Securities Registration: Employee Benefit Plan (s-8)
March 06 2018 - 5:02PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on March 6, 2018
Registration No. 333-[ ]
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Celgene Corporation
(Exact name of registrant as specified
in its charter)
Delaware
(State or other jurisdiction of
Incorporation or Organization)
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22-2711928
(I.R.S. Employer
Identification No.)
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86 Morris Avenue, Summit, New Jersey
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07901
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(Address of principal executive offices)
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(Zip Code)
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Juno Therapeutics, Inc.
2014
Equity Incentive Plan
(now
named the “Celgene Corporation 2014 Equity Incentive Plan”)
(Full title of the plan)
Mark J. Alles
Chief Executive Officer
Celgene Corporation
86 Morris Avenue
Summit, New Jersey 07901
(908) 673-9000
(Name, Address and Telephone
number, including area code, of Agent for Service)
Robert A. Cantone, Esq.
Proskauer Rose LLP
Eleven Times Square
New York, NY 10036
(212) 969-3000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer,
a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the
Exchange Act.
Large accelerated filer
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x
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Accelerated filer
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¨
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Non-accelerated filer
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¨
(Do
not check if a smaller reporting company)
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Smaller reporting company
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¨
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Emerging growth company
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¨
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If an emerging growth company, indicate by
check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
¨
CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
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Amount
to be
Registered (1)
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Proposed
Maximum
Offering Price
per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Juno Therapeutics, Inc. 2014 Equity Incentive Plan (renamed the Celgene Corporation 2014 Equity Incentive Plan) (2)
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In respect of assumed stock options:
Common Stock, par value $0.01 per share
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3,674,201 shares
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$34.01 (3)
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$124,959,576.01
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$15,557.47
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In respect of assumed restricted stock units:
Common Stock, par value $0.01 per share
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2,658,722
shares
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$88.21(4)
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$234,525,867.62
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$29,198.47
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In respect of assumed restricted stock awards:
Common Stock, par value $0.01 per share
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149,714
shares
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$88.21(4)
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$13,206,271.94
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$1,644.18
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In respect of available share reserve:
Common Stock, par value $0.01 per share
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13,920,747
shares(5)
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$88.21(6)
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$1,227,949,092.87
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$152,879.66
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TOTAL
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20,403,384 shares
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$1,600,640,808.44
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$199,279.78
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement
shall also cover any additional shares of the Registrant’s Common Stock that become issuable under the Juno Therapeutics,
Inc. 2014 Equity Incentive Plan (the “2014 Plan”) by reason of any stock split, stock dividend, recapitalization or
other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number
of the Registrant’s outstanding shares of Common Stock.
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(2)
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Shares of common stock outstanding under options issued and assumed under the 2014 Plan that are subsequently forfeited, terminated,
or expire without the shares having been issued pursuant to the exercise of such options are recycled and returned to the share
reserve of the 2014 Plan, subject to the terms and conditions of the 2014 Plan. Shares of common stock underlying restricted stock
units and restricted stock awards that are subsequently forfeited or terminated are recycled and returned to the share reserve
of the 2014 Plan, subject to the terms and conditions of the 2014 Plan.
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(3)
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Computed in accordance with Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration
fee. Computation based on the weighted average per share exercise price (rounded to nearest cent) in the case of outstanding options
under the 2014 Plan. The Registrant has assumed the shares of Common Stock outstanding under options issued and assumed under the
2014 Plan pursuant to the Merger Agreement (as defined below).
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(4)
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Estimated solely for the purpose of computing the amount of registration fee pursuant to Rules 457(c) and 457(h) under the
Securities Act, based on the average of the high and low prices of Registrant’s Common Stock as reported on the Nasdaq Global
Select Market on March 1, 2018. The Registrant has assumed the restricted stock unit awards and restricted stock awards issued
under the 2014 Plan pursuant to the Merger Agreement (as defined below).
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(5)
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The Registrant has assumed the shares of Common Stock available for issuance under the
2014 Plan pursuant to the Merger Agreement (as defined below).
This amount also includes recycled shares of common stock outstanding pursuant to
options that were vested and cashed out (without any shares having been issued) upon the closing of the transactions
contemplated under
the Merger
Agreement (as
defined below).
