STOCK PURCHASE AGREEMENT by and among V-Sciences Investments Pte Ltd, a Singapore company as “Seller” and the parties set forth on Annex B hereto as “Buyers” Dated: April 30, 2008
EXHIBIT
3
by
and
among
V-Sciences
Investments Pte Ltd, a Singapore company
as
“Seller”
and
the
parties set forth on Annex B hereto
as
“Buyers”
Dated:
April 30, 2008
TABLE
OF CONTENTS
Page
|
1.
|
DEFINITIONS
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1
|
|
|
1.1.
|
Defined
Terms
|
1
|
|
|
2.
|
PURCHASE
AND SALE OF STOCK
|
1
|
|
|
2.1.
|
Transfer
of Stock
|
1
|
|
|
2.2.
|
Consideration
for Stock
|
1
|
|
|
3.
|
CLOSING
|
2
|
|
|
3.1.
|
Closing
|
2
|
|
|
3.2.
|
Deliveries
and Actions on the Closing Date
|
2
|
|
|
4.
|
CONDITIONS
TO CLOSING
|
2
|
|
|
4.1.
|
Representations,
Warranties and Covenants
|
2
|
|
|
5.
|
REPRESENTATIONS
AND WARRANTIES OF SELLER
|
2
|
|
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5.1.
|
Ownership
by Seller
|
2
|
|
|
5.2.
|
Authorization
|
3
|
|
|
5.3.
|
Consents
and Approvals
|
3
|
|
|
5.4.
|
No
Conflict or Violation
|
3
|
|
|
5.5.
|
Acknowledgements
|
3
|
|
|
6.
|
REPRESENTATIONS
AND WARRANTIES OF BUYERS
|
4
|
|
|
6.1.
|
Authorization
|
4
|
|
|
6.2.
|
Consents
and Approvals
|
4
|
|
|
6.3.
|
No
Conflict or Violation
|
4
|
|
|
6.4.
|
Suitability
of Investment
|
4
|
|
|
6.5.
|
Acquisition
for Investment
|
5
|
|
|
6.6.
|
Acknowledgements
|
5
|
|
|
7.
|
SECURITIES
LAWS
|
5
|
|
|
7.1.
|
Legend
|
5
|
|
|
8.
|
MISCELLANEOUS
|
5
|
|
|
8.1.
|
Termination
|
5
|
|
|
8.2.
|
Survival
of Representations
|
6
|
|
|
8.3.
|
Assignment
|
6
|
|
|
8.4.
|
Notices;
Transfer of Funds
|
6
|
|
|
8.5.
|
Choice
of Law
|
6
|
|
|
8.6.
|
Entire
Agreement; Amendments and Waivers
|
6
|
|
|
8.7.
|
Counterparts
|
7
|
|
|
8.8.
|
Invalidity
|
7
|
|
|
8.9.
|
Expenses
|
7
|
|
|
8.10.
|
Confidential
Information
|
7
|
|
i
This
Stock Purchase Agreement (this “Agreement”), dated as of April 30, 2008 is by
and among the parties set forth on Annex B hereto (“Buyers”) and V-Sciences
Investments Pte Ltd, a Singapore company (“Seller”).
RECITALS
A. Seller
owns (i) shares of Common Stock of the Company, and (ii) Warrants to purchase
Common Stock of the Company, each as described in Annex A hereto (collectively,
the “Stock”) of Opko Health, Inc., a Delaware company (the
“Company”).
B. Buyers
desire to purchase from Seller, and Seller desires to transfer to Buyers, all
of
the shares of Stock subject to the terms and conditions of this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other good and valuable consideration the receipt and adequacy
of
which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
1.1.
Defined
Terms.
As used
herein, the terms below shall have the following meanings:
“Closing
Date”
shall
mean May 8, 2008, or such other date as may be mutually agreed upon in writing
by Seller and Buyers.
“Common
Stock”
shall
mean common stock, par value $0.01 per share, of the Company.
“Encumbrances”
shall
mean any claim, lien, pledge, option, charge, easement, security interest,
right-of-way, encumbrance or other rights of third parties.
2. PURCHASE
AND SALE OF STOCK
2.1.
Transfer
of Stock.
