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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
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CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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<S> <C>
MARCH 13, 1996 0-16132
Date of Report (Date of earliest event reported) Commission File Number
CELGENE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-2711928
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification Number)
organization)
</TABLE>
7 Powder Horn Drive
Warren, New Jersey 07059
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(Address of Principal Executive Offices) (Zip Code)
(908) 271-1001
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(Registrant's telephone number, including area code)
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Item 5. Other Events.
On March 13, 1996, Celgene Corporation (the "Company") issued a
press release announcing that it had completed a $25 million private placement
of Series A Convertible Preferred Stock, par value $.01 per share.
The shares of Series A Convertible Preferred Stock are
convertible into shares of Celgene common stock, in one-third increments
commencing on May 11, June 10 and July 10, 1996, at a conversion price per share
of common stock equal, generally, to the lesser of (i) $18.81, or (ii) 90% of
the average closing price per share of common stock for the seven trading days
immediately prior to the date of conversion.
This description is a summary and is qualified in its entirety by
reference to the press release, the form of Certificate of Designation, and
the form of Registration Rights Agreement entered into with the investors in
the private placement, all of which are filed as exhibits hereto and are hereby
incorporated by reference.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) not applicable
(b) not applicable
(c) Exhibits
4.1 Form of Amended and Restated Certificate of Designation of
Series A Convertible Preferred Stock, par value $.01, of the
Company.
10.1 Form of Registration Rights Agreement
99 Press Release, dated March 13, 1996.
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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.
Date: March 13, 1996 CELGENE CORPORATION
By: /s/ John W. Jackson
---------------------------
Name: John W. Jackson
Title: Chairman of the Board and
Chief Executive Officer
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Description Page
- ------------- -------------------------------------------------------------- -------------
<S> <C> <C>
4.1 Form of Amended and Restated Certificate of Designation of
Series A Convertible Preferred Stock, par value $.01, of the
Company.
10.1 Form of Registration Rights Agreement
99 Press Release, dated March 13, 1996.
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</TABLE>
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CELGENE CORPORATION
AMENDED AND RESTATED
CERTIFICATE OF DESIGNATION
OF
SERIES A CONVERTIBLE
PREFERRED STOCK
(Pursuant to Section 151 of the Delaware General Corporation Law)
We, John W. Jackson and Sanford Kaston, the Chairman of the
Board and Chief Executive Officer and the Assistant Secretary, respectively, of
Celgene Corporation, a Delaware corporation, in accordance with the provisions
of Section 103 of the Delaware General Corporation Law do hereby certify that:
1. The name of the corporation (hereinafter called the
"Corporation") is CELGENE CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware.
2. The Certificate of Incorporation (as amended) authorizes the
issuance of 5,000,000 shares of Preferred Stock of a par value of $.01 each and
expressly vests in the Board of Directors of the Corporation the authority
provided therein to issue any or all of said shares in one or more series and by
resolution or resolutions to establish the designation, number, full or limited
voting powers, or the denial of voting powers, preferences and relative,
participating, optional, and other special rights and the qualifications,
limitations, restrictions, and other distinguishing characteristics of each
series to be issued.
3. A Certificate of Designation setting forth the rights and
privileges with respect to the Series A Convertible Preferred Stock, $.01 par
value per share, of the Corporation and designating Four Hundred Twenty (420) of
the 5 Million (5,000,000) authorized shares of Preferred Stock as Series A
Convertible Preferred Stock, $.01 par value per share, was filed with the
Secretary of State of the State of Delaware on March 6, 1996. This Amended and
Restated Certificate of Designation amends and restates the Certificate of
Designation that was filed on March 6, 1996.
4. The following is a true and correct copy of certain
resolutions duly adopted by the Board of Directors of the Corporation on March
11, 1996, which constituted all necessary action on the part of the Company for
adoption of such resolutions.
1
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RESOLVED, that Five Hundred and Twenty (520) of the 5 Million
(5,000,000) authorized shares of Preferred Stock of the Corporation shall be
designated Series A Convertible Preferred Stock, $.01 par value per share, and
shall possess the rights and privileges set forth below:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Convertible Preferred Stock" (the "Series A
Convertible Preferred Stock") and the number of shares constituting the Series A
Convertible Preferred Stock (the "Shares") shall be 520; such number of shares
may be increased or decreased by resolution of the Board of Directors; provided,
that no decrease shall reduce the number of Shares to a number less than the
number of shares then outstanding.
Section 2. Rank. The Series A Convertible Preferred Stock shall
rank: (i) prior to all of the Corporation's Common Stock, par value $.01 per
share ("Common Stock"); (ii) prior to any class or series of capital stock of
the Corporation hereafter created specifically ranking by its terms junior to
the Series A Convertible Preferred Stock (collectively, with the Common Stock,
"Junior Securities"); (iii) on parity with any class or series of capital stock
of the Corporation hereafter created specifically ranking by its terms on parity
with the Series A Convertible Preferred Stock ("Parity Securities") and (iv)
junior to any class or series of capital stock of the Corporation hereafter
created specifically ranking by its terms senior to the Series A Convertible
Preferred Stock ("Senior Securities"); in each case as to distributions of
assets upon liquidation, dissolution or winding up of the Corporation, whether
voluntary or involuntary (all such distributions being referred to collectively
as "Distributions");
Section 3. Dividends. The Series A Convertible Preferred Stock
will bear no dividends, and the holders of the Series A Convertible Preferred
Stock shall not be entitled to receive dividends on the Series A Convertible
Preferred Stock.
Section 4. Liquidation Preference.
