
Opko
will give the Holders notice of each of the following events at the
time
set forth below:
|
|
(i)
|
in
the event of any determination by Opko to institute voluntary liquidation,
dissolution or winding-up proceedings with respect to Opko or to
effect
any other distribution of assets of Opko among its shareholders for
the
purpose of winding up its affairs, at least 60 days prior to the
proposed
effective date of such liquidation, dissolution, winding-up or other
distribution; and
|
|
(ii)
|
immediately,
upon the earlier of (A) receipt by Opko of notice of and (B) Opko
otherwise becoming aware of any threatened or instituted claim, suit,
petition or other proceedings with respect to the involuntary liquidation,
dissolution or winding up of Opko or to effect any other distribution
of
assets of Opko among its shareholders for the purpose of winding
up its
affairs.
|
-12-
|
(b)
|
Notice
of any event (an "Opko
Liquidation Event")
contemplated by Section 4.1(a)(i)
or
4.1(a)(ii)
above shall include a brief description of the automatic exchange
of
Exchangeable Shares for Opko Common Shares provided for in Section
4.2
below.
|
|
4.2
|
Automatic
Exchange
|
On
the
fifth Business Day prior to the Opko Liquidation Event Effective Date, all
of
the then outstanding Exchangeable Shares held by the Holders shall be
automatically exchanged with Opko or such Permitted Subsidiary as may be
designated by Opko, for the Exchange Right Consideration. To effect such
automatic exchange, effective the fifth Business Day prior to the Opko
Liquidation Event Effective Date:
|
(a)
|
Opko
or such Permitted Subsidiary, as applicable, will deliver or cause
to be
delivered to each Holder the Exchange Right Consideration for each
Exchangeable Share held by the
Holder;
|
|
(b)
|
each
Holder will be deemed to have transferred to Opko or such Permitted
Subsidiary, as applicable, all of the Holder’s interest in the
Exchangeable Shares (which shall be free and clear of all liens and
encumbrances, other than those stipulated under the Share Purchase
Agreement, or the Articles) and will cease to be a Holder of those
Exchangeable Shares;
|
|
(c)
|
the
Holder will be deemed to be the holder of the Opko Common Shares
delivered
to it; and
|
|
(d)
|
the
certificates held by the Holder previously representing the Exchangeable
Shares will be deemed to represent the Opko Common Shares and other
Exchange Right Consideration delivered to the Holder.
|
|
4.3
|
Certificates
|
Upon
the
request of a Holder and the surrender by the Holder of Exchangeable Share
certificates deemed to represent Opko Common Shares as provided in Section
4.2,
Opko or
the applicable Permitted Subsidiary, as the case may be, will deliver to the
Holder certificates issued by Opko representing the Opko Common
Shares.
ARTICLE 5
ECONOMIC
EQUIVALENCE
|
5.1
|
Economic
Equivalence - Opko
Obligations
|
Opko
will
not, without Joint Approval:
-13-
|
(a)
|
declare
or pay or make any distribution (other than a distribution consisting
of
an issuance referred to in Section 5.1(b))
on the Opko Common Shares unless the Corporation forthwith declares,
pays
or makes, as the case may be, the same per share dividend or distribution
on the Exchangeable Shares as provided in Section 4.1
of
the Exchangeable Share Provisions;
|
|
(b)
|
issue
or distribute to all of the Holders of the then outstanding Opko
Common
Shares in respect of the Opko Common Shares held by such
holders:
|
|
(i)
|
Opko
Common Shares (or securities exchangeable for or convertible into
or
carrying rights to acquire Opko Common Shares) by way of a share
distribution or other distribution;
or
|
|
(ii)
|
rights,
options or warrants entitling them to subscribe for or to purchase
Opko
Common Shares (or securities exchangeable for or convertible into
or
carrying rights to acquire Opko Common
Shares),
|
unless
the economic equivalent on a per share basis of such rights, options, securities
or shares, is issued or distributed forthwith by the Corporation to Holders
(as
determined in good faith by the board of directors of the Corporation);
or
|
(c)
|
effect:
|
|
(i)
|
a
subdivision or change of the then outstanding Opko into a greater
number
of Opko Common Shares;
|
|
(ii)
|
a
reduction, combination, consolidation or change of the then outstanding
Opko Common Shares into a lesser number of Opko Common
Shares;
|
|
(iii)
|
a
reclassification or other change of the Opko Common Shares;
or
|
|
(iv)
|
an
amalgamation, merger, reorganization or other transaction affecting
the
Opko Common Shares, other than in the event of an Opko Sale pursuant
to
which a Redemption right is exercised,
|
unless
the same or an economically equivalent change is forthwith made by the
Corporation to the Exchangeable Shares, or to the rights of the Holders (if
any
such change is necessary to retain economic equivalence), as determined in
good
faith by the board of directors of the Corporation.
|
5.2
|
Economic
Equivalence - the Corporation
Obligations
|
The
Corporation will not, without Joint Approval:
|
(a)
|
declare
or pay any dividend or make any other distribution (other than a
dividend
or distribution consisting of an issuance referred to in Section
5.2(b))
on the Exchangeable Shares unless Opko forthwith declares, pays or
makes,
as the case may be, the same per unit distribution on the Opko Common
Shares;
|
-14-
|
(b)
|
issue
to all of the Holders in respect of the Exchangeable Shares held
by such
Holders:
|
|
(i)
|
Exchangeable
Shares (or securities exchangeable for or convertible into or carrying
rights to acquire Exchangeable Shares) by way of stock dividend or
other
distribution; or
|
|
(ii)
|
rights,
options or warrants entitling them to subscribe for or to purchase
Exchangeable Shares (or securities exchangeable for or convertible
into or
carrying rights to acquire Exchangeable
Shares),
|
unless
the economic equivalent on a per unit basis of such rights, options, or in
the
rights of the holders of, securities or shares, is issued or distributed
forthwith by the Corporation to holders of Opko Common Shares (as determined
in
good faith by Opko ); or
|
(c)
|
effect:
|
|
(iii)
|
a
subdivision or change of the then outstanding Exchangeable Shares
into a
greater number of Exchangeable
Shares;
|
|
(iv)
|
a
reduction, combination, consolidation or change of the then outstanding
Exchangeable Shares into a lesser number of Exchangeable
Shares;
|
|
(v)
|
a
reclassification or other change of the Exchangeable Shares;
or
|
|
(vi)
|
an
amalgamation, merger, reorganization or other transaction affecting
the
Exchangeable Shares, other than in the event of an Opko Sale pursuant
to
which a Redemption right is
exercised,
|
unless
the same or an economically equivalent change is forthwith made to the Opko
Common Shares (if any such change is required to retain economic equivalence),
as determined in good faith by Opko .
