<PAGE>
As filed with the Securities and Exchange Commission on October 22, 1997
Registration No. 333-______
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------------
FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
-----------------------------------------
MGI PHARMA, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1364647
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
Suite 300E, Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Address of principal executive offices) (Zip Code)
1997 STOCK INCENTIVE PLAN
(Full title of the plan)
Lori-jean Gille
MGI PHARMA, INC.
Suite 300E, Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
(Name and address of agent for service)
(612) 935-7335
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================
Title of Proposed Proposed
securities Amount to maximum offering maximum Amount of
to be be offering price aggregate registration
registered Registered per share(1) offering price(1) fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 3,007,721 shares $5.25 $15,539,691 $4,709
========================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) and (c). The proposed maximum offering price
has been calculated as follows: options to purchase 168,375 shares have
been issued with a weighted average stock exercise price of $3.7602; and
the stock exercise price of options with respect to 2,839,346 shares that
are being registered herein but remain unissued is based upon the average
of the high and low prices of the Common Stock as reported on the Nasdaq
consolidated reporting system on October 15, 1997.
<PAGE>
PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents, which have been filed by MGI PHARMA, INC.
(the "Company") with the Securities and Exchange Commission, are incorporated by
reference in this Registration Statement, as of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 (File No. 0-10736).
(b) The Company's Quarterly Reports on Form 10-Q for the quarter
ended March 31, 1997 and the quarter ended June 30, 1997 (File
No. 0-10736).
(c) The description of the Company's capital stock contained in the
registration statement on Form 8-A filed by the Company on October 25,
1982, as amended by Form 8 filed July 20, 1987, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities remaining unsold shall
be deemed to be incorporated by reference herein and to be a part hereof from
the respective dates of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Company's Restated Articles of Incorporation provide for
indemnification of directors of the Company to the fullest extent permitted by
Minnesota law. Section 302A.521, subd. 2, of the Minnesota Statutes requires
the Company to indemnify a person made or threatened to be made a party to a
proceeding by reason of the former or present official capacity of the person
with respect to the Company, against judgments, penalties, fines (including,
without limitation, excise taxes assessed against the person with respect to an
employee benefit plan), settlements, and reasonable expenses, including
attorneys' fees and disbursements, incurred by the person in connection with the
proceeding, if, with respect to the acts or omissions of the person complained
of in the proceeding, the person (1) has not been indemnified by another
organization or employee benefit plan for the same judgments, penalties or
fines; (2) acted in good faith; (3) received no improper personal benefit, and
statutory procedure has been followed in the case of any conflict of interest by
a director; (4) in the case of a criminal proceeding, had no reasonable cause to
believe the conduct was unlawful; and (5) in the case of acts or omissions
occurring in the person's performance in the official capacity of director or,
for a person not a director, in the official capacity of officer, board
committee member or employee, reasonably believed that the conduct was in the
best interests of the Company, or, in the case of performance by a director,
officer or employee of the Company involving service as a director, officer,
partner, trustee,
II-1
<PAGE>
employee or agent of another organization or employee benefit plan, reasonably
believed that the conduct was not opposed to the best interests of the Company.
In addition, Section 302A.521, subd. 3, requires payment by the Company, upon
written request, of reasonable expenses in advance of final disposition of the
proceeding in certain instances. A decision as to required indemnification is
made by a disinterested majority of the Board of Directors present at a meeting
at which a disinterested quorum is present, or by a designated committee of the
Board, by special legal counsel, by the shareholders, or by a court.
Provisions regarding indemnification of officers and directors of the
Company to the extent permitted by Section 302A.521 as now enacted or hereafter
amended are contained in the Company's Restated Bylaws.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
No securities are to be reoffered or resold pursuant to this
Registration Statement.
Item 8. EXHIBITS.
--------
4.1 Restated Articles of Incorporation (Incorporated by reference to
Exhibit 3.1 to the Company's Registration Statement on Form S-2,
File No. 33-40763).
4.2 Restated Bylaws of the Company, as amended to date (Incorporated
by reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1994).
5.1 Opinion and Consent of Dorsey & Whitney LLP.
23.1 Independent Auditors' Consent.
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1).
24.1 Power of Attorney.
Item 9. Undertakings.