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(6)
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Estimated
solely for the purpose of computing the amount of registration fee pursuant to Rules
457(c) and 457(h) under the Securities Act, based on the average of the high and low
prices of Registrant’s Common Stock as reported on the Nasdaq Global Select Market
on March 1, 2018.
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EXPLANATORY
NOTE
On
January 21, 2018, Celgene Corporation, a Delaware corporation (the “Registrant” or “Celgene”), entered
into an Agreement and Plan of Merger (the “Merger Agreement”) with Juno Therapeutics, Inc., a Delaware corporation
(“Juno”), and Blue Magpie Corporation, a Delaware corporation and a wholly-owned subsidiary of Celgene (“Purchaser”),
pursuant to which, among other things, subject to the terms and conditions of the Merger Agreement, Purchaser commenced a tender
offer (the “Offer”) for all of the outstanding shares of common stock of Juno, par value $0.0001 per share
(the “Juno Shares”), at a purchase price of $87.00 per Juno Share, net to the seller in cash, subject to reduction
for any applicable withholding taxes (the “Offer Price”). Following the completion of the Offer, on March 6, 2018
,
pursuant to the terms of the Merger Agreement, Purchaser merged with and into Juno, with Juno surviving as a wholly-owned subsidiary
of Celgene.
In
accordance with the terms of the Merger Agreement, the Registrant assumed the 2014 Plan (including certain shares of common stock,
and options and other equity awards to purchase common stock available and outstanding under the 2014 Plan) as set forth on the
cover page hereto.
The
Registrant files this Registration Statement on Form S-8 relating to its shares of Common Stock issuable pursuant to the 2014 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
The documents containing
the information specified in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1) under
the Securities Act. In accordance with the rules and regulations of the U.S. Securities and Exchange Commission
(the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. These documents and the documents incorporated by reference into this Registration Statement pursuant to
Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of
the Securities Act.
PART II
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Item 3.
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Incorporation of Documents by Reference
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The following documents filed by Celgene
with the Commission are incorporated by reference into this Registration Statement:
(a)
the
Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on February
7, 2018.
(b) the
Registrant’s Current Reports on Form 8-K filed with the Commission on January 8, 2018 (first filing), January 22, 2018 (second
filing), January 26, 2018, January 29, 2018, February 5, 2018, February 7, 2018, February 8, 2018, February 9, 2018, February 14,
2018, February 15, 2018, February 20, 2018, February 27, 2018 and March 6, 2018, in each case, solely to the extent filed and not
furnished.
(c)
the
description of the Registrant’s Common Stock contained in the Registrant’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 filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the effective date of
this Registration Statement, prior to the filing of a post-effective amendment to this Registration Statement indicating that all
securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated
by reference herein and to be part hereof from the date of filing of such documents. In no event, however, will any information
that the Registrant discloses under Item 2.02 or Item 7.01 of any Current Report on Form 8-K that the Registrant may from time
to time furnish to the Commission be incorporated by reference into, or otherwise become a part of, this Registration Statement.
Any statement contained in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for 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 such
statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified
or superseded.
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Item 4.
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Description of Securities
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Not Applicable.
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Item 5.
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Interests of Named
Experts And Counsel
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Not
Applicable.
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Item 6.
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Indemnification of Directors and Officers
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Celgene is a Delaware corporation. Reference
is made to Section 102(b)(7) of the General Corporation Law of the State of Delaware (the “DGCL”), which enables a
corporation in its original certificate of incorporation or an amendment to eliminate or limit the personal liability of a director
for violations of the director’s fiduciary duty, except:
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·
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for any breach of the director’s duty of loyalty to the corporation or its stockholders;
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·
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for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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·
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pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock
purchases or redemptions); or
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·
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for any transaction from which a director derived an improper personal benefit.
