Exhibit 4.1


 


SECOND AMENDMENT TO RIGHTS
AGREEMENT


 


SECOND AMENDMENT, dated as of July 22, 2009 (the “Second
Amendment”), by and among Medarex, Inc., a New Jersey corporation (the
“Company”), and Continental Stock Transfer & Trust Company, a
New York corporation (the “Rights Agent”).


 


RECITALS


 


WHEREAS, the Company and the Rights Agent
have heretofore executed and entered into a Rights Agreement, dated as of May 23,
2001, as amended by that certain Amendment to Rights Agreement dated as of November 6,
2007 (the “Rights Agreement”);


 


WHEREAS, the Company is entering into an
Agreement and Plan of Merger (as the same may be amended from time to time, the
“Merger Agreement”), among the Company, Bristol-Myers Squibb Company, a
Delaware corporation (“Parent”), and Puma Acquisition Corp., a New
Jersey corporation and a wholly-owned subsidiary of Parent (“Sub”),
pursuant to which Sub will: (i) make a tender offer to acquire all of the
outstanding shares of common stock, par value $0.01 per share (the “Shares”),
of the Company, on the terms and subject to the conditions set forth in the
Merger Agreement (such tender offer, as it may be amended and/or extended from
time to time, is referred to in this Second Amendment as the “Offer”)
and (ii) after acquiring the Shares pursuant to the Offer, Sub will merge
with and into the Company upon the terms and subject to the conditions set
forth in the Merger Agreement (such merger is referred to in this Second
Amendment as the “Merger”);


 


WHEREAS, pursuant to Section 27 of the
Rights Agreement, prior to the Distribution Date and for as long as the Rights
are redeemable, the Company may, and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of the Rights Agreement without the
approval of any holders of certificates representing Shares;


 


WHEREAS, the Company desires to amend the
Rights Agreement to render the Rights inapplicable to the Offer and the Merger
and the other transactions contemplated by the Merger Agreement; and


 


WHEREAS, the Board of Directors of the
Company (the “Board of Directors”) has determined that it is in the best
interests of the Company and its stockholders to amend the Rights Agreement as
set forth below and has approved this Second Amendment and authorized its
appropriate officers to execute and deliver the same to the Rights Agent.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
mutual covenants and agreements herein contained and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:


 


Section 1.  Capitalized terms that are not otherwise
defined herein shall have the meanings ascribed to them in the Rights
Agreement.


 


Section 2.  Amendments to Rights Agreement.


 

















 


(a)           Amendment
to Section 1(a). The definition of “Acquiring Person” set forth in Section 1(a) of
the Rights Agreement is hereby amended by adding the following sentences to the
end of such Section 1(a):


 


“Notwithstanding anything in this Agreement to the contrary, none of
Bristol-Myers Squibb Company, a Delaware corporation (“Parent”), Puma
Acquisition Corp., a New Jersey corporation and a wholly-owned subsidiary of
Parent (“Sub”), or any of their respective Affiliates or Associates shall be
deemed to be an Acquiring Person, either individually or collectively, in
connection with (i) the approval, execution and/or delivery of the
Agreement and Plan of Merger (as the same may be amended from time to time, the
“Merger Agreement”), dated as of July 22, 2009, among the Company, Parent
and Sub, or the approval, execution and/or delivery of any amendment thereto, (ii) the
acceptance for payment or purchase by Sub of shares of Common Stock pursuant to
a tender offer to acquire all of the outstanding shares of Common Stock to be
commenced by Sub pursuant to, and on the terms and subject to the conditions
set forth in, the Merger Agreement (such tender offer, as it may be amended
and/or extended from time to time pursuant to the terms of the Merger
Agreement, is referred to in this Agreement as the “Offer”), (iii) the
exercise of the option to purchase shares of Common Stock granted pursuant to Section 1.03
of the Merger Agreement (the “Top-Up Option”), (iv) the merger of Sub with
and into the Company pursuant to, and on the terms and subject to the
conditions set forth in, the Merger Agreement (such merger is referred to in
this Agreement as the “Merger”), (v) the consummation of any other
transactions contemplated by the Merger Agreement, or (vi) the
announcement of any of the Merger Agreement, the Offer, the Merger or any other
transactions contemplated by the Merger Agreement. However, (i) if the
Merger Agreement is terminated prior to the Effective Time (as defined in the
Merger Agreement), then the immediately preceding sentence shall be of no
further force and effect and (ii) unless approved by the Company’s Board
of Directors, the immediately preceding sentence shall not apply to any
purchases of shares of Common Stock prior to the Effective Time by Parent, Sub
or any of their respective Affiliates or Associates other than pursuant to the
Merger Agreement.”


