Merrimack Pharmaceuticals Inc
Annual Report 2013

Plain-text annual report

MERRIMACK PHARMACEUTICALS INC FORM 10-K (Annual Report) Filed 03/04/14 for the Period Ending 12/31/13 Address ONE KENDALL SQUARE SUITE B7201 CAMBRIDGE, MA 02139 617-441-1000 0001274792 Telephone CIK Symbol MACK SIC Code Industry 2834 - Pharmaceutical Preparations Biotechnology & Drugs Sector Healthcare Fiscal Year 12/31 http://www.edgar-online.com © Copyright 2014, EDGAR Online, Inc. All Rights Reserved. Distribution and use of this document restricted under EDGAR Online, Inc. Terms of Use. Table of Contents UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K (Mark One) For the fiscal year ended December 31, 2013 or For the transition period from to Commission file number 001-35409 Merrimack Pharmaceuticals, Inc. (Exact name of registrant as specified in its charter) Registrant’s telephone number, including area code: (617) 441-1000 Securities registered pursuant to Section 12(b) of the Act: Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes (cid:1) No  Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes (cid:1) No  Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes  No (cid:1) Indicate by check mark whether the registrant has submitted electronically and posted on its corporate website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes  No (cid:1) Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes (cid:1) No  Aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant, based on the last sale price for such stock on June 28, 2013: $604,930,711. As of February 28, 2014, there were 103,038,416 shares of Common Stock, $0.01 par value per share, outstanding. DOCUMENTS INCORPORATED BY REFERENCE The registrant intends to file a definitive proxy statement pursuant to Regulation 14A in connection with its 2014 Annual Meeting of Stockholders. Portions of such proxy statement are incorporated by reference into Part III of this Annual Report on Form 10-K.  ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (cid:1) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Delaware 04-3210530 (State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.) One Kendall Square, Suite B7201 Cambridge, MA 02139 (Address of principal executive offices) (Zip Code) Title of each class Name of each exchange on which registered Common Stock, $0.01 par value NASDAQ Global Market Large accelerated filer (cid:1) Accelerated filer  Non-accelerated filer (cid:1) (Do not check if a smaller reporting company) Smaller reporting company (cid:1) Table of Contents TABLE OF CONTENTS 1 PART I Item 1. Business 2 Item 1A. Risk Factors 45 Item 1B. Unresolved Staff Comments 74 Item 2. Properties 75 Item 3. Legal Proceedings 75 Item 4. Mine Safety Disclosures 75 PART II Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities 76 Item 6. Selected Financial Data 78 Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations 80 Item 7A. Quantitative and Qualitative Disclosures About Market Risk 102 Item 8. Financial Statements and Supplementary Data 102 Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure 102 Item 9A. Controls and Procedures 102 Item 9B. Other Information 103 PART III Item 10. Directors, Executive Officers and Corporate Governance 104 Item 11. Executive Compensation 104 Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters 104 Item 13. Certain Relationships and Related Transactions, and Director Independence 104 Item 14. Principal Accounting Fees and Services 104 PART IV Item 15. Exhibits and Financial Statement Schedules 105 Table of Contents FORWARD-LOOKING STATEMENTS This Annual Report on Form 10-K contains forward-looking statements that involve substantial risks and uncertainties. All statements, other than statements of historical facts, contained in this Annual Report on Form 10-K, including statements regarding our strategy, future operations, future financial position, future revenues, projected costs, prospects, plans and objectives of management, are forward-looking statements. The words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,” “target,” “potential,” “will,” “would,” “could,” “should,” “continue” and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. The forward-looking statements in this Annual Report on Form 10-K include, among other things, statements about: We may not actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements we make. We have included important factors in the cautionary statements included in this Annual Report on Form 10-K, particularly in Part I, Item 1A. Risk Factors, that could cause actual results or events to differ materially from the forward-looking statements that we make. Our forward-looking statements do not reflect the potential impact of any future acquisitions, mergers, dispositions, joint ventures or investments that we may make. You should read this Annual Report on Form 10-K and the documents that we have filed as exhibits to this Annual Report on Form 10-K completely and with the understanding that our actual future results may be materially different from what we expect. We do not assume any obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. • our plans to develop and commercialize our most advanced product candidates and companion diagnostics; • our ongoing and planned discovery programs, preclinical studies and clinical trials; • the timing of the completion of our clinical trials and the availability of results from such trials; • our collaborations with PharmaEngine, Inc. related to MM-398 and with Sanofi related to MM-121; • our ability to establish and maintain additional collaborations; • the timing of and our ability to obtain and maintain regulatory approvals for our product candidates; • the rate and degree of market acceptance and clinical utility of our products; • our intellectual property position; • our commercialization, marketing and manufacturing capabilities and strategy; • the potential advantages of our Network Biology approach to drug research and development; • the potential use of our Network Biology approach in fields other than oncology; and • our estimates regarding expenses, future revenues, capital requirements and needs for additional financing. Table of Contents PART I Item 1. Business Overview We are a biopharmaceutical company discovering, developing and preparing to commercialize innovative medicines consisting of novel therapeutics paired with companion diagnostics for the treatment of cancer. We were founded by a team of scientists from The Massachusetts Institute of Technology and Harvard University who sought to develop a systems biology-based approach to biomedical research. The core of our approach to systems biology is to apply multidisciplinary and multitechnology capabilities to build functional and predictive computational models of biological systems, such as cell signaling networks, that allow us to engineer treatments that are directed at the mechanisms of disease. Our mission is to employ these insights to provide patients, physicians and the healthcare system with the medicines, tools and information to deliver integrated healthcare solutions that improve both the quality of outcomes and the efficiency of care. We currently have six targeted therapeutic oncology candidates in clinical development. In our most advanced program, we are conducting a Phase 3 clinical trial. Additionally, we have multiple product candidates in preclinical development and a discovery effort advancing additional candidate medicines. We have tailored each of our six most advanced product candidates to target specific disease mechanisms that our research suggests are common across many solid tumor types. We believe that these product candidates have the potential to address major unmet medical needs. We are also developing in vitro and in vivo companion diagnostics for use with each of our oncology therapeutic product candidates. Our in vitro companion diagnostic agents employ biophysical or biochemical markers of cancer, or biomarkers, which we have identified using our systems biology approach. Our in vivo companion diagnostics take the form of imaging agents that may help identify patients likely to benefit from our therapeutic products by measuring deposition of our products in the tumor. We believe that companion diagnostics will allow us to improve the efficiency and productivity of our clinical development and enhance the potential efficacy and pharmacoeconomic benefit of our therapeutics. We have also recently entered into an agreement to utilize our manufacturing expertise to develop, manufacture and exclusively supply bulk drug to a third party, who will in turn process the drug into finished product and commercialize it globally. Our Most Advanced Product Candidates The table and descriptions below summarize key information about our six most advanced therapeutic product candidates, MM-398, MM-121, MM-111, MM-302, MM-151 and MM-141. All of these product candidates are designed for intravenous administration. None of our product candidates are approved for any indication by the U.S. Food and Drug Administration, or FDA, or any other regulatory agency. 2 Table of Contents Each of the product candidates described below is a targeted therapy, designed to efficiently act on selected cancer cells. These targeted therapies are either monoclonal antibodies or monoclonal antibody-derived molecules that are designed to block oncogenic signaling pathways, such as MM-121, MM-111, MM-151 and MM-141, or nanotherapeutics, such as MM-398 and MM-302, that are designed to preferentially deliver cytotoxic therapies to the tumor tissue. 3 Program Indication Stage of Development Commercial Rights MM-398 (nanotherapeutic encapsulation of irinotecan) Monotherapy and MM-398 plus fluorouracil, or 5-FU, and leucovorin in pancreatic cancer Phase 3 ongoing (enrollment closed) Merrimack worldwide, except Taiwan MM-398 plus 5-FU, leucovorin and bevacizumab in colorectal cancer* Phase 2 ongoing (enrollment closed) Monotherapy in pancreatic cancer Phase 2 complete Monotherapy in gastric cancer Phase 2 complete Monotherapy in glioma* Phase 1 ongoing (enrolling) MM-398 plus cyclophosphamide in pediatric solid tumors* Phase 1 ongoing (enrolling) Translational study in solid tumors Phase 1 ongoing (enrollment closed) Monotherapy in colorectal cancer Phase 1 complete MM-121 (ErbB3 targeted monoclonal antibody) MM-121 plus paclitaxel in platinum resistant/refractory ovarian cancer Phase 2 ongoing (enrollment closed) Sanofi worldwide; Merrimack holds option to co-promote in United States MM-121 plus exemestane in hormone receptor positive breast cancer Phase 2 ongoing (enrollment closed) MM-121 plus erlotinib in non-small cell lung cancer Phase 2 ongoing (enrollment closed) Neoadjuvant MM-121 plus paclitaxel in ErbB2 (HER2) negative breast cancer Phase 2 ongoing (enrollment closed) MM-121 plus paclitaxel in ErbB2 (HER2) negative breast, ovarian and other gynecological cancers Phase 1 ongoing (enrollment closed) MM-121 plus cetuximab and irinotecan in solid tumors Phase 1 ongoing (enrollment closed) MM-121 plus multiple anti-cancer therapies in solid tumors Phase 1 ongoing (enrollment closed) Monotherapy in solid tumors Phase 1 complete Table of Contents MM-398 MM-398 overview Our most advanced product candidate is MM-398. MM-398 is a novel, stable nanotherapeutic encapsulation, or enclosed sphere carrying an active drug, of the marketed chemotherapy drug irinotecan. MM-398 is designed to stably retain and protect irinotecan while in circulation in the body and enable efficient accumulation of the drug in solid tumors. Our Phase 3 clinical trial of MM-398 is focused on pancreatic cancer, although we believe that MM-398 may have potential uses in a number of other solid tumor indications, including colorectal cancer, lung cancer, breast cancer, glioma and pediatric solid tumors. In July 2011, the FDA granted MM-398 orphan drug designation for the treatment of pancreatic cancer. In September 2011, the European Medicines Agency, or EMA, granted MM-398 orphan medicinal product designation for the treatment of pancreatic cancer. We are working to develop an imaging agent that can be used as a companion diagnostic to identify the patient population likely to respond to treatment with MM-398. We are also conducting a translational study designed to identify predictive biomarkers associated with MM-398 for the purpose of estimating drug delivery to the tumor and patient response. We are conducting a Phase 3 clinical trial of MM-398 in patients with metastatic pancreatic cancer whose cancer has progressed on treatment with the chemotherapy drug gemcitabine. MM-398 previously achieved its primary efficacy endpoints in two Phase 2 clinical trials, one in pancreatic cancer patients and one in gastric cancer patients. There are also several other ongoing Phase 1 and Phase 2 clinical trials of MM-398. The encapsulated ingredient of MM-398, irinotecan, is a well-known and widely used chemotherapy. Irinotecan is a pro-drug of the active agent SN-38. SN-38 potently arrests cell growth by inhibiting topoisomerase 1, an enzyme involved in cell replication. Typically, free irinotecan is metabolized in the liver into SN-38, and from there SN-38 circulates throughout the body and is rapidly cleared. Dosing with free irinotecan, as with other chemotherapies, is limited by significant adverse effects and rapid clearance that, in turn, limit efficacy. In addition, as with other chemotherapies, the efficacy of irinotecan is limited by tumor resistance mechanisms. 