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As filed with the Securities and Exchange Commission on May 30, 1996
Registration No. 333-2517
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CELGENE CORPORATION
(Exact name of Registrant as specified in its charter)
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DELAWARE 8731 22-2711928
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
7 POWDER HORN DRIVE, WARREN, NEW JERSEY 07059
(908) 271-1001
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
------------------
JOHN W. JACKSON
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
CELGENE CORPORATION
7 POWDER HORN DRIVE
WARREN, NEW JERSEY 07059
(908) 271-1001
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies of Communications to:
Arnold S. Jacobs, Esq.
Proskauer Rose Goetz & Mendelsohn LLP
1585 Broadway
New York, New York 10036
(212) 969-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest investment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933 check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
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CELGENE CORPORATION
3,137,825 SHARES
COMMON STOCK
(PAR VALUE $0.01 PER SHARE)
This Prospectus relates to the public offering, which is not being underwritten,
of up to 3,137,825 shares (the "Securities") of Common Stock, par value $0.01
per share (the "Common Stock") of Celgene Corporation (the "Company").
All of the 3,137,825 shares of Common Stock may be sold by certain stockholders
of the Company or by pledgees, donees, transferees or other successors in
interest that receive such shares as a gift, partnership distribution or other
non-sale related transfer (the "Selling Stockholders"). The sale of the shares
by the Selling Stockholders may be effected from time to time in transactions
(which may include block transactions by or for the account of the Selling
Stockholders) in the over-the-counter market or in negotiated transactions,
through the writing of options on such shares, short sales, a combination of
such methods of sale, or otherwise. Sales may be made at fixed prices which may
be changed, at market prices prevailing at the time of sale, or at negotiated
prices. The Company will not receive any proceeds from the sale of shares by the
Selling Stockholders. See "Selling Stockholders" and "Plan of Distribution."
SEE "RISK FACTORS" STARTING ON PAGE 4 FOR A DISCUSSION OF CERTAIN FACTORS TO BE
CONSIDERED BY PROSPECTIVE INVESTORS.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR MAKE ANY REPRESENTATIONS IN CONNECTION WITH THIS OFFERING OTHER
THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION
OF AN OFFER TO BUY ANY OF THE SECURITIES IN ANY JURISDICTION WHERE, OR TO ANY
PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. THE DELIVERY
OF THIS PROSPECTUS AT ANY TIME DOES NOT IMPLY THAT INFORMATION HEREIN IS CORRECT
AS OF ANY TIME SUBSEQUENT TO ITS DATE.
The date of this Prospectus is May 30, 1996.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Company with the Commission may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the Commission's regional offices at Room 3190, Northwestern
Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and
Seven World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material may be obtained from the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates.
The Company has filed with the Commission a Registration Statement on
Form S-3 (the "Registration Statement") under the Securities Act with respect to
the Common Stock offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement and the exhibits and
schedules filed as a part thereof, as permitted by the Rules and Regulations of
the Commission. For further information with respect to the Company and the
Common Stock, reference is hereby made to such Registration Statement, including
the exhibits and schedules filed as a part thereof. Statements contained in this
Prospectus as to the contents of any contract or other document referred to
herein are not necessarily complete and where such contract or other document is
an exhibit to the Registration Statement, each such statement is qualified in
all respects by the provisions of such exhibit, to which reference is hereby
made for a full statement of the provisions thereof. The Registration Statement,
including the exhibits and schedules filed as a part thereof, may be inspected
without charge at the public reference facilities maintained by the Commission
as set forth in the preceding paragraph. Copies of these documents may be
obtained at prescribed rates from the Public Reference Section of the Commission
at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated by reference in this Prospectus and made a part hereof:
(i) Annual Report on Form 10-K for the fiscal year ended December 31,
1995 as amended by Amendment on Form 10-K/A and Amendment on
Form 10-K/A-2.
(ii) Definitive Proxy Statement dated May 14, 1996, filed in
connection with the Company's 1996 Annual Meeting of
Stockholders.
(iii) Report on Form 8-K dated March 13, 1996.
(iv) Quarterly Report on Form 10-Q for the period ending March 31,
1996.
(v) The description of the Company's Common Stock contained in its
registration statement on Form 8-A, File No. 0-16132, including
any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of this offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing
such documents. Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide, upon written or oral request, without charge
to each person to whom a copy of this Prospectus has been delivered, a copy of
any or all of the documents which have been or may be incorporated in this
Prospectus by reference, other than certain exhibits to such documents. Requests
for such copies should be directed to: Secretary, Celgene Corporation, 7 Powder
Horn Drive, Warren, New Jersey 07059; (908) 271-1001.
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THE COMPANY
The Company attempts to develop and produce innovative products
addressing two major markets: high purity chiral chemical intermediates for use
in the production of pharmaceuticals, food additives, and agricultural
chemicals; and therapeutics for treatment of certain severe inflammatory and
degenerative conditions associated with an over-response of the immune system.
Recent Development
On March 13, 1996, the Company completed the private placement of 503
shares of Series A Convertible Preferred Stock (the "Preferred Stock"), which
were sold and issued to accredited investors (the "Investors") pursuant to an
exemption from the registration requirements of the Securities Act provided by
Regulation D thereof. Pursuant to the terms of the Subscription Agreements
between the Company and the Investors by which the shares of the Preferred Stock
were sold, resales of the shares of Common Stock issuable upon conversion of the
Preferred Stock are being registered by the Company on a Registration Statement
on Form S-3, of which this Prospectus forms a part. Pursuant to the Registration
Statement, all of the shares of Common Stock may be offered from time to time by
the Selling Stockholders. The Preferred Stock contains rights, preferences and
privileges, including a provision that resets the conversion price of the
Preferred Stock to the lesser of the initial conversion price of $18.81 or 90%
of average closing market price of the Common Stock for the seven (7) trading
days prior to the date of conversion. See "Description of Capital Stock --
Series A Convertible Preferred Stock."
The Company's principal office is located at 7 Powder Horn Drive,
Warren, New Jersey 07059, and its telephone and fax numbers are (908) 271-1001
and (908) 805-3931, respectively.