Upon
the terms and subject to the conditions contained herein, Seller will sell,
convey, transfer, assign and deliver to each Buyer, and each Buyer will purchase
on the Closing Date, all the shares of the Stock set forth opposite such Buyer’s
name on Annex B hereto. Each Buyer acknowledges and agrees that Seller shall
not
be obliged to sell any shares of Stock to any Buyer hereunder unless the sale
and purchase of all the shares of Stock is completed simultaneously, unless
determined otherwise by Seller in its sole discretion.
2.2.
Consideration
for Stock.
Upon
the terms and subject to the conditions contained herein, as consideration
for
the purchase of the Stock, each Buyer shall pay to Seller, in immediately
available funds, the amount set forth opposite such Buyer’s name on Annex B
hereto, for an aggregate purchase price of U.S. Dollars Four million Eight
Hundred Seventy-Eight Thousand Eight Hundred Eighty-Four and Cents Thirty Three
Only (US$4,878,884.33) (the “Purchase Price”).
3. CLOSING
3.1.
Closing.
The
closing of the transactions contemplated herein (the “Closing”) shall be held at
9:00 a.m. NY time on the Closing Date at the offices of Xxxxxx & Xxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000 unless the parties hereto otherwise
agree.
3.2.
Deliveries
and Actions on the Closing Date.
Subject
to all conditions precedent to Closing as set forth in Article 4 having either
been satisfied or waived by the relevant party, on the Closing
Date:
|
(a)
|
Each
Buyer shall deliver to Seller certificate required to be delivered
by
Buyers pursuant to Article 4 in form and substance, and executed
in a
manner, reasonably satisfactory to
Seller.
|
|
(b)
|
Seller
shall deliver to Buyers certificate required to be delivered by Seller
pursuant to Article 4 in form and substance, and executed in a manner,
reasonably satisfactory to Buyers.
|
|
(c)
|
Each
Buyer shall deliver to Seller his or its respective share of the
Purchase
Price in immediately available funds as provided in Section 2.2 by
wire
transfer in accordance with instructions to be provided by Seller
to
Buyers.
|
|
(d)
|
Seller
will deliver to Buyers certificates evidencing the Stock, accompanied
by
duly executed applicable Notice of and Form of Assignment in the
form
annexed to the certificates in favor of the Buyers, together with
a
direction letter to the Company providing for delivery of each Buyer’s
respective Stock to such Buyer.
|
4. CONDITIONS
TO CLOSING
The
obligations of the parties on the Closing Date are subject to the satisfaction,
on or prior to the Closing Date, of each of the following
conditions:
4.1.
Representations,
Warranties and Covenants.
All
representations and warranties of each party contained in this Agreement shall
be true and correct in all respects at and as of the date hereof and the Closing
Date as if such representations and warranties were made at and as of such
date,
and each party shall have performed in all material respects all agreements
and
covenants required hereby to be performed by it prior to or at the Closing
Date.
Each party shall deliver to other party a certificate (signed by such party)
to
the foregoing effect.
2
5. REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
hereby represents and warrants to Buyers as follows:
5.1.
Ownership
by Seller.
Seller
owns of record and beneficially all of the Stock free and clear of all
Encumbrances and, upon transfer to Seller of the Purchase Price, Seller will
pass to the respective Buyer good and valid title to the Stock purchased by
such
Buyer, free and clear of all Encumbrances.
5.2.
Authorization.
Seller
has all necessary corporate power and authority to enter into this Agreement
and
has taken all corporate action necessary to consummate the transactions
contemplated hereby and to perform his obligations hereunder. This Agreement
has
been duly executed and delivered by Seller and is a legal, valid and binding
obligation of Seller enforceable against Seller in accordance with its terms,
except as limited by bankruptcy, insolvency, reorganization, moratorium or
other
similar laws relating to creditors’ rights generally or by equitable principles
(whether considered in an action at law or in equity).
5.3.
Consents
and Approvals.
No
consent, approval or authorization of, or declaration, filing or registration
with, any United States or foreign governmental or regulatory authority is
required to be made or obtained by Seller in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby. Except for Xxxxxx Brothers Inc., whose fees
and expenses are the sole responsibility of Seller, neither Seller nor any
affiliate of Seller has entered into or will enter into any agreement,
arrangement or understanding with any person, entity or firm which will result
in the obligation of any Buyer to pay any finder’s fee, brokerage commission or
similar payment in connection with the transactions contemplated
hereby.
