Stock Purchase Agreement is dated as of December 4, 2007 (this "Agreement"),
between OPKO Health, Inc., a Delaware corporation (the "Company"),
the members of The Frost Group, LLC, as listed on Annex
(collectively, the "Purchasers").
the Company desires to sell to Purchasers, and Purchasers desire to purchase
from the Company, shares of the Company's common stock, par value $.01 per
the terms and subject to the conditions set forth in this
the Purchase Price and the Shares issued shall be allocated among the Purchasers
in accordance with Annex
THEREFORE, in consideration of the premises and the mutual covenants contained
in this Agreement and for other good and valuable consideration, the receipt
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the parties agree as follows:
and Sale of Common Stock
and Sale of the Shares.
to the terms and conditions hereof, the Company hereby agrees to issue and
to Purchasers, and Purchasers hereby agree to purchase from the Company,
shares of Common Stock (the "Shares") at a purchase price of $1.84 per share
an aggregate purchase price of $20 million (the "
closing of the issuance and sale of the Shares (the "Closing")
take place at the Company’s offices in Miami, Florida concurrently with the
execution of this Agreement. As payment in full for the Shares being purchased
by them at the Closing, Purchasers shall pay to the Company the Purchase Price
by wire transfer no later than December 7, 2007. Upon the receipt of the
Purchase Price, the Company shall instruct the Company’s transfer agent to issue
and deliver to Purchasers, stock certificates in definitive form, registered
the names of Purchasers, representing the number of Shares purchased at the
Closing in accordance with Annex
Company and Purchasers shall cooperate with each other and use their respective
commercially reasonable best efforts to take or cause to be taken all actions,
and do or cause to be done all things, necessary, proper or advisable under
Agreement and applicable laws and regulations to consummate and make effective
the sale of the Shares (the "Sale")
the other transactions contemplated by this Agreement as soon as practicable,
including preparing and filing as promptly as practicable all documentation
effect all necessary applications, notices, petitions, filings and other
documents and to obtain as promptly as practicable all permits, consents,
approvals and authorizations necessary or advisable to be obtained from any
third party and/or any governmental entity in order to consummate the Sale
any of the other transactions contemplated by this Agreement.
and Warranties of the Company
Company represents and warrants to Purchasers as of the date hereof as
of Agreements, etc.
execution and delivery by the Company of this Agreement, the performance by
Company of its obligations hereunder, and the issuance, sale and delivery of
Shares have been duly authorized by all requisite corporate action and will
result in any violation of, be in conflict with, or constitute a default under,
with or without the passage of time or the giving of notice: (a) any provision
of the Company's Certificate of Incorporation, as amended, or Bylaws, as
amended; (b) any provision of any judgment, decree or order to which the Company
is a party or by which it is bound; (c) any material contract or agreement
which the Company is a party or by which it is bound; or (d) any statute, rule
or governmental regulation applicable to the Company, except where such
violation, conflict, or default would not have a material adverse effect on
Issuance of Common Stock.
Shares have been duly authorized and, when issued, sold and delivered in
accordance with this Agreement for the consideration expressed herein will
validly issued, fully paid and nonassessable with no personal liability
attaching to the ownership thereof and will be free and clear of all liens,
charges and encumbrances of any nature whatsoever except for restrictions on
transfer under this Agreement and under applicable Federal and state securities
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, and (ii) as limited by
laws relating to the availability of specific performance, injunctive relief,
other equitable remedies.
the Company nor any of its subsidiaries, officers, directors or employees has
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the Sale or the other
transactions contemplated by this Agreement.
and Warranties of Purchasers
the Purchasers hereby severally and not jointly represents and warrants to
Company as of the date hereof as follows:
Agreement has been duly executed and delivered by Purchaser and constitutes
legal, valid and binding obligation of Purchaser, enforceable in accordance
its terms except:
limited by applicable bankruptcy, insolvency, reorganization, moratorium, and
other laws of general application affecting enforcement of creditors' rights
limited by laws relating to the availability of specific performance, injunctive
relief, or other equitable remedies.
