| UNITED STATES SECURITIES AND EXCHANGE COMMISSION |
Washington, D.C. 20549 ___________________ |
| SCHEDULE TO |
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1) OR 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934 |
(Amendment No. 3) NPS PHARMACEUTICALS, INC. |
| (Name of Subject Company (Issuer)) |
KNIGHT NEWCO 2, INC. SHIRE PHARMACEUTICAL HOLDINGS IRELAND LIMITED SHIRE PLC |
| (Names of Filing Persons (Offeror)) |
| Common Stock, Par Value $0.001 Per Share |
(Title of Class of Securities) |
| 62936P103 |
| (Cusip Number of Class of Securities) |
Mark Enyedy Interim General Counsel Shire plc 5 Riverwalk, Citywest Business Campus, Dublin 24, Ireland +353 1 429 7700 |
| (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons) |
| Copies to: |
George R. Bason, Jr. William J. Chudd Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 Telephone: (212) 450-4000 |
| o | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
x | third-party tender offer subject to Rule 14d-1. |
| o | issuer 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. |
This Amendment No. 3 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed by Shire plc, a company incorporated in Jersey, Channel Islands (“Shire”), Shire Pharmaceutical Holdings Ireland Limited, a company incorporated in Ireland (“SPHIL”), and Knight Newco 2, Inc., a Delaware corporation and an indirect wholly owned subsidiary of each of Shire and SPHIL (“Purchaser”), with the Securities and Exchange Commission on January 23, 2015 (as previously amended and together with any subsequent amendments and supplements thereto, the “Schedule TO”). The Schedule TO relates to the offer by Purchaser to purchase all outstanding shares of common stock, par value $0.001 per share, of NPS Pharmaceuticals, Inc., a Delaware corporation (“NPS”), for $46.00 per share, net to the seller in cash, without interest and less any required withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated January 23, 2015 (as amended or supplemented from time to time, the “Offer to Purchase”) and in the related Letter of Transmittal, copies of which are attached as Exhibit (a)(1)(i) and (a)(1)(ii), respectively, to the Schedule TO.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.
Items 1 through 9, and Item 11.
Items 1 through 9, and Item 11 of the Schedule TO are hereby amended and supplemented as follows:
(a) The first paragraph under the heading “16. Certain Legal Matters; Regulatory Approvals—Litigation Related to the Merger” of the Offer to Purchase is hereby amended and restated in its entirety by replacing it with the following:
“As of February 9, 2015, we are aware of five putative class action lawsuits challenging the transactions contemplated by the Merger Agreement, filed by purported NPS stockholders, in the Delaware Court of Chancery against various combinations of NPS, the members of the NPS Board, Shire, SPHIL and Purchaser (collectively, the “Defendants”). The actions are captioned Bragger v. NPS Pharmaceuticals, Inc. et al., Case No. 10553-VCN, Grimaldi v. NPS Pharmaceuticals, Inc. et al., Case No. 10563-VCN, Goldstein v. NPS Pharmaceuticals, Inc., et al., Case No. 10577-VCN, Mantler v. NPS Pharmaceuticals, Inc. et al., Case No. 10580-VCN and Lyons v. Tombros, et al., Case No. 10590-VCN (the “Actions”). The Actions generally allege, among other things, that the NPS Board breached its fiduciary duties to NPS’s stockholders, that the corporate defendants aided and abetted such breaches, by engaging in a flawed sales process, agreeing to a transaction price that does not adequately compensate stockholders and agreeing to certain deal protection provisions in the Merger Agreement that the plaintiff alleges impede or preclude a potential topping bid, and that certain disclosures in the Schedule 14D-9 concerning the transactions contemplated by the Merger Agreement are materially misleading or incomplete. The complaints seek, among other things, to enjoin the Defendants from consummating the transactions contemplated by the Merger Agreement, damages, and an award of attorneys’ fees and costs.
Pursuant to an order granted on February 2, 2015 by the Court of Chancery of the State of Delaware (the “Consolidation Order”), the Actions were consolidated into one action captioned In Re NPS Pharmaceuticals Stockholders Litigation, C.A. No. 10553-VCN (the “Consolidated Action”). The Consolidation Order applies to any future-filed actions relating to the subject matter of the Consolidated Action. On February 2, 2015, the plaintiffs in the Consolidated Action filed a consolidated class action complaint (the “Consolidated Complaint”), naming as defendants NPS, the members of the NPS Board, SPHIL and Purchaser. The Consolidated Complaint generally alleges that the individual director defendants breached their fiduciary duties to NPS’s stockholders by approving the Merger Agreement because the merger consideration is unfair, certain terms of the Merger Agreement are unfair, the individual defendants are financially interested in the Merger and certain disclosures in the Schedule 14D-9 concerning the transactions contemplated by the Merger Agreement are materially misleading or incomplete. The Consolidated Complaint further alleges that the corporate defendants aided and abetted these alleged breaches of fiduciary duty. The Consolidated Action seeks, among other remedies, to enjoin the transactions contemplated by the Merger Agreement, or in the event that an injunction is not awarded, unspecified money damages, costs and attorney’s fees.
