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Exhibit 10.4
AMENDMENT NO. 3 TO THE
SECOND AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDMENT NO. 3, dated as of December 9, 1996, is made to the SECOND
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of January 31,
1992, as previously amended by (i) Amendment No. 1 thereto, dated as of December
23, 1994, and (ii) Amendment No. 2 thereto, dated as of May 24, 1996
(collectively, the "Registration Rights Agreement"), among Creative
BioMolecules, Inc., a Delaware corporation (the "Company"), and the persons
defined as "Investors" under the Registration Rights Agreement.
W I T N E S S E T H:
WHEREAS, the Company proposes to enter into a Research Collaboration and
License Agreement with Biogen, Inc. ("Biogen"), and in connection therewith to
enter into a restricted stock purchase agreement (the "Restricted Stock Purchase
Agreement") with Biogen under which Biogen will purchase from the Company a
number of shares (the "Biogen Shares") of the Company's common stock, $.01 par
value per share ("Common Stock") in an amount to be computed in accordance with
the Restricted Stock Purchase Agreement at an aggregate purchase price of
$18,000,000;
WHEREAS, in connection with the execution of the Restricted Stock Purchase
Agreement, the Company has agreed to amend the Registration Rights Agreement to
provide certain registration rights with respect to the Biogen Shares;
WHEREAS, the parties hereto desire to amend the Registration Rights
Agreement to, among other things, add Biogen as a party to the Registration
Rights Agreement and include the Biogen Shares as "Registrable Securities",
thereby providing to Biogen registration rights with respect to the Biogen
Shares; and
WHEREAS, Section 17(f) of the Registration Rights Agreement provides that
terms of the Registration Rights Agreement may be amended and the observance
thereof waived with the consent of the Company and the holders of at least 50%
of the Registrable Securities (as currently defined in the Registration Rights
Agreement), and the undersigned holders of Registrable Securities collectively
hold the requisite percentage of Registrable Securities to effect this amendment
on behalf of all Investors; and
WHEREAS, the parties believe that it is in their best interests to amend
the Registration Rights Agreement as provided herein;
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NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. To amend the Registration Rights Agreement as follows:
(a) Biogen shall be included within the definition of "Investors" in
the Registration Rights Agreement and shall have the same rights
and privileges as apply to the existing Investors thereunder,
PROVIDED THAT Biogen executes an instrument of adherence to
the Registration Rights Agreement bearing the address to be used
for notice under the Registration Rights Agreement.
(b) The definition of Registrable Securities in Section 2(b) of the
Registration Rights Agreement shall be amended to include the
Biogen Shares and any shares of Common Stock subsequently issued
to Biogen with respect to the Biogen Shares.
2. Except as otherwise expressly provided herein, the Registration Rights
Agreement is hereby ratified and confirmed and shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO. 3 TO
THE SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT to be executed as
an instrument under seal as of the date first written above.
CREATIVE BIOMOLECULES, INC.
By: /s/ Xxxxx X. Xxxxxx III
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Name: Xxxxx X. Xxxxxx III
Title: Vice President and
Chief Financial Officer
THE INVESTORS
Name of Investor: APA Excelsior Venture
Capital Holdings
(Jersey) Limited
By: /s/ Xxxx Xxxxxxxx
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Title: Patricof & Co. Ventures, Inc.
Investment Manager
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Name of Investor: Apax XX XX(A)
By: /s/ Xxxxxxx Xxxxxxx
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Title: PDG
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Name of Investor: Apax XX XX(C)
By: /s/ Xxxxxxx Xxxxxxx
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Title: PDG
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Name of Investor: MMG Conseil
By: /s/ Xxxxxxx Xxxxxxx
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Title: PDG
Name of Investor: Apax Venture
Capital Fund Ltd.
By: /s/ Coutts (Jersey) Limited
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Name of Investor: Apax Ventures II, Ltd.
By: /s/ Coutts (Jersey) Limited
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Name of Investor: Apax Ventures III
By: /s/ Apax Funds Nominee Ltd.
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Name of Investor: Apax Ventures III
International
Partners, L.P.
By: /s/ Apax Funds Nominee Ltd.
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Name of Investor: Apax Ventures IV
By: /s/ Apax Funds Nominee Ltd.
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Name of Investor: Apax Ventures IV
International
Partners, L.P.
By: /s/ Apax Funds Nominee Ltd.
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Name of Investor: Biotechnology
Investments Limited
By: /s/ X. Xxxxxx /s/ X. Xxxxx
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Title: Authorized Signatories
---------------------------------
Name of Investor: Xxxxxxx Xxxxx
By: /s/ Xxxxxxx Xxxxx
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Title: Chief Scientific Officer
---------------------------------
Name of Investor: Domain Partners III, LP
One Xxxxxx Square Associates III, LP
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
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Title: General Partner
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Name of Investor: DP III Associates, LP
One Xxxxxx Square Associates III, LP
By: /s/ Xxxxxxxx X. Xxxxxxxxxx
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Title: General Partner
---------------------------------
Name of Investor: Xxxxxx X. Xxxx, M.D.
By: /s/ Xxxxxx X. Xxxx
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Title: Director
---------------------------------
Name of Investor: PruTech
Research & Development
Partnership III
R&D Funding Corp. General Partner
By: /s/ Xxxxxxx Xxxx Xxxxx
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Title: Vice President
---------------------------------
Name of Investor: Xxxxxxx Xxxxxx
By: /s/ Xxxxxxx X. Xxxxxx
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