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RISK FACTORS
FORWARD LOOKING STATEMENTS
Certain information contained in this Prospectus and the documents
incorporated by reference herein are forward-looking statements (within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934). Factors set forth in the following Risk
Factors could affect the Company's actual results and could cause the Company's
actual results to differ materially from those expressed in any forward-looking
statements made by, or on behalf of, the Company in this Prospectus and the
documents incorporated by reference herein. Prospective investors in the shares
of the Company's Common Stock offered hereby should carefully consider the
following Risk Factors, in addition to the other information appearing in or
incorporated by reference into this Prospectus.
Early Stages of Product Development. Many of the Company's products and
processes are in the early stages of development. To date, the Company has
produced and sold only small quantities of certain chiral chemical intermediates
and is in clinical trials for SYNOVIR'tm', the Company's version of thalidomide.
The Company's immunotherapeutic compounds and the products in which the
Company's chiral intermediates are used will require further development,
testing and regulatory approvals, and there can be no assurance that
commercially viable products will result from these efforts.
Lack of Manufacturing Capability; Limited Marketing Capability. While
the Company has developed expertise in the production of certain of its chiral
products in developmental quantities, the Company currently has no experience
in, or facilities for, manufacturing such chiral products on a commercial scale.
For the foreseeable future, the Company intends to utilize outside manufacturers
to produce the Company's products on a commercial scale and to seek to add
manufacturing capacity through alliances with third parties.
In addition, although the Company's direct sales force is marketing its
chiral intermediate products, such sales force is very limited. For the
foreseeable future, the Company intends to continue its marketing through its
direct sales force. The Company has not hired a sales force, either internal or
external, for its immunotherapeutic products since all such products are still
in the development phase. If such products receive approval from the FDA, of
which there can be no assurance, the Company will either develop its own sales,
marketing and distribution resources or rely on a corporate partner to provide
such services.
Historical Losses and Accumulated Deficits. The Company has sustained
losses in each year since its incorporation in 1986. It is likely that such
losses will continue until the Company can produce and sell its products on a
commercial scale, if ever, and achieve profitability by creating economies of
scale, reducing costs, and establishing its products in the marketplace, of
which there can be no assurance.
Cash Requirements. Over the near term, the Company expects to incur
substantial expenditures to further its immunotherapeutics program and to expand
its chiral business. At December 31, 1995 and for the year then ended, the
Company had cash and temporary investments of $14.2 million and a net loss of
$10.5 million for 1995. In March 1996, the Company received net proceeds of
approximately $23.8 million from the sale of shares of the Preferred Stock.
In view of the Company's continuing losses, the Company will have to
obtain sufficient funds to meet its cash requirements through alliances or
partnerships with compatible entities with resources to support its programs,
the sale of assets or securities, other financing arrangements, and operations.
However, no assurance may be given that the Company will be successful in
raising additional funds or entering into business alliances. In addition, there
can be no assurance that the Company will be profitable or have positive cash
flow at any time in the future even if the Company succeeds in raising funds or
entering into business alliances.
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No Assurance of Proprietary Protection. The Company's success will
depend, in part, on its ability to obtain patents, maintain trade secret
protection, and conduct its business in the United States and abroad without
infringing the proprietary rights of others. Although the Company possesses
certain U.S. patents and has filed U.S. patent applications with respect to
certain of its products and technologies, there can be no assurance that others
will not develop and market competing technologies and products or that the
Company will be able to enforce the patents which it currently possesses or will
be able otherwise to obtain or enforce any patents for which it has filed an
application. The Company also relies upon unpatented proprietary and trade
secret technology. There can be no assurance that others have not developed or
will not independently develop such proprietary technology or otherwise obtain
access to the Company's proprietary technology. The extent to which the Company
in the future may be required or may desire to obtain licenses with respect to
patents obtained by others and the availability and cost of any such licenses
are currently unknown. If the Company does not obtain necessary licenses, the
development, production, use, or sale of the Company's products could be delayed
or prevented. In addition, the Company could incur substantial costs in
defending any patent infringement suits or in asserting any patent rights,
including those granted by third parties.
Governmental Regulation. The regulatory process for a new pharmaceutical
is a combination of a number of stages. The FDA approval process begins with a
notice of claimed IND, which is essentially a proposal to obtain permission to
begin testing on human subjects. Prior to the filing of the IND much
pre-clinical testing has already been done. Once an IND is obtained, clinical
studies are initiated. The FDA closely monitors the progress of the clinical
testing, and may, at its discretion, reevaluate, alter, suspend, or terminate
testing based on the data accumulated and its assessment of the risk/benefit
ratio to the patient. Upon successful completion of the required phases of
clinical testing, a new drug application (NDA) is filed and the FDA may
authorize the marketing of the new pharmaceutical for the proposed indication.
The entire discovery and development process often takes many years.
SYNOVIR, the Company's version of thalidomide, is currently in a pivotal
clinical study to determine its effectiveness in treating cachexia (wasting) in
AIDS patients, which trials the Company is funding. SYNOVIR is also being
evaluated by the Company and others in additional early-stage clinical studies:
cachexia associated with cancer, progression of HIV/AIDS, as co-therapy with
interleukin 2 (IL-2) for patients with HIV/AIDS, and rheumatoid arthritis.
Additional studies are planned including the evaluation of SYNOVIR for treatment
of diarrhea in patients with AIDS (study to be funded by the Company). The
testing of SYNOVIR has been, and the Company believes that it will continue to
be, a time-consuming and costly process. It is difficult to predict how long FDA
approval for any indication will take and whether any such approval will be
granted.
Substantially all of the Company's current chiral intermediate products
may be components of pharmaceutical and agrochemical products developed and
marketed by others. The testing, marketing, and manufacturing of such
pharmaceutical products will require regulatory approval. It is difficult to
predict how long such approvals will take and whether any such approvals will be
granted. In addition, if the Company produces proprietary chiral products, the
testing, marketing, and manufacturing of such products will likely be
time-consuming and costly and will require regulatory approval, including
approval from the FDA.
Delays in obtaining, or the failure to obtain, FDA and any other
necessary regulatory approvals of the Company's proprietary products or the
pharmaceutical products in which the Company's products are to be included,
would have an adverse effect on the Company. To the extent that the Company's
success will depend on any regulatory approvals from governmental authorities
outside of the United States that perform a role similar to the FDA, the
uncertainties similar to those described above may exist.
