Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`SUSAN FINGER,
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`Plaintiff,
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`v.
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`ACCELERON PHARMA INC., HABIB J.
`DABLE, TERRENCE C. KEARNEY,
`KAREN L. SMITH, LAURA J. HAMILL,
`CHRISTOPHER HITE, KEMAL MALIK,
`THOMAS A. MCCOURT, FRANCOIS
`NADER, and JOSEPH S. ZAKRZEWSKI,
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`Defendants.
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`Case No._______________
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`
`COMPLAINT FOR VIOLATIONS OF
`THE FEDERAL SECURITIES LAWS
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`JURY TRIAL DEMANDED
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`
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`Plaintiff Susan Finger (“Plaintiff”), by and through her undersigned counsel, for her
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`complaint against defendants, alleges upon personal knowledge with respect to herself, and upon
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`information and belief based upon, inter alia, the investigation of counsel as to all other allegations
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`herein, as follows:
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`NATURE OF THE ACTION
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`1.
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`Plaintiff brings this action against Acceleron Pharma Inc. (“Acceleron” or the
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`“Company”) and the members of its Board of Directors (the “Board” or the “Individual
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`Defendants”) for their violations of Sections 14(d)(4), 14(e) and 20(a) of the Securities Exchange
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`Act of 1934 (the “Exchange Act”), 15 U.S.C. §§ 78n(d)(4), 78n(e), 78t(a), and U.S. Securities and
`Exchange Commission (“SEC”) Rule 14d-9, 17 C.F.R. §240.14d-9(d) (“Rule 14d-9”), and to
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`enjoin the expiration of a tender offer (the “Tender Offer”) on a proposed transaction, pursuant to
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`

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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 2 of 19
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`which Acceleron will be acquired by Merck Sharp & Dohme Corp. (“Merck”), through Merck’s
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`subsidiary Astros Merger Sub, Inc. (“Purchaser”) (the “Proposed Transaction”).
`
`2.
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`On September 30, 2021, Acceleron and Merck issued a joint press release
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`announcing that they had entered into an Agreement and Plan of Merger (the “Merger Agreement”)
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`dated September 29, 2021, to sell Acceleron to Merck. Under the terms of the Merger Agreement,
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`Merck will acquire all outstanding shares of Acceleron for $180.00 in cash per share of Acceleron
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`common stock (the “Offer Price”). Pursuant to the Merger Agreement, Purchaser commenced the
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`Tender Offer on October 12, 2021. The Tender Offer is scheduled to expire at 5:00 p.m., Eastern
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`Time, on November 10, 2021. The Proposed Transaction is valued at approximately $11.5 billion.
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`3.
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`On October 12, 2021, Acceleron filed a Solicitation/Recommendation Statement
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`on Schedule 14D-9 (the “Recommendation Statement”) with the SEC. The Recommendation
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`Statement, which recommends that Acceleron stockholders tender their shares in favor of the
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`Tender Offer, omits or misrepresents material information concerning, among other things: (i) the
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`Company’s financial projections; (ii) the data and inputs underlying the financial valuation
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`analyses performed by the Company’s financial advisors J.P. Morgan Securities LLC (“J.P.
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`Morgan”) and Centerview Partners LLC (“Centerview”); and (iii) the background of the Proposed
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`Transaction. Defendants authorized the issuance of the false and misleading Recommendation
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`Statement in violation of Sections 14(d), 14(e) and 20(a) of the Exchange Act.
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`4.
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`In short, the Proposed Transaction will unlawfully divest Acceleron’s public
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`stockholders of the Company’s valuable assets without fully disclosing all material information
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`concerning the Proposed Transaction to Company stockholders. To remedy defendants’ Exchange
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`Act violations, Plaintiff seeks to enjoin the expiration of the Tender Offer unless and until such
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`problems are remedied.
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`2
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 3 of 19
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`JURISDICTION AND VENUE
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`5.
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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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`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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`6.
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`This Court has jurisdiction over the defendants because each defendant is either a
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`corporation that conducts business in and maintains operations within this District, or is an
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`individual with sufficient minimum contacts with this District so as to make the exercise of
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`jurisdiction by this Court permissible under traditional notions of fair play and substantial justice.
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`7.