(a) In the event of any liquidation, dissolution or winding up of
the Corporation, 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,
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 assets and funds of the Corporation
2
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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 Corporation's Certificate of Incorporation and any
Certificate(s) of Designation.
(b) Upon the completion of the distribution required by
subsection 4(a), if assets remain in this Corporation, they shall be distributed
to holders of Junior Securities in accordance with the Corporation's Certificate
of Incorporation including any duly adopted Certificate(s) of Designation.
(c) A consolidation or merger of the Corporation with or into any
other corporation or corporations, or a sale, conveyance or disposition of all
or substantially all of the assets of the Corporation or the effectuation by the
Corporation of a transaction or series of related transactions in which more
than 50% of the voting power of the Corporation is disposed of, shall not be
deemed to be a liquidation, dissolution or winding up within the meaning of this
Section 4, but shall instead be treated pursuant to Section 5(f)(ii) hereof.
Section 5. Conversion.
The record Holders of this Series A Convertible Preferred Stock shall have
conversion rights as follows (the "Conversion Rights"):
(a) Right to Convert. The record holder of the Series A
Convertible Preferred Stock shall be entitled, as set forth below, and, subject
to the Company's right of redemption set forth in Section 6 and the restrictions
on conversion set forth in Section 5(b) below, 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 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
"Principal Conversion Rate" = Issue Price
----------------
Conversion Price
and "Accretion Conversion Rate = (.049)(N/365)(Issue Price)
--------------------------
Accretion Conversion Price
where
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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, as defined in
Section 4(a);
Accretion Conversion Price equals 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 (the "Fixed Conversion
Price")(which equals 110% of $17.1, which is the average closing
price for the seven (7) trading days ending on February 29, 1996), 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).
(b) Restrictions on Conversion. No shares of Series A Convertible
Preferred Stock may be converted prior to 60 days after the Last Closing (as
defined in the Subscription Agreement). Thereafter, (subject to the
effectiveness of the S-3 Registration Statement as defined in the Subscription
Agreement) each Holder of Series A Convertible Preferred Stock may convert
one-third of his shares of Series A Convertible Preferred Stock on or after the
60th day after the Last Closing, an additional one-third on or after the 90th
day after the Last Closing, and all additional remaining Series A Convertible
Preferred Stock on or after the 120th day after the Last Closing.
(c) Mechanics of Conversion. In order to convert Series A Convertible
Preferred Stock into shares of Common Stock, the holder shall (i) fax a copy of
the fully executed notice of conversion in the form attached hereto ("Notice of
Conversion") to the Company at the office of the Company and to American Stock
Transfer & Trust Company (the "Exchange Agent") that he elects to convert the
same, which notice shall specify the number of shares of Series A Convertible
Preferred Stock to be converted and shall contain a calculation of the
Conversion Rate (together with a copy of the first page of each certificate to
be converted) prior to Midnight, New York City time (the "Conversion Notice
Deadline") on the Date of Conversion specified on the Notice of Conversion and
(ii) surrender the original certificate or certificates therefor, duly endorsed,
and the original Notice of Conversion, no later than Midnight (New York City
Time) the next business day, to a common courier for overnight delivery or (if
overseas) 2-day delivery to the Exchange Agent. The Company shall not be
obligated to issue certificates evidencing the shares
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of Common Stock issuable upon such conversion unless either the certificates
evidencing such Series A Convertible Preferred Stock are delivered to the
Exchange Agent as provided above, or the Holder notifies the Exchange Agent that
such certificates have been lost, stolen or destroyed and such Holder provides
such indemnity as is reasonably acceptable to the Company with respect to such
lost, stolen or destroyed certificate. In the case of a dispute as to the
calculation of the Conversion Rate, the Company's calculation shall be deemed
conclusive absent manifest error. No fractional shares of Common Stock shall be
issued upon conversion of this Series A Convertible Preferred Stock. In lieu of
any fractional share to which the Holder would otherwise be entitled, the
Company shall round up to the nearest whole share.
The Company shall issue and deliver or cause to be issued and delivered
within three (3) business days after delivery to the Exchange Agent of such
certificates, or after the holder has furnished such indemnity such holder of
Series A Convertible Preferred Stock at the address of the Holder on the books
of the Company, a certificate or certificates for the number of shares of Common
Stock to which the Holder shall be entitled as provided in Section 5(a) above.
The date on which conversion occurs (the "Date of Conversion") shall be deemed
to be the date set forth in such Notice of Conversion, provided (i) that the
advance copy of the Notice of Conversion is faxed to the Company and the
Exchange Agent before midnight, New York City time, on the Date of Conversion
and (ii) that the stock certificates (the "Preferred Stock Certificates")
representing the Series A Convertible Preferred Stock to be converted are
received by the Exchange Agent within five (5) business days thereafter. The
person or persons entitled to receive the shares of Common Stock issuable upon
such conversion shall be treated for all purposes as the record holder or
holders of such shares of Common Stock on such date. If the original Series A
Convertible Preferred Stock Certificates to be converted are not received by the
Exchange Agent or the Company within five (5) business days after the Date of
Conversion, the Company may, at its option, treat the Notice of Conversion as
null and void.
(d) Reservation of Stock Issuable Upon Conversion. The Company shall at
all times reserve and keep available out of its authorized but unissued shares
of Common Stock, solely for the purpose of effecting the conversion of the
Series A Convertible Preferred Stock, such number of its shares of Common Stock
as shall from time to time be sufficient to effect the conversion of all then
outstanding shares of Series A Convertible Preferred Stock; and if at any time
the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of Series A
Convertible Preferred Stock, the Company will take such corporate action as may
be necessary to increase its authorized but unissued shares of Common Stock to
such number of shares as shall be sufficient for such purpose.
