Mgi Pharma Inc - Tender offer statement by Third Party (SC TO-T)
21 Dicembre 2007 - 5:08PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE
TO
(RULE 14d-100)
Tender Offer Statement
Under Section 14(d)(1) or Section 13(e)(1) of
the Securities Exchange
Act of 1934
MGI
PHARMA, INC.
(Name of Subject Company
(Issuer))
JAGUAR
ACQUISITION CORP.
a
wholly owned subsidiary of
EISAI
CORPORATION OF NORTH AMERICA
a
wholly owned subsidiary of
EISAI
CO., LTD.
(Name of Filing Persons
(Offeror))
Common
Stock, Par Value $0.01 per share,
and associated preferred share
purchase rights
(Title of Class of
Securities)
552880-10-6
(CUSIP Number of Class of
Securities)
Douglas
Snyder, Esq.
Jaguar
Acquisition Corp.
100 Tice Boulevard
Woodcliff Lake, NJ 07677
(201) 692-1100
(Name, address and
telephone number of person authorized
to receive notices and
communications on behalf of filing persons)
with
copies to:
George J. Sampas, Esq.
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
(212) 558-4000
CALCULATION OF FILING FEE
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Transaction Valuation
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Amount of Filing Fee*
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$3,331,989,763
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$102,292.09
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*
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Estimated for
purposes of calculating the amount of the filing fee only. This calculation assumes the purchase of
81,268,043 outstanding shares of common stock, par value $0.01 per share,
including, if any, the associated preferred share purchase rights issued
under the Rights Agreement, dated as of July 14, 1998, as amended,
between MGI PHARMA, INC. and Wells Fargo Bank, N.A. (formerly
Norwest Bank Minnesota, N.A.), as rights agent, at a price of $41.00 per
share. The calculation of the filing fee is based on MGI PHARMA, INC.’s
representation of its capitalization as of November 30, 2007. The filing fee, calculated in accordance
with Exchange Act Rule 0-11(d), was calculated by multiplying the transaction
value by 0.0000307.
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o
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Check the box if any part of the fee is offset as
provided by Rule 0-11(a)(2) and identify the filing with which the
offsetting fee was previously paid.
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Identify the previous filing by registration
statement number or the Form or Schedule and the date of its filing.
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Amount Previously Paid:
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N/A
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Form or Registration No.:
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N/A
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Filing Party:
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N/A
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Date Filed:
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N/A
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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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Check the appropriate boxes below to designate any
transactions to which the statement relates:
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x
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third-party tender offer subject to Rule 14d-1.
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o
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issuer tender offer subject to Rule 13e-4.
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o
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going-private transaction subject to Rule 13e-3.
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o
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amendment to Schedule 13D under Rule 13d-2.
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Check the following box if the filing is a final
amendment reporting the results of the tender offer:
o
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This Tender Offer
Statement on Schedule TO (this “Statement”) relates to the offer by Jaguar
Acquisition Corp., a Minnesota corporation (“Purchaser”) and a wholly owned
subsidiary of Eisai Corporation of North America, a Delaware corporation (“Eisai
US”), which is a wholly owned subsidiary of Eisai Co., Ltd., a corporation organized
under the laws of Japan (“Parent”), to purchase all of the outstanding shares
of common stock, par value $0.01 per share, including the associated preferred share
purchase rights (the “Rights”) issued under the Rights Agreement, dated July 14,
1998, as amended, between MGI PHARMA, INC., a Minnesota corporation (the
“Company”), and Wells Fargo Bank, N.A. (formerly Norwest Bank Minnesota Bank,
N.A.), as rights agent, (such Rights, together with the shares of the Company’s
common stock, the “Shares”), of the Company, at a price of $41.00 per Share in
cash, net to the seller, without interest and subject to applicable withholding
of taxes, upon the terms and subject to the conditions set forth in the Offer
to Purchase, dated December 21, 2007 (the “Offer to Purchase”), a copy of
which is attached hereto as Exhibit (a)(1)(A), and the related letter of transmittal
and instructions thereto, a copy of which is attached hereto as Exhibit (a)(1)(B),
as they may be amended or supplemented from time to time. This Statement is being
filed on behalf of Purchaser, Eisai US and Parent.