4 Program Indication Stage of Development Commercial Rights MM-111 (ErbB3 and ErbB2 (HER2) targeted bispecific antibody) MM-111 plus paclitaxel and trastuzumab in gastric cancers Phase 2 ongoing (enrolling) Merrimack worldwide MM-111 plus multiple anti-cancer therapies in ErbB2 (HER2) positive solid tumors Phase 1 ongoing (enrollment closed) MM-111 plus trastuzumab in ErbB2 (HER2) positive breast cancer Phase 1 complete Monotherapy in ErbB2 (HER2) positive solid tumors Phase 1 complete MM-302 (ErbB2 (HER2) targeted antibody drug conjugated liposomal doxorubicin) Monotherapy and MM-302 plus trastuzumab with or without cyclophosphamide in ErbB2 (HER2) positive breast cancer Phase 1 ongoing (enrolling) Merrimack worldwide MM-151 (EGFR (ErbB1) targeted oligoclonal antibody) Monotherapy and MM-151 plus irinotecan in solid tumors Phase 1 ongoing (enrolling) Merrimack worldwide MM-141 (IGF-1R and ErbB3 targeted tetravalent antibody) Monotherapy and MM-141 plus everolimus, and MM-141 plus nab-paclitaxel and gemcitabine in various cancers Phase 1 ongoing (enrolling) Merrimack worldwide * Investigator-sponsored Table of Contents We believe that the nanotherapeutic encapsulation of irinotecan may offer a number of favorable attributes when compared to free irinotecan. Prior to May 2011, our collaborator, PharmaEngine, Inc., or PharmaEngine, led the clinical development of MM-398 under the designation PEP02. In May 2011, we entered into an agreement with PharmaEngine through which we now hold the development and commercialization rights to MM-398 worldwide, other than in Taiwan. As a result, we expect that we or third-party investigator sponsors will conduct all future clinical trials of MM-398. The most advanced MM-398 clinical trial that we are conducting is our Phase 3 clinical trial for metastatic pancreatic cancer, which is described below. Also described below is the Phase 2 clinical trial that preceded this Phase 3 clinical trial. We are also collaborating with several investigators to conduct additional trials of MM-398, including an investigator-sponsored Phase 2 clinical trial in colorectal cancer, an investigator-sponsored Phase 1 clinical trial in glioma and an investigator-initiated Phase 1 clinical trial in pediatric solid tumors, which is being conducted under our investigational new drug application, or IND. MM-398 Phase 3 clinical trial for metastatic pancreatic cancer We are conducting a randomized, open label, controlled Phase 3 clinical trial of MM-398 in patients with metastatic pancreatic cancer whose cancer has progressed on treatment with gemcitabine. The trial is designed to compare the efficacy of MM-398, alone or in combination with 5-FU and leucovorin, against a common control arm of the combination of 5-FU and leucovorin, which is one of the drug combinations that clinicians use to treat patients with metastatic pancreatic cancer whose cancer progresses after treatment with gemcitabine. We completed enrollment of this trial in August 2013, enrolling 417 patients at 105 sites in North America, South America, Europe and Asia. The primary efficacy endpoint of this trial is a statistically significant difference in overall survival between MM-398 or the combination of MM-398 with 5-FU and leucovorin against the combination of 5-FU and leucovorin. Overall survival, or OS, is a measure of the time to death from treatment randomization. The secondary endpoints of this trial are objective response rate and progression free survival. Objective response rate, or ORR, is the sum of the complete response rate, which measures the disappearance of all target and non-target tumors, plus the partial response rate, which measures the overall tumor regression based on a decrease of a least 30% of the sum of measured tumor diameters with no new tumors. Progression free survival, or PFS, is the time from the initiation of treatment to tumor progression based on an increase of at least 20% in the sum of measured tumor diameters with no new tumors. We expect to announce top line results from this trial in the second quarter of 2014. MM-398 Phase 2 clinical trial for metastatic pancreatic cancer MM-398 was evaluated in an open label, single arm Phase 2 clinical trial in 40 patients with metastatic pancreatic cancer whose cancer had progressed on treatment with gemcitabine. The trial was conducted by PharmaEngine at three sites, two in Taiwan and one at the University of California, San Francisco. 5 • The encapsulation technology may prevent the premature metabolism of the active drug and thereby potentially reduce systemic exposure and increase the amount of active drug available to be delivered at the tumor site. • The specific size and stability characteristics of MM-398 are designed to enable the preferential deposition of the drug within tumors relative to normal tissue. Specifically, as a nanotherapeutic, MM-398 may be able to utilize the enhanced permeability and retention, or EPR, effect to selectively enter, and subsequently accumulate in, tumors with leaky vasculature. • MM-398 is designed for the irinotecan inside the molecule to be converted into SN-38 locally by tumor-resident macrophages, rather than being converted in the liver, as occurs with free irinotecan. We believe that MM-398 utilizes tumor macrophages to both break down the nanotherapeutic and convert the irinotecan into SN-38 in the local tumor environment, which may result in a sustained pool of SN-38 in the tumor. Overall, the design of MM-398 is intended to increase the local concentration of active drug so as to improve its anti-tumor effects. Table of Contents The primary efficacy endpoint of this trial was the three month survival rate. The hypothesis was that, absent further therapies, 40% of the patients would survive three months. Success in this trial was defined as achieving a three month survival rate of 65%. The trial was successful, as 75% of patients survived three months or longer. The secondary efficacy endpoints in this trial were ORR, PFS and OS. The ORR was 7.5%, with three patients achieving an objective response, and an additional 17 patients (42.5%) demonstrating stable disease for a minimum of two treatment cycles. Stable disease, or SD, means neither a sufficient decrease nor increase in tumor size to qualify as either partial response or as progressive disease and no new tumors. Partial response, or PR, means an overall tumor regression based on a decrease of at least 30% in the sum of measured tumor diameters with no new tumors, and progressive disease, or PD, means a growth of at least 20% in the sum of measured tumor diameters or spread of the tumor since the beginning of treatment. The median PFS was 2.4 months, and median OS was 5.2 months. The most common severe adverse events included neutropenia, abdominal pain, asthenia, and diarrhea. MM-398 companion diagnostic development We believe that deposition of nanotherapeutics such as MM-398 in the tumor may be important to efficacy. We are exploring development of in vivo companion diagnostics that take the form of imaging agents that may help identify patients likely to benefit from nanotherapeutics by enabling the measurement of deposition in patient tumors and excluding those patients with low deposition whose tumors are therefore unlikely to respond to treatment with a nanotherapeutic. We are currently evaluating nanotherapeutic formulations of various agents imaged by PET/CT scan and other modalities to assess the potential for measuring deposition. We are conducting a Phase 1 translational study at one site in the United States designed to test the feasibility of an MRI-based approach to assess large-particle delivery and tumor macrophage uptake using a marketed iron supplement as an imaging agent and to identify predictive biomarkers associated with MM-398 in various cancers. As part of our preclinical and clinical translational research, we are also investigating functional in vitro biomarkers that may be predictive of efficacy in poorly vascularized tumors, such as pancreatic cancer. MM-121 MM-121 overview MM-121 is a fully human monoclonal antibody that targets the ErbB3 cell surface receptor. An antibody is a type of protein normally produced by cells of the immune system that binds to just one epitope, or chemical structure, on a protein or other molecule. MM-121 was designed to inhibit cancer growth directly, restore a tumor’s sensitivity to drugs to which it has become resistant, and delay the development of resistance by a tumor to other agents. We have established a worldwide collaboration with Sanofi for the development and commercialization of MM-121. In collaboration with Sanofi, we are conducting a research and development program to evaluate MM-121 in multiple Phase 1 and Phase 2 clinical trials in combination with both chemotherapies and other targeted agents across a wide spectrum of solid tumor patient populations, including patients with ovarian, breast and lung cancers. The goal of our MM-121 clinical program is to explore the efficacy and safety of MM-121 in combination with other targeted ErbB agents such as erlotinib, chemotherapies such as paclitaxel, and anti-hormonal agents such as exemestane. We have sought to assess whether efficacy is improved by measuring the ability of various MM-121 combinations to enhance anti-tumor activity or to delay resistance or restore sensitivity to the other therapies. Research suggests that ErbB3 signaling is often critical to the growth and survival of tumors, and that the use of ErbB3 signaling as a resistance mechanism by cancer cells to a variety of cancer therapies often occurs across patient populations and tumor types. Therefore, we believe that MM-121 may be effective when given in combination with chemotherapies and other targeted therapies, and potentially offers the following advantages compared to existing therapies: 6 • the ability to synergistically or additively inhibit tumor growth, based on our preclinical research involving a broad range of combination therapies; Table of Contents Based on the central role of ErbB3 in cancer growth and survival, we believe that MM-121 may be applicable to a broad range of tumors, including lung, prostate, breast, ovarian, colon and pancreatic cancers. Our preliminary study of several hundred tumor samples suggests that MM-121 may be able to target ErbB3 signaling that is relevant in approximately 30% or more of cancer patients with these types of tumors, and top line data from our Phase 2 clinical trials in breast and ovarian cancers appear to support this hypothesis. MM-121 Phase 2 clinical trials We announced top line results in 2013 from several of our Phase 2 clinical trials as described below. Phase 2 clinical trial of MM-121 in combination with paclitaxel for platinum resistant or refractory advanced ovarian cancer In October 2013, we announced top line results of our randomized, open label Phase 2 clinical trial of MM-121 in combination with paclitaxel in patients with advanced ovarian cancer who are resistant or refractory to treatment with platinum-based chemotherapies, which are frequently used to treat ovarian cancer. Two hundred twenty three patients were enrolled in this trial at multiple sites in North America and Europe. Patients were randomized (2:1) to receive MM-121 plus paclitaxel or paclitaxel alone. The primary objective was to compare PFS between the groups. Pretreatment biopsies obtained from all patients were analyzed to assess a pre-specified set of biomarkers mechanistically linked to ErbB3 signaling. The hazard ratio, or HR, for PFS in the overall study population was 1.0 [95% CI 0.74 – 1.4], which did not meet the primary endpoint for PFS. The HR for PFS is a measurement of the chance of disease progression for the treatment arm relative to the control arm, with an HR of less than one indicating that a patient will likely progress less quickly on the treatment arm than on the control arm, and an HR of more than one indicating the opposite. Because a trial represents a sample of a much larger population, the reported HR from a trial is an estimate of the true HR. The confidence interval, or CI, given after the HR reflects the amount of certainty in the estimate of the HR. An HR value that is not contained within a 95% confidence interval is unlikely to be the true HR. A sub-population of patients was identified using two of the pre-specified set of biomarkers. Those biomarker positive patients (34%: 57/169 patients with biomarkers available) had an HR for PFS of 0.37 [95% CI 0.2 – 0.8]. The HR for PFS in the biomarker negative population was 1.54 [95% CI 1.0 – 2.4]. The overall safety profile was consistent with expected adverse events, with the exception of an increase in the pulmonary embolism rate (5.0% on the treatment arm vs. 1.2% on the control arm). However, the overall rate of venous thromboembolic events was comparable (5.7% vs. 7.5%). An overall increase in all grades (Grades 1, 2, 3 and 4) of gastrointestinal toxicities, including diarrhea (73.6% vs. 42.5%), vomiting (31.4% vs. 18.8%) and other mucosal toxicities such as rhinitis (7.1% vs. 1.3%), epistaxis (23.6% vs. 17.5%), stomatitis (22.1% vs. 10.0%) and mucosal inflammation (22.1% vs. 1.3%), were observed in the combination as compared to paclitaxel alone, the majority of which were mild to moderate in severity. Phase 2 clinical trial of MM-121 in combination with exemestane for hormone receptor positive breast cancer We announced top line results in November 2013 from our randomized, double blind, placebo-controlled Phase 2 clinical trial that studied whether the combination of MM-121 and exemestane was more effective in prolonging PFS than exemestane in ER/PR+ metastatic breast cancer patients who have previously failed anti-estrogen therapy. Exemestane is a widely used aromatase inhibitor for the treatment of breast cancer. Aromatase is an enzyme implicated in breast cancer since it is involved in the synthesis of estrogen. 