EX-10.24
Published on March 17, 2010
Exhibit 10.24
EXECUTION COPY
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement is entered into as of October 1, 2009, among the Laboratorio
Volta S.A., a sociedad anónima cerrada organized and existing under the laws of Chile
(Volta), Farmacias Ahumada S.A., a sociedad anónima abierta organized and existing under
the laws of Chile (FASA), FASA Chile S.A., a sociedad anónima cerrada organized and
existing under the laws of Chile (FASA Chile and collectively with Volta and FASA, the
Sellers), OPKO Chile Limitada, a sociedad de responsabilidad limitada organized and
existing under the laws of Chile, (OPKO Chile), and Inversiones OPKO Limitada, a sociedad de
responsabilidad limitada organized and existing under the laws of Chile, (OPKO and together with
OPKO Chile, the Buyers) for the sale and transfer from the Sellers to the Buyers of 100%
of Pharma Genexx S.A., a sociedad anónima cerrada organized and existing under the laws of Chile
(the Company).
Preliminary Statements
A. The Company is engaged principally in the business of importation, commercialization and
distribution of pharmaceutical products and medical devices for the government, private and
institutional markets.
B. Volta owns 60 (sixty) shares of the Company, FASA owns 59 (fifty nine) shares of the
Company and FASA Chile owns one (1) share of the Company, all representing 100% of the issued and
outstanding shares of the Company (the Shares) and desire to sell to the Buyers at
Closing, and the Buyers desire to acquire, on the terms and subject to the conditions set forth in
this Agreement, all of the Shares from each of the Sellers, following which the Buyers will own 100
percent of the issued and outstanding shares of the Company.
Agreement
In consideration of the preliminary statements and the respective representations and
warranties, covenants and agreements contained in this Agreement, the parties agree as set forth
below.
ARTICLE 1
Definitions
In addition to terms defined elsewhere in this Agreement, the following terms when used in
this Agreement shall have the meanings indicated below:
Action means any claim, action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Authority.
Agreement means this Agreement together with all exhibits and schedules referred to
herein.
Company Intellectual Property means Intellectual Property owned by the Company.
Company IP Agreements means (a) licenses of Intellectual Property by the Company to
any third party, (b) licenses of Intellectual Property by any third party to the Company , (c)
agreements between the Company and any third party relating to the development or use of
Intellectual Property, and (d) consents,
settlements, decrees, orders, injunctions, judgments or rulings governing the use, validity or
enforceability of Company Intellectual Property.
Competing Transaction means any of the following: (a) any merger, consolidation,
capital exchange, share exchange, business combination, recapitalization, liquidation, dissolution
or similar transaction involving the Company, (b) any sale, exchange, transfer or other disposition
or issuance of any of the Shares or any other registered capital, share capital or other ownership
interests in the Company (including any financing of the Company), or (c) any other transaction the
consummation of which would reasonably be expected to impede, prevent or materially delay the
transactions contemplated by this Agreement.
Contracts means all contracts, agreements, covenants, commitments and other
instruments of any kind, whether oral or written, to which the Company is a party or to which any
Assets (as defined below) of the Company are bound.
Environmental Laws means any Law and any enforceable judicial or administrative
interpretation thereof relating to pollution or protection of the environment or natural resources.
Governmental Authority means any Chilean governmental, regulatory or administrative
authority, agency or commission or any court, tribunal, or judicial or arbitral body.
Governmental Order means any order, writ, judgment, injunction, decree, stipulation,
determination or award entered into by or with any Governmental Authority.
Guaranty means, as to any Person, any contract, agreement or understanding of such
Person pursuant to which such Person guarantees the indebtedness, Liabilities or obligations of
others, directly or indirectly, in any manner.
Hazardous Materials means (a) any petroleum, petroleum products, by-products or
breakdown products, radioactive materials, asbestos-containing materials or polychlorinated
byphenyls, (b) any chemical, material or substance defined or regulated as toxic or hazardous or as
a pollutant or contaminant or waste under any applicable Environmental Law and (c) any other
chemical, material or substance which is regulated by any Environmental Law.
Intellectual Property means (a) all inventions (whether patentable or unpatentable
and whether or not reduced to practice), all improvements thereto, and all patents, patent
applications, and patent disclosures, statutory invention registrations together with all
reissuances, divisions, continuations, continuations-in-part, revisions, extensions, and
reexaminations thereof and all rights therein provided by Law or international treaties and
conventions; (b) all trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptations, derivations, and combinations thereof and
including all goodwill associated therewith, and all applications, registrations, and renewals in
connection therewith; (c) all copyrightable works, all copyrights, and all applications,
registrations, and renewals in connection therewith; (d) all trade secrets and confidential
business information (including databases, ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques, technical data, designs,
drawings, specifications, customer and supplier lists, pricing and cost information, and business
and marketing plans and proposals); (e) all computer programs and software (including data and
source and object codes and related documentation); (f) all other property rights in connection
with the foregoing; and (g) all copies and tangible embodiments thereof.
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Law means any law, statute, ordinance, rule, regulation, order, writ, judgment or
decree.
Liabilities means any liability, debt or obligation (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, and whether accrued or unaccrued,
any and all Actions, damages, deficiencies, fines, penalties, interest, assessments, judgments,
losses, Taxes, costs, expenses, including, without limitation, fees and disbursements of counsel
and experts.
Licensed Intellectual Property means Intellectual Property licensed to the Company
pursuant to the Company IP Agreements.
Liens means any liens, claims, charges, rights, pledges, security interests,
mortgages, options, title defects, conditions or other encumbrances, restrictions or limitations of
any nature whatsoever, including any restriction on the use, voting, transfer or other exercise of
any attributes of ownership.
Material Adverse Effect means any change in or effect on the business of the Company
that individually, or together with all other such changes and effects, (a) is or could reasonably
be expected to be materially adverse to the business, assets, liabilities (contingent or
otherwise), condition, prospects or results of operations of the Company or (b) could reasonably be
expected to materially adversely affect the ability of the Buyers to operate or conduct the
business of the Company in the manner in which it is currently operated or conducted after the
Closing Date.
Organizational Documents means any and all documents pursuant to which an entity is
organized and/or operates under the applicable laws of its jurisdiction.
Person means any natural person, corporation, limited liability corporation,
unincorporated organization, partnership, association, joint stock company, joint venture, trust or
government, or any agency or political subdivision of any government, or any other entity.
Subsidiary of a specified Person means a Person who directly or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common control with the
specified Person.
Tax means any Chilean, national, provincial, or local income, gross receipts,
franchise, estimated, alternative minimum, add-on minimum, sales, use, transfer, registration, all
gross receipts, sales, use, ad valorem, value added, excise, natural resources, severance, stamp,
occupation, premium, windfall profit, assets, minimum income, environmental, customs, duties, real
property, personal property, capital stock, social security obligations or contributions,
unemployment, disability, payroll, license, employee or other withholding, or other tax or
governmental charge, of any kind whatsoever, including any interest, penalties or additions to tax
or additional amounts in respect of the foregoing.
