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As Of Filer Filing For·On·As Docs:Size 8/05/15 Opko Health, Inc. 10-Q 6/30/15 80:10M |
Document/Exhibit Description Pages Size
1: 10-Q Quarterly Report HTML 654K
2: EX-2.1 Plan of Acquisition, Reorganization, Arrangement, HTML 185K
Liquidation or Succession
3: EX-2.2 Plan of Acquisition, Reorganization, Arrangement, HTML 114K
Liquidation or Succession
4: EX-31.1 Certification -- §302 - SOA'02 HTML 30K
5: EX-31.2 Certification -- §302 - SOA'02 HTML 30K
6: EX-32.1 Certification -- §906 - SOA'02 HTML 24K
7: EX-32.2 Certification -- §906 - SOA'02 HTML 25K
54: R1 Document and Entity Information HTML 42K
42: R2 Condensed Consolidated Balance Sheets (Unaudited) HTML 111K
52: R3 Condensed Consolidated Balance Sheets (Unaudited) HTML 38K
(Parenthetical)
56: R4 Condensed Consolidated Statements of Operations HTML 96K
(Unaudited)
74: R5 Condensed Consolidated Statements of Comprehensive HTML 51K
Loss (Unaudited)
45: R6 Condensed Consolidated Statements of Cash Flows HTML 168K
(Unaudited)
51: R7 Condensed Consolidated Statements of Cash Flows HTML 26K
(Unaudited) (Parenthetical)
38: R8 Business and Organization HTML 34K
29: R9 Summary of Significant Accounting Policies HTML 66K
75: R10 Loss Per Share HTML 32K
58: R11 Composition of Certain Financial Statement HTML 130K
Captions
57: R12 Acquisitions, Investments, and Licenses HTML 126K
63: R13 Debt HTML 109K
64: R14 Accumulated Other Comprehensive Income (Loss) HTML 44K
61: R15 Fair Value Measurements HTML 179K
65: R16 Derivative Contracts HTML 101K
53: R17 Related Party Transactions HTML 40K
55: R18 Commitments and Contingencies HTML 39K
60: R19 Strategic Alliances HTML 41K
80: R20 Segments HTML 164K
70: R21 Subsequent Events HTML 29K
48: R22 Summary of Significant Accounting Policies HTML 122K
(Policies)
59: R23 Composition of Certain Financial Statement HTML 131K
Captions (Tables)
50: R24 Acquisitions, Investments, and Licenses (Tables) HTML 103K
22: R25 Debt (Tables) HTML 100K
71: R26 Accumulated Other Comprehensive Income (Loss) HTML 40K
(Tables)
77: R27 Fair Value Measurements (Tables) HTML 176K
33: R28 Derivative Contracts (Tables) HTML 101K
32: R29 Segments (Tables) HTML 156K
36: R30 Business and Organization (Details) HTML 46K
37: R31 Summary of Significant Accounting Policies HTML 61K
(Details)
39: R32 Loss Per Share (Details) HTML 36K
20: R33 Composition of Certain Financial Statement HTML 142K
Captions (Details)
68: R34 Composition of Certain Financial Statement HTML 67K
Captions - Changes in Goodwill (Details)
47: R35 Acquisitions, Investments, and Licenses - HTML 83K
Acquisition Narrative (Details)
49: R36 Acquisitions, Investments, and Licenses - Schedule HTML 68K
of Purchase Price Allocation (Details)
25: R37 Acquisitions, Investments, and Licenses - Schedule HTML 34K
of Pro Forma (Details)
79: R38 Acquisitions, Investments, and Licenses - Summary HTML 38K
of Investments (Details)
14: R39 Acquisitions, Investments, and Licenses - Equity HTML 52K
Method Investments Narrative (Details)
40: R40 Acquisitions, Investments, and Licenses - HTML 52K
Available for Sale Investments, Sale of
Investments and Warrants and Options Narrative
(Details)
73: R41 Acquisitions, Investments, and Licenses - HTML 48K
Pharmsynthez transactions Narrative (Details)
24: R42 Acquisitions, Investments, and Licenses - Variable HTML 55K
Interest Entities Narrative (Details)
31: R43 Acquisitions, Investments, and Licenses - Schedule HTML 86K
of Consolidated Assets and Non-Recourse
Liabilities (Details)
35: R44 Debt - Narrative (Details) HTML 106K
43: R45 Debt - Notes (Details) HTML 53K
19: R46 Debt - Inputs Used In Lattice Model (Details) HTML 43K
28: R47 Debt - Fair Value Of Embedded Derivatives HTML 31K
(Details)
16: R48 Debt - Lines Of Credit (Details) HTML 54K
72: R49 Debt - Mortgage Notes And Other Debt (Details) HTML 35K
23: R50 Accumulated Other Comprehensive Income (Loss) HTML 46K
(Details)
69: R51 Fair Value Measurements - Summary Of Investments HTML 43K
(Details)
26: R52 Fair Value Measurements - Assets And Liabilities HTML 68K
Measured At Fair Value (Details)
41: R53 Fair Value Measurements - Notes (Details) HTML 31K
15: R54 Fair Value Measurements - Level 3 Reconciliation HTML 39K
(Details)
18: R55 Fair Value Measurements - Narrative (Details) HTML 45K
34: R56 Derivative Contracts - Balance Sheet Component HTML 43K
(Details)
21: R57 Derivative Contracts - Derivative Gains (Losses) HTML 36K
(Details)
76: R58 Derivative Contracts - Outstanding Forward HTML 63K
Contracts (Details)
46: R59 Related Party Transactions (Details) HTML 135K
62: R60 Commitments and Contingencies (Details) HTML 39K
27: R61 Strategic Alliances (Details) HTML 69K
30: R62 Segments - Narrative (Details) HTML 52K
67: R63 Segments (Details) HTML 87K
66: R64 Subsequent Events (Details) HTML 48K
78: XML IDEA XML File -- Filing Summary XML 136K
17: EXCEL IDEA Workbook of Financial Reports XLSX 107K
8: EX-101.INS XBRL Instance -- opk-20150630 XML 3.06M
10: EX-101.CAL XBRL Calculations -- opk-20150630_cal XML 228K
11: EX-101.DEF XBRL Definitions -- opk-20150630_def XML 1.04M
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13: EX-101.PRE XBRL Presentations -- opk-20150630_pre XML 1.26M
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44: ZIP XBRL Zipped Folder -- 0000944809-15-000011-xbrl Zip 309K
| OPK - 6.30.2015 - EX 2.1 |
(1) | THE PERSONS whose names and addresses are set out in Schedule 1 (together the “Sellers”,
and each a “Seller”); |
(2) | OPKO IRELAND LIMITED, a company registered in Ireland under number 530936 and having its registered office at Citywest Business Campus, 3013 Lake Drive, Dublin 24, Ireland (“OPKO Irl”); and |
(3) |
(A) | EirGen Pharma Limited (the “Company”) is a private limited company incorporated
in Ireland under registration number 398605. Further particulars of the Company and of its Subsidiary are set out in Parts 1 and 2 of Schedule 2. |
(B) | The Sellers are the owners of the numbers of Shares set opposite their respective names in column 3 of Part 1 of Schedule 1 (the “Sellers’ Shares”). |
(C) | OPKO Inc is the indirect owner of 100% of the issued share capital in OPKO Irl. |
(D) | The
Sellers have agreed to sell and the Buyer has agreed to buy, the Sellers’ Shares on the terms and subject to the conditions of this Agreement. |
(E) | The Shareholders other than the Sellers have respectively agreed to sell, and OPKO Irl has agreed to buy, the Remaining Shares, subject to the conditions of the Ancillary Share Purchase Agreements. |
1. | Interpretation |
1.1 | Definitions |
(a) | the marketing of goods or services, including customer names and lists and other details of customers, sales targets, sales statistics, market share statistics, prices market research reports and surveys and advertising or other promotional materials; |