Product Liability. The Company may be subject to product liability or
other claims if the use of its technology or products (SYNOVIR, NCEs, or chiral
intermediates) is alleged to have resulted in adverse effects. Thalidomide, when
used by pregnant women, has and can result in serious birth defects. Therefore,
if SYNOVIR is approved by the FDA, necessary precautions must be taken by
physicians prescribing the drug to women of child-
5
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bearing potential. Although it is the present intention of the Company to apply
for product liability insurance, there can be no assurance that it will be able
to obtain coverage at economically feasible rates or that such coverage, if
obtained, will be adequate to protect the Company in the event of such claims
against it. The obligation to pay any product liability claim may have a
material adverse effect on the business or financial condition of the Company.
Dependence Upon Third Parties. Since substantially all of the Company's
current chiral intermediate products may be components of pharmaceutical or
agrochemical products developed and marketed by others, the success of the
Company's products is dependent upon third parties over which the Company has no
control. Such third parties may fail to pursue or fund those products that
include the Company's products whether due to lack of resources or interest.
The Company's ability to commercialize SYNOVIR and other proprietary
products, if developed, may depend upon its ability to enter into joint ventures
or other arrangements with established pharmaceutical companies with the
requisite experience and financial and other resources to conduct the necessary
testing of such products in order to obtain regulatory approval and to
manufacture and market such products.
Dependence Upon Reimbursement. Sales of the Company's products, if any,
will be dependent in part on the availability of reimbursement from third party
payors, such as governmental and private insurance plans. Third party payors are
increasingly challenging the prices charged for medical products and services.
Additionally, the containment of health care costs has become a priority and
pharmaceutical and biotechnology drug prices have been targeted in this effort.
If the Company succeeds in bringing any products to market, there can be no
assurance that such products will be considered cost-effective, that
reimbursement will be available or, if available, that the level of
reimbursement will be sufficient to allow the Company to sell its products on a
profitable basis.
Competition and Technological Change. The fine chemical and
pharmaceutical therapeutics businesses in which the Company competes are highly
competitive. Competitors include major chemical and pharmaceutical companies
that employ both biochemical and conventional technology, as well as specialized
biotechnology firms. Most of these companies have considerably greater
financial, technical, and marketing resources than the Company. The Company also
experiences competition in the development of its products and processes from
universities and other research institutions and, in some instances, competes
with others in acquiring technology from such sources. The fine chemical and
pharmaceutical industries have undergone, and are expected to continue to
undergo, rapid and significant technological change, and the Company expects
competition to intensify as technical advances in each field are made and become
more widely known.
Key Personnel. The success of the Company will depend, in large part, on
its ability to continue to attract and retain qualified scientific and
management personnel. Competition for such personnel is intense and there can be
no assurance that the Company will be able to attract and retain such persons.
The loss of the Company's key management or scientific personnel including John
W. Jackson, Chairman and Chief Executive Officer, and Dr. Sol J. Barer,
President, could have a material adverse effect on the Company. The Company does
not maintain key man life insurance coverage on the lives of either Mr. Jackson
or Dr. Barer.
Shares Eligible for Future Sale. Future sales of substantial amounts of
Common Stock could adversely affect the prevailing market price of the Company's
Common Stock. If all of the outstanding shares of Preferred Stock and all of
the outstanding 8% Convertible Debentures had been converted on May 24, 1996
based on the closing price of the Common Stock for the seven trading days ended
May 23, 1996 (including accretion and accrued interest through that date),
approximately 1,690,000 shares of Common Stock would have been issued as a
result of the conversion of shares of Preferred Stock and approximately 380,000
shares of Common Stock would have been issued as a result of the conversion of
Convertible Debentures. Furthermore, should the trading price of the Common
Stock decline prior to the conversion of all shares of the Preferred Stock
or Convertible Debentures, the number of shares of Common Stock issuable upon
conversion of such Preferred Stock or Convertible Debentures will increase
proportionately. See "Description of Capital Stock -- Series A Convertible
Preferred" and "Other Securities of the Company -- 8% Convertible Debentures."
In addition, if the trading price of Common Stock declines below $11.50, the
Company may elect to defer conversions of the Preferred Stock for up to 90 days,
and, with the consent of the holders, up to 180 days, in which case the Company
would be required to issue to the holders warrants to purchase shares of Common
Stock equivalent to as much as 20% of the shares that would have been issuable
upon conversion of the Preferred Stock if effected at $11.50. See "Selling
Stockholders" and "Description of Capital Stock -- Series A Convertible
Preferred -- Protective Provisions."
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Dilution. The current trading price of the securities issued in this
offering is substantially higher than the book value per share of Common Stock.
Investors purchasing securities in this offering therefore are likely to incur
immediate, substantial dilution.
Dividends on Common Stock Unlikely. The Company does not, in the
foreseeable future, anticipate paying any dividends on the Common Stock.
Volatility of Common Stock Price. There has been significant volatility
in the market prices for publicly traded shares of biotechnology companies,
including the Company. There can be no assurance that the price of the Common
Stock will remain at or exceed current levels. Factors such as announcements of
technical or product developments by the Company or its competitors,
governmental regulation, or patent or proprietary rights developments may have a
significant impact on the market price of the Common Stock.
USE OF PROCEEDS
The shares of Common Stock being offered hereby are for the account of
the Selling Stockholders. Accordingly, the Company will not receive any of the
proceeds from the sale of the shares being offered hereby. See "Selling
Stockholders."
SELLING STOCKHOLDERS
The table on the following page sets forth the name of each Selling
Stockholder, the number of shares of Common Stock beneficially owned by each
Selling Stockholder as of April 1, 1996 (based on information supplied by the
Selling Stockholders to the Company), and the number of shares of Common Stock
being offered hereby by each Selling Stockholder.
The shares being offered by the Selling Stockholders were acquired or
will be acquired from the Company either (i) following conversion of the
Preferred Stock; (ii) upon exercise of warrants acquired from the Company by
persons affiliated with Swartz Investments, LLC ("Swartz Investments"), the
placement agent for the Preferred Stock; (iii) upon exercise of warrants
acquired from the Company by Swartz Investments, as placement agent for the
Company's Regulation S Offering of 8% Convertible Debentures in July 1995, and
subsequently transferred to persons affiliated with Swartz Investments; or (iv)
upon exercise of warrants acquired from the Company by a public relations firm
as partial compensation for services rendered to the Company. See "Description
of Capital Stock -- Warrants."
