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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`Case No. __________________
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`DEMAND FOR JURY TRIAL
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`LAURIE VOLPE,
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`Plaintiff,
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`v.
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`INC.,
`DICERNA PHARMACEUTICALS,
`DOUGLAS M. FAMBROUGH, III, J. KEVIN
`BUCHI,
`STEPHEN
`DOBERSTEIN,
`MARTIN FREED, PATRICK M. GRAY,
`STEPHEN
`J. HOFFMAN, ADAM M.
`KOPPEL, MARC KOZIN, and CYNTHIA
`SMITH,
`
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`Defendants.
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`
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`COMPLAINT FOR VIOLATION OF THE SECURITIES EXCHANGE ACT OF 1934
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`Plaintiff, Laurie Volpe (“Plaintiff”), by her undersigned attorneys, for this Complaint
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`against Defendants, alleges upon personal knowledge with respect to herself, and upon information
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`and belief based upon, inter alia, the investigation of counsel, as to all other allegations herein, as
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`follows:
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`NATURE OF THE ACTION
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`1.
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`This is an action brought by Plaintiff against Dicerna Pharmaceuticals, Inc.
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`(“Dicerna” or the “Company”) and the members of the Company’s board of directors (collectively
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`referred to as the “Board” or the “Individual Defendants” and, together with Dicerna, the
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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 (“Exchange Act”), 15 U.S.C. §§ 78n(d)(4), 78n(e), 78t(a), respectively, and United
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`States Securities and Exchange Commission (“SEC”) Rule 14d-9, 17 C.F.R. §240.14d-9(d) (“Rule
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`14d-9”). Plaintiff’s claims arise in connection with the proposed tender offer by NNUS New
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`1
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 2 of 16
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`Research, Inc. (“Purchaser”), a wholly-owned indirect subsidiary of Novo Nordisk A/S (“Novo”),
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`to purchase all outstanding shares of Dicerna (“Tender Offer”).
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`2.
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`On November 17, 2021, Dicerna entered into an Agreement and Plan of Merger
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`with Novo and Purchaser (“Merger Agreement”), whereby Purchaser will acquire all outstanding
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`shares of the Company’s common stock for $38.25 per share in cash (the “Offer Price”).
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`3.
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`On November 24, 2021, in order to convince Dicerna’s public common
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`shareholders to tender their shares, the Board authorized the filing of a materially incomplete and
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`misleading Schedule 14D-9 Solicitation/Recommendation Statement
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`(“Recommendation
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`Statement”) with the SEC.
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`4.
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`In particular, the Recommendation Statement contains materially incomplete and
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`misleading information concerning: (i) Dicerna’s financial projections; (ii) the respective financial
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`analyses performed by the Company’s financial advisors, Centerview Partners, LLC
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`(“Centerview”) and SVB Leerink LLC (“SVB”) in connection with the Tender Offer; (iii)
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`potential conflicts of interest for SVB regarding the Tender Offer; and (iv) employment retention
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`following consummation of the Tender Offer.
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`5.
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`The Tender Offer is scheduled to expire at 12:00 a.m. Eastern Time, on the date
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`twenty business days after November 24, 2021 – commencement of the Tender Offer (“Expiration
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`Time”). Therefore, it is imperative that the material information that has been omitted from the
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`Recommendation Statement is disclosed to the Company’s shareholders prior to the Expiration
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`Time, so they can properly decide whether to tender their shares.
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`6.
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`For these reasons, and as set forth in detail herein, Plaintiff asserts claims against
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`Defendants for violations of Sections 14(d)(4), 14(e), and 20(a) of the Exchange Act and Rule
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`14d-9. Plaintiff seeks to enjoin Defendants from closing on the Tender Offer, or taking any steps
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`2
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 3 of 16
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`to consummate it unless and until the material information discussed below is disclosed to
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`Dicerna’s public common stockholders sufficiently in advance of the Expiration Time or, in the
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`event the Tender Offer is consummated, to recover damages resulting from Defendants’ violations
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`of the Exchange Act.
