SC 13D/A

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D

(Rule 13D-101)

Under the Securities Exchange Act of 1934

(Amendment No. 16)*

 

 

OPKO Health, Inc.

(Name of Issuer)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

68375N103

(CUSIP Number)

Kate Inman

General Counsel, Secretary

OPKO Health, Inc.

4400 Biscayne Boulevard

Miami, Florida 33137

Telephone: (305) 575-4138

(Name, address and telephone number of person authorized to receive notices and communications)

November 8, 2018

(Date of event which requires filing of this statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box  ☐.

The information required on the remainder of this cover page shall not be deemed to be “filed” for purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 


CUSIP No. 68375N103    Schedule 13D    PAGE 2 of 9

 

 

  1   

NAME OF REPORTING PERSONS

 

The Frost Group, LLC

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)  ☒        (b)  ☐

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS

 

N/A

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)  ☐

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Florida

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

SOLE VOTING POWER

 

0 Shares

     8   

SHARED VOTING POWER

 

20,091,062 Shares

     9   

SOLE DISPOSITIVE POWER

 

0 Shares

   10   

SHARED DISPOSITIVE POWER

 

20,091,062 Shares

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

20,091,062 Shares

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

3.4%

14  

TYPE OF REPORTING PERSON

 

OO


CUSIP No. 68375N103    Schedule 13D    PAGE 3 of 9

 

 

  1   

NAME OF REPORTING PERSONS

 

Frost Gamma Investments Trust

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)  ☒        (b)  ☐

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS

 

WC,OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)  ☐

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Florida

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

SOLE VOTING POWER

 

169,234,443 Shares*

     8   

SHARED VOTING POWER

 

20,091,062 Shares

     9   

SOLE DISPOSITIVE POWER

 

169,234,443 Shares

   10   

SHARED DISPOSITIVE POWER

 

20,091,062 Shares*

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

189,325,505 Shares

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

32.0%

14  

TYPE OF REPORTING PERSON

 

OO

 

*

Includes approximately 5,000,000 shares of Common Stock underlying $25,000,000 of the Company’s 5% Convertible Promissory Notes (the “Notes”), which Notes were issued on February 27, 2018 and mature on February 27, 2027 and may be redeemed at any time prior to maturity upon 30 days’ notice at a conversion price of $5.00, subject to adjustment. If the holder elects to convert the Notes, the note holder would receive 200 shares of the Company’s Common Stock per $1,000 of principal amount of Notes.


CUSIP No. 68375N103    Schedule 13D    PAGE 4 of 9

 

 

  1   

NAME OF REPORTING PERSONS

 

Frost Nevada Investments Trust

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)  ☒        (b)  ☐

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS

 

WC,OO

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)  ☐

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

Florida

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

SOLE VOTING POWER

 

24,420,177 Shares

     8   

SHARED VOTING POWER

 

0 Shares

     9   

SOLE DISPOSITIVE POWER

 

24,420,177 Shares

   10   

SHARED DISPOSITIVE POWER

 

0 Shares

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

24,420,177 Shares

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

4.2%

14  

TYPE OF REPORTING PERSON

 

OO


CUSIP No. 68375N103    Schedule 13D    PAGE 5 of 9

 

 

  1   

NAME OF REPORTING PERSONS

 

Phillip Frost, M.D.

  2  

CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP

(a)  ☒        (b)  ☐

 

  3  

SEC USE ONLY

 

  4  

SOURCE OF FUNDS

 

N/A

  5  

CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e)  ☐

 

  6  

CITIZENSHIP OR PLACE OF ORGANIZATION

 

United States

NUMBER OF

SHARES

BENEFICIALLY

OWNED BY

EACH

REPORTING

PERSON

WITH

 

     7    

SOLE VOTING POWER

 

197,898,571 Shares*

     8   

SHARED VOTING POWER

 

22,942,892 Shares**

     9   

SOLE DISPOSITIVE POWER

 

197,898,571 Shares*

   10   

SHARED DISPOSITIVE POWER

 

22,942,892 Shares**

11  

AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON

 

220,841,463 Shares***

12  

CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions)

 

13  

PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)

 

37.3%

14  

TYPE OF REPORTING PERSON

 

IN

 

*

Includes (i) 3,068,951 shares of Common Stock held individually by Dr. Frost; (ii) 24,420,177 shares of Common Stock held by Frost Nevada, which is controlled by Dr. Frost as sole trustee; (iii) options to acquire 1,175,000 shares of Common Stock, which are exercisable within 60 days; and (iv) 169,234,443 shares of Common Stock held by Gamma Trust, which is controlled by Dr. Frost as sole trustee.

