- Current report filing (8-K)
October 02 2009 - 6:02AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): September 30, 2009
CuraGen
Corporation
(Exact Name of Registrant as Specified in
Charter)
Delaware
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0-23223
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06-1331400
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(State or Other Jurisdiction
of Incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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322
East Main Street, Branford, Connecticut
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06405
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(Address of Principal Executive Offices)
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(Zip Code)
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(203)
481-1104
(Registrants telephone number, including area
code)
Not
applicable
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
o
Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 1.01.
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Entry
into a Material Definitive Agreement.
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On October 1, 2009,
CuraGen Corporation (CuraGen), Celldex Therapeutics, Inc. (Celldex) and The
Bank of New York Mellon (formerly the Bank of New York) (the Trustee) entered
into a Supplemental Indenture (the Supplemental Indenture) to the Indenture
dated as of February 17, 2004 between CuraGen and the Trustee (the Original
Indenture) governing CuraGens 4.0% Convertible Subordinated Notes due 2011
(the Notes). The Supplemental
Indenture modifies the Original Indenture by providing that (i) the Notes shall
be convertible into the kind and amount of shares of stock and other securities
or property or assets (including cash) which the holders thereof would have
been entitled to receive had such Notes been converted into CuraGen common
stock immediately prior to the Merger (as defined below) and (ii) adjustments
to the conversion rate of the Notes shall be made in the same manner as the
Original Indenture prior to the execution of the Supplemental Indenture. In addition, the Supplemental Indenture also
adds or substitutes Celldex in certain provisions of, and modifies certain definitions
and section references in, the Original Indenture in order to give effect to
the modifications described above.
The Supplemental
Indenture became operative upon the effectiveness of the Merger. The description of the Supplemental Indenture
contained in this Item 1.01 does not purport to be complete and is qualified in
its entirety by reference to the Supplemental Indenture, which is incorporated
herein by reference to Exhibit 4.1 of this Current Report on Form 8-K.
Item 2.01.
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Completion
of Acquisition or Disposition of Assets.
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On October 1, 2009,
Cottrell Merger Sub, Inc. (the Merger Sub), a subsidiary of Celldex, merged
with and into CuraGen (the Merger) in accordance with the Agreement and Plan
of Merger, dated as of May 28, 2009, among CuraGen, Merger Sub and Celldex (the
Merger Agreement). As a result of the
Merger, CuraGen became a wholly-owned subsidiary of Celldex, and shares of
CuraGen common stock, which traded under the symbol CRGN, have ceased trading
on, and are being delisted from, the NASDAQ Global Market.
Pursuant to the terms of
the Merger Agreement, each outstanding share of CuraGen common stock was
converted into the right to receive 0.2729 shares of Celldex common stock. Celldex will issue approximately 16,629,981 shares
of its common stock in exchange for outstanding shares of CuraGen common stock
in connection with the Merger. In
addition, at the Effective Time (as defined in the Merger Agreement) all
outstanding options to acquire shares of CuraGen common stock (i) under CuraGens
2007 Stock Incentive Plan were converted into options to acquire shares of
Celldex common stock, as adjusted pursuant to the Merger Agreement, and (ii) under
CuraGens 1997 Employee, Director and Consultant Stock Plan were terminated.
Pursuant to the terms of
the Merger Agreement, Timothy M. Shannon, a director of CuraGen prior to the
Merger, was appointed to the board of directors of Celldex immediately
following the Effective Time.
The description of the
Merger contained in this Item 2.01 does not purport to be complete and is
qualified in its entirety by reference to the Merger Agreement, which is
incorporated herein by reference to Exhibit 2.1 of this Current Report on Form 8-K.
Item 3.01.
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Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard;
Transfer of Listing.
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On October 1, 2009, at
CuraGens request and in connection with the Merger, The NASDAQ Global Market
filed a Notification of Removal From Listing and/or Registration under Section 12(b)
of the Securities Exchange Act of 1934, as amended (the Exchange Act) on Form
25 to notify the SEC that CuraGens common stock, par value $0.01 per share,
was deregistered under Section 12(b) of the Exchange Act, and delisted from
trading on The NASDAQ Global Market effective prior to the open of trading on October
2, 2009. Celldex intends to file a Form 15
with the SEC on CuraGens behalf in order to complete the deregistration of
CuraGens common stock under the Exchange Act.