The Company will not receive any of the proceeds from the sales of such
shares. The number of shares that may be actually sold by each of the Selling
Stockholders will be determined by such Selling Stockholder. Because each of the
Selling Stockholders may sell all, some or none of the shares of Common Stock
which each holds, and because the Offering contemplated by this Prospectus is
not currently being underwritten, no estimate can be given as to the number of
shares of Common Stock that will be held by the Selling Stockholders upon
termination of the Offering. See "Plan of Distribution."
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<TABLE>
<CAPTION>
Number of Shares Number of shares
Name of Selling Stockholder Beneficially Owned offered hereby (1)
<S> <C> <C>
AG Arb Partners, L.P.(2) 57,972 57,972
AG Super Fund International Partners, L.P.(3) 46,378 46,378
AG Super Fund, L.P.(4) 57,972 57,972
Ace Foundation, Inc.(5) 46,378 46,378
Angelo, Gordon & Co., L.P.(6) 57,972 57,972
Banque Scandinave En Suisse(7) 139,132 139,132
Canadian Imperial Holdings, Inc.(8) 347,828 347,828
Capital Ventures International(9) 289,856 289,856
Chaim Gross(10) 115,943 115,943
Everest Capital Fund L.P.(11) 150,725 150,725
Everest Capital International Ltd.(12) 313,044 313,044
Faisal Finance(13) 115,943 115,943
GAM Arbitrage Investments, Inc.(14) 57,972 57,972
Gershon Partners, L.P.(15) 46,378 46,378
Iliad Partners I, L.P.(16) 115,943 115,943
Halifax Fund, L.P.(17) 23,189 23,189
KA Trading, L.P.(18) 57,972 57,972
Kessler Asher Group Limited Partnership(19) 57,972 57,972
Koch Realty, Inc.(20) 115,943 115,943
Leonardo, L.P.(21) 34,784 34,784
Michael Angelo, L.P.(22) 34,784 34,784
Nelson Partners(23) 508,385 231,885
Nutmeg Partners, L.P.(24) 57,972 57,972
OVDA Fund Ltd.(25) 34,784 34,784
Olympus Securities, Ltd.(26) 135,693 115,943
Ramius Fund Ltd.(27) 46,378 46,378
Raphael, L.P.(28) 57,972 57,972
Richcourt $ Strategies, Inc.(29) 57,972 57,972
West Merchant Bank Ltd.(30) 28,986 28,986
Sunder Advani (31) 1,459 1,459
Lance T. Bury (32) 3,500 3,500
Dunwoody Brokerage Services, Inc.(33) 13,500 13,500
Enigma Investments Ltd (34) 8,500 8,500
Global Equity, Inc. (35) 9,375 9,375
P. Bradford Hathorn (36) 8,500 8,500
Davis C. Holden (37) 1,000 1,000
Michael C. Kendrick (38) 57,351 57,351
Charles Krusen (39) 3,316 3,316
David K. Peteler (40) 8,000 8,000
Redington, Inc. (41) 50,000 50,000
Eric Stephan Swartz (42) 57,352 57,352
</TABLE>
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(1) All shares amounts with respect to shares issuable upon the exercise of
shares of Series A Convertible Preferred Stock (the "Preferred Stock")
assume a conversion price of $10.35, without giving effect to the issuance
of shares as a result of any accretion. The actual conversion price may be
higher or lower than $10.35 and the amount of accretion will vary,
depending upon the period over which Preferred Stock is outstanding. Thus,
the number of shares actually issued pursuant to the conversion of shares
of Preferred Stock for any one Selling Stockholder may be higher or lower
than the number set forth in the table. See "Description of Capital Stock
-- Series A Convertible Preferred." In addition, all such share amounts
include a 20% premium to allow for "lock-up" warrants that may be issued
pursuant to the protective provisions of the Preferred Stock. See
"Description of Capital Stock -- Series A Convertible Preferred --
Protective Provisions."
(2) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(3) Includes shares issuable upon the conversion of 8 shares of Preferred
Stock.
(4) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(5) Includes shares issuable upon the conversion of 8 shares of Preferred
Stock.
(6) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(7) Includes shares issuable upon the conversion of 24 shares of Preferred
Stock.
(8) Includes shares issuable upon the conversion of 60 shares of Preferred
Stock.
(9) Includes shares issuable upon the conversion of 50 shares of Preferred
Stock.
(10) Includes shares issuable upon the conversion of 20 shares of Preferred
Stock.
(11) Includes shares issuable upon the conversion of 26 shares of Preferred
Stock.
(12) Includes shares issuable upon the conversion of 54 shares of Preferred
Stock.
(13) Includes shares issuable upon the conversion of 20 shares of Preferred
Stock.
(14) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(15) Includes shares issuable upon the conversion of 8 shares of Preferred
Stock.
(16) Includes shares issuable upon the conversion of 20 shares of Preferred
Stock.
(17) Includes shares issuable upon the conversion of 4 shares of Preferred
Stock.
(18) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(19) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(20) Includes shares issuable upon the conversion of 20 shares of Preferred
Stock.
(21) Includes shares issuable upon the conversion of 6 shares of Preferred
Stock.
(22) Includes shares issuable upon the conversion of 6 shares of Preferred
Stock.
(23) Includes shares issuable upon the conversion of 40 shares of Preferred
Stock and upon the conversion of 8% convertible debentures in the principal
amount of $2.1 million, plus accrued interest.
(24) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(25) Includes shares issuable upon the conversion of 6 shares of Preferred
Stock.
(26) Includes shares issuable upon the conversion of 20 shares of Preferred
Stock, and upon the conversion of 8% convertible debentures in the
principal amount of $150,000, plus accrued interest.
(27) Includes shares issuable upon the conversion of 8 shares of Preferred
Stock.
(28) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(29) Includes shares issuable upon the conversion of 10 shares of Preferred
Stock.
(30) Includes shares issuable upon the conversion of 5 shares of Preferred
Stock.
(31) Mr. Advani is affiliated with Swartz Investments; includes shares issuable
upon the exercise of warrants to purchase 1,459 shares.
(32) Mr. Bury is affiliated with Swartz Investments; includes shares issuable
upon the exercise of warrants to purchase 3,500 shares.
(33) Dunwoody Brokerage Services is affiliated with Swartz Investments; includes
shares issuable upon the exercise of warrants to purchase 13,500 shares.