|
5.3
|
Covenants
Regarding Exchangeable
Shares
|
Opko
and
the Corporation will:
|
(a)
|
ensure
that the declaration date, record date and payment date for a dividend
on
the Exchangeable Shares will be the same as the declaration date,
record
date and payment date for the corresponding dividend on Opko Common
Shares;
|
|
(b)
|
advise
each Holder sufficiently in advance of any Company Sale or Liquidation
Event to allow each Holder to exercise its rights of retraction pursuant
to the Exchangeable Share Provisions to receive Opko Common Shares
immediately prior to any such event or date;
|
-15-
|
(c)
|
duly
and timely perform all of their respective obligations, and take
all
actions and do all things as are necessary or desirable to enable
and
permit each other to perform their respective obligations, under
the
Exchangeable Share Provisions; and
|
|
(d)
|
ensure
that any redemption of Exchangeable Shares of a Holder in connection
with
a Company Sale, if requested by such Holder, shall be effective only
upon,
and will be conditional upon, the closing of the Company Sale.
|
|
5.4
|
Additional
Opko Covenants
|
Opko
will:
|
(a)
|
not
exercise its vote as a shareholder of the Corporation, nor allow
any
direct or indirect Subsidiary to exercise its own vote as a shareholder
of
the Corporation, to initiate the voluntary liquidation, dissolution
or
winding-up of the Corporation nor take any action or omit to take
any
action that is designed to result in the liquidation, dissolution
or
winding-up of the Corporation, other than in circumstances where
such vote
is necessary in order to enable the Corporation to fulfill its obligations
under this Agreement or pursuant to the Exchangeable Share Provisions;
and
|
|
(b)
|
take
all such commercially reasonable actions and do all such commercially
reasonable things as are necessary or desirable to enable and permit
Opko,
the Corporation, or a Permitted Subsidiary, as applicable, in accordance
with applicable law, to perform its obligations arising upon the
exercise
by it of the Liquidation Call Right, the Retraction Call Right or
the
Redemption Call Right, including without limitation all such actions
and
all such things as are necessary or desirable to enable and permit
Opko,
the Corporation, or a Permitted Subsidiary, as applicable, to cause
to be
delivered Opko Common Shares to the holders of Exchangeable Shares
in
accordance with the provisions of the Liquidation Call Right, the
Retraction Call Right or the Redemption Call Right, as the case may
be.
|
|
5.5
|
Delivery
of Opko Common Shares
|
Upon
notice from a Holder, the Corporation or a Permitted Subsidiary of any event
that requires the Corporation or such Permitted Subsidiary to deliver Opko
Common Shares to any Holder of Exchangeable Shares, Opko will, within five
(5)
Business Days, or upon the automatic exchange of Opko Common Shares for
Exchangeable Shares pursuant to Section 4.2,
Opko
will on the fifth Business Day prior to the Opko Liquidation Event Effective
Date, issue and deliver or cause the delivery of the requisite number of Opko
Common Shares Holder or to the former Holder of the surrendered Exchangeable
Shares, as the Corporation or such Permitted Subsidiary directs. All such Opko
Common Shares will be, when issued and delivered, duly issued, fully paid and
non-assessable, and will be free and clear of any lien, claim, encumbrance,
security interest or adverse claim (other than resale restrictions arising
under
applicable securities Laws.)
-16-
|
5.6
|
Provision
of Funds
|
Opko
shall provide, or cause the provision of, the Corporation and each Permitted
Subsidiary with sufficient funds, assets or other property as and when necessary
to enable the Corporation and each such Permitted Subsidiary to pay or otherwise
satisfy its obligations under the Exchangeable Share Provisions and this
Agreement, including without limitation, the payment of dividends by the
Corporation and any and all obligations arising under the exercise by a
Permitted Subsidiary of the Liquidation Call Right, the Retraction Call Right,
the Redemption Call Right or under Articles 2 and 3 hereof.
|
5.7
|
Ownership
of Common Shares
|
Opko,
or
one of its wholly-owned Subsidiaries, will be and will remain the direct or
indirect beneficial owner of all issued and outstanding voting shares in the
capital of the Corporation (including without limitation, the Common Shares),
except: (i) any change in ownership in connection with a transaction that
constitutes a Company Sale; or (ii) with Joint Approval and the prior written
approval of Opko.
|
5.8
|
Opko
and Affiliates Not to Vote Exchangeable
Shares
|
|
(a)
|
Subject
to Section 5.4,
Section 5.8(b)
and Section 5.8(c),
Opko will appoint and cause to be appointed proxyholders with respect
to
all Exchangeable Shares from time to time held by it and its Affiliates
for the sole purpose of attending each meeting of Holders in order
to be
counted as part of the quorum for each
meeting.
|
|
(b)
|
Opko
will not, and will cause its Affiliates not to, exercise any voting
rights
that may be exercisable by holders of the Exchangeable Shares from
time to
time in respect of any matter considered at any meeting of Holders
of
Exchangeable Shares.
|
|
(c)
|
Where
Holders (excluding Opko and its Affiliates) of more than two-thirds
of the
Exchangeable Shares approve the adding to or changing of restrictions
or
conditions, or the removing or changing of rights or privileges,
attaching
to the Exchangeable Shares, and such Holders of the Exchangeable
Shares do
not hold a sufficient number of Exchangeable Shares to cause such
action
to be approved by written consent of such Holders (as prescribed
by
applicable Law), Opko will, if it is a holder of Exchangeable Shares,
and
will cause its Affiliates who are holders of Exchangeable Shares,
to
execute any resolutions in writing which are executed by such other
Holders or to exercise its votes in the same manner as exercised
by the
Holders of more than two-thirds of the Exchangeable Shares (excluding
Opko
and its affiliates).