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`Venue is proper in this District pursuant to 28 U.S.C. § 1391 because Plaintiff’s
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`claims arose in this District, where a substantial portion of the actionable conduct took place, where
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`most of the documents are electronically stored, and where the evidence exists. Acceleron’s
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`common stock trades on the Nasdaq Global Market, which is headquartered in this District,
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`rendering venue in this District appropriate.
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`PARTIES
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`8.
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`Plaintiff is, and has been at all times relevant hereto, a continuous stockholder of
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`Acceleron.
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`9.
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`Defendant Acceleron is a Delaware corporation, with its principal executive offices
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`located at 128 Sidney Street, Cambridge, Massachusetts 02139. Acceleron is a biopharmaceutical
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`company dedicated to the discovery, development and commercialization of therapeutics to treat
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`serious and rare diseases. Acceleron’s common stock is traded on the Nasdaq Global Market under
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`the ticker symbol “XLRN.”
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`3
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 4 of 19
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`10.
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`Defendant Habib J. Dable (“Dable”) has been Chief Executive Officer (“CEO”),
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`President, and a director of the Company since December 2016.
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`11.
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`Defendant Terrence C. Kearney (“Kearney”) has been a director of the Company
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`since July 2014.
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`12.
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`Defendant Karen L. Smith (“Smith”) has been a director of the Company since
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`November 2017.
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`13.
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`Defendant Laura J. Hamill (“Hamill”) has been a director of the Company since
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`September 2020.
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`14.
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`Defendant Christopher Hite (“Hite”) has been a director of the Company since June
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`2020.
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`15.
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`Defendant Kemal Malik (“Malik”) has been a director of the Company since
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`January 2020.
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`16.
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`Defendant Thomas A. McCourt (“McCourt”) has been a director of the Company
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`since July 2016.
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`17.
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`Defendant Francois Nader (“Nader”) has been Chair of the Board since March
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`2015, and a director of the Company since December 2014.
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`18.
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`Defendant Joseph S. Zakrzewski (“Zakrzewski”) has been a director of the
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`Company since 2011.
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`19.
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`Defendants identified in paragraphs 10 to 18 are collectively referred to herein as
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`the “Board” or the “Individual Defendants.”
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`OTHER RELEVANT ENTITIES
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`20. Merck is a New Jersey corporation with its principal executive offices located in
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`Kenilworth, New Jersey. Merck is a global health care company that delivers innovative health
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`4
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 5 of 19
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`solutions through its prescription medicines, vaccines, biologic therapies and animal health
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`products. Merck’s operations are principally managed on a products basis and include two
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`operating segments: the Pharmaceutical and Animal Health segments. The Pharmaceutical
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`segment includes human health pharmaceutical and vaccine products.
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` Human health
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`pharmaceutical products consist of therapeutic and preventive agents, generally sold by
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`prescription, for the treatment of human disorders. Merck sells these human health pharmaceutical
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`products primarily to drug wholesalers and retailers, hospitals, government agencies and managed
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`health care providers such as health maintenance organizations, pharmacy benefit managers and
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`other institutions. The Animal Health segment discovers, develops, manufactures and markets a
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`wide range of veterinary pharmaceutical and vaccine products, as well as health management
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`solutions and services, for the prevention, treatment and control of disease in all major livestock
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`and companion animal species. Merck’s common stock trades on the New York Stock Exchange
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`under the ticker symbol “MRK.”
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`21.
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`Purchaser is a Delaware corporation and wholly-owned subsidiary of Merck.
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`SUBSTANTIVE ALLEGATIONS
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`Company Background
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`22.
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`Acceleron
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`is a biopharmaceutical company dedicated
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`to
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`the discovery,
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`development, and commercialization of therapeutics to treat serious and rare diseases. Acceleron’s
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`leadership in the understanding of TGF-beta superfamily biology and protein engineering
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`generates innovative compounds that engage the body’s ability to regulate cellular growth and
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`repair. Acceleron focuses its research, development, and commercialization efforts in pulmonary
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`and hematologic diseases. In pulmonary, Acceleron is developing sotatercept for the treatment of
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`pulmonary arterial hypertension (“PAH”). Following positive PULSAR Phase 2 results,
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`Acceleron is executing on its Phase 3 development plan to support its long-term vision of
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 6 of 19
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`establishing sotatercept as a backbone key therapy for patients with PAH as an add-on to the
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`current standard of care. Acceleron has expanded its rare pulmonary disease pipeline and is
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`investigating the potential of ACE-1334 in a Phase 1b/Phase 2 trial in systemic sclerosis-associated
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`interstitial lung disease (SSc-ILD).