118 postmenopausal women with metastatic hormone receptor positive breast cancer who tested negative for overexpression of ErbB2 (HER2) and whose cancer progressed on treatment with another aromatase inhibitor or other anti-estrogen therapy were enrolled at multiple sites in North America and Europe. The HR for PFS in the overall study population was 0.772 [95% CI 0.496 – 1.201], which did not meet the primary endpoint of the study (HR < 0.5). 7 • the ability to delay the development of resistance to other agents, based on research by us and others demonstrating that ErbB3 signaling is upregulated in response to treatment with other therapies; and • the ability to restore sensitivity to drugs, based on our preclinical research involving several cell types and xenograft models that are resistant to targeted therapies or chemotherapies. Table of Contents Analysis of a pre-specified set of biomarkers mechanistically linked to ErbB3 signaling and consistent with the pre-specified set of biomarkers analyzed in the Phase 2 clinical trial of MM-121 in ovarian cancer revealed a subpopulation of patients (31% of the 55 biomarker-evaluable patients) in which the observed HR for PFS was 0.32 [95% CI 0.10 – 1.0]. The HR for PFS in the biomarker negative population was 0.89 [95% CI 0.44 – 1.79]. Overall, similar frequencies were reported for adverse events of any grade (Grades 1, 2, 3 and 4) between the treatment and control arms, with no unexpected toxicities experienced and no increase in serious adverse events (Grade 3 or worse events 25.0% on the treatment arm vs. 25.4% on the control arm). Increased frequencies for individual adverse events of all grades (Grades 1, 2, 3 and 4) on the treatment arm were reported for diarrhea (50.0% vs. 23.7%), mucosal inflammation (16.1% vs. 3.4%) and decreased appetite (16.1% vs. 8.5%). Most adverse events were mild-to-moderate in severity. There were no pulmonary embolisms or other venous thromboembolic events reported in either arm. Phase 1/2 clinical trial of MM-121 in combination with erlotinib for non-small cell lung cancer We have concluded a Phase 1/2 clinical trial of MM-121 in patients with metastatic non-small cell lung cancer. The Phase 1 portion of the trial was an open label, dose escalation study in which successive groups of patients were enrolled. The purpose of the Phase 1 portion of the trial was to assess the safety of MM-121 in combination with erlotinib and determine the optimal dose and dosing schedule of this combination for the Phase 2 portion of the trial. Erlotinib is a marketed small molecule directed at the epidermal growth factor receptor, or EGFR. EGFR is also known as ErbB1. 32 patients were enrolled in the Phase 1 portion of the trial. Clinical activity observed in this trial included one patient with a PR and 14 patients with SD. The most common toxicities observed of any grade (Grades 1, 2, 3 and 4) were diarrhea (82%), rash (64%) and fatigue (64%). Consistent with the design of this Phase 1 clinical trial to principally test for safety and dosage tolerance, this trial was not designed to test for statistical significance of anti-tumor activity. The Phase 2 portion of the trial tested three separate hypotheses in three different populations of non-small cell lung cancer patients, at multiple sites in North America, Europe and Asia. The Phase 2 portion of the trial was an open label study which enrolled 229 patients across the three different patient populations. The primary efficacy endpoint of the Phase 2 portion of the trial was PFS. Three populations of non-small cell lung cancer patients were enrolled: In 2013, we disclosed that Group C failed to meet its primary endpoint, the second cohort (Group A) did not pass an interim analysis and did not meet its primary endpoint, and the third cohort (Group B) did not pass its interim analysis. No further patients were enrolled in the Group B cohort. Translational analysis of biopsies is ongoing. Phase 2 neoadjuvant clinical trial of MM-121 in combination with paclitaxel for ErbB2 (HER2) negative breast cancer We are currently conducting a randomized, open label Phase 2 neoadjuvant clinical trial of MM-121 in combination with paclitaxel, an established chemotherapy, in patients with ErbB2 (HER2) negative breast cancer. The primary efficacy endpoint of this trial is pathologic complete response, or pCR, rate at time of 8 • Group A: patients whose tumors did not have an EGFR (ErbB1) activating mutation, whose cancer had recurred or progressed following at least one chemotherapy-containing regimen and who had not received prior EGFR (ErbB1) targeted therapy were randomized (2:1) to receive either MM-121 in combination with erlotinib or erlotinib alone; • Group B: patients whose tumors had an EGFR (ErbB1) activating mutation and who had not received prior EGFR (ErbB1) targeted therapy were randomized (2:1) to receive either MM-121 in combination with erlotinib or erlotinib alone; and • Group C: patients whose tumors had responded to an EGFR (ErbB1) targeted therapy and subsequently acquired resistance received MM-121 in combination with erlotinib. All patients received MM-121 in this group. Table of Contents surgery. pCR measures the absence of invasive cancer in breast and lymph node tissue following neoadjuvant therapy. We have completed enrollment in this trial, enrolling 200 patients in parallel across the following two populations of ErbB2 (HER2) negative breast cancer patients: Each population of patients is randomized (2:1) to receive either MM-121 in combination with paclitaxel or paclitaxel alone. Following treatment with MM-121 and/or paclitaxel, patients will receive standard treatment with doxorubicin and cyclophosphamide, two marketed chemotherapies, prior to surgical resection. In November 2013, we announced results from the Group A population of this trial. Patients in the treatment arm who received the combination of MM-121 and paclitaxel achieved a pCR rate of 10.8% [95% CI 5.3 – 20.6] compared to a pCR rate of 3.3% [95% CI 0.6 – 16.7] for those in the control arm. There was no formal quantitative endpoint specified for this study. Translational analysis is ongoing based on serial biopsies. The trial in the Group B population is ongoing, and we expect to announce top line results in the second quarter of 2014. MM-121 companion diagnostic development We are developing a companion diagnostic that is focused on measuring certain mechanistically related biomarkers to determine whether a tumor is dependent on ErbB3 signaling and therefore amenable to treatment with MM-121. In our animal models, measurements of the levels of five proteins involved in the ErbB pathways predict the activated state of ErbB3 and, therefore, the potential responsiveness of the tumor to MM-121 based on those levels. Using this approach, we have been able to predict whether tumors in preclinical xenograft studies will respond to MM-121. As part of our ongoing clinical development of MM-121, we are measuring the same set of biomarkers in patient biopsies in order to determine if biomarker levels correlate with patient outcome in both treatment and control arms. Results from our Phase 2 clinical trial of MM-121 in combination with exemestane for hormone receptor positive breast cancer and our Phase 2 clinical trial of MM-121 in combination with paclitaxel for platinum resistant or refractory advanced ovarian cancer suggest that analysis of these five pre-specified biomarkers, and in particular two of those biomarkers, may potentially be predictive of patient response to MM-121 when used in the combination setting. We expect to announce additional biomarker data from our Phase 2 clinical trials of MM-121 in the second quarter of 2014. MM-111 MM-111 overview MM-111 is a bispecific antibody designed to inhibit ErbB3 signaling in cancer cells that are characterized by overexpression of the ErbB2 (HER2) cell surface receptor. A bispecific antibody is a type of antibody that is able to bind simultaneously to two distinct target cell proteins or receptors. In the case of MM-111, these targets are the ErbB2 (HER2) receptor and the ErbB3 receptor. Our research and that of others suggest that the ErbB2 (HER2) receptor triggers tumor growth and survival when it binds together with the ErbB3 receptor and another protein called heregulin. MM-111 is designed to anchor to both receptors, ErbB2 (HER2) and HER3, on the cell surface and block heregulin’s ability to transmit tumor growth signals, thus inhibiting the tumor cell’s ability to thrive. We believe that MM-111 may be potentially applicable across a broad range of solid tumors. We are conducting a clinical program to evaluate MM-111 as a monotherapy and in combination with a range of therapies across ErbB2 (HER2) positive solid tumors, including gastric, esophageal, gastroesophageal junction, breast, ovarian and bladder cancers. In August 2013, we obtained orphan drug designation in the United States for MM-111 for the treatment of gastric, esophageal and gastroesophageal junction cancers. 9 • Group A: patients whose tumors are estrogen receptor, or ER, positive and ErbB2 (HER2) negative and have not undergone prior treatment or surgery; and • Group B: patients whose tumors are ER negative, ErbB2 (HER2) negative and progesterone receptor negative, often referred to as triple negative breast cancer, and have not undergone prior treatment or surgery. Table of Contents Based on our preclinical research, we believe that MM-111 may offer the following advantages compared to existing treatments: MM-111 Phase 2 clinical trial In June 2013, we enrolled our first patient in a Phase 2 clinical trial of MM-111 for the treatment of advanced gastric, esophageal and gastroesophageal junction cancers. Overexpression of the ErbB2 (HER2) cell surface receptor has been reported in 7% – 34% of gastric cancers. This Phase 2 clinical trial is designed to evaluate whether MM-111 is effective in gastric, esophageal and gastroesophageal junction cancer patients overexpressing the ErbB2 (HER2) receptor. The clinical trial is enrolling patients who would traditionally receive trastuzumab-based therapy due to their ErbB2 (HER2) score of 3+ on the HercepTest ® , or their ErbB2 (HER2) score of 2+ on the HercepTest ® and their positive FISH status (FISH-positive). These patients will be randomized to receive either MM-111 in combination with paclitaxel and trastuzumab or paclitaxel and trastuzumab. The two independent primary objectives for this clinical trial are first, to assess PFS between the treatment and control arms in the overall trial population, and second, to assess PFS between the treatment and control arms within the subset of patients expressing high levels of heregulin in archived tumor samples. MM-111 companion diagnostic development We are working to develop a diagnostic tool that will allow rapid identification of patients likely to respond to treatment with MM-111 based on their expression levels of certain biomarkers. The current focus of this program is the development of assays to quantify heregulin in patient samples from our clinical trials. We are testing additional quantitative assays for other biomarkers in archived and pretreatment patient biopsies from our clinical trials to generate data to support our biomarker hypotheses. This diagnostic is in preclinical development. MM-302 MM-302 overview MM-302 is an antibody drug conjugated liposomal doxorubicin that targets the ErbB2 (HER2) receptor. Doxorubicin is a marketed chemotherapy that is a member of the anthracycline class of chemotherapies. The addition of anthracyclines to the treatment of both solid and liquid tumors has historically improved outcomes for patients and, specifically, has been an effective component of breast cancer treatment for decades, with free doxorubicin-based regimens providing consistent clinical benefit. However, significant adverse events, including 10 • In patients with ErbB2 (HER2) positive cancers, the bispecific design of MM-111 may more effectively inhibit ErbB3 than combinations of separate ErbB2 (HER2) and ErbB3 targeted antibodies. Multiple published studies indicate that the affinity of heregulin for the ErbB2 (HER2)/ErbB3 receptor complex on ErbB2 (HER2) positive tumor cells is very high. Our research suggests that this makes it difficult for a single monoclonal antibody or a combination to inhibit ErbB3 signaling in patients that express high levels of ErbB2 (HER2). MM-111 is designed to utilize an ErbB2 (HER2) targeting arm to greatly increase the local concentration of the ErbB3 therapeutic arm on the surface of ErbB2 (HER2) positive tumor cells, thus enabling the molecule to disrupt the high affinity complex and inhibit signaling. • We believe that MM-111 may be particularly effective in combination with both ErbB2 (HER2) targeted and conventional chemotherapies, as MM-111 may be able to enhance anti-tumor activity, delay the development of resistance to other agents and restore sensitivity to drugs to which a tumor has become resistant. • In breast cancer and additional tumor types, such as gastric and ovarian cancer, MM-111 may be effective in patients whose tumors express ErbB2 (HER2) at lower levels than those needed for currently marketed ErbB2 (HER2) targeted agents that inhibit the ErbB2 (HER2) receptor directly. • We believe that MM-111 will have a more favorable safety profile than currently marketed ErbB2 (HER2) targeting agents because it is not designed to block ErbB2 (HER2) cell signaling, which is associated with cardiac adverse events. Table of Contents acute and chronic heart dysfunction, have limited their use. These cardiotoxic effects limit the use