UNITED STATES SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
SCHEDULE TO
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TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
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(Amendment No. 4)
NPS PHARMACEUTICALS, INC.
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(Name of Subject Company (Issuer))
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KNIGHT NEWCO 2, INC.
SHIRE PHARMACEUTICAL HOLDINGS IRELAND LIMITED
SHIRE PLC
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(Names of Filing Persons (Offeror))
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Common Stock, Par Value $0.001 Per Share
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(Title of Class of Securities)
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62936P103
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(Cusip Number of Class of Securities)
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Mark Enyedy
Interim General Counsel
Shire plc
5 Riverwalk, Citywest Business Campus,
Dublin 24, Ireland
+353 1 429 7700
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
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Copies to:
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George R. Bason, Jr.
William J. Chudd
Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, New York 10017
Telephone: (212) 450-4000
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Check the appropriate boxes below to designate any transactions to which the statement relates:
o issur tender offer subject to Rule 13e-4.
o going-private transaction subject to Rule 13e-3.
o amendment to Schedule 13D under Rule 13d-2.
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(a)(5)(xiv)
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Letter to NPS Pharmaceuticals, Inc. Employees dated February 16, 2015.
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(a)(5)(xv)
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NPS Pharmaceuticals, Inc. Employee Q&A dated February 16, 2015.
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Knight Newco 2, Inc.
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By:
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/s/ Gary Sender |
Name: Gary Sender
Title: President
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Shire Pharmaceutical Holdings Ireland Limited
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By:
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/s/ Michael Garry |
Name: Michael Garry
Title: Director |
Shire plc
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By:
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/s/ Mark Enyedy |
Name: Mark Enyedy
Title: Interim General Counsel
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Exhibit No.
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Description
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(a)(1)(i)
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Offer to Purchase dated January 23, 2015.
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(a)(1)(ii)
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Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9).
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(a)(1)(iii)
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Notice of Guaranteed Delivery.
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(a)(1)(iv)
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Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(v)
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Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees.
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(a)(1)(vi)
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Summary Advertisement dated January 23, 2015.
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(a)(5)(i)
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Joint Press Release issued by Shire plc and NPS Pharmaceuticals, Inc. dated January 11, 2015 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by Shire plc on January 12, 2015).
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(a)(5)(ii)
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Slide Presentation for Investor Conference Call dated January 11, 2015 (incorporated by reference to the Schedule TO-C filed by Shire plc, Shire Pharmaceutical Holdings Ireland Limited and Knight Newco 2, Inc. on January 12, 2015).
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(a)(5)(iii)
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Transcript of Investor Conference Call dated January 11, 2015 (incorporated by reference to the Schedule TO-C filed by Shire plc, Shire Pharmaceutical Holdings Ireland Limited and Knight Newco 2, Inc. on January 12, 2015).
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(a)(5)(iv)
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Letter to NPS Employees dated January 12, 2015 (incorporated by reference to the Schedule TO-C filed by Shire plc, Shire Pharmaceutical Holdings Ireland Limited and Knight Newco 2, Inc. on January 12, 2015).
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(a)(5)(v)
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Slide Presentation (incorporated by reference to the Schedule TO-C filed by Shire plc, Shire Pharmaceutical Holdings Ireland Limited and Knight Newco 2, Inc. on January 14, 2015).
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(a)(5)(vi)
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Extracts from the transcript of a presentation given by Flemming Ornskov, MD, Chief Executive of Shire, on January 13, 2015 at the J.P. Morgan 33rd Annual Healthcare Conference (incorporated by reference to the Schedule TO-C filed by Shire plc, Shire Pharmaceutical Holdings Ireland Limited and Knight Newco 2, Inc. on January 14, 2015).
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(a)(5)(vii)
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Selected slides from a presentation given by Flemming Ornskov, MD, Chief Executive of Shire, on January 16, 2015 to employees of NPS Pharmaceuticals, Inc. (incorporated by reference to the Schedule TO-C filed by Shire plc, Shire Pharmaceutical Holdings Ireland Limited and Knight Newco 2, Inc. on January 16, 2015).
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(a)(5)(viii)
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Complaint filed in the Court of Chancery of the State of Delaware on January 16, 2015 (Bragger v. NPS Pharmaceuticals, Inc. et al.).
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(a)(5)(ix)
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Complaint filed in the Court of Chancery of the State of Delaware on January 20, 2015 (Grimaldi v. NPS Pharmaceuticals, Inc. et al.)