(34) Enigma Investments Ltd. is affiliated with Swartz Investments; includes
shares issuable upon the exercise of warrants to purchase 8,500 shares.
(35) Global Equity is affiliated with Swartz Investments; includes shares
issuable upon the exercise of warrants to purchase 9,375 shares.
(36) Mr. Hathorn is affiliated with Swartz Investments; includes shares issuable
upon the exercise of warrants to purchase 8,500 shares.
(37) Mr. Holden is affiliated with Swartz Investments; includes shares issuable
upon the exercise of warrants to purchase 1,000 shares.
(38) Mr. Kendrick is affiliated with Swartz Investments; includes shares
issuable upon the exercise of warrants to purchase 57,351 shares.
(39) Mr. Krusen is affiliated with Swartz Investments; includes shares issuable
upon the exercise of warrants to purchase 3,316 shares.
(40) Mr. Peteler is affiliated with Swartz Investments; includes shares issuable
upon the exercise of warrants to purchase 8,000 shares.
(41) Includes shares issuable upon the exercise of warrants to purchase 50,000
shares.
(42) Mr. Swartz is affiliated with Swartz Investments; includes shares issuable
upon the exercise of warrants to purchase 57,352 shares.
9
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<PAGE>
This Registration Statement shall also cover additional shares of Common
Stock which become issuable in connection with the shares registered for sale
hereby by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which results
in an increase in the number of the Registrant's outstanding shares of Common
Stock.
On March 11 and 12, 1996, the Company entered into Subscription
Agreements with each of the Selling Stockholders who participated in the Private
Placement pursuant to which such persons purchased an aggregate of 503 shares of
Preferred Stock. Each person that purchased Preferred Stock pursuant to a
Subscription Agreement represented to the Company that it would acquire the
shares for investment and with no present intention of distributing any of such
shares except pursuant to this Prospectus. Pursuant to the Subscription
Agreements, the Company agreed to file, and has filed, with the Commission,
under the Act, a Registration Statement on Form S-3, of which this Prospectus
forms a part, with respect to the resale of the shares and agreed to use its
best efforts to keep such Registration Statement effective until such date as
all of the shares have been resold, or such time as all of the shares held by
the Selling Stockholders can be sold immediately without compliance with the
registration requirement of the Securities Act pursuant to Rule 144.
In February 1996, the Company engaged Swartz Investments to advise the
Company in connection with the structure, terms, and conditions of a preferred
stock offering and to introduce the Company to potential investors. In
consideration for their services, Swartz Investments was paid a placement fee of
$1,131,750 plus a non-accountable expense allowance of $188,625 for its
expenses, including legal expenses, in connection with the offering and also
issued to persons affiliated with Swartz Investments warrants to purchase 66,853
shares of Common Stock. Such warrants are exercisable for a term of five years
at $20.52 per share of Common Stock. The Company has also agreed to indemnify
the Agent against certain liabilities, including liabilities under the
Securities Act.
In July, 1995, the Company also retained Swartz Investments to represent
the Company in connection with negotiating and structuring a private placement
offering of $12 million of Convertible Debentures. In that connection, the
Company paid the agent a placement agent fee and a non-accountable expense
allowance that totaled $840,000, and also issued to Swartz Investments warrants
to purchase 105,000 shares of Common Stock. The Company also agreed to indemnify
Swartz Investments from any losses that Swartz Investments may incur arising out
of such engagement. The warrants to purchase 105,000 were subsequently
transferred to persons affiliated with Swartz Investments.
Each Selling Stockholder affiliated with Swartz Investments shared in
the compensation paid to Swartz Investments in connection with the placement of
the Preferred Stock and the placement of the 8% Convertible Debentures.
Pursuant to an agreement entered into in November, 1994, Redington, Inc.
provides investor relations services to the Company. In exchange, Redington is
paid on an as-billed basis approximately $188,000 per year and received a one
time grant of warrants to purchase 50,000 shares of the Company's common stock
exercisable through September 1, 1999, at an exercise price of $6.50 per share
of common stock. The Company agreed to use its best efforts to provide
registered stock upon the exercise of the warrants. The Agreement provided
customary indemnification provisions.
In connection with the offering made hereby, the Company and the Selling
Stockholders have entered into an agreement that contains certain indemnity and
contribution provisions between the Company and such Selling Stockholders
against certain liabilities, including liabilities arising under the Securities
Act. The Company has agreed to bear certain expenses (other than selling
commissions) in connection with the registration of the shares of Common Stock
offered hereby.
Other than as disclosed herein, none of the Selling Stockholders has had
any position, office or material relationship with the Company within the past
three years.
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PLAN OF DISTRIBUTION
The sale of the shares by the Selling Stockholders may be effected from
time to time in transactions (which may include block transactions by or for the
account of the Selling Stockholders) in the over-the-counter market or in
negotiated transactions, through the writing of options on such shares (whether
they be exchange listed options or otherwise), short sales, a combination of
such methods of sale, or otherwise. Sales may be made at fixed prices which may
be changed, at market prices prevailing at the time of sale, or at negotiated
prices.
Selling Stockholders may effect such transactions by selling their
shares directly to purchasers, through broker-dealers acting as agents for the
Selling Stockholders, or to broker-dealers who may purchase shares as principals
and thereafter sell the shares from time to time in the over-the-counter market,
in negotiated transactions, or otherwise. Such broker-dealers, if any, may
receive compensation in the form of discounts, concessions, or commissions from
the Selling Stockholders and/or the purchasers for whom such broker-dealers may
act as agents or to whom they may sell as principals or both (which compensation
as to a particular broker-dealer may be in excess of customary commissions).
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available and is complied with by the Company and the Selling
Stockholders.
The Selling Stockholders and broker-dealers, if any, acting in
connection with such sale might be deemed to be "underwriters" within the
meaning of Section 2(11) of the Securities Act and any commission received by
them and any profit on the resale of such shares might be deemed to be
underwriting discounts and commissions under the Securities Act.
Under applicable rules and regulations under the Exchange Act, any
person engaged in the distribution of the shares may not simultaneously engage
in market making activities with respect to the Common Stock of the Company for
a period of two business days prior to the commencement of such distribution. In
addition and without limiting the foregoing, each Selling Stockholder will be
subject to applicable provisions of the Exchange Act and the rules and
regulations thereunder, including, without limitation, Rules 10b-6 and 10b-7,
which provisions may limit the timing of purchases and sales of shares of the
Company's Common Stock by the Selling Stockholders.