|
-17-
|
5.9
|
Grant
of Call Rights
|
The
Corporation and each Holder grants to Opko and each Permitted Subsidiary, the
Liquidation Call Right, the Redemption Call Right and the Retraction Call
Right.
|
5.10
|
Notification
of Certain Events
|
In
order
to assist Opko to comply with its obligations hereunder, the Corporation will
give Opko notice of each of the following events set forth below:
|
(a)
|
in
the event of any determination by the board of directors of the
Corporation to institute voluntary liquidation, dissolution or winding
up
proceedings with respect to the Corporation or to effect any other
distribution of the assets of the Corporation among its shareholders
for
the purpose of winding up its affairs, at least 60 days prior to
the
proposed effective date of such liquidation, dissolution, winding
up or
other distribution;
|
|
(b)
|
immediately,
upon the earlier of (i) receipt by the Corporation of notice of,
and (ii)
the Corporation otherwise becoming aware of, any threatened or instituted
claim, suit, petition or other proceedings with respect to the involuntary
liquidation, dissolution or winding up of the Corporation or to effect
any
other distribution of the assets of the Corporation among its shareholders
for the purpose of winding up its
affairs;
|
|
(c)
|
immediately,
upon receipt by the Corporation of a Retraction Request;
and
|
|
(d)
|
as
soon as practicable upon the issuance by the Corporation of any
Exchangeable Shares or rights to acquire Exchangeable
Shares.
|
|
5.11
|
Qualification
of Opko Common Shares
|
If
any
Opko Common Shares (or other shares or securities into which Opko Common Shares
may be reclassified or changed) to be issued and delivered hereunder or pursuant
to the Exchangeable Share Provisions require registration or qualification
with
or approval of or the filing of any document, including any prospectus or
similar document, with or the taking of any proceeding with or the obtaining
of
any order, ruling or consent from, any governmental or regulatory authority
under any Canadian or United States federal, provincial or state securities
or
other law or regulation or pursuant to the rules and regulations of any
securities or other regulatory authority or the fulfillment of any other United
States or Canadian legal requirement before such shares (or such other shares
or
securities) may be issued by Opko and delivered by Opko at the direction of
a
Permitted Subsidiary or the Corporation, if applicable, to the holders of
surrendered Exchangeable Shares, Opko will in good faith and expeditiously
take
all such commercially reasonable actions and do all such commercially reasonable
things as are necessary or desirable to cause such Opko Common Shares (or such
other shares or securities) to be and remain duly registered, qualified or
approved under United States and/or Canadian law, as the case may
be.
-18-
|
5.12
|
Tender
Offers
|
In
the
event that a tender offer, share exchange offer, issuer bid, take-over bid
or
similar transaction with respect to Opko Common Shares (an "Offer") is proposed
by Opko or otherwise occurs and the Exchangeable Shares are not purchased by
a
Permitted Subsidiary pursuant to the Redemption Call Right, Opko will use
commercially reasonable efforts and expeditiously and in good faith to take
all
such commercially reasonable actions and do all such things as are necessary
or
desirable to enable and permit the Holders (other than Opko and its Affiliates)
to participate in such Offer to the same extent and on an economically
equivalent basis as the holders of Opko Common Shares, without discrimination.
Without limiting the generality of the foregoing, Opko will use commercially
reasonable efforts and expeditiously and in good faith to ensure that Holders
may participate in all such Offers without being required to retract
Exchangeable Shares as against the Corporation.
ARTICLE 6
TAX
MATTERS
|
6.1
|
Right
to Withhold
|
The
Corporation, Opko and each Permitted Subsidiary (each, as the case may be,
a
“Payer”)
may
deduct and withhold from any amount otherwise payable to any Holder such amounts
as the Payer is required to deduct and withhold with respect to such payment
under the
Tax
Act,
the
United
States Internal Revenue Code of 1986
or any
provision of provincial, state, territorial, municipal, local or foreign tax
Law, in each case as amended or succeeded. To the extent that amounts are so
withheld, such withheld amounts are to be treated for all purposes as having
been paid to the Holder of the shares or shares in respect of which such
deduction and withholding was made, provided that such withheld amounts are
actually remitted to the appropriate taxing authority. To the extent that the
amount so required or permitted to be deducted or withheld from any payment
to a
Holder exceeds the cash portion of the amounts otherwise payable to the Holder,
the Holder will be notified in writing thereof by the Payer, and the Holder
must
pay the difference (up to the amount required to be withheld by the Payer)
in
cash to the Payer; failing payment of such difference within five Business
Days
after notice is provided to the Holder, the Payer is hereby authorized to sell
or otherwise dispose of such portion of the amounts otherwise payable to the
Holder as is necessary to provide sufficient funds to the Payer to enable it
to
comply with such deduction or withholding requirement, and the Payer will notify
the Holder thereof and remit to such Holder any unapplied balance of the net
proceeds of such sale. The Payer shall endeavour in good faith to maximize
the
proceeds realized from any such sale or disposition of the
consideration.
|
6.2
|
Section
116 Clearance Certificate for Non-Resident
Holders
|
|
(a)
|
Each
Holder that is a non-resident of Canada for purposes of the Tax Act
(a
“Non-resident
Holder”)
and to whom the Exchangeable Shares are “taxable Canadian property” and
not “excluded property” for purposes of the Tax Act must, prior to a
disposition of such shares to the Corporation, Opko or any Permitted
Subsidiary as may be designated by Opko, deliver to the Payer an
amount in
Canadian dollars equal to 25% of the fair market value of the Exchangeable
Shares to be disposed of, as determined on the date of disposition
(the
“Up-front
Amount”).
