COMMON STOCK WARRANT
EXHIBIT 12
COMMON STOCK WARRANT
THIS SECURITY AND THE SHARES (AS DEFINED BELOW) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY SHARE MAY BE
SOLD OR TRANSFERRED ABSENT SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
Effective Date: September 28, 2009
WARRANT TO PURCHASE COMMON STOCK
OPKO HEALTH, INC.
EXPIRING SEPTEMBER 27, 2014
THIS WARRANT CERTIFIES THAT Frost Gamma Investments Trust or their permitted assigns
(“Holder”), for good and valuable consideration, the receipt of which is hereby acknowledged, has
been granted the right to purchase from OPKO Health, Inc., a Delaware corporation (the “Company”),
at any time and from time to time, for a period commencing on the Effective Date (as defined below)
and ending on the Expiration Date, 630,048 (the “Warrant Number”) validly issued, fully-paid and
non-assessable shares (the “Shares”) of the Company’s common stock, par value $.01 per share,
subject to adjustment as provided herein, at the exercise price of $2.48 per share (the “Exercise
Price”).
1. Term of Warrant. Subject to the terms and conditions set forth herein, this Warrant shall
be exercisable, in whole or in part, during the term (“Term”) commencing at 9:00 a.m., New York,
New York time, on the date hereof (the “Effective Date”) and ending at 5:00 p.m., New York, New
York time on the Expiration Date, and shall be void thereafter.
2. Exercise of Warrant.
2.1. Manner of Exercise. The purchase rights represented by this Warrant are
exercisable by the Holder in whole or in part, at any time, or from time to time, during the Term,
by the surrender of this Warrant and the Notice of Exercise (in the form annexed hereto as Exhibit
A), duly completed and executed on behalf of the Holder, at the office of the Company (or such
other office or agency of the Company as it may designate by notice in writing to the Holder), upon
payment of the purchase price of the Shares to be purchased in cash or wire transfer to an account
designated by the Company.
2.2. Time of Exercise. This Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for exercise as provided
above (the “Exercise Date”), and the Person entitled to receive the Shares issuable upon such
exercise shall be treated for all purposes as the holder of record of such Shares as of the close
of business on such date. As used in this Warrant, “Person” shall mean an individual, corporation,
limited liability company, partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or any agency or political subdivision thereof) or
other entity of any kind.
2.3. Delivery of Certificate and Revised Warrant. As promptly as practicable on or
after the Exercise Date and in any event within fifteen (15) days thereafter, the Company at its
expense, will issue and deliver to the Person(s) entitled to receive the same a certificate or
certificates for the number of Shares issuable upon such exercise or other appropriate written
evidence of the issuance of the Shares. In the event that this Warrant is exercised in part, the
Company at its expense shall execute and deliver a new Warrant of like tenor exercisable for the
number of Shares for which this Warrant may then be exercised at the same time.
2.4. No Fractional Shares. No fractional Shares shall be issued upon the exercise of
this Warrant. In lieu of any fractional Share to which the Holder would otherwise be entitled, the
Company shall make a cash payment equal to the Exercise Price multiplied by such fraction.
3. Adjustments to the Shares.
3.1. Merger, Sale of Assets, etc. If at any time while this Warrant, or any portion
thereof, is outstanding and unexpired there shall be (i) a reorganization (other than a
combination, reclassification, exchange or subdivision of securities otherwise provided for
herein), (ii) a merger or consolidation of the Company with or into another entity in which the
Company is not the surviving entity, or a reverse triangular merger in which the Company is the
surviving entity but the Company’s shares of capital stock outstanding immediately prior to the
merger are converted by virtue of the merger into other property, whether in the form of
securities, cash or otherwise, or (iii) a sale or transfer of the Company’s properties and assets
as, or substantially as, an entirety to any other person, this Warrant shall thereafter represent
the right to acquire the number of Shares or other securities or property which the Holder of this
Warrant would have owned immediately after the consummation of such reorganization, merger,
consolidation, sale or transfer, if the Holder of this Warrant had exercised this Warrant
immediately before the effective date of the reorganization, merger, consolidation, sale or
transfer.
3.2. Reclassification, etc. If the Company, at any time while this Warrant, or any
portion hereof, remains outstanding and unexpired by reclassification of securities or otherwise,
shall change any of the securities as to which purchase rights under this Warrant exist into the
same or a different number of securities of any other class or classes, this Warrant shall
thereafter represent the right to acquire such number and kind of securities as would have been
issuable as the result of such change with respect to the securities that were subject to the
purchase rights under this Warrant immediately prior to such reclassification or other change and
the Warrant Number shall be appropriately adjusted, all subject to further adjustment as provided
for herein.
3.3. Split, Subdivision or Combination of Shares. If the Company at any time while
this Warrant, or any portion hereof, remains outstanding and unexpired shall split, subdivide or
combine the securities as to which purchase rights under this Warrant exist, into a different
number of securities of the same class, the Warrant Number shall be proportionately increased (and
the Exercise Price decreased correspondingly) in the case of a split or subdivision or
proportionately decreased (and the Exercise Price increased correspondingly) in the case of a
combination.
