UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
Celgene Corporation
86 Morris Avenue
Summit, New Jersey 07901
Telephone: (908) 673-9000
with a copy to:
Jonn R. Beeson, Esq.
Kevin B. Espinola, Esq.
Jones Day
3161 Michelson Drive, Suite 800
Irvine, California 92612
Telephone: (949) 851-3939
Receive Notices and Communications)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.o
Note:Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. | 00383Y102 |
1 | NAMES OF REPORTING PERSONS Celgene Corporation | ||||||||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) | ||||||||||
(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS) | ||||||||||
Not applicable | |||||||||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Delaware | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 0 shares | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 33,215,612 shares (1) | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 0 shares | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 shares | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
33,215,612 shares (1) | |||||||||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
82.1%(2) | |||||||||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) | ||||||||||
CO |
2
CUSIP No. | 00383Y102 |
1 | NAMES OF REPORTING PERSONS Artistry Acquisition Corp. | ||||||||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS) | ||||||||||
(a) o | |||||||||||
(b) þ | |||||||||||
3 | SEC USE ONLY | ||||||||||
4 | SOURCE OF FUNDS (SEE INSTRUCTIONS) | ||||||||||
Not applicable | |||||||||||
5 | CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) | ||||||||||
o | |||||||||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION | ||||||||||
Delaware | |||||||||||
7 | SOLE VOTING POWER | ||||||||||
NUMBER OF | 0 shares | ||||||||||
SHARES | 8 | SHARED VOTING POWER | |||||||||
BENEFICIALLY | |||||||||||
OWNED BY | 33,215,612 shares (1) | ||||||||||
EACH | 9 | SOLE DISPOSITIVE POWER | |||||||||
REPORTING | |||||||||||
PERSON | 0 shares | ||||||||||
WITH | 10 | SHARED DISPOSITIVE POWER | |||||||||
0 shares | |||||||||||
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON | ||||||||||
33,215,612 shares (1) | |||||||||||
12 | CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS) | ||||||||||
o | |||||||||||
13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) | ||||||||||
82.1%(2) | |||||||||||
14 | TYPE OF REPORTING PERSON (SEE INSTRUCTIONS) | ||||||||||
CO |
3
CUSIP No. | 00383Y102 |
Item 1. | Security and Issuer |
Item 2. | Identity and Background |
Item 3. | Source and Amount of Funds or Other Consideration |
Item 4. | Purpose of Transaction |
4
CUSIP No. | 00383Y102 |
5
CUSIP No. | 00383Y102 |
• | Net Sales Payments. For each full one-year period ending December 31 during the term of the CVR Agreement (a “Net Sales Measuring Period”), a payment that equals (i) 2.5% of that portion of Net Sales of Abraxane® and the other Products (as each such term is defined in the CVR Agreement) that exceeds $1 billion but is less than or equal to $2 billion for such period, plus (ii) an additional amount equal to 5.0% of that portion of Net Sales of Abraxane® and the other Products that exceeds $2 billion but is less than or equal to $3 billion for such period, plus (iii) an additional amount equal to 10.0% of that portion of Net Sales of Abraxane® and the other Products that exceeds $3 billion for such period; provided that no Net Sales Payments will be due following a Net Sales Payment Termination Date. “Net Sales Payment Termination Date” is defined as the last day of the Net Sales Measuring Period ending on December 31, 2025; provided that, if Net Sales of the Products for the Net Sales Measuring Period ending on December 31, 2025 are equal to or greater than $1 billion , then the Net Sales Payment Termination Date will be extended until the earlier of (x) the last day of the Net Sales Measuring Period during which Net Sales of the Products are less than $1 billion and (y) December 31, 2030. | ||
• | Milestone Payment #1. $250 million, with respect to the achievement of U.S. regulatory approval of Abraxane® for use in the treatment of non-small cell lung cancer, which permits Parent to market such Product under a label that includes a progression free survival claim, but only if the foregoing milestone is achieved no later than the fifth anniversary of the execution of the CVR Agreement. | ||