(e) Automatic Conversion. Each share of Series A Convertible Preferred
Stock outstanding two years from the Date of the Last Closing automatically
shall be converted into Common Stock on such date at the Conversion Price then
in effect and two years
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from the Date of the Last Closing shall be deemed the Date of Conversion with
respect to such Shares then outstanding provided that, if such date is not a
business day, the next following business day shall be the operative date.
(f) Adjustment to Fixed Conversion Price.
In computing the Fixed Conversion Price for purposes of Section
5(a):
(i) If, prior to the conversion of all of the Series A
Convertible Preferred Stock, the number of outstanding shares of Common Stock is
adjusted by a stock split stock dividend, or other similar event, the Fixed
Conversion Price shall be proportionately adjusted.
(ii) If, prior to the conversion of all Series A Convertible
Preferred Stock, there shall be any merger, consolidation, exchange of shares,
recapitalization, reorganization, or other similar event, as a result of which
shares of Common Stock shall be changed into the same or a different number of
shares of the same or another class or classes of stock or securities of the
Company or another entity, then the Holders of Series A Convertible Preferred
Stock shall thereafter have the right to purchase and receive upon conversion of
Series A Convertible Preferred Stock, upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore issuable upon conversion, such shares of stock and/or
securities as may be issued or payable with respect to or in exchange for the
number of shares of Common Stock immediately theretofore purchasable and
receivable upon the conversion of Series A Convertible Preferred Stock held by
such Holders had the Holders converted their Series A Preferred to Common
immediately prior to such merger, consolidation, exchange of shares,
recapitalization or reorganization, and in any such case appropriate provisions
shall be made with respect to the rights and interests of the Holders of the
Series A Convertible Preferred Stock to the end that the provisions hereof
(including, without limitation, provisions for adjustment of the Fixed
Conversion Price and of the number of shares issuable upon conversion of the
Series A Convertible Preferred Stock) shall thereafter be applicable, as nearly
as may be practicable in relation to any shares of stock or securities
thereafter be deliverable upon the conversion of Series A Convertible Preferred
Stock. The Company shall not effect any transaction described in this subsection
5(f) unless the resulting successor or acquiring entity (if not the Company)
assumes by written instrument the obligation to deliver to the Holders of the
Series A Convertible Preferred Stock such shares of stock and/or securities as,
in accordance with the foregoing provisions, the Holders of the Series A
Convertible Preferred Stock may be entitled to purchase.
(iii) If any adjustment under this Section 5(f) would create a
fractional share of Common Stock or a right to acquire a fractional share of
Common Stock, such fractional share (on an aggregate basis) shall be disregarded
and the number of shares of Common Stock issuable upon conversion shall be
rounded to the next higher number of shares.
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Section 6. Redemption by Company; Lock Up.
(a) Company's Right to Redeem or Lock Up Conversion in the Event of
Conversion.
(i) Redemption Upon Receipt of Notice of Conversion. 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 the Fixed Conversion Price, the Company shall have the right, in
its sole discretion, upon receipt of a Notice of Conversion pursuant to Section
5, to redeem in whole or in part any Series A Convertible Preferred Stock
submitted for conversion, immediately prior to 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 by the various shareholders for conversion
on the applicable date, a pro-rata amount from each shareholder so submitting
Series A Convertible Preferred Stock for conversion.
In the case of a redemption under this Section 6(a)(i), the redemption
price shall equal the sum of the Principal Redemption Price plus the
Accretion, where:
Principal Redemption Price =
Issue Price x Closing Price on Date of Conversion
-------------------------------------------------
Conversion Price
In the event of redemption, the Accretion is payable, at the Company's
option, in cash or Common Stock. If the Accretion is paid in Common Stock, the
number of shares for such payment shall be calculated in accordance with the
following formula:
Accretion
---------
Accretion Conversion Price
where "N," "Issue Price," "Closing Price", "Accretion Conversion
Price" and "Conversion Price" have the meanings set forth in
Section 5, and "Accretion" has the meaning set forth in Section
4.
(ii) Redemption or Lockup Below Soft Floor Price. In the event
the Closing Price per share shall be at or less than $11.50 (the "Soft Floor
Price"), for each of the five (5) trading days preceding the date of submission
of a Notice of Conversion by a Holder, the Company shall have the right, in its
sole discretion, upon receipt of such Notice of Conversion pursuant to Section
5, to elect, in lieu of conversion, either (A) or (B), as follows:
A. The Company may elect to declare such conversion null
and
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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 within 10 business
days, to the Holder of the Affected Preferred Stock
warrants ("90 Day Lock Up Warrants"), to purchase Common
Stock of the Company, as follows:
Terms of 90 Day Lock Up Warrant
- the 90 Day Lock Up Warrant 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 the
Soft Floor Price.
- the strike price of the 90 Day Lock Up Warrant
shall equal the Soft Floor Price.
- the term of the 90 Day Lock Up Warrant shall be
two (2) years.
The Company may, in its discretion, offer ("180 Day Lock
Up 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 Lockup Period (a "180 Day Lockup Period"). The Holder,
in its discretion, may accept or reject the 180 Day Lock
Up Offer. The Company shall issue to the Holder, within 10
business days of Holder's written acceptance of a 180 Day
Lock Up Offer, a 180 Day Lock Up Warrant, the terms of
which shall be equivalent to the terms of a 90 Day Lock Up
Warrant.
