EXHIBIT 4.1
AMENDMENT NUMBER TWO
TO THE
RIGHTS AGREEMENT DATED AS OF SEPTEMBER 16, 1996
BETWEEN CELGENE CORPORATION AND
AMERICAN STOCK TRANSFER & TRUST COMPANY, AS RIGHTS AGENT
Reference is made to the Rights Agreement dated as of September 16, 1996 between
Celgene Corporation (the "Corporation") and American Stock Transfer & Trust
Company, as Rights Agent, as thereafter amended (the "Rights Agreement").
Capitalized terms not otherwise defined herein shall have the meaning ascribed
thereto in the Rights Agreement.
1. Section 1 of the Rights Agreement is hereby amended to include
the following new definition in the appropriate alphabetical position, with the
subsequent definitions being appropriately re-lettered and cross-references
thereto being appropriately revised:
"Institutional Investor" shall mean, as of any time of
determination, a Person that is described in Rule 13d-1(b)(1) promulgated under
the Exchange Act (as such rule is in effect on the date hereof) and that is
principally engaged in the business of managing investment funds for
unaffiliated securities investors having an aggregate value of at least $10
billion.
2. Section 1(a) of the Rights Agreement is hereby deleted in its
entirety and restated to read as follows:
(a) "Acquiring Person" shall mean any Person who or that,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the then outstanding Common Shares (other
than as a result of a Permitted Offer (as hereinafter defined)) or was such a
Beneficial Owner at any time after the date hereof, whether or not such Person
continues to be the Beneficial Owner of 15% or more of the then outstanding
Common Shares. Notwithstanding the foregoing, (A) the term "Acquiring Person"
shall not include (i) the Corporation, (ii) any Subsidiary of the Corporation,
(iii) any employee benefit plan of the Corporation or of any Subsidiary of the
Corporation, (iv) any Person or entity organized, appointed or established by
the Corporation for or pursuant to the terms of any such plan, or (v) any Person
that is an Institutional Investor, but only so long as (1) such Institutional
Investor shall be the Beneficial Owner of less than 17% of the then outstanding
Common Shares (other than as a result of a Permitted Offer) and (2) such
Institutional Investor is eligible to report (and does in fact report) such
ownership on Schedule 13G under the Exchange Act, and is not required to file a
Schedule 13D under the Exchange Act (or any comparable or successor report)
which Schedule 13D would state a present intention to hold such Common Shares
with the purpose or effect of changing or influencing the control of the
Corporation, or in connection with or as a participant in any transaction having
such purpose or effect, and (B) no Person shall become an "Acquiring Person":
(i) as a result of the acquisition of Common Shares
by the Corporation which, by reducing the number of Common Shares outstanding ,
increases the proportional number of shares beneficially owned by such Person
together with all Affiliates and Associates of such Person; provided that if (1)
a Person would be or become an Acquiring Person (but for
the operation of this subclause (i)) as a result of the acquisition of Common
Shares by the Corporation, and (2) after such share acquisition by the
Corporation, such Person, or an Affiliate or Associate of such Person, becomes
the Beneficial Owner of any additional Common Shares, then such Person shall be
deemed an Acquiring Person; or
(ii) if the Board of Directors determines in good
faith that a Person who would otherwise be an "Acquiring Person" has become such
inadvertently, and such Person (1) does not attempt to exercise any control over
the business affairs or management of the Corporation, including by means of a
proxy solicitation, and (2) divests as promptly as practicable a sufficient
number of Common Shares so that such Person would no longer be an "Acquiring
Person," then such Person shall not be deemed an "Acquiring Person" for any
purposes of this Agreement.
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Except as amended hereby, the Rights Agreement shall continue in full force and
effect.
Dated as of August 13, 2003
CELGENE CORPORATION
By:
/s/ Robert J. Hugin
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Name: Robert J. Hugin
Title: Chief Financial Officer and Secretary
Countersigned:
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Michael Kafunkel
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Name: Michael Kafunkel
Title: President
OFFICER'S CERTIFICATE
OF
CELGENE CORPORATION
Referring to Section 27 of the Rights Agreement dated as of September
16, 1996, as thereafter amended, between Celgene Corporation and American Stock
Transfer & Trust Company, as Rights Agent (the "Rights Agreement"), the
undersigned does hereby certify that Amendment Number Two to the Rights
Agreement is in compliance with the terms of Section 27 of the Rights Agreement.
IN WITNESS WHEREOF, the undersigned has signed his name this 13th day
of August, 2003.
By: /s/ Robert J. Hugin
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Name: Robert J. Hugin
Title: Chief Financial Officer and
Secretary