Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CELGENE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-2711928
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
7 Powder Horn Drive
Warren, New Jersey 07059
(732) 271-1001
(Address of principal executive offices) (Zip code)
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Celgene Corporation 1998 Long-Term
Incentive Plan
Non-Plan Stock Option Agreements
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John W. Jackson Copies to:
Celgene Corporation Robert A. Cantone
7 Powder Horn Drive Proskauer Rose LLP
Warren, New Jersey 07059 1585 Broadway
(732) 271-1001 New York, New York 10036-8299
Name, address, including zip code, (212) 969-3000
and telephone number, including
area code, of agent for service)
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Proposed maximum Proposed maximum Amount of
Title of securities to be Amount to be offering price aggregate offering registration
registered registered per share price fee
- -------------------------- --------------------- ---------------- -------------------- -----------------
<S> <C> <C> <C> <C>
Common Stock, par 1,500,000 shares (1) $11.59 (2) $17,385,000 (2) $4,833.03
value $.01 per share
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Common Stock, par 200,000 shares (3) $ 5.75 (4) $ 1,150,000 (4) $ 230.00
value $.01 per share
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Common Stock, par 150,000 shares (5) $ 6.88 (6) $ 1,032,000 (6) $ 286.90
value $.01 per share
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Common Stock, par 25,000 shares (7) $10.625 (8) $ 265,625 (8) $ 73.84
value $.01 per share
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Common Stock, par 15,000 shares (9) $ 7.00 (10) $ 105,000(10) $ 21.00
value $.01 per share
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TOTAL $5,444.77
</TABLE>
(1) Represents the maximum number of shares of common stock, par value $.01 per
share ("Common Stock"), issuable upon exercise of options which may be or
have been granted under the Celgene Corporation 1998 Long-Term Incentive
Plan (the "Plan"). Pursuant to Rule 416, there are also being registered
such additional indeterminate number of shares as may be required to cover
possible adjustments in the number of shares issuable under the Plan
pursuant to the antidilution provisions thereof.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(i) of the Securities Act of 1933, as amended ("Rule
457(h)"), on the basis of the average of the high and low selling prices
per share of Common Stock on December 14, 1998, as reported on the Nasdaq
National Market.
(3) Represents 200,000 shares of Common Stock issuable upon exercise of options
which have been granted to Jack L. Ufheil pursuant to a Stock Option
Agreement, dated as of June 21, 1990 between Celgene Corporation and Mr.
Ufheil.
(4) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $5.75 per share
with respect to options granted to purchase 200,000 shares of Common Stock.
(5) Represents 150,000 shares of Common Stock issuable upon exercise of options
which have been granted to Richard G. Wright pursuant to a Stock Option
Agreement, dated as of March 21, 1994 between Celgene Corporation and Mr.
Wright.
(6) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $6.88 per share
with respect to options granted to purchase 150,000 shares of Common Stock.
(7) Represents 25,000 shares of Common Stock issuable upon exercise of options
which have been granted to Jack L. Ufheil pursuant to a Stock Option
Agreement dated as of August 2, 1993 between Celgene Corporation and Mr.
Ufheil.
(8) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $10.625 per share
with respect to options granted to purchase 25,000 shares of Common Stock.
(9) Represents 15,000 shares of Common Stock issuable upon exercise of options
which have been granted to Gilla Kaplan pursuant to a Stock Option
Agreement dated as of January 26, 1994 between Celgene Corporation and Ms.
Kaplan.
(10) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) and based on an exercise price of $7.00 per share
with respect to options granted to purchase 15,000 shares of Common Stock.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Section 10(a) prospectus for the Plan is not being filed with the
Securities and Exchange Commission (the "Commission") as part of this
Registration Statement.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange Commission
by Celgene Corporation, a Delaware corporation (the "Company" or the
"Registrant"), are incorporated herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, filed with the Commission on March 31,
1998.
(2) the Company's Amendment to the Annual Report on Form 10-K/A for
the fiscal year ended December 31, 1997, filed with the
Commission on April 30, 1998.