------------
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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 would not exceed that which was
registered) and any deviation from the low or high end of the
estimated
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<PAGE>
maximum offering range may be reflected in the form
of prospectus filed with the Securities and Exchange
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(1)(i) and A(1)(ii) above will not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) 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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 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
of 1933 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 other
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 of 1933 and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Minnetonka, State of Minnesota, on the 17th day of
October, 1997
MGI PHARMA, INC.
By /s/ Charles N. Blitzer
----------------------------------------
Charles N. Blitzer
President, Chief Executive Officer and
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 17th day of October, 1997.
Signature Title
--------- -----
* President, Chief Executive
- ----------------------------- Officer and Chairman of the Board
Charles N. Blitzer (principal executive officer)
* Vice President, Chief Financial Officer
- ----------------------------- (principal financial and accounting
James V. Adam officer)
*
- ----------------------------- Director
Frederick W. Armstrong
*
- ----------------------------- Director
Charles E. Austin
*
- ----------------------------- Director
David E. Collins
*
- ----------------------------- Director
Hugh E. Miller
*
- ----------------------------- Director
Timothy G. Rothwell
*
- ----------------------------- Director
Lee J. Schroeder
* By /s/ Lori-jean Gille
------------------------
Lori-jean Gille
Attorney-in-Fact
II-4
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EXHIBIT INDEX
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Exhibit Page
- ------- ----
4.1 Amended and Restated Certificate of Incorporation Previously Filed
4.2 Amended Bylaws Previously Filed
5.1 Opinion and Consent of Dorsey & Whitney LLP
23.1 Independent Auditors' Consent
23.2 Consent of Dorsey & Whitney LLP
(included in Exhibit 5.1)
24.1 Power of Attorney
<PAGE>
EXHIBIT 5.1
[Dorsey & Whitney LLP Letterhead]
MGI PHARMA, INC.
Suite 300E, Opus Center
9900 Bren Road East
Minnetonka, Minnesota 55343
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to MGI PHARMA, INC., a Minnesota corporation
(the "Company"), in connection with a registration statement on Form S-8
relating to the sale by the Company from time to time of up to 3,007,721 shares
(the "Shares") of common stock, par value $.01 per share, of the Company. The
Shares will be issuable under the 1997 Stock Incentive Plan (the "Stock
Incentive Plan") of the Company.
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of our
opinions set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Stock Incentive Plan, and any relevant
agreements thereunder, will be validly issued, fully paid and nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement on Form S-8 of the Company relating to the Stock
Incentive Plan.
Dated: October 20, 1997 Very truly yours,
/s/ Dorsey & Whitney LLP
TSH
<PAGE>
EXHIBIT 23.1
------------
Independent Auditors' Consent
The Board of Directors
MGI PHARMA, INC.:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Minneapolis, Minnesota
October 20, 1997
<PAGE>
EXHIBIT 24.1
------------
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints James V. Adam and Lori-jean Gille, and
each of them, his true and lawful attorneys-in-fact and agents, each acting
alone, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign a Registration
Statement on Form S-8 of MGI PHARMA, INC., and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, each
acting alone, full power and authority to do and perform each and every act and
thing requisite or necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in- fact and agents, each acting alone, or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
--------- ----- ----
/s/ Charles N. Blitzer
- -------------------------- President, Chief Executive July 28, 1997
Charles N. Blitzer Officer and Director
(principal executive officer)
/s/ James V. Adam
- ---------------------------- Vice President, Chief
James V. Adam Financial Officer
(principal financial and
accounting officer)
/s/ Frederick W. Armstrong
- ---------------------------- Director July 25, 1997
Frederick W. Armstrong
/s/ Charles E. Austin
- ---------------------------- Director July 28, 1997
Charles E. Austin
/s/ David E. Collins
- ---------------------------- Director July 28, 1997
David E. Collins
/s/ Hugh E. Miller
- ---------------------------- Director July 28, 1997
Hugh E. Miller
/s/ Timothy G. Rothwell
- ---------------------------- Director July 29, 1997
Timothy G. Rothwell
/s/ Lee J. Schroeder
- ---------------------------- Director July 28, 1997
Lee J. Schroeder
