Exhibit 10.2
AMENDMENT NO. 1 TO
COMMON STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 to COMMON STOCK PURCHASE AGREEMENT (the "Amendment")
is dated as of September 24, 2002 by and between BioMarin Pharmaceutical Inc., a
Delaware corporation (the "Company") and Acqua Wellington North American
Equities Fund, Ltd., a limited liability company organized under the laws of the
Commonwealth of The Bahamas (the "Purchaser") and is an amendment to that
certain Common Stock Purchase Agreement dated as of August 15, 2001 (the
"Agreement") by and between the Company and the Purchaser.
The parties hereto agree as follows:
Article I.
Definitions/Construction
1.1 Definitions. Except as otherwise defined in this
Amendment, all capitalized terms shall have the meaning ascribed to them in the
Agreement.
1.2 Scope of Amendment. To the extent necessary to give
effect to the matters set forth in this Amendment, this Amendment shall serve to
amend the Agreement and shall be considered part of the Agreement. Subject to
the foregoing, the Agreement shall remain in full force and effect without
modification.
1.3 Counterparts. This Amendment may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
Article II.
Amendments to the Agreement
2.1 Section 7.1 of the Agreement is hereby amended by
deleting the section in its entirety and substituting in lieu thereof the
following Section 7.1:
"7.1 Termination by Mutual Consent. The term of this
Agreement shall expire on the earlier of (i) twenty-six (26) consecutive months
from the date of execution of this Agreement, (ii) the date that all of the
shares of Common Stock registered under the Registration Statement have been
issued and sold and (iii) the date that the Purchaser has purchased in the
aggregate $27,700,000 pursuant to all Draw Downs and Call Options granted and
exercised (the "Investment Period"). This Agreement may be terminated at any
time by mutual written consent of the parties."
2.2 Address For Notice. The address for communications to
the Company, as contemplated by Section 9.4 of the Agreement shall be:
If to the Company: BioMarin Pharmaceutical Inc.
371 Bel Marin Keys Boulevard, Suite 210
Novato, California 94949
Tel. No.: (415) 884-6700
Fax No.: (415) 382-7427
Attention: Louis Drapeau/ Kim Tsuchimoto
With copies to: Paul, Hastings, Janofsky & Walker LLP
515 South Flower Street, 25th Floor
Los Angeles, California 90071-2228
Tel. No.: (213) 683-6000
Fax No.: (213) 627-0705
Attention: Siobhan McBreen Burke
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officer as of the
date first above written.
BIOMARIN PHARMACEUTICAL INC.
By: /s/ Fredric D. Price
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Name: Fredric D. Price
Title: Chairman and Chief Executive Officer
ACQUA WELLINGTON NORTH AMERICAN EQUITIES FUND, LTD.
By: /s/ R. Perry Pindser / /s/ Helen A Forb
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Name: R. Perry Pindser / Helen A Forb
Title: Vice President / Secretary