Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 1 of 14
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`Case No. 1:21-cv-8430
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`COMPLAINT FOR VIOLATIONS OF
`SECTIONS 14(e), 14(d) AND 20(a) OF
`THE SECURITIES EXCHANGE ACT
`OF 1934
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`JURY TRIAL DEMANDED
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`--------------------------------------------------------
`ELAINE WANG,
`
`
`Plaintiff,
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`
`v.
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`ACCELERON PHARMA INC., FRANCOIS
`NADER, M.D., M.B.A., HABIB DABLE,
`LAURA J. HAMILL, CHRISTOPHER HITE,
`TERRENCE C. KEARNEY, KEMAL
`MALIK, M.B., B.S., THOMAS A.
`MCCOURT, KAREN L. SMITH, M.D.,
`PH.D., JOSEPH S. ZAKRZEWSKI,
`
`
`Defendants.
`--------------------------------------------------------
`
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`Elaine Wang (“Plaintiff”), by and through her attorneys, alleges the following upon
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`information and belief, including investigation of counsel and review of publicly-available
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`information, except as to those allegations pertaining to Plaintiff, which are alleged upon personal
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`knowledge:
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`1.
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`This is an action brought by Plaintiff against Acceleron Pharma Inc. (“Acceleron
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`or the “Company”) and the members Acceleron board of directors (the “Board” or the “Individual
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`Defendants” and collectively with the Company, the “Defendants”) for their violations of Sections
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`14(e), 14(d), and 20(a) of the Securities Exchange Act of 1934 (the “Exchange Act”), in connection
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`with the proposed acquisition of Acceleron by affiliates of Merck & Co., Inc. (“Merck”).
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`2.
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`Defendants have violated the above-referenced Sections of the Exchange Act by
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`causing a materially incomplete and misleading Solicitation Statement on Schedule 14D-9 (the
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`“Solicitation Statement”) to be filed on October 12, 2021 with the United States Securities and
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`Exchange Commission (“SEC”) and disseminated to Company stockholders. The Solicitation
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 2 of 14
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`Statement recommends that Company stockholders tender their shares in support of a proposed
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`transaction whereby Astros Merger Sub, Inc. (“Merger Sub”), a wholly owned subsidiary of Merck
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`Sharp & Dohme Corp. (“Parent”), will purchase any and all of the outstanding shares of the
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`Company (the “Tender Offer”) and will be merged with and into the Company and the Company
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`will continue as the surviving corporation and a wholly-owned subsidiary of Parent (the “Proposed
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`Transaction”). Merger Sub will thereafter cease to exist. Pursuant to the terms of the definitive
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`agreement and plan of merger the companies entered into, dated September 29, 2021 (the “Merger
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`Agreement”), each Acceleron common share issued and outstanding will be converted into the
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`right to receive $180.00 (the “Merger Consideration”). In accordance with the Merger Agreement,
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`Merger Sub commenced a tender offer to acquire all of Acceleron’s outstanding common stock
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`and will expire on November 10, 2021.
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`3.
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`Defendants have now asked Acceleron’s stockholders to support the Proposed
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`Transaction based upon the materially incomplete and misleading representations and information
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`contained in the Solicitation Statement, in violation of Sections 14(e), 14(d), and 20(a) of the
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`Exchange Act. Specifically, the Solicitation Statement contains materially incomplete and
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`misleading information concerning, among other things, (i) Acceleron’s financial projections
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`relied upon by the Company’s financial advisors, Centerview Partners LLC (“Centerview”) and
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`J.P. Morgan Securities LLC (“J.P. Morgan”) in their financial analyses; and (ii) the data and inputs
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`underlying the financial valuation analyses that support the fairness opinions provided by the
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`financial advisors. The failure to adequately disclose such material information constitutes a
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`violation of Sections 14(e), 14(d), and 20(a) of the Exchange Act as Acceleron stockholders need
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`such information in order to tender their shares in support of the Proposed Transaction.
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 3 of 14
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`4.
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`It is imperative that the material information that has been omitted from the
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`Solicitation Statement is disclosed to the Company’s stockholders prior to the expiration of the
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`tender offer.
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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 Acceleron’s stockholders or, in the event the
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`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 subject matter jurisdiction pursuant to Section 27 of the Exchange
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`Act (15 U.S.C. § 78aa) and 28 U.S.C. § 1331 (federal question jurisdiction) as Plaintiff alleges
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`violations of Sections 14(e), 14(d), and 20(a) of the Exchange Act and SEC Rule 14a-9.