After any 90 Day Lock Up Period or 180 Day Lock Up Period
(as applicable), the Investor shall again be entitled to
convert the Affected Preferred Stock pursuant to the terms
of Section 5 above, without any further lock up
restrictions.
B. Redeem such Affected Preferred Stock pursuant to
Section 6(a)(i).
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(iii) Mechanics of Redemption or Lock Up. Any shareholder
considering submitting Preferred Stock for conversion at such time as the
Company's right of redemption under Section 6(a)(i) or lock up under Section
6(a)(ii) is or may be in effect may provide notice to the Company by facsimile,
of his possible desire to convert a specified number of Shares, and ask the
Company to determine whether or not the Company would exercise its right of
redemption or lock up if the Shares were submitted for conversion. The Company
shall respond within two (2) business days of the date of receipt of that
notice, and state whether it would redeem or lock up the Shares, in whole or in
part, or allow conversion into Common Stock without redemption or lock up, which
election will be applicable to conversion by such shareholder of the number of
Shares specified in his notice within the next five business days after the date
of the Company's response. Failure of the Company to respond within the two (2)
business day period shall be deemed an election by the Company not to redeem or
lock up the Shares covered by that notice if submitted for conversion within the
next five business days. If the holder does not provide advance notice of
intention to convert as contemplated in this section (iii), the Company may
effect redemption or lock up of Shares submitted for conversion by giving notice
of its election to redeem or lock up, by facsimile within 2 business days
following receipt of a Notice of Conversion from a Holder, with a copy by
overnight or 2-day courier, to (A) the Holder of Series A Convertible Preferred
Stock submitted for conversion at the address and facsimile number of such
Holder appearing in the Company's register for the Series A Convertible
Preferred Stock and (B) the Exchange Agent. Such notice shall indicate whether
the Company will redeem or lock up all or part of the Series A Convertible
Preferred Stock submitted for conversion.
The Company shall not be entitled to exercise its right to redeem shares
submitted for conversion under this Section 6(a) unless it has (x) the full
amount of the redemption price, in cash, available in a demand or other
immediately available account in a bank or similar financial institution or (y)
immediately available credit facilities, in the full amount of the redemption
price, with a bank or similar financial institution on the date the redemption
notice is sent to Holders.
(b) Company's Right to Call Redemption if the Price of the Company's
Common Stock Is Greater Than the Fixed Strike Price. The Company shall have the
right to redeem the Series A Convertible Preferred Stock on the following terms
and conditions:
(i) at any time after nine (9) months following the Last
Closing Date, if the average closing price of the Company's
Common Stock for the seven (7) trading days immediately preceding
the Notice Date (as defined below) is greater than the Fixed
Conversion Price, the Company may, in its discretion, give
written notice that it intends, at least thirty (30) but no more
than forty five (45) business days from the date of such notice
("Notice Date") to redeem the Series A Convertible Preferred
Stock at the redemption price listed in 6(b)(iii) below. The
Company may elect to
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redeem some, but not all, of the Series A Convertible Preferred
Stock, but in no event less than $1,500,000 per redemption. If
the Company elects to redeem some, but not all, of the Series A
Convertible Preferred Stock, the Company shall redeem a pro-rata
amount from among all the Series A Convertible Preferred Stock
holders. The holders of the Preferred Stock shall have the right
to convert their Preferred Stock until the redemption date.
(ii) Mechanics of Redemption. The Company shall effect
each such redemption by giving notice of its election to redeem,
by facsimile with a copy by overnight or 2-day courier, no less
than 30 business days prior to the intended redemption date. Such
redemption notice shall indicate whether the Company will redeem
all or part of the Series A Convertible Preferred Stock, the
effective date of the redemption and the applicable redemption
price. The Company shall not be entitled to send any notice of
redemption and begin the redemption procedure unless it has (x)
the full amount of the redemption price, in cash, available in a
demand or other immediately available account in a bank or
similar financial institution or (y) immediately available credit
facilities, in the full amount of the redemption price, with a
bank or similar financial institution on the date the redemption
notice is sent to shareholders. If the Company has met the
requirements of the preceding sentence, and a Holder has not
submitted his Series A Convertible Preferred Stock for redemption
as required by this Section 6(c) by the redemption date, the
Company may pay the redemption price described in (iii) below and
cancel the Series A Convertible Preferred Stock subject to the
redemption notice, and such redeemed Series A Convertible
Preferred Stock shall be of no further validity, force or effect.
(iii) Redemption Price. In the case of a redemption
under this Section 6(b), the redemption price per share of
Series A Convertible Preferred Stock shall be as follows:
<TABLE>
<CAPTION>
Redemption Price Elapsed Time since Last
Closing ---------------- -----------------------
- -------
<S> <C> <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>
For purposes of this paragraph, the "Stated Value" shall equal
the Original Series A Issue Price plus the Accretion (calculated
as of the effective date of such redemption).
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(c) Payment of Redemption Price. The redemption price for redemptions
under either Section 6(a) or 6(b) above shall be paid to the Holder of Series A
Convertible Preferred Stock redeemed within 5 business days after the
redemption; provided, however, that the Company shall not be obligated to
deliver any portion of such redemption price unless either the certificates
evidencing the Series A Convertible Preferred Stock redeemed are delivered to
the Exchange Agent, or the Holder notifies the Company or the Exchange Agent
that such certificates have been lost, stolen or destroyed and executes an
agreement satisfactory to the Company to indemnify the Company from any loss
incurred by it in connection with such certificates.