(3) the Company's Quarterly Reports filed on Form 10-Q for the fiscal
quarters ended March 31, 1998, June 30, 1998 and September 30,
1998.
(4) the Company's Current Reports on Form 8-K, filed with the
Commission on July 17, 1998 and July 22, 1998.
(5) the description of the Company's Common Stock contained in the
Company's 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 subsequently filed by the Company pursuant to Section 13(a),
13(c), 14, or 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
part hereof from the date of filing such documents. Any statement in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for the purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Article EIGHTH of the Company's Certificate of Incorporation provides that
the Corporation shall indemnify, to the fullest extent authorized by the
Delaware General Corporation Law, its officers and directors against all
expenses, judgments, fines and amounts paid in settlement incurred in connection
with any civil, criminal, administrative or investigative action, suit or
proceeding. The Certificate of Incorporation also extends indemnification to
those serving at the request of the Company as directors, officers, employees or
agents of other enterprises.
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Article TENTH of the Company's Certificate of Incorporation provides that
no director of the Company shall be liable to the Company or any of its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for director's liability (i) for breach of the director's duty of loyalty
to the Company or its stockholders, (ii) for acts of or omissions of such
director not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the Delaware General Corporation
Law, or (iv) for any transaction from which the director derived an improper
personal benefit.
Section 145 of the General Corporation Law of the State of Delaware permits
a corporation to indemnify its directors and officers against expenses
(including attorney's fees), judgments, fines and amounts paid in settlements
actually and reasonably incurred by them in connection with any action, suit or
proceeding brought by third parties, if such directors or officers acted in good
faith and in a manner they reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reason to believe their conduct was unlawful. In a derivative
action, i.e., one by or in the right of the corporation, indemnification may be
made only for expenses actually and reasonably incurred by directors and
officers in connection with the defense or settlement of an action or suit, and
only with respect to a matter as to which they shall have acted in good faith
and in a manner they reasonably believed to be in or not opposed to the best
interest of the corporation, except that no indemnification shall be made if
such person shall have been adjudged liable to the corporation, unless and only
to the extent that the court in which the action or suit was brought shall
determine upon application that the defendant officers or directors are
reasonably entitled to indemnity for such expenses despite such adjudication of
liability.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
provides that a corporation may eliminate or limit the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the General Corporation Law
of the State of Delaware, or (iv) for any transaction from which the director
derived an improper personal benefit. No such provision shall eliminate or limit
the liability of a director for any act or omission occurring prior to the date
when such provision becomes effective.
Pursuant to Section 145 of the General Corporation Law of the State of
Delaware, the Company maintains directors' and officers' liability insurance
coverage.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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4.1 Celgene Corporation 1998 Long-Term Incentive Plan (incorporated by
reference to Exhibit A to the Proxy Statement of the Registrant, filed
May 18, 1998)
5.1 Opinion of Proskauer Rose LLP
23.1 Consent of KPMG LLP
23.2 Consent of Proskauer Rose LLP (included in Exhibit 5.1)
24.1 Power of Attorney (see signature page)
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
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(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 of 1933;
(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) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement;
(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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8, or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 the 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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on December 3, 1998.
CELGENE CORPORATION
By: /s/ John W. Jackson
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John W. Jackson
Chairman of the Board and
Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints John W. Jackson and Sol J. Barer, Ph.D., and each
of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to act, without the other, for him and in his
name, place, and stead, in any and all capacities, to sign any and all
amendments, including post-effective amendments, to this registration statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, as full to all intents and purposes as he might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
each of them, their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
/s/ John W. Jackson Chairman of the Board and December 3, 1998
- ------------------------------- Chief Executive Officer
John W. Jackson (principal executive
officer)
/s/ Sol J. Barer, Ph.D. President, December 3, 1998
- ------------------------------- Chief Operating Officer,
Sol J. Barer, Ph.D. Acting Chief Financial Officer
and Director (principal
financial and accounting
officer)
/s/ James Swenson Chief Accounting Officer December 3, 1998
- -------------------------------
James Swenson
/s/ Jack L. Bowman Director December 3, 1998
- -------------------------------
Jack L. Bowman
/s/ Frank T. Cary Director December 3, 1998
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Frank T. Cary
/s/ Arthur Hull Hayes, Jr., M. Director December 3, 1998
- -------------------------------
Arthur Hull Hayes, Jr., M.D.
