Case 1:22-cv-00961-UNA Document 1 Filed 07/22/22 Page 1 of 13 PageID #: 1
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`UNITED STATES DISTRICT COURT
`DISTRICT OF DELAWARE
`
`JORDAN WILSON,
`
`Plaintiff,
`
`
` vs.
`
`EPIZYME, INC., KENNETH BATE, ROY
`A. BEVERIDGE, GRANT BOGLE, KEVIN
`T. CONROY, MICHAEL F. GIORDANO,
`CARL GOLDFISCHER, PABLO
`LEGORRETA, DAVID M. MOTT,
`VICTORIA RICHON, and CAROL
`STUCKLEY,
`
` Defendants.
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`Plaintiff Jordan (“Plaintiff”), upon information and belief, including an examination and
`
`
`
`Case No.
`
`
`
`COMPLAINT FOR VIOLATIONS
`OF THE FEDERAL SECURITIES
`LAWS
`
`
`JURY TRIAL DEMANDED
`
`
`
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`inquiry conducted by and through his counsel, except as to those allegations pertaining to Plaintiff,
`
`which are alleged upon personal belief, alleges the following for his Complaint:
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`NATURE OF THE ACTION
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`Plaintiff brings this action against Epizyme, Inc. (“Epizyme” or the “Company”)
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`1.
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`and its corporate directors for violating 14(d)(4), 14(e) and 20(a) of the Securities Exchange Act
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`of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(d)(4), 78n(e), 78t(a), and U.S. Securities and
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`Exchange Commission (“SEC”) Rule 14d-9, 17 C.F.R. §240.14d-9(d) (“Rule 14d-9”), in
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`connection with the Board’s attempt to sell Epizyme to affiliates of Ipsen S.A. (“Ipsen”) (the
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`“Proposed Transaction”).
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`2.
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`On June 27, 2022, Epizyme entered into an Agreement and Plan of Merger with
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`Ipsen, Ipsen Pharma SAS (“Parent”) and Hibernia Merger Sub, Inc. (“Purchaser”), a wholly
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`owned subsidiary of Ipsen Biopharmaceuticals, Inc. (the “Merger Agreement”). The Merger
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`Agreement provides that Ipsen will acquire Epizyme for (a) $1.45 in cash and (b) one contractual
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`

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`contingent value right (“CVR”) representing the right to receive one or more contingent payments
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`of up to $1.00 in the aggregate upon the achievement of certain milestones, per share of Epizyme
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`common stock, via a tender offer (the “Tender Offer”).1
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`3.
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`On July 12, 2022, the Board authorized the filing of the materially incomplete and
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`misleading Schedule 14D-9 Solicitation/Recommendation Statement
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`(the “Solicitation
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`Statement”) with the SEC. The Solicitation Statement, which recommends that Company
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`stockholders tender their shares in favor of the Proposed Transaction, omits or misrepresents
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`material information necessary and essential to that decision. Defendants authorized the issuance
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`of the false and misleading Proxy Statement in violation of Sections 14(d)(4), 14(e), and 20(a) of
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`the Exchange Act.
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`4.
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`It is imperative that the material information omitted from the Solicitation
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`Statement is disclosed to the Company’s stockholders prior to the forthcoming stockholder vote
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`so that they can properly exercise their corporate suffrage rights.2
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`5.
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`For these reasons and as set forth in detail herein, Plaintiff seeks to enjoin
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`Defendants from taking any steps to consummate the Proposed Transaction unless and until the
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`material information discussed below is disclosed to the Company’s stockholders or, in the event
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`the Proposed Transaction is consummated, to recover damages resulting from the defendants’
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`violations of the Exchange Act.
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`JURISDICTION AND VENUE
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`6.
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`This Court has jurisdiction over the claims asserted herein for violations of Sections
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`14(d)(4), 14(e), and 20(a) of the Exchange Act and SEC Rule 14d-9 promulgated thereunder
`
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`1 Pursuant to the Merger Agreement, Purchaser commenced the Tender Offer on July 12, 2022.
