Exhibit 4.1
Execution Copy
THIS SUPPLEMENTAL INDENTURE, dated
as of September 30, 2009 (this “ Supplemental
Indenture ”), is by and among CuraGen Corporation (the
“ Company ”), Celldex Therapeutics, Inc.
(“ Parent ”) and The Bank of New York Mellon
(formerly, The Bank of New York), as trustee under the indenture
referred to below (the “ Trustee ”).
W I T N E S S E T
H
WHEREAS, the Company and Trustee
have heretofore executed and delivered to the Trustee an indenture
(as amended, supplemented or otherwise modified, the “
Indenture ”), dated as of February 17, 2004,
providing for the issuance of the Company’s 4.0% Convertible
Subordinated Notes due 2011 (the “ Securities
”);
WHEREAS, the Company, Parent and
Cottrell Merger Sub, Inc. (“ Merger Sub ”),
a wholly-owned subsidiary of Parent, entered into the Agreement and
Plan of Merger, dated as of May 28, 2009 (the “
Merger Agreement ”), pursuant to which (i) Merger
Sub will merge with and into the Company with the Company
continuing as the surviving corporation (the “ Merger
”); and (ii) each issued and outstanding share of common
stock, par value $0.01 per share, of the Company outstanding
immediately prior to the time at which the Merger becomes effective
(“ Effective Time ”), shall be converted into
the right to receive, and shall become exchangeable in accordance
with the Merger Agreement for, 0.2739 shares of common stock, par
value $0.001 per share, of Parent (the “ Parent Common
Stock ”);
WHEREAS, pursuant to
Section 12.4 of the Indenture, as a condition to the
consummation of the transactions contemplated by the Merger
Agreement, the Company is required to execute a supplemental
indenture (i) providing that the Securities shall be
convertible into the kind and amount of shares of stock and other
securities, property or assets, which Holders would have been
entitled to receive upon the Effective Time had such Securities
been converted into Common Stock immediately prior to the Effective
Time; and (ii) providing for adjustments of the Conversion
Rate which shall be as nearly equivalent as may be practicable to
the adjustments provided for in Article XII of the Indenture;
and
WHEREAS, pursuant to
Section 11.1 of the Indenture, the Company may amend or
supplement the Indenture in certain circumstances without notice to
or consent of any Holder.
NOW, THEREFORE, for and in
consideration of the foregoing premises, it is mutually covenanted
and agreed, for the equal and ratable benefit of the Holders of the
Securities, as follows:
1.
Capitalized Terms
. Capitalized terms used herein
without definition shall have the meanings assigned to them in the
Indenture.
2.
Amendment to Section 1.1 of
the Indenture .
Section 1.1 of the Indenture is hereby amended by inserting
each of the following definitions in addition to the definitions,
or in place of the corresponding definition of such term, as
applicable, in the Indenture.
“Board of Directors”
means either the board of directors of the Company or Parent, as
the case may be, or any duly authorized committee of such
Board.
“Common Stock” means
(a) prior to the Effective Time, the common stock, par value
$0.01 per share, of the Company; and (b) after the Effective
Time, the Parent Common Stock or any other shares of Equity
Interest of Parent into which such Common Stock shall be
reclassified or changed; provided, that after the consummation of
any transaction referred to in Section 12.4, all references to
“Common Stock” shall, to the extent necessary to
protect the interests of the Holders, become references to
“Applicable Stock.”
“Conversion Rate” means
(a) prior to the Effective Time, 103.2429 shares of Common
Stock, which is the number of shares of Common Stock issuable upon
conversion of each $1,000 of Principal Amount of Securities
immediately prior to the Effective Time; and (b) after the
Effective Time, the number of shares of
Common Stock issuable upon
conversion of each $1,000 of Principal Amount of the Securities,
which is initially 28.27823 shares, subject to adjustments as set
forth in this Indenture.
“Effective Time” means
the time at which the merger becomes effective under Delaware law
pursuant to the Agreement and Plan of Merger among the Company,
Parent and Cottrell Merger Sub, Inc. (the “ Merger
Sub ”), a wholly-owned subsidiary of Parent, dated as of
May 28, 2009.