3.4. Adjustments for Dividends in Shares or Other Securities or Property. If while
this Warrant, or any portion hereof, remains outstanding and unexpired, the holders of the
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securities as to which purchase rights under this Warrant exist at the time shall have received,
or, on or after the record date fixed for the determination of eligible shareholders, shall have
become entitled to receive, without payment therefor, other or additional securities or property
(other than cash) of the Company by way of dividend, then and in each case, this Warrant shall
represent the right to acquire, in addition to the number of Shares receivable upon exercise of
this Warrant, and without payment of any additional consideration therefor, the amount of such
other or additional securities or property (other than cash) of the Company that such Holder would
hold on the date of such exercise had it been the holder of record of the security receivable upon
exercise of this Warrant on the date hereof and had thereafter, during the period from the date
hereof to and including the date of such exercise, retained such Shares and/or all other additional
securities available to it as aforesaid during such period, giving effect to all adjustments called
for during such period by the provisions of this Warrant.
4. Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment
pursuant to Section 3, the Company at its expense shall promptly compute such adjustment or
readjustment in accordance with the terms hereof and furnish to each Holder a certificate setting
forth, in reasonable detail, the event requiring the adjustment or readjustment, the amount of such
adjustment or readjustment, the method by which such adjustment or readjustment was calculated, the
Exercise Price, and the number of Shares and the amount, if any, of other property that at the time
would be received upon the exercise of the Warrant. The Company shall upon the written request, at
any time, of any such Holder, furnish or cause to be furnished to such Holder a like certificate.
5. Share Legend. Each certificate for Shares issued upon exercise of this Warrant shall bear
the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD OR OFFERED
FOR SALE IN THE ABSENCE OF REGISTRATION UNDER THE SECURITIES ACT OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO OPKO HEALTH, INC., A DELAWARE CORPORATION, AND
ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THIS SECURITY IS SUBJECT TO RESTRICTIONS ON RESALE PURSUANT TO THAT CERTAIN
SECURITIES PURCHASE AGREEMENT WITH THE COMPANY DATED SEPTEMBER 18, 2009, A COPY OF
WHICH CAN BE OBTAINED FROM THE ISSUER OR THE HOLDER OF THIS SECURITY. NO TRANSFER
OF SUCH SECURITY WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS ACCOMPANIED BY
EVIDENCE OF COMPLIANCE WITH THE TERMS OF SUCH AGREEMENT.
6. Shares to be Fully Paid. The Company will issue Shares pursuant to this Warrant as fully
paid, non-assessable and free from all liens and encumbrances.
7. Company to Reserve Shares. At all times before the date on which the Warrant expires (the
“Expiration Date”), the Company will reserve and keep available, free from preemptive rights, out
of its authorized but unissued Shares or Shares held in the treasury of the
Company, for the purpose of effecting the exercise of this Warrant, the full number of Shares
then deliverable upon the exercise of this Warrant. The issuance of this Warrant shall constitute
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full authority to those officers of the Company who are charged with the duty of executing stock
certificates to execute and issue the necessary certificates for Shares upon exercise of this
Warrant.
8. Exchange of Warrant. The Holder may exchange this Warrant, at the Company’s expense, at
any time prior to the Expiration Date, by surrendering this Warrant to the Company, for other
warrant certificates, upon the same terms and conditions of this Warrant, which in the aggregate
entitle the Holders to purchase the balance of Shares then covered by this Warrant.
9. No Rights as Stockholder. Except as otherwise provided herein, this Warrant will not
entitle the Holder to any of the rights of a stockholder of the Company, including, without
limitation, the right to vote or to receive distributions.
10. Amendment. This Warrant may not be amended except with the prior written consent of the
Holder and the Company. Any instrument given by or on behalf of the Holder in connection with any
consent to any modification or amendment will be conclusive and binding on all subsequent holders
of this Warrant.
11. Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon
receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Warrant or any stock certificate relating to the Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of
the Warrant, shall not include the posting of any bond), and upon surrender and cancellation of
such Warrant or stock certificate, if mutilated, the Company issue or cause to be issued a new
Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such
Warrant or stock certificate.
12. Transfer. The securities evidenced hereby have not been registered under the Securities
Act of 1933 or any state securities laws; such securities may not be transferred, sold, pledged, or
otherwise disposed of unless such securities are registered under the Securities Act of 1933 and
such state laws or such transactions are exempt from the registration requirements thereof. Upon
surrender of this Warrant as a result of a transfer hereof, the Company, at the expense of the
transferee or transferor hereof, as the transferee and transferor may decide between themselves,
will issue and deliver to, or to the order of, the transferee a new Warrant in the name of such
transferee, or as such transferee (on payment by such transferee of any applicable transfer taxes)
may direct, calling in the aggregate on the face thereof for the number of Shares called for on the
face of this Warrant. As a condition to effecting any transfer, the Holder shall notify the
Company of the proposed transfer by delivering a Notice of and Form of Assignment (in the form
annexed hereto as Exhibit B), duly completed and executed on behalf of the Holder at the office of
the Company (or such other office or agency of the Company as it may designate by notice in writing
to the Holder).
13. Successors and Assigns. This Warrant shall not be assignable by the Company without the
prior written consent of the Holder and any such assignment in violation hereof shall be null and
void. Subject to the foregoing, this Warrant shall bind and inure to the benefit of the Company
and its permitted successors and assigns, the Holder and its successors and assigns.
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14. Applicable Law. This Warrant shall be construed in accordance with, and governed by, the
laws of the State of Florida without giving effect to the conflict of law provisions thereof.
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IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed as of the
Effective Date set forth above.
| OPKO HEALTH, INC. | ||||||
| (A DELAWARE CORPORATION) | ||||||
| By: Name: |
/s/ Xxx Xxxxxxxx
|
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| Title | : Sr. Vice President; Chief Financial Officer | |||||
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