• | Milestone Payment #2. $400 million (if achieved no later than April 1, 2013) or $300 million (if achieved after April 1, 2013 and before the fifth anniversary of the CVR Agreement), with respect to the achievement of U.S. regulatory approval of Abraxane® for use in the treatment of pancreatic cancer, which permits Parent to market such Product under a label that includes an overall survival claim. |
6
CUSIP No. | 00383Y102 |
7
CUSIP No. | 00383Y102 |
Item 5. | Interest in Securities of the Issuer |
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
8
CUSIP No. | 00383Y102 |
Item 7. | Material to be Filed as Exhibits |
1. | Agreement and Plan of Merger, dated as of June 30, 2010, by and among Parent, Merger Sub and Abraxis (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Parent on July 1, 2010). | |
2. | Form of Contingent Value Rights Agreement (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Parent on July 1, 2010). |
3. | Voting Agreement, dated as of June 30, 2010, by and among Parent, Merger Sub, Dr. Patrick Soon-Shiong, California Capital LP, Patrick Soon-Shiong 2009 GRAT 1, Patrick Soon-Shiong 2009 GRAT 2, Michele B. Soon-Shiong GRAT 1, Michele B. Soon-Shiong GRAT 2, Soon-Shiong Community Property Revocable Trust, The Chan Soon-Shiong Family Foundation, California Capital Trust and Michele B. Chan Soon-Shiong (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by Parent on July 1 2010). | |
4 | Non-Competition, Non-Solicitation and Confidentiality Agreement, dated as of June 30, 2010, by and between Parent and Dr. Patrick Soon-Shiong (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by Parent on July 1, 2010). | |
5 | Stockholders’ Agreement, dated as of June 30, 2010, by and among Parent, Dr. Patrick Soon-Shiong, California Capital LP, Patrick Soon-Shiong 2009 GRAT 1, Patrick Soon-Shiong 2009 GRAT 2, Michele B. Chan Soon-Shiong GRAT 1, Michele B. Chan Soon-Shiong GRAT 2, Soon-Shiong Community Property Revocable Trust, California Capital Trust and Michele B. Chan Soon-Shiong (incorporated by reference to Exhibit 10.4 to the Current Report on Form 8-K filed by Parent on July 1, 2010) |
9
CUSIP No. | 00383Y102 |
Celgene Corporation | ||||
By: | /s/ David W. Gryska | |||
Name: | David W. Gryska | |||
Title: | Senior Vice President and Chief Financial Officer | |||
Artistry Acquisition Corp. | ||||
By: | /s/ Andre Van Hoek | |||
Name: | Andre Van Hoek | |||
Title: | President | |||
10
CUSIP No. | 00383Y102 |
Present Principal Occupation or Employment; | ||
Name | Material Positions Held During the Past Five Years | |
Sol J. Barer, Ph.D. | After the annual meeting of Celgene’s stockholders on June 16, 2010, Dr. Barer transitioned from Chief Executive Officer to Executive Chairman of the Board of Directors, a position he will hold until December 31, 2010. Prior to that, Dr. Barer served as Celgene’s Chief Executive Officer since May 1, 2006. Dr. Barer also served as Celgene’s President from October 1993 to May 1, 2006 and as Celgene’s Chief Operating Officer from March 1994 to May 1, 2006. Dr. Barer has served as the Chairman of the Board of Directors since January 2, 2007 and, since March 1994, has served as a director of Celgene. He is also the Chairman of the Executive Committee of the Board of Directors. Dr. Barer was Senior Vice President—Science and Technology and Vice President/General Manager—Chiral Products from October 1990 to October 1993 and Celgene’s Vice President—Technology from September 1987 to October 1990. Dr. Barer received a Ph.D. in organic chemistry from Rutgers University. Dr. Barer is also a director of Amicus Therapeutics and serves on the Board of Trustees of BioNJ and the Board of the Brooklyn College Foundation. Dr. Barer previously served as Commissioner of the New Jersey Commission on Science and Technology. | |
Robert J. Hugin | After the annual meeting of Celgene’s stockholders on June 16, 2010, Mr. Hugin became Celgene’s new Chief Executive Officer. Prior to that, Mr. Hugin served as Celgene’s Chief Operating Officer and President since May 1, 2006. He also served as Celgene’s Senior Vice President and Chief Financial Officer from June 1999 until May 1, 2006. Mr. Hugin has served as a director of Celgene since December 2001. Previously, Mr. Hugin had been a Managing Director at J.P. Morgan & Co. Inc., which he joined in 1985. Mr. Hugin received an A.B. degree from Princeton University and an M.B.A. from the University of Virginia. Mr. Hugin is also a director of The Medicines Company, Atlantic Health System, Inc., a non-profit health care system, and Family Promise, a national non-profit network assisting homeless families. | |
11
CUSIP No. | 00383Y102 |
Present Principal Occupation or Employment; | ||
