UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
OPKO Health, Inc.
(Exact Name of Registrant as Specified in Charter)
|
|
|
|
|
Delaware
(State or Other
Jurisdiction of
Incorporation)
|
|
000-26648
(Commission
File Number)
|
|
75-2402409
(IRS Employer
Identification No.) |
(Address of Principal Executive Offices) (Zip Code)
Registrant’s telephone number, including area code: (
305) 575-4100
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of
the registrant under any of the following provisions (see General Instruction
A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c))
ITEM 1.01 Entry Into a Material Definitive Agreement.
Preferred Stock Offering
Effective
September 18, 2009, OPKO Health, Inc., a Delaware corporation (the
“Company”),
entered into a securities purchase agreement (the
“Purchase Agreement”) with the private investors
named therein (the
“Investors”), pursuant to which the Investors agreed to purchase an aggregate of
1,209,677 shares (the
“Shares”) of
the Company’s newly-designated 8.0% Series D Cumulative
Convertible Preferred Stock, par value $0.01 per share (
“Series D Preferred Stock”), at a purchase
price of $24.80 per share, together with warrants (the
“Warrants”) to purchase up to an aggregate
of 3,024,196 shares of
the Company’s common stock, par value $.01 (the
“Common
Stock”) at an exercise price of $2.48 per share (the
“Investment”). Initially, the Series D
Preferred Stock is convertible into ten shares of
the Company’s Common Stock, and the Series D
Preferred Stock purchase price is based on the average closing price of
the Company’s Common Stock
as reported on the NYSE Amex for the five days preceding the execution of the Purchase Agreement.
In connection with the Investment,
the Company will receive an aggregate of approximately $30
million. Closing of the Investment is expected to occur on or around
September 25, 2009.
Included among the investors is Frost Gamma Investments Trust (the
“Gamma Trust”), a trust
controlled by Dr. Phillip Frost,
the Company’s Chairman of the Board and Chief Executive Officer,
and Hsu Gamma Investment, L.P, a limited partnership controlled by Jane H. Hsiao,
the Company’s
Vice Chairman and Chief Technical Officer.
The Company agreed to issue the Shares and the Warrants in reliance upon the exemption from
registration under Section 4(2) of the Securities Act of 1933, as amended (the
“Act”). The Shares
issued in the Investment, including the shares of
the Company’s common stock into which the
preferred shares and warrants may be converted, will be
“restricted securities” as that term is
defined by Rule 144 under the Act, subject to a three year contractual lockup, and no registration
rights have been granted.
On
September 22, 2009,
the Company filed with the Secretary of State of the State of Delaware
a Certificate of Designation of the Powers, Preferences and Relative, Participating, Optional and
Other Special Rights of 8.0% Series D Cumulative Convertible Preferred Stock, and Qualifications,
Limitations and Restrictions Thereof (the
“Certificate of Designation”). A summary of the
Certificate of Designation is set forth below:
Dividends. Holders of the Series D Preferred Stock are entitled to receive, when, as and if
declared by
the Company’s Board of Directors, dividends on each share of Series D Preferred Stock
at a rate per annum equal to 8.0% of the sum of (a) $24.80, plus (b) any and all declared and
unpaid and accrued dividends thereon, subject to adjustment for any stock split, combination,
recapitalization or other similar corporate action (the
“Liquidation Amount”). All dividends shall be cumulative, whether or not earned or declared, accruing on an annual basis from the issue date of the Series D Preferred Stock.
Voting. The Holders of Series D Preferred Stock have the right to receive notice of any
meeting of holders of
the Company’s Common Stock or Series D Preferred Stock and to vote (on an
as-converted into Common Stock basis) upon any matter submitted to a vote of the holders of Common
Stock or Series D Preferred Stock. Except as otherwise expressly set forth in
the Company’s
Amended and Restated
Certificate of Incorporation, as amended from time to time, the holders of
Series D Preferred Stock will vote on each matter submitted to them with the holders of Common
Stock and all other classes and series of
the Company’s capital stock entitled to vote on such
matter, taken together as a single class.
Rank. With respect to dividend distributions (other than required dividends to the holders of
the Company’s Series A Preferred Stock) and distributions upon liquidation, winding up or
dissolution of
the Company, the Series D Preferred Stock ranks senior to all classes of Common
Stock,
the Company’s Series A Preferred Stock,
the Company’s Series C Preferred Stock, and to each
other class of
the Company’s
capital stock existing now or hereafter created that are not specifically designated as
ranking senior to or pari passu with the Series D Preferred Stock.