5.4.
No
Conflict or Violation.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will result in (a) a violation of or a conflict
with any provision of the Certificate of Incorporation or Bylaws or other
organizational documents of Seller, (b) a breach of, or a default under, any
term or provision of any contract, agreement, indebtedness, lease, commitment,
license, franchise, permit, authorization or concession to which Seller is
a
party or to which any of its assets are subject which breach or default would
have a material adverse effect on the business or financial condition of Seller
or its ability to consummate the transactions contemplated hereby or (c) a
violation by Seller of any statute, rule, regulation, ordinance, code, order,
judgment, writ, injunction, decree or award, which violation would have a
material adverse effect on the business or financial condition of Seller or
its
ability to consummate the transactions contemplated hereby.
3
5.5.
Acknowledgements.
Seller
acknowledges and agrees as follows:
(a) Each
of
the Buyers and their affiliates, and other related parties, may now or hereafter
possess certain information, including material and/or non-public information
("Information"), concerning the Company and its affiliates and/or the Company’s
securities that may or may not be independently known to Seller. Seller confirms
and acknowledges that neither the existence of any Information, nor the
substance of it, nor the fact that it may not have been disclosed by any of
the
Buyers to it, is material to it or its determination to enter into this
Agreement and to consummate the purchase and sale of the Stock pursuant hereto.
Seller shall not xxx, commence litigation or make any claim arising out of
or
related to the omission of any of the Buyers to disclose any Information to
Seller.
(c) None
of
the Buyers has made and does not make any representation or warranty, whether
express or implied, including
without limitation
with
respect to the business, condition (financial or otherwise), properties,
prospects, creditworthiness, status or affairs of the Company or with respect
to
the value of any of the Stock, of any kind or character and none of the Buyers
has any obligations to Seller, whether express or implied, including without
limitation, fiduciary obligations, except as expressly set forth in this
Agreement.
6. REPRESENTATIONS
AND WARRANTIES OF BUYERS
Each
Buyer, severally and not jointly, hereby represents and warrants to Seller
as
follows:
6.1.
Authorization.
Each
Buyer is, to the extent applicable, duly organized, validly existing and in
good
standing under the laws of the state of the jurisdiction of its organization,
and has all necessary power and authority to enter into this Agreement and,
to
the extent applicable, has taken all necessary corporate action to consummate
the transactions contemplated hereby and to perform its obligations hereunder.
This Agreement has been duly executed and delivered by each Buyer and is a
valid
and binding obligation of such Buyer enforceable against it in accordance with
its terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to creditors’ rights generally or by
equitable principles (whether considered in an action at law or in
equity).
6.2.
Consents
and Approvals.
No
consent, approval or authorization of, or declaration, filing or registration
with, any United States or foreign governmental or regulatory authority is
required to be made or obtained by any Buyer in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby. Neither any Buyer nor any affiliate of any
Buyer has entered into or will enter into any agreement, arrangement or
understanding with any person, entity or firm which will result in the
obligation of Seller to pay any finder’s fee, brokerage commission or similar
payment in connection with the transactions contemplated hereby.
4
6.3.
No
Conflict or Violation.
Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will result in (a) to the extent applicable,
a
violation of or a conflict with any provision of the Certificate of
Incorporation or Bylaws or other organizational documents of any Buyer, (b)
a
breach of, or a default under, any term or provision of any contract, agreement,
indebtedness, lease, commitment, license, franchise, permit, authorization
or
concession to which any Buyer is a party or to which any of the Buyers’ assets
are subject which breach or default would have a material adverse effect on
the
business or financial condition of any Buyer or any Buyer’s ability to
consummate the transactions contemplated hereby or (c) a violation by any Buyer
of any statute, rule, regulation, ordinance, code, order, judgment, writ,
injunction, decree or award, which violation would have a material adverse
effect on the business or financial condition of any Buyer or any Buyer’s
ability to consummate the transactions contemplated hereby.
6.4.
Suitability
of Investment.