**

Includes (i) 2,851,830 shares of Common Stock held by the Phillip and Patricia Frost Philanthropic Foundation, Inc., which is controlled by Dr. Frost and his wife, and (ii) 20,091,062 shares of Common Stock held by Frost Group.

***

Includes (i) 3,068,951 shares of Common Stock held individually by Dr. Frost; (ii) 24,420,177 shares of Common Stock held by Frost Nevada, which is controlled by Dr. Frost as sole trustee; (iii) options to acquire 1,175,000 shares of Common Stock, which are exercisable within 60 days; (iv) 169,234,443 shares of Common Stock held by Gamma Trust, which is controlled by Dr. Frost as sole trustee; (v) 2,851,830 shares of Common Stock held by the Phillip and Patricia Frost Philanthropic Foundation, Inc., which is controlled by Dr. Frost and his wife; and (vi) 20,091,062 shares of Common Stock held by Frost Group.


CUSIP No. 68375N103    Schedule 13D    PAGE 6 of 9

 

This Amendment No. 16 (the “Amendment”) amends and supplements the statement on Schedule 13D filed on February 15, 2007, as amended by Amendment No. 1 to the Schedule 13D filed on April 6, 2007, as amended by Amendment No. 2 to the Schedule 13D filed on August 2, 2007, as amended by Amendment No. 3 to the Schedule 13D filed on February 14, 2008, as amended by Amendment No. 4 to Schedule 13D filed on August 21, 2008, as amended by Amendment No. 5 to the Schedule 13D filed on February 26, 2009, as amended by Amendment No. 6 to the Schedule 13D filed on March 19, 2009, as amended by Amendment No. 7 to the Schedule 13D filed on October 1, 2009, as amended by Amendment No. 8 to the Schedule 13D filed on March 28, 2011, as amended by Amendment No. 9 to the Schedule 13D filed on October 24, 2011, as amended by Amendment No. 10 to the Schedule 13D filed on October 11, 2012, as amended by Amendment No. 11 to the Schedule 13D filed on March 21, 2013, as amended by Amendment No. 12 to the Schedule 13D filed on September 16, 2013, as amended by Amendment No. 13 to the Schedule 13D filed on February 17, 2015, as amended by Amendment No. 14 to the Schedule 13D filed on December 18, 2015 as amended by Amendment No. 15 to Schedule 13-D filed on September 20, 2017 (collectively, the “Original Schedule 13D”), by The Frost Group, LLC (“Frost Group”), Frost Gamma Investments Trust (“Gamma Trust”), Frost Nevada Investments Trust (“Frost Nevada”), and Phillip Frost, M.D. (“Dr. Frost”). This Amendment is filed pursuant to the Joint Filing Agreement as executed by the reporting persons listed on the cover pages to this Amendment. The Joint Filing Agreement, filed as Exhibit 1 to Amendment No. 15 to the Schedule 13D filed on September 20, 2017, is hereby incorporated by this reference.

 

ITEM 3.

Source and Amount of Funds or Other Consideration.

Item 3 is amended by adding the following paragraph to the end of the item:

Frost Nevada acquired 24,025,177 shares of Common Stock, for investment purposes, in a series of transactions from January 22, 2018 to November 8, 2018 at prices ranging from $2.52 to $6.05 per share for an aggregate purchase price of $84,853,549.63. The source of funds used to acquire the Common Stock was working capital of Frost Nevada.

 

ITEM 4.

Purpose of Transaction.

Item 4 is amended by adding the following paragraphs to the end of the item:

Frost Nevada acquired 24,025,177 shares of Common Stock, for investment purposes, in a series of transactions from January 22, 2018 to November 8, 2018 at prices ranging from $2.52 to $6.05 per share for an aggregate purchase price of $84,853,549.63.