Liquidation Preference. Upon the occurrence of a Liquidation Event (as defined in the
Certificate of Designation), holders of Series D Preferred Stock are entitled to be paid, subject
to applicable law, out of the assets of
the Company available for distribution to its stockholders,
an amount in cash (the
“Liquidation Payment”) for each share of Series D Preferred Stock equal to
the greater of (x) the Liquidation Amount for each such share of Series D Preferred Stock
outstanding plus (i) any declared and unpaid dividends and (ii) accrued dividends or (y) the amount
for each share of Series D Preferred Stock the holders would be entitled to receive pursuant to the
Liquidation Event if all of the shares of Series D Preferred Stock had been converted into Common
Stock as of the date immediately prior to the date fixed for determination of stockholders entitled
to receive a distribution in such Liquidation Event. Such Liquidation Payment will be paid before
any cash distribution will be made or any other assets distributed in respect of any class of
securities junior to the Series D Preferred Stock, including, without limitation, Common Stock and
the Company’s Series A Preferred Stock.
Conversion. The holder of any share of Series D Preferred Stock may at any time and from time
to time convert such share into such number of fully paid and nonassessable shares of Common Stock
as is determined by dividing (A) the Liquidation Amount of the share by (B) the Conversion Price,
which is initially $2.48, subject to adjustment as provided in the Certificate of Designation.
Initially, the Series D Preferred Stock is convertible into 10 shares of
the Company’s Common
Stock.
Mandatory Conversion. The Corporation may, at any time, convert the outstanding Series D
Preferred Stock into such number of fully paid and non-assessable shares of Common Stock as is
determined by dividing (A) the Liquidation Amount of the shares by (B) the Conversion Price, but
only if the closing bid price of the Common Stock exceeds $5.00 per share during any thirty (30)
consecutive trading days prior to each conversion. Initially, the Series D Preferred Stock is
convertible into 10 shares of
the Company’s Common Stock.
Redemption. To the extent it is lawfully able to do so,
the Company may redeem all of the
then outstanding shares of Series D Preferred Stock by paying in cash an amount per share equal to
$24.80 plus all declared or accrued unpaid dividends on such shares, subject to adjustment for any
stock dividends or distributions, splits, subdivisions, combinations, reclassifications, stock
issuances or similar events with respect to the Common Stock.
The foregoing description of the Purchase Agreement, the Warrant and the Certificate of
Designation is only a summary and is qualified in its entirety by reference to the full text of the
Form of Purchase Agreement, the Form of Warrant to Purchase Shares of Common Stock and the
Certificate of Designation, which are filed as
Exhibit 10.1,
Exhibit 10.2 and
Exhibit 3.1,
respectively, to this Current Report on Form 8-K, and each of which is incorporated herein by
reference.
Investment in Cocrystal Discovery, Inc.
Effective
September 21, 2009,
the Company entered into an agreement pursuant to which
the Company
invested $2.5 million in Cocrystal Discovery, Inc., a privately held biopharmaceutical company
(
“Cocrystal”) in exchange for 1,701,723 shares of Cocrystal’s Series A Preferred Stock. A group of
investors led by The Frost Group, LLC, whose members include the Gamma Trust, Jane Hsiao, Steven D.
Rubin
the Company’s Executive Vice President — Administration, and Rao Uppaluri,
the Company’s
Chief Financial Officer (the
“Frost Investors”), previously invested $5 million in Cocrystal, and
agreed to invest an additional $5 million payable in two equal installments. As a result of an
amendment to the Frost Investor agreements dated
June 9, 2009, OPKO, rather than the Frost
Investors, would make the first installment investment ($2.5 million) on or around
September 18,
2009. Following the second installment investment of $2.5 million in Cocrystal by the Frost Investors,
OPKO will own approximately 16% of Cocrystal and the Frost Group will own approximately 42% of
Cocrystal, each on a fully diluted basis. Dr. Frost, Mr. Rubin, and Dr. Hsiao currently serve on
the Board of Directors of Cocrystal.
ITEM 3.02. Unregistered Sales of Equity Securities.
The information disclosed under Item 1.01 of this report under the heading “Preferred Stock
Offering” is incorporated into this Item 3.02 in its entirety.
ITEM 3.03. Material Modification to Rights of Security Holders.
The information disclosed under Item 1.01 of this report under the heading “Preferred Stock
Offering” is incorporated into this Item 3.03 in its entirety.
The information disclosed under Item 1.01 of this report under the heading “Preferred Stock
Offering” is incorporated into this Item 5.03 in its entirety.
ITEM 8.01. Other Events.
The information contained in Item 8.01 to this Current Report on Form 8-K,
Exhibit 99.1 and
Exhibit 99.2 attached
hereto shall not be deemed
“filed” for purposes of Section 18 of the Exchange Act, or otherwise
subject to the liabilities of that section, nor shall it be deemed
incorporated by reference in any
filing by
the Company under the Act.
ITEM 9.01. Financial Statements and Exhibits
(d) Exhibits
|
|
|
Exhibit Number |
|
Description |
|
|
|
3.1
|
|
Certificate of Designation of Series D Preferred Stock. |
|
|
|
10.1
|
|
Form of Securities Purchase Agreement. |
|
|
|
10.2
|
|
Form of Warrant to Purchase Shares of Common Stock. |
|
|
|
99.1
|
|
Press Release dated September 22, 2009. |
|
|
|
99.2
|
|
UBS 2009 Global Life Sciences Conference Presentation |