Pursuant to General
Instruction F to Schedule TO, the information contained in the Offer to
Purchase, including all schedules and annexes thereto, is hereby expressly
incorporated herein by reference in response to Items 1 through 11 of this
Statement and is supplemented by the information specifically provided herein.
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Item
1.
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Summary
Term Sheet.
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The information set
forth in the section of the Offer to Purchase entitled “Summary Term Sheet”
is incorporated herein by reference.
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Item
2.
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Subject
Company Information.
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(a)
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The name of the subject
company and issuer of the securities sought to be purchased in the offer is
MGI PHARMA, INC., a Minnesota corporation. MGI PHARMA, INC.’s
principal executive offices are located at 775 West Old Shakopee Road,
Suite 100, Bloomington, Minnesota 55437-3174. The telephone number at
MGI PHARMA, INC.’s principal executive offices is (952) 346-4700.
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(b)
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This Statement relates
to the common stock, par value $0.01 per share, of MGI PHARMA, INC.
Based upon the information provided by MGI PHARMA, INC., there were
81,268,043 shares of the common stock issued and outstanding as of
November 30, 2007. The information set forth in the “Introduction” of
the Offer to Purchase is incorporated herein by reference.
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(c)
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The information set
forth in Section 6—“Price Range of Shares; Dividends” of the Offer to
Purchase is incorporated herein by reference.
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Item
3.
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Identity
and Background of the Filing Person.
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(a), (b), (c)
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This Statement is being
filed by Parent, Eisai US and Purchaser. The information set forth in
Section 9—“Certain Information Concerning Parent, Eisai US and
Purchaser” of the Offer to Purchase and in Schedule A to the Offer to
Purchase is incorporated herein by reference.
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Item
4.
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Terms
of the Transaction.
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(a)(1)(i)-(v)
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The information set
forth in the “Introduction,” “Summary Term Sheet” and Section 1—“Terms
of the Offer” of the Offer to Purchase is incorporated herein by reference.
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(a)(1)(vi)-(vii)
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The information set
forth in Sections 3—“Procedure for Tendering Shares” and 4—“Withdrawal
Rights” of the Offer to Purchase is incorporated herein by reference.
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(a)(1)(viii)
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The information set
forth in Sections 1—“Terms of the Offer” and 2—“Acceptance for Payment and
Payment for Shares” of the Offer to Purchase is incorporated herein by
reference.
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2
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(a)(1)(ix)
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Not applicable.
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(a)(1)(x)
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The information set
forth in Section 7—“Certain Effects of the Offer on the Market for
Shares; Margin Regulation; Exchange Act Registration” of the Offer to
Purchase is incorporated herein by reference.
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(a)(1)(xi)
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Not applicable.
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(a)(1)(xii)
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The information set
forth in Section 5—“Certain Federal Income Tax Consequences of the Offer
and the Merger” of the Offer to Purchase is incorporated herein by reference.
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Item
5.
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Past
Contacts, Transactions, Negotiations and Agreements.
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(a), (b)
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The information set
forth in Sections 9—“Certain Information Concerning Parent, Eisai US and
Purchaser,” 10—“Background of the Offer; Contacts with the Company” and 11—“Purpose
of the Offer and Plans for the Company; the Merger Agreement; Other
Agreements” of the Offer to Purchase is incorporated herein by reference.
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Item
6.
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Purpose
of the Tender Offer and Plans or Proposals.
