Mgi Pharma Inc - Amended Statement of Ownership: Solicitation (SC 14D9/A)
18 January 2008 - 6:47AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 3)
SOLICITATION/RECOMMENDATION STATEMENT UNDER
SECTION 14(d)(4) OF THE SECURITIES EXCHANGE
ACT OF 1934
MGI
PHARMA, INC.
(Name of Subject Company)
MGI
PHARMA, INC.
(Name of Persons Filing Statement)
Common Stock, Par Value $0.01 per share
(including
the associated preferred stock purchase rights)
(Title of Class of Securities)
552880106
(CUSIP Number of Class of Securities)
E
ric P. Loukas
Executive
Vice President, Chief Operating Officer,
General
Counsel and Corporate Secretary
MGI
PHARMA, INC.
5775
West Old Shakopee Road, Suite 100
Bloomington,
Minnesota 55437-3174
(952) 346-4700
(Name, address
and telephone numbers of person authorized to receive notice and
communications
on behalf of the persons filing statement)
Copies to:
Asher M. Rubin
Glenn
C. Campbell
William
I. Intner
Hogan &
Hartson L.L.P.
111 S. Calvert Street Suite 1600
Baltimore,
Maryland 21202
(410) 659-2700
o
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Check the box if the
filing relates solely to preliminary communications made before the
commencement of a tender offer.
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This Amendment No. 3 amends and supplements the
Solicitation/Recommendation Statement on Schedule 14D-9 filed on December 21,
2007 (as previously amended and supplemented by Amendment No. 1 on January 4,
2008 and Amendment No. 2 on January 11, 2008, the Schedule 14D-9)
with the Securities and Exchange Commission (the SEC) by MGI PHARMA, INC., a
Minnesota corporation (the Company).
The Schedule 14D-9 relates to the offer by Jaguar Acquisition Corp. (Offeror),
a Minnesota corporation and an indirect wholly-owned subsidiary of Eisai Co.,
Ltd., a corporation organized under the laws of Japan (Parent), to purchase
all of the issued and outstanding shares of common stock, par value $0.01 per
share, of the Company (including the associated rights to purchase Series A
Junior Participating Preferred Stock of the Company, the Shares) at a
purchase price of $41.00 per Share, net to the holder thereof in cash, without
interest and subject to the applicable withholding of taxes, upon the terms and
subject to the conditions set forth in the Offer to Purchase dated December 21,
2007, as amended or supplemented from time to time, and the related Letter of
Transmittal.
Except as otherwise indicated, the information set
forth in the Schedule 14D-9 remains unchanged.
Capitalized terms used, but not defined, in this Amendment No. 3
have the meanings ascribed to them in the Schedule 14D-9.
Item 8.
Additional Information.
Item
8 is hereby amended and supplemented to add the following paragraph as the last
paragraph under the heading Antitrust:
On Wednesday, January 16, 2008, the Federal
Trade Commission granted early termination of the statutory waiting period
under the HSR Act applicable to the Offer. The grant of early termination of
the waiting period satisfies one of the conditions of the Offer.
Item 9. Exhibits.
Item 9 of the Schedule 14D-9 is
hereby amended and supplemented as follows:
Exhibit No.
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Description
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(a)(1)(A)
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Offer to Purchase,
dated December 21, 2007 (incorporated by reference to Exhibit (a)(1) to
the
Schedule TO).
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(a)(1)(B)
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Letter of Transmittal
(including Guidelines for Certification of Taxpayer Identification Number
(TIN) on Substitute Form W-9) (incorporated by reference to Exhibit (a)(2) to
the Schedule TO).
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(a)(1)(C)
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Notice of Guaranteed
Delivery (incorporated by reference to Exhibit (a)(3) to the Schedule TO).
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(a)(1)(D)
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Letter to Brokers, Dealers,
Commercial Banks, Trust Companies and Other Nominees (incorporated
by reference to Exhibit (a)(4) to the Schedule TO).
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(a)(1)(E)
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Letter to Clients for
use by Brokers, Dealers, Commercial Banks, Trust Companies and
Other Nominees (incorporated by reference to Exhibit (a)(5) to the Schedule
TO).
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(a)(1)(F)
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Press Release issued by
Company on November 29, 2007 announcing that it was exploring possible
strategic alternatives.*
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(a)(1)(G)
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Press Release issued by
Parent and the Company on December 10, 2007 (incorporated by reference
to Exhibit 99.1 to the Company's Current Report on Form 8-K filed on December
11, 2007).
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(a)(1)(H)
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Information Statement
Pursuant to Section 14(f) of the Securities Exchange Act of 1934 and Rule
14f-1 thereunder (incorporated by reference to Annex I attached to the
Schedule 14D-9).*
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(a)(1)(I)
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MGI PHARMA, INC.
Employment and Benefit Q&As.*
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(a)(1)(J)
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Press Release issued by
the Company and Parent on January 17, 2008 announcing the early
termination of the waiting period under the HSR Act.**
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(a)(2)
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Letter to Shareholders
from the President and Chief Executive Officer of MGI PHARMA, INC.,
dated December 21, 2007.*
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(a)(5)(A)
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Opinion of Lehman
Brothers, Inc. to the Board of Directors of MGI PHARMA, INC., dated
December 10, 2007 (incorporated by reference to Annex II attached to the
Schedule 14D-9).*
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(a)(5)(B)
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Complaint filed by L.A.
Murphy in the Fourth Judicial District Court of the State of Minnesota,
County of Hennepin, on December 14, 2007.*
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(a)(5)(C)
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Complaint filed by
Judith Dreyer in the Fourth Judicial District Court of the State of
Minnesota,
County of Hennepin, on December 28, 2007.*
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(e)(1)
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Agreement and Plan of
Merger, dated December 10, 2007, between MGI PHARMA, INC., a
Minnesota corporation, Eisai Co., Ltd., a Japan corporation, and Jaguar
Acquisition Corp., a
Minnesota corporation (incorporated by reference to Exhibit 2.1 to the
Company's Current Report on
Form 8-K filed on December 11, 2007).
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(e)(2)
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Form of Termination
Agreement, between MGI PHARMA, INC. and each of its Executive Officers
(incorporated by reference to Exhibit 10.1 to the Companys Quarterly Report
on Form 10-Q for the
period ended March 31, 2007).
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(e)(3)
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Retention Agreement,
dated December 15, 2007, between Leon O. Moulder, Jr. and Eisai
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2
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Corporation of North
America.*
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(e)(4)
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Retention Agreement,
dated December 15, 2007, between Mary Lynne Hedley and Eisai
Corporation of North America.*
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(e)(5)
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Confidentiality
Agreement, dated September 27, 2007, between MGI PHARMA, INC. and
Eisai
Co., Ltd.*
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(e)(6)
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Amendment No. 2 to
Rights Agreement, dated December 20, 2007, to the Rights Agreement,
dated
July 14, 1998, between the Company and Norwest Bank, Minnesota, N.A.
(now Wells Fargo Bank,
N.A.).*
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*
Previously filed.
** Filed herewith
3
SIGNATURE
After
due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
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MGI PHARMA, INC.
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Date: January 17, 2008
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By:
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/s/ Eric P.
Loukas
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Name:
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Eric P. Loukas
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Title:
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Executive
Vice President, Chief Operating
Officer, General
Counsel and Corporate Secretary
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