<PAGE>
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under the Securities Act of 1933
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MGI PHARMA INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1364647
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
6300 West Old Shakopee Road, Suite 110
Bloomington, Minnesota 55438
(Address, including zip code, of principal executive offices)
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MGI PHARMA, INC.
1999 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
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MGI PHARMA, INC.
6300 West Old Shakopee Road, Suite 110
Bloomington, Minnesota 55438
(952) 346-4700
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Timothy S. Hearn, Esq.
Dorsey & Whitney LLP
220 South Sixth Street
Minneapolis, Minnesota 55402
(612) 340-2600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price per offering registration
registered Registered share price(1) fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
($.01 par value) 200,000 $ 27.094 $ 5,418,800.00 $ 1,431.00
================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) and (c), based upon the average of the high
and low prices of the Common Stock as reported on the Nasdaq National
Market on May 9, 2000.
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents which have been filed with the Securities and
Exchange Commission (the "Commission") by MGI PHARMA, INC. (the "Company")
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, as amended by Form 10-K/A-1 filed on March 31, 2000
(File No. 0-10736).
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000 filed on May 5, 2000 (File No. 0-10736).
(c) The Company's Current Report on Form 8-K filed on March 20, 2000.
(d) The description of the Company's capital stock contained in the
Registration Statements on (1) Form 8-A filed by the Company on
October 25, 1982, as amended on July 20, 1987, and (2) Form 8-A filed
by the Company on July 15, 1998, as amended on March 20, 2000, under
the Securities and Exchange Act of 1934, and any amendment or report
filed for the purpose of updating such description filed subsequent to
the date of this Registration Statement on Form S-8 and prior to the
termination of the offering described herein.
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. Any statement contained herein
or in a document all or part of which is 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 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,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
-------------------------
The description of the Company's Common Stock to be offered pursuant to
this Registration Statement has been incorporated by reference into this
Registration Statement as described in Item 3 of this Part II.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 302A.521 of the Minnesota Business Corporation Act gives the
Company the power to indemnify any director, officer, manager, employee or
agent, who was or is a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of such person's former or present official capacity, against certain
liabilities and expenses incurred in connection with the action, suit or
proceeding.
The Company's Restated Articles of Incorporation and Restated By-Laws
provide for indemnification of Company directors and officers to the extent
legally permissible under Minnesota law. To qualify for such
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indemnification, the person must not have been indemnified by another source and
must have acted in good faith, received no improper personal benefit, had no
reasonable cause to believe the conduct was unlawful (with respect to criminal
proceedings), and reasonably believed that the conduct was in the best interests
of the corporation.
Item 7. Exemption from Registration Claimed.
-----------------------------------
No securities are to be reoffered or resold pursuant to this Registration
Statement.
Item 8. Exhibits.
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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 By-Laws (Incorporated by reference to Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1998).
5.1 Opinion and Consent of Dorsey & Whitney LLP.
23.1 Consent of Independent Auditors.
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 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; and
(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 Registration Statement is on Form S-3, Form S-8, or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished 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.
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(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 Securities Exchange Act of 1934 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 and is, therefor, 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 and will be
governed by the final adjudication of such issue.
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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 Bloomington, State of Minnesota, on the 9th day of
May, 2000.
MGI PHARMA, INC.
By /s/ Charles N. Blitzer
-------------------------------------
Charles N. Blitzer
President, Chief Executive Officer
and Director
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on the 9th day of May, 2000, by the
following persons in the capacities indicated.
Signature Title
--------- -----
/s/ Charles N. Blitzer President, Chief Executive Officer
- --------------------------------------- and Director (principal executive
Charles N. Blitzer officer)
/s/ William C. Brown Chief Financial Officer and Secretary
- --------------------------------------- (principal financial and accounting
William C. Brown officer)
* Director
- ---------------------------------------
Andrew J. Ferrara
* Director
- ---------------------------------------
Joseph S. Frelinghuysen
* Director
- ---------------------------------------
Michael E. Hanson
* Director
- ---------------------------------------
Hugh E. Miller
Director
- ---------------------------------------
Timothy G. Rothwell
* Director
- ---------------------------------------
Lee J. Schroeder
* Director
- ---------------------------------------
Arthur L. Weaver M.D.
*By /s/ William C. Brown
-----------------------------------
William C. Brown
Attorney-in-Fact
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EXHIBIT INDEX
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Exhibit
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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 By-Laws (Incorporated by reference to Exhibit 3.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1998).
5.1 Opinion and Consent of Dorsey & Whitney LLP.
23.1 Consent of Independent Auditors.
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.
6300 West Old Shakopee Road, Suite 110
Bloomington, Minnesota 55438
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 200,000 shares (the "Shares")
of common stock, par value $.01 per share, of the Company. The shares will be
issuable under the MGI PHARMA, INC. 1999 NonEmployee Director Stock Option Plan
(the "Plan").
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 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 Shares.
Dated: May 10, 2000 Very truly yours,
TSH /s/ Dorsey & Whitney LLP
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
MGI Pharma, Inc.:
We consent to the use of our reports dated February 4, 2000, except as to Note 8
which is as of March 14, 2000, incorporated herein by reference.
/s/ KPMG LLP
Minneapolis, MN
May 10, 2000
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Charles N. Blitzer and William C.
Brown, 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 hereto.
Signature Title Date
/s/ Charles N. Blitzer President, Chief Executive May 9, 2000
- --------------------------------- Officer and Director
Charles N. Blitzer (principal executive officer)
Chief Financial Officer
/s/ William C. Brown (principal executive officer) May 9, 2000
- ---------------------------------
William C. Brown
/s/ Andrew J. Ferrara Director May 9, 2000
- ---------------------------------
Andrew J. Ferrara
/s/ Joseph S. Frelinghuysen Director May 9, 2000
- ---------------------------------
Joseph S. Frelinghuysen
/s/ Michael E. Hanson Director May 9, 2000
- ---------------------------------
Michael E. Hanson
/s/ Hugh E. Miller Director May 9, 2000
- ---------------------------------
Hugh E. Miller
Director
- ---------------------------------
Timothy G. Rothwell
/s/ Lee J. Schroeder Director May 9, 2000
- ---------------------------------
Lee J. Schroeder
/s/ Arthur L. Weaver M.D. Director May 9, 2000
- ---------------------------------
Arthur L. Weaver M.D