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`7.
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`Personal jurisdiction exists over each Defendant either because each is an
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`individual who is either present in this District for jurisdictional purposes or has sufficient
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`minimum contacts with this District as to render the exercise of jurisdiction over defendant by this
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`Court 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 under Section 27 of the Exchange Act, 15 U.S.C. §
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`78aa, as well as under 28 U.S.C. § 1391, because Acceleron stock is traded on the NASDAQ stock
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`exchange, headquartered in this District. Centerview, Acceleron’s financial advisor, is also
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`headquartered in this District.
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`PARTIES
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`9.
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`Plaintiff is, and has been at all relevant times, the owner of Acceleron common
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`stock and has held such stock since prior to the wrongs complained of herein.
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 4 of 14
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`10.
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`Individual Defendant Francois Nader, M.D., M.B.A. has served as a member of the
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`Board since December 2014 and as Chairman of the Board since March 2015.
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`11.
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`Individual Defendant Habib Dable has served as a member of the Board since
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`December 2016 and is Acceleron’s President and Chief Executive Officer.
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`12.
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`Individual Defendant Laura J. Hamill has served as a member of the Board since
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`September 2020.
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`13.
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`Individual Defendant Christopher Hite has served as a member of the Board and
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`since June 2020.
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`14.
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`Individual Defendant Terrence C. Kearney has been a member of the Board since
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`July 2014.
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`15.
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`Individual Defendant Kemal Malik, M.B., B.S. has served as a member of the
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`Board since January 2020.
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`16.
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`Individual Defendant Thomas A. McCourt has served as member of the Board since
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`July 2016.
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`17.
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`Individual Defendant Karen K. Smith, M.D., Ph.D. has served as member of the
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`Board since November 2017.
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`18.
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`Individual Defendant Joseph S. Zakrzewski has served as member of the Board
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`since 2011.
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`19.
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`Defendant Acceleron is incorporated in Delaware and maintains its principal
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`offices at 128 Sidney Street, Cambridge, Massachusetts 02139. The Company’s common stock
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`trades on the NASDAQ Stock Exchange under the symbol “XLRN.”
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`20.
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`The defendants identified in paragraphs 10-18 are collectively referred to as the
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`“Individual Defendants” or the “Board.”
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 5 of 14
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`21.
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`The defendants identified in paragraphs 10-19 are collectively referred to as the
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`“Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`A.
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`The Proposed Transaction
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`22.
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`Acceleron, a biopharmaceutical company, focuses on the discovery, development,
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`and commercialization of therapeutics to treat serious and rare diseases. It offers REBLOZYL
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`(luspatercept-aamt), a first-in-class erythroid maturation agent, for the treatment of anemia in adult
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`patients with beta-thalassemia and transfusion-dependent anemia. The Company is also
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`developing Sotatercept, an activin receptor type IIA fusion protein, for the treatment of patients
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`with pulmonary arterial hypertension; ACE-1334, a pulmonary therapeutic candidate that is in
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`Phase I clinical trials; and luspatercept-aamt for non-transfusion-dependent beta-thalassemia
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`patients and lower-risk myelodysplastic syndrome patients. It has a license agreements with the
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`Salk Institute for Biological Studies for the cloning of type II activin receptors; and license
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`agreement with Fulcrum Therapeutics, Inc. to identify small molecules designed to modulate
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`specific pathways associated with a targeted indication within the pulmonary disease space. The
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`Company was formerly known as Phoenix Pharma, Inc. Acceleron was incorporated in 2003 and
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`is headquartered in Cambridge, Massachusetts.
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`23.
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`On September 30, 2021, Merck and the Company announced the Proposed
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`Transaction:
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`KENILWORTH, N.J. & CAMBRIDGE, Mass.--(BUSINESS
`WIRE)--Merck (NYSE: MRK), known as MSD outside the United
`States and Canada, and Acceleron Pharma Inc. (Nasdaq: XLRN), a
`publicly traded biopharmaceutical company, today announced that
`the companies have entered into a definitive agreement under which
`Merck, through a subsidiary, will acquire Acceleron for $180 per
`share in cash for an approximate total equity value of $11.5 billion.
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 6 of 14
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`Acceleron is focused on harnessing the power of the transforming
`growth factor (TGF)-beta superfamily of proteins that is known to
`play a central role in the regulation of cell growth, differentiation
`and repair. Acceleron’s lead therapeutic candidate, sotatercept, has
`a novel mechanism of action with the potential to improve short-
`term and/or long-term clinical outcomes in patients with pulmonary
`arterial hypertension (PAH), a progressive and life-threatening
`blood vessel disorder. Sotatercept is in Phase 3 trials as add-on to
`current standard of care for the treatment of PAH.
