SECURITIES PURCHASE AGREEMENT dated as of September 18, 2009 by and among OPKO HEALTH, INC. AND THE PURCHASERS SET FORTH ON THE SIGNATURE PAGES HERETO
EXHIBIT 6
dated as of September 18, 2009
by and among
AND
THE PURCHASERS SET FORTH ON
THE SIGNATURE PAGES HERETO
THE SIGNATURE PAGES HERETO
THIS SECURITIES PURCHASE AGREEMENT (this “Agreement”) is dated effective as of
September 18, 2009, by and between OPKO Health, Inc. (the “Company”), a corporation
organized under the laws of the State of Delaware, with its principal offices at 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxx, Xxxxxxx 00000 (the “Principal Office”), and the purchasers whose names
and addresses are set forth on the signature pages hereto (the “Purchasers”). Certain
capitalized terms used but not defined herein shall have the respective meanings set forth on
Schedule 1 attached hereto.
IN CONSIDERATION of the mutual covenants contained in this Agreement, and intending to be
legally bound hereby, the Company and the Purchasers agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to the terms and conditions
of this Agreement, and the filing with the Secretary of State of the State of Delaware of the
Certificate of Designation of the Powers, Preferences and Relative, Participating, Optional and
Other Special Rights of the 8.0% Series D Cumulative Convertible Preferred Stock, and
Qualifications, Limitations and Restrictions Thereof, substantially in the form attached hereto as
Exhibit A (the “Certificate of Designation”), the Company has authorized the
issuance and sale to the Purchasers in a private placement of an aggregate of 1,209,677 shares of
8.0% Series D Cumulative Convertible Preferred Stock, par value $0.01 per share, of the Company
(each, a “Share” and collectively, the “Shares”), and, in connection therewith warrants
(the “Warrants”) to purchase an aggregate of 3,024,196 shares of the Common Stock, par
value $ 0.01 per share, of the Company (the “Common Stock”).
SECTION 2. Agreement to Sell and Purchase the Shares. Subject to the terms and
conditions of this Agreement, at the Closing (as defined in Section 3), the Company shall issue and
sell to each Purchaser, and such Purchaser shall buy from the Company, the number of Shares and
Warrants set forth on such Purchaser’s signature page hereto for an aggregate purchase price equal
to the number of Shares purchased by such Purchaser multiplied by the per-Share purchase price of
$24.80 (the “Purchase Price”). The sum of the aggregate purchase prices paid by all
Purchasers pursuant to the terms of this Agreement is $29,999,989.60, the product of (x) 1,209,677
and (y) $24.80.
SECTION 3. Closing
3.1 Delivery of the Shares at the Closing. The completion of the purchase and sale of
the Shares (the “Closing”) shall occur at the Principal Office as soon as practicable and
as agreed to by the parties hereto, on or around September 23, 2009, or on such other date or at
such different location as the parties hereto shall mutually agree, but not prior to the date on
which the Closing Conditions (as defined below) have been satisfied or waived (the “Closing
Date”).
3.2 Closing Deliverables. At the Closing, or as promptly thereafter as is practicable, the Company shall deliver to
each Purchaser (x) one or more stock certificates registered in the name of such Purchaser, or, if
so indicated on such Purchaser’s Stock Certificate Questionnaire, the form of which is attached
hereto as Appendix I (the “Stock Certificate Questionnaire”), in such other name(s)
as designated by such Purchaser, evidencing the number
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of Shares set forth on such Purchaser’s
signature page attached hereto, each bearing a restrictive legend, substantially in the form set
forth in Section 6.3, and (y) a Warrant Certificate, in substantially the form of Exhibit B
attached hereto (each, a “Warrant Certificate”), evidencing the number of Warrants set
forth on the investor signature page hereto executed by Purchaser.
3.3 Conditions to the Company’s Obligations. The Company’s obligation to complete the
sale of the Shares and the Warrants at the Closing is subject to the fulfillment, at or prior to
the Closing, of each of the following conditions, unless otherwise waived (“Company Closing
Conditions”):
(a) receipt by the Company of immediately available funds in the full amount of the aggregate
purchase price for all Shares being purchased at the Closing;
(b) each of the representations and warranties of each Purchaser set forth in Section 5 shall
be true and correct on the date of the Closing; and
(c) each Purchaser shall have performed and complied with all covenants, agreements and
obligations contained in this Agreement that are required to be performed or complied with by such
Purchaser on or prior to the Closing.