Transaction Documents means this Agreement and its Schedules and the Escrow
Agreement.
US$ or $ means the lawful currency of the United States of America.
ARTICLE 2
Purchase of Capital; Consideration
2.1 Capital to be Purchased. Subject to the terms and conditions set forth
herein, at the Closing, each of the Sellers shall sell, assign, transfer, convey and deliver, or
caused to be sold, assigned, transferred, conveyed and delivered, to the Buyers, and the Buyers
shall purchase from each of the Sellers, all of such
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Sellers right, title and interest in and to the Shares, which, in the aggregate, represents all of
the outstanding contributed registered capital of the Company.
2.2 Consideration.
(a) In consideration of the sale of the Shares by the Sellers to Buyer, Buyers shall
deliver an aggregate of US$133,333 per Share in immediately available funds payable as follows:
(i) OPKO Chile shall deliver to Volta at Closing an aggregate of US$7.2 million; and
to FASA US$7,066,667. In turn, OPKO shall deliver to FASA Chile US$133,333. All those amounts
shall be delivered in immediately available funds (the Closing Consideration).
(ii) OPKO Chile shall deliver to Escrow Agent at Closing an aggregate of US$1.6
million in immediately available funds (Escrow Consideration) 50% of which shall be
allocated to each of Volta and FASA, and to be held in escrow (as part of the Escrow
Fund) pursuant to the escrow agreement (the Escrow Agreement) with an escrow agent
selected by the Parties (the Escrow Agent) substantially in the form of Exhibit A
hereto.
ARTICLE 3
Representations and Warranties of Buyer
In order to induce each of the Sellers to enter into this Agreement and to consummate the
transactions contemplated hereby, each Buyer makes the representations and warranties set forth
below to each of the Sellers as of the date hereof and as of the Closing Date.
3.1 Organization. Buyer is duly organized, validly existing and in good standing
under the Laws of the state of its formation.
3.2 Authorization; Enforceability. Buyer has all necessary corporate power and
authority to execute and deliver the Transaction Documents, to carry out its obligations hereunder
and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution
and delivery of the Transaction Documents by Buyer and the consummation by Buyer of the
transactions contemplated hereby and thereby have been duly and validly authorized by all requisite
corporate action. This Agreement has been, and upon execution the Escrow Agreement shall have
been, duly and validly executed and delivered by Buyer and constitutes, and upon execution the
Escrow Agreement shall constitute, the legal, valid and binding obligation of Buyer, enforceable in
accordance with their respective terms.
3.3 No Violation or Conflict. The execution and delivery of the Transaction
Documents by Buyer, the consummation by Buyer of the transactions contemplated hereby and thereby,
and compliance by Buyer with the provisions hereof and thereof do not and will not (a) violate or
conflict with any provision of Buyers Organizational Documents; (b) violate or conflict with any
Law applicable to Buyer; and (c) with or without the passage of time or the giving of notice,
result in the breach of, or constitute a default under, or give to others any right of acceleration
of performance, termination, amendment or cancellation of, or result in the creation of any Lien
upon any property or assets of, Buyer pursuant to any instrument, contract, obligation or agreement
to which Buyer is a party or by which Buyer or its properties may be bound or effected, in each
case which would materially adversely affect the ability of Buyer to carry out its obligations
under, and to consummate the transactions contemplated by, this Agreement.
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ARTICLE 4
Representations and Warranties of each of the Sellers relating to the Company and to
the sellers
the sellers
In order to induce Buyer to enter into this Agreement and to consummate the transactions
contemplated hereby, each of the Sellers, separately, make the representations and warranties set
forth below to OPKO Chile as of the date hereof and as of the Closing Date.
4.1 Organization. The Company has been duly organized and is validly existing
and in good standing under the Laws of the jurisdiction of its incorporation or organization, as
the case may be. The Company is duly qualified or licensed to do business, and is in good
standing, in each jurisdiction where the character of the properties owned, leased or operated by
it or the nature of its business makes such qualification or licensing necessary. The Company has
all requisite right, power and authority to (a) own or lease and operate its properties and (b)
conduct its business as presently conducted. The Company is not in violation of any provision of
its Organizational Documents.
4.2 Authorization; Enforceability. Each of the Sellers has all necessary power
and authority to execute and deliver the Transaction Documents, to carry out its obligations
thereunder, and to consummate the transactions contemplated thereby. The execution and delivery of
the Transaction Documents by each of the Sellers and the consummation by it of the transactions
contemplated thereby have been duly and validly authorized by all requisite action. This Agreement
has been, and upon execution the Escrow Agreement shall have been, duly and validly executed and
delivered by each of the Sellers and constitutes the legal, valid and binding obligations of each
of the Sellers, enforceable in accordance with their respective terms.
4.3 No Violation or Conflict. The execution and delivery of the Transaction
Documents by each of the Sellers, the consummation of the transactions contemplated thereby, and
compliance with the provisions thereof, do not and will not: (a) violate or conflict with any
provision of each of the Sellers s Organizational Documents; (b) violate or conflict with any Law
applicable to each of the Sellers; and (c) with or without the passage of time or the giving of
notice, result in the breach of, or constitute a default under, or give to others any right of
acceleration of performance, termination, amendment or cancellation of, or result in the creation
of any Lien upon any property or assets of each of the Sellers, including the Shares, pursuant to
any instrument, contract, obligation or agreement to which each of the Sellers is a party or by
which each of the Sellers or their respective properties may be bound or affected.
4.4 Subsidiaries. The Company has no Subsidiaries or equity interest in any
other person.
4.5 Capitalization. The Companys authorized share capital, the names of the
holders thereof and the amount of capital held by each such holder, is set forth on Schedule
4.5. Except as set forth in Schedule 4.5, the Shares are owned by each of the Sellers free and
clear of all Liens, rights of first refusal, shareholder agreements other than the shareholders
agreement existing between the Sellers, which shall terminate upon Closing, preemptive rights,
charges and other encumbrances and agreements of any nature whatsoever. None of the Shares were
issued in violation of any Law, preemptive rights or rights of first refusal or other agreement or
rights. At the Closing, each of the Sellers will transfer and convey, and Buyer and its designee
will acquire good and valid title to the Shares, free and clear of all Liens.
4.6 Rights, Warrants, Options. Other than the Shares, there are no shares of
capital stock, other equity interests, stock options, warrants, notes, convertible securities,
rights of first refusal, preemptive rights, subscription rights, stock appreciation, phantom stock
or other rights, arrangements or commitments of any character outstanding to which each of the
Sellers is a party or by which each of the Sellers is bound or
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relating to the issued or unissued capital stock, registered capital or equity interests of the
Company or obligating the Company to issue or sell any shares of capital stock or other equity
interests in the Company.
