Exhibit 10.5
AMENDMENT NO. 1 TO WARRANT REGISTRATION RIGHTS AGREEMENT
Amendment No. 1, dated as of May 12, 2003 (this "Amendment"), to the
Warrant Registration Rights Agreement dated as of June 25, 2002 (the "Original
Agreement") among WOMEN FIRST HEALTHCARE, INC. (the "Company") and the
Purchasers named therein. All capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Original
Agreement.
WHEREAS, the Company and the Purchasers have entered into the
Original Agreement;
WHEREAS, the Company has agreed to issue on the date hereof new
warrants (the "New Warrants") to the Purchasers in exchange for the Warrants
pursuant to Amendment No. 1 to the Securities Purchase Agreement; and
WHEREAS, the Company and the Purchasers have determined that it is
in their mutual interests to amend the Original Agreement as hereinafter set
forth.
NOW, THEREFORE, for good and valuable consideration and intending to
be legally bound, the Company and the Purchasers hereby agree as follows:
A. Pursuant to Section 10 of the Original Agreement, the Original
Agreement is hereby amended as follows:
1. REFERENCES TO WARRANT AND WARRANT SHARES. All references to
"Warrants" and "Warrant Shares" throughout the Original Agreement shall be to
the New Warrants and the 2,000,000 shares of Common Stock which the holders of
the New Warrants will be entitled to purchase, respectively.
2. FORM OF OPINION. The first sentence of the third paragraph of
Exhibit 2 of the Original Agreement is hereby amended and restated as follows:
"The Registration Statement and the Prospectus comply as to form in
all material respects with the requirements for registration statements
under the Securities Act and the rules and regulations of the Commission
thereunder; it being understood, however, that we express no opinion with
respect to the financial statements, schedules or other financial or
related statistical data included in, incorporated by reference in, or
omitted from, the Registration Statement or the Prospectus."
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3. CONSENT TO REGISTRATION STATEMENT. The Purchasers hereby
consent to the Company's filing of a Registration Statement on Form S-1 (the
"New Equity Registration Statement") to register for resale the shares of Common
Stock issued in the Equity Infusion (as defined in Amendment No. 1, dated as of
May , 2003, to the Note and Warrant Purchase Agreement dated as of June 25, 2002
("Amendment No.1")) and hereby waive the requirement of Section 2(d) of the
Original Agreement for purposes of allowing the New Equity Registration
Statement; provided that in no event shall the New Equity Registration Statement
be filed prior to the filing of an amendment to the Registration Statement
covering the Warrant Shares on Form S-3 converting it to a Registration
Statement on Form S-1.
4. WAIVER. The Purchasers hereby waive (i) the requirements in
Sections 2(a) and 3(a) of the Original Agreement that the Company cause the SEC
to declare effective a Registration Statement on Form S-3 not later than 180
days after the Date of Closing; (ii) any breach arising from the Company's
representation in Section 2(g) of the Original Agreement that it meets the
requirements for use of Form S-3; and (iii) any breach caused by any past
failure by the Company to comply with the requirement in Section 2(g) of the
Original Agreement that the Company file all reports required to be filed by the
Company with the SEC in a timely manner so as to maintain eligibility for the
use of Form S-3. The Company understands and agrees that these waivers shall be
effective only with respect to such subsections. These waivers shall not be
deemed to constitute a waiver of any other term, provision or condition of the
Original Agreement or to prejudice any right or remedy that the Purchasers may
now have or may have in the future under or in connection with any of the
Documents. All provisions, terms or conditions and all covenants,
representations, warranties and agreements contained in the Original Agreement
shall remain in full force and effect except as expressly provided herein.
5. COVENANT. The Company hereby agrees to file an amendment to
the Registration Statement on Form S-3 converting it to a Registration Statement
on Form S-1 within 60 days after the Effective Date and to obtain its
effectiveness as soon as possible after such filing but in any event not later
than 120 days after the Effective Date.
6. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Amendment is subject to the satisfaction of the following conditions, and the
first Business Day upon which all such conditions have been satisfied is
referred to herein as the "Effective Date":
(I) DOCUMENTS TO BE DELIVERED. Each Purchaser shall have
received all of the following, duly executed and delivered:
(a) A certificate of the Secretary of the Company
dated the Effective Date, certifying the incumbency and authority of
the officers or authorized signatories of the Company who executed
this Amendment and any other
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documents delivered on the Effective Date and the truth, correctness
and completeness of the attached copy of resolutions duly adopted by
the Board of Directors of the Company, in full force and effect at
the Effective Date, authorizing the execution of this Amendment and
the other documents delivered or to be delivered in connection
herewith and the consummation of the transactions contemplated
herein, as applicable.
(b) A certificate executed by the principal executive
officer of the Company, dated the Effective Date, in which such
officer certifies that the conditions set forth in subsections (a),
(b) and (c) of Paragraph 6(iii) of this Amendment have been
satisfied.
(c) The opinion of Xxxxxx & Xxxxxxx LLP, counsel to
the Company, dated Effective Date, and substantially in the form set
forth as Exhibit A to Amendment No. 1, subject only to such
qualifications, limitations or exceptions as may be acceptable to
each Purchaser.
(II) FEES AND EXPENSES. The payment by the Company, by wire
transfer of immediately available funds, of the out-of-pocket expenses of
the Purchasers and the fees and expenses of the Purchasers' counsel
related to this Amendment.
(III) REPRESENTATIONS; NO DEFAULT. (a) All representations and
warranties made by the Company in the Original Agreement shall be true and
correct on and as of the Effective Date (except to the extent that the
facts upon which such representations are based have been changed by the
transactions herein contemplated and such changes are set forth to the
satisfaction of each Purchaser) as if such representations and warranties
had been made as of the Effective Date, with the exception of Section 2(g)
of the Original Agreement, in light of the fact that the Company is no
longer eligible to use Form S-3 as indicated in the letter from the
Securities and Exchange Commission dated March 30, 2003, which was
previously provided to Counsel for the Purchasers.
(b) No Default under the Original Agreement, as amended by this
Amendment, or the other Documents shall exist at the Effective Date.
(c) The Company shall have performed and complied with all
agreements and conditions required in this Amendment to be performed or
complied with by the Company on or prior to the Effective Date.
(IV) PROCEEDINGS. All corporate and other proceedings taken
or to be taken in connection with the transactions contemplated hereby and
all documents incident thereto shall be satisfactory in form and substance
to each Purchaser and each
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Purchaser shall have received all such counterpart originals or certified
or other copies of such documents as they or their counsel may reasonably
request.
(V) OBLIGATIONS. The Company shall have satisfied any other
obligations to each Purchaser required to be paid or complied with by it
under the Original Agreement or this Amendment on or prior to the
Effective Date.
(VI) ABSENCE OF CERTAIN CHANGES. There shall not have
occurred or become known to the Purchasers since April 14, 2003 any events
or changes that, individually or in the aggregate, have had or could
reasonably be expected to have a material adverse effect on the business,
condition (financial or other), properties, results of operations or
prospects of the Company (including its subsidiaries).
(VII) AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENT. The
Company shall have entered into Amendment No. 1.
B. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW.
C. This Amendment may be executed in separate counterparts, each
of which when so executed and delivered shall be deemed an original, but such
counterparts together shall constitute but one and the same instrument. This
Amendment shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
D. As amended hereby, all terms and provisions of the Original
Agreement shall remain in full force and effect.
WITNESS the due execution of this Amendment No. 1 to the Warrant
Registration Rights Agreement by the respective duly authorized officers of the
undersigned as of the date first written above.
COMPANY:
WOMEN FIRST HEALTHCARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President, Chief Financial
Officer, Treasurer and Secretary
PURCHASERS:
CIBC WMC INC.
By: /s/ Xxxxxxx X. Phoenix
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Name: Xxxxxxx X. Phoenix
Title: Managing Director
WHITNEY PRIVATE DEBT FUND
By: Whitney Private Debt GP, LLC
its General Partner
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
Title: Managing Member
X.X. XXXXXXX MEZZANINE FUND, L.P.
By: Xxxxxxx XX, LLC
its General Partner
By: /s/ Xxxxxx X. X'Xxxxx
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Name: Xxxxxx X. X'Xxxxx
Title: Managing Member