3.4 Conditions to Purchasers’ Obligations. Each Purchaser’s obligation to purchase
the Shares and Warrants at the Closing is subject to the fulfillment, at or prior to the Closing,
of each of the following conditions, unless otherwise waived (“Purchaser Closing
Conditions” and, together with the Company Closing Conditions, the “Closing
Conditions”):
(a) each of the representations and warranties of the Company set forth in Section 4 that is
qualified by materiality or material adverse effect or words of similar effect shall be accurate in
all respects on the Closing Date (except to the extent any such representations and warranties
expressly relate to a specific date, in which case such representations and warranties shall be
accurate as of such date), and each of the representations and warranties of the Company set forth
in Section 4 that is not so qualified shall be accurate in all material respects as of the Closing
Date (except to the extent such representations and warranties expressly relate to a specific date,
in which case such representations and warranties shall be accurate in all material respects as of
such date);
(b) the Company shall have performed and complied with all covenants, agreements and
obligations contained in this Agreement that are required to be performed or complied with by the
Company on or before the Closing; and
(c) the Certificate of Designation shall have been filed with, and accepted for filing by, the
Secretary of State of the State of Delaware.
SECTION 4. Representations, Warranties and Covenants of the Company. The Company
hereby represents and warrants to the Purchasers as follows:
4.1 Issuance of Shares. The Company has taken all necessary corporate action to
authorize the execution, delivery and performance of this Agreement and the Company’s issuance and
sale of the Shares and Warrants. The Shares, when issued and delivered and paid
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for as provided
herein, will be duly authorized, validly issued, fully paid and nonassessable and will be issued
free and clear of any Encumbrances (other than as arising under applicable securities laws or this
Agreement). Assuming the accuracy of the representations and warranties of the Purchasers set
forth in Section 5 of this Agreement, the Shares will be issued in compliance with all applicable
federal and state securities laws.
4.2 Organization and Qualification. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware and has the requisite
corporate power and authority to own, lease and operate its properties and to carry on its business
as it is now being conducted and is duly qualified to do business in any other jurisdiction by
virtue of the nature of the businesses conducted by it or the ownership or leasing of its
properties, except where the failure to be so qualified will not, when taken together with all
other such failures, have a Material Adverse Effect on the Company.
4.3 Charter and Bylaws. The Company’s Charter and Bylaws, as amended or restated to
date, as filed with the SEC, are a complete and correct copy of such documents as in effect on the
date hereof.
4.4 Capitalization. As of September 18, 2009, the Company has (i) authorized
500,000,000 shares of Common Stock, 253,632,889 shares of which are issued and outstanding, (ii)
authorized 4,000,000 shares of Series A Preferred Stock, $0.01 par value per share, 932,667 shares
of which are issued and outstanding, (iii) authorized 500,000 shares of Series C Preferred Stock,
$0.01 par value per share, 0 shares of which are issued and outstanding; and (iv) 2,000,000 shares
of Series D Preferred Stock (“Series D Preferred Stock”), 0 shares of which are issued and
outstanding. All such outstanding shares of Common Stock and Preferred Stock have been duly
authorized and are validly issued, fully paid and nonassessable. Except as disclosed in the SEC
Documents, as of the date hereof, there are no outstanding options, warrants, rights to subscribe
for, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, shares of any class of capital stock of the Company, or
agreements, understandings or arrangements to which the Company is a party, or by which the Company
is or may be bound, to issue additional shares of its capital stock or options, warrants or rights
to
subscribe for, calls or commitment of any character whatsoever relating to, or securities or
rights convertible into or exchangeable for, any shares of any class of its capital stock.
4.5 Authorization, Enforceability and Related Matters. (i) The Company has full
right, power, authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary corporate action to authorize the
execution, delivery and performance of this Agreement; (ii) the making and performance of this
Agreement by the Company and the consummation by the Company of the transactions contemplated
herein will not violate any provision of the Company’s Charter or Bylaws or, except to the extent
that it would not have a Material Adverse Effect on the Company or adversely affect the Company’s
ability to consummate the transactions contemplated hereby, conflict with, result in the breach or
violation of, or constitute, either by itself or upon notice or the passage of time or both, a
default under any material agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which the Company is a party, or any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any
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regulatory body,
administrative agency or other governmental agency or body applicable to the Company; (iii) no
consent, approval, authorization or other order of any court, regulatory body, administrative
agency or other governmental agency or body is required in respect of the Company’s execution and
delivery of this Agreement or the consummation by the Company of the transactions contemplated by
this Agreement; (iv) upon the execution and mutual delivery of this Agreement by the parties
hereto, this Agreement shall constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general
application relating to the enforcement of creditor’s rights and the application of equitable
principles relating to the availability of remedies, and except as rights to indemnity or
contribution may be limited by federal or state securities laws or the public policy underlying
such laws; and (v) there is not in effect any order enjoining or restraining the Company from
entering into or engaging in any of the transactions contemplated by this Agreement.