4.7 Financial Statements; Books and Records. As of (i) the date hereof, the
Company has delivered a true and complete copy of (A) the audited consolidated balance sheet of the
Company for the fiscal years ended December 31, 2008 and 2007, and the audited consolidated profit
and loss statement and statement of cash flows for the fiscal years ended December 31, 2008 and
2007, including any related notes and schedules thereto, certified by the Companys independent
registered public accounting firm pursuant to their audit of the financial records of the Company,
and (B) the audited consolidated balance sheet of the Company as of June 30, 2009 (the
Reference Balance Sheet) and the audited consolidated profit and loss statement and
statement of cash flows for the three months ended June 30, 2009 and 2008, including any related
notes and schedules thereto (collectively, the Financial Statements). The Financial
Statements: (1) have been prepared in accordance with the books of account and records of the
Company; (2) fairly present, and are true, correct and complete statements of, the consolidated
financial condition of the Company and the results of its operations at the dates and for the
periods specified in those statements; and (3) have been prepared in accordance with Chilean
generally accepted accounting principles (GAAP), consistently applied. In addition,
Sellers have delivered to Buyers the Financial Statements in accordance with U.S. generally
accounting principles.
4.8 Absence of Undisclosed Liabilities. The Company has no Liabilities or
commitments of any nature whatsoever, whether accrued, absolute, contingent or otherwise, other
than (a) those incurred since June 30 in the ordinary course of business consistent with past
practice and which do not and could not, individually or in the aggregate, have a Material Adverse
Effect, or (b) as disclosed and accrued for or reserved against in the Reference Balance Sheet.
4.9 Accounts and Notes Receivable and Payable. Set forth on Schedule 4.9
is a true and complete aged list of unpaid accounts and notes receivable owing to and owed by the
Company as of the date hereof. All of such accounts and notes receivable and payable constitute
only bona fide, valid and binding claims arising in the ordinary course of the Companys business.
4.10 Absence of Material Adverse Effects. Since June 30, 2009, the Company has
conducted its business only in the ordinary course of business consistent with past practice and,
since such date: (a) there has been no Material Adverse Effect; and (b) the Company has not engaged
or agreed to engage in any of the actions described in Section 5.1.
4.11 Significant Customers and Suppliers. Listed in Schedule 4.11 are
the names of the twenty-five (25) most significant customers (measured by Chilean peso volume) of
the Company (the Significant Customers) during the fiscal years ended December 30, 2008
and December 31, 2007, and the amount for which each such Significant Customer was invoiced during
such periods. Since December 31, 2007, no Significant Customer, in a manner adverse to the
Company, (i) has canceled, suspended or otherwise terminated its relationship with the Company,
(ii) has advised the Company of its intention to cancel, suspend or terminate its relationship or
to materially decrease its purchase of the products or services of the Company or to change the
terms upon which it purchases products or services, or (iii) could reasonably be expected to
cancel, suspend or terminate its relationship or to decrease its purchase of the products or
services of the Company as a result of the consummation of the transactions contemplated hereby.
4.12 Tax Matters. All Tax returns and other similar documents required to be
filed with respect to the Company have been timely filed with the appropriate Governmental
Authorities in all jurisdictions in which such returns and documents are required to be filed, all
of the foregoing are true, correct and complete and reflect accurately all liabilities for Taxes of
the for the periods to which such returns and documents relate,
and all amounts shown as owing thereon have been paid. All Taxes, if any, collectible or payable
by the
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Company or relating to or chargeable against any of their assets, revenues or income through
the Closing Date were fully collected and paid by such date or provided for by adequate reserves in
the Financial Statements and all similar items due through the Closing Date will have been fully
paid by that date or provided for by adequate reserves in the Financial Statements. No claims or
deficiencies have been asserted against the Company with respect to any Taxes which have not been
paid or otherwise satisfied or for which accruals or reserves have not been made in the Financial
Statements, and there exists no reasonable basis for the making of any such claims. There are no
tax liens on any asset of the Company.
4.13 Assets. The Company owns, leases or has the legal rights to use all
properties and assets (tangible and intangible), including the Leased Real Property and Company
Intellectual Property, used or intended to be used in the conduct of the Companys business (the
Assets). The Company has good and marketable title or leasehold interest to each Asset,
free and clear of all Liens. The Assets constitute all of the assets and rights required to
operate the business of the Company as previously conducted and as contemplated to be conducted.
All of the Assets are in good operating condition and repair, ordinary wear and tear excepted.
4.14 Intellectual Property.
(a) Schedule 4.14(a) sets forth a true and complete list of (i) all patents
and patent applications, registered trademarks and trademark applications, registered copyrights
and copyright applications and domain names included in the Company Intellectual Property, (ii) all
Company IP Agreements, and (iii) other Company Intellectual Property material to the Companys
business.
(b) The Company is the exclusive owner of the entire right, title and interest in
and to the Company Intellectual Property, and has a valid license to use the Licensed Intellectual
Property in connection with the Companys business. The Company is entitled to use all Company
Intellectual Property and Licensed Intellectual Property in the continued operation of the
Companys business without limitation, subject only to the terms of the Company IP Agreements. The
Company Intellectual Property and the Licensed Intellectual Property have not been adjudged invalid
or unenforceable in whole or in part, and are valid and enforceable.
(c) The conduct of the Companys business as currently conducted does not infringe
or misappropriate the Intellectual Property of any third party, and no Action alleging any of the
foregoing are pending, and no Action has been threatened or asserted against any Seller, the
Company alleging any of the foregoing, except as listed in Schedule 4.14. To the knowledge of the
Company, no Person is engaging in any activity that infringes the Company Intellectual Property.
(d) No Company Intellectual Property is subject to any outstanding Governmental
Order restricting the use of such Intellectual Property or that would impair the validity or
enforceability of such Intellectual Property.
4.15 Real Property.
(a) The Company does not own or hold property title to any real estate.
(b) Schedule 4.15(b) sets forth the street address of each parcel of real
property leased by the Company (the Leased Real Property). The Company has previously
delivered to Buyer true and complete copies of all of the lease agreements, as amended to date (the
Leases) relating to the Leased Real Property. The Company enjoys peaceful and
undisturbed possession of the Leased Real Property.
4.16 Compliance with Environmental Laws. The Company is in compliance with, and
has always been in compliance with, all Environmental Laws. There have been no Governmental Orders
issued against the Company for impairment, damage, injury or adverse effect to the environment or
public health and, to the
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knowledge of each of the Sellers and the Company after due inquiry, there
have been no private complaints with respect to any such matters, and there are no circumstances
that would form the basis of any such Governmental Orders.