(b) | product information, know-how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, plans, drawings, specifications and blueprints; |
(c) | future projects, business development or planning, commercial relationships and negotiations; or |
(d) | any information in relation to which a Group Company is bound by an obligation of confidence to a third party, |
(a) | any dividend, distribution or other return of assets, profits or capital or any payments in lieu of any such dividend, distribution or other return of assets, profits or capital declared, paid or made by a member of the Group to, for the benefit of, or at the direction of, a Shareholder or any member of such Shareholder’s Group; |
(b) | any payments made, future benefits granted or assets transferred to or from, or liabilities assumed by, indemnified or incurred for the ultimate benefit of, any of the Shareholders or any of their Related Persons by any Group Company; |
(c) | any payments made or agreed to be made by any Group Company to any of the Shareholders or any of their respective Related Persons in respect of any share
capital or other securities of any Group Company being issued, redeemed, purchased or repaid, or any other return of capital; |
(d) | the waiver, deferral or release by any member of the Group of any amount, right, value or benefit owed to any member of the Group by a Shareholder or any member of such Shareholder’s Group; |
(e) | any Encumbrance created over any of the assets of a member of the Group to or for the benefit of a Shareholder or any member of such Shareholder’s Group; |
(f) | the
payment by any member of the Group of Transaction-related or other bonuses or amounts to a Shareholder, any member of such Shareholder’s Group, any employees of such Shareholder or such Shareholder’s Group or any employees of any member of the Group; |
(g) | any other payments made (whether in cash or in kind) by any member of the Group to a Shareholder or any member of such Shareholder’s Group, and whether or not purporting to be for value received; |
(h) | any agreement to do or pay any of the foregoing; and |
(i) | any
Tax to the extent becoming payable by any member of the Group as a consequence of any of the foregoing; |
(j) | all payments: |
(i) | of salary, fees, benefits, bonuses and expenses to or for the benefit of any of the Shareholders as
employees or directors of, or investors in or consultants of, any member of the Group, provided that any element of any bonus which is related to the sale of the Shares pursuant to this Agreement and/or the Ancillary Share Purchase Agreements shall not be Permitted Leakage and will be deemed Leakage; |
(ii) | in respect of the cost of any directors and officers liability insurance and maintaining any run off cover in respect of the same; |
(iii) | to Enterprise Ireland in respect of the redemption of the 8% cumulative redeemable preference
shares of €1.00 each held by Enterprise Ireland in the capital of the Company; |
(iv) | to Glopec International Inc pursuant to the supply agreement dated 10 March 2015 between Glopec International Inc and the Company and the consultancy agreement dated 13 August 2012 between Glopec International Inc and the Company (as amended); |
(v) | to
Q1 Scientific Limited pursuant to the technical agreement between Q1 Scientific Limited and the Company (details of which were provided in the Data Room) and the service agreement dated 1 February 2013 between Q1 Scientific Limited and the Company; |
(vi) | to Martina Ryan (trading as MRA) pursuant to the terms of business dated 15 June 2006 entered into between the Company and Martina Ryan (trading as MRA); |
(vii) | to
Clarnwood Capital Limited pursuant to the consultancy agreement dated 1 July 2013 between Clanwood Capital Limited and the Company; and |
(viii) | any Tax to the extent becoming payable by any member of the Group as a result of the foregoing; |
(a) | pricing or reimbursement approval in such country; |
(b) | pre-
and post-approval marketing authorizations; |
(c) | labelling approval; and |
(d) | technical, medical and scientific licenses; |
(e) | in the case of a person which is a body corporate, any subsidiary or holding company of that person and any subsidiary of any such parent company, and any trustee or nominee acting on its behalf, in each case from time to time; and |
(f) | in the case of a person which is an individual, a person Connected to that individual; |
(a) | corporation
tax (including any surcharge), advance corporation tax, income tax (including tax or amounts on account of tax required to be deducted or withheld from or accounted for in respect of any payment), capital gains tax, inheritance tax, gift tax, capital acquisition tax, value added |
(b) | all other taxes on gross or net income, profits or gains, distributions, receipts, sales, use, occupation, franchise, value added and personal property; |
(c) | all taxes, levies, imposts, duties, charges or withholdings of any nature whatsoever chargeable and/or collectable by any Tax Authorities in any Relevant
Jurisdiction; and |
(d) | any payment whatsoever which a Group Company may be or become bound to make to any person as a result of the discharge by that person of any tax which a Group Company has failed to discharge; |
(d) | a Fundamental Warranty Claim; or |
(e) | a General Warranty Claim. |
1.2 | Construction |
(a) | use
of the singular includes the plural and vice versa; |
(b) | a reference to one gender includes a reference to each other gender; |
(c) | the headings are inserted for convenience of reference only and shall not in any way form part of, or affect the construction or interpretation
of, this Agreement; |
(d) | the provisions of the Schedules to this Agreement form an integral part of this Agreement and have as full effect as if they were incorporated in the body of this Agreement and the expressions “this Agreement” and “the Agreement” shall be deemed to include the Schedules to this Agreement; |
(e) | a reference to a person (including a party to this Agreement) includes a reference to that person’s legal personal representatives,
successors and permitted assigns; |
(f) | a reference to a document is a reference to that document as from time to time amended, supplemented or varied (in each case, other than in breach of the provisions of this Agreement); |
(g) | any reference to any statute or statutory provision shall include: |
(i) | any statute or
statutory provision which: |
(A) | amends, extends, consolidates, re-enacts or replaces any statute or statutory provision; or |
(B) | has been amended, extended, consolidated, re-enacted or replaced (whether before or after the date of this Agreement) by any statute or statutory provision; and |