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(a)(5)(x)
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Press Release issued by Shire plc dated January 23, 2015 commenting on press release from NPS Pharmaceuticals, Inc. regarding FDA approval of NATPARA.
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(a)(5)(xi)
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Complaint filed in the Court of Chancery of the State of Delaware on January 23, 2015 (Goldstein v. NPS Pharmaceuticals, Inc. et al.).
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(a)(5)(xii)
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Complaint filed in the Court of Chancery of the State of Delaware on January 26, 2015 (Mantler v. NPS Pharmaceuticals, Inc. et al.).
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(a)(5)(xiii)
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Consolidated Amended Complaint filed in the Court of Chancery of the State of Delaware on February 2, 2015 (In Re NPS Pharmaceuticals Stockholders Litigation).
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(a)(5)(xiv)
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Letter to NPS Pharmaceuticals, Inc. Employees dated February 16, 2015.
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(a)(5)(xv)
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NPS Pharmaceuticals, Inc. Employee Q&A dated February 16, 2015.
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(b)(1)
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US $2,100,000,000 Multicurrency Revolving and Swingline Facilities Agreement dated 12 December 2014 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Shire plc on December 12, 2014).
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(b)(2)
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Facilities Agreement dated January 11, 2015 among Shire plc, Citigroup Global Markets Limited, as mandated lead arranger and bookrunner, and the other parties thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Shire plc on January 12, 2015).
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(c)
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Not applicable.
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(d)(1)
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Agreement and Plan of Merger dated as of January 11, 2015 among Shire Pharmaceutical Holdings Ireland Limited, Knight Newco 2, Inc., NPS Pharmaceuticals, Inc. and Shire plc (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by Shire plc on January 12, 2015).
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(d)(2)
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Confidentiality Agreement dated as of December 16, 2014 between NPS Pharmaceuticals, Inc. and Shire Human Genetics Therapies, Inc.
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(e)
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Not applicable.
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(f)
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Not applicable.
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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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To:
From:
Cc:
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NPS Pharma Employees
Carrie Frey, Shire Head of Corporate Planning and Program Management and Integration Lead
Francois Nader, NPS Pharma President & CEO
Susan Graf, NPS Pharma VP, Corporate Development and Strategy
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Date:
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February 16, 2015
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Subject:
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Shire/NPS Pharma Integration Update
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1.
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Gattex/Revestive: Accelerate and deliver greater availability to patients in the US and EU driven by effective integration of sales force and commercial support groups;
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2.
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Natpara/Natpar: Maximize value by achieving regulatory approval (EU) and ensuring successful launch;
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3.
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Retain and transition talent; ensure appropriate planning to support short/mid-term business continuity with a focus on talent retention;
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4.
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Ensure Natpara launch product supply continuity; and
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5.
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Deliver assumed synergies.
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·
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Shire’s products may not be a commercial success;
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·
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revenues from ADDERALL XR and INTUNIV are subject to generic erosion;
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·
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the failure to obtain and maintain reimbursement, or an adequate level of reimbursement, by third-party payors in a timely manner for Shire's products may impact future revenues, financial condition and results of operations;
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·
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Shire conducts its own manufacturing operations for certain of its products and is reliant on third party contract manufacturers to manufacture other products and to provide goods and services. Some of Shire’s products or ingredients are only available from a single approved source for manufacture. Any disruption to the supply chain for any of Shire’s products may result in Shire being unable to continue marketing or developing a product or may result in Shire being unable to do so on a commercially viable basis for some period of time;
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·
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the development, approval and manufacturing of Shire’s products is subject to extensive oversight by various regulatory agencies. Submission of an application for regulatory approval of any of our product candidates, such as our planned submission of a New Drug Application to the FDA for Lifitegrast, may be delayed for any number of reasons and, once submitted, may be subjected to lengthy review and ultimately rejected. Moreover, regulatory approvals or interventions associated with changes to manufacturing sites, ingredients or manufacturing processes could lead to significant delays, increase in operating costs, lost product sales, an interruption of research activities or the delay of new product launches;
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·
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the actions of certain customers could affect Shire's ability to sell or market products profitably. Fluctuations in buying or distribution patterns by such customers can adversely impact Shire’s revenues, financial condition or results of operations;
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·
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investigations or enforcement action by regulatory authorities or law enforcement agencies relating to Shire’s activities in the highly regulated markets in which it operates may result in significant legal costs and the payment of substantial compensation or fines;
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·
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adverse outcomes in legal matters and other disputes, including Shire’s ability to enforce and defend patents and other intellectual property rights required for its business, could have a material adverse effect on Shire’s revenues, financial condition or results of operations;
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·