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/s/ Gilla Kaplan, Ph.D. Director December 3, 1998
- -------------------------------
Gilla Kaplan, Ph.D.
/s/ Richard C.E. Morgan Director December 3, 1998
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Richard C.E. Morgan
/s/ Walter L. Robb, Ph.D. Director December 3, 1998
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Walter L. Robb, Ph.D.
/s/ Lee J. Schroeder Director December 3, 1998
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Lee J. Schroeder
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EXHIBIT INDEX
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Exhibit Description of Exhibit
4.1 Celgene Corporation 1998 Long-Term Incentive
Plan (incorporated by reference to Exhibit A to
the Proxy Statement of the Registrant, filed
May 18, 1998)
*5.1 Opinion of Proskauer Rose LLP
*23.1 Consent of KPMG LLP
*23.2 Consent of Proskauer Rose LLP
(included in Exhibit 5.1)
*24.1 Power of Attorney (included in
page II-4 and II-5 hereof)
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EXHIBIT 5.1
December 29, 1998
Celgene Corporation
Powder Horn Drive
Warren, New Jersey 07059
Dear Sirs:
We are acting as counsel to Celgene Corporation, a Delaware corporation (the
"Company"), in connection with the filing of a Registration Statement on Form
S-8 with exhibits thereto (the "Registration Statement") by the Company under
the Securities Act of 1933 as amended, and the rules and regulations thereunder,
for registration of up to 1,890,000 shares (the "Shares") of Common Stock, par
value $.01 per Share, of the Company. Of the Shares, (i) 1,500,000 Shares may be
issued by the Company pursuant to the Company's 1998 Long-Term Incentive Plan
(the "Plan") and (ii) an aggregate of 390,000 Shares may be issued by the
Company pursuant to (a) a Stock Option Agreement dated August 2,1993 between the
Company and John L. Ufheil (b) a Stock Option Agreement dated March 21, 1994
between the Company and Richard G. Wright, (c) a Stock Option Agreement dated
January 26, 1994 between the Company and Gilla Kaplan, and (d) a Stock Option
Agreement dated June 21, 1990 between the Company and Jack L. Ufheil (together,
the "Option Agreements").
We have participated in the preparation of the Registration Statement and have
reviewed the corporate proceedings in connection with the adoption of the Plan.
We have also examined and relied upon originals or copies, certified or
otherwise authenticated to our satisfaction, of all such public officials and of
representatives of the Company, and have made such investigation of law, and
have discussed with representatives of the Company and such other persons such
questions of fact, as we have deemed proper and necessary as a basis for this
opinion.
Based upon, and subject to, the foregoing, we are of the opinion that the Shares
are duly authorized and, upon issuance of the Shares in accordance with the Plan
and upon the exercise of the options issued pursuant to the Option Agreements,
will be, assuming no change in the applicable law or pertinent facts, validly
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. In giving the foregoing consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Proskauer Rose LLP
Proskauer Rose LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors of Celgene Corporation:
We consent to the incorporation herein by reference in this Registration
Statement of Celgene Corporation on Form S-8 of our report dated February 13,
1998, relating to the balance sheets of Celgene Corporation as of December 31,
1996 and 1997, and the related statements of operations, stockholders' equity,
and cash flows for each of the years in the three-year period ended December 31,
1997, which report appears in the Annual Report on Form 10-K of Celgene
Corporation for the year ended December 31, 1997.
KPMG LLP
Short Hills, NJ
January 4, 1999
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