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`23.
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`In hematology, REBLOZYL (luspatercept-aamt) is the first and only erythroid
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`maturation agent approved in the United States, Europe, Canada and Australia for the treatment of
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`anemia in certain blood disorders. REBLOZYL is part of a global collaboration partnership with
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`Bristol Myers Squibb. The companies co-promote REBLOZYL in the United States and are also
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`developing luspatercept for the treatment of anemia in patient populations of myelodysplastic
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`syndromes, beta-thalassemia and myelofibrosis.
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`24.
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`On August 5, 2021, Acceleron announced its second quarter 2020 financial results
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`and business highlights. Acceleron recognized approximately $25.6 million in royalty revenue
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`from approximately $128 million in net sales of REBLOZYL in the second quarter of 2021,
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`compared with approximately $22.4 million in royalty revenue from approximately $112 million
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`in net sales of REBLOZYL in the first quarter of 2021. In June, Acceleron and Bristol Myers
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`Squibb presented results from multiple abstracts on luspatercept at the European Hematology
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`Association 2021 Virtual Congress. Results from the BEYOND Phase 2 trial of luspatercept in
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`adult patients with non-transfusion dependent beta-thalassemia were presented during the
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`Presidential Symposium, which honors the top six research papers submitted for presentation at
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`the meeting. Defendant Dable commented on the results, stating:
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`We were very pleased to highlight clinical updates from the PULSAR and
`SPECTRA Phase 2 trials of sotatercept reported at the annual ATS medical meeting
`and outline our plans for future long-term growth in rare pulmonary diseases at our
`Research & Development Day during the second quarter. Beyond our sotatercept
`clinical program in pulmonary arterial hypertension, most recently, we announced
`plans to expand the development of sotatercept into a Phase 2 trial in patients with
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 7 of 19
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`Group 2 pulmonary hypertension and develop ACE-1334 in systemic sclerosis-
`associated interstitial lung disease. To date, our pulmonary pipeline has grown to
`include seven ongoing and planned clinical trials, showcasing our long-term
`commitment to becoming a global leader in rare pulmonary disease.
`
`With respect to our hematology program, along with our commercial partner
`Bristol-Myers Squibb Company (Bristol Myers Squibb), we continue to be pleased
`with product uptake. Our joint commercial teams are presently focused on
`expanding the reach to appropriate patients earlier in their MDS journey—where
`there is particular demand—along with the optimal dose of REBLOZYL to
`maximize patient benefit and increased duration of treatment in this population to
`drive further growth this year and beyond. In June, we presented results from the
`BEYOND Phase 2 trial of luspatercept during the Presidential Symposium at EHA.
`The study achieved its primary endpoint of an increase in hemoglobin of at least 1
`gram per deciliter in the luspatercept treated group compared to placebo for the
`treatment of anemia in adults with non-transfusion dependent beta-thalassemia,
`supporting the rationale for its potential development in additional patient groups.
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`The Proposed Transaction
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`25.
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`On September 30, 2021, Acceleron and Merck issued a joint press release
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`announcing the Proposed Transaction. The press release stated, in relevant part:
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`KENILWORTH, N.J. & CAMBRIDGE, Mass.--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.
`
`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.
`
`“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
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 8 of 19
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`and holds the potential to build upon Merck’s proud legacy in cardiovascular
`disease.”
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`includes REBLOZYL®
`to sotatercept, Acceleron’s portfolio
`In addition
`(luspatercept-aamt), a first-in-class erythroid 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.
`
`“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.”
`
`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 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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`Insiders’ Interests in the Proposed Transaction
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`26.
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` Acceleron insiders are the primary beneficiaries of the Proposed Transaction, not
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`the Company’s public stockholders. The Board and the Company’s executive officers are
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`conflicted because they will have secured unique benefits for themselves from the Proposed
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`Transaction not available to Plaintiff and the public stockholders of Acceleron.
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`27.
