Exhibit 10.39
AMENDMENT NO.1 TO
AMENDED AND RESTATED COMMON STOCK PURCHASE AGREEMENT
This AMENDMENT NO. 1 to AMENDED AND RESTATED COMMON STOCK PURCHASE
AGREEMENT (the "Amendment") is dated as of January 31, 2003 by and between
Columbia Laboratories, 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 Amended and Restated Common Stock Purchase
Agreement effective as of February 6, 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:
"SECTION 7.1 Termination by Mutual Consent. The term of this
Agreement shall expire on the earlier of (i) February 6, 2005, (ii) the date
that all of the shares of Common Stock registered under the Registration
Statement have been issued and sold or (iii) the date that the Purchaser has
purchased in the aggregate $16,500,000 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: Columbia Laboratories, Inc.
000 Xxxxxxxxxx Xxxxxxx, Xxxxx 0, Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: General Counsel
With copies to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
[Remainder of Page Intentionally Left Blank - Signature Page Follows]
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.
COLUMBIA LABORATORIES, INC.
By: /S/ Xxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
ACQUA WELLINGTON NORTH
AMERICAN EQUITIES FUND, LTD.
By: /S/ Xxxxxxx X. XxXxx
-----------------------------
Name: Xxxxxxx X. XxXxx
Title: Vice President