Name | Material Positions Held During the Past Five Years | |
Michael D. Casey | Mr. Casey has served as a director of Celgene since August 2002, is Chairman of the Nominating Committee and a member of the Executive Committee (since December 2006) and the Management Compensation and Development Committee (since April 2006) of the Board of Directors. He became Celgene’s lead independent director in June 2007. Mr. Casey was a member of the Audit Committee from August 2002 through December 2006. From September 1997 to February 2002, Mr. Casey served as the Chairman, President, Chief Executive Officer and a director of Matrix Pharmaceutical, Inc. From November 1995 to September 1997, Mr. Casey was Executive Vice President at Schein Pharmaceutical, Inc. In December 1996, he was appointed President of the retail and specialty products division of Schein Pharmaceutical. From June 1993 to November 1995, he served as President and Chief Operating Officer of Genetic Therapy, Inc. Mr. Casey was President of McNeil Pharmaceutical (a unit of Johnson & Johnson) from 1989 to June 1993 and Vice President, Sales and Marketing for Ortho Pharmaceutical Corp. (a subsidiary of Johnson & Johnson) from 1985 to 1989. Mr. Casey is also a director of Durect Corp. and AVI BioPharma, and served as director of Allos Therapeutics, Inc. through January 2010. | |
Carrie S. Cox | Ms. Cox was elected to the Board of Directors of Celgene effective December 16, 2009 and is a member of the Audit Committee (since March 2010). Ms. Cox served as Executive Vice President and President of Schering-Plough’s Global Pharmaceutical Business until November 3, 2009 when Schering-Plough merged with Merck & Co., Inc. Prior to joining Schering-Plough, Ms. Cox served as President of Pharmacia Corporation’s pharmaceutical business until its merger with Pfizer Inc. in 2003. Ms. Cox is a member of the Board of Directors of Texas Instruments and has served on their audit and compensation committees, and has recently been appointed to the Board of Directors of Cardinal Health, Inc. Ms. Cox is also a member of the Harvard School of Public Health’s Health Policy and Management Executive Council and a member of the Board of Overseers of the University of Pennsylvania Museum of Archaeology and Anthropology. Ms. Cox is a graduate of the Massachusetts College of Pharmacy. | |
Rodman L. Drake | Mr. Drake has served as a director of Celgene since April 2006, is Chairman of the Compensation Committee since June 2007 and a member of the Nominating Committee of the Board of Directors. Since January 2002, Mr. Drake has been Managing Director of Baringo Capital LLC, a private equity group he co-founded. From November 1997 to January 2002, Mr. Drake was president of Continuation Investments Group Inc., a private equity firm. Prior to that, Mr. Drake was co-chairman of the KMR Power Company and Chief Executive Officer and Managing Director of Cresap McCormick and Paget, a leading management consulting firm, and served as President of the Mandrake Group, a consulting firm specializing in strategy and organizational design. He is a member of the boards of directors of The Student Loan Corporation, Jackson Hewitt Tax Service, Inc., Crystal River Capital, Inc. and The Animal Medical Center of New York. He is the Chairman of the Helios Funds and a Trustee of the Columbia Atlantic Funds. From 2007 to 2009, Mr. Drake served as a member of the board of directors of Golden Minerals Company, formerly Apex Silver Mines Limited. | |
Gilla Kaplan, Ph.D. | Dr. Kaplan has served as a director of Celgene since April 1998 and is a member of the Audit Committee of the Board of Directors. Dr. Kaplan is head of the Laboratory of Mycobacterial Immunity and Pathogenesis at The Public Health Research Institute Center at the University of Medicine and Dentistry of New Jersey in Newark, New Jersey, where she was appointed full Member in 2002. Dr. Kaplan also was appointed, in 2005, Professor of Medicine at the University of Medicine and Dentistry of New Jersey. Previously, Dr. Kaplan was an immunologist in the Laboratory at Cellular Physiology and Immunology at The Rockefeller University in New York where she was an Associate Professor. | |
12
CUSIP No. | 00383Y102 |
Present Principal Occupation or Employment; | ||
Name | Material Positions Held During the Past Five Years | |