(ii) | any orders, regulations,
instruments or other subordinate legislation made under the relevant statute; |
(h) | words and phrases the definitions of which are contained or referred to in the Companies Acts shall be construed as having the meanings attributed to them in such Acts; |
(i) | a reference to any clause, sub-clause, paragraph, or Schedule shall be a reference to the clause, sub-clause, paragraph, or Schedule of this Agreement unless the context otherwise requires; |
(j) | any
reference to a “person” shall be construed as a reference to any individual, firm, company, corporation, undertaking, government, state, agency of a state, association, partnership, organisation, foundation or trust (whether or not having separate legal personality); |
(k) | reference to a “company” shall be construed so as to include any company, corporation or body corporate, whenever and however established or incorporated; |
(l) | all references
to costs, charges and expenses include any irrevocable value added tax or similar tax charged or chargeable in respect thereof; |
(m) | references to any tax in respect of income or profits or gains or chargeable gains earned, accrued or received on or before a particular date or in respect of a particular period shall include any tax in respect of income or profits or gains deemed for Tax purposes to have been or treated as earned, accrued or received on or before that date or in respect of that period; |
(n) | any phrase introduced by
the terms “including”, “include” and “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
(o) | the rule known as ‘contra proferentum” shall not apply; and |
(p) | any reference to an Irish legal term for any action, remedy,
method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any |
2. | Sale of Shares |
2.1 | Subject
to the terms of this Agreement, each Seller severally shall sell, and OPKO Irl shall buy, the number of Sellers’ Shares set opposite each Seller’s name in column 2 of Part 2 of Schedule 1, with effect from immediately following execution of this Agreement. |
2.2 | Subject to the terms of this Agreement, each Seller severally shall sell, and OPKO Inc shall buy, the number of Sellers’ Shares set opposite each Seller’s name in column 3 of Part 2 of Schedule 1, with effect from immediately following the sale and purchase referred to in clause 2.1. |
2.3 | The
Sellers’ Shares shall be sold free from all Encumbrances together with all other rights attached or accruing to the Sellers’ Shares, including the right to receive all dividends or distributions of whatever nature declared, paid or made in respect of any period on or after the Completion Date. |
2.4 | Each Seller severally waives any rights of pre-emption or other restriction on transfer to which it is entitled by virtue of the articles of association of the Company or otherwise in respect of the sale of the entire issued share capital of the
Company to the Buyer on or about the date hereof. |
3. | Consideration |
(a) | in the case of the sale and purchase at clause 2.1, the Elected Cash Consideration Amount for each Seller (other than BD) payable in cash to the Sellers’ Solicitors’ Account; and |
(b) | in
the case of the sale and purchase at clause 2.2, the Elected Share Consideration Amount for each Seller to be satisfied by the issuance of the OPKO Consideration Shares. |
4. | Completion Payment |
4.1 | Subject to clause 4.2 and 4.3, on the Completion Date, the Consideration shall be paid to the Sellers in accordance with columns 5 and 6 of Part 1 of Schedule 1 by the payment of cash by OPKO Irl and/or the issue and allotment of OPKO Consideration Shares by OPKO Inc credited as fully paid (the “Completion Payment”). |
4.2 | At
Completion, the Escrow Amount shall be paid to the Escrow Account in the form of the Escrow Consideration Shares and in accordance with clause 9.2. |
4.3 | The number of OPKO Consideration Shares to be issued and allotted to a Seller pursuant to clause 4.1 shall be that number of OPKO Common Stock having an aggregate value equal to such Seller’s Elected Share Consideration Amount , and shall be calculated by dividing such Seller’s Elected Share Consideration Amount by the Average Common Stock Trading Price. |
5. | Completion |
5.1 | Completion
of the sales and purchases referred to in clauses 2.1 and 2.2 shall take place at the offices of the Buyer’s Solicitors immediately following the execution of this Agreement. |
5.2 | At Completion the Sellers and the Buyer shall do all those things respectively required of them in Schedule 4. |
5.3 | The Buyer shall not be obliged to complete this Agreement unless: |
(a) | the
Sellers comply with all of their obligations in Schedule 4; and |
(b) | the purchase of the Remaining Shares pursuant to the Ancillary Share Purchase Agreements is completed at the same time as the sale and purchase referred to in clause 2.1. |
5.4 | The Sellers shall
not be obliged to complete this Agreement unless the Buyer comply with all of their respective obligations in Schedule 4. |
5.5 | Each of the Sellers appoints the Buyer to be that Seller's attorney for the purposes set out in this clause 5.5 from Completion until the Sellers’ Shares of that Seller are registered in the Buyer's name and on the following terms: |
(a) | the Buyer may do the following in the name of such Seller: |
(i) | exercise
any rights, including rights to appoint a proxy or representative and voting rights, attaching to such Sellers’ Shares; and |
(ii) | receive any dividend or other entitlement paid or credited to such Seller on or after Completion in respect of such Sellers’ Shares; |
(b) | all acts and things done by the Buyer in exercising powers under this power of attorney will be as valid as if they had been done by such Seller; and |
(c) | on
registration of such Sellers’ Shares in the Buyer's name, the powers conferred on the Buyer under this clause 5.5 in respect of such Sellers’ Shares and such Seller immediately cease; and |
(d) | the Buyer shall indemnify such Seller against any loss, liability and cost which it may incur as a result of or in connection with the exercise by the Buyer of the power conferred on the Buyer under this clause. |
6. | Sellers’ Warranties |
6.1 | [***]
warrants and undertakes to the Buyer that each of the Fundamental Warranties is, at the date of this Agreement, true and accurate, provided that the warranty and undertaking in respect of paragraphs 1.1. 1.2, 1.3(b), 1.4 and 1.5 of Part 1 of Schedule 5 is provided solely in respect of that Seller and its Seller’s Shares. |
6.2 | [***] warrants and undertakes to the Buyer that each of the Fundamental Warranties (other than the Fundamental Warranties at paragraphs 1.3(c), 1.3(d) and 1.5 of Part 1 of Schedule 5) is, at the date of this Agreement true and accurate in respect of him and his Seller Shares. |
