EX-10 5 exhibit102q3.txt AMENDMENT 1 TO COMMON STOCK PURCHASE AGREEMENT 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 --------------------- 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 --------------------------------------- Name: R. Perry Pindser / Helen A Forb Title: Vice President / Secretary