DESCRIPTION OF CAPITAL STOCK
The Company has 25,000,000 shares of authorized capital stock, of which
20,000,000 shares have been designated Common Stock, $0.01 par value, and
5,000,000 shares have been designated Preferred Stock, $0.01 par value (the
"Preferred Stock") of which 520 shares have been designated Series A Convertible
Preferred Stock. The Company had 9,111,892 shares of Common Stock outstanding on
May 24, 1996 and 503 shares of Series A Convertible Preferred Stock outstanding
on May 24, 1996.
Common Stock
The Company is authorized to issue 20,000,000 shares of Common Stock,
par value $.01 per share (the "Common Stock"). The holders of Common Stock are
entitled to one vote per share on all matters to be voted upon by the
stockholders. Subject to the prior rights of the Series A Convertible Preferred
Stock and of other series or classes hereafter authorized of the Company's
preferred stock, par value $.01 per share having superior or pari passu dividend
rights to the Common Stock, the holders of Common Stock are entitled to receive
such lawful dividends as may be declared by the Board of Directors. In the event
of the liquidation, dissolution, or winding up of the Company, subject to the
prior rights of Series A Convertible Preferred Stock and any other series or
classes of
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Preferred Stock having superior or pari passu liquidation rights to the Common
Stock, the holders of Common Stock are entitled to share ratably in all of the
assets of the Company available for distribution to its stockholders. There are
no redemption or sinking fund provisions applicable to the Common Stock. All of
the outstanding shares of Common Stock are validly issued, fully paid, and
non-assessable. Holders of Common Stock do not have preemptive rights.
Preferred Stock -- General
The Company is authorized to issue 5,000,000 shares of preferred stock,
par value $.01, of which 503 shares presently are issued and outstanding and
designated as Series A Convertible Preferred Stock. Subject to certain
restrictions, the Board of Directors of the Company, without further stockholder
approval, has the authority to issue, at any time and from time to time, the
preferred stock as preferred stock of any series and, in connection with the
creation of each such series, to fix the number of shares of such series and the
powers, designations, preferences, rights, qualifications, limitations, and
restrictions of such series to the full extent now or hereafter permitted by the
laws of the State of Delaware.
Series A Convertible Preferred Stock
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the Company, either voluntary or involuntary ("an Event"), the
holders of shares shall be entitled to receive, immediately after any
distributions to senior securities and prior and in preference to any
distribution to junior securities but in parity with any distribution to parity
securities, an amount per share equal to the sum of (i) $50,000 for each
outstanding Share (the "Original Series A Issue Price") and (ii) an amount equal
to 4.9% of the Original Series A Issue Price per annum for the period that has
passed since the date of issuance of any Series A Convertible Preferred Stock
(such amount being referred to herein as the "Accretion"). If upon the
occurrence of such Event and after any distributions to senior securities, the
assets and funds thus distributed among the holders of the Series A Convertible
Preferred Stock and parity securities shall be insufficient to permit the
payment to such holders of the full preferential amounts due to the holders of
the Series A Convertible Preferred Stock and the parity securities,
respectively, then the entire remaining assets and funds of the Company legally
available for distribution shall be distributed among the holders of the Series
A Convertible Preferred Stock and the parity securities, pro rata, based on the
respective liquidation amounts to which each such series of stock is entitled by
the Company's Certificate of Incorporation and any Certificate(s) of
Designation. Upon the completion of this distribution, if assets remain in the
Company, they shall be distributed to holders of junior securities in accordance
with the Company's Certificate of Incorporation including any duly adopted
Certificate(s) of Designation. A consolidation or merger of the Company with or
into any other corporation or corporations, or a sale, conveyance or disposition
of all or substantially all of the assets of the Company or the effectuation by
the Company of a transaction or series of related transactions in which more
than 50% of the voting power of the Company is disposed of, shall not be deemed
to be a liquidation, dissolution or winding up.
Voting Rights. The holders of the Series A Convertible Preferred Stock
have no voting rights except as otherwise required by Delaware law.
Optional Conversion. The record holder of the Series A Convertible
Preferred Stock shall be entitled, subject to the Company's right of redemption
and the restrictions on conversion, to convert the shares held by such holder
into that number of fully-paid and nonassessable shares of the Common Stock at
the Conversion Rate as set forth below. The minimum number of shares of Series A
Convertible Preferred Stock that may be converted is the lesser of (i) two
shares or (ii) all of the holder's remaining shares. The rate at which shares
may be converted into shares of Common Stock is hereinafter referred to as the
"Conversion Rate" and is computed as follows:
Number of shares of Common Stock issued upon conversion of one share of
Preferred Stock = Principal Conversion Rate + Accretion Conversion Rate, where
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"Principal Conversion Rate" = Issue Price
----------------------
Conversion Price
and "Accretion Conversion Rate" = (.049)(N/365)(Issue Price)
------------------------------
Accretion Conversion Price
where
N = the number of days between (i) the date that, in connection with the
consummation of the initial purchase of the Preferred Stock from the
Company, the escrow agent first had in its possession funds representing
full payment for the Preferred Stock for which conversion is being
elected, and (ii) the Date of Conversion;
Issue Price = the Original Series A Issue Price;
Accretion Conversion Price shall be the average Closing Price for the
Common Stock as that term is defined below, for the 30 calendar days
prior to the Date of Conversion; and
Conversion Price = the lesser of (x) $18.81, or (y) 90% of the average
Closing Price, as that term is defined below, of the Company's Common
Stock for the seven (7) trading days immediately preceding the Date of
Conversion. For purposes hereof, the term "Closing Price" shall mean the
closing price of the Company's Common Stock as reported by NASDAQ (or,
if not reported by NASDAQ, as reported by such other exchange or market
where traded).
Restrictions on Conversion. No shares of Series A Convertible Preferred
Stock may be converted prior to May 12, 1996. Thereafter, each holder of Series
A Convertible Preferred Stock may convert one-third of such shares on or after
May 12, 1996, an additional one-third on or after June 11, 1996, and all
additional remaining shares on or after July 11, 1996. All conversions are also
subject to the Company's right of redemption and to the Protective Provisions,
as described below.
Automatic Conversion. The shares shall automatically be converted into
Common Stock (in accordance with the conversion price provisions above but
subject to the Protective Provisions below) on March 13, 1998.