Each
Buyer represents and warrants that it has (a) the financial ability to bear
the
economic risk of the investment in the Stock, (b) adequate means to provide
for
its current needs and other contingencies and to withstand the loss of the
entire investment in the Stock and (c) no need for liquidity with respect to
the
investment in the Stock. Each Buyer has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits
and
risks of a purchase of the Stock and, and has determined that the purchase
of
Stock is a suitable investment for itself. Each Buyer acknowledges that it
is
making its decision based on publicly available information regarding the
Company as it deems sufficient to make an informed investment decision with
respect to an investment in the Stock and has not been provided with any
information regarding the Company by Seller. Each Buyer has consulted with
its
own legal, regulatory, tax, business, investment, financial and accounting
advisers in connection herewith to the extent it has deemed necessary, and
has
made its own investment decision and not based upon any view expressed by or
on
behalf of Seller.
6.5.
Acquisition
for Investment.
Each
Buyer represents and warrants that the shares of Stock to be purchased by such
Buyer pursuant to the terms of this Agreement shall be acquired by it in good
faith for investment for its own account and not with a view to, or for resale
in connection with, a distribution or other disposition of any of such Stock
in
violation of the U.S. Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder (the “Securities Act”) or the or the
securities laws of any state or other jurisdiction in the United States or
any
other applicable law.
6.6.
Acknowledgements.
Each
Buyer acknowledges that Seller has not made and does not make any representation
or warranty, whether express or implied, with respect to the business, condition
(financial or otherwise), properties, prospects or affairs of the Company or
with respect to the value of any of the Stock, and Seller has no obligations
to
any Buyer, whether express or implied, including without limitation, fiduciary
obligations, except as expressly set forth in this Agreement.
5
7. SECURITIES
LAWS
7.1.
Legend.
Each
Buyer is aware of and acknowledges that the shares of Stock have not been
registered under the Securities Act or the securities laws of any state or
other
jurisdiction in the United States and is being sold by Seller and acquired
by
such Buyer in a transaction exempt from, or not subject to, the registration
requirements of the Securities Act. Each Buyer will comply with the applicable
securities laws in connection with the purchase of Stock hereunder and any
further sale or transfer of any shares of Stock in the future. Each Buyer
acknowledges that each certificate representing shares of Stock sold pursuant
to
the provisions hereof, bears and, if deemed advisable by the Company, shall
bear
a legend substantially to the following effect:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF EXEMPTION THEREFROM UNDER SAID ACT OR
THE
RULES AND REGULATIONS PROMULGATED THEREUNDER.”
8. MISCELLANEOUS
8.1.
Termination.
This
Agreement may be terminated and the transactions contemplated hereby
abandoned:
(a) by
either
party if the conditions set forth in Article 4 have not been satisfied on the
Closing Date or such later date as the parties may agree (unless waived by
the
party entitled to the benefit thereof);
(b) by
mutual
consent of Buyers and Seller; or
(b) by
either
party if a material breach of the any provision of this Agreement has been
committed by the other party and such breach has not been waived;
in
each
case without liability of either party hereto; provided,
however,
that no
party shall be released from liability hereunder if this Agreement is terminated
and the transactions abandoned by reason of (i) willful failure of any party
to
have performed its obligations hereunder, or (ii) any knowing misrepresentation
made by any party of any matter set forth herein.
8.2.
Survival
of Representations.
The
representations and warranties of Seller and Buyers contained herein shall
survive the Closing Date until the date that is the six-month anniversary of
the
Closing Date, without regard to any investigation made by any of the parties
hereto. Notwithstanding the foregoing, Seller’s representation and warranty set
forth in Section 5.1 shall survive indefinitely.
8.3.
Assignment.
Neither
this Agreement nor any of the rights or obligations hereunder may be assigned
by
Seller without the prior written consent of Buyers, or by any Buyer without
the
prior written consent of Seller. Subject to the foregoing, this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, and no other person shall have any right,
benefit or obligation hereunder.
6
8.4.
Notices;
Transfer of Funds.
Unless
otherwise provided herein, any notice, request, instruction or other document
to
be given hereunder by any party to the others shall be in writing and delivered
in person or by courier, telegraphed, telexed or by facsimile transmission
or
mailed by certified mail, postage prepaid, return receipt requested (such mailed
notice to be effective on the date of such receipt is acknowledged), as
follows:
If
to
Seller: V-Sciences
Investments Pte Ltd,
If
to
Buyers: At the address and fax number set forth opposite each Buyer’s name on
Annex B hereto
or
to
such other place and with such other copies as either party may designate as
to
itself by written notice to the others.