On November 8, 2018, Frost Nevada and the Issuer entered into a stock purchase agreement (the “November 2018 Stock Purchase Agreement”), pursuant to which Frost Nevada acquired 20,057,307 shares of Common Stock from the Issuer in a private placement for an aggregate purchase price of approximately $70,000,000, or $3.49 per share (the “Private Placement”). The Private Placement closed on November 13, 2018. The shares issued in the Private Placement were offered and sold in reliance upon an exemption from registration under Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”) for “transactions by an issuer not involving a public offering”. Dr. Jane Hsiao, the Issuer’s Vice Chairman and Chief Technical Officer, and two other investors acquired an aggregate of 6,446,991 shares of Common Stock from the Issuer in private placements that were dated concurrently with the Private Placement. The Reporting Persons disclaim beneficial ownership of the shares of Common Stock acquired in the other private placements, including the shares acquired by Dr. Hsiao, for purposes of Section 13 or otherwise.

 

ITEM 5.

Interest in Securities of the Issuer.

Item 5 is deleted in its entirety and replaced with the following text:

(a)-(b) Frost Group beneficially owns 20,091,062 shares of Common Stock. The 20,091,062 shares of Common Stock beneficially owned by Frost Group constitute approximately 3.4% of the Company’s outstanding shares of Common Stock, based upon 586,331,813 shares of Common Stock outstanding as of November 1, 2018 as reported by the Issuer, including 26,504,298 shares issued pursuant to certain stock purchase agreements dated November 8, 2018. Frost Group shares the power to vote and the power to dispose such shares with Gamma Trust and Dr. Frost.

 


CUSIP No. 68375N103    Schedule 13D    PAGE 7 of 9

 

Gamma Trust directly beneficially owns 169,234,443 shares of Common Stock, which includes approximately 5,000,000 shares of Common Stock underlying $25,000,000 of the Issuer’s 5% Convertible Promissory Notes (the “Notes”), which Notes were issued on February 27, 2018 and mature on February 27, 2027 and may be redeemed at any time prior to maturity upon 30 days’ notice at a conversion price of $5.00, subject to adjustment. Also, Gamma Trust, as the controlling member of Frost Group, may be deemed to beneficially own the 20,091,062 shares of Common Stock beneficially owned by Frost Group. The 189,325,505 total shares of Common Stock beneficially owned by Gamma Trust constitute 32.0% of the Company’s outstanding shares of Common Stock, based upon 586,331,813 shares of Common Stock outstanding as of November 1, 2018 as reported by the Issuer, including 26,504,298 shares issued pursuant to certain stock purchase agreements dated November 8, 2018. Dr. Frost is the sole trustee of Gamma Trust and holds sole voting and dispositive power with respect to 169,234,443 shares of Common Stock. Gamma Trust has shared voting and dispositive power with respect to the 20,091,062 shares of Common Stock owned by Frost Group.

Frost Nevada directly beneficially owns 24,420,177 shares of Common Stock. The 24,420,177 total shares of Common Stock beneficially owned by Frost Nevada constitute 4.2% of the Company’s outstanding shares of Common Stock, based upon 586,331,813 shares of Common Stock outstanding as of November 1, 2018 as reported by the Issuer, including 26,504,298 shares issued pursuant to certain stock purchase agreements dated November 8, 2018. Dr. Frost is the sole trustee of Frost Nevada and holds sole voting and dispositive power with respect to 24,420,177 shares of Common Stock.

In addition, the Phillip and Patricia Frost Philanthropic Foundation, Inc., which is controlled by Dr. Frost and his wife, owns 2,851,830 shares of Common Stock. Dr. Frost, as the sole trustee of Gamma Trust, which is the controlling member of Frost Group, may be deemed to beneficially own the 20,091,062 shares of Common Stock beneficially owned by Frost Group and the 169,234,443 shares of Common Stock beneficially owned by Gamma Trust. Dr. Frost, as the sole trustee of Frost Nevada may be deemed to beneficially own the 24,420,177 shares of Common Stock beneficially owned by Frost Nevada. The 220,841,463 shares of Common Stock beneficially owned by Dr. Frost constitute 37.3% of the Company’s outstanding shares of Common Stock, based upon 586,331,813 shares of Common Stock outstanding as of November 1, 2018 as reported by the Issuer, including 26,504,298 shares issued pursuant to certain stock purchase agreements dated November 8, 2018. Dr. Frost, as sole trustee of Gamma Trust, has sole voting and dispositive power over 169,234,443 shares of Common Stock. Dr. Frost, as sole trustee of Frost Nevada, has sole voting and dispositive power over 24,420,177 shares of Common Stock. Dr. Frost has shared voting and dispositive power with respect to 20,091,062 shares of Common Stock owned by Frost Group and 2,851,830 shares of Common Stock owned by the Phillip and Patricia Frost Philanthropic Foundation, Inc. Dr. Frost individually owns 3,068,951 shares of Common Stock and options to acquire 1,175,000 shares of Common Stock, which are exercisable within 60 days, and has sole voting and dispositive power over each.

