THIS SECURITY AND
THE SHARES (AS DEFINED BELOW) HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY SHARE MAY BE SOLD OR TRANSFERRED
ABSENT SUCH REGISTRATION OR AN EXEMPTION THEREFROM.
Effective Date:
September • , 2009
WARRANT TO PURCHASE COMMON
STOCK
EXPIRING SEPTEMBER •,
2014
THIS WARRANT
CERTIFIES THAT • or their permitted assigns
(“Holder”), for good and valuable consideration, the
receipt of which is hereby acknowledged, has been granted the right
to purchase from OPKO Health, Inc., a Delaware corporation (the
“Company”), at any time and from time to time, for a
period commencing on the Effective Date (as defined below) and
ending on the Expiration Date, • (the “Warrant
Number”) validly issued, fully-paid and non-assessable shares
(the “Shares”) of the Company’s common stock, par
value $.01 per share, subject to adjustment as provided herein, at
the exercise price of $ 2.48 per share (the “Exercise
Price”).
1. Term
of Warrant . Subject to the terms and conditions set forth
herein, this Warrant shall be exercisable, in whole or in part,
during the term (“Term”) commencing at 9:00 a.m., New
York, New York time, on the date hereof (the “Effective
Date”) and ending at 5:00 p.m., New York, New York time on
the Expiration Date, and shall be void thereafter.
2.1.
Manner of Exercise . The purchase rights represented by this
Warrant are exercisable by the Holder in whole or in part, at any
time, or from time to time, during the Term, by the surrender of
this Warrant and the Notice of Exercise (in the form annexed hereto
as Exhibit A), duly completed and executed on behalf of the Holder,
at the office of the Company (or such other office or agency of the
Company as it may designate by notice in writing to the Holder),
upon payment of the purchase price of the Shares to be purchased in
cash or wire transfer to an account designated by the
Company.
2.2.
Time of Exercise. This Warrant shall be deemed to have been
exercised immediately prior to the close of business on the date of
its surrender for exercise as provided above (the “Exercise
Date”), and the Person entitled to receive the Shares
issuable upon such exercise shall be treated for all purposes as
the holder of record of such Shares as of the close of business on
such date. As used in this Warrant, “Person” shall mean
an individual, corporation, limited liability company, partnership,
trust, incorporated or unincorporated association, joint venture,
joint stock company, government (or any agency or political
subdivision thereof) or other entity of any kind.
-1-
2.3.
Delivery of Certificate and Revised Warrant. As promptly as
practicable on or after the Exercise Date and in any event within
fifteen (15) days thereafter, the Company at its expense, will
issue and deliver to the Person(s) entitled to receive the same a
certificate or certificates for the number of Shares issuable upon
such exercise or other appropriate written evidence of the issuance
of the Shares. In the event that this Warrant is exercised in part,
the Company at its expense shall execute and deliver a new Warrant
of like tenor exercisable for the number of Shares for which this
Warrant may then be exercised at the same time.
2.4.
No Fractional Shares. No fractional Shares shall be issued
upon the exercise of this Warrant. In lieu of any fractional Share
to which the Holder would otherwise be entitled, the Company shall
make a cash payment equal to the Exercise Price multiplied by such
fraction.
3.
Adjustments to the Shares .
3.1.
Merger, Sale of Assets, etc. If at any time while this
Warrant, or any portion thereof, is outstanding and unexpired there
shall be (i) a reorganization (other than a combination,
reclassification, exchange or subdivision of securities otherwise
provided for herein), (ii) a merger or consolidation of the
Company with or into another entity in which the Company is not the
surviving entity, or a reverse triangular merger in which the
Company is the surviving entity but the Company’s shares of
capital stock outstanding immediately prior to the merger are
converted by virtue of the merger into other property, whether in
the form of securities, cash or otherwise, or (iii) a sale or
transfer of the Company’s properties and assets as, or
substantially as, an entirety to any other person, this Warrant
shall thereafter represent the right to acquire the number of
Shares or other securities or property which the Holder of this
Warrant would have owned immediately after the consummation of such
reorganization, merger, consolidation, sale or transfer, if the
Holder of this Warrant had exercised this Warrant immediately
before the effective date of the reorganization, merger,
consolidation, sale or transfer.
3.2.
Reclassification, etc. If the Company, at any time while
this Warrant, or any portion hereof, remains outstanding and
unexpired by reclassification of securities or otherwise, shall
change any of the securities as to which purchase rights under this
Warrant exist into the same or a different number of securities of
any other class or classes, this Warrant shall thereafter represent
the right to acquire such number and kind of securities as would
have been issuable as the result of such change with respect to the
securities that were subject to the purchase rights under this
Warrant immediately prior to such reclassification or other change
and the Warrant Number shall be appropriately adjusted, all subject
to further adjustment as provided for herein.
3.3.
Split, Subdivision or Combination of Shares. If the Company
at any time while this Warrant, or any portion hereof, remains
outstanding and unexpired shall split, subdivide or combine the
securities as to which purchase rights under this Warrant exist,
into a different number of securities of the same class, the
Warrant Number shall be proportionately increased (and the Exercise
Price decreased correspondingly)
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