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`JURISDICTION AND VENUE
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`7.
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`This Court has jurisdiction over all claims asserted herein pursuant to Section 27 of
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`the Exchange Act because the claims asserted herein arise under Sections 14(d)(4), 14(e), and
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`20(a) of the Exchange Act and Rule 14d-9.
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`8.
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`Personal jurisdiction exists over each Defendant either because the Defendant
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`conducts business in or maintains operations in this District, or is an individual who is either
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`present in this District for jurisdictional purposes or has sufficient minimum contacts with this
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`District as to render the exercise of jurisdiction over each Defendant by this Court permissible
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`under the traditional notions of fair play and substantial justice. “Where a federal statute such as
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`Section 27 of the [Exchange] Act confers nationwide service of process, the question becomes
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`whether the party has sufficient contacts with the United States, not any particular state.” Sec.
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`Inv’r Prot. Corp. v. Vigman, 764 F.2d 1309, 1315 (9th Cir. 1985). “[S]o long as a defendant has
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`minimum contacts with the United States, Section 27 of the Act confers personal jurisdiction over
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`the defendant in any federal district court.” Id. at 1316.
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`9.
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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 28 U.S.C. § 1391, because Defendants are found or are inhabitants or transact
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`business in this District. Indeed, the Company’s common stock trades on the Nasdaq, which is
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`headquartered in this District. See, e.g., United States v. Svoboda, 347 F.3d 471, 484 n.13 (2d Cir.
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`2003) (collecting cases). In addition, Dicerna’s legal counsel in connection with the Tender Offer,
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`3
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 4 of 16
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`Skadden, Arps, Slate, Meagher & Flom LLP, is located in this District at One Manhattan West,
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`New York, NY 10001. Last, Centerview is located in this District at 31 West 52nd Street, New
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`York, NY 10019.
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`PARTIES
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`10.
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`Plaintiff is, and has been continuously throughout all times relevant hereto, the
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`owner of Dicerna common stock.
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`11.
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`Defendant Dicerna is a public company incorporated under the laws of Delaware
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`with principal executive offices located at 75 Hayden Avenue, Lexington, MA 02421. As
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`mentioned above, the Company’s common stock trades on the Nasdaq under the ticker symbol
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`“DRNA.”
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`12.
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`Individual Defendant Douglas M. Fambrough, III, Ph.D is, and has been at all
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`relevant times, a director of the Company, its President and Chief Executive Officer.
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`13.
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`Individual J. Kevin Buchi is, and has been at all relevant times, a director of the
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`Company and Chairman of the Board.
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`14.
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`Individual Defendant Stephen Doberstein, Ph.D. is, and has been at all relevant
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`times, a director of the Company.
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`15.
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`Individual Defendant Martin Freed, M.D. is, and has been at all relevant times, a
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`director of the Company.
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`16.
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`Individual Defendant Patrick M. Gray is, and has been at all relevant times, a
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`director of the Company.
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`17.
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`Individual Defendant Stephen J. Hoffman, M.D., Ph.D is, and has been at all
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`relevant times, a director of the Company.
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`18.
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`Individual Defendant Adam M. Koppel, M.D., Ph.D. is, and has been at all relevant
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`4
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 5 of 16
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`times, a director of the Company.
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`19.
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`Individual Defendant Marc Kozin is, and has been at all relevant times, a director
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`of the Company.
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`20.
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`Individual Defendant Cynthia Smith is, and has been at all relevant times, a director
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`of the Company.
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`21.
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`The Individual Defendants identified in paragraphs 12 through 20 are collectively
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`referred to herein as the “Board” or the “Individual Defendants,” and together with Dicerna, the
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`“Defendants.”
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`SUBSTANTIVE ALLEGATIONS
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`I.