(c) In the last 60 days prior to the filing of this Amendment No. 16, the Frost Group, Gamma Trust, and Dr. Frost have not effected any transactions in the shares of Common Stock.

In the last 60 days prior to the filing of this Amendment No. 16, Frost Nevada has acquired a total of 20,057,307 shares of Common Stock in the Private Placement for an aggregate purchase price of approximately $70,000,000, or $3.49 per share. The Private Placement closed on November 13, 2018. The Shares Issued in connection with the Private Placement were offered and sold in reliance upon an exemption from registration under Section 4(a)(2) of the Securities Act for “transactions by an issuer not involving a public offering”.

Except as described herein, no other person is known by any Reporting Person to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, any shares of the Company beneficially owned by them.


CUSIP No. 68375N103    Schedule 13D    PAGE 8 of 9

 

ITEM 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 is amended in its entirety and replaced with the following text:

See Item 4 regarding Stock Purchase Agreement, Voting Agreement, Second Stock Purchase Agreement, Psilos Securities Purchase Agreement, Pfost Securities Purchase Agreement, Third Stock Purchase Agreement, U Penn Agreement, V-Sciences Agreement, CRG Agreement, Fourth Stock Purchase Agreement, Pfost Second Securities Purchase Agreement, the Kennedy Agreement, the Fifth Stock Purchase Agreement, the Warrant Agreement, the Lock-up Agreement, the Chung Chia Agreement, and the November 2018 Stock Purchase Agreement.

Except as identified herein, there are no contracts, arrangements, understandings or relationships (legal or otherwise) between the Reporting Person and any other person with respect to any securities of the Issuer, including but not limited to transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding of proxies.

 

ITEM 7.

Materials to be Filed as Exhibits.

Item 7 is amended to add the following text to the end of the item:

 

Exhibit 16    Form of Stock Purchase Agreement, dated as of November 8, 2018, by and between the Company and Frost Nevada Investments Trust.


CUSIP No. 68375N103    Schedule 13D    PAGE 9 of 9

 

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

    The Frost Group, LLC
    By:   Frost Gamma Investments Trust, Principal Member
Dated: November 20, 2018     By:  

/s/ Phillip Frost, M.D.

    Name:   Phillip Frost, M.D.
    Title:   Sole Trustee
    Frost Gamma Investments Trust
Dated: November 20, 2018     By:  

/s/ Phillip Frost, M.D.

    Name:   Phillip Frost, M.D.
    Title:   Sole Trustee
    Frost Nevada Investments Trust
Dated: November 20, 2018     By:  

/s/ Phillip Frost, M.D.

    Name:   Phillip Frost, M.D.
    Title:   Sole Trustee
Dated: November 20, 2018     By:  

/s/ Phillip Frost, M.D.

    Name:   Phillip Frost, M.D.
    Title:   Phillip Frost, M.D., Individually
EX-16

Exhibit 16

STOCK PURCHASE AGREEMENT

This Stock Purchase Agreement is dated as of November 8, 2018 (this “Agreement”), between OPKO Health, Inc., a Delaware corporation (the “Company”), and                          (the “Purchaser”).

WHEREAS, the Company desires to sell to Purchaser, and Purchaser desires to purchase from the Company, shares of the Company’s common stock, par value $.01 per share (the “Common Stock”), on the terms and subject to the conditions set forth in this Agreement (the “Transaction”).

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties agree as follows:

Article 1

Purchase and Sale of Common Stock

1.1    Purchase and Sale of the Shares. Subject to the terms and conditions hereof, the Company hereby agrees to issue and sell to Purchaser, and Purchaser hereby agrees to purchase from the Company, a number of shares of Common Stock (the “Shares”) equal to (a)                         ($                     ) (the “Purchase Price”), divided by (b) the last closing bid price of the Common Stock on the NASDAQ Global Select Market on the date hereof.