 


(b)           Amendment
to Section 1(l). The definition of “Distribution Date” set forth in Section 1(l) of
the Rights Agreement is hereby amended by adding the following sentence to the
end of such Section 1(l):


 


“Notwithstanding
anything in this Agreement to the contrary, no Distribution Date shall occur in
connection with (i) the approval, execution and/or delivery of the Merger
Agreement or any amendment thereto, (ii) the acceptance for payment or
purchase by Sub of shares of Common Stock pursuant to the Offer, (iii) the
exercise of the Top-Up Option, (iv) the Merger, (v) the consummation
of any other transactions contemplated by the Merger Agreement, or (vi) the
announcement of any of the Merger Agreement, the Offer, the Merger or any other
transactions contemplated by the Merger Agreement.”


 


2

















 


(c)           Amendment
to Section 1(r). The definition of “Interested Stockholder” set forth
in Section 1(r) of the Rights Agreement is hereby amended by adding
the following sentences to the end of such Section 1(r):


 


“Notwithstanding anything in
this Agreement to the contrary, none of Parent, Sub, or any of their respective
Affiliates or Associates, shall be deemed to be an Interested Stockholder,
either individually or collectively, in connection with (i) the approval,
execution and/or delivery of the Merger Agreement or any amendment thereto, (ii) the
acceptance for payment or purchase by Sub of shares of Common Stock pursuant to
the Offer, (iii) the exercise of the Top-Up Option, (iv) the Merger, (v) the
consummation of any other transactions contemplated by the Merger Agreement, or
(vi) the announcement of any of the Merger Agreement, the Offer, the
Merger or any other transactions contemplated by the Merger Agreement. However,
(i) if the Merger Agreement is terminated prior to the Effective Time (as
defined in the Merger Agreement), then the immediately preceding sentence shall
be of no further force and effect and (ii) unless approved by the Company’s
Board of Directors, the immediately preceding sentence shall not apply to any
purchases of shares of Common Stock prior to the Effective Time by Parent, Sub
or any of their respective Affiliates or Associates other than pursuant to the
Merger Agreement.”


 


(d)           Amendment
to Section 1(ee). The definition of “Stock Acquisition Date” set forth
in Section 1(ee) of the Rights Agreement is hereby amended by adding the
following sentence to the end of such Section 1(ee):


 


“Notwithstanding
anything in this Agreement to the contrary, no Stock Acquisition Date shall
occur in connection with (i) the approval, execution and/or delivery of
the Merger Agreement or any amendment thereto, (ii) the acceptance for
payment or purchase by Sub of shares of Common Stock pursuant to the Offer, (iii) the
exercise of the Top-Up Option, (iv) the Merger, (v) the consummation
of any other transactions contemplated by the Merger Agreement, or (vi) the
announcement of any of the Merger Agreement, the Offer, the Merger or any other
transactions contemplated by the Merger Agreement.”


 


(e)           Amendment
and Restatement of Section 7(a). Section 7(a) of the Rights
Agreement is hereby amended and restated to read in its entirety as follows:


 


“(a)         Subject to Section 7(e) hereof, at any time after
the Distribution Date the registered holder of any Rights Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on exercisability set forth in Section 9(c),
Section 11(a)(iii) and Section 23(a) hereof) in whole or in
part upon surrender of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly executed, to the
Rights Agent at the principal office or offices of the Rights Agent designated
for such purpose, together with payment of the aggregate Purchase Price with
respect to the total number of one one-thousandths of a share (or other
securities, cash or other assets, as the case may be) as to which such 


 


3

















 


surrendered Rights are then
exercisable, at or prior to the earlier of (i) 5:00 P.M., Princeton,
New Jersey time, on July 6, 2011, or such later date as may be established
by the Board of Directors prior to the expiration of the Rights (such date, as
it may be extended by the Board, the (“Final Expiration Date”)), (ii) the
time at which the Rights are redeemed or exchanged as provided in Section 23
and Section 24 hereof or (iii) the moment in time immediately prior
to the Effective Time (as such term is defined in the Merger Agreement) (the
earlier of (i), (ii) and (iii) being herein referred to as the “Expiration
Date”).”


 


(f)            Amendment
to Section 7(e). Section 7(e) of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:


 


“Notwithstanding
anything in this Agreement to the contrary, the provisions of this Section 7(e) shall
not apply in connection with (i) the approval, execution and/or delivery
of the Merger Agreement or any amendment thereto, (ii) the acceptance for
payment or purchase by Sub of shares of Common Stock pursuant to the Offer, (iii) the
exercise of the Top-Up Option, (iv) the Merger, (v) the consummation
of any other transactions contemplated by the Merger Agreement, or (vi) the
announcement of any of the Merger Agreement, the Offer, the Merger or any other
transactions contemplated by the Merger Agreement.”