4.17 Employment Matters.
(a) Employment Agreements. Schedule 4.17(a) sets forth all
employment, consulting, severance and indemnification arrangements, agreements, or understandings
between the Company and any officer, director, advisory board member, consultant or employee (the
Employment Agreements). The Company has previously delivered to the Buyers true and
complete copies of all of the Employment Agreements. No such Employment Agreement (i) will require
any payment by the Company or Buyer to any director, officer, advisory board member, consultant or
employee of the Company, or any other Person, by reason of the transactions contemplated by this
Agreement, or (ii) provides for the acceleration or change in the award, grant, vesting or
determination of options, warrants, rights, severance payments, or other contingent obligations of
any nature whatsoever of the Company in favor of any such Persons by reason of the transactions
contemplated by this Agreement.
(b) Personnel. Schedule 4.17(b) contains the names, job
descriptions and annual salary rates, bonus payments and other compensation of any kind of all
officers, directors, advisory board members, consultants and employees of the Company (including
compensation paid or payable by the Company under the Plans (as hereafter defined).
(c) Employment Laws. The Company has complied with all applicable
employment Laws, including payroll, withholding and related obligations, benefits and social
security, and does not have any obligation in respect of any amount due to employees of the Company
or Governmental Authorities, other than normal salary, other fringe benefits, severance payment and
contributions accrued but not payable on the date hereof.
(d) Policies. Schedule 4.17(d) contains a list of all employee
policies (written or otherwise), employee manuals or other written statements of rules or policies
concerning employment, including working conditions, vacation and sick leave, a complete copy of
each of which (or, if oral, an accurate written summary thereof) has been previously delivered to
Buyer.
(e) Employee Benefit Plans. The Company offers no benefit to its employees
other than those required by law.
4.18 Labor Relations. There is no strike or dispute pending or threatened
involving any employees of the Company. No unfair labor practice complaints are pending or
threatened against the Company, and no Person has made any claim, and there is no basis for any
claim, against the Company under any Law relating to employees or employment practices, including
without limitation those relating to age, sex or racial discrimination, conditions of employment,
wages or hours. There are no unions of which the employees of the Company are members.
4.19 Contracts. Schedule 4.19 sets forth a list of all Contracts (oral
or written) to which the Company is a party, or by which any of its assets are bound or affected,
which is material to the Companys business (Material Contracts).
Except as disclosed in Schedule 4.19:
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(i) the Material Contracts are each in full force and effect and are the valid and legally
binding obligations of the Company which is a party thereto and, are valid and legally binding
obligations of the counterparties thereto;
(ii) The Company is not in breach of any of the Material Contracts, in a manner which could
give rise to a Material Adverse Effect, or is in substantial violation of, or default under, any of
the Material Contracts, and no counterparty is in breach or violation of, or default under, any
Material Contract except as listed in Schedule 4.19(ii); and
(iii) The Company has not received any claim of default and no event has occurred which with
the giving of notice or lapse of time or both would constitute such a default.
Schedule 4.19 further identifies each Material Contract which would require the Company to
give notice to, or obtain the consent of, another party to such Material Contract as a result of
transactions contemplated by this Agreement.
4.20 Products and Services.
(a) Schedule 4.20 lists (i) each product developed, licensed, distributed or
sold by the Company (collectively, the Products) and (ii) each service provided by the
Company (collectively, the Services). Each Product has been distributed or sold in
accordance with, and each Service has been provided in compliance with, the applicable contractual
commitments, express or implied warranties, product and service specifications and quality
standards for such Product and Service, and the provisions of all applicable Laws. No Product or
Service sold, provided or delivered by the Company is subject to any guaranty, warranty (other than
warranties imposed by Law) or other indemnity, other than as set forth in Schedule 4.20(a).
(b) At no time have any of the Products been recalled, withdrawn or suspended by the
Company, voluntarily or otherwise; nor are there any pending Actions or proceedings seeking the
recall, withdrawal, suspension or seizure of any Product; and neither the Company has received any
regulatory letters, warning letters, or other notice of adverse findings, except as provided in
Schedule 4.20(b).
(c) There exist no set of facts: (i) which could furnish a basis for the withdrawal
or suspension of any Permit, license, approval or consent of any Governmental Authority with
respect to the Company, or any Product or Service; (ii) which could furnish a basis for the recall,
withdrawal or suspension of any Product from the market, the termination or suspension of any
clinical testing of any Product, or the change in marketing classification of any Product or (iii)
which could furnish a basis for the termination or suspension of any Service, except as provided in
Schedule 4.20(b).
4.21 Related Parties. Except as set forth in Schedule 4.21, no officer,
director, or shareholder of the Company, nor any relative or spouse of such officer, director or
shareholder, nor any Seller, has, directly or indirectly, (a) any ownership interest in any
property or asset, tangible or intangible, including any Company Intellectual Property, used in the
conduct of the Companys business; (b) any interest in or is, directly or indirectly, a party to,
any Contract, except as provided in Schedule 4.19; (c) any cause of action or claim whatsoever
against, or owes any amount to, the Company except as provided in Schedule 4.19, or (d) any
Liability to the Company. Except as set forth in Schedule 4.21, the Company has no Liability to
any Seller or its Subsidiaries or its or their Representatives (as defined below). Accounts
payable to Farmindustria S.A., a company related to Volta, are listed in Schedule 4.9. and not in
Schedule 4.21.
4.22 Absence of Certain Business Practices. None of the Sellers, the Company or
any of their respective directors, officers, employees, agents, advisors or representatives
(Representative) (in their capacity as Representatives) has: (a) used any funds for
unlawful contributions, gifts, entertainment or other
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unlawful expenses relating to political
activity in respect of the Companys business; (b) directly or indirectly paid or delivered any
fee, commission or other sum of money or item of property, however characterized, to any finder,
agent, or other party acting on behalf of or under the auspices of a governmental official or
Governmental Authority which is in any manner illegal under applicable Law; or (c) made any
unlawful payment to any customer or supplier of the Company or any officer, director, partner,
employee or agent of any such customer or supplier or given any other unlawful consideration to any
such customer or supplier or any such officer, director, partner, employee or agent, in respect of
the Companys business.
4.23 Compliance with Laws. Except as set forth in Schedule 4.20(b), the
Company is in compliance with all Laws applicable to it, its business or properties. The Company
has not received notification from any Governmental Authority asserting that it is not in
compliance with or has violated any Laws, or threatening to revoke any authorization, consent,
approval, franchise, license, or Permit, and the Company is not subject to any Governmental Order,
agreement or consent decree with any Governmental Authority arising out of previously asserted
violations.
4.24 Legal Proceedings. There is no Action, mediation or out-of-court settlement
negotiation by or against the Company or affecting any of the Assets or business of the Company
pending, or to the knowledge of the Company or any each of the Sellers after due inquiry,
threatened. No person who is or was a director or officer of the Company is a party to any pending
or threatened Action, mediation or out-of-court settlement negotiation in their capacity as
directors or officers of the Company. Neither the Company nor any Asset is subject to any
Governmental Order, nor is any Governmental Order threatened or pending.