The Up-front Amount shall be released by the Payer or remitted to
the
Canada Revenue Agency (the “CRA”)
as set forth below.
|
-19-
|
(b)
|
If
the Up-front Amount has not been delivered to the Payer on, or prior
to,
the date of disposition of the Exchangeable Shares (the “Effective
Date”),
the Non-resident Holder must, prior to a disposition of such shares
to the
Corporation, Opko or any Permitted Subsidiary as may be designated
by
Opko, deliver a section 116 clearance certificate (a “Clearance
Certificate”)
to the Payer.
|
|
(c)
|
If
a Clearance Certificate having a certificate limit as
defined in subsection 2 of Section 116 of the Tax Act (the “Certificate
Limit”)
at least equal to the fair market value for the Exchangeable Shares
being
disposed of has not been delivered to the Payer on or prior to the
Effective Date, the Payer shall withhold 50%
of
the proceeds of disposition otherwise deliverable to the Non-resident
Holder. If a Clearance Certificate has been delivered to the Payer
on or
before the Effective Date and the Certificate Limit is less than
the 50%
of the fair market value of the Exchangeable Shares being disposed
of, the
Payer shall withhold 50% of the amount by which the proceeds of
disposition otherwise payable to the Non-resident Holder exceeds
the
Certificate Limit. Any
amount so withheld (the “Withheld
Amount”)
shall be released by the Payer or remitted to the Canada Revenue
Agency
(the “CRA”)
as set forth below.
|
|
(d)
|
If
on or before the 27th day of the month following the calendar month
which
includes the Effective Date (the “Remittance
Date”),
the Payer receives from the Non-resident Holder a Clearance Certificate
with a Certificate Limit at
least equal to the fair market value of the Exchangeable Shares disposed
of, the Payer shall, promptly after receipt of such Clearance Certificate,
deliver to the Non-resident Holder the Withheld Amount or the Up-front
Amount, as may be applicable, plus any interest earned thereon (less
any
applicable withholding taxes).
|
|
(e)
|
If
on or before the Remittance Date, the Payer does not receive from
the
Non-resident Holder a Clearance Certificate, or receives a Clearance
Certificate with a Certificate Limit that is less than the fair market
value of the Exchangeable Shares being disposed of, then, unless
the CRA
has issued a letter confirming that the CRA will not enforce the
remittance of funds as is normally required under subsection 116(5)
of the
Tax Act and that the Payer will not be charged interest or penalties
if it
delays the remittance of amounts in respect of the disposition of
the
Exchangeable Shares until further instructed by the CRA (a “Comfort
Letter”),
the Payer shall remit to the Receiver General for Canada (the
“Receiver
General”)
from the Withheld Amount or the Up-front Amount, as may be applicable,
an
amount equal to 25% of the fair market value of the Exchangeable
Shares
disposed of (or, if a Clearance Certificate is received but with
a
Certificate Limit less than the fair market value of the Exchangeable
Shares disposed of, an amount equal to 25% of the difference between
the
fair market value of the Exchangeable Shares disposed of and the
Certificate Limit) and shall remit to the Non-resident Holder such
portion
of the Withheld Amount or the Up-front Amount, as may be applicable,
not
required to be remitted to CRA (if any), together with any interest
earned
thereon (less applicable withholding taxes).
|
-20-
|
(f)
|
If
the CRA has issued a Comfort Letter, the Payer shall not make any
remittance to the Receiver General on the date that would otherwise
be the
Remittance Date and if a Clearance Certificate is subsequently received
while the Comfort Letter remains in effect, with a Certificate Limit
at
least equal to the fair market value of the Exchangeable Shares being
disposed of, the Payer shall, promptly after receipt of such certificate,
remit to the Non-resident Holder the Withheld Amount or the Up-front
Amount, as may be applicable, together with any interest earned thereon,
less any applicable withholding taxes. If notification from the CRA
is
received that the Comfort Letter is no longer in effect, the date
of
receipt of such notification shall be deemed to be the Remittance
Date for
the purposes of this section.
|
|
(g)
|
Any
amount that the Payer withholds from the proceeds of disposition
otherwise
payable to the Non-resident Holder pursuant to the provisions hereof
shall
be treated as having been paid to the Non-resident Holder on account
of
the proceeds of disposition on the date of
disposition.
|
|
6.3
|
Transfer
Taxes
|
Each
Holder will pay any documentary, stamp, transfer or other similar taxes that
may
be payable in respect of any Transfer involved in the issuance or delivery
of
Opko Common Shares.
ARTICLE 7
REGISTRATION
|
7.1
|
Piggyback
Registration.
|
|
(a)
|
Beginning
on the date of this Agreement, OPKO will notify all Holders of Registrable
Securities in writing at least 10 days prior to the filing of any
registration statement under the Securities Act for purposes of a
public
offering of OPKO Common Shares by OPKO (including, but not limited
to,
registration statements relating to secondary offerings of OPKO Common
Shares, but excluding registration statements relating to employee
benefit
plans or with respect to corporate reorganizations or other transactions
under SEC Rule 145) and will afford each such Holder an opportunity
to
include in such registration statement up to 100% of such Registrable
Securities held by such Holder, subject to Section 7.1(b).
Each Holder desiring to include in any such registration statement
part of
the Registrable Securities held by it will, within 5 days after the
above-described notice from OPKO (the “Holder Notice Period”), so notify
OPKO in writing. Such notice will state the intended method of disposition
of the Registrable Securities by such Holder as well as the number
of
Registrable Securities proposed by such Holder to be included in
such
registration statement.
|
-21-
|
(b)
|
If
the registration statement under which OPKO gives notice under this
Section 7.1(b)
is
for an underwritten offering, OPKO will so advise the Holders of
Registrable Securities as a part of such notice. In such event, the
right
of any Holder to be included in a registration pursuant to this
Section 7.1(b)
will be conditioned upon such Holder’s participation in such underwriting
and the inclusion of such Holder’s Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing
to
distribute their Registrable Securities through such underwriting
will
enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting by OPKO.