of traditional anthracyclines in combination with targeted therapies, such as trastuzumab, for treatment of ErbB2 (HER2)-positive breast cancer. Liposomal doxorubicin (Doxil ® ), which has been shown to reduce cardiotoxicity associated with free doxorubicin, has been approved for use in certain settings, but has not been approved for use in the United States for the treatment of breast cancer. We designed MM-302 to target and bind to cancer cells that overexpress ErbB2 (HER2) and thereby release doxorubicin at the site of the tumor, while minimizing uptake into normal cells, including those of the heart. We believe that MM-302 may offer advantages in comparison with other forms of doxorubicin, namely free doxorubicin and liposomal doxorubicin. Our clinical development strategy is to demonstrate that MM-302 has favorable efficacy and safety compared to doxorubicin for the treatment of metastatic breast cancer where concerns over cardiac safety, particularly in combination with trastuzumab, have led to a decline in the use of anthracyclines despite proven efficacy: MM-302 Phase 1 clinical trial We recently presented results from our ongoing Phase 1 clinical trial of MM-302 in patients with advanced ErbB2 (HER2)-positive breast cancer. The purpose of this trial is to assess the safety of MM-302 and identify the maximum tolerated dose. We reported on 47 patients enrolled in this clinical trial. MM-302 appeared to be well tolerated in ErbB2 (HER2)-positive metastatic breast cancer patients. Patients treated with MM-302 showed no signs of clinical decline in cardiac function. The most common adverse events were fatigue, nausea and decreased appetite; the rates of these events were consistent across MM-302 as a monotherapy and in combination with trastuzumab. Neutropenia was the most common Grade 3/4 adverse event, occurring in seven patients (six in the monotherapy arms and one in the combination arm). One dose limiting toxicity was observed (febrile neutropenia), and the dose was subsequently withheld; the patient went on to continue study treatment for three additional cycles. Results from the trial also showed that patients treated with MM-302 as a monotherapy at doses of 30, 40 and 50 mg/m2 once every four weeks had an estimated PFS of 5.6 months [95% CI 2.8 – 10.9] and a clinical benefit response rate of 37%. Stronger MM-302 activity was observed in patients not previously exposed to anthracyclines; of nine anthracycline-naïve patients treated with MM-302 as a monotherapy, five had a PFS of nine months or more. Consistent with the design of this Phase 1 clinical trial to principally test for safety and dosage tolerance, it was not designed to test for statistical significance of anti-tumor activity. 11 • MM-302 is designed to utilize nanotherapeutic encapsulation to protect the heart from cardiac adverse events associated with free doxorubicin. • The specific size and stability characteristics of MM-302 are designed to enable the preferential deposition of the drug within tumors relative to normal tissue. Specifically, as a nanotherapeutic, MM-302 may be able to utilize the EPR effect to selectively enter, and subsequently accumulate in, tumors with leaky vasculature. • MM-302 is designed with attached antibodies so as to use the ErbB2 (HER2) receptor as a binding mechanism to induce the internalization of the nanotherapeutic encapsulated drug particle, and thereby provide drug delivery directly into the cell and increase the potential efficacy of doxorubicin. • MM-302 is designed with an ErbB2 (HER2) antibody that binds to but does not shut down the signaling activity of ErbB2 (HER2). This may minimize the severity and frequency of adverse events associated with suppressing ErbB2 (HER2) and allow for more clinical benefit for patients with lower levels of ErbB2 (HER2) than is provided by current ErbB2 (HER2) directed treatments. • MM-302 may provide anti-tumor benefit for patients who have failed other ErbB2 (HER2) targeted therapies, but who have not been exposed to anthracyclines. • Our preclinical research shows that, in animal models, MM-302 may synergize with a number of approved therapies, such as trastuzumab, chemotherapies and our own drugs, like MM-111. The current concerns about the severity and frequency of adverse events associated with doxorubicin and liposomal doxorubicin prevent them from being used in many combination regimens. Table of Contents We anticipate initiating a Phase 2 clinical trial of MM-302 in patients with ErbB2 (HER2)-positive breast cancer in 2014. MM-302 companion diagnostic development We believe that deposition of nanotherapeutics such as MM-302 in the tumor may be important to efficacy. We are exploring development of in vivo companion diagnostics that take the form of imaging agents that may help identify patients likely to benefit from nanotherapeutics by enabling the measurement of deposition in patient tumors and excluding those patients with low deposition whose tumors are therefore unlikely to respond to treatment with a nanotherapeutic. We are currently evaluating nanotherapeutic formulations of various agents imaged by PET/CT scan and other modalities to assess the potential for measuring deposition. MM-151 MM-151 overview MM-151 is an oligoclonal therapeutic consisting of a mixture of three fully human monoclonal antibodies designed to bind to non-overlapping epitopes of EGFR (ErbB1). An oligoclonal therapeutic is a mixture of two or more distinct monoclonal antibodies. EGFR (ErbB1) has long been recognized as an important drug target in several malignancies, including lung, breast, colon, pancreatic and head and neck cancers. We are conducting a Phase 1 clinical trial of MM-151 in patients with refractory solid tumors. Based on our preclinical research, we believe that MM-151 may offer the following advantages over other EGFR (ErbB1) inhibitors: We believe that there may be the potential to expand MM-151 into indications in which targeted EGFR (ErbB1) therapies are not currently approved, but which our preclinical research indicates should contain patients who will respond to these therapies. Potential indications include lung cancer, triple negative breast cancer and colorectal cancer. MM-151 Phase 1 clinical trial We are conducting a Phase 1 clinical trial of MM-151 as a monotherapy and in combination with irinotecan in patients with solid tumors. The Phase 1 clinical trial will assess the safety of MM-151 and determine the recommended Phase 2 dose. Four sites are participating in this trial. We anticipate initiating a Phase 2 clinical trial of MM-151 in 2014. MM-151 companion diagnostic development We are focusing our diagnostic efforts for MM-151 on the identification of key biomarkers that will indicate which patient populations are likely to benefit from MM-151 treatment. 12 • MM-151 is designed to block the signal amplification that our research suggests occurs in the EGFR (ErbB1) pathway. Binding to multiple epitopes of EGFR (ErbB1) may result in superior signal inhibition compared to currently marketed EGFR (ErbB1) therapies, which only bind to one epitope. • MM-151 is designed to inhibit the signaling that results from the binding of a full range of EGFR (ErbB1) ligands. In contrast, currently marketed therapies block the signaling of only a subset of these ligands. As a result, a broader patient population may derive clinical benefit from MM-151. • Tumors treated with marketed monoclonal antibodies directed at EGFR (ErbB1), such as cetuximab and panitumumab, often develop resistance to these therapies. We hypothesize that this resistance often results from the production by the tumor of a different type of ligand that binds to EGFR (ErbB1). Because MM-151 is designed to block a full range of EGFR (ErbB1) ligands, resistance to treatment with MM-151 may be delayed or reduced compared to existing therapies. Table of Contents MM-141 MM-141 overview MM-141 is a fully human tetravalent bispecific antibody designed to inhibit signaling of the PI3K/AKT/mTOR pathway initiated by the insulin-like growth factor 1 receptor, or IGF-1R, and ErbB3 cell surface receptors. A tetravalent bispecific antibody is a single molecule that has four binding sites, two for each of two different target cell surface receptors. PI3K/AKT/mTOR signaling is often activated in cancers in response to stress induced by chemotherapies or targeted anti-cancer medicines and is believed to play a significant role in promoting tumor cell survival. We are conducting a Phase 1 clinical trial of MM-141 as a monotherapy and in a combination therapy setting in patients with solid tumors. We designed MM-141 to suppress the PI3K/AKT/mTOR signaling pathway by reducing the levels of IGF-1R and ErbB3 receptor complexes that trigger the pathway. Based on our preclinical research, we believe that MM-141 may offer the following advantages compared to antibodies that solely target IGF-1R or ErbB3: MM-141 Phase 1 clinical trial We are conducting a Phase 1 clinical trial of MM-141 in both a monotherapy and a combination therapy setting in patients with solid tumors. This is a Phase 1 dose-escalation study evaluating safety and tolerability and pharmacokinetic and pharmacodynamic properties of MM-141 as a monotherapy and in combination with everolimus or with nab-paclitaxel and gemcitabine. The purpose of this trial is to assess the safety of MM-141 and identify the recommended Phase 2 dose. The monotherapy portion of this Phase 1 clinical trial has been completed. We anticipate initiating a Phase 2 clinical trial of MM-141 in 2014. MM-141 companion diagnostic development We are conducting research and development on an in vitro companion diagnostic for MM-141 that will help to determine which patients will derive benefits from the drug alone or in combination with other therapies, while experiencing a satisfactory safety profile. This research is focused on identifying pathway-relevant biomarkers and assessing their correlation with the magnitude of patient response to MM-141. Preclinical Product Candidates We are developing our preclinical product candidates for a range of solid tumor indications. Our most advanced preclinical candidates are MM-310, a targeted nanotherapeutic, and MM-131, a multispecific antibody. Network Biology Network Biology is what we call our proprietary systems biology-based approach to biomedical research. The goal of Network Biology is to understand how the complex molecular interactions that occur within cell 13 • MM-141 is a tetravalent antibody that binds to both IGF-1R and ErbB3 with high affinity and avidity. • MM-141 is designed to block pro-survival signaling of major activators of PI3K/AKT/mTOR, such as heregulin, IGF-1 and IGF-2. • MM-141 is designed to block mutual compensation in IGF-1R and ErbB3 mediated activation of PI3K/AKT/mTOR by co-inhibiting both targets. • MM-141 is designed to degrade IGF-1R and ErbB3 containing receptor complexes that are commonly activated in tumors in response to PI3K/AKT/mTOR inhibition by a small molecule or an antibody. • MM-141 appears not to activate the immune system, which reduces the chance of off-target adverse events. Table of Contents signaling pathways, or networks, regulate cell decisions and how network dysfunction leads to disease. This platform utilizes proprietary, dynamic biological data generated in a high-throughput method in which we test multiple biological or chemical parameters using engineering, analytical and modeling expertise, and from which we build computational models of cell biology to further our drug discovery, design and predictive development. To execute Network Biology, we have developed an expertise in generating kinetic data, describing molecular changes or interactions over time, to illuminate the dynamic interactions that occur within biological systems. We apply Network Biology throughout the research and development process, including for target identification, lead compound design and optimization, diagnostic discovery, in vitro and in vivo predictive development and the design of clinical trial protocols. Our models are constructed and validated using internally generated and proprietary data sets. Following the validation of a comprehensive model of a cell signaling network, we are able to use the model for drug discovery. Contrary to traditional methods, our discovery work takes place in silico , or using the model for simulation. We believe that this approach is more efficient and productive for drug discovery and development than traditional approaches. As one example, we identified ErbB3, the target of MM-121, using our proprietary model of the ErbB signaling network after conducting a sensitivity analysis on its signaling process. Although the ErbB pathway has been extensively targeted by cancer therapeutics, we believe that understanding the relative importance of the different components of the ErbB network is central to identifying an attractive drug target and a therapeutic directed at this target. In this case, we built a computational model of the ErbB signaling network that includes the most potent ErbB receptor ligands, as well as known and novel ErbB inhibitors. We populated the model with proprietary dynamic data that we generated from our experiments. The model describes in mathematical equations 700 biochemical reactions representing the ErbB signal transduction network, and identified ErbB3 as the key node in response to both ErbB3- and EGFR (ErbB1)-binding ligands. We then used this insight to develop MM-121. Ultimately, we believe that Network Biology will result in better treatments for complex diseases by providing broader insight into disease and the potential therapeutic alternatives for physicians and