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(a), (c)(1)-(7)
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The information set
forth in the “Introduction” and in Sections 7—“Certain Effects of the Offer
on the Market for Shares; Margin Regulation; Exchange Act Registration” and
11—“Purpose of the Offer and Plans for the Company; the Merger Agreement;
Other Agreements” of the Offer to Purchase is incorporated herein by
reference.
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Item
7.
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Source
and Amount of Funds or Other Consideration.
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(a), (b), (d)
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The information set forth
in Section 12—“Source and Amount of Funds” of the Offer to Purchase is
incorporated herein by reference.
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Item
8.
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Interest
in Securities of the Subject Company.
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(a), (b)
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The information set
forth in Sections 9—“Certain Information Concerning Parent, Eisai US and
Purchaser,” 10—“Background of the Offer; Contacts with the Company,” 11—“Purpose
of the Offer and Plans for the Company; the Merger Agreement; Other
Agreements” and in Schedule A of the Offer to Purchase is incorporated herein
by reference.
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Item
9.
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Persons/Assets,
Retained, Employed, Compensated or Used.
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(a)
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The information set
forth in Section 16—“Fees and Expenses” of the Offer to Purchase is
incorporated herein by reference.
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Item
10.
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Financial
Statements.
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Not applicable.
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Item
11.
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Additional
Information.
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(a)(1)
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The information set
forth in Sections 10—“Background of the Offer; Contacts with the Company” and
11—“Purpose of the Offer and Plans for the Company; the Merger Agreement;
Other Agreements” of the Offer to Purchase is incorporated herein by
reference.
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(a)(2)-(3)
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The information set
forth in Sections 15—“Certain Legal Matters” and 17—“Miscellaneous” of the
Offer to Purchase is incorporated herein by reference.
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3
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(a)(4)
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The information set
forth Section 7—“Certain Effects of the Offer on the Market for Shares;
Margin Regulation; Exchange Act Registration” of the Offer to Purchase is
incorporated herein by reference.
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(a)(5)
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The information set
forth in Section 15—“Certain Legal Matters” of the Offer to Purchase is
incorporated herein by reference.
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(b)
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The information set
forth in the Offer to Purchase is incorporated herein by reference.
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Item
12.
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Exhibits.
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(a)(1)(A)
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Offer to Purchase,
dated December 21, 2007.
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(a)(1)(B)
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Letter of Transmittal.
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(a)(1)(C)
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Notice of Guaranteed
Delivery.
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(a)(1)(D)
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Letter to Brokers,
Dealers, Banks, Trust Companies and Other Nominees, dated December 21,
2007.
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(a)(1)(E)
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Letter to Clients for Use
by Brokers, Dealers, Banks, Trust Companies and Other Nominees, dated December 21,
2007.
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(a)(1)(F)
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Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9.
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(a)(1)(G)
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Summary Advertisement
published in the Wall Street Journal on December 21, 2007.
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(a)(5)(A)
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Joint Press Release
issued by Parent and the Company on December 10, 2007 (incorporated by
reference to the Tender Offer Statement on Schedule TO-C filed by
Purchaser on December 10, 2007).
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(a)(5)(B)
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Presentation Material
made available by Parent on its website on December 10, 2007 in
connection with a press conference on December 10, 2007 (incorporated by
reference to the Tender Offer Statement on Schedule TO-C filed by
Purchaser on December 10, 2007).
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(a)(5)(C)
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Presentation Reference
Data made available by Parent on its website on December 12, 2007 in
connection with a press release in Japanese in Tokyo on December 10,
2007 (incorporated by reference to the Tender Offer Statement on
Schedule TO-C filed by Parent, Eisai US and Purchase on December 12,
2007).
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(a)(5)(D)
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Press Release issued by
Parent on December 21, 2007, announcing the commencement of the offer.
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(b)
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Commitment Letter dated
December 8, 2007 by and between JPMorgan Chase Bank, N.A. and Parent.