Notwithstanding any other provision of this
Section 7.1(b),
if
the underwriter determines that marketing factors require a limitation
of
the number of shares to be underwritten, the number of shares that
may be
included in the underwriting will be allocated first to OPKO.
|
|
(c)
|
OPKO
will have the right to terminate or withdraw any registration initiated
by
it under this Section 7.1
prior to the effectiveness of such registration whether or not any
Holder
has elected to include securities in such registration.
|
|
7.2
|
Registration
Expenses.
|
OPKO
shall pay all fees and expenses incident to the performance of or compliance
with this ARTICLE 7including
without limitation: (a) all registration and filing fees and expenses,
including without limitation those related to filings with the SEC, and in
connection with applicable state securities or Blue Sky Laws, (b) printing
expenses (including without limitation expenses of printing certificates for
Registrable Securities), (c) messenger, telephone and delivery expenses,
(d) fees and disbursements of counsel for OPKO, (e) fees and expenses
of all other Persons retained by OPKO in connection with a registration
statement and (f) all listing fees to be paid by OPKO. Holders shall pay
all fees and disbursements of counsel retained for Holders in connection with
a
registration statement as well as all underwriter discounts associated with
any
public offering conducted on such Holder’s behalf.
|
7.3
|
Obligations
of OPKO.
|
Whenever
required to effect the registration of any Registrable Securities, OPKO will,
as
soon as practicable:
|
(a)
|
prepare
and file with the SEC a registration statement with respect to such
Registrable Securities and use its reasonable efforts to cause such
registration statement to become effective and keep such registration
statement effective for at least 180 days or, if earlier, until
(i) the participating Holder or Holders have completed the
distribution related thereto or (ii) the Registrable Securities are
no longer required to be
registered;
|
|
(b)
|
prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities
covered
by such registration statement;
|
-22-
|
(c)
|
in
the event of any underwritten public offering, enter into and perform
its
obligations under an underwriting agreement, in usual and customary
form,
with the managing underwriter or underwriters of such offering. Each
Holder participating in such underwriting will also enter into and
perform
its obligations under such an agreement;
|
|
(d)
|
promptly
notify each Holder of Registrable Securities covered by such registration
statement at any time when a prospectus relating thereto is required
to be
delivered under the Securities Act upon learning of the happening
of any
event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state a material fact required to be stated therein
or
necessary to make the statements therein not misleading and, at the
request of the Holders, OPKO shall prepare a supplement or amendment
to
such prospectus so that, as thereafter delivered to the purchasers
of such
Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any fact necessary
to make
the statements therein not misleading in the light of the circumstances
then existing;
|
|
(e)
|
furnish
to each Holder and to each underwriter such number of copies of the
registration statement and the prospectus included therein (including
each
preliminary prospectus) as such Persons reasonably may request in
order to
facilitate the intended disposition of the Registrable Securities
covered
by such registration statement;
|
|
(f)
|
use
its best efforts (i) to
register or qualify the Registrable Securities covered by such
registration statement under the securities or “blue sky” laws of such
jurisdictions as the sellers of Registrable Securities or, in the
case of
an underwritten public offering, the managing underwriter reasonably
shall
request, (ii) to
prepare and file in those jurisdictions such amendments (including
post
effective amendments) and supplements, and take such other actions,
as may
be necessary to maintain such registration and qualification in effect
at
all times for the period of distribution contemplated thereby and
(iii) to
take such further action as may be necessary or advisable to enable
the
disposition of the Registrable Securities in such jurisdictions,
provided,
that OPKO shall not for any such purpose be required to qualify generally
to transact business as a foreign corporation in any jurisdiction
where it
is not so qualified or to consent to general service of process in
any
such jurisdiction;
|
|
(g)
|
permit
a single firm of counsel designated as selling stockholders' counsel
by
the Holders to review the registration statement and all amendments
and
supplements thereto for a reasonable period of time prior to their
filing.
|
|
(h)
|
if
such registration involves an underwritten offering, furnish a legal
opinion of the Corporation’s counsel, dated the date of the closing under
the underwriting agreement, with respect to the registration statement,
each amendment and supplement thereto, the prospectus included therein
(including the preliminary prospectus) and other documents relating
thereto, in customary form and covering such matters as are customarily
covered by legal opinions of issuers’ counsel in such public
offerings.
|
-23-
|
(i)
|
if
such registration involves an underwritten offering, furnish a legal
opinion of the Corporation’s counsel, dated the date of the closing under
the underwriting agreement, with respect to the registration statement,
each amendment and supplement thereto, the prospectus included therein
(including the preliminary prospectus) and other documents relating
thereto, in customary form and covering such matters as are customarily
covered by legal opinions of issuers’ counsel in such public
offerings
|
|
(j)
|
make
available for inspection by each seller of Registrable Securities,
any
underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all relevant financial and
other
records, pertinent corporate documents and properties of OPKO, and
cause
OPKO's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant
or agent in connection with such registration statement;
|
|
(k)
|
provide
a transfer agent and registrar, which may be a single entity for
the
Registrable Securities not later than the effective date of the
Registration Statement;
|
|
(l)
|
take
all actions reasonably necessary to facilitate the timely preparation
and
delivery of certificates (not bearing any legend restricting the
sale or
transfer of such securities) representing the Registrable Securities
to be
sold pursuant to the Registration Statement and to enable such
certificates to be in such denominations and registered in such names
as
the Sellers or any underwriters may reasonably
request;
|
|
(m)
|
take
all other reasonable actions necessary to expedite and facilitate
the
registration of the Registrable Securities pursuant to the Registration
Statement; and
|
|
(n)
|
advise
each Holder of Registrable Securities covered by such registration
statement and, if requested by any such Holder, confirm such advice
in
writing:
|
|
(i)
|
when
such registration statement, and any amendment thereto, has been
filed
with the SEC and when the registration statement or any post-effective
amendment thereto has become effective;
|
-24-
|
(ii)
|
of
any request by the SEC for amendments or supplements to such registration
statement or the prospectus included therein or for additional
information;
|
|
(iii)
|
of
the issuance by the SEC of any stop order suspending effectiveness
of the
registration statement or the initiation of any proceedings for that
purpose; and
|
|
(iv)
|
of
the receipt by OPKO of any notification with respect to the suspension
of
the qualification of the securities included in the registration
statement
for sale in any jurisdiction or the initiation of any proceeding
for such
purpose.
|
7.4 Obligations
of the Holders.