6.3 | [***]
warrants and undertakes to the Buyer that each of the General Warranties is, at the date of this Agreement, true, and accurate. |
6.4 | Each Seller agrees and acknowledges that the Buyer is entering into this Agreement in reliance on each Warranty. |
6.5 | The Warranties (other than the Fundamental Warranties) are qualified by the information and circumstances Disclosed in the Disclosure Letter. |
6.6 | Subject
to the terms of this Agreement and the Tax Deed, no information of which the Buyer or its agents or advisers has knowledge (actual or constructive) and no investigation by or on behalf of the Buyer prevents any claim made by the Buyer under the Warranties and the Tax Deed or operates to reduce any liability of the Sellers or the amount recoverable by the Buyer from the Sellers (other than, in the case of the General Warranties, the information Disclosed in the Disclosure Letter). The Sellers shall not invoke the knowledge of the Buyer or its agents or advisers (actual or constructive) of a fact or circumstance which might make a Warranty untrue or inaccurate as a defence to a claim for breach of clause 6.1, 6.2, 6.3 or the Tax Deed (other than, in the case of the General Warranties, the information Disclosed in the Disclosure Letter). The Buyer confirms that none of [***] are at the date hereof actually aware of a |
6.7 | Notwithstanding any other provision of this Agreement, the Disclosure Letter shall not limit the liability of the Sellers for any claims under the Fundamental Warranties or Tax Deed. |
6.8 | Any
General Warranty that refers to the knowledge, information, belief or awareness of the Management Sellers shall be deemed to include the knowledge, information or belief which such Management Seller would have if such Management Seller had made all reasonable enquiries of the Specified Employees and the Management Sellers warrant that such enquiries have been made. |
6.9 | Each Warranty is independent and is not limited by a provision of this Agreement or by another Warranty (except where this Agreement provides otherwise). |
6.10 | Each
Warranty shall continue in full force and effect notwithstanding Completion. |
6.11 | Each Seller [***] undertakes not to make a claim against any Group Company and/or a director, officer or employee of any Group Company which they may have in respect of a misrepresentation, inaccuracy or omission in or from information or advice provided by any Group Company, or a director, officer or employee of any Group Company for the purposes of assisting the Sellers to make a representation, give a Warranty or in the case of the Management Sellers only, prepare the Disclosure Letter. |
6.12 | The
Management Sellers agree with the Buyer that, in the event of a breach of any of the warranties contained in paragraph 11.7 of Part 11 Schedule 5 {stamp duty}, they will pay to the Buyer by way of liquidated damages an amount equal to the unpaid stamp duty concerned together with any interest and penalties payable in relation thereto. The Management Sellers and the Buyer agree that such amount represents their genuine pre-estimate of the loss likely to be suffered by the Buyer in the event of such a breach. |
6.13 | The Buyer acknowledges and agrees that: |
(a) | this
Agreement and the other documents to be delivered by the Seller to the Buyer at Completion or pursuant to this Agreement contain the only Assurances given by the Sellers in relation to the Transaction; and |
(b) | it has not relied, in relation to the purchase of the Shares and in relation to any other matters contemplated by this Agreement and the other documents to be delivered by the Sellers to the Buyer at Completion or pursuant to this Agreement on any other Assurances. |
6.14 | References to “Company” in Schedule 5 (other
than paragraph 1.3(a) and 1.3(c) of Part 1 of Schedule 5) shall be deemed to include references to each Group Company. |
7. | Limitations on the Sellers’ liability |
7.1 | The liability of the Sellers in respect of all Claims shall be limited as set out in Schedule 6. |
7.2 | The liability of each Management Seller in respect
of all Tax Deed Claims shall be limited as set out in the Tax Deed. |
8. | Indemnification |
8.1 | Subject to clause 7.1 and Schedule 6, from and after Completion, [***] shall [***] indemnify and keep indemnified the Buyer from, against and in respect of, the full amount of all Losses incurred by the Buyer, each member of the Buyer’s Group, their respective affiliates and their respective directors, officers, employees and agents in respect of: |
(a) | any
Fundamental Warranty warranted and undertaken to be true and accurate by that Seller pursuant to clauses 6.1 or 6.1 being untrue or inaccurate; or |
(b) | any fraud or wilful breach of this Agreement or any other Transaction Document (excluding the Disclosure Letter) by that Seller. |
8.2 | Subject
to clause 7.1 and Schedule 6, from and after Completion, [***] shall [***] indemnify and keep indemnified the Buyer from, against and in respect of, the full amount of all Losses incurred by the Buyer, each member of the Buyer’s Group, their respective affiliates and their respective directors, officers, employees and agents, in respect of any General Warranty, warranted and undertaken to be true and accurate pursuant to clause 6.3, being untrue or inaccurate. |
8.3 | Subject to clause 13.3 from and after Completion, each Buyer shall indemnify and keep indemnified the Sellers from, against and in respect of, the full amount of all Losses incurred by a Seller, a member of such Seller’s Group, their respective affiliates and their respective directors, officers,
employees and agents, in respect of: |
(a) | any warranty warranted to be true and accurate by that Buyer under clause 13 being untrue or inaccurate; or |
(b) | any fraud or wilful breach of this Agreement or any other Transaction Document by that Buyer. |
8.4 | The indemnifying party under this clause 8 shall have the right
to contest any third party claim that may result in a Loss. In no event shall any indemnitee under this clause 8 consent to the entry of any judgment or enter into any settlement with respect to such claim without obtaining the prior written consent of the indemnifying party not to be unreasonably withheld or delayed. In any event, the indemnifying party and the indemnitee may participate in the contest of such claim at their own expense. The indemnifying party and the indemnitee shall cooperate fully with each other as to all such claims, shall make available to each other as reasonably requested all information, records, and documents relating to such claims, and shall preserve all such information, records and documents until the termination or resolution of any such claim. |