Redemption at Option of Company. In the event the average Closing Price
of the Company's Common Stock on the NASDAQ for the seven (7) trading days
immediately preceding the Date of Conversion shall be at or less than $18.81,
the Company shall have the right, in its sole discretion, upon receipt of a
Notice of Conversion, to redeem in whole or in part any Series A Convertible
Preferred Stock submitted for conversion. If the Company elects to redeem some,
but not all, of the Series A Convertible Preferred Stock submitted for
conversion, the Company shall redeem from among the Series A Convertible
Preferred Stock submitted for conversion on the applicable date, a pro-rata
amount from each shareholder submitting Series A Convertible Preferred Stock for
conversion. The redemption price shall equal the sum of the Principal Redemption
Price plus the Accretion. The Accretion shall be payable, at the Company's
option, in cash or Common Stock. The Principal Redemption Price shall equal the
Issue Price divided by the Conversion Price, multiplied by the Closing Price on
Date of Conversion, and the Accretion, if paid in shares of Common Stock, shall
be calculated as Accretion divided by Accretion Conversion Price, in each case
where "N," "Issue Price," "Closing Price", "Accretion Conversion Price",
"Accretion" and "Conversion Price" have the meanings set forth above.
At any time after December 13, 1996, if the average closing price of the
Company's Common Stock for the seven (7) trading days immediately preceding the
notice date is greater than $18.81, the Company shall have the right to redeem
the Series A Convertible Preferred Stock in increments of $1.5 million by giving
30 business days written notice of its intention to do so. The redemption price
per share of Series A Convertible Preferred Stock shall be as follows:
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<TABLE>
<CAPTION>
Redemption Price Elapsed Time since March 13, 1996
---------------- ---------------------------------
<S> <C>
130% of Stated Value 9 months and 1 day - 12 months
125% of Stated Value 12 months and 1 day - 18 months
120% of Stated Value 18 months and 1 day - 24 months
</TABLE>
"Stated Value" shall equal the Original Series A Issue Price plus the
Accretion (calculated as of the effective date of such redemption).
Protective Provisions. In the event the Closing Price per share shall be
at or less than $11.50 for each of the five (5) trading days preceding the date
of submission of a Notice of Conversion, the Company shall have the right, in
its sole discretion, to elect, in lieu of conversion, (1) to redeem the
preferred stock presented for conversion in accordance with the preceding
paragraph, or (2) to declare such conversion null and void, and declare that no
conversion of any Preferred Stock that is included in the Notice of Conversion
(the "Affected Preferred Stock") shall be permitted for the subsequent ninety
(90) day period (the "90 Day Lock-Up Period").
In the event the Company declares a 90 Day Lock-Up Period, the Company
shall issue to the Holder of the Affected Preferred Stock warrants ("90 Day
Lock-Up Warrants"), to purchase Common Stock of the Company. The 90 Day Lock-Up
Warrants shall entitle the holder to purchase a number of shares of Common Stock
equal to 10% of the number of shares of Common Stock that would have been issued
upon conversion of the Affected Preferred Stock at a conversion price of $11.50.
The strike price of the 90 Day Lock-Up Warrant shall equal $11.50, and its terms
shall be two (2) years from the date of issuance.
The Company may, in its discretion, offer to provide another warrant
("180 Day Lock-Up Warrant"), in addition to the 90 Day Lock-Up Warrant, to
purchase Common Stock of the Company, to the holder of Affected Preferred Stock
in exchange for such holder's agreement to forebear from converting its Affected
Preferred Stock for an additional 90 days beyond the 90 Day Lock-Up Period (a
"180 Day Lock-up Period"). Upon written acceptance of such an offer, the Company
shall issue to the holder a 180 Day Lock-Up Warrant which shall entitle the
holder to purchase a number of Common Stock equal to 10% of the number of shares
of Common Stock that would have been issued upon conversion of the Affected
Preferred Stock at a conversion price of $11.50 for a term of two (2) years from
the date of issuance. After any 90 Day Lock-Up Period or 180 Day Lock-Up Period
(as applicable), the holder shall again be entitled to convert the Affected
Preferred Stock without any further Lock-Up restrictions.
Other Securities of the Company
Warrants
The Company has outstanding warrants to purchase an aggregate of 221,853
shares of the Company's Common Stock. Shares of Common Stock issuable upon the
exercise of all such warrants are being registered in this offering. 50,000
warrants are exercisable at a price of $6.50 per share of Common Stock until
September 1, 1999; 105,000 warrants are exercisable at a price of $9.60 per
share of Common Stock until July 31, 2000; and 66,853 warrants are exercisable
at a price of $20.52 per share of Common Stock until March 11, 2001. The
exercise price of the Warrants is subject to proportional adjustment in the
event that the Company undertakes a stock split, stock dividend, or
recapitalization.
8% Convertible Debentures
In July 1995, the Company issued and sold in a private placement
offering, 8% convertible debentures due July 31, 1997 in the aggregate principal
amount of $12,000,000. Such debentures are convertible into Common Stock at the
option of the holders thereof at a conversion price that is the lesser of (i)
$8.00 or (ii) 85% of the
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market value of the Common Stock on the date of conversion, subject to
adjustment under certain circumstances. As of May 24, 1996 convertible
debentures in the aggregate principal amount of $2,850,000, plus accrued
interest from July 1995, remained outstanding.
The Company may require the conversion of the convertible debentures
commencing October 15, 1995 through July 30, 1997 at a conversion price which
varies and is based upon the market price of the common stock on the date of
conversion. The Company also has the right to redeem any convertible debenture
after it has received a notice of conversion with respect to such debenture. The
redemption price is the greater of 115% of the principal and the accrued
interest on the redeemed debenture or an amount which is based on the
appreciation of the common stock from the date of issuance of the debentures.
Stock Options
The Company has issued options to purchase shares of the Company's
common stock, restricted stock, and/or other stock-based performance awards
under the 1995 Non-Employee Directors' Incentive Plan, the 1992 Long-Term
Incentive Plan, the 1992 Non-Employee Directors' Stock Option Plan, and the 1986
Stock Option Plan. At May 24, 1996, an aggregate of 1,752,623 options had been
granted and were outstanding under these plans with exercise prices between
$5.44 and $17.75 per share of Common Stock.