Each
Holder desiring to include in any such registration statement all or any part
of
the Registrable Securities held by such Holder will reasonably cooperate with
OPKO in connection with the preparation and filing of any registration statement
and each amendment thereof and, upon OPKO’s reasonable request, will in a timely
manner furnish in writing to OPKO accurate and complete information regarding
the Holder, the distribution of the Registrable Securities and other matters
as
may be required by applicable Law, rule or regulation for inclusion in the
registration statement and each amendment; the provision of such information
by
such Holders to OPKO shall be a condition precedent to OPKO’s obligations under
ARTICLE 7
hereof.
7.5 Termination
of Registration Rights.
All
registration rights granted under this ARTICLE 7
will
terminate and be of no further force and effect as to any Holder on the earlier
of (a) five years from the date hereof and (b) such time as all of
the Registrable Securities held by such Holder (together with its affiliates,
partners and former partners) may be sold under SEC Rule 144 during any
90-day period.
7.6 Dispositions.
Each
Holder agrees that it will comply with the prospectus delivery requirements
of
the Securities Act as applicable to it in connection with sales of Registrable
Securities pursuant to a registration statement.
7.7 SEC
Rule 144 Reporting.
With
a
view to making available to the Holders the benefits of certain rules and
regulations of the SEC that may permit the sale of the Registrable Securities
to
the public without registration, OPKO will use its reasonable best efforts
to:
-25-
|
(a)
|
Make
and keep public information available, as those terms are understood
and
defined in SEC Rule 144 or any similar or analogous rule promulgated
under the Securities Act.
|
|
(b)
|
File
with the SEC, in a timely manner, all reports and other documents
required
of OPKO under the Exchange Act;
|
|
(c)
|
As
long as a Holder owns any Registrable Securities, furnish to such
Holder
promptly upon request: a written statement by OPKO as to its compliance
with the reporting requirements of SEC Rule 144, the Securities Act,
and the Exchange Act, a copy of the most recent annual or quarterly
report
of OPKO and such other reports and documents so filed by OPKO; and
such
other reports and documents as a Holder may reasonably request in
availing
itself of any rule or regulation of the SEC allowing it to sell any
such
securities without registration.
|
7.8 Indemnification
and Contribution.
|
(a)
|
In
the event of a registration of any of the Registrable Securities
under the
Securities Act pursuant to Section 7.1,
OPKO will indemnify and hold harmless each seller of such Registrable
Securities thereunder, any underwriter (as defined in the Securities
Act)
for such seller, and each other Person, if any, who controls such
seller
or underwriter within the meaning of the Securities Act or the Exchange
Act, from and against, and pay or reimburse them for, any losses,
claims,
reasonable expenses, damages or liabilities to which such seller,
underwriter or controlling Person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims,
expenses, damages or liabilities (or actions in respect thereof)
arise out
of or are based upon any untrue statement or alleged untrue statement
of
any material fact contained in any registration statement under which
such
Registrable Securities were registered under the Securities Act pursuant
to Section 7.1,
any preliminary prospectus or final prospectus contained therein,
or any
amendment or supplement thereof, or arise out of or are based upon
the
omission or alleged omission to state therein a material fact required
to
be stated therein or necessary to make the statements therein not
misleading, or any violation or alleged violation of the Securities
Act,
the Exchange Act, any state securities or blue sky laws and specifically
will reimburse each such seller, underwriter and controlling Person
for
any legal or other expenses reasonably incurred by it in connection
with
investigating or defending any such loss, claim, damage, liability
or
action; provided,
that OPKO will not be liable in any such case if and to the extent
that
any such loss, claim, expense, damage or liability arises out of
or is
based upon OPKO's reliance on an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with
information furnished by any such seller, underwriter or controlling
Person in writing specifically for use in such registration statement
or
prospectus; and provided further,
that OPKO shall not be liable to the extent that any such loss, claim,
expense, damage or liability (or action in respect thereof) arises
out of
or is based upon an untrue statement or alleged untrue statement
or
omission in such registration statement corrected in an amendment
or
supplement to the registration statement, such amendment or supplement
was
delivered to the indemnified party in sufficient quantities and a
reasonable period of time prior to the closing of any offering and
the
indemnified party failed to deliver or failed to cause to be delivered
such registration statement as so amended or supplemented to the
Person
asserting such loss, claim, expense, damage or
liability.