“Fundamental Change”
means the occurrence of any of the following events: (i) any
“person” or “group” (as such terms are used
in Sections 13(d) and 14(d) of the Exchange Act), becomes
the “beneficial owner” (as defined in Rules 13d-3
and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have beneficial ownership of all shares that such Person
has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total outstanding Voting Stock
of the Company or Parent; (ii) during any period of two
consecutive years, individuals who at the beginning of such period
constituted the Board of Directors of the Company or Parent
(together with any new directors whose election to such Board of
Directors or whose nomination for election by the stockholders of
the Company or Parent, as the case may be, was approved by a vote
of at least 66 2
/ 3 % of the
directors then still in office who were either directors at the
beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to
constitute a majority of such Board of Directors then in office;
(iii) the Company or Parent consolidates with or merges with
or into any Person or conveys, transfers, sells or otherwise
disposes of or leases all or substantially all of its assets to any
Person, or any corporation consolidates with or merges into or with
the Company or Parent, in any such event pursuant to a transaction
in which the outstanding Voting Stock of the Company or Parent is
changed into or exchanged for cash, securities or other property,
other than (1) any such transaction where the outstanding
Voting Stock of the Company or Parent, as the case may be, is not
changed or exchanged at all (except to the extent necessary to
reflect a change in the jurisdiction of incorporation of the
Company or Parent, as the case may be) or (2) where the
stockholders of the Company or Parent, as the case may be,
immediately before such transaction own, directly or indirectly,
immediately following such transaction, more than 50% of the total
outstanding Voting Stock of the surviving corporation; or
(iv) the Company or Parent is liquidated or dissolved or
adopts a plan of liquidation or dissolution other than in a
transaction which complies with the provisions described under
Article VII.
A “Fundamental Change”
shall not be deemed to have occurred if either:
(1) the last Closing Sale Price
of the Common Stock for each of at least five Trading Days
within:
(x)
the period of the ten consecutive
Trading Days immediately after the later of the Fundamental Change
or the public announcement of the Fundamental Change, in the case
of a Fundamental Change resulting solely from a Fundamental Change
in clause (i) of the definition of Fundamental Change;
or
(y)
the period of the ten consecutive
Trading Days immediately preceding the Fundamental Change, in the
case of a Fundamental Change resulting from a Fundamental Change in
clauses (ii), (iii) or (iv) of the definition of
Fundamental Change
is at least equal to 105% of the
quotient where the numerator is the Principal Amount and the
denominator is the Conversion Rate in effect on each of such five
Trading Days, with such calculation being made for each Trading
Day; or
(2) in the case of a merger or
consolidation described in clause (iii) of the definition of
Fundamental Change, at least 95% of the consideration, excluding
cash payments for fractional shares and cash payments pursuant to
dissenters’ approval rights, in the merger or consolidation
constituting the Fundamental Change, consists of common stock
traded on a U.S. national securities exchange or quoted on the
Nasdaq Global Market (or which shall be so traded or quoted when
issued or exchanged in connection with such Fundamental Change) and
as a result of such transaction or transactions the Securities
become convertible solely into such common stock.
2
“Officer” means the
Chief Executive Officer, the President, the Chief Financial
Officer, any Vice President, the Treasurer or the Secretary of the
Company or Parent, as the case may be.
“Officers’
Certificate,” when used with respect to the Company or
Parent, as the case may be, means a written certificate containing
the information specified in Section 14.4 and
Section 14.5, signed in the name of the Company or Parent, as
applicable, by any two Officers, at least one of whom is the Chief
Executive Officer or the Chief Financial Officer, and delivered to
the Trustee. An Officers’ Certificate given pursuant to
Section 6.3 shall be signed by two Officers, one of whom must
be the principal executive officer, the principal financial officer
or the principal accounting officer of the Company or Parent, as
applicable.
“Opinion of Counsel”
means a written opinion containing the information specified in
Section 14.4 and Section 14.5, from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an
employee of, or counsel to, the Company or Parent.
“Parent” means Celldex
Therapeutics, Inc., a Delaware corporation, until a successor
replaces it pursuant to the applicable provisions of this Indenture
and, thereafter, means such successor. The foregoing sentence
shall likewise apply to any subsequent successor or successors to
such successors.
3.
Amendments to Section 6.3 of
the Indenture . The words
“and Parent” are hereby inserted after the word
“Company” the first time it appears. The words
“or the Parent, as applicable,” are hereby inserted
after the word “Company” the second time it
appears.
4.
Amendments to Section 6.4 of
the Indenture . The
words “and Parent” are hereby inserted after the word
“Company” where it appears in Section 6.4 of the
Indenture.
5.
Amendments to Section 7.1 of
the Indenture . The
words “The Company shall not” appearing at the
beginning of Section 7.1 are hereby replaced with the words
“Neither the Company nor Parent shall.” The words
“or Parent, as applicable,” are hereby inserted after
the word “Company” each other time
