Agreement and Plan of Merger (2015)Full Document 

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AGREEMENT AND PLAN OF MERGER

BY AND AMONG

OPKO HEALTH, INC.,

BAMBOO ACQUISITION, INC.

AND

BIO-REFERENCE LABORATORIES, INC.

Dated as of June 3, 2015

TABLE OF CONTENTS

Page

Article 1 Transactions and Terms of Merger 2
1.1 Merger 2
1.2 Time and Place of Closing 2
1.3 Effective Time 2
1.4 Charter and Bylaws 3
1.5 Directors and Officers 3
1.6 Conversion of Shares 3
1.7 Anti-Dilution Provisions 4
1.8 Stock Options 4
1.9 Exchange Procedures 6
1.10 Rights of Former Company Shareholders 8
Article 2 Representations and Warranties of the Company 8
2.1 Organization, Standing, and Corporate Power 9
2.2 Articles of Incorporation and Bylaws 9
2.3 Capitalization 9
2.4 Authority; Noncontravention; Voting Requirements 11
2.5 Governmental Approvals 12
2.6 Company SEC Documents; Undisclosed Liabilities 12
2.7 Absence of Certain Changes 15
2.8 Litigation 15
2.9 Compliance with Laws; Permits 15
2.10 Information Supplied 16
2.11 Tax Matters 16
2.12 Labor Relations 18
2.13 Employee Benefits Plans 20
2.14 Environmental Matters 22
2.15 Intellectual Property 23
2.16 Healthcare Regulatory and Related Matters 25
2.17 Real Property 27
2.18 Material Contracts 28
2.19 Accounts Receivable 28
2.20 Insurance 29
2.21 Related Party Transactions 29
2.22 Questionable Payments 29
2.23 Anti-Takeover Provisions 29
2.24 Opinion of Financial Advisor 30
2.25 Brokers and Finders 30
2.26 Tax and Regulatory Matters 30

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Article 3 Representations and Warranties of Parent and Sub 30
3.1 Organization, Standing, and Power 31
3.2 Authority; Noncontravention; Voting Requirements 31
3.3 Required Filings and Consents 32
3.4 Capital Stock 32
3.5 Parent Subsidiaries 33
3.6 SEC Filings; Financial Statements 33
3.7 Absence of Undisclosed Liabilities 34
3.8 Absence of Certain Changes or Events 35
3.9 Tax Matters 35
3.10 Environmental Matters 36
3.11 Intellectual Property 36
3.12 Regulatory and Related Matters 38
3.13 Compliance with Laws 38
3.14 Material Contracts 39
3.15 Tax and Regulatory Matters 39
3.16 Litigation 39
3.17 Information Supplied 39
3.18 Brokers and Finders 40
3.19 Ownership and Operations of Sub 40
3.20 Ownership of Company Common Stock 40
Article 4 Conduct of Business Pending Consummation 41
4.1 Affirmative Covenants of the Company 41
4.2 Negative Covenants of the Company 41
4.3 Covenants of Parent 44
4.4 Notification of Certain Matters 45
4.5 No Control of Other Party’s Business; Other Actions 46
4.6 Preparation of Proxy Statement/Prospectus and Registration Statement; Company Shareholders’ Meeting 46
4.7 No Solicitation 49
4.8 Access to Information 53
4.9 Antitrust Notification; Consents; Reasonable Best Efforts 53
4.10 Filing with State Office 55
4.11 Directors’ and Officers’ Indemnification and Insurance 55
4.12 Press Releases 57
4.13 State Takeover Laws; Charter Provisions; No Rights Plan 57
4.14 Employee Benefits and Contracts 58
4.15 Shareholder Litigation 59
4.16 NASDAQ; Post-Closing SEC Reports 60
4.17 FIRPTA Company Certificate 60
4.18 Conduct of Parent and Sub 60
4.19 Section 16 Matters 60
4.20 Governance Matters 61
4.21 SEC Reports 61

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4.22 Post-Closing Restructuring 61
Article 5 Conditions Precedent to Obligations to Consummate 62
5.1 Conditions to Obligations of Each Party 62
5.2 Conditions to Obligations of Parent and Sub 63
5.3 Conditions to Obligations of the Company 64
Article 6 Termination 65
6.1 Termination 65
6.2 Effect of Termination 67
6.3 Expenses 68
Article 7 Miscellaneous 69
7.1 Definitions 69
7.2 Non-Survival of Representations, Warranties and Agreements 81
7.3 Disclosure Schedules 81
7.4 Governing Law; Jurisdiction 81
7.5 WAIVER OF JURY TRIAL 81
7.6 Severability; Construction 82
7.7 Specific Performance 82
7.8 Entire Agreement 82
7.9 Amendments 83
7.10 Extension; Waivers 83
7.11 Parties in Interest 83
7.12 Assignment 83
7.13 Notices 84
7.14 Counterparts 85
7.15 Captions; Articles and Sections 85
7.16 Interpretations 85

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of June 3, 2015, by and among OPKO HEALTH, INC., a Delaware corporation (“Parent”); BAMBOO ACQUISITION, INC., a New Jersey corporation (“Sub”); and BIO-REFERENCE LABORATORIES, INC., a New Jersey corporation (the “Company”). Certain capitalized terms used in this Agreement are defined in Section ‎7.1.

