Exhibit 4.1
A MENDMENT TO THE S TOCKHOLDER R IGHTS A GREEMENT
This Amendment to the Stockholder
Rights Agreement (this “ Amendment ”) is entered
into as of May 28, 2009, between Curagen Corporation, a
Delaware corporation (the “ Company ”), and
American Stock Transfer & Trust Company, LLC as rights
agent (the “ Rights Agent ”).
I NTRODUCTION
The Company and the Rights Agent
have entered into the Stockholder Rights Agreement dated as of
March 27, 2002 (the “ Rights Agreement
”).
The Company, Celldex Therapeutics,
Inc., a Delaware corporation (“ Buyer ”), and
Cottrell Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Buyer (“ Merger Sub ”), intend to
enter into an Agreement and Plan of Merger (the “ Merger
Agreement ”) pursuant to which, among other things,
Merger Sub will merge with and into the Company (the “
Merger ”) and each share of the Company Common Stock
will be converted into the right to receive the number of shares of
Buyer Common Stock determined pursuant to the formula set forth in
the Merger Agreement.
Section 27 of the Rights
Agreement provides that, for so long as the Rights (as defined in
the Rights Agreement) are then redeemable, and subject to certain
exceptions that do not apply to the amendments contemplated hereby,
the Company may, in its sole and absolute discretion, and the
Rights Agent shall, if the Company so directs, supplement or amend
any provision of the Rights Agreement in any respect without the
approval of any holders of the Rights. On May 28, 2009, the
Board of Directors of the Company resolved to amend the Rights
Agreement as set forth herein in order to render the Rights
inapplicable to the Merger and the other transactions contemplated
by the Merger Agreement.
The Company and the Rights Agent
therefore agree as follows:
1. Capitalized Terms . All
capitalized, undefined terms used in this Amendment shall have the
meanings assigned thereto in the Rights Agreement.
2. Amendments .
(a) The definition of
“Acquiring Person” in Section 1(a) of the Rights
Agreement is hereby amended to add the following sentence at the
end thereof:
“In addition, notwithstanding
anything in this Agreement to the contrary, none of Celldex
Therapeutics, Inc., a Delaware corporation (“ Buyer
”), Cottrell Merger Sub, Inc., a Delaware corporation and
wholly-owned subsidiary of Buyer (“ Merger Sub
”), or any of their Affiliates or Associates, individually or
collectively, shall be an “Acquiring Person” solely by
reason of one or more of: (1) the approval, adoption,
execution or delivery of the Agreement and Plan of Merger (as it
may be amended and supplemented, the “ Merger
Agreement ”) among the Company, Buyer
and Merger Sub, pursuant to which
Merger Sub shall be merged with and into the Company, and the
Company shall continue as the surviving corporation and as an
indirect wholly-owned subsidiary of Buyer (the “
Merger ”), (2) the consummation of the Merger or
(3) the consummation of any of the other transactions
contemplated by the Merger Agreement.”
(b) The definition of
“Beneficial Ownership” in Section 1(e) of the
Rights Agreement is hereby amended to add the following sentence at
the end thereof:
“Notwithstanding anything in
this definition of Beneficial Ownership to the contrary, none of
Buyer, Merger Sub, or any of their Affiliates or Associates,
individually or collectively, shall be deemed the “Beneficial
Owner” or shall be deemed to “beneficially own”
any shares of Common Stock solely as a result of one or more of
(1) the approval, adoption, execution or delivery of the
Merger Agreement, (2) the consummation of the Merger or
(3) the consummation of any of the other transactions
contemplated by the Merger Agreement.”
(c) The definition of
“Distribution Date” in Section 1(n) of the Rights
Agreement is hereby amended to add the following at the end thereof
immediately prior to the period:
“; provided, however, that,
notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall be deemed not to have occurred solely as a
result