On February 6, 2015, the parties to the Consolidated Action entered into a memorandum of understanding (“MOU”) setting forth the terms of a settlement of the Consolidated Action. Pursuant to the terms of the MOU, and
without agreeing that any of the claims in the Consolidated Action have merit or that such supplemental disclosures were required under any applicable statute, rule, regulation or law, NPS has issued the supplemental disclosures contained in Amendment No. 4 to the Schedule 14D-9 filed on February 6, 2015. Also pursuant to the terms of the MOU, the parties expect to execute a stipulation of settlement, which will be subject to approval by the Court of Chancery of the State of Delaware following notice to NPS’s stockholders. There can be no assurance that the settlement will be finalized or that the Court of Chancery of the State of Delaware will approve the settlement. The settlement terms provide that the Consolidated Action will be dismissed with prejudice as to all defendants, and that all defendants will be released of any and all claims relating to, among other things, the Merger and the Merger Agreement, if and when the Court of Chancery of the State of Delaware approves the settlement.”
(b) The fourteenth paragraph under the heading “11. Background of the Offer; Contacts with NPS” of the Offer to Purchase is hereby amended and supplemented by inserting the following sentence after the second sentence therein:
“When Dr. Nader suggested that he personally could support a transaction between $47.00 and $48.00 per Share, Dr. Ornskov indicated that Shire would not proceed with a transaction at that range.”
Item 12. Exhibits.
Item 12 of the Schedule TO is hereby amended and supplemented by adding the following exhibits:
| (a)(5)(xiii) | Consolidated Amended Complaint filed in the Court of Chancery of the State of Delaware on February 2, 2015 (In Re NPS Pharmaceuticals Stockholders Litigation). |
SIGNATURES
After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete and correct.
Date: February 9, 2015
| Knight Newco 2, Inc. | ||||
| By: | /s/ Gary Sender | |||
| Name: | Gary Sender | |||
| Title: | President | |||
| Shire Pharmaceutical Holdings Ireland Limited | ||||
| By: | /s/ Michael Garry | |||
| Name: | Michael Garry | |||
| Title: | Director | |||
| Shire plc | ||||
| By: | /s/ Mark Enyedy | |||
| Name: | Mark Enyedy | |||
| Title: | Interim General Counsel | |||
EXHIBIT INDEX
| Exhibit No. | Description | |
| (a)(1)(i) | Offer to Purchase dated January 23, 2015. | |
| (a)(1)(ii) | Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9). | |
| (a)(1)(iii) | Notice of Guaranteed Delivery. | |
| (a)(1)(iv) | Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
| (a)(1)(v) | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees. | |
| (a)(1)(vi) | Summary Advertisement dated January 23, 2015. | |
| (a)(5)(i) | 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). | |
| (a)(5)(ii) | 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). | |
| (a)(5)(iii) | 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). | |
| (a)(5)(iv) | 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). | |
| (a)(5)(v) | 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). | |
| (a)(5)(vi) | 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). | |
| (a)(5)(vii) | 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). | |
| (a)(5)(viii) | Complaint filed in the Court of Chancery of the State of Delaware on January 16, 2015 (Bragger v. NPS Pharmaceuticals, Inc. et al.). | |
| (a)(5)(ix) | Complaint filed in the Court of Chancery of the State of Delaware on January 20, 2015 (Grimaldi v. NPS Pharmaceuticals, Inc. et al.) | |
| (a)(5)(x) | Press Release issued by Shire plc dated January 23, 2015 commenting on press release from NPS Pharmaceuticals, Inc. regarding FDA approval of NATPARA. | |
| (a)(5)(xi) | Complaint filed in the Court of Chancery of the State of Delaware on January 23, 2015 (Goldstein v. NPS Pharmaceuticals, Inc. et al.). | |
| (a)(5)(xii) | Complaint filed in the Court of Chancery of the State of Delaware on January 26, 2015 (Mantler v. NPS Pharmaceuticals, Inc. et al.). | |
| (a)(5)(xiii) | Consolidated Amended Complaint filed in the Court of Chancery of the State of Delaware on February 2, 2015 (In Re NPS Pharmaceuticals Stockholders Litigation). | |
| (b)(1) | 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). | |
| (b)(2) | 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). |
| (c) | Not applicable. | |
| (d)(1) | 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). | |
| (d)(2) | Confidentiality Agreement dated as of December 16, 2014 between NPS Pharmaceuticals, Inc. and Shire Human Genetics Therapies, Inc. | |
| (e) | Not applicable. | |
| (f) | Not applicable. | |
| (g) | Not applicable. | |
| (h) | Not applicable. |