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`Background of Dicerna, Novo, and the Tender Offer
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`22.
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`Dicerna is a biopharmaceutical company that focuses on the discovery,
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`development,
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`and
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`commercializing of
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`ribonucleic
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`acid
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`interference
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`(RNAi)-based
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`pharmaceuticals. The Company develops pharmaceuticals using its GalXC RNAi platform for the
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`treatment of diseases involving the liver, including rare, cardiometabolic, viral, and chronic liver
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`diseases; complement-mediated diseases; and neurodegenerative diseases and pain. Its principal
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`development programs include nedosiran for the treatment of primary hyperoxaluria; RG6346 for
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`the treatment of chronic hepatitis B virus infection; belcesiran for the treatment of deficiency-
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`associated liver disease; and DCR-AUD for the treatment of alcohol use disorder. Dicerna has
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`strategic collaborations with Novo, F. Hoffmann-La Roche Ltd and Hoffmann-La Roche Inc., Eli
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`Lilly and Company, Alnylam Pharmaceuticals, Inc., Alexion Pharmaceuticals, Inc., and
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`Boehringer Ingelheim International GmbH.
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`23.
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`Novo is a healthcare company that engages in the research, development,
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`manufacture, and marketing of pharmaceutical products worldwide. It operates in two segments,
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`5
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 6 of 16
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`Diabetes and Obesity care, and Biopharm. The Diabetes and Obesity care segment provides
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`products in the areas of insulins, GLP-1 and related delivery systems, oral antidiabetic products,
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`obesity, and other chronic diseases. The Biopharmaceuticals segment offers products in the areas
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`of haemophilia, growth disorders, and hormone replacement therapy. Novo has collaboration
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`agreements with Lund University to develop treatment for Parkinson’s diseases; and bluebird bio,
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`Inc. to develop genome editing treatments for children and adult patients. Novo also has a research
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`collaboration with Lumen Bioscience, Inc. to explore strategies for delivering oral biologics for
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`cardiometabolic disease.
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`24.
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`According to Dicerna’s November 18, 2021, press release announcing the Tender
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`Offer:
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`Novo Nordisk to Acquire Dicerna
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`– Acquisition to Accelerate and Expand Novo Nordisk Development of RNAi Therapeutics Using
`Dicerna’s Proprietary GalXC™ Technology Platform –
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`LEXINGTON, Mass., Nov. 18 2021 – Dicerna Pharmaceuticals, Inc. (Nasdaq: DRNA) today
`announced that it has entered into a definitive agreement with Novo Nordisk under which Novo
`Nordisk will acquire Dicerna, a biopharmaceutical company focused on the development of
`investigational ribonucleic acid interference (RNAi) therapeutics, for $38.25 per share in cash,
`which represents a total equity value of $3.3 billion and a premium of 80% to Dicerna’s closing
`price on November 17, 2021. The transaction was unanimously approved by the Dicerna Board of
`Directors and the Board of Directors of Novo Nordisk.
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`Novo Nordisk and Dicerna have been parties to a research collaboration since 2019 to discover and
`develop RNAi therapies using Dicerna’s proprietary GalXC™ RNAi platform technology. The
`collaboration between Novo Nordisk and Dicerna encompassed the exploration of more than 30
`liver cell targets with the potential to deliver multiple clinical candidates for disorders including
`chronic liver disease, non-alcoholic steatohepatitis (NASH), type 2 diabetes, obesity and rare
`diseases. Novo Nordisk expects to initiate clinical development of the first investigational RNAi
`therapeutic to emerge from this collaboration in 2022.
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`Dicerna’s RNAi technology platform enables access to intracellular disease targets across hepatic
`and extrahepatic cell and tissue types, complementing Novo Nordisk’s existing technology
`platforms. This acquisition supports Novo Nordisk’s strategy of developing and applying a broad
`range of technology platforms across all Novo Nordisk therapeutic areas.