4.25 Approvals and Filings. No consent, approval or authorization of, or
registration, qualification or filing with, any Governmental Authority or other Person is required
to be made by the Company in connection with the execution, delivery or performance of the
Transaction Documents by the Company or the consummation by the Company of the transactions
contemplated hereby.
4.26 Brokers. Neither the Company nor any Seller has employed any financial
advisor, broker or finder or incurred and will not incur any brokers, finders, investment banking
or similar fees, commissions or expenses in connection with the transactions contemplated by this
Agreement, which would be payable by the Company or the Buyers.
4.27 Title to Securities. Each of the Sellers is the legal and beneficial owner
of the Shares, respectively, and such Shares are owned free and clear of all Liens, rights of first
refusal, shareholder agreements other than the shareholders agreement existing between the Sellers
and to be terminated upon Closing, preemptive rights, charges and other encumbrances and agreements
of any nature whatsoever. At the Closing, each of the Sellers will transfer and convey, and each
Buyer will acquire, good and valid title to the Shares, free and clear of all Liens.
ARTICLE 5
Covenants
During the period from the date of this Agreement through the Closing Date, each of the
Company, the Sellers and the Buyers, as applicable, agree to perform the covenants set forth below.
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5.1 Interim Operations of the Company.
(a) Except as otherwise approved in writing by Buyer, the Company shall, and each of
the Sellers shall cause the Company to, operate its business in, and not take any action except in,
the ordinary course consistent with past practice and to preserve intact their respective business
organizations, Assets, Intellectual Property, and the current relationships and goodwill of their
customers, suppliers and others with whom it has significant business relations.
(b) The Company, and each of the Sellers shall cause the Company not to, during the
period from the date of this Agreement to the Closing Date, except with the prior written consent
of Buyer, directly or indirectly;
(i) amend or otherwise change the Organizational Documents of the Company;
(ii) issue, sell, dispose of, create a Lien on, or authorize the issuance, sale,
disposal or creation of any Lien on, (A) any capital stock of, or other ownership interests in, the
Company, including the Shares (including, but not limited to, by way of stock split or dividend) or
any subscriptions, options, warrants, convertible securities or other rights to acquire the
foregoing, or (B) any Asset or property right, except for sales of inventory in the ordinary course
of business consistent with past practice;
(iii) redeem, purchase, reclassify, combine, split, subdivide, change the terms of,
or otherwise acquire, any capital stock of, or other ownership interests in, the Company;
(iv) declare or pay any dividend or other distribution (whether in cash, stock or
other property) with respect to any capital stock of, or other ownership interests in, the Company;
(v) with respect to the Company create, incur or assume any indebtedness or any
Liability, including granting or becoming subject to any Guaranty in excess of $100.000;
(vi) with respect to the Company make or commit to make any capital expenditures in
excess of $10.000;
(vii) with respect to the Company, except in the ordinary course of business
consistent with past practice, discharge or otherwise obtain the release of any Lien or pay or
otherwise discharge any Liability;
(viii) with respect to the Company except in the ordinary course of business
consistent with past practice, write off the value of any assets, inventory or any accounts
receivable or increase the reserves for obsolete, damaged, spoiled or otherwise not usable
inventory or doubtful or uncollectable receivables;
(ix) increase the compensation payable or to become payable to directors, officers
or employees of the Company, or grant any rights to severance or termination pay to, or enter into
any employment or severance agreement with, any such person or establish, adopt, enter into or
amend any collective bargaining, bonus, profit sharing, thrift, compensation, stock option,
restricted stock, pension, retirement, deferred compensation, employment, termination, severance or
other plan, agreement, trust, fund, policy or arrangement for the benefit of any director, officer
or employee of the Company;
(x) with respect to the Company, acquire (including, without limitation, by merger,
consolidation or acquisition of stock or assets) any interest in any Person or assets (other than
the acquisition of inventory in the ordinary course of business);
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(xi) alter the manner of keeping the books, accounts or records, or change in any
manner the accounting practices, methods or assumptions therein reflected, of the Company;
(xii) amend, terminate, cancel or compromise any material claims of the Company or
waive any other material rights of the Company;
(xiii) with respect to the Company, delay or postpone the payment of accounts
payable or other Liabilities;
(xiv) take or omit to take any action which is intended to render any of each of the
Sellers representations or warranties untrue or misleading, or which would be a material breach of
any of each of the Sellers covenants or agreements;
(xv) allow any Permit to lapse or terminate or fail to renew any Permit;
(xvi) take any action which is intended to have a Material Adverse Effect or which
is intended to delay the consummation of the transactions contemplated by this Agreement;
(xvii) with respect to the agreements listed in Schedule 4.19, amend, terminate,
cancel, waive any rights thereunder or take any action with respect to the same, other than
amending the terms of the Convenio de Distribución between Laboratorio Volta S.A. and Pharma Genexx
S.A. dated December 12, 2006 so that Pharma Genexx S.A. may not terminate the same before April 15,
2010 or such other earlier date on which OPKO Chile releases, at its own discretion, the amount
held in escrow pursuant to the Escrow Agreement, with a prior written notice of at least 75 days;
or
(xviii) agree, whether in writing or otherwise, to do any of the foregoing.
5.2 Due Diligence Review. The Buyers shall be entitled to continue prior to the
Closing the due diligence review of the assets, properties, books, records and other information of
the Company. The Company shall (and shall cause its directors, officers, employees, auditors,
counsel and agents to), afford Buyers and Buyers officers, employees, auditors, counsel and agents
reasonable access at all reasonable times to the properties, offices, facilities, officers and
employees, and to all books and records of the Company, and shall furnish such persons with all
financial, operating and other data and information as may be requested.
5.3 Further Assurances. The parties shall deliver any and all other instruments
or documents required to be delivered pursuant to, or necessary or proper in order to give effect
to, the provisions of this Agreement, including all such instruments of transfer as may be
necessary or desirable to transfer ownership of the Shares to Buyer and its designee and to
consummate the transactions contemplated by this Agreement.
5.4 Publicity. The parties agree to cooperate in issuing any press release or
other public announcement concerning this Agreement or the transactions contemplated hereby.
Thereafter, unless otherwise required by applicable Law or the requirements of NYSE Amex or the
Chilean Superintendencia de Valores y Seguros, each party shall use reasonable best efforts to
consult with each other before issuing any press release or otherwise making any public statements
or disclosures with respect to this Agreement or the transactions contemplated hereby.