patients. Using Network Biology, we are incorporating the identification of biomarkers and the development of companion diagnostics into the drug development process. We believe that integrated medicines may enable physicians to deliver the right drug to the right set of patients at the right time. This may improve patient outcomes by providing improved therapeutics along with the diagnostic information to guide physician treatment decisions, reduce the overall costs of treating and caring for cancer patients, and provide a basis for seeking favorable reimbursement of approved drugs from payors because of the benefits to patients. In addition to improving patient care, we believe that Network Biology can increase the productivity of biomedical research, increase the probability of approval for new drugs and produce more precisely targeted therapeutics. We believe that our therapeutic oncology product candidates will have a greater probability of success than product candidates based on conventional drug development because Network Biology provides us with: Although our initial focus is oncology, we believe that our Network Biology approach is applicable to a broad range of therapeutic areas beyond cancer, including bone and joint conditions, infectious disease, inflammation, central nervous system disease and other areas of medicine with high unmet needs. While we may pursue some of these disease areas directly ourselves, because of the potential of very broad applicability of our Network Biology approach, our plan is to pursue many or all of these other areas through collaborations, licenses 14 • a multidisciplinary, integrated approach to understanding complex biology; • simulation and modeling capabilities that aid in the efficiency and productivity of development; and • the capability to design and build a broad range of therapeutic product candidates without being limited to a particular drug design technology or target class. Table of Contents and other arrangements with third parties. As an example, in 2010, we established Silver Creek Pharmaceuticals, Inc., or Silver Creek, to apply our Network Biology approach to the research, development and commercialization of pharmaceuticals in the regenerative medicine field. Silver Creek is now a majority owned subsidiary of ours with the minority equity held by third-party investors. Therapeutic Design Capabilities We apply the insights about cell signaling dynamics that we gain from Network Biology across a range of therapeutic technologies to design drug candidates that we believe can be efficiently delivered to the selected molecular target. We believe that the best therapies for the oncology indications that we are pursuing are targeted therapies that, in contrast with conventional chemotherapies, are highly selective for the molecular mechanisms that we are seeking to affect and, as a result, offer the potential for significant efficacy and safety benefits. Two such targeted therapies are human monoclonal antibodies and nanotherapeutics. Human monoclonal antibodies Human monoclonal antibodies are a key component of many of our targeted therapies based on their range of favorable attributes, including their significant target specificity and avidity relative to small molecules and their well understood pharmacokinetic properties. We have designed antibodies for use as stand-alone therapeutics and have incorporated antibodies into other therapeutics, such as targeted nanotherapeutics, as targeting or docking agents. We work with several antibody formats, including the following: Nanotherapeutics Our nanotherapeutics are lipidic particles carefully constructed to encapsulate active drug payloads. Nanoscale objects typically, though not exclusively, have dimensions on the order of 100 nanometers or smaller. We believe that nanotherapeutics offer the following potentially favorable attributes: 15 • Fully human recombinant monoclonal antibodies and fragments of fully human recombinant monoclonal antibodies that include the antibody binding domain. Monoclonal antibodies and antibody fragments are proteins that bind specifically to one defined site on a cell surface protein or receptor. • Multispecific antibody formats, which are comprised of two or more antibodies or antibody fragments linked to a common scaffold molecule to produce a single molecule that specifically binds to distinct epitopes on two or more target cell surface proteins or receptors. • Oligoclonal antibody mixtures, which are comprised of defined ratios of two or more recombinant human monoclonal antibodies that target two or more distinct epitopes on a single cell surface protein or receptor. • The uniform sizing of our nanotherapeutics is intended to enable targeting and preferential deposition within tumors by taking advantage of the EPR effect. • We formulate our nanotherapeutics to minimize the leakage of active drug payload out of the particle before the nanotherapeutic has reached the tumor, with the goal of limiting systemic exposure, and the associated occurrence of adverse events, and maximizing the amount of active drug that reaches the target. • Encapsulation is designed to protect the active drug payload as it passes through the circulation and organs of the body, such as the liver, preventing premature clearance or metabolism of the active drug, and thereby extend the pharmacokinetic profile and enable more convenient dosing regimens. • We can efficiently create targeted nanotherapeutics using our technical expertise and know-how that enable insertion of targeting agents, such as antibodies, into our nanotherapeutics. • We can customize our nanotherapeutics for use with a variety of drug payloads, including chemotherapies, cytotoxics and nucleic acids, such as siRNA and genes. Table of Contents Manufacturing We manufacture drug substance for use in our clinical trials and research and development efforts for all of our therapeutic product candidates using current good manufacturing practices, or cGMP, at our approximately 13,500 square foot multi-product facility located at our corporate headquarters in Cambridge, Massachusetts. We have the capabilities to manufacture antibodies, nanotherapeutics and antibody-targeted nanotherapeutics. Our manufacturing facility is comprised of multiple independent clean rooms, includes three 1,000 liter single-use bioreactors, and has capacity to produce approximately 50 kilograms of antibodies per year. As of January 31, 2014, we employed approximately 84 employees in manufacturing activities. We believe that our strategic investment in manufacturing capabilities allows us to advance product candidates at a more rapid pace and with more flexibility than a contract manufacturer, produce drug substance in a cost-effective manner while retaining control over the process and prioritize the timing of internal programs. Our manufacturing capabilities encompass the full manufacturing process through quality control and quality assurance and are integrated with our project teams from discovery through development. This structure enables us to efficiently transfer research stage lead molecules into manufacturing. We have designed our manufacturing facility and processes to provide maximum flexibility and rapid changeover for the manufacture of different product candidates. We outsource fill-finish, packaging, labeling and shipping. We manufacture our antibody and nanotherapeutic product candidates using commercially available raw materials and well established manufacturing procedures. We produce antibodies in bioreactors using Chinese hamster ovary cells that have been genetically engineered to secrete our antibody. We then purify the antibodies using industry standard methods, which include affinity chromatography and ultrafiltration operations. We produce nanotherapeutics using high pressure filter extrusion of a mixture of cholesterol and lipids. We then load the nanoliposomes with active pharmaceutical ingredient using a proprietary process. We have optimized the Phase 2 production process of MM-398 and produced material for our Phase 3 clinical trial at our manufacturing facility. We filed a chemistry manufacturing and controls amendment with the FDA in October 2011 and are currently using the MM-398 product that we manufactured for our Phase 3 clinical trial. We believe that we can scale our manufacturing processes to support our clinical development programs and the potential commercialization of our product candidates. If any of our product candidates are approved for marketing by the FDA or any other regulatory agency, we intend to oversee the manufacturing of these products, other than MM-121, which Sanofi now manufactures according to the terms of our collaboration agreement. For our antibody product candidates, we intend to continue to manufacture drug substance for preclinical testing and Phase 1 and Phase 2 clinical development at our current facility. Our long term plan is to establish our own facilities for manufacturing antibody drug substance for Phase 3 clinical development and commercial sale. Pending our establishment of these facilities, we expect to transfer Phase 3 and commercial antibody manufacturing to a contract manufacturing organization. For our nanotherapeutic product candidates, we intend to continue to manufacture drug substance for preclinical testing and all stages of clinical development and initially manufacture drug substance for commercial sale at our current facility. We are developing and testing diagnostic assays for predictive biomarkers in an internal laboratory under Good Clinical Laboratory Practices. Upon completion of the development of the diagnostic tests, we plan to evaluate external as well as internal options for manufacturing and commercialization of the tests. We are leveraging our manufacturing capabilities to manufacture drug product on behalf of a third-party pharmaceutical company, and may enter into additional agreements to do so in the future. In November 2013, we entered into an agreement with Watson Laboratories, Inc., or Actavis, as more fully described below, pursuant to 16 Table of Contents which we will utilize our nanoliposomal manufacturing capabilities to develop, manufacture and exclusively supply the bulk form of doxorubicin HCl liposome injection to Actavis. Under this agreement, we have also agreed to develop additional products for Actavis, the identities of which will be mutually agreed upon in the future. Sales and Marketing As our lead product candidates are still in clinical development, we are in the planning stages of establishing our sales, marketing and product distribution infrastructure. We generally expect to retain commercial rights in the United States and Europe for our oncology product candidates, other than MM-121, for which we receive marketing approvals. We believe that it is possible to access these markets through a focused, specialized field force. Subject to receiving marketing approvals, we expect to commence commercial activities by building a focused sales and marketing organization for MM-398. This could form the basis of the sales and marketing organization that we will use to sell our other products, subject to receiving marketing approval. We believe that such an organization will be able to address the community of oncologists who are the key specialists in treating solid tumors, including the lung, breast, ovarian, pancreatic, colorectal and head and neck cancers for which our product candidates are being developed. Outside the United States and Europe, we expect to enter into distribution and other marketing arrangements with third parties for any of our product candidates that obtain marketing approval. We also plan to build a marketing and sales management organization to create and implement marketing strategies for any products that we market through our own sales organization and to oversee and support our sales force. The responsibilities of the marketing organization would include developing educational initiatives with respect to approved products and establishing relationships with thought leaders in relevant fields of medicine. We plan to tightly integrate the marketing of our therapeutics and companion diagnostics. As we expect to pair various types of diagnostics with our therapeutics, it is likely that the sales and marketing tactics and business model employed for our various diagnostics may differ from one another. Competition The biotechnology and pharmaceutical industries are characterized by rapidly advancing technologies, intense competition and a strong emphasis on proprietary products. While we believe that our Network Biology technologies, integrated research, clinical and manufacturing capabilities, development experience and scientific knowledge provide us with competitive advantages, we face potential competition from many different sources, including major pharmaceutical, specialty pharmaceutical and biotechnology companies, academic institutions and governmental agencies and public and private research institutions. Any product candidates that we successfully develop and commercialize will compete with existing therapies and new therapies that may become available in the future. Many of our competitors may have significantly greater financial resources and expertise in research and development, manufacturing, preclinical testing, conducting clinical trials, obtaining regulatory approvals and marketing approved products than we do. Mergers and acquisitions in the pharmaceutical, biotechnology and diagnostic industries may result in even more resources being concentrated among a smaller number of our competitors. These competitors also compete with us in recruiting and retaining qualified scientific and management personnel and establishing clinical trial sites and patient registration for clinical trials, as well as in acquiring technologies complementary to, or necessary for, our programs. Smaller or early stage companies may also prove to be significant competitors, particularly through collaborative arrangements with large and established companies. 