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`“The acquisition of Dicerna accelerates Novo Nordisk’s research within RNAi and expands the
`usage of the RNAi technology,” said Marcus Schindler, Executive Vice President and Chief
`Scientific Officer of Novo Nordisk. “We build on our successful collaboration and by combining
`Dicerna’s state-of-the-art RNAi drug engine and intracellular delivery with our deep capabilities in
`disease biology understanding and tissue targeting through peptides and proteins we have the
`potential to expand our pipeline and deliver life-changing precision medicines for people living with
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`6
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 7 of 16
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`chronic diseases such as diabetes, obesity, cardiovascular disease and NASH, as well as rare diseases
`like endocrine disorders and bleeding disorders.”
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`“Since the start of our collaboration two years ago, the Dicerna and Novo Nordisk teams have
`established a strong rapport built on a foundation of mutual respect for one another’s capabilities,
`culture and expertise,” said Douglas Fambrough, Ph.D., Founder, President and Chief Executive
`Officer of Dicerna. “The combination of Dicerna’s expertise in RNAi and oligonucleotide
`therapeutics and highly skilled employees with Novo Nordisk’s industry leadership in developing
`and commercializing medicines to treat serious chronic diseases, has the potential to significantly
`accelerate and expand our mission to deliver GalXC RNAi therapies for the benefit of patients and
`all our stakeholders.”
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`Under the terms of the agreement, Novo Nordisk, through a subsidiary, will initiate a tender offer
`to acquire all outstanding shares of Dicerna common stock at a price of $38.25 per share in cash.
`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 Dicerna’s outstanding shares, the expiration
`of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act and other customary
`conditions. Upon the successful completion of the tender offer, Novo Nordisk’s acquisition
`subsidiary will be merged into Dicerna, and any remaining shares of common stock of Dicerna will
`be cancelled and converted into the right to receive the same $38.25 per share price payable in the
`tender offer. The transaction is expected to close in the fourth quarter of 2021.
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`Novo Nordisk is represented by Evercore as exclusive financial advisor and Davis Polk & Wardwell
`LLP as legal advisor. For Dicerna, Centerview Partners LLC is acting as lead financial advisor, SVB
`Leerink is acting as financial advisor, and Skadden, Arps, Slate, Meagher & Flom LLP and Goodwin
`Procter LLP are acting as legal advisors.
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`(Emphasis in original).
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`II.
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`The Recommendation Statement Omits Material Information
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`25.
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`Defendants filed a materially incomplete and misleading Recommendation
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`Statement with the SEC. Yet, the Individual Defendants were obligated to carefully review the
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`Recommendation 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. Thus,
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`the Recommendation Statement should be supplemented, so the Company’s stockholders can
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`make an informed decision on whether to tender their shares prior to the Expiration Time.
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`26.
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`First, the Recommendation Statement discloses that prior to creating the
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`Management Projections in October of 2021, SVB used certain management forecasts to perform
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`preliminary financial analyses on Novo’s interest in a strategic transaction with Dicerna (“Original
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`Projections”), yet the Original Projections are not disclosed because, according to Defendants,
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`7
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 8 of 16
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`there are no material differences between the Original Projections and the Management
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`Projections. However, the test of materiality is not based on Defendants subjective beliefs but on
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`a reasonable shareholder’s right to have all material information. Therefore, Dicerna’s
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`shareholders are entitled to know the Management Projections and its adjustments. Further, the
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`Recommendation Statement provides that the Original Projections did not account for the
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`Company’s broader RNAi platforms, but it is unclear whether the Management Projections
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`account for it. Such information must be disclosed to the Company’s shareholders, so they can
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`properly consider the Management Projections disclosed.
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`27.
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`Unlike poker where a player must conceal her unexposed cards, the object of a
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`recommendation statement is to put all of one’s cards on the table face-up. In this case, only some
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`of the cards were exposed—the others were concealed. If a recommendation statement discloses
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`financial projections and valuation information, such projections must be complete and accurate.
