EXHIBIT 4.2
BIOSANTE PHARMACEUTICALS, INC.,
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
SUPPLEMENTAL INDENTURE
Dated as of October 14, 2009
To
INDENTURE
Dated as of June 24, 2009
Relating to
Cell Genesys, Inc.
3.125% Convertible Senior Subordinated Notes due
2013
SUPPLEMENTAL
INDENTURE
This SUPPLEMENTAL INDENTURE, dated
as of the 14th day of October, 2009, is by and between BIOSANTE
PHARMACEUTICALS, INC., a Delaware corporation (“
BioSante ”) and U.S. BANK NATIONAL ASSOCIATION, as
trustee under the Indenture referred to below (the “
Trustee ”).
WITNESSETH:
WHEREAS , Cell Genesys, Inc., a Delaware corporation
(the “ Company ”) and the Trustee are parties to
that certain Indenture dated as of June 24, 2009 (as amended,
modified and supplemented from time to time, the “
Indenture ”), pursuant to which the Company issued
its 3.125% Convertible Senior Notes due 2013 (the “
Securities ”);
WHEREAS , BioSante and the Company have entered into an
Agreement and Plan of Merger dated as of June 29, 2009 (the “
Merger Agreement ”), pursuant to which the Company
will merge with and into BioSante and BioSante will continue
as the surviving corporation (the “ Merger
”);
WHEREAS , pursuant to the Merger Agreement, each share
of the Company’s common stock outstanding immediately prior
to the effective time of the consummation of the Merger (the
effective time of the consummation of the Merger, herein the
“ Effective Time ”) will be converted into the
right to receive 0.1828 of a share of common stock of
BioSante;
WHEREAS , Section 5.1 of the Indenture provides
that the Company shall not merge with another corporation
unless certain conditions specified therein are satisfied,
including, inter alia , that any resulting successor
corporation be organized under the laws of the United States or any
State thereof and shall expressly assume, by an indenture
supplemental to the Indenture, all of the obligations of the
Company under the Securities and the Indenture;
WHEREAS , Section 9.4 of the Indenture provides,
inter alia , that if there occurs a merger of the Company
with another person, as a result of which holders of the
Company’s common stock shall receive stock or other property
in exchange for such Company common stock, then the Company, or the
successor corporation, and the Trustee shall execute a supplemental
indenture providing that the Securities shall be convertible into
the kind and amount of shares of stock or other property
which the Holder of such Securities would have been entitled
to receive upon such merger had such Securities been converted into
common stock of the Company immediately prior to such
merger;
WHEREAS , Sections 8.1(c),(d) and (h) of the Indenture
authorizes the Company and the Trustee without the consent of the
Holders to: (i) provide for conversion rights of Holders of
Securities if, inter alia , any merger occurs;
(ii) provide for the assumption of the Company’s obligations
to the Holders of Securities in the case, inter alia , of a
merger pursuant to Article V of the Indenture; and (iii) add or
modify any other provisions of the Indenture with respect to
matters or questions arising thereunder which the Company and the
Trustee may deem necessary or desirable and that will not, in the
good faith opinion of the Board of Directors of BioSante (as
evidenced by a Board Resolution), adversely affect the interests of
the Holders of Securities;
WHEREAS , BioSante and the Trustee desire to execute a
supplemental indenture that complies with Section 8.1 of the
Indenture and implements the provisions of Sections 5.1 and 9.4
referenced above;
WHEREAS , all acts and things necessary to make this
Supplemental Indenture a valid and binding agreement for the
purposes and objects herein expressed have been duly done and
performed, and the execution of this Supplemental Indenture has
been in all respects, duly authorized; and
WHEREAS, capitalized terms not otherwise specifically
defined herein are defined as provided in the Indenture;
NOW, THEREFORE
, in consideration of the foregoing
premises and of other good and valuable consideration, the receipt
and validity of which are hereby acknowledged, BioSante hereby
covenants and agrees with the Trustee, for the equal and
proportionate benefit of the respective Holders from time to time
of the Securities, as follows:
ARTICLE I
AMENDMENTS TO THE
INDENTURE
On the terms and subject to the
conditions set forth herein, the Indenture is amended as
follows:
(a) Section 11.2 of the Indenture is
hereby amended by replacing the provision relating to the address,
telephone, facsimile and e-mail for notice to the Company and its
counsel, to provide as follows:
2
“If to the Company:
BioSante Pharmaceuticals,
Inc.
111 Barclay Boulevard
Lincolnshire, Illinois
60069
Attention : Stephen M. Simes -
Vice Chairman, President and Chief Executive Officer
Telephone : (847)
478-0500
Facsimile: (847)
478-9260
E-mail:
ssimes@biosantepharma.com
With a copy to:
Oppenheimer Wolff & Donnelly
LLP
Plaza VII, 45 South Seventh
Street
Suite 3300
Minneapolis, MN
55402-1609
Attention: Amy
Culbert
Telephone: (612)
607-7287
Facsimile: (612)
607-7100
E-mail:
aculbert@oppenheimer.com”
(b) Based on the final exchange
ratio in the Merger of 0.1828 shares of common stock of BioSante
for each share of common stock of the Company, the table set forth
in Section 9.1(b) of the Indenture and all of the provisions of
such Section 9.1(b) following such table are hereby replaced in
their entirety to provide as follows:
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“STOCK PRICE
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3.23
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3.77
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4.38
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4.92
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5.53
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6.13
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|
6.67
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7.28
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7.88
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8.42
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9.03
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9.63
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Effective Date
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May 1, 2009
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43.36
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30.83
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23.03
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17.82
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|
14.17
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11.50
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9.47
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|
7.97
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|
6.77
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|
5.79
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5.00
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0
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May 1, 2010
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31.26
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22.48
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|
16.91
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13.15
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|
10.49
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|
7.56
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6.24
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5.26
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|
4.48
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3.83
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|
3.31
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0
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May 1, 2011
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20.06
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|
14.58
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|
11.04
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8.63
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6.90
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3.73
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3.08
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2.60
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2.22
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1.90
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1.65
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0
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May 1, 2012
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9.67
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7.10
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5.41
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4.24
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3.41
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0
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0
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0
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0
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0
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0
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0
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May 1, 2013
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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0
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If the Stock Price and Effective Date are not
set forth