17 Table of Contents The key competitive factors affecting the success of all of our product candidates, if approved, are likely to be their efficacy, safety, convenience, price, the effectiveness of companion diagnostics in guiding the use of related therapeutics, the level of generic competition and the availability of reimbursement from government and other third-party payors. Our commercial opportunity could be reduced or eliminated if our competitors develop and commercialize products that are safer, more effective, have fewer or less severe side effects, are more convenient or are less expensive than any products that we may develop. Our competitors also may obtain FDA or other regulatory approval for their products more rapidly than we may obtain approval for ours. In addition, our ability to compete may be affected because in many cases insurers or other third-party payors seek to encourage the use of generic products. There are many generic products currently on the market for the indications that we are pursuing, and additional products are expected to become available on a generic basis over the coming years. If our therapeutic product candidates are approved, we expect that they will be priced at a significant premium over competitive generic products. The initial focus of our business is to develop therapeutics and companion diagnostics for the treatment of solid tumor cancers. Cancer is the second most common cause of death in the United States, exceeded only by heart disease, and accounts for almost one of every four deaths in the United States. There are a variety of available drug therapies marketed for solid tumors. In many cases, these drugs are administered in combination to enhance efficacy. Some of these drugs are branded and subject to patent protection, and others are available on a generic basis, including the active ingredients in MM-398 and MM-302. Many of these approved drugs are well established therapies and are widely accepted by physicians, patients and third-party payors. In general, although there has been considerable progress over the past few decades in the treatment of solid tumors and the currently marketed therapies provide benefits to many patients, these therapies all are limited to some extent in their efficacy and frequency of adverse events, and none of them are successful in treating all patients. As a result, the level of morbidity and mortality from solid tumor cancers remains high. The following table sets forth information about the incidence and selected treatments for some of the solid tumor cancers for which we are developing therapeutic product candidates and companion diagnostics. The U.S. estimated annual incidence is based on information from the American Cancer Society, Cancer Fact & Figures 2014 . 18 Tumor Type U.S. Annual Incidence Selected Marketed Therapies Breast 235,030 trastuzumab (Herceptin ® ); docetaxel (Taxotere ® ); paclitaxel (Taxol ® , Abraxane ® ); capecitabine (Xeloda ® ); tamoxifen (Nolvadex ® , Soltamox ® ); anastrazole (Arimidex ® ); letrozole (Femara ® ); exemestane (Aromasin ® ); ado-trastuzumab emtansine (Kadcyla ® ); pertuzumab (Perjeta ® ); everolimus (Afinitor ® ) Lung and bronchus 224,210 docetaxel (Taxotere); gemcitabine (Gemzar ® ); pemetrexed (Alimta ® ); gefitinib (Iressa ® ); erlotinib (Tarceva ® ); bevacizumab (Avastin ® ); paclitaxel (Taxol, Abraxane) Colorectal 136,830 oxaliplatin (Eloxatin ® ); irinotecan (Camptosar ® ); bevacizumab (Avastin); cetuximab (Erbitux ® ); panitumumab (Vectibix ® ) Pancreatic 46,420 nab-paclitaxel (Abraxane); gemcitabine (Gemzar); erlotinib (Tarceva) Liver 33,190 sorafenib (Nexavar ® ) Table of Contents In addition to the marketed and generic therapies for solid tumors, there are also a number of products in late stage clinical development to treat solid tumors. These products in development may provide efficacy, safety, convenience and other benefits that are not provided by currently marketed therapies. As a result, they may provide significant competition for any of our product candidates for which we obtain market approval. Collaboration and License Agreements We are party to a number of collaboration agreements for the development and commercialization of our product candidates and license agreements under which we license patents, patent applications and other intellectual property. We consider the following collaboration and license agreements to be material to our business. Actavis In November 2013, we and Actavis entered into a development, license and supply agreement pursuant to which we will develop, manufacture and exclusively supply the bulk form of doxorubicin HCl liposome injection, or initial product, to Actavis, which Actavis will process into finished product and commercialize globally. We also agreed to develop additional products for Actavis, the identities of which will be mutually agreed upon in the future. We are eligible to receive up to $15.5 million under the agreement, including $2.0 million upfront and the remainder in development funding and development, regulatory and commercial milestone payments related to the initial product. We will also receive a double digit share of net profits on global sales of the initial product and any additional products. We will manufacture and supply the initial product to Actavis in bulk form at an agreed upon unit price. The agreement will expire with respect to each product ten years after Actavis’ first sale of such product, unless terminated earlier, and will automatically renew for additional two year periods thereafter unless either party provides notice of non-renewal. Either party may terminate the agreement in the event of an uncured material breach or bankruptcy filing by the other party. Actavis may also terminate the agreement for convenience in specified circumstances upon 90 days’ prior written notice. Sanofi In September 2009, after MM-121 entered Phase 1 clinical development, we entered into a license and collaboration agreement with Sanofi for the development and commercialization of MM-121. Under the agreement, we granted Sanofi an exclusive, worldwide, royalty-bearing right and license, with the right to grant sublicenses, under our patent rights and know-how to develop and commercialize the monoclonal antibody MM-121 and an MM-121 companion diagnostic. We retained the right, but not the obligation, to participate in the clinical development of MM-121 through Phase 2 proof of concept for each indication and final decision making authority over the conduct of the trials that we conduct, subject to our having the necessary capabilities and resources to conduct those trials and subject to the trials we conduct having been approved by Sanofi as part of the global development plan for MM-121. Sanofi is responsible for using commercially reasonable efforts thereafter to develop, obtain regulatory approvals for and, following regulatory approval, commercialize MM-121 and a companion diagnostic in each of the United States, Europe and Japan. We also retained an option to co-promote MM-121 in the United States. 19 Tumor Type U.S. Annual Incidence Selected Marketed Therapies Brain and other nervous system cancers 23,380 temozolomide (Temodar ® ); carmustine (BiCNU ® ); polifeprosan 20 with carmustine implant (Gliadel ® ); bevacizumab (Avastin) Gastric 22,220 capecitabine (Xeloda); trastuzumab (Herceptin); docetaxel (Taxotere); oxaliplatin (Eloxatin); epirubicin (Ellence ® ) Ovarian 21,980 liposomal doxorubicin (Doxil); bevacizumab (Avastin); paclitaxel (Taxol, Abraxane); gemcitabine (Gemzar) Table of Contents Under the agreement, Sanofi paid us a non-refundable upfront license fee of $60 million. Sanofi is also responsible for all development and manufacturing costs under the collaboration. In addition, we could receive under the agreement up to an aggregate of $410 million from Sanofi upon the achievement of specified development and regulatory milestones and an additional $60 million based on the achievement of specified sales milestones. We have received $25 million to date based on our achievement of three clinical milestones. Under the agreement, we are entitled to tiered, escalating royalties beginning in the sub-teen double digits based on net sales of MM-121 in the United States and beginning in the high single digits based on net sales of MM-121 outside the United States. In general, Sanofi’s obligation to pay us royalties continues on a product-by-product and country-by-country basis until the latest of the expiration of the patent rights covering the product in such country, the expiration of all data and regulatory exclusivity applicable to the product in such country or ten years after the first commercial sale of the product in such country. If we co-promote MM-121 in the United States, we will be responsible for paying our sales force costs and a specified percentage of direct medical affairs, marketing and promotion costs for MM-121 in the United States and will be eligible to receive tiered, escalating royalties beginning in the high teens based on net sales of MM-121 in the United States. We are also entitled to an increase in the royalty rate on a product-by-product and country-by-country basis if a diagnostic product is actually used in the treatment of solid tumor indications with a particular therapeutic product. Under the agreement, we are obligated to pay all licensing costs for specified third-party patent rights that we or Sanofi may in the future license for the development and commercialization of MM-121. The third-party patent rights for which we are required to pay all licensing costs consist of the patent rights that are the subject of two European Patent Office opposition proceedings and related counterparts worldwide. See Item 3. Legal Proceedings in this Annual Report on Form 10-K for more information. We share the licensing costs for other third-party patent rights that we or Sanofi have licensed or may in the future license for the development and commercialization of MM-121 through specified deductions that Sanofi is permitted to take against the royalties Sanofi pays to us. The third-party patent rights for which we share the costs with Sanofi include rights that we have licensed from Dyax Corp., or Dyax, the U.S. Public Health Service and Selexis SA, as described in more detail below. A joint steering committee comprised of an equal number of representatives from each of Sanofi and us is responsible for reviewing and approving the global development plan for MM-121, including all budgets relating to development activities we conduct, and overseeing the parties’ development and commercialization activities with respect to MM-121. The joint steering committee also oversees a joint development committee responsible for overseeing the progress of the development program. In general, Sanofi has final decision making authority over matters on which the joint steering committee deadlocks, following escalation to designated executive officer representatives of the parties, with the exception of our retained decision making authority over the conduct of clinical trials that that we conduct in accordance with the global development plan. If necessary and at a time to be mutually agreed by the parties, we and Sanofi have agreed to form a commercialization committee, also to be overseen by the joint steering committee, that will be responsible for overseeing co-promotion activities in the United States and serving as a forum for communication between the parties regarding worldwide commercialization matters for MM-121. Sanofi has agreed that, subject to limited exceptions, until the second anniversary of the closing of our initial public offering of common stock, or IPO, neither Sanofi nor any of its affiliates will (1) effect or seek, initiate, offer or propose to effect, or cause or participate in any way, advise or assist any other person to effect or seek, initiate, offer or propose to effect or cause or participate in, any acquisition of any of our securities or assets, any tender or exchange offer, merger, consolidation or other business combination involving us, any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to us or any solicitation of proxies or consents to vote any of our voting securities; (2) form, join or in any way participate in a group with respect to any of our securities; (3) otherwise act, alone or in concert with others, to seek to control or influence our management, board of directors or policies, except as contemplated by our collaboration agreement; (4) take any action which would reasonably be expected to force us to make a public announcement regarding the foregoing; or (5) enter into any agreements, discussions or arrangements with any third party with 20 Table of Contents respect to any of the foregoing. Notwithstanding these limitations, we granted a waiver allowing Sanofi to purchase up to 6,300,000 shares of our common stock. If not terminated earlier, the agreement will expire upon expiration of all royalty and other payment obligations of Sanofi under the agreement. Either party may terminate the agreement in the event of an uncured material breach by the other party. Sanofi also may terminate the agreement for its convenience upon 180 days’ prior written notice. In addition, we may terminate the agreement