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`The question here is not the duty to speak, but liability for not having spoken enough. With regard
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`to future events, uncertain figures, and other so-called soft information, a company may choose
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`silence or speech elaborated by the factual basis as then known—but it may not choose half-truths.
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`See Campbell v. Transgenomic, et al., No. 18-2198 (8th Cir., March 1, 2019) (noting that “half-
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`truths” are actionable misrepresentations under securities laws and collecting cases).
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`28.
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`Second, the Recommendation Statement omits material information regarding
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`Centerview and SVB’s respective financial analyses performed in connection with the Tender
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`Offer.
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`Centerview’s Financial Analyses
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`29.
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`Concerning the Discounted Cash Flow Analysis, the following information was
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`omitted from the Recommendation Statement: (i) the terminal value of Dicerna; (ii) the
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`8
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 9 of 16
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`assumptions underlying selection of the perpetuity growth rate of 1% and 4%, respectively ; and
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`(iii) the inputs underlying the Capital Asset Pricing Model used by Centerview to derive the
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`discount rates ranging from 10.0% to 12.0%.
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`30.
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`These key inputs are material to Dicerna’s shareholders, and their omission renders
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`the summary of Centerview’s Discounted Cash Flow Analysis incomplete and misleading. As one
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`highly-respected law professor explained regarding these crucial inputs, in a discounted cash flow
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`analysis a banker takes management’s forecasts, and then makes several key choices “each of
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`which can significantly affect the final valuation.” Steven M. Davidoff, Fairness Opinions, 55
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`Am. U.L. Rev. 1557, 1576 (2006). Such choices include “the appropriate discount rate, and the
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`terminal value…” Id. As Professor Davidoff explains:
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`There is substantial leeway to determine each of these, and any change can
`markedly affect the discounted cash flow value. For example, a change in the
`discount rate by one percent on a stream of cash flows in the billions of dollars can
`change the discounted cash flow value by tens if not hundreds of millions of
`dollars….This issue arises not only with a discounted cash flow analysis, but with
`each of the other valuation techniques. This dazzling variability makes it difficult
`to rely, compare, or analyze the valuations underlying a fairness opinion unless
`full disclosure is made of the various inputs in the valuation process, the weight
`assigned for each, and the rationale underlying these choices. The substantial
`discretion and lack of guidelines and standards also makes the process vulnerable
`to manipulation to arrive at the “right” answer for fairness. This raises a further
`dilemma in light of the conflicted nature of the investment banks who often provide
`these opinions.
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`Id. at 1577-78 (emphasis added). Without the aforementioned, Dicerna’s shareholders cannot
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`evaluate for themselves the reliability of Centerview’s Discounted Cash Flow Analysis, make a
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`meaningful determination of whether the implied equity value ranges reflect the true value of the
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`Company or were the result of an unreasonable judgment by Centerview, and make an informed
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`decision regarding whether to tender their shares.
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`9
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`31.
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`Finally, for Centerview’s Analyst Price Target Analysis, the Recommendation
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`Statement omits the source of each analyst report observed, and the individual Dicerna price
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`targets observed by each of those analysts.
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`SVB’s Financial Analyses
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`32.
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`In connection with SVB’s Discounted Cash Flow Analysis of Dicerna, the
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`Recommendation Statements fails to provide the following: (i) the terminal value calculated for
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`the Company; (ii) the assumptions underlying selection of the perpetuity growth rates of 4% and
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`1%, respectively; and (iii) the inputs underlying the capital asset pricing model used to derive the
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`discount rates of 9.0% to 11.0%. Indeed, this omitted information is material for all the reasons
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`discussed above in connection with Centerview’s Discounted Cash Flow Analysis.
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`33.