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`“Strategic business development is a top priority for Merck as we
`look to drive sustainable growth and further bolster and balance our
`pipeline with breakthrough science,” said Rob Davis, chief
`executive officer and president, Merck. “Acceleron’s innovative
`research has yielded an exciting
`late-stage candidate
`that
`complements and strengthens our growing cardiovascular portfolio
`and pipeline and holds the potential to build upon Merck’s proud
`legacy in cardiovascular disease.”
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`includes
`to sotatercept, Acceleron’s portfolio
`In addition
`erythroid
`REBLOZYL® (luspatercept-aamt),
`a
`first-in-class
`maturation recombinant fusion protein approved in the United
`States, Europe, Canada and Australia for the treatment of anemia in
`certain rare blood disorders. REBLOZYL is being developed and
`commercialized through a global collaboration with Bristol Myers
`Squibb.
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`“This agreement with Merck represents the culmination of decades
`of work by Acceleron researchers successfully leveraging our
`company’s deep scientific expertise in the biology of the TGF-beta
`superfamily and driven by an unwavering dedication to delivering
`life-changing medicines for patients,” said Habib Dable, chief
`executive officer and president, Acceleron. “We believe Merck is
`well-positioned
`to apply
`its
`industry-leading clinical and
`commercial capabilities to harness the potential of sotatercept as we
`join together to help make an impact on cardiopulmonary disease
`for the benefit of patients.”
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`Under the terms of the acquisition agreement, Merck, through a
`subsidiary, will initiate a tender offer to acquire all outstanding
`shares of Acceleron. The closing of the tender offer will be subject
`to certain conditions, including the tender of shares representing at
`least a majority of the total number of Acceleron’s outstanding
`shares, receipt of applicable regulatory approvals, and other
`customary conditions. Upon the successful completion of the tender
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 7 of 14
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`offer, Merck’s acquisition subsidiary will be merged into Acceleron,
`and any remaining shares of common stock of Acceleron will be
`canceled and converted into the right to receive the same $180 per
`share price payable in the tender offer. The transaction is expected
`to close in the fourth quarter of 2021.
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`It is therefore imperative that Acceleron’s stockholders are provided with the
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`* * *
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`24.
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`material information that has been omitted from the Solicitation Statement, so that they can
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`meaningfully assess whether or not the Proposed Transaction is in their best interests.
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`B.
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`The Materially Incomplete and Misleading Solicitation Statement
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`25.
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`On October 12, 2021, Acceleron filed the Solicitation Statement with the SEC in
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`connection with the Proposed Transaction. The Solicitation Statement was furnished to the
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`Company’s stockholders and solicits the stockholders to tender their shares in support of the
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`Proposed Transaction. The Individual Defendants were obligated to carefully review the
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`Solicitation Statement before it was filed with the SEC and disseminated to the Company’s
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`stockholders to ensure that it did not contain any material misrepresentations or omissions.
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`However, the Solicitation Statement misrepresents and/or omits material information that is
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`necessary for the Company’s stockholders to make an informed decision concerning whether to
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`tender their shares, in violation of Sections 14(e), 14(d), and 20(a) of the Exchange Act.
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`26.
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`The Solicitation Statement omits material information regarding the Company’s
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`financial projections and the valuation analyses performed by the financial advisors, the disclosure
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`of which is material because it provides stockholders with a basis to project the future financial
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`performance of the target company, and allows stockholders to better understand the analyses
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`performed by the financial advisor in support of its fairness opinion of the transaction.
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 8 of 14
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`27.
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`For the Company Projections (the “Projections”) prepared by Company
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`management for Acceleron for fiscal years 2021 through 2045, the Solicitation Statement fails to
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`provide what the risk and probability adjustments were assumed and applied for the purposes of
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`preparing the Projections.
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`28.
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`As indicated on page 40 of the Solicitation Statement, the Projections are “risk-
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`adjusted,” but the Solicitation Statement does not explain why only risk-adjusted figures are
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`disclosed.
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`29. With respect to J.P. Morgan’s Discounted Cash Flow Analysis, the Solicitation
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`Statement fails to disclose: (i) the basis for applying the range of discount rates from 8.5% to
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`10.5%; (ii) Company’s weighted cost of capital and cost of equity.