`2 The Tender Offer is currently scheduled to expire at one minute after 11:59 p.m., Eastern Time,
`on August 8, 2022.
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`2
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`pursuant to Section 27 of the Exchange Act, 15 U.S.C. § 78aa, and 28 U.S.C. § 1331 (federal
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`question jurisdiction).
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`7.
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`Personal jurisdiction exists over the defendants because each defendant either
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`conducts business in or maintains operations within this District, or is an individual with sufficient
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`minimum contacts with this District so as to make the exercise of jurisdiction by this Court
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`permissible under traditional notions of fair play and substantial justice.
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`8.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because defendants
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`are found or are inhabitants or transact business in this District.
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`THE PARTIES
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`9.
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`Plaintiff is, and has been at all relevant times, the owner of shares of Epizyme
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`common stock.
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`10.
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`Defendant Epizyme is a Delaware corporation, with its principal executive offices
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`located at 400 Technology Square, 4th Floor, Cambridge, Massachusetts 02139. Epizyme’s shares
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`trade on the Nasdaq Global Select Market under the ticker symbol “EPZM.”
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`11.
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`Defendant Kenneth Bate is and has been a director of the Company at all relevant
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`times.
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`12.
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`Defendant Roy A. Beveridge is and has been a director of the Company at all
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`relevant times.
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`13.
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`Defendant Grant Bogle is and has been President, Chief Executive Officer and a
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`director of the Company at all relevant times.
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`14.
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`Defendant Kevin T. Conroy is and has been a director of the Company at all
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`relevant times.
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`15.
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`Defendant Michael F. Giordano is and has been a director of the Company at all
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`relevant times.
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`3
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`16.
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`Defendant Carl Goldfischer is and has been a director of the Company at all
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`relevant times.
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`17.
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`Defendant Pablo Legorreta is and has been a director of the Company at all relevant
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`times.
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`18.
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`Defendant David M. Mott is and has been Chairman of the Board and a director of
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`the Company at all relevant times.
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`19.
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`Defendant Victoria Richon is and has been a director of the Company at all relevant
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`times.
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`times.
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`20.
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`Defendant Carol Stuckley is and has been a director of the Company at all relevant
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`21.
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`Defendants identified in paragraphs 11-20 are collectively referred to herein as the
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`“Board” or the “Individual Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`The Proposed Transaction
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`22.
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`On June 27, 2022, Epizyme announced that it had entered into the Proposed
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`Transaction, stating in relevant part:
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`PARIS, FRANCE & CAMBRIDGE, MASSACHUSETTS, 27 June 2022 –
`Ipsen (Euronext: IPN; ADR: IPSEY) and Epizyme (Nasdaq: EPZM) today
`announced that they have entered into a definitive merger agreement under which
`Ipsen will acquire Epizyme. The transaction was unanimously approved by both
`Ipsen and Epizyme Boards of Directors and is anticipated to close by the end of the
`third quarter of 2022, subject to the satisfaction of all closing conditions. Epizyme
`is a fully integrated, commercial-stage biopharmaceutical company developing and
`delivering transformative therapies against novel epigenetic targets for cancer
`patients.
`
`
`lead medicine,
`the
`is on
`the acquisition
`focus of
`The primary
`Tazverik® (tazemetostat), a first-in-class, chemotherapy-free EZH2[1] inhibitor,
`which was granted Accelerated Approval by
`the U.S. Food and Drug
`Administration (FDA) in 2020. It is currently indicated for adults with relapsed or
`refractory follicular lymphoma (FL) whose tumors are positive for an EZH2
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`4
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`mutation as detected by an FDA-approved test and who have received at least two
`prior systemic therapies, and for adult patients with relapsed or refractory follicular
`lymphoma who have no satisfactory alternative treatment options, as well as for
`adults and pediatric patients aged 16 years and older with metastatic or locally
`advanced epithelioid sarcoma not eligible for complete resection.[i] Tazverik is
`currently
`in
`the Phase III stage of a registrational confirmatory study
`(SYMPHONY-1) in combination with rituximab and lenalidomide (R2) in patients
`with relapsed/refractory FL who have received at least one prior therapy. Initial
`results from the Phase III randomized portion of this study are planned to read out
`in 2026.