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`Notably, Company insiders stand to reap substantial financial benefits for securing
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`the deal with Merck. The following table sets forth the cash payments the Company’s executive
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`officers and directors will receive in connection with tendering their shares in the Tender Offer:
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`8
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 9 of 19
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`28. Moreover, upon consummation of the Proposed Transaction, all vested and
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`unvested Company options, restricted stock units (“Company RSUs”), and performance stock
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`units (“Company PSUs”), will be converted into the right to receive cash payments. The
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`following table sets forth, for each of Acceleron’s executive officers and directors holding
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`Company stock options as of October 7, 2021, (i) the aggregate number of shares subject to
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`such stock options; and (ii) the value of cash amounts payable in respect of such stock options
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`upon consummation of the merger:
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`9
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 10 of 19
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`29.
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`The following table sets forth, for each of Acceleron’s executive officers and
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`directors holding Company RSUs and PSUs as of October 7, 2021, (i) the aggregate number
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`of shares subject to such RSUs and PSUs, and (ii) the value of cash amounts payable in respect
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`of such RSUs and PSUs upon consummation of the merger:
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`10
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 11 of 19
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`30. Additionally, Acceleron may pay 2021 annual bonuses to each of its executive
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`officers and other participating employees based on the greater of (a) the employee’s target
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`annual bonus and (b) the annual bonus determined based on actual performance through
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`closing of the merger. Defendant Dable’s target annual bonus is $442,260, Mr. Kevin
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`McLaughlin’s target annual bonus is $208,620, Dr. Jay Backstrom’s target annual bonus is
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`$244,530, Mr. Sujay Kango’s target annual bonus is $209,970, and Mr. Adam Veness’ target
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`annual bonus is $204,615.
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`The Recommendation Statement Contains Material Misstatements or Omissions
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`28.
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`The defendants filed a materially incomplete and misleading Recommendation
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`Statement with the SEC and disseminated it to Acceleron’s stockholders. The Recommendation
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`Statement misrepresents or omits material information that is necessary for the Company’s
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`stockholders to make an informed decision whether to tender their shares in the Tender Offer or
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`seek appraisal.
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`29.
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`Specifically, as set forth below, the Recommendation Statement fails to provide
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`Company stockholders with material information or provides them with materially misleading
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`information concerning: (i) the Company’s financial projections; (ii) the data and inputs
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`underlying the financial valuation analyses performed by the Company’s financial advisors, J.P.
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`Morgan and Centerview; and (iii) the background of the Proposed Transaction. Accordingly,
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`Acceleron stockholders are being asked to vote in favor of the Proposed Transaction or seek
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`appraisal without all material information at their disposal.
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`Material Omissions Concerning Acceleron’s Financial Projections
`The Recommendation Statement fails to disclose material information concerning
`30.
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`the Company’s financial projections.
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`11
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`31.
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`For example, the Recommendation Statement sets forth that at an August 6, 2021,
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`Board meeting,
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`The Company’s financial advisors and management team led the Company Board
`through a discussion of the draft preliminary financial projections which the
`management team had prepared at the Company Board’s direction at its prior
`meeting, and which the Company’s financial advisors had used for their respective
`preliminary views on the intrinsic value of the Company, also at the direction of
`the Company Board. The draft preliminary projections presented different
`assumptions regarding peak sales of sotatercept, Reblozyl, ACE-1334 and the
`Company’s other research and development programs, along with varying
`probabilities of success and other factors. The Company Board asked questions of
`the management team and of the Company’s financial advisors regarding the
`preliminary projections, to which they responded, and the Company Board engaged
`in a detailed discussion. Following the discussion, the Company Board provided
`feedback and requested that senior management, with the assistance of the
`Company’s financial advisors, address the Company Board’s feedback in a
`subsequent iteration of the financial projections at a future meeting.
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`Recommendation Statement at 11-12. The Recommendation Statement, however, fails to disclose
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`the specific feedback provided by the Board to be included in a subsequent iteration of the financial
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`projections.
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`32.
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`Additionally, the Recommendation Statement sets forth:
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`On August 16, 2021, the Company Board convened by videoconference with
`members of the Company’s senior management, the Company’s financial advisors
`and Ropes & Gray in attendance. . . . The Company’s management team and the
`Company’s financial advisors led a discussion with the Company Board regarding
`the assumptions underlying
`the revised projections
`that
`the Company’s
`management team was preparing, including the impact that adjustments to those
`assumptions would have on the resulting projections and valuation analyses based
`on the projections.
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`Id. at 13. The Recommendation Statement fails, however, to disclose the Company’s preliminary
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`financial forecasts, the assumptions and related risks underlying the preliminary forecasts, as well
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`as the impact that adjustments to those assumptions would have on the resulting projections and
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`valuation analyses based on the projections.