|
-26-
|
(b)
|
In
the event of a registration of any of the Registrable Securities
under the
Securities Act pursuant to Section 7.1,
each seller of such Registrable Securities thereunder, severally
and not
jointly, will indemnify and hold harmless OPKO, each Person, if any,
who
controls OPKO within the meaning of the Securities Act, each officer
of
OPKO who signs the registration statement, each director of OPKO
and any
underwriter and any controlling Person of such underwriter from and
against all losses, claims, reasonable expenses, damages or liabilities,
joint or several, to which OPKO or such officer, director, underwriter or
controlling Person may become subject under the Securities Act, Exchange
Act or otherwise, insofar as such losses, claims, expenses, damages
or
liabilities (or actions in respect thereof) arise out of or are based
upon
reliance on any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which
such
Registrable Securities were registered under the Securities Act,
any
preliminary prospectus or final prospectus contained therein, or
any
amendment or supplement thereof, or arise out of or are based upon
the
omission or alleged omission to state therein a material fact required
to
be stated therein or necessary to make the statements therein not
misleading, and will reimburse OPKO and each such officer, director,
underwriter and controlling Person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending
any such loss, claim, expense, damage, liability or action; provided,
that such seller will be liable hereunder in any such case if and
only to
the extent that any such loss, claim, expense, damage or liability
arises
out of or is based upon an untrue statement or alleged untrue statement
or
omission or alleged omission made in reliance upon and in conformity
with
information pertaining to such seller, as such, furnished in writing
to
OPKO by such seller specifically for use in such registration statement
or
prospectus; and provided,
further,
that the liability of each seller hereunder shall be limited to the
proportion of any such loss, claim, expense, damage or liability
which is
equal to the proportion that the public offering price of the Registrable
Securities sold by such seller under such registration statement
bears to
the total public offering price of all securities sold
thereunder
|
|
(c)
|
Notwithstanding
the foregoing, the indemnity provided in this ARTICLE 7
shall not apply to amounts paid in settlement of any such loss, claim,
expense, damage or liability if such settlement is effected without
the
consent of such seller;
|
|
(d)
|
Promptly
after receipt by an indemnified party hereunder of notice of the
commencement of any action (including any governmental action), such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party hereunder, notify the indemnifying
party in
writing thereof, but the delay so to notify the indemnifying party
shall
not relieve it from any liability which it may have to such indemnified
party other than under this Section 7.8
and shall only relieve it from any liability which it may have to
such
indemnified party under this Section 7.8
if
and to the extent the indemnifying party is materially prejudiced
by such
delay. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate
in and,
to the extent it shall wish, to jointly with any other indemnifying
party
similarly notified, assume and undertake the defence thereof with
counsel
satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to
assume
and undertake the defence thereof, the indemnifying party shall not
be
liable to such indemnified party under this Section 7.8
for any legal expenses subsequently incurred by such indemnified
party in
connection with the defence thereof provided,
that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall
have
reasonable defences available to it which are different from or additional
to those available to the indemnifying party or if the interests
of the
indemnified party reasonably may be deemed to conflict with the interests
of the indemnifying party, the indemnified party shall have the right
to
select a separate counsel and to assume such legal defences and otherwise
to participate in the defence of such action, with the reasonable
expenses
and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
|
-27-
|
(e)
|
If
the indemnification provided for in this Section 7.8
is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, expense, damage
or
liability referred to therein, then the indemnifying party, in lieu
of
indemnifying such indemnified party hereunder, shall contribute to
the
amount paid or payable by such indemnified party as a result of such loss,
claim, expense, damage or liability in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one
hand
and of the indemnified party on the other in connection with the
untrue
statement or alleged untrue statement or omission or alleged omission
or
violation or alleged violation that resulted in such loss, claim,
expense,
damage or liability as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and
of the
indemnified party shall be determined by reference to, among other
things,
whether the untrue statement or alleged untrue statement or omission
or
alleged omission or violation or alleged violation relates to information
supplied or acts or omissions by the indemnifying party or by the
indemnified party and the parties’ relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement,
omission or violation; provided further,
that, in no event shall any contribution of a holder or Registrable
Securities under this Section 7.8
exceed the net proceeds from the offering received by such holder.
|
|
(f)
|
(e)
The obligations of the Parties under this Section 7.8
shall survive the completion of any offering of Registrable Securities
in
a registration statement under Section 7.1;
provided
that any such indemnification obligations shall not extend beyond
the
period proscribed by the applicable statute of limitations (and all
extensions thereof) with respect to such action or claim; and provided further,
that if notice is given under this Section 7.8
with respect to any matter entitling a party to indemnification hereunder
prior to the applicable expiration date, such indemnification obligation
shall continue indefinitely in respect of the applicable claim until
it is
finally resolved.
|
-28-
ARTICLE 8
GENERAL
|
8.1
|
Transfer
and Issuance Restrictions
|
Notwithstanding
any of other provision of this Agreement:
|
(a)
|
no
Exchangeable Shares may be Transferred unless, in addition to such
Transfer complying with all provisions related to Transfers set forth
in
this Agreement and in the constating documents of the Corporation,
concurrently with such transfer the transferee enters into this Agreement
by executing a counterpart instrument of accession in the form attached
as
Schedule B; and
|
|
(b)
|
no
additional Exchangeable Shares may be issued by the Corporation to
any
Person who is not a Holder without Joint Approval, and if Joint Approval
is obtained unless, concurrently with such issuance, the Person to
whom
such shares are issued enters into this Agreement by executing a
counterpart instrument of accession in the form attached as Schedule
B.
|
|
8.2
|
Legends
|
The
Corporation will cause each certificate representing its Exchangeable Shares
to
bear the following language either as an endorsement or on the face of such
share certificate:
The
shares represented by this certificate are subject to all the terms and
conditions of an exchange and support agreement made _______,
______________,
2007
as it
may be amended, which agreement contains, among other things, restrictions
on
the right of the holder hereof to transfer or sell the shares. A copy of such
exchange and support agreement is on file at the registered office of the
Corporation.
-29-
|
8.3
|
Seller
Acknowledgements and
Agreements
|
Each
Holder hereby acknowledges, certifies and agrees that:
(a) The
Opko
Common Shares contained in the Exchange Right Consideration have not been and
will not be registered under the US Securities Act of 1933, as amended (the
“U.S. Securities Act”);
(b) Such
Holder shall not sell, transfer or otherwise dispose of such Opko Common Shares
unless in accordance with Regulation S under the US Securities Act (“Regulation
S”), pursuant to registration under the U.S. Securities Act or pursuant to an
applicable exemption from the registration requirement of the US Securities
Act
and any applicable state securities law, and shall not engage in any hedging
transactions with regard to the Opko Common Shares unless in compliance with
the
US Securities Act;
(c) The
Opko
Common Shares constitute “restricted securities,” as defined in Rule 144 under
the U.S. Securities Act (“Rule 144”), and, accordingly, will be subject to the
holding period, volume limitations, manner of sale, notice of proposed sale
and
other compliance requirements, as applicable, of Rule 144 for purposes of any
resale of the Opko Common Shares into the U.S. public securities markets;
(d) Any
certificate representing Opko Common Shares shall bear a transfer restriction
legend referring to the U.S. Securities Act, including a reference to Regulation
S, and applicable state securities law;
(e) Such
Holder has such knowledge and experience in financial and business matters
that
such Holder is capable of evaluating the risks of an investment an Opko Common
Shares and for purposes of the investment decision from time to time related
to
any exercise of the Exchange Right is relying solely on the reports and other
information filed by Opko with the U.S. Securities and Exchange Commission
and
not on any material nonpublic information about Opko;
(f) Such
Holder as of the date hereof and the date of exercise of the Exchange Right,
is
not a “distributor” (as defined in Regulation S) and is not exercising the
Exchange Right with an intent to effect, and will not undertake, a distribution
of the Exchange Right Consideration; and
(g) Such
Holder at the time of the exercise the Exchange Right is not a U.S. person
(as
defined in Regulation S), is outside the United States, and is not acquiring
the
Exchange Right Consideration for the account or benefit of a U.S.
person.
|
8.4
|
Compliance
with other Instruments
|
Each
Party confirms that it will comply, and Opko will cause each Permitted
Subsidiary to comply, with the Exchangeable Share Provisions and this
Agreement.