5.5 Acquisition Proposals. The Company and each Seller agrees that neither it
nor any of its Representatives will, directly or indirectly (a) solicit, encourage, initiate or
participate in any negotiations or discussions with respect to any offer or proposal that
constitutes, or may reasonably be expected to lead to, a
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Competing Transaction, (b) agree to or enter into any commitment or agreement relating to a
Competing Transaction, (c) disclose any confidential information to any Person concerning the
business or Assets of the Company in connection with any of the foregoing or (d) authorize any
Representative to take any such action. The Sellers and the Company shall notify the Buyers
promptly (and in any event within one day after attaining knowledge thereof) of receipt of any
inquiry, contact or offer regarding a Competing Transaction, including all of the material terms
thereof. The Company and the Sellers shall cease and cause to be terminated all existing
discussions with any parties conducted heretofore with respect to any Competing Transaction.
5.6 Notification of Certain Matters. Each party shall promptly notify the other
of (a) any Action that shall be instituted or threatened against such party or its Subsidiaries to
restrain, prohibit or otherwise challenge the legality of any transaction contemplated by this
Agreement, (b) any occurrence or event which makes or could reasonably be expected to make any
representation or warranty of such party untrue or inaccurate and (c) any breach by such party of
any covenant or agreement to be complied with or satisfied in the Transaction Documents,
provided, however, that the delivery of any notice pursuant to this Section
5.6 shall not limit or otherwise affect the remedies available hereunder to the party receiving
such notice.
5.7 Company Actions. Each of the Sellers will cause the Company to perform all
of the Companys obligations set forth in the Transaction Documents, including causing the board of
directors of the Company to unanimously approve and adopt this Agreement and the other Transaction
Documents and the transactions contemplated hereby and thereby, and each of the Sellers shall vote
all of the Registered Capital held by them in favor of the approval and adoption of this Agreement
and the other Transaction Documents and the transactions contemplated hereby and thereby, and shall
not modify such approval or adoption in a manner adverse to Buyer.
ARTICLE 6
Additional Agreements
6.1 Survival of the Representations and Warranties. The representations and
warranties contained in this Agreement shall survive the Closing Date for a period of two (2)
years, except for the representations and warranties set forth in Sections 4.12,
4.16 and 4.17 which shall survive for the applicable statute of limitations. If
written notice of a claim has been given prior to the expiration of the applicable representations
and warranties by a party hereto to another party hereto, then the relevant representations and
warranties shall survive as to such claim until such claim has been finally resolved.
6.2 General Release. As additional consideration for the sale of the Shares
pursuant to this Agreement, each of the Seller hereby unconditionally and irrevocably releases and
forever discharges, effective as of the Closing Date, the Company and their Representatives, from
any and all rights, claims, demands, judgments, obligations, Liabilities and damages, whether
accrued or unaccrued, asserted or unasserted, and whether known or unknown, relating to the
Company, which ever existed, now exist, or may hereafter exist, by reason of any tort, breach of
contract, violation of Law or other act or failure to act which shall have occurred at or prior to
the Closing Date, or in relation to any other Liabilities of the Company, except as provided in
Schedule 6.2 . The Sellers expressly intend that the foregoing release shall be effective
regardless of whether the basis for any claim or right hereby released shall have been known to or
anticipated by the Sellers.
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6.3 Indemnification.
(a) Indemnification. Each of the Sellers agree, separately, to indemnify
and hold harmless OPKO and their respective affiliates and their respective Representatives,
successors and assigns (the Buyer Indemnified Parties) from, against and in respect of,
the full amount of:
(i) any and all Liabilities arising from, in connection with any breach or violation
of (A) any representation or warranty of each of the Sellers contained in this Agreement or in any
schedule or exhibit hereto, and (B) any covenant or agreement of each of the Sellers contained in
this Agreement;
(ii) any other Taxes related to or arising from the transactions contemplated hereby
or in contemplation hereof by reason of any Liability for Taxes of the Companys shareholders and
assessed by any taxing authority against the Sellers, their shareholders, the Company, either
before or after the Closing Date;
(iii) any and all Liabilities related to or arising from any products or services
delivered by the Company prior to the Closing Date, including Liabilities for product recalls,
product defects, warranty claims, personal injury or death. It is expressly agreed that, in
connection with any claims filed by Central Nacional de Abastecimiento with respect to products
delivered on or prior to Closing, Sellers will only indemnify the difference, if any, between the
amount of any fines so imposed by Central Nacional de Abastecimiento and the amount of any payment,
set-off or such other compensation that the Company agrees, according to past practice, and
receives from the supplier of the product giving rise to such claim; and
(iv) any and all Actions, demands, assessments or judgments, costs and expenses
incidental to any of the foregoing.
(b) Indemnification Procedure as to Third Party Claims.
(i) Promptly after a Buyer Indemnified Party obtains knowledge of the commencement
of any third party Action (any such Action being hereinafter referred to in this Section
6.3 as a Claim), in respect of which a Buyer Indemnified Party is entitled to
indemnification under this Agreement, the Buyer Indemnified Party shall notify each of the Sellers
of such Claim in writing. With respect to any Claim as to which such notice is given, the Sellers
will assume and control the defense or otherwise settle such Claim with counsel reasonably
satisfactory to the Buyer Indemnified Party and experienced in the conduct of Claims of that nature
at the Sellers sole risk and expense; provided, however, that the Buyer
Indemnified Party (1) shall be permitted to join the defense and settlement of such Claim and to
employ counsel reasonably satisfactory to it at its expense, and (2) shall cooperate fully with the
Sellers in the defense and any settlement of such Claim in any manner reasonably requested by the
Sellers. The Sellers shall not make any settlement of any claims without the written consent of
the Buyer Indemnified Party.
(ii) If the Sellers fail to assume the defense of such Claim or, having assumed the
defense and settlement of such Claim, fail reasonably to contest such Claim in good faith, or the
remedy sought by the claimant with respect to such Claim is not solely for money damages, the Buyer
Indemnified Party, without waiving its right to indemnification, may, but is not required to,
assume the defense and settlement of such Claim at the respective Sellers expense,
provided, however, that (A) each of the Sellers shall cooperate with the Buyer
Indemnified Party in the defense and settlement of such Claim in any manner reasonably requested by
the Buyer Indemnified Party, and (B) the Buyer Indemnified Party shall not settle such Claim
without the written consent of each of the Sellers, which consent shall not be unreasonably
withheld or delayed.
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6.4 Confidentiality. Each of the Sellers acknowledge that the Company
Intellectual Property, the Licensed Intellectual Property and all other confidential or proprietary
information with respect to the business and operations of the Company are valuable, special and
unique. Each of the Sellers shall not, at any time after the Closing Date, disclose, directly or
indirectly, to any Person, or use or purport to authorize any Person to use any Company
Intellectual Property, Licensed Intellectual Property, confidential or proprietary information with
respect to the Company, the Buyers, whether or not for the each of the Sellers own benefit,
without the prior written consent of the Buyers. Each of the Sellers acknowledge that Buyers would
not enter into this Agreement without the assurance that all such confidential and proprietary
information will be used for the exclusive benefit of the Company.