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(d)(1)
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Agreement and Plan of
Merger, dated as of December 10, 2007, by and among Purchaser, the
Company and Parent (incorporated by reference to Exhibit 2.1 to the
Current Report on Form 8-K filed by the Company on December 11,
2007).
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(d)(2)
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Retention Agreement,
dated December 15, 2007, between Eisai US and Mr. Leon O. Moulder,
Jr. (incorporated by reference to Exhibit (e)(3) of the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by the
Company on December 21, 2007).
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(d)(3)
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Retention Agreement,
dated December 15, 2007, between Eisai US and Dr. Mary Lynne Hedley
(incorporated by reference to Exhibit (e)(4) of the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by the
Company on December 21, 2007).
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(g)
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Not applicable.
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(h)
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Not applicable.
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4
SIGNATURES
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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EISAI CO., LTD.
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By:
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/s/ Makoto Shiina
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Name: Makoto Shiina
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Title: Executive Vice
President, Corporate Strategy
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Dated: December 21,
2007
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EISAI CORPORATION OF
NORTH AMERICA
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By:
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Name: Douglas Snyder
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Title: General Counsel
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Dated: December 21, 2007
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JAGUAR ACQUISITION
CORP.
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By:
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Name: Douglas Snyder
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Title: Secretary
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Dated: December 21, 2007
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5
EXHIBIT INDEX
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Exhibit No.
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Exhibit Name
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(a)(1)(A)
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Offer to Purchase,
dated December 21, 2007.
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(a)(1)(B)
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Letter of Transmittal.
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(a)(1)(C)
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Notice of Guaranteed
Delivery.
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(a)(1)(D)
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Letter to Brokers,
Dealers, Banks, Trust Companies and Other Nominees, dated December 21,
2007.
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(a)(1)(E)
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Letter to Clients for Use
by Brokers, Dealers, Banks, Trust Companies and Other Nominees, dated
December 21, 2007.
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(a)(1)(F)
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Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9.
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(a)(1)(G)
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Summary Advertisement
published in the Wall Street Journal on December 21, 2007.
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(a)(5)(A)
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Joint Press Release issued
by Parent and the Company on December 10, 2007 (incorporated by
reference to the Tender Offer Statement on Schedule TO-C filed by
Purchaser on December 10, 2007).
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(a)(5)(B)
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Presentation Material
made available by Parent on its website on December 10, 2007 in
connection with a press conference on December 10, 2007 (incorporated by
reference to the Tender Offer Statement on Schedule TO-C filed by
Purchaser on December 10, 2007).
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(a)(5)(C)
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Presentation Reference
Data made available by Parent on its website on December 12, 2007 in
connection with a press release in Japanese in Tokyo on December 10,
2007 (incorporated by reference to the Tender Offer Statement on
Schedule TO-C filed by Parent, Eisai US and Purchaser on December 12,
2007).
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(a)(5)(D)
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Press Release issued by
Parent on December 21, 2007, announcing the commencement of the offer.
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(b)
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Commitment Letter dated
December 8, 2007 by and between JPMorgan Chase Bank, N.A. and Parent.
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(d)(1)
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Agreement and Plan of
Merger, dated as of December 10, 2007, by and among Purchaser, the
Company and Parent (incorporated by reference to Exhibit 2.1 to the
Current Report on Form 8-K filed by the Company on December 11,
2007).
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(d)(2)
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Retention Agreement,
dated December 15, 2007, between Eisai US and Mr. Leon O. Moulder,
Jr. (incorporated by reference to Exhibit (e)(3) of the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by the
Company on December 21, 2007).
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(d)(3)
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Retention Agreement,
dated December 15, 2007, between Eisai US and Dr. Mary Lynne Hedley
(incorporated by reference to Exhibit (e)(4) of the
Solicitation/Recommendation Statement on Schedule 14D-9 filed by the
Company on December 21, 2007).
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(g)
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Not applicable.
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(h)
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Not applicable.
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