-30-
|
8.5
|
Changes
in Capital of Opko and the
Corporation
|
At
all
times after the occurrence of any event as a result of which the Opko Common
Shares or the Exchangeable Shares are in any way changed, this Agreement will
be
amended and modified as necessary in order that it will apply with full force
and effect to all new securities into which the Opko Common Shares or the
Exchangeable Shares are so changed.
|
8.6
|
Term
|
This
Agreement is effective as of the date of this Agreement and terminates when
no
Exchangeable Shares (or securities or rights convertible into or exchangeable
for or carrying rights to acquire Exchangeable Shares) are held by any Person
(other than Opko and its Affiliates).
|
8.7
|
Enurement
|
This
Agreement enures to the benefit of and is binding upon the Parties and their
respective successors (including any successor by reason of merger or
amalgamation of any Party) and permitted assigns as contemplated in Section
8.10.
|
8.8
|
Notices
to Parties
|
Any
notice, certificate, consent, determination or other communication required
or
permitted to be given or made under this Agreement shall be in writing and
shall
be effectively given and made if (i) delivered personally, (ii) sent by prepaid
courier service or mail, or (iii) sent prepaid by fax or other similar means
of
electronic communication, in each case to the applicable address set out
below:
|
(a)
|
if
to the Corporation, to Opko, any Permitted Subsidiary, or their
Affiliates, to:
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇
▇.
▇▇▇▇▇
Fax: <>
with
a
copy to:
Fraser
▇▇▇▇▇▇ Casgrain
First
Canadian Place
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇.▇.
▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Fax: ▇▇▇.▇▇▇.▇▇▇▇
|
(b)
|
and
if to the Holders in accordance with Section 8.9.
|
-31-
|
(c)
|
Any
such communication so given or made shall be deemed to have been
given or
made and to have been received on the day of delivery if delivered,
or on
the day of faxing or sending by other means of recorded electronic
communication, provided that such day in either event is a Business
Day
and the communication is so delivered, faxed or sent before 4:30
p.m. on
such day. Otherwise, such communication shall be deemed to have been
given
and made and to have been received on the next following Business
Day. Any
such communication sent by mail shall be deemed to have been given
and
made and to have been received on the fifth Business Day following
the
mailing thereof; provided however that no such communication shall
be
mailed during any actual or apprehended disruption of postal services.
Any
such communication given or made in any other manner shall be deemed
to
have been given or made and to have been received only upon actual
receipt.
|
|
(d)
|
Any
Party may from time to time change its address under this Section
by
notice to the other Party given in the manner provided by this
Section.
|
|
8.9
|
Notice
to Holders
|
Any
and
all notices to be given and any documents to be sent to any Holder shall be
given or sent to such Holder at its address as shown on the register of holders
of Exchangeable Shares (or, if not available, on the register of holders of
Opko
Common Shares or as provided by the Holder) in any manner permitted by the
by-laws of the Corporation from time to time in force in respect of notices
to
shareholders (with a copy to each of the persons set out in Section 8.8)
and
shall be deemed to be received (if given or sent in such manner) at the time
specified in such by-laws, the provisions of which by-laws shall apply
mutatis
mutandis
to
notices or documents as aforesaid sent to such Holders.
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8.10
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Amendment
|
No
amendment, supplement, modification, waiver or termination of this Agreement
is
binding without Joint Approval and the prior written approval of Opko and no
consent or approval by any Party will be binding unless delivered in writing
to
the other Parties hereto. The Corporation, at the request of Opko , shall call
a
meeting or meetings of the Holders for the purpose of considering any proposed
amendment or modification requiring approval pursuant to this Section
8.10.
Any
such meeting or meetings shall be called and held in accordance with the by-laws
of the Corporation, the Exchangeable Share Provisions and all applicable
Laws.
|
8.11
|
Assignment
|
Any
Holder may assign its rights and obligations under this Agreement to any
permitted transferee of any of such Holder’s Exchangeable Shares. Otherwise, no
party may assign any rights or obligations under this Agreement without Joint
Approval.
|
8.12
|
Further
Assurances
|
The
Parties will, with reasonable diligence, do all such things and provide all
such
reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and each party will provide such further
documents or instruments required by any other Party as may be reasonably
necessary or desirable to effect the purpose of this Agreement and carry out
its
provisions.
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8.13
|
Execution
and Delivery
|
This
Agreement may be executed by the Parties in counterparts and may be executed
and
delivered by fax, and all such counterparts and faxes together constitute one
agreement.
[THE
REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
-33-
IN
WITNESS OF WHICH
the
Parties have duly executed this Exchange and Support Agreement.
Opko:
By:_______________________________
Name:
Title:
The
Corporation:
OTI
Holdings Limited
By:______________________________
Name:
Title:
-34-
IN
WITNESS OF WHICH
the
Parties have duly executed this Exchange and Support Agreement.
Holders:
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SIGNED
IN THE PRESENCE OF:
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Witness
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Witness
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Witness
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▇▇▇▇▇▇
▇▇▇▇▇, IN TRUST
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)
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Witness
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▇▇▇▇▇
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1161983
ONTARIO LIMITED.
By:____________________________
Name:
Title:
▇▇▇▇▇
CORPORATION LIMITED.
By:____________________________
Name:
Title:
TRIPLE
NET PROPERTIES LIMITED.
By:______________________________
Name:
Title:
-35-