Section 7. Voting Rights. The holders of the Series A Convertible Preferred
Stock have no voting rights except as required by the General Corporation Law of
the State of Delaware.
Section 8. Protective Provision. So long as shares of Series A Preferred Stock
are outstanding, the Company shall not alter or change the rights, preferences
or privileges of the shares of Series A Convertible Preferred Stock in a manner
not contemplated hereby so as to affect adversely the Series A Convertible
Preferred Stock.
Section 9. Status of Redeemed or Converted Stock. In the event any shares of
Series A Convertible Preferred Stock shall be redeemed or converted pursuant to
Section 5 or Section 6 hereof, the shares so converted or redeemed shall be
canceled, shall return to the status of authorized but unissued Preferred Stock
of no designated series, and shall not be issuable by the Corporation as Series
A Convertible Preferred Stock.
FURTHER RESOLVED, that the statements contained in the foregoing
resolutions creating and designating the said Series A Convertible Preferred
Stock and fixing the number, powers, preferences and relative, optional,
participating, and other special rights and the qualifications, limitations,
restrictions, and other distinguishing characteristics thereof shall, upon the
effective date of said series, be deemed to be included in and be a part of the
Certificate of Incorporation of the Corporation pursuant to the provisions of
the General Corporation Law of the State of Delaware.
FURTHER RESOLVED, that the officers of the Corporation be, and
each acting individually hereby is, authorized and directed to take all actions
necessary and advisable to effect the purpose and intent of the foregoing
resolutions.
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IN WITNESS WHEREOF, Celgene Corporation has caused this certificate to
be signed by John P. Jackson, its Chairman of the Board and Chief Executive
Officer, and attested by Sanford Kaston, its Assistant Secretary, this 11th day
of March, 1996.
CELGENE CORPORATION
By ____________________________
John W. Jackson
Chairman of the Board and Chief Executive Officer
Attest:
By __________________________
Sanford Kaston
Assistant Secretary
Each of the undersigned, the Chairman of the Board and Chief
Executive Officer and Assistant Secretary, respectively, of Celgene Corporation,
a Delaware corporation, declares under penalty of perjury that the matters set
forth in this certificate are true and correct of his own knowledge.
Executed at Warren, New Jersey on March __, 1996.
____________________________
John W. Jackson
Chairman of the Board and Chief Executive Officer
____________________________
Sanford Kaston
Assistant Secretary
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into as of
___________, 1996, by and among CELGENE CORPORATION, a Delaware corporation
("Company"), Swartz Investments, LLC, a Georgia limited liability company
("Swartz Investments") and the subscribers ("Subscribers") to the Company's
offering ("Offering") of up to $15 million of Series A Convertible Preferred
Stock (the "Preferred Stock") pursuant to the Subscription Agreement between the
Company and the Subscribers ("Subscription Agreement").
1. Definitions. For purposes of this Agreement:
(a) The term "register", "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act of 1933 (the "Act"), and
the declaration or ordering of effectiveness of such registration statement or
document;
(b) The term "Registrable Securities" means the Common Stock issuable or
issued upon (i) conversion of the Preferred Stock issued to Investors in the
Offering, (ii) exercise of the Lockup Warrants, and (iii) exercise of the
Warrant(s);
(c) The number of shares of "Registrable Securities then outstanding"
shall be determined by the number of shares of Common Stock which have been
issued or are issuable upon conversion of the Preferred Stock and exercise of
the Warrants and Lock Up Warrants at the time of such determination;
(d) The term "Holder" means any person owning or having the right to
acquire Registrable Securities or any permitted assignee thereof;
(e) The term "Warrants" means the warrants granted to Swartz Investments
or to persons designated by Swartz Investments in connection with i) this
Offering and ii) the offering by the Company, through Swartz Investments, Inc.
of the Company's 8% Convertible Debentures Due July 31, 1997;
(f) The term "Lockup Warrants" means the "90 Day Lockup Warrants" and
the "180 Day Lockup Warrants", as those terms are defined in Certificate Of
Designation of Series A Convertible Preferred Stock of Celgene Corporation; and
(g) The term "Initiating Holders" means holders of Registrable
Securities obtained or obtainable upon conversion of at least four hundred
(400) shares of Preferred Stock.
2. Required Registration.
(a) Within 30 days after the Last Closing of the Offering (as defined in
the Subscription Agreement), but in no event sooner than April 10, 1996 the
Company shall
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file a registration statement ("Registration Statement") on Form S-3 (or other
suitable form, at the Company's discretion but subject to the reasonable
approval of the Investors), covering the resale of all shares of Registrable
Securities then outstanding.
(b) The Registration Statement shall be done as a "shelf" registration
statement under Rule 415, and shall be maintained effective until completion of
the distribution described therein or such time as all Registrable Securities
covered thereby can be immediately sold without any limitation on volume. The
Company shall use its best efforts to have the Registration Statement declared
effective within 90 days after the Last Closing (as defined in the Subscription
Agreement) (the date which is 90 days after the Last Closing herein referred to
as the "Due Date").
(c) If the Registration Statement is not declared effective by the Due
Date, the Company must continue to use its best efforts to obtain a declaration
of effectiveness and shall pay the Investors an amount equal to one and a half
percent (1 1/2%) per month of the aggregate amount of Preferred Stock sold in
the Offering, compounded monthly, and accruing daily, for the first six (6)
months and one percent (1%) thereafter, payable in common stock, which common
stock shall also be deemed "Registrable Securities" for the purpose of this
Agreement. Provided, however, that such additional amounts shall not be payable
for so long as any delay in the effectiveness of the Registration Statement is
due, directly to causes that are beyond the control of the Company, including
but not limited to acts of God, acts or omissions of the Agent or the Investors,
acts or omissions of any government or regulatory body (whether civil or
military) that result in a delay of the declaration by the SEC of the
effectiveness of registration statements generally, fires, explosions, floods,
earthquakes or other natural or man-made disasters, epidemics, wars, riots,
civil disturbances, sabotage, strikes, lockouts, labor difficulties involving
third parties, loss of electrical or other power, or telecommunications
equipment or line failures.