6.5 Continuing Obligations. The restrictions set forth in Section 6.4
are considered by the parties to be reasonable for the purposes of protecting the value of the
business and goodwill of the Company and the Buyers. The Buyers and the Sellers acknowledge that
Buyers would be irreparably harmed and that monetary damages would not provide an adequate remedy
to the Buyers in the event the covenants contained in Section 6.4 were not complied with in
accordance with their terms. Accordingly, the Sellers agree that any breach or threatened breach
by any of them of any provision of 6.4 shall entitle each Buyer to injunctive and other
equitable relief to secure the enforcement of these provisions, without posting a bond, in addition
to any other remedies which may be available to each Buyer, and that the relevant Buyer shall be
entitled to receive from the Sellers reimbursement for all attorneys fees and expenses incurred by
Buyer in enforcing these provisions. It is the desire and intent of the parties that the
provisions of Section 6.4 be enforced to the fullest extent permissible under the Laws and
public policies of each jurisdiction in which enforcement is sought.
ARTICLE 7
Closing; Conditions Precedent; Termination
7.1 Closing. The transfers and deliveries to be made pursuant to this Agreement (the
Closing) shall take place at the offices of Claro y Cía. at Apoquindo 3.721,
13th Floor, Santiago, on or around October 5, 2009 (the Closing Date),
or on such other date and at such other place as may be agreed to by the parties. All proceedings
to be taken and all documents to be executed at the Closing shall be deemed to have been taken,
delivered and executed simultaneously, and no proceeding shall be deemed taken nor documents deemed
executed or delivered until all have been taken, delivered and executed.
(a) At the Closing, each Seller shall deliver to each Buyer (i) the relevant share
certificates issued by the Company evidencing the ownership of the Shares owned by such Seller,
together with a duly completed stock transfer form (traspaso de acciones) in the name of the OPKO
and OPKO Chile with respect to one Share by each Seller, (ii) with respect to the Sellers, a true
and notarized abstract of the resolution duly and validly adopted by their respective Boards of
Directors evidencing its authorization of the execution and delivery of the Transaction Documents
and the consummation of the transactions contemplated thereby, or alternatively (iii) a notarized
power of attorney issued by each Seller appointing the attorney in fact authorized to sign the
Transaction Documents on their behalf; (iv) an executed counterpart of the Escrow Agreement, (v)
such documents as are required to be delivered by such Seller to satisfy the conditions set forth
in Section 7.2, and (vii) such other documents and instruments as Buyer may reasonably
request.
(b) At the Closing, the Buyers shall (i) deliver the Closing Consideration to the
Sellers pursuant to Section 2.2(a)(i), (ii) deliver the Escrow Consideration to the Escrow
Agent pursuant to Section 2.2(a)(ii) and (iii) deliver to the Sellers a copy of the
estatutos of Buyers evidencing their authorization of the execution and delivery of the Transaction
Documents and the consummation of the transactions contemplated thereby; (iv)
15
deliver an executed counterpart of the Escrow Agreement, and (v) such documents as are
required to be delivered by Buyer to satisfy the conditions set forth in Section 7.2.
Promptly after the above Closing actions, the Companys directors will register or cause to be
registered the Buyers in the Companys shareholders book as the new sole shareholders of the
Company.
7.2 Conditions Precedent to the Obligations of Buyer. The obligations of Buyer
to consummate the transactions contemplated by this Agreement are subject to the satisfaction or
written waiver, at or prior to the Closing, of each of the following conditions.
(a) Representations and Warranties. The representations and warranties of
each of the Sellers contained in this Agreement and in any certificate or other document delivered
pursuant to this Agreement shall have been true and correct when made and shall be true and correct
in all material respects (except for those representations and warranties which are by their terms
qualified by materiality or Material Adverse Effect, which shall be true and correct in all
respects) as of the Closing Date (except to the extent such representations and warranties are as
of another date, in which case as of such date) with the same force and effect as though made on
and as of such date.
(b) Covenants. The covenants and agreements of each of the Sellers
contained in this Agreement to be performed or complied with on or prior to the Closing Date shall
have been duly performed or complied with in all material respects.
(c) No Material Adverse Effect. There shall not have occurred any Material
Adverse Effect.
(d) Certificate. The Company and each of the Sellers shall have delivered
to Buyer a certificate executed by the Chief Executive Officer of the Company and such Seller (or
by Seller if an individual), dated the Closing Date, certifying in such detail as Buyers may
reasonably request, that the conditions specified in Sections 7.2(a), (b) and (c)
above have been fulfilled and as to such other matters as Buyers may reasonably request.
(e) Consents. The Company and each of the Sellers shall have obtained, each
in form and substance satisfactory to Buyers, (i) the consents and approvals that should be
obtained according to applicable laws and regulations, if any, and (ii) all other consents and
approvals of Governmental Authorities and other Persons required, or which Buyer deems necessary,
to consummate the transactions contemplated by this Agreement, in each case which shall have been
obtained without the imposition of any adverse terms or condition which would adversely affect
Buyers or its ability to operate the Company after the Closing.
(f) Each of the members of the board of directors of the Company shall have resigned
and deliver the Company with a full and complete release of any and all claims such persons have or
may have against the Company.
(g) Each of the Sellers shall comply with its respective obligation to close the
transaction contemplated hereunder.
7.3 Conditions Precedent to the Obligations of each of the Sellers and the
Company. The obligations of each of the Sellers to consummate the transactions contemplated by
this Agreement are subject to the satisfaction or written waiver, at or prior to the Closing, of
each of the following conditions.
(a) Representations and Warranties. The representations and warranties of
Buyers contained in this Agreement or in any certificate or other document delivered pursuant to
this Agreement shall have been true
and correct when made and shall be true and correct in all material respects (except for those
representations
16
and warranties which are by their terms qualified by materiality, which shall be
true and correct in all respects) as of the Closing Date (except to the extent such representations
and warranties are as of another date, in which case as of such date) with the same force and
effect as though made on and as of such date.
(b) Covenants. The covenants and agreements of Buyers contained in this
Agreement to be performed or complied with on or prior to the Closing Date shall have been duly
performed or complied with in all material respects.
7.4 Termination.
(a) This Agreement and the transactions contemplated hereby may be terminated prior
to the Closing:
(i) at any time by mutual consent of the parties;
(ii) by either party if the Closing has not occurred on or prior to [December 31,
2009] (the Termination Date), provided that the failure of the Closing to occur by such
date is not the result of the failure of the party seeking to terminate this Agreement to perform
or fulfill any of its obligations hereunder;
(iii) by either party if there shall be any Governmental Order that is final and
non-appealable having the effect of making the purchase of the Registered Capital or the issuance
of the Shares to the Sellers illegal;
(iv) by Buyer, upon a breach of any representation, warranty, covenant or agreement
on the part of the Company or any Seller set forth in this Agreement or if any representation or
warranty of the Company or any Seller shall have become untrue, such that, in either case, the
conditions set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied,
provided, however, that if such breach is curable by the Company or such Seller, as
applicable, the Agreement may not be terminated by Buyer for so long as the Company or Seller, as
applicable, continues to exercise its best efforts to cure such breach, unless such breach is not
cured with 15 days after notice of such breach is provided by Buyer; or
(v) by the Sellers, upon a breach of any representation, warranty, covenant or
agreement on the part of Buyer set forth in this Agreement or if any representation or warranty of
Buyer shall have become untrue, such that, in either case, the conditions set forth in Section
7.3(a) or Section 7.3(b) would not be satisfied, provided, however,
that if such breach is curable by Buyer, the Agreement may not be terminated by the Sellers for so
long as Buyer continues to exercise its best efforts to cure such breach, unless such breach is not
cured with 15 days after notice of such breach is provided by the Sellers.