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Reference is also made to Section 145 of
the DGCL, which provides that a corporation may indemnify any persons, including officers and directors, who are, or are threatened
to be made, parties to any threatened, pending or completed legal action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was
a director, officer, employee or agent of such corporation or is or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided such director, officer, employee or agent acted in good faith and in a manner the person 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 reasonable cause to believe that the person’s conduct was unlawful. A Delaware corporation may indemnify officers
and directors in an action by or in the right of the corporation under the same conditions, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director
is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against
the expenses that such officer or director actually and reasonably incurred. The indemnification permitted under the DGCL is not
exclusive, and a corporation is empowered to purchase and maintain insurance against liabilities, whether or not indemnification
would be permitted by statute.
Celgene’s certificate of incorporation
provides that no
director of Celgene shall be liable to it or any of its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach
of the director's duty of loyalty to Celgene 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 DGCL, or (iv) for any transaction from which
the director derived an improper personal benefit.
Celgene’s certificate of incorporation provides for indemnification
of its directors and officers to the full extent then permitted by law against expenses (including attorneys' fees), judgments,
fines (including excise taxes assessed on a person with respect to an employee benefit plan), and amounts paid in settlement incurred
by such person in connection with such action, suit, or proceeding. Celgene has entered into indemnity agreements with each of
its directors and executive officers. In addition, Celgene maintains liability insurance for its directors and officers.
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Item 7.
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Exemption from
Registration Claimed
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Not
applicable.
Exhibit
Number
________________
*Filed herewith.
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1.
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The undersigned registrant hereby undertakes:
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(a)
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To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration statement:
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(i)
To include any prospectus required by section 10(a)(3) of the Securities Act;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(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)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the
Exchange Act that are incorporated by reference in the registration statement.
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(b)
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That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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(c)
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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.
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(d)
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That, for the purpose of determining liability of
the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser
by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
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(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
2.
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each
filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
3.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final adjudication of such issue.
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 Summit, State of New Jersey, on March 6, 2018.
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celgene Corporation
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By:
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/s/ Mark J. Alles
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Mark J. Alles
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Chairman of the Board and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY
THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Mark J. Alles, with full
power of substitution and resubstitution, his or her true and lawful attorney-in fact and agent, with full powers to sign for us,
in our names and in the capacities indicated below, this Registration Statement on Form S-8 and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and any and all amendments to
said Registration Statement (including post-effective amendments), granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as each of us might or could do in person, and hereby ratifying and confirming all that said attorney-in-fact
and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue of this Power of Attorney. This Power
of Attorney may be executed in counterparts.
Pursuant to the requirements
of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities
and on the date indicated.
Signature
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Title
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Date
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By:
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/s/ Mark J. Alles
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Chairman of the Board and Chief
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March 6, 2018
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Mark J. Alles
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Executive Officer (Principal
Executive Officer)
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By:
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/s/ Peter N. Kellogg
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Executive Vice President and Chief Financial Officer
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March 6, 2018
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Peter N. Kellogg
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(Principal Financial Officer and Principal Accounting Officer)
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By:
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/s/ Richard W. Barker
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Director
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March 6, 2018
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Richard W. Barker, D.Phil., OBE
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By:
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Director
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Michael W. Bonney
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By:
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Director
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Michael D. Casey
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By:
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/s/ Carrie S. Cox
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Director
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March 6, 2018
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Carrie S. Cox
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By:
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/s/ Michael A. Friedman
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Director
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March 6, 2018
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Michael A. Friedman, M.D.
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By:
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/s/ Julia A. Haller
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Director
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March 6, 2018
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Julia A. Haller, M.D.
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By:
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/s/ Gilla Kaplan
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Director
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March 6, 2018
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Gilla Kaplan, Ph.D.
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By:
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/s/ James J. Loughlin
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Director
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March 6, 2018
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James J. Loughlin
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By:
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/s/ Ernest Mario
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Director
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March 6, 2018
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Ernest Mario, Ph.D.
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By:
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/s/ John H. Weiland
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Director
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March 6, 2018
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John. H. Weiland
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EXHIBIT INDEX
Exhibit
Number
*Filed herewith.
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