8.5.
Choice
of Law.
This
Agreement shall be construed, interpreted and the rights of the parties
determined in accordance with the laws of the State of New York except with
respect to matters of law concerning the internal corporate affairs of any
corporate entity which is a party to or the subject of this Agreement, and
as to
those matters the law of the jurisdiction under which the respective entity
derives its powers shall govern.
8.6.
Entire
Agreement; Amendments and Waivers.
This
Agreement constitutes the entire agreement among the parties pertaining to
the
subject matter hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the parties. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of
any
other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
8.7.
Counterparts.
This
Agreement may be executed in one or more counterparts, each of which, including
facsimile copies thereof, shall be deemed an original, but all of which together
shall constitute one and the same instrument.
7
8.8.
Invalidity.
In the
event that any one or more of the provisions contained in this Agreement or
in
any other instrument referred to herein, shall, for any reason, be held to
be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or
unenforceability shall not affect any other provision of this Agreement or
any
other such instrument.
8.9.
Expenses.
Each of
Seller and Buyers will be liable for its own costs and expenses incurred in
connection with the negotiation, preparation, execution or performance of this
Agreement, including all fees and expenses of its agents and counsel, except
that each Buyer shall be responsible for paying in full all expenses payable
to
the Company for the transfer of Stock certificates and the issuance of any
new
certificates in favor of such Buyer by the Company.
8.10.
Confidential
Information.
The
parties acknowledge that the transaction described herein is of a confidential
nature and shall not be disclosed except to consultants, advisors and
affiliates, or as required by law or the rules and regulations of the Securities
and Exchange Commission or the American Stock Exchange, or with the prior
approval of the other party. Neither Seller nor Buyers shall make any public
disclosure of the specific terms of this Agreement, except as required by law
or
the rules and regulations of the Securities and Exchange Commission or the
American Stock Exchange or with the prior approval of the other party.
8
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement, or have caused
this Agreement to be duly executed on their respective behalf by their
respective officers thereunto duly authorized, as of the day and year first
above written.
SELLER:
V-Sciences
Investments Pte Ltd.
By:
_______________________________
Name:
Title:
BUYERS:
Xxx
Gamma
Investment, L.P.
By:
_______________________________
Name:
Title:
9
ANNEX
A
Details
of shares of Stock subject to this Agreement
|
Nature
of Stock
|
Certificate
Number (for Common Stock)
Exercise
Price (for Warrants)
|
Number
of shares/warrants represented by the Certificate
|
|
Common
Stock
|
0366
|
2,985,282
shares of Common Stock
|
|
Common
Stock
|
0367
|
387,918
shares of Common Stock
|
|
Warrants
to Purchase Common Stock effective December 8, 2004
|
US$0.0019
|
210,821
Warrants
|
|
Warrants
to Purchase Common Stock effective July 1, 2007
|
US$0.0019
|
210,821
Warrants
|
|
Warrants
to Purchase Common Stock effective March 27, 2007
|
US$0.6728
|
13,230
Warrants
|
|
Warrants
to Purchase Common Stock effective March 27, 2007
|
US$0.8473
|
13,230
Warrants
|
|
Warrants
to Purchase Common Stock effective March 27, 2007
|
US$1.0466
|
13,230
Warrants
|
|
Warrants
to Purchase Common Stock effective March 27, 2007
|
US$0.6728
|
101,815
Warrants
|
|
Warrants
to Purchase Common Stock effective March 27, 2007
|
US$0.8473
|
101,815
Warrants
|
|
Warrants
to Purchase Common Stock effective March 27, 2007
|
US$1.0466
|
101,816
Warrants
|
10
ANNEX
B
List
of Buyers
|
Buyer
|
Address
and Fax Number
|
Number
of Shares of Common Stock / Warrants being purchased
|
Purchase
Price (in US dollars)
|
|
Xxx
Gamma Investment, L.P.
|
0000
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxx 00000;
Fax
number: (000) 000-0000
|
500,000
shares of Common Stock
|
$625,000
|
11