1.2    Closing. The issuance, sale and delivery of the Shares (the “Closing”) shall take place at the Company’s offices in Miami, Florida on November 8, 2018, or as soon as possible thereafter (the “Closing Date”). As payment in full for the Shares being purchased at the Closing, Purchaser shall pay to the Company the Purchase Price by wire transfer. The obligation of the Company to deliver the Shares on the Closing Date as provided herein is subject to the approval for listing of the Shares by the NASDAQ Global Select Market.

Article 2

Additional Agreements

The Company and Purchaser 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 this Agreement and applicable laws and regulations to consummate and make effective the sale of the Shares (the “Sale”) and the other transactions contemplated by this Agreement as soon as practicable, including preparing and filing as promptly as practicable all documentation to 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 or any of the other transactions contemplated by this Agreement.

 

1


Article 3

Representations and Warranties of the Company

The Company represents and warrants to Purchaser as of the date hereof as follows:

3.1    Authorization of Agreements, etc. The execution and delivery by the Company of this Agreement, the performance by the Company of its obligations hereunder, and the issuance, sale and delivery of the Shares have been duly authorized by all requisite corporate action and will not 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 to 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 the Company.

3.2    Valid Issuance of Common Stock. The Shares have been duly authorized and, when issued, sold and delivered in accordance with this Agreement for the consideration expressed herein will be 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 laws.

3.3    Validity. This 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, or other equitable remedies.

3.4    Brokers and Finders. Neither 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.

Article 4

Representations and Warranties of Purchaser

The Purchaser represents and warrants to the Company as of the date hereof as follows:

4.1 Validity. This Agreement has been duly executed and delivered by Purchaser and constitutes the legal, valid and binding obligation of Purchaser, enforceable in accordance with its terms except:

(a)    as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally; and

 

2


(b)    as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

4.2    Investment Representations.

(a)    Purchaser is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) and was not organized for the specific purpose of acquiring the Shares;

(b)    Purchaser has sufficient knowledge and experience in investing in companies similar to the 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 and it has independently evaluated the merits and risks of its participation in the transaction contemplated hereby and, in so evaluating, has not relied upon any other person in connection with its decision to participate in such transactions;

(c)    it is the present intention that the Shares being purchased by Purchaser are being acquired for Purchaser’s own account for the purpose of investment and not with a present view to or for sale in connection with any distribution thereof;

(d)    Purchaser understands that:

(i)    the 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;

(ii)    the Shares must be held indefinitely unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration;

(iii)    the Shares will bear a legend to such effect; and

(iv)    the Company will make a notation on its transfer books to such effect; and

(e)    the Company has made available to Purchaser all documents and information that the Purchaser has requested relating to an investment in the Company.

4.3    Brokers and Finders. The 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 or the other transactions contemplated by this Agreement.

 

3


Article 5

Miscellaneous

5.1    Legend. Each certificate that represents Shares shall have conspicuously endorsed thereon the following legends:

THIS STOCK HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “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 OR (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 LAWS.

5 .2    Brokerage. Each 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 or to 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.

5.3    Parties in Interest. All representations, covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not.

5.4    Notices. All notices, requests, consents, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the 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), or on the third day after mailing if mailed to the party to whom notice is to be 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:

 

If to the Company:    OPKO Health, Inc.
  

4400 Biscayne Blvd.

  

Miami, FL 33137

  

Attn: Kate Inman, General Counsel

If to the Purchaser:

  

To the address specified on the signature pages hereto.

Any party 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 above.

 

4


5.5    Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida for all purposes and in all respects, without regard to the conflict of law provisions of such state.

5.6    Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter hereof.

5.7    Counterparts. This 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.

5.8    Amendments and Waivers. This Agreement may be amended or modified, and provisions hereof may be waived, only with the written consent of the Company and the Purchaser.

5.9    Severability. If any provision of this Agreement shall be declared void or unenforceable by any judicial or administrative authority, the validity of any other provision and of the entire Agreement shall not be affected thereby.

5.10    Titles and Subtitles. The titles and subtitles used in this Agreement are for convenience only and are not to be considered in construing or interpreting any term or provision of this Agreement.

[Signatures on Following Pages]

 

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NOW THEREFORE, the Company and Purchaser have executed this Stock Purchase Agreement as of the date first above written.

 

OPKO HEALTH, INC.
By:  

/s/ Steven D. Rubin

Name:   Steve D. Rubin
Title:   Executive Vice President
Address:   4400 Biscayne Boulevard
  Miami, FL 33137

 

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INVESTOR:

 

 

By:  

 

Name:  

 

Address:  

 

 

 

 

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