James J. Loughlin | Mr. Loughlin has served as a director of Celgene since January 2007, is Chairman of the Audit Committee (since June 2008) and a member of the Compensation Committee (since June 2008) of the Board of Directors. Mr. Loughlin served as the National Director of the Pharmaceuticals Practice at KPMG LLP, including a five-year term as member of the Board of Directors of KPMG. Additionally, Mr. Loughlin served as Chairman of the Pension and Investment Committee of the KPMG Board from 1995 through 2001. He also served as Partner in charge of Human Resources, Chairman of the Personnel and Professional Development Committee, Secretary and Trustee of the Peat Marwick Foundation and a member of the Pension, Operating and Strategic Planning Committees. In addition, Mr. Loughlin served as a member of the Boards of Directors of Alfacell Corporation (until 2008) and Datascope Corp. (until January 2009). | |
Ernest Mario, Ph.D. | Dr. Mario has served as a director of Celgene since August 2007 and is a member of the Nominating Committee (since August 2007) and the Executive Committee (since June 2008) of the Board of Directors. Dr. Mario is a former Deputy Chairman and Chief Executive of Glaxo Holdings plc and a former Chairman and Chief Executive Officer of ALZA Corporation. Dr. Mario has been a Director of Boston Scientific since October 2001 and currently is the Lead Director of Pharmaceutical Product Development. From 2003 to 2007, he was Chairman and Chief Executive of Reliant Pharmaceuticals. Dr. Mario currently is the Chief Executive Officer and Chairman of Capnia, Inc., a privately held specialty pharmaceutical company in Palo Alto, CA. A former Trustee of Duke University, he serves on the Board of the Duke University Health System. He is Chairman of the American Foundation for Pharmaceutical Education and serves as an advisor to the pharmacy schools at the University of Rhode Island and The Ernest Mario School of Pharmacy at Rutgers University. Dr. Mario is the recipient of the 2007 Remington Honor Medal, which is the highest recognition given by the American Pharmacists Association. | |
Walter L. Robb, Ph.D. | Mr. Robb has served as a director of Celgene since 1992 and is a member of the Audit Committee of the Board of Directors. He has been a private consultant and President of Vantage Management Inc., a consulting and investor services company, since January 1993. Dr. Robb was Senior Vice President for Corporate Research and Development of General Electric Company, and a member of its Corporate Executive Council from 1986 to December 1992. Dr. Robb is Chairman of the Board of Directors of Capital District Sports. He also is a director of Mechanical Technology, Inc., a public company, and several private companies. |
13
CUSIP No. | 00383Y102 |
Present Principal Occupation or Employment; | ||
Name | Material Positions Held During the Past Five Years | |
Sol J. Barer, Ph.D. | See information provided above. | |
Robert J. Hugin | See information provided above. | |
David W. Gryska | David W. Gryska has served as Celgene’s Senior Vice President and Chief Financial Officer since joining the company in December of 2006. Prior to joining Celgene, he was a principal at Strategic Consulting Group, where he was responsible for investing and providing strategic consulting to earlier-stage biotechnology companies. From 1998 to 2004, he was Senior Vice President and Chief Financial Officer at SCIOS, Inc. From 1993 to 1998, he served as Vice President and Chief Financial Officer of Cardiac Pathways, a company later acquired by Boston Scientific Corporation. Prior to Cardiac Pathways, Mr. Gryska spent eleven years at Ernst & Young. He holds a B.A. in accounting and finance from Loyola University and an M.B.A. from Golden Gate University. Mr. Gryska also serves as a member of the board of directors of Seattle Genetics. | |
Aart Brouwer | Mr. Brouwer has served as Chairman International and Senior Advisor to Celgene’s Chairman and Chief Executive Officer since January 1, 2009. He joined Celgene in November 2005. | |
Graham Burton, MBBS, FRCP | Mr. Burton has served as Senior Vice President Global Regulatory Affairs, Pharmacovigilance, Corporate Quality and Compliance since July 1, 2003. He joined Celgene in July 2003. |
14
CUSIP No. | 00383Y102 |
Present Principal Occupation or Employment; | ||
Name | Material Positions Held During the Past Five Years | |
Andre Van Hoek | Mr. Hoek has been a director of Artistry Acquisition Corp. since June 24, 2010 and serves as its President. | |
Sandesh Mahatme | Mr. Mahatme has been a director of Artistry Acquisition Corp. since June 24, 2010 and serves as its Treasurer and Secretary. | |
Wayne Folkart | Mr. Folkart has been a director of Artistry Acquisition Corp. since June 24, 2010. |
15