Recitals

WHEREAS, the board of directors of the Company (the “Board”) has determined that a merger of the Company and Sub, on the terms and subject to the conditions set forth herein, is fair to, and in the best interests of the Company and its shareholders, and declared it advisable to enter into this Agreement with Parent and Sub and consummate the transactions described herein;

WHEREAS, the board of directors of Parent and the board of directors of Sub have determined that a merger of the Company and Sub, on the terms and subject to the conditions set forth herein, is fair to, and in the best interests of the Parent, Sub and their stockholders and sole shareholder, respectively, and have determined that it is in the best interests of Parent and Sub and their stockholders and sole shareholder, respectively, and declared it advisable, to enter into this Agreement and consummate the transactions described herein;

WHEREAS, the Board has (a) approved and adopted this Agreement and the transactions contemplated hereby, including the Merger, and (b) recommended approval and adoption of this Agreement by the shareholders of the Company;

WHEREAS, the board of directors of Sub, has (a) approved and adopted this Agreement and the transactions contemplated hereby, including the Merger, and (b) recommended approval of this Agreement and the transactions contemplated hereby by the sole shareholder of Sub;

WHEREAS, it is the intention of the Parties to this Agreement that the Merger for federal income tax purposes shall qualify as a “reorganization” within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder (the “Code”), and this Agreement is intended to be, and is hereby, adopted as a plan of reorganization within the meaning of Section 368(a) of the Code; and

WHEREAS, at the Effective Time, Sub shall merge with and into the Company, with the Company surviving such merger, and the outstanding shares of Company Common Stock shall be converted into the right to receive shares of Parent Common Stock (except as provided herein) and, upon the terms and subject to the conditions of this Agreement, the Company shall continue to conduct its business and operations as a wholly owned subsidiary of Parent.

NOW, THEREFORE, in consideration of the above and the mutual warranties, representations, covenants, and agreements set forth herein, the Parties hereby agree as follows:

Article 1
Transactions and Terms of Merger

1.1 Merger.

On the terms and subject to the conditions set forth in this Agreement, at the Effective Time, Sub shall be merged with and into the Company in accordance with the provisions of the New Jersey Business Corporation Act (as amended, the “NJBCA”) and with the effects provided in the NJBCA (the “Merger”). At the Effective Time, the separate existence of Sub shall cease and the Company shall continue as the Surviving Corporation in the Merger and shall be a wholly owned Subsidiary of Parent and shall continue to be governed by the Laws of the State of New Jersey. From and after the Effective Time, the Surviving Corporation shall possess all the rights, privileges, powers, immunities, purposes and franchises, both public and private, of each of the Company and Sub, all real property and personal property, tangible and intangible, of every kind and description, belonging to each of the Company and Sub shall be vested in the Surviving Corporation without further act or deed, and the title to any real estate, or any interest therein, vested in each of the Company and Sub shall not revert or be in any way impaired by reason of such Merger, the Surviving Corporation shall be liable for all the obligations and liabilities of each of the Company and Sub and any claim existing or action or proceeding pending by or against each of the Company and Sub may be enforced as if such Merger had not taken place, and neither the rights of creditors nor any liens upon, or security interests in, the property of each the Company and Sub shall be impaired by such merger or consolidation.

1.2 Time and Place of Closing.

The closing of the transactions contemplated hereby (the “Closing”) will take place at 9:00 a.m., New York City time, or such other time as the Parties, acting through their authorized officers, may mutually agree, on a date to be specified by the parties hereto, but no later than the third (3rd) Business Day following the satisfaction or waiver of the conditions (excluding the conditions that, by their nature, cannot be satisfied until the Closing, but subject to the satisfaction or waiver of those conditions at Closing) set forth in ‎Article 5, unless this Agreement has been theretofore terminated pursuant to its terms or unless another time or date is agreed to in writing by the Parties. The Closing shall be held at the offices of Greenberg Traurig, P.A., 333 S.E. Second Avenue, Suite 4400, Miami, FL 33131 (or pursuant to the electronic or other remote exchange of documents and closing deliverables required by this Agreement), unless another place is agreed to in writing by the Parties. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date.

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