4.6 Brokers or Finders. No broker, investment banker, financial advisor or other
individual, corporation, general or limited partnership, limited liability company, firm, joint
venture, association, enterprise, joint securities company, trust, unincorporated organization or
other person or entity is entitled to any broker’s, finder’s, financial advisor’s or other similar
fee or commission in connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company or any of its Affiliate.
4.7 SEC Documents. The Company has made available to the Purchasers true and complete
copies of all SEC Documents. As of their respective dates (or if amended, as of the date of the
last amendment filed prior to the date hereof), the SEC Documents complied in all material respects
with the requirements of the 1934 Act, and rules and regulations of the SEC promulgated thereunder,
and the SEC Documents did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading.
4.8 Company Financial Statements. The financial statements, together with any notes
thereto, included in the Company’s Annual Report on Form 10-K as filed with the SEC on March 16,
2009 and the Company’s Quarterly Report on Form 10-Q as filed with the SEC on August 7, 2009 fairly
present in all material respects, on the basis stated therein and on the date thereof, the
financial position of the Company at the respective dates therein specified and its results of
operations and cash flows for the periods then ended. Such statements and related notes have been
prepared in accordance with generally accepted accounting principles in the United States
(“GAAP”) applied on a consistent basis except as expressly noted therein and subject in the
case of the unaudited financial statements to year-end adjustments.
4.9 Material Changes; Undisclosed Events, Liabilities or Developments. Since June 30,
2009, except as disclosed in any SEC Document filed subsequent to June 30, 2009 and prior to the
date hereof: (i) there has been no event, occurrence or development that has had or that could
reasonably be expected to result in a Material Adverse Effect; (ii) the Company has not incurred
any material liabilities (contingent or otherwise) other than (A) trade payables and accrued
expenses incurred in the ordinary course of business consistent with past practice and
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(B)
liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP;
(iii) the Company has not altered its method of accounting; (iv) the Company has not declared or
made any dividend or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital stock; and (v) the
Company has not issued any equity securities to any of its officers, directors or Affiliates. As
of the date hereof, except for the issuance of the Shares contemplated by this Agreement, no event,
liability or development has occurred or exists with respect to the Company or its subsidiaries or
their respective business, properties, operations or financial condition that is required to be
disclosed by the Company under applicable securities laws.
4.10 Full Disclosure. No representation or warranty made by the Company in this
Agreement contains any untrue statement of a material fact, or omits to state a material fact
necessary to make the statements contained herein not misleading.
SECTION 5. Representations, Warranties and Covenants of the Purchasers. Each
Purchaser severally, and not jointly with any other Purchaser, represents and warrants to the
Company that:
5.1 Experience. (i) Such Purchaser is knowledgeable, sophisticated and experienced in
financial and business matters, and is making, and is qualified to make, decisions with respect to
investments in shares representing an investment decision like that involved in the purchase
of the Shares, including investments in securities issued by the Company and/or comparable
entities, has the ability to bear the economic risks of an investment in the Shares and has had the
opportunity to request, receive, review and consider all information it deems relevant in making an
informed decision to purchase the Shares; (ii) such Purchaser is acquiring the number of Shares set
forth on such Purchaser’s signature page attached hereto for its own account, solely for investment
and with no present intention to distribute any of such Shares and is subject to no arrangement or
understanding with any other persons regarding the distribution of such Shares; (iii) such
Purchaser will not, directly or indirectly, offer, sell, pledge, transfer or otherwise dispose of
(or solicit any offers to buy, purchase or otherwise acquire or take a pledge of) any of the
Shares, except in compliance with the Securities Act of 1933, as amended (the “Securities
Act”), and the rules and regulations promulgated thereunder (the “Rules and
Regulations”) and any applicable state securities laws; (iv) such Purchaser has, in connection
with its decision to purchase the number of Shares set forth on such Purchaser’s signature page
attached hereto, relied solely upon the representations and warranties of the Company contained in
this Agreement; (v) such Purchaser has had an opportunity to discuss this investment with
representatives of the Company and ask questions of them; and (vi) such Purchaser is either a
“qualified institutional buyer” as defined by Rule 144A promulgated under the Securities Act or an
“accredited investor” as defined by Rule 501(a) of Regulation D promulgated under the Securities
Act.