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`30. With respect to Centerview’s Selected Public Company Analysis, the Solicitation
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`Statement fails to disclose: (i) the number of fully-diluted outstanding shares of the Company as
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`of September 27, 2021; and (ii) the considerations deemed relevant by and judgments made by
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`Centerview to arrive at the selected reference range of Enterprise Values of $3.0 billion to $10.0
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`billion.
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`31. With respect to Centerview’s Discounted Cash Flow Analysis, the Solicitation
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`Statement fails to disclose: (i) the basis for applying the range of discount rates from 8.5% to
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`10.5%; (ii) the implied fully diluted number of Company shares.
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`32. With respect to Centerview’s Analyst Price Target Analysis, the Solicitation
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`Statement fails to disclose: (i) the Wall Street research analysts observed; and (ii) the stock price
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`targets in the reports.
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`33. With respect to Centerview’s Premia Paid Analysis, the Solicitation Statement fails
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`to disclose: (i) the transactions observed; and (ii) the premium of each transaction.
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 9 of 14
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`34.
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`In sum, the omission of the above-referenced information renders statements in the
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`Solicitation Statement materially incomplete and misleading in contravention of the Exchange Act.
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`Absent disclosure of the foregoing material information prior to the expiration of the Tender Offer,
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`Plaintiff will be unable to make a fully-informed decision regarding whether to tender their shares,
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`and they are thus threatened with irreparable harm, warranting the injunctive relief sought herein.
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`CLAIMS FOR RELIEF
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`COUNT I
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`On Behalf of Plaintiff Against All Defendants for
`Violations of Section 14(e) of the Exchange Act
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`35.
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`herein.
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`36.
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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 . . .” 15 U.S.C. § 78n(e).
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`37.
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`Defendants violated Section 14(e) of the Exchange Act by issuing the Solicitation
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`Statement in which they made untrue statements of material facts or failed to state all material
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`facts necessary in order to make the statements made, in the light of the circumstances under which
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`they are made, not misleading, in conjunction with the Tender Offer. Defendants knew or
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`recklessly disregarded that the Solicitation Statement failed to disclose material facts necessary in
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`order to make the statements made, in light of the circumstances under which they were made, not
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`misleading.
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`38.
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`The Solicitation Statement was prepared, reviewed and/or disseminated by
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`Defendants. It misrepresented and/or omitted material facts, including material information about
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 10 of 14
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`the consideration offered to stockholders via the Tender Offer, the intrinsic value of the Company,
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`the Company’s financial projections, and the financial advisor’s valuation analyses and resultant
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`fairness opinion.
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`39.
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`In so doing, Defendants made untrue statements of material fact and omitted
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`material information necessary to make the statements that were made not misleading in violation
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`of Section 14(e) of the Exchange Act. By virtue of their positions within the Company and/or roles
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`in the process and in the preparation of the Solicitation Statement, Defendants were aware of this
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`information and their obligation to disclose this information in the Solicitation Statement.
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`40.
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`The omissions and misleading statements in the Solicitation Statement are material
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`in that a reasonable stockholder would consider them important in deciding whether to tender their
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`shares or seek appraisal. In addition, a reasonable investor would view the information identified
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`above which has been omitted from the Solicitation Statement as altering the “total mix” of
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`information made available to stockholders.
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`41.
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`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
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`access to and/or reviewed the omitted material information in connection with approving the
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`Tender Offer, they allowed it to be omitted from the Solicitation Statement, rendering certain
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`portions of the Solicitation Statement materially incomplete and therefore misleading.
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`42.
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`The misrepresentations and omissions in the Solicitation Statement are material to
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`Plaintiff, and Plaintiff will be deprived of her entitlement to make a fully informed decision if such
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`misrepresentations and omissions are not corrected prior to the expiration of the Tender Offer.
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`COUNT II
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 11 of 14
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` Violations of Section 14(d)(4) of the Exchange Act and
`Rule 14d-9 Promulgated Thereunder
`(Against All Defendants)
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`Plaintiff repeats and re-alleges each allegation set forth above as if fully set forth
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`43.
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`herein.
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`44.
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`Defendants have caused the Solicitation Statement to be issued with the intention
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`of soliciting stockholder support of the Tender Offer.
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`45.
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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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`46.
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`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 render the Solicitation Statement false
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`and/or misleading.
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`47.