 


(g)           Amendment to Section 11(a)(ii). Section 11(a)(ii) of
the Rights Agreement is amended by adding the following sentence at the end
thereof:


 


“Notwithstanding the
foregoing or anything in this Agreement to the contrary, no event requiring an
adjustment under this Section 11(a) shall be deemed to have occurred
in connection with (i) the approval, execution and/or delivery of the
Merger Agreement or any amendment thereto, (ii) the acceptance for payment
or purchase by Sub of shares of Common Stock pursuant to the Offer, (iii) the
exercise of the Top-Up Option, (iv) the Merger, (v) the consummation
of any other transactions contemplated by the Merger Agreement, or (vi) the
announcement of any of the Merger Agreement, the Offer, the Merger or any other
transactions contemplated by the Merger Agreement.”


 


(h)           Amendment to Section 13. Section 13 of the Rights Agreement is hereby amended
by adding the following provision at the end thereof:


 


“(e)         Notwithstanding the foregoing or
anything in this Agreement to the contrary, this Section 13 shall not
apply in connection with (i) the approval, execution and/or delivery of
the Merger Agreement or any amendment thereto, (ii) the acceptance for
payment or purchase by Sub of shares of Common Stock pursuant to the Offer, (iii) the
exercise of the Top-Up Option, (iv) the Merger, (v) the consummation
of any other transactions contemplated by the Merger Agreement, or (vi) the
announcement of any of the Merger Agreement, the Offer, the Merger or any other
transactions contemplated by the Merger Agreement.”


 


4

















 


(i)            Amendment to Section 30.
Section 30 of the Rights Agreement is hereby amended by adding the
following sentence at the end thereof:


 


“Further,
nothing in this Agreement shall be construed to give any holder of Rights or
any other person, firm, corporation, partnership or other entity any legal or
equitable rights, remedies or claims under this Agreement in connection with (i) the
approval, execution and/or delivery of the Merger Agreement or any amendment
thereto, (ii) the acceptance for payment or purchase by Sub of shares of
Common Stock pursuant to the Offer, (iii) the exercise of the Top-Up
Option, (iv) the Merger, (v) the consummation of any other
transactions contemplated by the Merger Agreement, or (vi) the
announcement of any of the Merger Agreement, the Offer, the Merger or any other
transactions contemplated by the Merger Agreement.”


 


Section 2.  Full Force and Effect.  Except as expressly amended by this Second
Amendment, the Rights Agreement shall continue in full force and effect in
accordance with the provisions thereof on the date hereof. In the event of any
conflict, inconsistency or incongruity between any provision of this Second
Amendment and any provision of the Rights Agreement, the provisions of this
Second Amendment shall govern and control.


 


Section 3.  Governing Law.  This Second Amendment shall be deemed to be a
contract made under the laws of the State of New Jersey and for all purposes
shall be governed by and construed in accordance with the laws of such State
applicable to contracts made and to be performed entirely within such State.


 


Section 4.  Authority.  Each party represents that such party has
full power and authority to enter into this Second Amendment and that this
Second Amendment constitutes a legal, valid and binding obligation of such
party, enforceable against such party in accordance with its terms.


 


Section 5.  Successors and Assigns.  All of the covenants and provisions of this
Second Amendment by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns.


 


Section 6.  Benefits of this Second Amendment.  Nothing in this Second Amendment shall be
construed to give to any person, firm, corporation, partnership or other entity
other than the Company, the Parent, the Sub, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Shares) any legal or equitable right, remedy or claim under this
Second Amendment; but this Second Amendment shall be for the sole and exclusive
benefit of the Company, the Parent, the Sub, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the Shares).


 


Section 7.  Severability.  If any term, provision, covenant or
restriction of this Second Amendment or applicable to this Second Amendment is
held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Second Amendment shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.


 


Section 8.  Counterparts.  This Second Amendment may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.


 


5

















 


Section 9.  Certification.  The Company hereby certifies to the Rights
Agent that this Second Amendment is in compliance with Section 27 of the
Rights Agreement.


 


[SIGNATURE
PAGE FOLLOWS]


 


6

















 


IN WITNESS, WHEREOF, the parties to this Second
Amendment have caused this Second Amendment to be duly executed, all as of the
day and year first above written.


 


 


	
  ATTEST:

  	
  MEDAREX,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Ursula Bartels

  	
   

  	
  By:

  	
  /s/
  Howard H. Pien

  
	
   

  	
  Ursula
  Bartels, Secretary

  	
   

  	
  Name:

  	
  Howard
  H. Pien

  
	
   

  	
   

  	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
						



Acknowledged
and Approved by:


 


 


CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, as Rights Agent


 


 


	
  By:

  	
  /s/
  Michael G. Mullings

  	
   

  
	
   

  	
  Name:

  	
  Michael
  G. Mullings

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


7