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Shire faces intense competition for highly qualified personnel from other companies, academic institutions, government entities and other organizations. Shire is undergoing a corporate reorganization and the consequent uncertainty could adversely impact Shire’s ability to attract and/or retain the highly skilled personnel needed for Shire to meet its strategic objectives;
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·
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failure to achieve Shire’s strategic objectives with respect to the acquisition of ViroPharma Incorporated may adversely affect Shire’s financial condition and results of operations;
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·
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Shire’s proposed acquisition of NPS Pharma may not be consummated due to the occurrence of an event, change or other circumstances that gives rise to the termination of the merger agreement;
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·
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a governmental or regulatory approval required for the proposed acquisition of NPS Pharma may not obtained, or may be obtained subject to conditions that are not anticipated, or another condition to the closing of the proposed acquisition may not be satisfied;
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·
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NPS Pharma may be unable to retain and hire key personnel and/or maintain its relationships with customers, suppliers and other business partners pending the consummation of the proposed acquisition by Shire, or NPS Pharma’s business may be disrupted by the proposed acquisition, including increased costs and diversion of management time and resources;
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·
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difficulties in integrating NPS Pharma into Shire may lead to the combined company not being able to realize the expected operating efficiencies, cost savings, revenue enhancements, synergies or other benefits at the time anticipated or at all;
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1.
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What will happen to NPS Pharma HQ in Bedminster? You announced that you are consolidating operations in Lexington, MA. Can you provide some perspective on Shire’s long range plan for facilities?
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We have not made any definitive decisions related to facilities at this time.
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2.
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What do you plan to do with our international office locations?
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While we have not made any definitive decisions at this time, we expect to consolidate NPS international office locations with existing Shire locations at some point in the future following the closing of the transaction unless there are compelling reasons not to do so.
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3.
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Can you give us any insights on how you expect to restructure Shire to include NPS Pharma?
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We announced as part of this deal the merging of 2 of our existing business units – GI and Internal Medicine – to become the GI & Internal Medicine Business Unit. Following the closing of the transaction, the NPS Pharma portfolio will be integrated into this BU. All non-commercial aspects of the NPS business will be integrated into the respective existing Shire organizational operations.
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4.
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When will I know if I have a job?
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One of the first things we need to gain an understanding of is the NPS Pharma business and employees. Only after going through that process will we have the necessary information to make decisions about employment status.
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5.
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What kind of interactions do you expect to have with NPS Pharma employees prior to closing / in the near future?
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6.
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What is your timeline for integration?
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We first need to gain an in-depth understanding of the NPS business and people before we can develop a meaningful integration plan and agree on a realistic timeline. Note that not all aspects of the business are likely to be integrating at the same time and at the same pace. Timing and prioritization of integration will be driven by functional need and integration critical success factors.
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7.
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What are the critical success factors for integration?
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·
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Gattex/Revestive: Accelerate and deliver greater availability to patients in the US and EU driven by effective integration of sales force and commercial support groups;
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·
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Natpara/Natpar: Maximize value by achieving regulatory approval (EU) and ensuring successful launch;
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·
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Retain and transition talent; ensure appropriate planning to support short/mid-term business continuity with a focus on talent retention;
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·
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Ensure Natpara launch product supply continuity; and
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·
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Deliver assumed synergies.
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8.
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Can you provide some perspective on how your team has thought about the integration of Gattex and Natpara?
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9.
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Can you confirm that Gattex will be in the GI Business Unit, as opposed to the Rare Diseases Business Unit?
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10.
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Will you create a new Endo Business Unit or will Natpara be managed under the Rare Diseases Business Unit?
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11.
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NPS Pharma has a patient service center that is branded NPS Advantage. There are 2 distinct teams for Gattex and Natpara. Do you plan to keep these teams operating out of Bedminster, NJ or do you envision moving them to Shire offices in Lexington?
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12.
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Do you have a team prepared to assume the launch of Natpara or do you expect the NPS Pharma launch team to launch Natpara?
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We are looking to the NPS Pharma team to continue the planning and execution of launch. Following the closing of the transaction and throughout integration, we will look for opportunities to provide additional support to enhance the launch.
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13.
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Can you provide some insights or lessons that your team learned from the integration of ViroPharma?
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14.
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How many employees does Shire currently have?
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15.
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Can you explain One Shire? What are the goals and objectives and is the project complete? How will One Shire impact NPS Pharma?
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16.
