Exhibit 4.1
Second Supplemental Indenture dated as of
September 1, 2009 (this “ Second Supplemental
Indenture ”), between Medarex, Inc., a New Jersey
corporation (the “ Company ”), and Wilmington
Trust Company, a Delaware banking company, as trustee (the “
Trustee ”).
WHEREAS, the Company has duly issued its 2.25%
Convertible Senior Notes due May 15, 2011 (the “
Securities ”), in aggregate principal amount of
$150,000,000 pursuant to an Indenture dated as of May 3, 2004 (the
“ Original Indenture ”), between the Company and
the Trustee, as supplemented by the First Supplemental Indenture
dated as of October 4, 2006 (the “ First Supplemental
Indenture ” and, together with the Original Indenture,
the “ Indenture ”), between the Company and the
Trustee;
WHEREAS, pursuant to the Agreement and Plan of
Merger dated as of July 22, 2009 (the “ Merger
Agreement ”), among Bristol-Myers Squibb Company, a
Delaware corporation (“ Parent ”), Puma
Acquisition Corporation, a New Jersey corporation and a wholly
owned subsidiary of Parent (“ Sub ”), and the
Company, Sub agreed to merge with and into the Company (the “
Merger ”), with the Company continuing as the
surviving corporation and a wholly owned subsidiary of
Parent;
WHEREAS, pursuant to the Merger Agreement, each
outstanding share of common stock, par value $0.01 per share, of
the Company (the “ Common Stock ”), other than
the shares of Common Stock owned as treasury stock by the Company
or owned by Parent or Sub immediately prior to the effective time
of the Merger (the “ Effective Time ”),
converted, at the Effective Time, into the right to receive $16.00
in cash, without interest thereon (the “ Merger
Consideration ”), and such shares of Common Stock are no
longer outstanding and were automatically canceled and cease to
exist, and each holder of a certificate, or evidence of shares held
in book-entry form, that immediately prior to the Effective Time
represented any such shares, ceases to have any right with respect
thereto, except the right to receive the Merger Consideration in
accordance with the terms of the Merger Agreement;
WHEREAS, the Company is required to execute and
deliver to the Trustee a supplemental indenture pursuant to Section
7.1 and Section 12.11 of the Indenture; and
WHEREAS, Section 8.1 of the Indenture provides
that the Company, when authorized by a Board Resolution, and the
Trustee may enter into a supplemental indenture without the consent
of the Holders of the Securities, to, among other things, comply
with Section 12.11 of the Indenture;
WHEREAS, all conditions precedent to the
execution and delivery of this Second Supplemental Indenture
pursuant to the terms of the Indenture have been
satisfied;
NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree
for the equal ratable benefit of the Holders of