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`33. Moreover, the Recommendation Statement sets forth:
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`12
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 13 of 19
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`The Forecasts reflect numerous assumptions including with respect to (i) the
`probability and timing of success and regulatory approval, commercial success,
`market size, market share, competition, pricing and reimbursement for Reblozyl,
`sotatercept, ACE-1334 and the Company’s other product candidates; (ii) research
`and development expenses, sales, general and administrative expenses and other
`operating expenses; and (iii) other relevant factors relating to the Company’s
`strategic plan. The probability of success attributed to all indications for each
`product candidate in the Forecasts and the corresponding anticipated product
`candidate launch timelines are based on management assumptions and other
`considerations. The foregoing is a summary of certain key assumptions and
`estimates and does not purport to be a comprehensive overview of all assumptions
`and estimates reflected in the projections prepared by Company management.
`At the direction of the Company Board, such that the Company Board could
`consider its valuation determination with the benefit of sensitivity analysis
`regarding future sales of Reblozyl, the Company’s management team prepared, and
`the Company Board’s financial advisors evaluated as part of their fairness
`evaluation, management projections with three different assumptions regarding
`risk-adjusted peak sales for Reblozyl, one including risk-adjusted sales of Reblozyl
`of $3.1 billion, a second including risk-adjusted sales of Reblozyl of $4.7 billion
`and a third including risk-adjusted sales of Reblozyl of $5.9 billion.
`
`Id. at 40. Yet, the Recommendation Statement fails to disclose a quantification of the assumptions
`
`underlying the risk-adjusted projections. The Recommendation Statement further fails to disclose
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`the non-risk-adjusted projections so Acceleron stockholders can evaluate the financial impact the
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`Company’s risk-adjustments had on the projections.
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`34.
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`The omission of this information renders the statements in the “Certain Company
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`Management Forecasts” and “Background of the Offer” sections of the Recommendation
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`Statement false and/or materially misleading in contravention of the Exchange Act.
`
`Material Omissions Concerning J.P. Morgan’s and Centerview’s Financial Analyses
`
`35.
`
`The Recommendation Statement fails to disclose material information concerning
`
`J.P. Morgan’s and Centerview’s financial analyses.
`
`36.
`
`The Recommendation Statement describes J.P. Morgan’s and Centerview’s
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`fairness opinions and the various valuation analyses performed in support of their opinions.
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`However, the description of J.P. Morgan’s and Centerview’s fairness opinions and analyses fails
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`13
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 14 of 19
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`to include key inputs and assumptions underlying these analyses. Without this information, as
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`described below, Acceleron’s public stockholders are unable to fully understand these analyses
`
`and, thus, are unable to determine what weight, if any, to place on J.P. Morgan’s and Centerview’s
`
`fairness opinions in determining whether to tender their shares in the Tender Offer or seek
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`appraisal.
`
`37. With
`
`respect
`
`to J.P. Morgan’s Discounted Cash Flow Analysis,
`
`the
`
`Recommendation Statement fails to disclose: (i) quantification of the adjustments for option
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`exercise proceeds, outstanding restricted stock units and performance stock units, in each case, as
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`of September 27, 2021, and the impact of certain net operating losses, as of June 30, 2021, accrued
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`historically by the Company and net operating losses generated over the forecast period as
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`provided by management; and (ii) quantification of the inputs and assumptions underlying the
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`discount rates ranging from 8.5% to 10.5%.
`
`38. With
`
`respect
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`to Centerview’s Discounted Cash Flow Analysis,
`
`the
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`Recommendation Statement fails to disclose quantification of the inputs and assumptions
`
`underlying the discount rates ranging from 11.0% to 13.0%.
`
`39. With respect to Centerview’s Premia Paid Analysis, the Recommendation
`
`Statement fails to disclose: (i) the transactions observed; and (ii) the individual premiums observed
`
`for each of the transactions.
`
`40.
`
`The omission of this information renders the statements in the “Opinions of the
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`Financial Advisors to the Company Board” section of the Recommendation Statement false and/or
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`materially misleading in contravention of the Exchange Act.
`
`Material Omissions Concerning the Background of the Proposed Transaction
`The Recommendation Statement fails to disclose material information concerning
`41.
`
`the background of the Proposed Transaction.