9. | Seller
Indemnity Escrow |
9.1 | At Completion, the Buyer, the Management Sellers’ and the Escrow Agent shall enter into the Escrow Agreement in order to provide for the Escrow Account to secure and to serve as a fund in respect of the indemnification obligations of the Management Sellers under and subject to the conditions of this Agreement and the Tax Deed. |
9.2 | At Completion, OPKO Inc shall deposit the Escrow Consideration Shares with the Escrow Agent to be held in the Escrow Account pursuant to the terms of the Escrow Agreement. No certificates
or scrip or shares of OPKO Common Stock representing fractional shares of OPKO Common Stock or book-entry credit of the same shall be issued as part of the Escrow Consideration Shares. |
9.3 | Except with respect to Escrow Consideration Shares that have been distributed from the Escrow Account to the Buyer pursuant to the Escrow Agreement, and except with respect to pending Claims made against the Management Sellers in accordance with clause 8.1(a) or 8.2 of this Agreement and/or the Tax Deed on or before the expiry of the Escrow Period, the Escrow Agreement will provide that all Escrow Consideration Shares in the Escrow Account shall be distributed to the Management Sellers in accordance with the Escrow Agreement on the fifth Business Day after the expiration
of the Escrow Period; provided, that with respect to any such pending Claim, promptly following resolution of such pending Claim, the amount, if any, of such pending Claim which has not been paid, which is not payable to any Claimant pursuant to clause 8.1(a) or 8.2 of this Agreement and/or the Tax Deed and/or which is not required to remain in the Escrow Account to satisfy other pending Claims made against the Management Sellers in accordance with clause 8.1(a) or 8.2 of this Agreement and/or the Tax Deed, shall be paid to the Management Sellers. |
10. | Restrictions on sale of OPKO Consideration Shares |
10.1 | Each
Seller acknowledges that: |
(a) | the OPKO Consideration Shares are “restricted securities” as defined by Rule 144 promulgated under the Securities Act, are not registered under the Securities Act or any applicable securities Laws and are being issued by the Parent to such Seller in reliance upon Regulation S promulgated under the Securities Act for offers and sales of securities outside the United States; |
(b) | any
sale, transfer or disposition by any Seller of any OPKO Consideration Shares into the United States may only be made: |
(i) | pursuant to an effective registration statement under the Securities Act; or |
(ii) | in accordance with Rule 144 of the Securities Act or another exemption from the registration requirements of the Securities Act and any other applicable securities Laws; |
(c) | the
OPKO Consideration Shares shall bear a restrictive legend; and |
(d) | in order to remove the restrictive legend on the OPKO Consideration Shares, in connection with any sale, transfer or disposition by any Seller of any OPKO Consideration Shares, the Parent may require an opinion of counsel reasonably acceptable to it to the effect that such sale, transfer or disposition is exempt from the registration requirements of the Securities Act and any other applicable securities Laws. |
11. | The Buyer’s remedies |
11.1 | The
rights and remedies of the Buyer in respect of a breach of any of the Warranties or in respect of any claim under the Tax Deed or in respect of any breach of this Agreement shall not be affected by Completion except by a specific and duly authorised written waiver or release by the Buyer. |
12. | Sellers’ Representative |
12.1 | Subject to clause 12.5, each Seller irrevocably appoints the Sellers’ Representative as its agent to act for and on its behalf in respect of the Transaction Documents. |
12.2 | Each
Seller shall (to the extent within its power of procurement) procure that the Sellers’ Representative shall take such action as is required to be taken by the Sellers’ Representative as set out in the Transaction Documents. |
12.3 | The Sellers agree that any decision and/or action taken by the Sellers’ Representative under the Transaction Documents shall be binding on the Sellers. |
12.4 | The Sellers acknowledge that the Sellers’ Representative shall, on behalf of all of the Sellers , have full and irrevocable power and authority to take
any action, give any consent and do or omit to do anything pursuant to the powers and authorities vested in him or contemplated by the Transaction Documents (including, as the case may be, without limitation, disputing or settling any Claim and instructing the Escrow Agent to release any amount from the Escrow Account as he shall in his absolute discretion decide). |
12.5 | The Sellers agree that the Sellers representing together a majority of the Sellers’ Shares sold pursuant to this Agreement may replace the designated Sellers’ Representative on the same terms of this clause 12.5 by giving 5 Business Days’ notice in writing served upon the Buyer and the Sellers’ Representative. |
12.6 | The
Sellers acknowledge that the Sellers’ Representative shall have no liability to the Sellers (or any of them) in respect of any action taken by him or any omission to take action by him pursuant to the Transaction Documents or otherwise, except to the extent that he has acted fraudulently. |
13. | Buyer Warranties |
13.1 | OPKO Irl warrants and undertakes to each of the Sellers that each of the following warranties is true and accurate: |
(a) | it is a company duly incorporated and validly existing under the laws of the jurisdiction of its incorporation; |
(b) | it has all requisite corporate power and authority to enter into this Agreement to which it is a party and to perform its obligations under the Transaction Documents; |
(c) | the
signature (and, where relevant, execution and delivery) of, and the performance by it of its obligations under this Agreement will not: |
(i) | result in a breach of any provision of its articles of association; or |
(ii) | result in a breach of, constitute a default or require a consent under, or violate any instrument or agreement to which it is a party or any Laws or any other restrictions of any kind by which it is bound; and |
(d) | this
Agreement has been duly and validly authorised and executed by it and constitutes its legal, valid and binding obligations, enforceable in accordance with its terms and conditions. |
13.2 | OPKO Inc warrants and undertakes to each of the Sellers that each of the following warranties is true and accurate: |
(a) | it is a company duly incorporated and validly existing under the laws of the jurisdiction of its incorporation; |
(b) | it