`
`
`As part of the transaction, Ipsen will also acquire Epizyme’s first-in-class, oral
`SETD2 inhibitor development candidate, EZM0414, which was granted FDA Fast
`Track status and is currently under evaluation in a recently initiated Phase I/Ib trial
`in adult patients with relapsed or refractory multiple myeloma and diffuse large B-
`cell lymphoma, as well as a portfolio of preclinical programs focusing on epigenetic
`targets.
`
`
`“Through this agreement, we will expand our assets in oncology. Ipsen’s
`capabilities and resources in oncology combined with Epizyme’s will accelerate
`the growth of Tazverik to achieve its full potential in follicular lymphoma patients.
`The strength of data support Tazverik’s positioning in patients with both EZH2
`mutation positive and wild-type follicular lymphoma. We are compelled by the
`potential of its efficacy and tolerability profile, especially for elderly and/or frail
`patients who are treated in the community-based setting. Furthermore, we are
`excited to bring on board epigenetic expertise and the SETD2 inhibitor, as well as
`several pre-clinical compounds into our portfolio,” said David Loew, Chief
`Executive Officer of Ipsen.
`
`
`“Epizyme was founded in 2007 with a commitment to rigorous scientific research
`and a vision of developing novel epigenetic therapies. I am incredibly proud of what
`our team has accomplished over the past 15 years, from the approval of Tazverik
`to advancing our next novel investigational agent, EZM0414, to the clinic, as well
`as the progress made on our preclinical compounds focused on both hematologic
`malignancies and solid tumors,” said Grant Bogle, President and Chief Executive
`Officer of Epizyme. “We expect that this acquisition and Ipsen’s commitment to
`invest in the oncology space will ensure our epigenetic pipeline continues to
`advance in a way we could not have done on our own to bring transformative cancer
`therapies to patients in need.”
`
`
`Financial highlights
`The acquisition of Epizyme will immediately provide incremental sales and will
`leverage the U.S. commercial infrastructure. Given the level of ongoing R&D
`expenses, the transaction is expected to be moderately dilutive on Ipsen’s core
`operating income until the end of 2024. This is in line with Ipsen’s medium-term
`outlook regarding its strategic focus on building a high-value and sustainable
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`5
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`pipeline through external innovation. The dilutive impact on 2022 core operating
`margin will be limited, given the expected timing of the transaction.
`
`
`Transaction details
`The Board of Directors of Epizyme has unanimously approved the transaction and
`recommended that the stockholders of Epizyme tender their shares in the tender
`offer. Royalty Pharma, Epizyme’s largest stockholder with approximately 20.5%
`of Epizyme’s total shares of common stock outstanding (on a non-diluted basis) as
`of the date hereof, has entered into a support agreement with Ipsen pursuant to
`which it has agreed to tender its shares in the tender offer.
`
`
`Under the terms of the agreement and plan of merger, Ipsen, through a subsidiary,
`will initiate a tender offer to acquire all outstanding shares of Epizyme at a price of
`$1.45 per share in cash at the closing of the transaction, for an initial estimated
`aggregate consideration of $247 million[2] plus one contingent value right (CVR)
`per share. Each CVR will entitle its holder to deferred cash payments of $0.30 per
`CVR payable upon the first achievement of $250 million in aggregate net sales of
`Tazverik (excluding sales in Japan and Greater China[3]) in any period of four
`consecutive quarters, by 31 December 2026 and $0.70 per CVR payable upon
`receipt of U.S. regulatory approval necessary for the commercial marketing and
`sale of the combination of Tazverik and R² (rituximab and lenalidomide) in second-
`line follicular lymphoma by 1 January 2028. The $1.45 per share cash consideration
`represents a premium of approximately 144% compared to Epizyme’s average
`closing price of $0.60 over the 30 trading days preceding announcement of the
`transaction. The transaction will be fully financed by Ipsen’s existing cash and lines
`of credit.