2
Item 3.03.
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Material
Modification to Rights of Security Holders.
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The disclosure set forth
in Items 1.01 and 2.01 of this Current Report on Form 8-K is incorporated
herein by reference.
Pursuant to the terms of
the Stockholder Rights Agreement dated as of March 27, 2002, as amended on May 28,
2009, the Rights (as defined in the Stockholder Rights Agreement) expired
immediately prior to the Effective Time.
Item 5.01.
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Changes
in Control of Registrant.
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The disclosure set forth
in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 5.02.
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
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Upon effectiveness of the
Merger, each of Vincent T. DeVita, Jr., John H. Forsgren, James J. Noble,
Robert E. Patricelli, Timothy M. Shannon and Patrick J. Zenner, who constituted
the Board of Directors of CuraGen immediately prior to the Merger, resigned as
directors of CuraGen.
In addition, upon
effectiveness of the Merger, Timothy M. Shannon, President and Chief Executive
Officer, Paul M. Finigan, Executive Vice President, General Counsel, and
Corporate Secretary and Sean A. Cassidy, Vice President and Chief Financial
Officer, ceased to be executive officers of CuraGen, pursuant to the Merger
Agreement.
Item 5.03.
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Amendments
to Articles of Incorporation or Bylaws; Changes in Fiscal Year.
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On October 1, 2009,
pursuant to the Merger Agreement, the articles of incorporation of CuraGen were
amended to read in their entirety as set forth in the copy of CuraGens
articles of incorporation attached hereto as Exhibit 3.1, which is incorporated
herein by reference. In addition, the
bylaws of Merger Sub became the bylaws of CuraGen. A copy of the bylaws is attached hereto as Exhibit
3.2 and is incorporated herein by reference.
At a special meeting of
the shareholders of CuraGen held on September 30, 2009, the shareholders
approved and adopted the Merger Agreement.
A copy of the press release regarding the shareholder vote is attached
as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein
by reference.
On October 1, 2009,
CuraGen and Celldex issued a joint press release announcing the effectiveness
of the Merger and the consummation of the transactions contemplated by the
Merger Agreement. A copy of the press
release is attached as Exhibit 99.2 to this Current Report on Form 8-K and is
incorporated herein by reference.
Item 9.01.
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Financial
Statements and Exhibits.
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Exhibit
Number
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Description
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2.1
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Agreement and Plan of
Merger, dated as of May 28, 2009, by and among Celldex Therapeutics, Inc.,
CuraGen Corporation and Cottrell Merger Sub, Inc. (incorporated by reference
to CuraGens Current Report on Form 8-K filed on May 29, 2009).
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3.1
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Amended Certificate of
Incorporation of CuraGen Corporation.
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3.2
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Bylaws of CuraGen
Corporation.
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3
4.1
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Supplemental Indenture
dated September 30, 2009, by and among Celldex Therapeutics, Inc., CuraGen
Corporation and The Bank of New York Mellon.
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99.1
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Press release dated
September 30, 2009.
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99.2
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Press release dated
October 1, 2009.
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4
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
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CURAGEN CORPORATION
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(Registrant)
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Date: October 1, 2009
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By:
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/s/ Avery W. Catlin
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Name:
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Avery W. Catlin
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Title:
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Chief Financial Officer
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5
EXHIBIT
INDEX
Exhibit No.
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Description
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2.1
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Agreement and Plan of
Merger, dated as of May 28, 2009, by and among Celldex Therapeutics, Inc.,
CuraGen Corporation and Cottrell Merger Sub, Inc. (incorporated by reference
to CuraGens Current Report on Form 8-K filed on May 29, 2009).
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3.1
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Amended Certificate of
Incorporation of CuraGen Corporation.
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3.2
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Bylaws of CuraGen
Corporation.
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4.1
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Supplemental Indenture
dated September 30, 2009, by and among Celldex Therapeutics, Inc., CuraGen
Corporation and The Bank of New York Mellon.
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99.1
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Press release dated
September 30, 2009.
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99.2
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Press release dated
October 1, 2009.
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6
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