3. Demand Registration.
(a) If the Registration Statement described in Section 2 above is not
effective by the Due Date, Initiating Holders may notify the Company in writing
and demand that the Company file a registration statement under the Securities
Act (a "Demand Registration Statement") covering the resale of the Registrable
Securities then outstanding held by such Holders. Upon receipt of such notice,
the Company shall, within ten (10) days thereafter, give written notice of such
request to all Holders and shall, subject to the limitations of subsection 3(b),
as soon as practicable, and in any event within 60 days after the receipt of
such request, include in the Demand Registration Statement all Registrable
Securities which the Holders request, by notice given to the Company within (10)
days of receipt of the Company's notice.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 3
and the Company shall include such information in the written notice referred to
in subsection 3(a). In such event, the
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right of any other Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company as provided in subsection 6(f)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by a majority in interest of the Initiating
Holders, and reasonably acceptable to the Company. The Holder will not be
required to make any representation other than as to its ownership of the
Registrable Securities and its intended method of distribution.
(c) The Company is obligated to effect only one demand registration
pursuant to Section 3 of this Agreement. The Company agrees to include all
Registrable Securities held by all Holders in such Registration Statement
without cutback or reduction. In the event the Company breaches its obligation
of the preceding sentence, any Holders of the Registrable Securities which were
not included in such Registration Statement shall be entitled to such a second
demand registration for such excluded securities and the Company shall keep
such registration statement effective as required by Section 6.
The Company is not obligated to effect a demand registration under this
Section 3 if in the opinion of counsel to the Company reasonably acceptable to
the person or persons from whom written request for registration has been
received (and satisfactory to the Company's transfer agent to permit the
transfer) that registration under the Act is not required for the immediate
transfer of all of the Registrable Securities pursuant to Rule 144 or other
applicable provision. Such opinion shall be addressed to the Holder at the
Holder's Request.
4. Piggyback Registration. If the Registration Statement described in
Section 2 is not effective by the Due Date, and no demand for a Demand
Registration Statement has been made pursuant to Section 3, and if (but without
any obligation to do so) the Company proposes to register (including for this
purpose a registration effected by the Company for shareholders other than the
Holders) any of its Common Stock under the Securities Act in connection with the
public offering of such securities solely for cash (other than a registration
relating solely for the sale of securities to participants in a Company stock
plan or a registration on Form S-4 promulgated under the Securities Act or any
successor or similar form registering stock issuable upon a reclassification,
upon a business combination involving an exchange of securities or upon an
exchange offer for securities of the issuer or another entity), the Company
shall, at such time, promptly give each Holder written notice of such
registration (a "Piggyback Registration Statement"). Upon the written request of
each Holder given by fax within ten (10) days after mailing of such notice by
the Company, which request shall state the intended method of disposition of
such shares by such Holder, the Company shall cause to be registered under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered. The rights of Holders pursuant to this Section 4
will be limited to one Piggyback Registration Statement and the Company is not
obligated to effect a demand registration under this Section 4 if in the opinion
of counsel to the
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Company reasonably acceptable to the person or persons from whom written request
for registration has been received (and satisfactory to the Company's transfer
agent to permit the transfer) that registration under the Act is not required
for the immediate transfer of all of the Registrable Securities pursuant to Rule
144 or other applicable provision.
5. Limitation on Obligations to Register.
(a) In the case of a Piggyback Registration on an underwritten public
offering by the Company, if the managing underwriter determines and advises in
writing that the inclusion in the registration statement of all Registrable
Shares proposed to be included would interfere with the successful marketing of
the securities proposed to be registered by the Company, then the number of such
Registrable Shares to be included in the registration statement shall be
allocated among all Holders who had requested Piggyback Registration, in the
proportion that the number of Registrable Shares which each such Holder,
including Swartz Investments, seeks to register bears to the total number of
Registrable Shares sought to be included by all Holders, including Swartz
Investments; provided that in no event shall the number of Registrable
Securities be less than 20% of the total number of shares included in such
registration.
(b) Notwithstanding anything to the contrary herein, the Company shall
have the right (i) to defer the initial filing or request for acceleration of
effectiveness of any Demand Registration Statement or Piggyback Registration
Statement or (ii) after effectiveness, to suspend effectiveness of any such
registration statement, if, in the good faith judgment of the board of directors
of the Company and upon the advice of counsel to the Company, such delay in
filing or requesting acceleration of effectiveness or such suspension of
effectiveness is necessary in light of the existence of material non-public
information (financial or otherwise) concerning the Company disclosure of which
at the time is not, in the opinion of the board of directors of the Company upon
the advice of counsel, (A) otherwise required and (B) in the best interests of
the Company; provided however that the Company will not delay or suspend
effectiveness of such registration for more than three months from the date of
the demand, unless it is then engaged in an acquisition that would make such
registration impracticable, in which case it will use its best efforts to
eliminate such impracticability as soon as possible.