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How should we communicate regulatory feedback to our counterparts at Shire?
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Prior to the closing of the transaction, all information will be managed via the selected NPS integration leads unless you are told otherwise.
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17.
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How should we approach regulatory filings planned for Q2/3 of this year?
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Until the closing of the transaction, the NPS Pharma business will be run by the NPS Pharma Executive Team and you should keep doing whatever you’re doing. As part of the integration planning process, we will define and communicate where/how ways of working will change from Day 1.
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18.
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Where will NPSP795 be integrated at Shire?
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19.
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Can you provide any insight into Shire’s manufacturing operations?
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20.
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When will we learn more about Shire’s benefits?
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21.
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Will Shire honor the NPS Pharma Change in Control (CIC) Severance Pay Plan?
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22.
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When integrating ViroPharma, did you provide relocation benefits for those who moved to Lexington?
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23.
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Will NPS Pharma employees be given any advance notice prior to a layoff?
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24.
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Will Shire be able to commit to some type of severance for new NPS Pharma employees hired for launch to ensure they are comfortable making the transition in lieu of the uncertainty?
The NPS Pharma Change in Control Severance Pay Plan, which will be honored, provides for payments for all employees, even for individuals, even those recently hired.
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·
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Shire’s products may not be a commercial success;
|
|
·
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revenues from ADDERALL XR and INTUNIV are subject to generic erosion;
|
|
·
|
the failure to obtain and maintain reimbursement, or an adequate level of reimbursement, by third-party payors in a timely manner for Shire's products may impact future revenues, financial condition and results of operations;
|
|
·
|
Shire conducts its own manufacturing operations for certain of its products and is reliant on third party contract manufacturers to manufacture other products and to provide goods and services. Some of Shire’s products or ingredients are only available from a single approved source for manufacture. Any disruption to the supply chain for any of Shire’s products may result in Shire being unable to continue marketing or developing a product or may result in Shire being unable to do so on a commercially viable basis for some period of time;
|
|
·
|
the development, approval and manufacturing of Shire’s products is subject to extensive oversight by various regulatory agencies. Submission of an application for regulatory approval of any of our product candidates, such as our planned submission of a New Drug Application to the FDA for Lifitegrast, may be delayed for any number of reasons and, once submitted, may be subjected to lengthy review and ultimately rejected. Moreover, regulatory approvals or interventions associated with changes to manufacturing sites, ingredients or manufacturing processes could lead to significant delays, increase in operating costs, lost product sales, an interruption of research activities or the delay of new product launches;
|
|
·
|
the actions of certain customers could affect Shire's ability to sell or market products profitably. Fluctuations in buying or distribution patterns by such customers can adversely impact Shire’s revenues, financial condition or results of operations;
|
|
·
|
investigations or enforcement action by regulatory authorities or law enforcement agencies relating to Shire’s activities in the highly regulated markets in which it operates may result in significant legal costs and the payment of substantial compensation or fines;
|
|
·
|
adverse outcomes in legal matters and other disputes, including Shire’s ability to enforce and defend patents and other intellectual property rights required for its business, could have a material adverse effect on Shire’s revenues, financial condition or results of operations;
|
|
·
|
Shire faces intense competition for highly qualified personnel from other companies, academic institutions, government entities and other organizations. Shire is undergoing a corporate reorganization and the consequent uncertainty could adversely impact Shire’s ability to attract and/or retain the highly skilled personnel needed for Shire to meet its strategic objectives;
|
|
·
|
failure to achieve Shire’s strategic objectives with respect to the acquisition of ViroPharma Incorporated may adversely affect Shire’s financial condition and results of operations;
|
|
·
|
Shire’s proposed acquisition of NPS Pharma may not be consummated due to the occurrence of an event, change or other circumstances that gives rise to the termination of the merger agreement;
|
|
·
|
a governmental or regulatory approval required for the proposed acquisition of NPS Pharma may not obtained, or may be obtained subject to conditions that are not anticipated, or another condition to the closing of the proposed acquisition may not be satisfied;
|
|
·
|
NPS Pharma may be unable to retain and hire key personnel and/or maintain its relationships with customers, suppliers and other business partners pending the consummation of the proposed acquisition by Shire, or NPS Pharma’s business may be disrupted by the proposed acquisition, including increased costs and diversion of management time and resources;
|
|
·
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difficulties in integrating NPS Pharma into Shire may lead to the combined company not being able to realize the expected operating efficiencies, cost savings, revenue enhancements, synergies or other benefits at the time anticipated or at all;
|