if Sanofi challenges or supports any challenge of our licensed patent rights. In June 2012, we entered into a right of review agreement with Sanofi pursuant to which, if we determine to enter into negotiations with a third party regarding any license, option, collaboration, joint venture or similar transaction involving any therapeutic or companion diagnostic product candidate in our pipeline, we will notify Sanofi of such opportunity. Following such notice, Sanofi will have a specified period of time to review the opportunity and determine whether to exercise an additional right to exclusively negotiate an agreement with us with respect to such opportunity for a specified period of time. If Sanofi does not exercise such right of negotiation, we may enter into negotiations with third parties with respect to the opportunity, provided that we may only enter into an agreement with a third party with respect to those countries that were initially offered to Sanofi. On the other hand, if Sanofi does exercise such right of negotiation but we and Sanofi do not reach a mutually acceptable agreement during the negotiation period, we may enter into negotiations with third parties with respect to the opportunity, provided that we may not enter into an agreement within a specified period of time following the end of the negotiation period if either (i) the agreement involves countries that were not previously offered to Sanofi or (ii) the terms and conditions of such agreement are materially more favorable to the third party than what was previously offered by Sanofi. If we propose to enter into any third-party agreement described in the provisos of the preceding two sentences, we must first offer the same terms and conditions to Sanofi. In addition, if we intend to spin out certain of our research and development activities to a newly established, partially owned subsidiary, we will notify Sanofi prior to the initial fundraising for such spin-out. Following such notice, Sanofi will be entitled to review the proposed investment terms, although the final terms and participants of such investment will be determined solely by the board of directors of the spin-out. The right of review terminates on April 1, 2017. PharmaEngine In May 2011, we entered into an assignment, sublicense and collaboration agreement with PharmaEngine. Under the agreement, PharmaEngine assigned to us its rights and obligations under a 2005 agreement with Hermes BioSciences, Inc., or Hermes, to develop and commercialize MM-398 in Europe and certain countries in Asia. Through our acquisition of Hermes in 2009, we hold the rights to MM-398 in North America and the rest of the world. PharmaEngine also granted to us an exclusive right and license, with the right to sublicense, under PharmaEngine technology and rights to develop and commercialize MM-398 worldwide outside of Taiwan. We granted to PharmaEngine a paid-up, royalty free, exclusive right and license under our technology and rights to develop and commercialize MM-398 in Taiwan. Under the agreement, we have paid PharmaEngine a $10 million upfront license fee and a $5 million milestone payment. In addition, PharmaEngine is eligible to receive up to an aggregate of $205 million from us upon the achievement of specified development, regulatory and annual net sales milestones. Under the agreement, PharmaEngine is entitled to tiered royalties based on net sales of MM-398 in Europe and certain countries in Asia. The royalty rates under the agreement range from high single digits up to the low teens as a percentage of our net sales of MM-398 in these territories. Our obligation to pay royalties to PharmaEngine continues on a country-by-country basis until the later of ten years after the first commercial sale of MM-398 in such country and May 2, 2024. We are responsible for the development and commercialization, and all related costs and expenses, of MM-398 in all countries except Taiwan, where PharmaEngine retains the right to develop and commercialize MM-398 at its expense. Each party has agreed to use commercially reasonable efforts to develop, in accordance with a development plan, and commercialize MM-398 in its respective territory. We also 21 Table of Contents have a diligence obligation to initiate a second Phase 3 clinical trial of MM-398 in a different solid tumor indication within a timeframe specified in the agreement. Multiple executive committees were formed under the agreement, each comprised of an equal number of representatives from each party. The steering committee is responsible for reviewing and approving changes to the development plan, providing overall strategic direction with respect to development of MM-398 under the development plan and overseeing other committees. The steering committee is also responsible for resolving any disputes arising under the agreement at the steering committee or that are referred to it by any of the other committees. If a matter is unresolved by the steering committee, it may be referred for resolution to executive officers from both companies. We have final decision making authority on any such matter not resolved by the executive officers that relates to the worldwide development of MM-398 or commercialization of MM-398 outside of Taiwan. The development committee is responsible for recommending to the steering committee changes to the development plan and overseeing the progress of the development program and monitoring the parties’ compliance with their respective obligations under the development plan. Upon expiration of all royalty and other payment obligations due to PharmaEngine under this agreement on a country-by-country basis, the licenses granted under the agreement will be deemed to be perpetual, fully paid-up and irrevocable with respect to the licensed product in such country. Either party may terminate the agreement in the event of an uncured material breach by the other party. In addition, at any time after May 2013, we may terminate the agreement for convenience upon 90 days’ prior written notice. If PharmaEngine terminates this agreement in its entirety or with respect to Europe or the Asian territories because of our material breach, or if we terminate the agreement for convenience with respect to Europe or the Asian territories, then we are required to grant PharmaEngine a license under our technology and rights with respect to MM-398 in Europe or the Asian territories, as applicable, and PharmaEngine is required to pay us single-digit royalties for net sales of MM-398 in such territories. Dyax In January 2007, we entered into an amended and restated collaboration agreement with Dyax, which superseded a prior collaboration agreement with Dyax that we entered into in December 2005. Under this collaboration agreement, Dyax uses its proprietary phage display technology to identify antibodies that bind to targets of interest to us as therapeutics or diagnostics. Further, Dyax has granted to us a worldwide, non-exclusive, royalty free right to use and make any and all of the antibodies identified by Dyax for certain research purposes. In order to clinically develop or commercialize any such antibody, however, we must obtain an additional product license from Dyax on a target-by-target basis. We have the option to obtain one or more product licenses on terms set forth in the collaboration agreement, subject to limitations on the availability of each such product license under an agreement between Dyax and Cambridge Antibody Technologies, which has merged with MedImmune, LLC and is now owned by AstraZeneca PLC. As consideration for the grant of the initial research license, we paid Dyax a research fee based on the total estimated full time equivalent researchers that were required to conduct the research plan and a fee for achieving certain technical milestones. If we elect to obtain a product license with respect to any therapeutic or diagnostic target, we are required to pay to Dyax an additional upfront license fee for the applicable antibody. We also will be required to make additional maximum aggregate development and regulatory milestone payments of $16.2 million for therapeutic products and maximum aggregate regulatory milestone payments of $1.0 million for diagnostic products directed to selected targets. In addition, Dyax is entitled to mid single digit royalties based on net sales of products covered by any product license that we obtain from Dyax. Our obligation to pay royalties to Dyax continues on a product-by-product and country-by-country basis until the later of a specified number of years after the first commercial sale of the product in such country and the expiration of the patent rights covering the product in such country. MM-121 and a component of MM-141 were identified under this agreement, and we have obtained the required target licenses from Dyax by exercising our product license options and paying the applicable license fees. We are obligated to use commercially reasonable efforts to develop and commercialize the antibodies for which we obtain a commercial license. 22 Table of Contents This agreement will remain in effect, unless terminated earlier, for so long as we or any of our affiliates or sublicensees continue to develop or commercialize products that remain royalty-bearing under the agreement. Either party may terminate the agreement in the event of an uncured material breach by the other party. We also may terminate the agreement in its entirety or on a product-by-product basis at any time upon 90 days’ prior written notice. Adimab In November 2009, we entered into a collaboration agreement with Adimab LLC, or Adimab, to allow us to evaluate the utility of using antibodies identified during the collaboration as therapeutics or diagnostics. Under the agreement, Adimab granted to us a worldwide, non-exclusive, royalty free right to use materials provided by Adimab to perform non-clinical research during the evaluation term. Adimab also granted to us an option to obtain the assignment of specified patent rights claiming the selected antibodies and a license under Adimab’s background patent rights and know-how for the development and commercialization of the antibodies. As partial consideration for the research license grant, we paid Adimab a technology access fee at the time of grant, research fees based on the total estimated full time equivalent researchers that were required to conduct the research plan and a fee for achieving certain technical milestones. We have exercised our assignment and license option by paying Adimab a fee of $1.0 million. In addition, we are required to pay Adimab up to an aggregate of $13.5 million per therapeutic area, for the first four therapeutic areas, upon achievement of specified development and regulatory milestones, of which we have paid $1.5 million with respect to the first therapeutic area, and up to an aggregate of $500,000 per diagnostic product upon the achievement of specified regulatory milestones. In addition, Adimab is entitled to mid single digit royalty payments based on net sales of therapeutic products and diagnostic products arising from the collaboration. Our obligation to pay royalties to Adimab continues on a product-by-product and country-by-country basis until the later of a specified number of years after the first commercial sale of the product in such country and the expiration of the patent rights covering the product in such country, provided that the royalty term will not extend beyond a specified number of years after the first commercial sale of the product in such country. We are obligated to use commercially reasonable efforts to develop and commercialize at least one product that incorporates the antibodies for which we exercised our assignment and license option in each of the United States, Europe and Japan. MM-151 was generated under this agreement. The term of the agreement expires on a country-by-country basis on the earliest date after which no payments are due to Adimab, unless earlier terminated. Either party may terminate the agreement in the event of an uncured material breach by the other party. In addition, we may terminate the agreement at any time upon 90 days’ prior written notice. University of California 2005 agreement In March 2005, we entered into a license agreement with The Regents of the University of California, or the Regents. Under the agreement, the Regents granted to us a royalty-bearing right and license in the United States and other countries where the Regents have the right to grant the license under certain patent rights and rights in biological materials to develop and commercialize products for therapeutic or diagnostic use in humans that are covered by the licensed patents. Licensed products under this agreement include MM-111. This license is exclusive with respect to certain patents, including some relevant to MM-111, and non-exclusive with respect to other patents and biological materials. The agreement requires that we diligently pursue the development, manufacture and commercialization of licensed products. In addition, we are required to meet specific development, regulatory and commercialization milestones within timeframes specified in the agreement. We have sole responsibility for the development and commercialization of products under the licensed technology. However, the agreement provides that the Regents may require us to sublicense our exclusive rights for the application or use of licensed products covered by any exclusively licensed technology that we are not currently pursuing. 