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6. Obligations of the Company. Whenever required under this Agreement
to effect the Registration of any Registrable Securities, the Company shall,
as expeditiously as reasonably possible,
(a) in the event that the number of shares available under a
registration statement filed pursuant to Section 2 or 3 above is
insufficient to cover all of the Registrable Securities then outstanding,
based upon the prior day's Closing Price (as defined in the Certificate
of Designation) of the Series A Convertible Preferred Stock, the Company
shall amend that registration statement, or file a new registration
statement, or both, so as to cover all shares of Registrable Securities then
outstanding. The Company shall use its best efforts to effect such amendment or
new registration within 90 days of the date the registration statement file
under Section 2 or 3 is insufficient to cover all the shares of Registrable
Securities then outstanding. Failure to effect an amendment or have the new
registration statement declared effective within that 90 day period will result
in the Company's obligation to pay the additional amounts stated in Section 2(c)
to the Holders of Shares then outstanding, provided that such additional amounts
shall not be payable for any day for which the number of shares of Common Stock
available under the Registration Statement, is sufficient, based upon the prior
day's Closing Price to cover all of the Registrable Securities then outstanding.
(b) Prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective.
(c) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(d) With respect to any Demand Registration Statement, use best efforts
to keep such registration statement effective until the later of 60 days after
all shares of the Preferred Stock have been converted and all Warrants and
Lock-up Warrants have been exercised.
(e) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(f) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such jurisdictions as shall be reasonably requested by the Holders of the
Registrable Securities covered by such registration statement, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions.
(g) In the event of any underwritten public offering, enter into and
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perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(h) Furnish, at the request of any Holder requesting registration of
Registrable Securities pursuant to this Agreement, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Agreement, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (i) an opinion, dated such date, of the outside
counsel of recognized Standing (or reasonably acceptable to Holder) representing
the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of the Company, in form and
substance as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holders requesting registration of Registrable Securities.
(i) As promptly as practicable after becoming aware of such event,
notify each Investor of the happening of any event of which the Company has
knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and use its best efforts promptly to prepare a supplement
or amendment to the Registration Statement to correct such untrue statement or
omission, and deliver a number of copies of such supplement or amendment to each
Investor as such Investor may reasonably request.
(j) Provide Holders with written notice of the date that a registration
statement registering the resale of the Registrable Securities is declared
effective by the Securities and Exchange Commission ("SEC").
(k) Provide Holders and their representatives the opportunity to conduct
a reasonable due diligence inquiry of Company's pertinent financial and other
records and make available its officers, directors and employees for questions
regarding such information as it relates to information contained in the
registration statement.
(l) Provide Holders and their representatives the opportunity to review
the registration statement and all amendments thereto a reasonable period of
time prior to their filing with the SEC and refrain from filing any document in
a form to which Holders reasonably object.
7. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
regard to each selling Holder that such selling Holders shall furnish to the
Company such
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information regarding themselves, the Registrable Securities held by them, and
the intended method of disposition of such securities as shall be required to
effect the registration of their Registrable Securities or to determine that
registration is not required pursuant to Rule 144 or other applicable provision
of the Act.
8. Expenses of Demand Registration. All expenses other than underwriting
discounts and commissions incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including (without limitation) all
registration, filing and qualification fees, printers' and accounting fees, fees
and disbursements of counsel for the Company, and including the reasonable fees
and disbursements incurred of only one counsel for the selling Holders, shall be
borne by the Company; provided, however, that the Company shall not be
required to pay for any expenses of any registration proceeding begun pursuant
to Section 3 if the registration request is subsequently withdrawn at the
request of the Holders of a majority of the Registrable Securities to be
registered (in which case all Holders who had requested such registration shall
bear such expenses); provided further, however, that if at the time of such
withdrawal, the Holders have learned of a material adverse change in the
condition, business, or prospects of the Company from that known to the Holders
at the time of their request, then the Holders shall not be required to pay any
of such expenses and shall retain their rights pursuant to Section 3.
9. Expenses of Company Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registration pursuant to Section 4
for each Holder, including (without limitation) all registration, filing, and
qualification fees, printers and accounting fees relating or apportionable
thereto (and including the reasonable fees and disbursements incurred of only
one counsel for the selling Holders selected by them), but excluding
underwriting discounts and commissions relating to Registrable Securities.
10. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, the officers and directors of each Holder, any underwriter
(as defined in the Act) for such Holder and each person, if any, who controls
such Holder or underwriter within the meaning of the Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act"), against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission to state therein a material fact required
to be stated therein, or necessary to make the statements therein not
misleading, or (iii) any violation by the Company of the Act, the 1934 Act, any
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state securities law or any rule or regulation promulgated under the Act, the
1934 Act or any state securities law; and the Company will reimburse each such
Holder, officer or director, underwriter or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 10(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld), nor shall the Company be liable in
any such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, officer, director,
underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder, severally and
not jointly, will indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed the registration statement, each
person, if any, who controls the Company within the meaning of the Act, any
underwriter and any other Holder selling securities in such registration
statement or any of its directors or officers or any person who controls such
Holder, against any losses, claims, damages, or liabilities (joint or several)
to which the Company or any such director, officer, controlling person, or
underwriter or controlling person, or other such Holder or director, officer or
controlling person may become subject, under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder expressly for use in connection with such registration; and each such
Holder will reimburse any legal or other expenses reasonably incurred by the
Company and any such director, officer, controlling person, underwriter or
controlling person, other Holder, officer, director, or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
10(b) exceed the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 10, deliver to the indemnifying party
a written notice of the commencement thereof and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties; provided,
however, that an indemnified party shall have the right to retain its own
counsel, with the reasonably incurred fees and expenses to be paid by the
indemnifying party, if representation of such indemnified party by the
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counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflicting interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 10, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 10.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 10 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and each holder of Registrable
Securities agree to contribute to the aggregate claims, losses, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively 'Losses') to which the
Company and one or more of the holders of Registrable Securities may be subject
in such proportion as is appropriate to reflect the relative fault of the
Company and the holders in connection with the statements or omissions which
resulted in such Losses; provided, however, that in no case shall any holder be
responsible for any amount in excess of the net purchase price of securities
sold by it under the registration statement. Relative fault shall be determined
by reference to whether any alleged untrue statement or omission relates to
information provided by the Company or by the holders. The Company and the
holders agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 10,
each person who controls a holder of Registrable Securities within the meaning
of either the Securities Act or the Exchange Act and each director, officer,
partner, employee and agent of a holder shall have the same rights to
contribution as such holder, and each person who controls the Company within the
meaning of either the Securities Act or the Exchange Act and each director of
the Company, and each officer of the Company who has signed the registration
statement, shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The obligations of the Company and Holders under this Section 10
shall survive the redemption and conversion, if any, of the Preferred Stock, the
completion of any offering of Registrable Securities in a registration statement
under this Agreement, and otherwise.