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`Third, the Recommendation Statement provides that SVB rendered certain
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`commercial banking services to the Company in the past two years, yet it does not disclose the
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`amount received or the specifics of those commercial banking services rendered.
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`34.
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`Fourth, the Recommendation Statement states that on November 13, 2021,
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`discussions took place between Novo and the Company regarding “integration and employee
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`retention,” but the details of the discussions are omitted. Indeed, if certain directors or
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`members of senior management of Dicerna were in discussions to continue their employment
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`with Novo following consummation of the Tender Offer, then this is a potential conflict of
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`interest that shareholders need to be made aware of.
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`35.
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`In sum, omission of the above-referenced information renders the Recommendation
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`Statement materially incomplete and misleading, in contravention of the Exchange Act. Absent
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`disclosure of the foregoing material information concerning the Tender Offer prior to the
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`Expiration Time, Plaintiff will be unable to make an informed decision concerning whether to
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`10
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 11 of 16
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`tender her shares, and she is thus threatened with irreparable harm, warranting the injunctive relief
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`sought herein.
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`CAUSES OF ACTION
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`COUNT I
`(Against All Defendants for Violation of Section 14(e) of the Exchange Act)
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`Plaintiff incorporates each and every allegation set forth above as if fully set forth
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`36.
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`herein.
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`37.
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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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`38.
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`Defendants violated § 14(e) of the Exchange Act by issuing the Recommendation
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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 connection with the Tender Offer. Defendants knew or
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`recklessly disregarded that the Recommendation Statement failed to disclose material facts
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`necessary in order to make the statements made, in light of the circumstances under which they
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`were made, not misleading.
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`39.
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`The Recommendation 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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`the Offer Price and the intrinsic value of the Company.
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`40.
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`In so doing, Defendants made untrue statements of fact and/or omitted material
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`facts necessary to make the statements made not misleading. Each of the Individual Defendants,
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`11
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 12 of 16
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`by virtue of their roles as officers and/or directors, were aware of the omitted information but failed
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`to disclose such information, in violation of Section 14(e). The Individual Defendants were
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`therefore reckless, as they had reasonable grounds to believe material facts existed that were
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`misstated or omitted from the Recommendation Statement, but nonetheless failed to obtain and
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`disclose such information to stockholders although they could have done so without extraordinary
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`effort.
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`41.
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`The omissions, and incomplete and misleading statements in the Recommendation
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`Statement are material in that reasonable stockholders would consider them important in deciding
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`whether to tender their shares. In addition, a reasonable investor would view the information
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`identified above which has been omitted from the Recommendation Statement as altering the “total
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`mix” of information made available to stockholders.
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`42.
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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
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`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
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`approving the Tender Offer, they allowed it to be omitted from the Recommendation Statement,
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`rendering certain portions of the Recommendation Statement materially incomplete and therefore
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`misleading.
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`43.
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`The misrepresentations and omissions in the Recommendation Statement are
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`material to Plaintiff, and Plaintiff will be deprived of her entitlement to make a fully informed
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`decision if such misrepresentations and omissions are not corrected prior to the Expiration Time.
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`COUNT II
`(Against all Defendants for Violations of Section 14(d)(4) of the Exchange Act
`and SEC Rule 14d-9, 17 C.F.R. § 240.14d-9)
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`12
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 13 of 16
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`44.
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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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`45.
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`Defendants have caused the Recommendation Statement to be issued with the
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`intention of soliciting stockholder support of the Tender Offer.
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`46.
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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. Specifically, Section
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`14(d)(4) provides that:
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`Any solicitation or recommendation to the holders of such a security
`to accept or reject a tender offer or request or invitation for tenders
`shall be made in accordance with such rules and regulations as the
`Commission may prescribe as necessary or appropriate in the public
`interest or for the protection of investors.
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`47.