5.2 Reliance on Exemptions. Such Purchaser understands that the Warrants, the Shares,
and the Common Stock issuable upon conversion of the Shares (the “Conversion Shares” and,
together with the Shares and the Warrants, the “Securities”) are being offered and sold to
in reliance upon specific exemptions from the registration requirements of the Securities Act and
state securities laws and that the Company is relying upon the truth and accuracy of, and the
Purchaser’s compliance with, the representations, warranties, covenants, agreements,
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acknowledgments and understandings of such Purchaser contained in this Agreement in order to
determine the availability of such exemptions and the eligibility of the Purchaser to acquire the
Securities.
5.3 Confidentiality. Such Purchaser understands that this Agreement, the information
contained in all materials provided to the Purchaser by the Company and its representatives,
including any information conveyed orally, in connection with the transactions contemplated
hereunder (“Confidential Information”), is strictly confidential and proprietary to the
Company and is being provided to such Purchaser solely for such Purchaser’s confidential use in
connection with the transactions contemplated hereunder. Such Purchaser agrees to use the
Confidential Information solely for the purpose of evaluating a possible investment in the Shares,
and such Purchaser acknowledges that it is prohibited from distributing, divulging or discussing
any Confidential Information, in whole or in part, with any Person, except to such Purchaser’s
financial, investment or legal advisors (such Persons, “Authorized Advisors”), solely to
the extent necessary for such Authorized Advisors to assist such Purchaser with its proposed
investment in the Shares. To the extent that such Purchaser provides, directly or indirectly, any
Confidential Information to any Authorized Advisor, such Purchaser shall ensure that such
Authorized
Advisor maintain the confidentiality of the Confidential Information to the same extent
applicable to such Purchaser as set forth in this Section 5.3. Confidential Information does not
include any information that is or becomes publicly available through no fault of such Purchaser or
Purchaser’s Authorized Advisors, or that such Purchaser is required to disclose pursuant to
applicable law, regulation or legal process; provided, however, that if such
Purchaser is requested or ordered to disclose any Confidential Information pursuant to any court or
other government order or any other applicable legal procedure, it shall provide the Company with
prompt notice of any such request or order so that the Company may seek an appropriate protective
order.
5.4 Investment Decision. Such Purchaser understands that nothing in this Agreement or
any other materials presented to the Purchaser in connection with the purchase and sale of the
Shares constitutes legal, tax or investment advice. Such Purchaser has consulted such legal, tax
and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in
connection with its purchase of the Shares.
5.5 Risk of Loss. Such Purchaser understands that its investment in the Shares
involves a significant degree of risk, including a risk of total loss of such Purchaser’s
investment, and such Purchaser has full cognizance of and understands all of the risk factors
related to its purchase of the Shares, including, but not limited to, those set forth in the SEC
Documents. The Purchaser understands that no representation is being made as to the future value
of the Securities.
5.6 Residency. Such Purchaser’s principal executive offices, or primary residence, as
applicable, are in the jurisdiction set forth on such Purchaser’s signature page attached hereto.
5.7 Authorization, Enforceability and Related Matters. (i) Such Purchaser has full
right, power, authority and capacity to enter into this Agreement and to consummate the
transactions contemplated hereby and has taken all necessary action to authorize the execution,
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delivery and performance of this Agreement; (ii) the making and performance of this Agreement by
such Purchaser and the consummation by such Purchaser of the transactions contemplated herein will
not violate any provision of the organizational documents of such Purchaser (if not a natural
person) or, except to the extent that it would not have a Material Adverse Effect on such
Purchaser’s ability to consummate the transactions contemplated hereby, conflict with, result in
the breach or violation of, or constitute, either by itself or upon notice or the passage of time
or both, a default under any material agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which such Purchaser is a party, or any statute
or any authorization, judgment, decree, order, rule or regulation of any court or any regulatory
body; administrative agency or other governmental agency or body applicable to such Purchaser,
(iii) no consent, approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental agency or body
is required in respect of such Purchaser’s execution and delivery of this Agreement or the
consummation by such Purchaser of the transactions contemplated by this Agreement; (iv) upon the
execution and mutual delivery of this Agreement by the parties hereto, this Agreement shall
constitute a legal, valid and binding obligation of such Purchaser, enforceable against such
Purchaser in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general application relating to
the enforcement of creditor’s rights and the application of equitable principles relating to the
availability of remedies, and except as rights to indemnity or contribution may be limited by
federal or state securities laws or the public policy underlying such laws; and (v) there is not in
effect any order enjoining or restraining the Purchaser from entering into or engaging in any of
the transactions contemplated by this Agreement.