is an "accredited investor" within the meaning of Rule 501 of Regulation D
the Securities Act of 1933, as amended (the "Securities
was not organized for the specific purpose of acquiring the Shares;
has sufficient knowledge and experience in investing in companies similar to
Company in terms of the Company's stage of development so as to be able to
evaluate the risks and merits of its investment in the Company and it is able
financially to bear the risks thereof;
present intention that the Shares being purchased by Purchaser are being
acquired for Purchaser's own account for the purpose of investment and not
a present view to or for sale in connection with any distribution
Shares have not been registered under the Securities Act by reason of their
issuance in a transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereof or Rule 505 or 506 promulgated
under the Securities Act;
Shares must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or is exempt from such
Shares will bear a legend to such effect; and
Company will make a notation on its transfer books to such effect;
Company has made available to Purchaser all documents and information that
Purchaser has requested relating to an investment in the Company.
Purchaser has not employed any broker or finder or incurred any liability for
any brokerage fees, commissions or finders' fees in connection with the Sale
the other transactions contemplated by this Agreement.
the Purchasers hereby irrevocably agrees that until the second anniversary
the date of this Agreement, he she or it will not, without the prior written
consent of the Company, directly or indirectly:
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 Shares;
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
disclose the intention to do any of the foregoing, for a period commencing
the date hereof and ending on the second anniversary of the date hereof.
certificate that represents Shares shall have conspicuously endorsed thereon
STOCK HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. THIS STOCK MAY NOT BE OFFERED
OR TRANSFERRED BY SALE, ASSIGNMENT, PLEDGE OR OTHERWISE UNLESS (A) A
REGISTRATION STATEMENT FOR THE STOCK UNDER THE SECURITIES ACT IS IN EFFECT
(B) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, WHICH OPINION IS
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OR THE RELEVANT STATE SECURITIES
STOCK IS SUBJECT TO RESTRICTIONS ON RESALE PURSUANT TO THAT CERTAIN STOCK
PURCHASE AGREEMENT WITH THE COMPANY DATED DECEMBER 4, 2007 AND MAY NOT BE
OFFERED OR TRANSFERRED BY SALE, ASSIGNMENT, PLEDGE OR OTHERWISE UNTIL DECEMBER
4, 2009, WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY.
party hereto will indemnify and hold harmless the other against and in respect
of any claim for brokerage or other commissions relative to this Agreement
the transactions contemplated hereby, based in any way on agreements,
arrangements or understandings made or claimed to have been made by such party
with any third party.
representations, covenants and agreements contained in this Agreement by or
behalf of any of the parties hereto shall bind and inure to the benefit of
respective successors and assigns of the parties hereto whether so expressed
notices, requests, consents, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on
date of service if served personally on the party to whom notice is to be given,
on the date of transmittal of services via telecopy to the party to whom notice
is to be given (with a confirming copy delivered within 24 hours thereafter),
on the third day after mailing if mailed to the party to whom notice is to
given, by first class mail, registered or certified, postage prepaid, or
overnight mail via a nationally recognized courier providing a receipt for
delivery and properly addressed as follows:
to the Company:
Kate Inman, Esq.
to any of the Purchasers:
Frost Group, LLC
may change its address for purposes of this paragraph by giving notice of the
new address to each of the other parties in the manner set forth
Agreement shall be governed by and construed in accordance with the laws of
State of Florida for all purposes and in all respects, without regard to the
conflict of law provisions of such state.
Agreement constitutes the sole and entire agreement of the parties with respect
to the subject matter hereof.
Agreement may be executed in two or more counterparts (including facsimiles),
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Agreement may be amended or modified, and provisions hereof may be waived,
with the written consent of the Company and the Purchasers.
provision of this Agreement shall be declared void or unenforceable by any
judicial or administrative authority, the validity of any other provision and
the entire Agreement shall not be affected thereby.
titles and subtitles used in this Agreement are for convenience only and are
to be considered in construing or interpreting any term or provision of this
THEREFORE, the Company and Purchasers have executed this Stock Purchase
Agreement as of the date first above written.
GAMMA INVESTMENTS TRUST,
the Frost Group, LLC
of the Frost Group, LLC
Rubin, Member of the Frost Group, LLC
of the Frost Group, LLC
Gamma Investments Trust