`
`
`The closing of the tender offer will be subject to customary conditions, including
`the tender of shares representing at least a majority of the total number of
`Epizyme’s outstanding shares, the expiration of the waiting period under the Hart-
`Scott-Rodino Antitrust Improvements Act and other customary conditions. Upon
`the successful completion of the tender offer, Ipsen would acquire all shares not
`acquired in the tender through a second-step merger for the same consideration as
`the tendering shareholders.
`
`
`The Materially Incomplete and Misleading Solicitation Statement
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`23.
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`On July 7, 2022, the Board caused to be filed a materially incomplete and
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`misleading Solicitation Statement with the SEC. The Solicitation Statement, which recommends
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`that Epizyme stockholders tender their shares in the Tender Offer, fails to disclose material
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`information to Company stockholders, or provides them with materially misleading information,
`
`concerning: (a) Company’s financial projections and the financial analyses that support the
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`6
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`fairness opinion provided by the Company’s financial advisor, MTS Securities, LLC. (“MTS”);
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`and (b) potential conflicts of interest faced by the Company’s additional financial advisor Jefferies
`
`LLC (“Jefferies”) and Company insiders.
`
`Material Misrepresentations and/or Omissions Concerning MTS’s Financial Analyses
`
`
`24.
`
`The Solicitation Statement fails to disclose material information concerning MTS’s
`
`financial analyses, including with respect to the financial advisor’s Discounted Cash Flow Analysis
`
`(“DCF”). Specifically, the Solicitation Statement fails to disclose (a) the Company’s cash flows
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`for calendar year 2036 and going forward; (b) the Epizyme’s terminal values; and (c) the inputs
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`and assumptions underlying the range of discount rates utilized by MTS in connection with this
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`analysis.
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`25. With respect to the Public Trading Comparable Companies and Precedent
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`Transactions Analyses performed by MTS, the Solicitation Statement fails to disclose the
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`individual multiples and financial metrics for each of the respective selected companies and
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`transactions MTS analyzed.
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`Material Misrepresentations and/or Omissions Concerning Jefferies and Company Insiders’
`Potential Conflicts of Interest
`
`
`26.
`
`The Solicitation Statement fails to disclose material information concerning
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`potential conflicts of interest faced by both Company insiders and Jefferies, including the details
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`of any services Jefferies has provided to Epizyme, Ipsen, or their affiliates in the previous two
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`years. In addition, to the extent Jefferies has provided any such services, the Solicitation Statement
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`fails to disclose any remuneration received by the financial advisor.
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`27.
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`The Solicitation Statement also fails to disclose material information concerning
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`Company insiders’ potential conflicts of interest, including the details of any employment and
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`retention-related discussions and negotiations that occurred between Ipsen and Epizyme’s
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`7
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`

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`executive officers, as well as the discussions and negotiations concerning the “Special Recognition
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`Letters” entered into with Jerald Korn and Jeffery Kutok, including who participated in all such
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`communications, when they occurred and their content.
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`28.
`
`The Solicitation Statement similarly fails to disclose whether any of Ipsen’s
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`proposals or indications of interest mentioned management retention in the combined company
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`following the Proposed Transaction or the purchase of or participation in the equity of the
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`surviving corporation.
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`29.
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`In sum, the omission of the above-referenced information renders statements in the
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`“Opinion of
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`the Company’s Financial Advisor,” “Person/Assets Retained, Employed,
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`Compensated or Used,” “Background of the Offer,” and “Arrangements between the Company
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`and its Executive Officers, Directors and Affiliates” sections of the Solicitation Statement
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`materially incomplete and misleading in contravention of the Exchange Act. Absent disclosure of
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`the foregoing material information prior to the expiration of the Tender Offer, Plaintiff and the
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`other stockholders of Epizyme will be unable to make a sufficiently informed decision in
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`connection with the Tender Offer and are thus threatened with irreparable harm warranting the
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`injunctive relief sought herein.
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`CLAIMS FOR RELIEF
`
`COUNT I
`
`Claims Against All Defendants for Violations of Section 14(d) of the
`Exchange Act and SEC Rule 14d-9 Promulgated Thereunder
`
`Plaintiff repeats all previous allegations as if set forth in full.