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`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
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`access to and/or reviewed the omitted material information in connection with approving the
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`Tender Offer, they allowed it to be omitted from the Solicitation Statement, rendering certain
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`portions of the Solicitation Statement materially incomplete and therefore misleading.
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`48.
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`The misrepresentations and omissions in the Solicitation Statement are material to
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`Plaintiff and Plaintiff will be deprived of her entitlement to make a fully informed decision if such
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`misrepresentations and omissions are not corrected prior to the expiration of the Tender Offer.
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`COUNT III
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`On Behalf of Plaintiff Against the Individual Defendants for Violations of Section 20(a) of
`the Exchange Act
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`11
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 12 of 14
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`49.
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`
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`herein.
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`50.
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`The Individual Defendants acted as controlling persons of Acceleron within the
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`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as
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`directors of Acceleron, and participation in and/or awareness of the Company’s operations and/or
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`intimate knowledge of the incomplete and misleading statements contained in the Solicitation
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`Statement filed with the SEC, they had the power to influence and control and did influence and
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`control, directly or indirectly, the decision making of Acceleron, including the content and
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`dissemination of the various statements that Plaintiff contends are materially incomplete and
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`misleading.
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`51.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Solicitation Statement and other statements alleged by Plaintiff to be misleading prior
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`to and/or shortly after these statements were issued and had the ability to prevent the issuance of
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`the statements or cause the statements to be corrected.
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`52.
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`In particular, each of the Individual Defendants had direct and supervisory
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`involvement in the day-to-day operations of Acceleron, and, therefore, is presumed to have had
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`the power to control or influence the particular transactions giving rise to the Exchange Act
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`violations alleged herein, and exercised the same. The omitted information identified above was
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`reviewed by the Board prior to voting on the Proposed Transaction. The Solicitation Statement at
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`issue contains the unanimous recommendation of the Board to approve the Proposed Transaction.
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`The Individual Defendants were thus directly involved in the making of the Solicitation Statement.
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`53.
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`In addition, as the Solicitation Statement sets forth at length, and as described
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`herein, the Individual Defendants were involved in negotiating, reviewing, and approving the
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 13 of 14
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`Merger Agreement. The Solicitation Statement purports to describe the various issues and
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`information that the Individual Defendants reviewed and considered. The Individual Defendants
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`participated in drafting and/or gave their input on the content of those descriptions.
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`54.
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`By virtue of the foregoing, the Individual Defendants have violated Section 20(a)
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`of the Exchange Act.
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`55.
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`As set forth above, the Individual Defendants had the ability to exercise control
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`over and did control a person or persons who have each violated Section 14(d) and (e), by their
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`acts and omissions as alleged herein. By virtue of their positions as controlling persons, these
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`defendants are liable pursuant to Section 20(a) of the Exchange Act. As a direct and proximate
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`result of Individual Defendants’ conduct, Plaintiff will be irreparably harmed.
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`56.
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`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s
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`equitable powers can Plaintiff be fully protected from the immediate and irreparable injury that
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`Defendants’ actions threaten to inflict.
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`RELIEF REQUESTED
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`WHEREFORE, Plaintiff demands injunctive relief in her favor and against the Defendants
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`jointly and severally, as follows:
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`A.
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`Preliminarily and permanently enjoining Defendants and their counsel, agents,
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`employees and all persons acting under, in concert with, or for them, from proceeding with,
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`consummating, or closing the Proposed Transaction, unless and until Defendants disclose the
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`material information identified above which has been omitted from the Solicitation Statement;
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`A.
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`Rescinding, to the extent already implemented, the Merger Agreement or any of
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`the terms thereof, or granting Plaintiff rescissory damages;
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`B.
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`Directing the Defendants to account to Plaintiff for all damages suffered as a result
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`of their wrongdoing;
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`Case 1:21-cv-08430 Document 1 Filed 10/13/21 Page 14 of 14
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`C.
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`Awarding Plaintiff the costs and disbursements of this action, including reasonable
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`attorneys’ and expert fees and expenses; and
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`D.
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`Granting such other and further equitable relief as this Court may deem just and
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`proper.
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`JURY DEMAND
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`Plaintiff demands a trial by jury.
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`DATED: October 13, 2021
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`MELWANI & CHAN LLP
`
`
`/s Gloria Kui Melwani
`Gloria Kui Melwani (GM5661)
`1180 Avenue of the Americas, 8th Floor
`New York, New York 10036
`Tel: (212) 382-4620
`Email: gloria@melwanichan.com
`
`
`Attorneys for Plaintiff
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`14
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