The Company may grant additional options outside the Plans in connection
with its efforts to hire or retain consultants and others. At December 31, 1995,
the Compensation Committee has been authorized by the Board of Directors to
grant options outside of the Plans for an additional 7,918 shares of common
stock, substantially all of which may be exercisable at prices below the fair
value of the common stock on the date of grant.
LEGAL OPINION
The validity of the shares of Common Stock being offered hereby will be
passed upon for the Company by Proskauer Rose Goetz & Mendelsohn LLP, New York,
New York.
EXPERTS
The financial statements of Celgene Corporation as of December 31, 1995
and 1994, and for each of the years in the three-year period ended December 31,
1995, have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
The report of KPMG Peat Marwick LLP covering the December 31, 1995
financial statements refers to the adoption of the provisions of the Financial
Accounting Standards Board's Statement of Financial Accounting Standards No.
115, "Accounting for Certain Investments in Debt and Equity Securities,"
effective January 1, 1994.
15
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3,137,825 SHARES
CELGENE CORPORATION
COMMON STOCK
PROSPECTUS
MAY 30, 1996
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
An estimate of the fees and expenses of issuance and distribution (other
than discounts and commissions) of the Common Stock offered hereby (all of which
will be paid by the Company) is as follows:
<TABLE>
<S> <C>
SEC registration fee ........................................ $ 15,622
NASD listing fee ............................................ 17,500
Printing and engraving expenses ............................. 10,000
Legal fees and expenses ..................................... 20,000
Accounting fees and expenses ................................ 12,000
Miscellaneous expenses ...................................... 13,000
--------
Total................................................. $ 88,122
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The General Corporation Law of the State of Delaware ("DGCL") permits
the Company and its stockholders to limit directors' exposure to liability for
certain breaches of the directors' fiduciary duty, either in a suit on behalf of
the Company or in an action by stockholders of the Company.
The Certificate of Incorporation of the Company (the "Charter")
eliminates the liability of directors to stockholders or the Company for
monetary damages arising out of the directors' breach of their fiduciary duty of
care. The Charter also authorizes the Company to indemnify its directors,
officers, incorporators, employees, and agents with respect to certain costs,
expenses, and amounts incurred in connection with an action, suit, or proceeding
by reason of the fact that such person was serving as a director, officer,
incorporator, employee, or agent of the Company. In addition, the Charter
permits the Company to provide additional indemnification rights to its officers
and directors and to indemnify them to the greatest extent possible under the
DGCL. The Company has entered into indemnification agreements with each of its
officers and directors and intends to enter into indemnification agreements with
each of its future officers and directors. Pursuant to such indemnification
agreements, the Company has agreed to indemnify its officers and directors
against certain liabilities, including liabilities arising out of the offering
made by this Registration Statement. The Selling Stockholders have agreed to
indemnify officers, directors and controlling persons of the Company against
certain liabilities, including liabilities arising out of the offering made by
this Registration Statement, under certain circumstances.
The Company maintains a standard form of officers' and directors'
liability insurance policy which provides coverage to the officers and directors
of the Company for certain liabilities, including certain liabilities which may
arise out of this Registration Statement.
II-1
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ITEM 16. EXHIBITS.
The exhibits listed in the Exhibit Index as filed as part of this Registration
Statement.
(a) Exhibits
Exhibit
Number Description
- ------- -----------
5.1 -- Opinion of Proskauer Rose Goetz & Mendelsohn LLP (previously filed).
23.1 -- Consent of KPMG Peat Marwick LLP.
23.2 -- Consent of Proskauer Rose Goetz & Mendelsohn LLP (incorporated by
reference to Exhibit 5.1).
24.1 -- Power of Attorney (previously filed).
II-2
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<PAGE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act; (ii)
to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement; and (iii) to include any material information
with respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information in the
Registration Statement; provided, however, that (i) and (ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by (i)
and (ii) is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-3
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Warren, State of New Jersey on
May 29, 1996.
CELGENE CORPORATION
By: /s/ John W. Jackson
------------------------
John W. Jackson
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Amendment No. 1
to Registration Statement has been signed below by the persons whose signatures
appear below, which persons have signed such Registration Statement in the
capacities indicated:
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ John W. Jackson Chairman of the Board and Chief May 29, 1996
- --------------------------- Executive Officer
John W. Jackson
* Director May 29, 1996
- ---------------------------
Sol J. Barer
* Director May 29, 1996
- ---------------------------
Frank T. Cary
* Director May 29, 1996
- ---------------------------
Arthur Hull Hayes, Jr.
* Director May 29, 1996
- ---------------------------
Richard C. E. Morgan
* Director May 29, 1996
- ---------------------------
Walter L. Robb
* Director May 29, 1996
- ---------------------------
Lee J. Schroeder
/s/ Sanford Kaston Controller (Chief Accounting May 29, 1996
- --------------------------- Officer)
Sanford Kaston
*By John W. Jackson
as Attorney-in-fact
/s/ John W. Jackson
-------------------
John W. Jackson
</TABLE>
<PAGE>
<PAGE>
INDEX TO EXHIBITS
5 -- Opinion of Proskauer Rose Goetz & Mendelsohn LLP (previously filed).
23.1-- Consent of KPMG Peat Marwick LLP.
23.2-- Consent of Proskauer Rose Goetz & Mendelsohn LLP (incorporated by
reference to Exhibit 5.1)
24.1-- Power of Attorney (previously filed).
II-5
STATEMENT OF DIFFERENCES
-------------------------
The trademark symbol shall be expressed as 'tm'
<PAGE>
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors and Stockholders
Celgene Corporation:
We consent to incorporation by reference in the Registration Statement
on Form S-3 of Celgene Corporation of our report dated February 17, 1996, except
as to Note 12, which is as of March 13, 1996, relating to the balance sheets of
Celgene Corporation as of December 31, 1995 and 1994, and the related statements
of operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1995, which report appears in the December
31, 1995 Annual Report on Form 10-K of Celgene Corporation and to the reference
to our firm under the heading "Experts" in the prospectus.
Our report also refers to the adoption of the provisions of Financial
Accounting Standards Board's Statement of Financial Accounting Standards No.
115, "Accounting for Certain Investments in Debt and Equity Securities,"
effective January 1, 1994.
/s/ KPMG PEAT MARWICK LLP
Short Hills, New Jersey
May 29, 1996
<PAGE>