5.8 Brokers or Finders. No broker, investment banker, financial advisor or other
individual, corporation, general or limited partnership, limited liability company, firm, joint
venture, association, enterprise, joint securities company, trust, unincorporated organization or
other person or entity is entitled to any broker’s, finder’s, financial advisor’s or other similar
fee or commission in connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of such Purchaser or of its Affiliates.
SECTION 6. Restrictions on Transfer.
6.1 Lock-Up. Each of the Purchasers hereby irrevocably agrees that until the third
anniversary of the date of Closing, he she or it will not, without the prior written consent of the
Company, directly or indirectly:
(a) Offer for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device that is designed to, or could be expected to, result in the
disposition by any person at any time in the future, of any of the Securities;
(b) Enter into any swap or other derivatives transaction that transfers to another,
in whole or in part, any of the economic benefits or risks of ownership of the
Securities, or
(c) Publicly disclose the intention to do any of the foregoing, for a period
commencing on the date hereof and ending on the earlier of (i) the third
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anniversary
of the date hereof or (ii) the conversion of the Shares pursuant to subparagraph
(e)(ii) of the Certificate of Designation.
6.2 Restrictions on Transfer. The Securities may be disposed of only in compliance
with state and federal securities laws. In connection with any transfer of any Securities other
than pursuant to an effective registration statement or Rule 144 under the Securities Act, the
Company may require the transferor thereof to provide to the Company an opinion of counsel selected
by the transferor and reasonably acceptable to the Company, the form and substance of which opinion
shall be
reasonably satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act. As a condition of transfer,
any such transferee shall agree in writing to be bound by the terms of this Agreement.
6.3 Restrictive Legend. Each Purchaser agrees that a restrictive legend, in
substantially the following form, shall be imprinted on the Securities:
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.
SECTION 7. Survival of Representations, Warranties and Agreements. All covenants,
representations and warranties made by the Company and the Purchasers herein and in any documents
delivered pursuant hereto shall survive for a period of one (1) year following the later of the
execution of this Agreement or the Closing.
SECTION 8. Independent Nature of Purchasers’ Obligations and Rights. The obligations
of each Purchaser under this Agreement are several and not joint (or joint and several) with the
obligations of any other Purchaser hereunder, and no Purchaser shall be responsible in any way for
the performance of the obligations of any other Purchaser under this Agreement. The decision of a
Purchaser to purchase Shares pursuant to this Agreement has been made by such Purchaser
independently of any other Purchaser. Nothing contained in this
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Agreement, and no action taken by
any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a partnership, an
association, a joint venture or any kind of entity, or create a presumption that the Purchasers are
in any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by this Agreement. Each Purchaser acknowledges that no other Purchaser has acted as
agent for such Purchaser in connection with
making its investment hereunder and that no other Purchaser will be acting as agent of such
Purchaser in connection with monitoring its investment in the Securities or enforcing its rights
under this Agreement.
SECTION 9. Notices. All notices required or permitted hereunder shall be in writing
and shall be deemed effectively given: (i) upon delivery to the party to be notified; (ii) when
received by confirmed facsimile or (iii) one (1) business day after deposit with a nationally
recognized overnight carrier, specifying next business day delivery, with written verification of
receipt. All communications shall be sent to the Company and the Purchasers as follows or at such
other addresses as the Company or any Purchaser may designate upon ten (10) days’ advance written
notice to the other party:
(a) if to the Company, to:
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn.: Xxxx Xxxxx
Xxxxx, XX 00000
Attn.: Xxxx Xxxxx
(b) if to a Purchaser, at its address as set forth on such Purchaser’s signature page attached
hereto.