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`14
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 15 of 19
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`42.
`
`For example, the Recommendation Statement sets forth that:
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`On August 5, 2021 . . . The Project Phoenix Committee [ ] discussed when and
`whether to contact other potential parties, some of whom had prior interaction with
`the Company, and others who might have interest in considering a potential
`acquisition of the Company, including “Party A,” which the Company Board
`viewed as the most likely competitive bidder.
`
`
`Id. at 12. The Recommendation Statement fails to disclose the specific nature of the prior
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`interactions the Company had with “Party A.”
`
`43.
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`Additionally, the Recommendation Statement fails to disclose whether any of
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`Merck’s proposals or indications of interest mentioned management retention in the combined
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`company following the Proposed Transaction or the purchase of or participation in the equity of
`
`the surviving corporation.
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`44.
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`The omission of this information renders the statements in the “Background of the
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`Offer” section of the Recommendation Statement false and/or materially misleading in
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`contravention of the Exchange Act.
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`45.
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`The Individual Defendants were aware of their duty to disclose the above-
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`referenced omitted information and acted negligently (if not deliberately) in failing to include this
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`information in the Recommendation Statement. Absent disclosure of the foregoing material
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`information prior to the expiration of the Tender Offer, Plaintiff and the other stockholders of
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`Acceleron will be unable to make a sufficiently informed tender or appraisal decision in connection
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`with the Proposed Transaction and are thus threatened with irreparable harm warranting the
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`injunctive relief sought herein.
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 16 of 19
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`CLAIMS FOR RELIEF
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`COUNT I
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`Claims Against All Defendants for Violations
`of Section 14(d) of the Exchange Act and SEC Rule 14d-9
`
`Plaintiff repeats all previous allegations as if set forth in full.
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`Defendants have caused the Recommendation Statement to be issued with the
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`31.
`
`32.
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`intention of soliciting Acceleron stockholders to tender their shares in the Tender Offer.
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`33.
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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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`34.
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`The Recommendation Statement violates Section 14(d)(4) and Rule 14d-9 because
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`it omits material facts, including those set forth above, which omission renders the
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`Recommendation Statement false and/or misleading.
`
`35.
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`Defendants knowingly or with deliberate recklessness omitted the material
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`information identified above from the Recommendation Statement, causing certain statements
`
`therein to be materially incomplete and therefore misleading. Indeed, while defendants
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`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 Recommendation
`
`Statement, rendering certain portions of the Recommendation Statement materially incomplete
`
`and therefore misleading.
`
`36.
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`The misrepresentations and omissions in the Recommendation Statement are
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`material to Plaintiff and the other stockholders of Acceleron, who will be deprived of their right to
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`make an informed decision whether to tender their shares or seek appraisal if such
`
`misrepresentations and omissions are not corrected prior to the expiration of the Tender Offer.
`
`Plaintiff has no adequate remedy at law. Only through the exercise of this Court’s equitable
`
`16
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 17 of 19
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`powers can Plaintiff be fully 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
`
`37.
`
`38.
`
`Plaintiff repeats all previous allegations as if set forth in full.
`
`Defendants violated Section 14(e) of the Exchange Act by issuing the
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`Recommendation Statement in which they made untrue statements of material facts or 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, or engaged in deceptive or manipulative acts or
`
`practices, in connection with the Tender Offer.
`
`39.
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`Defendants knew that Plaintiff would rely upon their statements in the
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`Recommendation Statement in determining whether to tender her shares pursuant to the Tender
`
`Offer or seek appraisal.
`
`40.
`
`As a direct and proximate result of these defendants’ unlawful course of conduct in
`
`violation of Section 14(e) of the Exchange Act, absent injunctive relief from the Court, Plaintiff
`
`has sustained and will continue to sustain irreparable injury by being denied the opportunity to
`
`make an informed decision in deciding whether or not to tender her shares or seek appraisal.
`
`COUNT III
`
`Claims Against the Individual Defendants for
`Violation 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 Acceleron within the
`
`41.
`
`42.
`
`meaning of Section 20(a) of the Exchange Act as alleged herein. By virtue of their positions as
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`officers or directors of Acceleron and participation in or awareness of the Company’s operations
`
`17
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`Case 1:21-cv-08615 Document 1 Filed 10/20/21 Page 18 of 19
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`or intimate knowledge of the false statements co