SECURITIES PURCHASE AGREEMENT
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: | ||
| OPKO Health, Inc. 0000 Xxxxxxxx Xxxxxxxxx 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: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | 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: | Frost Gamma Investments Trust | |||||
| (name of corporation or entity) | ||||||
| By | /s/ Xxxxxxx Xxxxx | |||||
| Name: | Xxxxxxx Xxxxx | |||||
| Title: | Trustee | |||||
If an individual: |
||||||
| Name: | ||||||
| Name (co-purchaser, if any): | ||||||
Number of Shares Purchased:
|
252,019 | |||||
Number of Warrants Purchased
|
630,048 | |||||
Purchase Price
|
$6,250,071.20 | |||||
Contact Information
|
Address: | |||||
| 0000 Xxxxxxxx Xxxx. | ||||||
| Xxxxx, XX 00000 | ||||||
| Telephone: | ||||||
| Facsimile: | ||||||
| E-mail: | ||||||
Purchaser Signature Page to Securities Purchase Agreement