`
`Defendants have caused the Solicitation Statement to be issued with the intention
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`30.
`
`31.
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`of soliciting Epizyme stockholders to tender their shares in the Tender Offer.
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`8
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`

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`32.
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`Section 14(d)(4) of the Exchange Act and SEC Rule 14d-9 promulgated thereunder
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`require full and complete disclosure in connection with tender offers.
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`33.
`
`Section 14(d)(4) of the Exchange Act states:
`
`Any solicitation or recommendation to the holders of such a security to accept or
`reject a tender offer or request or invitation for tenders shall be made in accordance
`with such rules and regulations as the Commission may prescribe as necessary or
`appropriate in the public interest or for the protection of investors.
`
`34.
`
`SEC Rule 14d-9 sets forth, in relevant part:
`
`Any solicitation or recommendation to holders of a class of securities referred to in
`section 14(d)(1) of the Act with respect to a tender offer for such securities shall
`include the name of the person making such solicitation or recommendation and
`the information required by Items 1 through 8 of Schedule 14D-9 (§ 240.14d-101)
`or a fair and adequate summary thereof[.]
`
`35.
`
`Item 8 of Schedule 14D-9 requires a company’s directors to “[f]urnish such
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`additional material information, if any, as may be necessary to make the required statements, in
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`light of the circumstances under which they are made, not materially misleading.”
`
`36.
`
`The Solicitation Statement violates Section 14(d)(4) and Rule 14d-9 because it
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`omits material facts, including those set forth above, which omission renders the Solicitation
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`Statement false and/or misleading.
`
`37.
`
`Defendants knowingly or with deliberate recklessness omitted the material
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`information identified above from the Solicitation Statement, causing certain statements therein to
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`be materially incomplete and therefore misleading. Indeed, while defendants undoubtedly had
`
`access to and/or reviewed the omitted material information in connection with approving the
`
`Proposed Transaction, they allowed it to be omitted from the Solicitation Statement, rendering
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`certain portions of the Solicitation Statement materially incomplete and therefore misleading.
`
`38.
`
`The misrepresentations and omissions in the Solicitation Statement are material to
`
`Plaintiff and the other stockholders of Epizyme, who will be deprived of their right to make an
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`9
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`

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`informed decision whether to tender their shares or seek appraisal if such misrepresentations and
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`omissions are not corrected prior to the expiration of the Tender Offer. Plaintiff has no adequate
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`remedy at law. Only through the exercise of this Court’s equitable powers can Plaintiff be fully
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`protected from the immediate and irreparable injury that defendants’ actions threaten to inflict.
`
`COUNT II
`
`Claims Against All Defendants for Violations of Section 14(e) of the Exchange Act
`
`39.
`
`40.
`
`Plaintiff repeats all previous allegations as if set forth in full.
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`Section 14(e) of the Exchange Act provides that it is unlawful “for any person to
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`make any untrue statement of a material fact or omit to state any material fact necessary in order
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`to make the statements made, in the light of the circumstances under which they are made, not
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`misleading . . . in connection with any tender offer or request or invitation for tenders, or any
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`solicitation of security holders in opposition to or in favor of any such offer, request, or invitation.”
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`15 U.S.C. § 78n(e).
`
`41.
`
`Defendants violated Section 14(e) of the Exchange Act by issuing the Solicitation
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`Statement to Epizyme stockholders in which they made untrue statements of material facts or
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`failed to state all material facts necessary in order to make the statements made, in light of the
`
`circumstances under which they are made, not misleading. Specifically, the Solicitation Statement
`
`misrepresented and/or omitted material facts concerning the Company’s financial projections,
`
`Goldman Sachs’ financial analyses, the background of the Proposed Transaction, and Company
`
`insiders’ potential conflicts of interest.
`
`42.
`
`Defendants knew that Plaintiff would rely upon their statements in the Solicitation
`
`Statement in determining whether to tender his shares pursuant to the Tender Offer or seek
`
`appraisal.
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`10
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`43.