has all requisite corporate power and authority to enter into this Agreement to which it is a party and to perform its obligations under the Transaction Documents; |
(c) | the signature (and, where relevant, execution and delivery) of, and the performance by it of its obligations under this Agreement, including the issuance of the OPKO Consideration Shares, will not: |
(i) | result in a breach of any provision of its articles of association (or equivalent
constitutional documents); or |
(ii) | result in a breach of, constitute a default or require a consent under, or violate any instrument or agreement to which it is a party or any Laws or any other restrictions of any kind by which it is bound; |
(d) | this Agreement has been duly and validly authorised and executed by it and constitutes its legal, valid and binding obligations, enforceable in accordance with its terms and conditions; |
(e) | the
OPKO Consideration Shares will, when issued and delivered in accordance with the terms of this Agreement for the consideration expressed herein, be duly and validly issued, fully paid and non-assessable, and will be free and clear of any Encumbrances, other than restrictions on resale under the Securities Act and any other applicable securities Laws; |
(f) | OPKO Inc has filed with the SEC all periodic reports and other documents required to be filed by it under the Exchange Act including, and since the date of, its Annual Report on Form 10-K for the fiscal year ended 31 December, 2014 (collectively the “Public Reports”). As of their respective dates, the Public Reports were prepared in accordance with the
requirements of the Exchange Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and there have been no material changes in the business or affairs of OPKO Irl or OPKO Inc since the date of such Public Reports; |
(g) | neither it, OPKO Irl nor any of their affiliates nor any person acting on their behalf has engaged or will engage in any directed selling efforts (as defined in Regulation S under the Securities Act) in connection with the offering of the OPKO Consideration Shares, and they have complied |
(h) | the number of outstanding capital shares of OPKO Inc, with respect to each class of capital shares and in the aggregate, has not changed by more than 5% from the information reflected in the OPKO Inc’s Form 10K for the fiscal year ended 31 December 2014 and
any subsequent reports filed prior to the date of this Agreement; and |
(i) | OPKO Inc has not experienced any change in or effect on the business of it or its subsidiaries that is, or could reasonably be expected to be, materially adverse to the business, assets (including intangible assets), liabilities (contingent or otherwise), condition (financial or otherwise), prospects or results of OPKO Inc or its subsidiaries taken as a whole, from the information reflected in the OPKO Inc’s Form 10-K for the fiscal year ended 31 December, 2014 and any subsequent reports filed prior
to the date of this Agreement. |
13.3 | Except for claims against OPKO Inc for breach of the warranty at clause 13.2(e), no claim may be brought against OPKO Irl or OPKO Inc for breach of their respective warranties and undertakings in clause 13.1 or 13.2 respectively unless notice of the claim is served on OPKO Irl, or OPKO Inc, as the case may be, within 12 months of Completion. |
14. | Protection of Goodwill |
14.1 | In
this clause the following definitions apply: |
14.2 | Each
of the Sellers (except [***]) severally undertakes with the Buyer for its own benefit and as trustee for the benefit of each Group Company to procure that he shall not (save in the course of his employment or engagement by a Group Company), either alone or jointly with others, in any capacity: |
(a) | during the Restricted Period, employ or engage any person (except [***]) who at the date of this Agreement is an employee or officer of a Group Company, or who has been an employee or officer of a Group Company in the [***] immediately preceding Completion; |
(b) | during
the Restricted Period, solicit to employ or engage any person who at the date of this Agreement is an employee or officer of a Group Company or who has been an employee or officer of a Group Company in the [***] immediately preceding Completion; |
(c) | during the Restricted Period, intentionally do or say anything which is harmful to the goodwill (as subsisting at the date of this Agreement) of a Group Company or which is reasonably likely to lead a person who has dealt with a Group Company at any time during the [***] prior to the date of this Agreement to cease to deal with the Group Company on substantially equivalent terms to those previously offered or at all; or |
(d) | at
any time after the Completion Date, use in the course of business: |
(i) | the name EirGen; |
(ii) | any trade mark, business or domain name, design or logo which on or before the Completion Date was or had been used by the Group; or |
(iii) | anything
which is, in the reasonable opinion of the Buyer, capable of confusion with such mark, names, design or logo. |
14.3 | [***] undertakes with the Buyer for its own benefit and as trustee for the benefit of each Group Company to procure that for the Restricted Period he shall not (save in the course of his employment or engagement by a Group Company) solicit to employ anyone who is an employee of a Group Company or who has been such an employee in the [***] immediately preceding Completion. |
14.4 | Subject to clause 14.5 each of the Management
Sellers undertakes with the Buyer for its own benefit and as trustee for the benefit of each Group Company to procure that he shall not, either alone or jointly with others in any capacity (save, where relevant, in the course of his employment or engagement by a Group Company), |
(a) | during the Restricted Period and within the Restricted Territory, carry on or participate or assist or be engaged or concerned or interested in any Restricted Business provided that this restriction shall not prevent the Management Sellers from holding in aggregate no more than 5% of shares or debentures of a company listed on a recognised stock exchange; |
(b) | during
the Restricted Period and in a manner competitive to the Restricted Business, solicit or endeavour to entice away or adversely interfere with the custom of any person, firm or company who, or which is currently, or who or which has, during the [***] immediately preceding the Completion Date been, a customer of a Group Company; or |
(c) | during the Restricted Period, contract or seek to contract with any person who has been contracted with or engaged to manufacture, assemble or supply or deliver goods or services to a Group Company during the [***] prior to the Completion Date,
in such a way that has the effect of adversely affecting the business of a Group Company. |