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`SEC Rule 14d-9(d), which was adopted to implement Section 14(d)(4) of the
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`
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`Exchange Act, provides that:
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`Information required in solicitation or recommendation. Any
`solicitation or recommendation to holders of a class of securities
`referred to in section 14(d)(1) of the Act with respect to a tender
`offer for such securities shall include the name of the person making
`such solicitation or recommendation and the information required
`by Items 1 through 8 of Schedule 14D-9 (§ 240.14d-101) or a fair
`and adequate summary thereof.
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`48.
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`In accordance with Rule 14d-9, Item 8 of a Schedule 14D-9 requires a Company’s
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`directors to:
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`Furnish such additional information, if any, as may be necessary to
`make the required statements, in light of the circumstances under
`which they are made, not materially misleading.
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`49.
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`The omission of information from a recommendation statement will violate Section
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`14(d)(4) and Rule 14d-9(d) if other SEC regulations specifically require disclosure of the omitted
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`information.
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 14 of 16
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`50.
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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 renders the Recommendation
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`Statement false and/or misleading. Defendants knowingly or with deliberate recklessness omitted
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`the material information identified above from the Recommendation Statement, causing certain
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`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
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`approving the Tender Offer, they allowed it to be omitted from the Recommendation Statement,
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`rendering certain portions of the Recommendation Statement materially incomplete and therefore
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`misleading.
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`51.
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`The misrepresentations and omissions in the Recommendation Statement are
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`material to Plaintiff, and Plaintiff will be deprived of her entitlement to make a fully informed
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`decision if such misrepresentations and omissions are not corrected prior to the Expiration Time.
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`COUNT III
`(Against all Defendants for Violations of Section 20(a) of the Exchange Act)
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`52.
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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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`53.
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`The Individual Defendants acted as controlling persons of Dicerna 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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`officers and/or directors of Dicerna, and participation in and/or awareness of the Company’s
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`operations and/or intimate knowledge of the incomplete and misleading statements contained in
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`the Recommendation Statement filed with the SEC, they had the power to influence and control
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`and did influence and control, directly or indirectly, the decision making of the Company,
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`including the content and dissemination of the various statements that Plaintiff contends are
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`materially incomplete and misleading.
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`14
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 15 of 16
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`54.
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`Each of the Individual Defendants was provided with or had unlimited access to
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`copies of the Recommendation Statement and other statements alleged by Plaintiff to be
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`misleading prior to and/or shortly after these statements were issued and had the ability to prevent
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`the issuance of the statements or cause the statements to be corrected.
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`55.
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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 the Company, 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 Recommendation Statement contains the
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`unanimous recommendation of each of the Individual Defendants to approve the Tender Offer.
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`They were thus directly involved in preparing this document.
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`56.
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`In addition, as the Recommendation Statement sets forth at length, and as
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`described herein, the Individual Defendants were involved in negotiating, reviewing, and
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`approving the Merger Agreement. The Recommendation Statement purports to describe the
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`various issues and information that the Individual Defendants reviewed and considered. The
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`Individual Defendants participated in drafting and/or gave their input on the content of those
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`descriptions.
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`57.
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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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`58.
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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(a) and Rule 14a-9 by
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`their 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 the Individual Defendants’ conduct, Plaintiff will be irreparably harmed.
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`Case 1:21-cv-10342 Document 1 Filed 12/03/21 Page 16 of 16
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`59.
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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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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff prays for judgment and relief as follows:
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`A.
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`Preliminarily enjoining Defendants and all persons acting in concert with them
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`from proceeding with the Tender Offer or consummating the Tender Offer, unless and until the
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`Company discloses the material information discussed above which has been omitted from the
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`Recommendation Statement;
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`B.
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`Directing the Defendants to account to Plaintiff for all damages sustained as a result
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`of their wrongdoing;
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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 relief as this Court may deem just and proper.
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`JURY DEMAND
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`Plaintiff demands a trial by jury on all issues so triable.
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`Dated: December 3, 2021
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