SECTION 10. Amendments. This Agreement may not be modified or amended except pursuant
to an instrument in writing signed by the Company and each of the Purchasers. No waiver of any
provision this Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof (regardless of whether similar), nor shall any such waiver constitute
a continuing waiver unless otherwise expressly provided.
SECTION 11. Headings. The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be part of this
Agreement.
SECTION 12. Severability. In case any provision contained in this Agreement should be
invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or impaired thereby.
SECTION 13. Governing Law. This Agreement and any disputes or claims arising out of
or in connection with its subject matter shall be governed by and construed in accordance with the
laws of the State of
Florida without regard to the rules of conflict of laws of such state that would cause the
laws of another jurisdiction to apply. The parties hereto acknowledge and
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agree that venue and
jurisdiction for any claim, suit or controversy related to or arising out of this Agreement shall
lie in the state or federal courts located in Miami-Dade County, Florida. THE PARTIES HEREBY WAIVE
THE RIGHT TO JURY TRIAL OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR THE CONDUCT OF THE
RELATIONSHIP BETWEEN THEM.
SECTION 14. Counterparts; Facsimile Signatures. This Agreement may be executed in one
or more counterparts, each of which shall constitute an original, but all of which, when taken
together, shall constitute but one instrument, and shall become effective when one or more
counterparts have been signed by each party hereto and delivered to the other parties. Facsimile or
other electronically scanned and transmitted signatures shall be deemed originals for all purposes
of this Agreement.
SECTION 15. Entire Agreement. This Agreement (including the Exhibits, Schedules and
Appendices attached hereto) and the instruments referenced herein contain the entire understanding
of the parties with respect to the matters covered herein and therein and, except as specifically
set forth herein or therein, neither the Company nor any Purchaser makes any representation,
warranty, covenant or undertaking with respect to such matters.
SECTION 16. Fees and Expenses. Except as expressly set forth herein, the Company, on
the one hand, and each Purchaser, on the other hand, shall pay their respective fees and expenses
related to the transactions contemplated by this Agreement.
SECTION 17. Parties. This Agreement is made solely for the benefit of and is binding
upon the Purchasers and the Company, and no other person shall acquire or have any right under or
by virtue of this Agreement.
SECTION 18. Assignment. Except as otherwise expressly provided herein, the provisions
hereof shall inure to the benefit of, and be binding upon, the parties hereto and their respective
successors and assigns. This Agreement and the rights of each Purchaser hereunder may be assigned
by said Purchaser only with the prior written consent of the Company. The Company may not assign
this Agreement without the written consent of each of the Purchasers.
SECTION 19. Further Assurances. Each party agrees to cooperate fully with the other
parties hereto and to execute such further instruments, documents and agreements and to give such
further written assurance as may be reasonably requested by any other party to evidence and reflect
the transactions described
herein and contemplated hereby and to carry into effect the intents and purposes of this
Agreement.
SECTION 20. Liability Not Affected by Knowledge or Waiver. The right to recovery of
losses or other remedy based upon breach of representations, warranties or covenants will not be
affected by any investigation conducted, or knowledge acquired (or capable of being acquired) at
any time, whether before or after the execution and delivery of this Agreement, with respect to the
accuracy or inaccuracy of or compliance or noncompliance with any such representation, warranty, or
covenant.
[Signature pages follow]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
| COMPANY: | ||||||
| OPKO HEALTH, INC. | ||||||
| By: Name: |
/s/ Xxxxxx X. Xxxxx
|
|||||
| Title: | Executive Vice President — Administration | |||||
Company Signature Page to Securities Purchase Agreement
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their duly
authorized representatives as of the day and year first above written.
| PURCHASER(S): | ||||||
| If a corporation or other entity: | Xxx Gamma Investment, L.P. | |||||
| (name of corporation or entity) | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | General Partner | |||||
If an individual: |
||||||
| Name: | ||||||
| Name (co-purchaser, if any): | ||||||
Number of Shares Purchased:
|
80,645 | |||||
Number of Warrants Purchased
|
201,613 | |||||
Purchase Price
|
$1,999,996 | |||||
| Contact Information | Address: | |||||
| 0000 Xxxxxxxx Xxxx. | ||||||
| Xxxxx, XX 00000 | ||||||
| Telephone: | ||||||
| Facsimile: | ||||||
| E-mail: | ||||||
Purchaser Signature Page to Securities Purchase Agreement