14.5 | The Buyer acknowledges and agrees that the [***] may [***] provided that the [***] of the [***] in any [***] does not [***] and [***] in any such case without the prior written consent of the Buyer. |
14.6 | Each of the undertakings in clauses 14.2, 14.3 and 14.4 is considered fair and reasonable by the Buyer and Sellers, but if any restriction is found to be unenforceable, but would be valid if any part of it were deleted or the period or
territory of application reduced, the restriction shall apply with such modifications as may be necessary to make it valid and enforceable. |
14.7 | Each of the undertakings in clauses 14.2 and 14.3 and 14.4 shall be construed and take effect independently of the others. |
15. | Confidentiality |
15.1 | Subject to clause
15.2, the Sellers undertakes to the Buyer not at any time to disclose or cause to be disclosed to any person or use for any purpose any Confidential Information. This restriction shall not apply to the Management Sellers in the necessary course of their employment by a Group Company. The Buyer undertakes to each Seller to keep the terms of the Transaction Documents confidential. |
15.2 | A Seller may disclose Confidential Information, and the Buyer may disclose the terms of the Transaction Documents, to the extent that: |
(a) | disclosure
is required by the law of any Relevant Jurisdiction or pursuant to an order of a court of competent jurisdiction; |
(b) | disclosure is required by any securities exchange or regulatory or governmental body to which either party or its holding company is subject, wherever situated, whether or not the requirement for information has the force of law; |
(c) | the
information has come into the public domain through (i) no fault of the Sellers or any member of the Seller’s Group or (ii) no fault of the Buyer or any member of the Buyer’s Group |
(d) | the information was in the possession of the person receiving it before such disclosure was made; or |
(e) | the information was obtained by the Sellers from a third party who was free to divulge it; |
(i) | inform the other of the full circumstances of the disclosure and the information that will be disclosed, and take all such steps as may be reasonable and practicable in the circumstances to agree the content of such disclosure with the other party before making the disclosure; |
(ii) | consult with the other as to possible steps to avoid or limit disclosure and take
those steps where they would not result in significant adverse consequences to the other party; and |
(iii) | where the disclosure is by way of public announcement, agree the wording with the party in advance. |
15.3 | The restrictions contained in this clause 15 shall apply at all times after the date of this Agreement, notwithstanding the termination or expiration of this Agreement. |
15.4 | The
parties are entering into this Agreement in consideration of the other parties’ undertakings to comply with clauses 14.2, 14.3, 14.4 and 15. If any breach or violation of any of the provisions of clauses 14.2, 14.3, 14.4 and 15 occurs, the parties agree that damages would not be an adequate relief for such breach or violation and that injunctive relief would be reasonable and essential to safeguard the legitimate interests of the parties. Accordingly, each Seller and the Buyer acknowledges to the other that the other will be entitled to seek injunctive relief in respect of any actual or threatened breach of clauses 14.2, 14.3, 14.4 and 15 (in addition to any other remedies) by the other party and each such other party shall not object to the appropriateness of such relief being sought. |
16. | Announcements |
16.1 | No
party shall make any statement to the press or to the employees of the Group or make any other public announcement in connection with any matters referred to in this Agreement without the prior consent in writing of each other party which consent shall not be unreasonably withheld or delayed. |
16.2 | Clause 16.1 does not apply to a public announcement, communication or circular to be made or sent by a party if it is required by law, a regulation of a stock exchange or by any regulatory body which that party is a member of or is otherwise regulated by or subject to. |
17. | Payments
under this Agreement |
17.1 | If any payment required to be made by the Sellers under this Agreement is not made by the due date for payment, that payment shall carry interest from that due date until the date when payment is actually made at a rate of 5 per cent over Euribor. |
17.2 | Any payment or delivery to the Sellers’ Solicitors by or on behalf of the Buyer shall be an absolute discharge of any obligation to make such a payment or delivery to the Sellers (or any of them) and a receipt from the Sellers’ Solicitors in respect of any
payments made by the Buyer shall be a good and complete discharge to the Buyer who shall not be concerned as to the distribution of such payment to the Sellers by the Sellers’ Solicitors. |
17.3 | Any sum payable by the Sellers under this Agreement or the Tax Deed shall be treated as a reduction in the Consideration. |
18. | Notices |
18.1 | Notices
or other communications (a “Notice”) given in connection with this Agreement shall be: |
(a) | in writing; |
(b) | delivered by hand or sent by registered post to the address in clause 18.3 of the party to which the Notice is being given or to such other address as such party shall communicate to the party giving the Notice; or |
(c) | sent
by facsimile to the number in clause 18.3 of the party to which it is being sent or to such other number as such party shall communicate to the party giving the Notice. |
18.2 | Every Notice given in accordance with this clause shall be deemed to have been received as follows: |
Means of Dispatch | Deemed Received |
Delivery by hand: | the
day of delivery; |
Post: | Five Business Days after posting; and |
Facsimile: | when confirmation of its transmission has been recorded by the sender’s fax machine |
18.3 | The relevant addressee, address and facsimile
number of each party for the purposes of this Agreement, subject to clause 18.1 are: |
Name of party | Address | Facsimile No. |
OPKO Ireland Limited | Citywest Business Campus, 3013 Lake Drive, Dublin 24, Ireland | |
Patsy Carney (Sellers’ Representative) | The
Coachyard, Newtown, Tramore, Co. Waterford | |
OPKO Health, Inc. | Attention Legal Department | |
18.4 | A
party shall notify the other of a change to its name, relevant addressee, address or facsimile number for the purposes of clause 18.3. Such notification shall only be effective on: |
(a) | the date specified in the notification as the date on which the change is to take place; or |
