Mgi Pharma Inc - Amended Statement of Ownership: Solicitation (SC 14D9/A)
24 January 2008 - 2:47AM
Edgar (US Regulatory)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
(Amendment No. 5)
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
Check the box if
the filing relates solely to preliminary communications made before the
commencement of a tender offer.
This
Amendment No. 5 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 ,
Amendment No. 2 on January 11, 2008, Amendment No. 3 on January 17,
2008, and Amendment No. 4 on January 22, 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. 5 have the meanings ascribed to them in
the Schedule 14D-9.
Item 8. Additional Information.
Item 8 is hereby amended and supplemented with the
addition of the following subsection at the end of Item 8:
Commencement of Subsequent
Offering Period.
The initial period of the Offer expired at midnight,
New York City time, on Tuesday, January 22, 2008. Prior to the expiration of the Offer, all
conditions to the Offer, including the expiration or termination of the waiting
period under the HSR Act, were satisfied.
According to Computershare Trust Company, N.A., the
depositary for the Offer, as of midnight, New York City time, on Tuesday, January 22,
2008, 78,363,716 Shares (including 18,933,563 Shares that were
tendered pursuant to guaranteed delivery procedures) were validly tendered and
not withdrawn prior to the expiration of the Offer. Offeror has accepted
all validly tendered and not withdrawn Shares for payment. As a result,
Offeror has acquired approximately 72.9% of the issued and outstanding Shares as
of the close of business on January 22, 2008 (excluding Shares tendered
pursuant to guaranteed delivery procedures).
Based on the Offer Price, the value of such Shares purchased by Offeror
during the initial offer period was approximately $2.44 billion (excluding
Shares tendered pursuant to guaranteed delivery procedures). According to the Offer to Purchase, Parent
will provide Offeror with sufficient funds to purchase all Shares validly
tendered in the Offer and not withdrawn and will provide funding for the
Merger.
On January 23, 2008, Parent announced the results
of the Offer and that Offeror had commenced a subsequent offering period for
all remaining untendered Shares (the Subsequent Offering Period), which will
expire at midnight, New York City time, on Friday, January 25,
2008. During the Subsequent
Offering Period, holders of Shares who did not previously tender their Shares
into the Offer may do so and will promptly receive the same purchase price to
be paid pursuant to the Offer of $41.00 per Share, net to the holder of such
Shares in cash, without interest and subject to the applicable withholding of
taxes. The procedures for accepting the Offer and tendering Shares during
the Subsequent Offering Period are the same as those described for the Offer in
the Offer to Purchase and related documents, except that (i) the
guaranteed delivery procedures may not be used during the Subsequent Offering
Period and (ii) pursuant to Rule 14d-7(a)(2) promulgated under
the Securities Exchange Act of 1934, as amended, Shares tendered during the Subsequent
Offering Period may not be withdrawn.. A
copy of the press release of Parent announcing the results of the initial Offer
and the Subsequent Offering Period is filed as Exhibit (a)(1)(K) to
this Amendment No. 5 and is incorporated in this Amendment No. 5 by
reference.
1
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 Companys 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)(1)(K)
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Press Release
issued by Parent on January 23, 2008 (incorporated by reference to
Exhibit (a)(5)(F) to the Schedule T-O/A filed on January 23, 2008).
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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
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2
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Minnesota
corporation, Eisai Co., Ltd., a Japan corporation, and Jaguar Acquisition Corp.,
a Minnesota corporation (incorporated by reference to Exhibit 2.1 to the
Companys 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 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,
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N.A.).*
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*
Previously
filed.
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 23, 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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4
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