This Amendment No. 1 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission on October 12, 2021 (together with any subsequent amendments and supplements thereto, the “Schedule TO”), by Astros Merger Sub, Inc., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Merck Sharp & Dohme Corp., a New Jersey corporation (“Parent”), and Parent. The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding shares of common stock, par value $0.001 per share (the “Shares”), of Acceleron Pharma Inc., a Delaware corporation (“Acceleron”), at a purchase price of $180.00 per Share (the “Offer Price”), net to the seller in cash, without interest and less any applicable tax withholding, on the terms and subject to the conditions set forth in the Offer to Purchase and in the related Letter of Transmittal, copies of which are attached to the Schedule TO as Exhibits (a)(1)(A) and (a)(1)(B), respectively.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings ascribed to them in the Schedule TO.
Items 1 through 9; and Item 11
The disclosure in the Offer to Purchase and Item 11 of the Schedule TO is hereby amended and supplemented by deleting the second sentence of the first paragraph under Section 16—“Certain Legal Matters; Regulatory Approvals – Antitrust Compliance” of the Offer to Purchase and replacing it with the following paragraph:
“Parent and Acceleron filed their respective Premerger Notification and Report Forms with the FTC and the Antitrust Division on October 14, 2021. On October 29, 2021, Parent voluntarily withdrew the October 14, 2021 filing to provide the FTC with additional time for review, and intends to refile its Premerger Notification and Report Form on or about November 1, 2021. Following such refiling, the waiting period applicable to the purchase of the Shares pursuant to the Offer will expire at 11:59 p.m., Eastern Time, on or about November 16, 2021. This period may change if the FTC or the Antitrust Division, as applicable, grants early termination of the waiting period or issues a request for additional information or documentary material, or if Parent voluntarily withdraws and refiles its Premerger Notification and Report Form in order to restart the 15-day waiting period.”
The disclosure in the Offer to Purchase and Item 11 of the Schedule TO is hereby amended and supplemented by adding the following sub-heading and paragraphs at the end of Section 16—“Certain Legal Matters; Regulatory Approvals” of the Offer to Purchase:
“Certain Litigation
Between October 13, 2021 and October 29, 2021, nine complaints were filed in the United States District Court for the Southern District of New York, the United States District Court for the District of Delaware, the United States District Court for the Eastern District of Pennsylvania and the United States District Court for the Eastern District of New York by putative stockholders of Acceleron: Wang v. Acceleron Pharma Inc. et al., No. 1:21-cv-08430, filed October 13, 2021 (S.D.N.Y.); Finger v. Acceleron Pharma Inc. et al., No. 1:21-cv-08615, filed October 20, 2021 (S.D.N.Y.); Wilson v. Acceleron Pharma Inc. et al., No. 1:21-cv-01473, filed October 20, 2021 (D. Del.); Ciccotelli v. Acceleron Pharma Inc. et al, No. 1:21-cv-08638, filed October 21, 2021 (S.D.N.Y) (the “Ciccotelli Action”); Nagel v. Acceleron Pharma Inc. et al., No. 1:21-cv-08644, filed October 21, 2021 (S.D.N.Y.); Whitfield v. Acceleron Pharma Inc. et al., No. 2:21-cv-04628, filed October 21, 2021 (E.D. Pa.); Combs v. Acceleron Pharma Inc. et al., No. 1:21-cv-05874, filed October 21, 2021 (E.D.N.Y.); Kulish v. Acceleron Pharma Inc. et al., No. 1:21-cv-08676, filed October 22, 2021 (S.D.N.Y.); and Kent v. Acceleron Pharma Inc. et al., No. 1:21-cv-08861, filed October 29, 2021 (S.D.N.Y.) (collectively, the “Complaints”). All of the Complaints name Acceleron and the members of the Acceleron Board as defendants, and the complaint in the Ciccotelli Action also names Parent and Purchaser as defendants. The Complaints assert claims under the federal securities laws in connection with the Schedule 14D-9 that was filed with the SEC by Acceleron on October 12, 2021, alleging that the document contains materially incomplete and misleading information. The Complaints seek, among other relief, injunctive relief to prevent consummation of the transactions contemplated by the Merger Agreement until the alleged disclosure violations are cured, as well as damages and attorneys’ fees and costs.
If additional similar complaints are filed, absent new or different allegations that are material, we will not necessarily announce such additional filings.”