11. Reports Under Securities Exchange Act of 1934. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the Act and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company, if
true, that it has complied with the reporting requirements of SEC Rule 144, the
Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed by the Company, and
(iii) such other information as may be reasonably requested in availing any
Holder of any rule or regulation of the SEC which permits the selling of any
such securities without registration.
12. Amendment of Registration Rights. Any provision of this Agreement
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the holders of a majority of the Registrable
Securities provided that the amendment treats all Holders equally and provided
further that there can be no material reduction in a Holder's rights without
consent of such Holder. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each Holder, each future Holder, and the
Company.
13. Notices. All notices required or permitted under this Agreement
shall be made in writing signed by the party making the same, shall specify the
section under this Agreement pursuant to which it is given, and shall be
addressed if to (i) the Company at: President, 7 Powder Horn Drive, Warren, NJ
07059, Telephone No. (908) 271-
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1001, Telecopy No. (908) 805-3931 and (ii) the Holders at their respective last
address as the party shall have furnished in writing as a new address to be
entered on such register. Any notice, except as otherwise provided in this
Agreement, shall be made by fax and shall be deemed given at the time of
transmission of the fax.
14. Termination. This Agreement shall terminate on the date that is five
years from the date of this Agreement; but without prejudice to (i) the parties'
rights and obligations arising from breaches of this Agreement occurring prior
to such termination, (ii) other indemnification obligations under this
Agreement, or (iii) the Company's obligation to maintain the effectiveness of a
registration statement filed prior thereto in accordance with the terms hereof,
and to fulfill its obligations hereunder in respect thereof until it is no
longer required to maintain the effectiveness thereof.
15. Assignment. No assignment, transfer or delegation, whether by
operation of law or otherwise, of any rights or obligations under this Agreement
by the Company or any Holder, respectively, shall be made without the prior
written consent of the majority in interest of the Holders or the Company,
respectively; provided that the rights of a Holder may be transferred to a
subsequent holder of the Holder's Registrable Securities (provided such
transferee shall provide to the Company, together with or prior to such
transferee's request to have such Registrable Shares included in a Demand
Registration or Piggyback Registration, a writing executed by such transferee
agreeing to be bound as a Holder by the terms of this Agreement); and provided
further that the Company may transfer its rights and obligations under this
Agreement to a purchaser of all or a substantial portion of its business if the
obligations of the Company under this Agreement are assumed in connection with
such transfer, either by merger or other operation of law (which may include
without limitation a transaction whereby the Registrable Shares are converted
into securities of the successor in interest) or by specific assumption executed
by the transferee.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, U.S.A. applicable to
agreements made in and wholly to be performed in that jurisdiction, except for
matters arising under the Act or the Securities Exchange Act of 1934, which
matters shall be construed and interpreted in accordance with such laws.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
CELGENE CORPORATION
By: ________________________________
_________________
President
Address: ___________________
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___________________
___________________
INVESTOR(S)
___________________________________
Investor's Name
By:_________________________________
(Signature)
Address: ___________________
___________________
___________________
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IMMEDIATE
<TABLE>
<S> <C>
John W. Jackson Thomas Redington
Chairman & CEO 203/222-7399
908/271-4119 212/926-1733
</TABLE>
CELGENE COMPLETES $25 MILLION PRIVATE PLACEMENT
-----------------------------------------------
WARREN, NJ MAR 13 -- Celgene Corporation (Nasdaq: CELG) announced it
completed a $25 million Regulation D placement of Series A Convertible Preferred
Stock.
Celgene officials said the proceeds will be used to fund research and
development for the company's pharmaceutical programs and for working capital.
Celgene said the Series A Convertible Preferred Stock and the shares of
common stock issuable upon its conversion have not been registered under the
Securities Act of 1933, as amended (the 'Act'), and may not be offered or sold
absent registration under the Act or an applicable exemption from the
registration requirements under the Act. Celgene intends to file a registration
statement covering the resale of the underlying shares of common stock in April
1996.
Cash and marketable securities at December 31, 1995, would have been $35.5
million with the inclusion of the net proceeds from the private placement.
Swartz Investments of Atlanta, GA acted as placement agent.
Celgene Corporation, headquartered in Warren, NJ, uses proprietary
expertise in small molecule chemistry to service the pharmaceutical and allied
industries.
3/13/96
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