(b) | if no date is specified or the date specified is less than 5 Business Days after the date on which notice is given, the date falling 5 Business Days after notice of any such change has been given. |
19. | Variation |
20. | Costs and Expenses |
21. | Assignment and Successors |
21.1 | No Seller may assign, transfer, grant any Encumbrance over, declare any trust over or deal in any way with its rights under this Agreement without the prior written consent of the Buyer. |
21.2 | The
Buyer may at any time and on one or more occasions, assign or grant any Encumbrance over its rights under this Agreement to any other member of the Buyer Group and/or agent or trustee of such member of the Buyer’s Group (such agent or trustee being for such member’s benefit only) for the time being and such assignee shall be entitled to and may enforce the benefit and rights of the Buyer under this Agreement as if it had been named as the Buyer under this Agreement provided always that such assignee shall be required to assign and transfer all rights and obligations under this Agreement to another member of the Buyer Group if that assignee or the original assignor (where the assignee is an agent or trustee for that original assignor) ceases to be a member of the Buyer Group (such assignment and transfer to be completed immediately prior to such cessation). In addition to the foregoing OPKO Inc may at any time transfer the Shares it acquires from the Sellers to OPKO Irl. |
21.3 | If
there is an assignment, transfer, grant, declaration or dealing by a party as permitted by this clause 21: |
(a) | such party shall, as soon as reasonably practicable, give Notice of such dealing to the other parties. However, failure to give such Notice shall not affect the validity of such dealing; |
(b) | the amount of loss or damage recoverable by any assignee or other person entitled to the rights under this Agreement pursuant to this clause 21 shall not be greater than the amount of loss or damage which that party would have been
able to recover had (a) such assignment, transfer, grant, declaration or dealing and (b) any related transfer of all or any of the Shares of any Group Company or all or any of the assets or undertaking of any Group Company not taken place. |
21.4 | A party may disclose information that it is otherwise required to keep confidential under clause 15 to an assignee permitted by this clause 21 provided they are subject to the same confidentiality obligations as envisaged in this Agreement in respect of the information so disclosed. |
21.5 | This
Agreement shall be binding on and continue for the benefit of the successors, estate and personal representatives and permitted assignees (as the case may be) of each party. |
22. | Waiver |
22.1 | A waiver by a Seller or the Buyer of any breach by the Buyer or a Seller of any of the terms, provisions or conditions of this Agreement or the acquiescence of a Seller or the Buyer in any act (whether commission or omission), which, but for such acquiescence, would be such a breach, shall not constitute a general waiver of such term, provision
or condition or of any further similar breach. |
22.2 | Completion shall not constitute a waiver by any party of any breach of any provision of this Agreement, whether or not known to such party at the date of Completion. |
23. | Further Assurance |
24. | Effect of Completion |
25. | Rights,
Powers and Remedies are Cumulative |
26. | Invalidity |
(a) | the legality,
validity or enforceability of any other provision of this Agreement (including the remainder of a provision, where only part of the provision is or has become illegal, invalid or unenforceable); or |
(b) | the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this Agreement. |
27. | Entire Agreement |
28. | Counterparts |
29. | Process
Agent |
29.1 | Ontario hereby irrevocably authorises and appoints the Sellers’ Solicitors as its authorised agent to accept service of all legal process in Ireland on its behalf and service on such appointee shall be deemed to be service on Ontario. |
29.2 | Ontario agree that any failure by its process agent to notify it of the legal process shall not invalidate the proceedings concerned. |
29.3 | Ontario
further agree to maintain the Sellers’ Solicitors as its agent until 31 December 2020 or, if later, the conclusion of any legal proceedings relating to this Agreement. |
30. | Governing Law and Jurisdiction |
SIGNED and DELIVERED
AS A DEED by THOMAS BRENNAN in the presence of: | __/s/Thomas Brennan____________________ |
Signature of Witness | __/s/Andrea O’Caoinh__________________ |
Name of Witness | __Andrea
O’Caoinh______________________ |
Address of Witness | __2 Grand Canal Square__________________ |
__D2___________________________________ | |
Occupation of Witness | _Trainee Solicitor________________________ |
SIGNED and DELIVERED AS A DEED by
PATSY CARNEY in the presence of: | __/s/Patsy Carney__________________ |
Signature of Witness | ____/s/Andrea O’Caoinh_____________ |
Name of Witness | ____ Andrea
O’Caoinh_______________ |
Address of Witness | __2 Grand Canal Square______________ |
__D2________________________________ | |
Occupation of Witness | __Trainee Solicitor____________________ |
SIGNED for and on behalf of EILEEN RAGGETT by
her lawfully appointed attorney, BARRIE DAISH, in the presence of and DELIVERED AS A DEED | ___/s/Barrie Daish__________________ |
Signature of Witness | ___/s/ Ian
Hutchinson_______________ |
Name of Witness | ___Ian Hutchinson___________________ |
Address of Witness | ___2 Grand Canal Square_____________ |
Occupation of Witness | ___Solicitor__________________________ |
SIGNED and
DELIVERED AS A DEED by BARRIE DAISH in the presence of: | ___/s/Barrie Daish__________________ |
Signature of Witness | ___/s/Ian Hutchinson_______________ |
Name of Witness | ___Ian
Hutchinson___________________ |
Address of Witness | ___2 Grand Canal Square______________ |
____________________________________ | |
Occupation of Witness | __Solicitor___________________________ |
EXECUTED and DELIVERED AS A DEED by 1575773 ONTARIO
INC. in the presence of: | ___/s/Harcharan Singh_______________ |
Signature of Witness | ___/s/Joshua Seor____________________ |
Name of Witness | ___Joshua Seor_______________________ |
Address
of Witness | ___4950 Yonge St., Suite 1800__________ |
___Toronto, Ontario M2N6K__________ | |
Occupation of Witness | ___Lawyer___________________________ |
Present
when the common seal of OPKO IRELAND LIMITED was affixed to this deed and this deed was delivered: | |
_____/s/ Brian V. Elliott_____________ Director ____/s/Jim Gaul____________________ Director | |
SIGNED for and on behalf of OPKO HEALTH, INC. | |
___/s/Steven Rubin__________________ | |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/18/21 Opko Health, Inc. 10-K 12/31/20 111:16M |