(b) If this Agreement is terminated pursuant to this Section 7.4, written
notice thereof shall promptly be given by the party electing such termination to the other party
and, subject to the expiration of the cure periods provided in clauses (iv) and (v) above, this
Agreement shall terminate without further actions by the parties and no party shall have any
further obligations under this Agreement; provided that any termination of this Agreement pursuant
this Section shall not relieve any party from any liability for the breach of any representation,
warranty or covenant contained in this Agreement or be deemed to constitute a waiver of any remedy
available for such breach.
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ARTICLE 8
Miscellaneous
8.1 Notices. Any notice or other communication under this Agreement shall be in
writing and shall be delivered personally or sent by certified mail, return receipt requested,
postage prepaid, or sent by facsimile or prepaid overnight courier to the parties at the addresses
set forth below their names on the signature pages of this Agreement (or at such other addresses as
shall be specified by the parties by like notice). Such notices, demands, claims and other
communications shall be deemed given when actually received or (a) in the case of delivery by
overnight service with guaranteed next day delivery, the next day or the day designated for
delivery, (b) in the case of facsimile, the date upon which the transmitting party received
confirmation of receipt by facsimile, telephone or otherwise. A copy of any notices delivered to
Buyer shall also be sent to OPKO Health, Inc., 4400 Biscayne Boulevard, Miami, Florida 33137, Attn:
Deputy General Counsel, Fax (305) 575-4140.
8.2 Entire Agreement. This Agreement, its schedules and exhibits, contain every
obligation and understanding between the parties relating to the subject matter hereof, merges all
prior discussions, negotiations and agreements, if any, between them, and none of the parties shall
be bound by any representations, warranties, covenants, or other understandings, other than as
expressly provided or referred to herein or therein.
8.3 Assignment. This Agreement may not be assigned by any party without the
written consent of the other parties; provided that Buyer may assign this Agreement to a
Subsidiary, whether such Subsidiary currently exists or is formed in the future. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective
successors, heirs, personal representatives, legal representatives, and permitted assigns.
8.4 Waiver and Amendment. Any waiver, extension or amendment of this Agreement
shall be evidenced by an instrument in writing executed on behalf of the appropriate party. No
waiver by any party hereto, whether express or implied, of its rights under any provision of this
Agreement shall constitute a waiver of such partys rights under such provisions at any other time
or a waiver of such partys rights under any other provision of this Agreement. No failure by any
party hereto to take any action against any breach of this Agreement or default by another party
shall constitute a waiver of the former partys right to enforce any provision of this Agreement or
to take action against such breach or default or any subsequent breach or default by such other
party.
8.5 No Third Party Beneficiary. Nothing expressed or implied in this Agreement
is intended, or shall be construed, to confer upon or give any Person other than the parties hereto
and their respective heirs, personal representatives, legal representatives, successors and
permitted assigns, any rights or remedies under or by reason of this Agreement.
8.6 Severability. In the event that any one or more of the provisions contained
in this Agreement shall be declared invalid, void or unenforceable, the remainder of the provisions
of this Agreement shall remain in full force and effect, and such invalid, void or unenforceable
provision shall be interpreted as closely as possible to the manner in which it was written.
8.7 Expenses. Each party agrees to pay, without right of reimbursement from the
other party, the costs (hereafter referred to as Costs) incurred by it incident to the
performance of its obligations under this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, costs incident to the preparation of this
Agreement, and the fees and disbursements of counsel, accountants and consultants employed by such
party in connection herewith.
8.8 Headings. The section and other headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of any provisions of
this Agreement.
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8.9 Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original but all of which together shall constitute one and the
same instrument.
8.10 Litigation; Prevailing Party. In the event of any litigation with regard to
this Agreement, the prevailing party shall be entitled to receive from the non-prevailing party and
the non-prevailing party shall pay upon demand all reasonable fees and expenses of counsel for the
prevailing party.
8.11 Injunctive Relief. It is possible that remedies at law may be inadequate
and, therefore, the parties hereto shall be entitled to equitable relief including, without
limitation, injunctive relief, specific performance or other equitable remedies in addition to all
other remedies provided hereunder or available to the parties hereto at law or in equity.
8.12 Governing Law. This Agreement has been entered into and shall be construed
and enforced in accordance with the laws of the Chile without reference to the choice of law
principles thereof.
8.13 Jurisdiction and Venue. This Agreement shall be governed by and construed in
accordance with Chilean law. Any dispute or controversy between the parties, by arising from or
related to this Agreement and the parties of this Agreement shall be finally settled by an árbitro
mixto designated by mutual agreement of the parties or in case the parties do not agree in the
appointment of the arbitrator, it shall be appointed by the Santiago Chamber of Commerce, for which
purpose the parties hereby grant an special power of attorney so that it may, upon written request
of any of the parties, appoint the arbitrator from the list of the Centro de Arbitraje y Mediación
de Santiago. The arbitration procedure shall take place in Santiago de Chile and shall
be conducted in the Spanish language.
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IN WITNESS WHEREOF, the parties hereto have each executed and delivered this
Agreement as of the day and year first above written.
|
Buyer: OPKO CHILE LIMITADA |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INVERSIONES OPKO LIMITADA | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Apoquindo 3.721, piso 13 Las Condes, Santiago Tel: 367 30000 Attn.: Matías de Marchena e-mail: mdemarchena@claro.cl |
||||||
| With copies to: | ||||||
| OPKO HEALTH, INC. 4400 Biscayne Boulevard Miami, Florida 33137 USA Attn: Kate Inman Facsimile: (305) 575-4138 |
||||||
| COMPANY: | ||||||
| Pharma Genexx S.A. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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|
Sellers: Farmacias Ahumada S.A. |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| [Address] Attn: Facsimile: |
||||||
| FASA Chile S.A. | ||||||
| By: | ||||||
| Name: |
|
|||||
| Title: | ||||||
| [Address] Attn: Facsimile: |
||||||
| Laboratorio Volta S.A. | ||||||
| By: | ||||||
| [Address] Facsimile: |
||||||
| Company: | ||||||
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EXHIBIT A
Form of Escrow Agreement
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