`
`As a direct and proximate result of these defendants’ unlawful course of conduct in
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`violation of Section 14(e) of the Exchange Act, absent injunctive relief from the Court, Plaintiff
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`has sustained and will continue to sustain irreparable injury by being denied the opportunity to
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`make an informed decision in deciding whether or not to tender his shares or seek appraisal.
`
`COUNT III
`
`Claims Against the Individual Defendants for Violations
`of Section 20(a) of the Exchange Act
`
`Plaintiff repeats all previous allegations as if set forth in full.
`
`The Individual Defendants acted as controlling persons of Epizyme within the
`
`44.
`
`45.
`
`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as
`
`officers and/or directors of Epizyme, and participation in and/or awareness of the Company’s
`
`operations and/or intimate knowledge of the false statements contained in the Solicitation
`
`Statement filed with the SEC, they had the power to influence and control and did influence and
`
`control, directly or indirectly, the decision-making of the Company, including the content and
`
`dissemination of the various statements which Plaintiff contends are false and misleading.
`
`46.
`
`Each of the Individual Defendants was provided with or had unlimited access to
`
`copies of the Solicitation Statement and other statements alleged by Plaintiff to be misleading prior
`
`to and/or shortly after these statements were issued and had the ability to prevent the issuance of
`
`the statements or cause the statements to be corrected.
`
`47.
`
`In particular, each of the Individual Defendants had direct and supervisory
`
`involvement in the day-to-day operations of the Company, and, therefore, is presumed to have had
`
`the power to control or influence the particular transactions giving rise to the securities violations
`
`as alleged herein, and exercised the same. The Solicitation Statement at issue contains the
`
`11
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`unanimous recommendation of each of the Individual Defendants to approve the Proposed
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`Transaction. They were, thus, directly involved in the making of the Solicitation Statement.
`
`48.
`
`In addition, as the Solicitation Statement sets forth at length, and as described
`
`herein, the Individual Defendants were each involved in negotiating, reviewing, and approving the
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`Proposed Transaction. The Solicitation Statement purports to describe the various issues and
`
`information that they reviewed and considered; descriptions into which Company directors had
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`input.
`
`49.
`
`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
`
`of the Exchange Act.
`
`50.
`
`As set forth above, the Individual Defendants had the ability to exercise control
`
`over and did control a person or persons who have each violated Section 14(e), Section 14(d) and
`
`SEC Rule 14d-9, promulgated thereunder, by their acts and omissions as alleged herein. By virtue
`
`of their positions as controlling persons, these defendants are liable pursuant to Section 20(a) of
`
`the Exchange Act. As a direct and proximate result of defendants’ conduct, Epizyme stockholders
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`will be irreparably harmed.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff demands judgment and preliminary and permanent relief,
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`including injunctive relief, in his favor on behalf of Epizyme, and against defendants, as follows:
`
`A.
`
`Preliminarily and permanently enjoining defendants and all persons acting in
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`concert with them from proceeding with, consummating, or closing the Proposed Transaction,
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`including the expiration of the Tender Offer, unless and until defendants disclose the material
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`information identified above which has been omitted from the Solicitation Statement;
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`B.
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`In the event defendants consummate the Proposed Transaction, rescinding it and
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`setting it aside or awarding rescissory damages to Plaintiff;
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`12
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`C.
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`Directing the Individual Defendants to file a Solicitation Statement that does not
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`contain any untrue statements of material fact;
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`D.
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`Awarding Plaintiff the costs of this action, including reasonable allowance for
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`Plaintiff’s attorneys’ and experts’ fees; and
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`E.
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`Granting such other and further relief as this Court may deem just and proper.
`
`
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`Plaintiff demands a trial by jury on all claims and issues so triable.
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`JURY DEMAND
`
`Dated: July 22, 2022
`
`
`
`
`
`By
`
`
`LONG LAW, LLC
`
`/s/ Brian D. Long
`Brian D. Long (#4347)
`3828 Kennett Pike, Suite 208
`Wilmington, DE 19807
`Telephone: (302) 729-9100
`Email: BDLong@longlawde.com
`
`Attorneys for Plaintiff
`
`13
`
`