23 Table of Contents We are required to pay to the Regents an annual license maintenance fee of between $20,000 and $30,000 until the first commercial sale of a licensed product and are responsible for all development costs. In addition, we are required to pay to the Regents up to an aggregate of $725,000 per therapeutic product, other than the second therapeutic product, for which we are responsible for up to an aggregate of $906,250, based on the achievement of specified development and regulatory milestones. The Regents are also entitled to royalties in the low single digits based on net sales of products covered by the licensed technology. A minimum annual royalty is due to the Regents commencing in the earlier of the year of the first commercial sale of a licensed product or 2015. The minimum annual royalty increases from $100,000 in the first year it is payable to $500,000 in the fifth year and thereafter for the life of the patents. If we sublicense the rights granted to us under the licensed technology to a third party, then we are also obligated to pay to the Regents a portion of the sublicensing income related to the licensed technology. If not terminated earlier, this agreement terminates upon the later of nine years from the market introduction of the last licensed product that contains the licensed biological materials or the expiration of all patent rights licensed under this agreement. At such time, we will have a perpetual, fully paid, world-wide, non-exclusive license. The Regents may terminate the agreement in the event of an uncured material breach by us. We may terminate the agreement on a country-by-country basis at any time upon 60 days’ prior written notice. 2000 agreement In November 2000, we entered into a separate exclusive license agreement with the Regents. Under the agreement, the Regents granted us a royalty-bearing world-wide right and license under certain patent rights for the development and commercialization of products that are covered by the licensed patent rights, including MM-302. The agreement requires that we diligently pursue the development, manufacture and commercialization of licensed products. In addition, we are required to meet specified development, regulatory and commercialization milestones within timeframes specified in the agreement. We have the sole responsibility for the development and commercialization of products under the licensed technology. We are required to pay to the Regents an annual license maintenance fee of $95,000 until the first commercial sale of a licensed product. We also are responsible for all development costs and have agreed to spend a minimum of $150,000 per year for such costs. In addition, we are responsible for up to an aggregate of $700,000 per product upon the achievement of specified development and regulatory milestones. The Regents are also entitled to royalties in the low single digits based on net sales of products covered by the licensed technology. If we sublicense the rights granted to us under the licensed technology to a third party, then we are also obligated to pay to the Regents a portion of the sublicensing income related to the licensed technology. If not terminated earlier, this agreement terminates upon the expiration or abandonment of all patents licensed under this agreement. The Regents may terminate the agreement in the event of an uncured material breach by us. We may terminate the agreement on a country-by-country basis at any time upon 60 days’ prior written notice. U.S. Public Health Service In February 2008, we entered into a commercial license with the U.S. Public Health Service, a division of the U.S. Department of Health and Human Services, for non-exclusive rights in the United States to patents related to ErbB3 and ErbB3 antibodies associated with MM-121, MM-111 and MM-141. Under the agreement, we may be required to make aggregate development and regulatory milestone payments of up to $6.0 million per therapeutic licensed product and pay low single digit royalties on net sales of licensed products. The term of the agreement extends until the expiration of the licensed patent rights, which is 2016. Selexis In June 2008, we entered into a commercial license with Selexis SA for non-exclusive rights to technology for use in the manufacture of certain biologic products, including each of our six most advanced product candidates, other than MM-398. Under this agreement, we are required to make aggregate milestone payments of 24 Table of Contents up to €1.0 million per licensed product and pay royalties of less than one percent on net sales of licensed products. The obligation to pay royalties with respect to each product sold in a country continues until the expiration of the patent rights covering the product in such country. Intellectual Property We aggressively strive to protect the proprietary technology that we believe is important to our business, including seeking and maintaining patents intended to cover our products and compositions, their methods of use and processes for their manufacture, as well as our diagnostic and drug discovery technologies and any other inventions that are commercially important to the development of our business. We also rely on trade secrets to protect aspects of our business that are not amenable to, or that we do not consider appropriate for, patent protection, such as our proprietary network modeling programs and large scale protein and liposome production methods. Our success will significantly depend on our ability to obtain and maintain patent and other proprietary protection for commercially important technology, inventions and know-how related to our business, defend and enforce our patents, preserve the confidentiality of our trade secrets and operate without infringing the valid and enforceable patents and proprietary rights of third parties. We also rely on know-how, continuing technological innovation and in-licensing opportunities to develop and maintain our proprietary position. We seek to obtain domestic and international patent protection, and endeavor to promptly file patent applications for new commercially valuable inventions once the experimental data necessary for an application become available. We generally file international applications under the Patent Cooperation Treaty, or PCT, within one year after the filing of a U.S. provisional application. As of January 31, 2014, we owned 14 issued U.S. patents and four allowed U.S. patent applications, four issued patents in Europe, and 37 issued patents and seven allowed patent applications in other jurisdictions, as well as 32 pending U.S. provisional and non-provisional patent applications and 216 pending foreign patent applications in Europe and other jurisdictions. As of January 31, 2014, we also co-owned one U.S. and 49 pending foreign patent applications with Sanofi, as well as one U.S. non-provisional and seven foreign patent applications with Silver Creek. As of January 31, 2014, we had licenses to 41 U.S. patents and five pending U.S. patent applications, as well as numerous foreign counterparts to many of these patents and patent applications. Of these licensed patents and patent applications, we license the majority on an exclusive basis, with the rest licensed non-exclusively to us. The exclusive licenses are, in some cases, limited to certain technical fields, for example for medical and diagnostic purposes. The patent portfolios for our six most advanced product candidates as of January 31, 2014 are summarized below. MM-398 Our MM-398 patent portfolio is wholly owned by us and includes two issued U.S. patents, two allowed U.S. patent applications, and one other pending U.S. patent application covering the composition of and methods of making and using MM-398, all of which expire or, if issued, will expire in 2025, except for one U.S. patent and one allowed application that expire in 2028. Related international patent applications have issued or been allowed in seven countries and are pending in Europe and a number of other countries. These international patents and patent applications, if issued, will expire in 2025. Our MM-398 portfolio further includes one pending PCT dosage and administration patent application that is eligible for worldwide filings that, if issued, will expire in 2033. MM-121 Our MM-121 patent portfolio is wholly owned by us, with the exception of: 25 • one method of use application that has been filed in the United States and 28 foreign jurisdictions worldwide, which is co-owned with Sanofi and, if issued, will expire in 2032; Table of Contents Our wholly owned MM-121 portfolio includes a U.S. composition of matter patent, six issued foreign patents, and one allowed and one other pending U.S. patent application. In foreign jurisdictions, one related patent is issued in Europe and five other jurisdictions, and two applications are pending in Europe and 16 other jurisdictions; these expire or, if issued, will expire in 2028. Pending method of use and diagnostic patents in this portfolio also include: MM-111 Our MM-111 patent portfolio includes five wholly owned, pending U.S. patent applications covering the composition of, and method of use and diagnostics for, MM-111 that, if issued, will expire between 2029 and 2032. This portfolio also includes one PCT application that remains eligible for worldwide filings that, if issued, will expire in 2033. This portfolio also includes 50 related patent applications pending in Europe and a number of other jurisdictions that, if issued, will expire between 2028 and 2032. In addition, this portfolio includes the following patents licensed from the Regents: MM-302 Our MM-302 patent portfolio includes one wholly owned pending U.S. non-provisional application and nine foreign dosage and administration patent applications that, if issued, will expire in 2031; two PCT applications (one combination therapy and one diagnostic) that remain eligible for worldwide filings that, if issued, will expire in 2033; and two U.S. provisional applications (one combination therapy and one diagnostic) that may be used to establish non-provisional applications that, if issued, will expire in 2034. This portfolio also includes the following exclusively licensed issued U.S. patents: 26 • four method of use applications that are co-owned with Sanofi that have been filed in 11 foreign jurisdictions; and • one family of U.S. patents broadly covering anti-ErbB3 antibodies, the last of which will expire in 2016, that are licensed non-exclusively from the U.S. Public Health Service, a division of the U.S. Department of Health and Human Services. • one U.S. provisional patent application that will be used as the basis of a PCT application, for which international patents, if issued, would expire in 2034; • one PCT application that is eligible for worldwide filings that, if issued, will expire in 2033; • one U.S. and 16 foreign patent applications that, if issued, will expire in 2032; • one U.S. and 10 foreign patent applications that, if issued, will expire in 2032; • one U.S. and 17 foreign patent applications that, if issued, will expire in 2031; and • one issued U.S. patent and two pending U.S. patent applications, related issued foreign patents in Europe and four other jurisdictions, and related pending foreign applications in 12 other jurisdictions that, if issued, will expire in 2029. • an exclusively licensed family of patents and patent applications that expire or, if issued, will expire in 2023, including three issued U.S. composition of matter patents, a pending U.S. and European divisional application, an issued European composition of matter patent that has been validated in 15 European Patent Organization countries, two issued foreign patents and related applications pending in a number of other countries; and • a non-exclusively licensed family of patents and a patent application that expire or, if issued, will expire in 2016, including granted U.S. and European composition of matter patents and an application pending in Canada. • six composition of matter patents that expire between 2014 and 2019; and • one method of use patent that expires in 2019. Table of Contents In addition, this portfolio includes the following exclusively licensed European patents: Our licensed MM-302 patent portfolio further includes several foreign composition of matter patents and patent applications that expire or, if issued, will expire between 2014 and 2017. All of the licensed patents and patent applications related to MM-302 are licensed from the Regents. MM-151 Our MM-151 patent portfolio is wholly owned and includes one U.S. and 10 foreign patent applications covering compositions, methods of use and diagnostics that is eligible for worldwide filings that, if issued, will expire in 2032. This portfolio also consists of one pending U.S. composition of matter and method of use patent application and 13 related pending foreign applications that, if issued, will expire in 2031, and one allowed U.S. and a related pending European diagnostic patent application that, if issued, will expire in 2032. MM-141 Our MM-141 patent portfolio is wholly owned and consists of three pending patent applications. One of these pending patent applications covers the principle and methods of co-targeting IGF-1R and ErbB3 in human disease and is pending in the US, Europe, Canada, Australia and Japan, and if issued will expire no sooner than 2030. A second patent family covering compositions, methods of use, and disease indications has an issued U.S. patent, a pending U.S. patent application, and is pending in Europe and 7 other foreign jurisdictions. These patents and patent applications expire, or will expire, no sooner than 2032. A third pending application is an international application that remains eligible for worldwide filing in all PCT countries and covers compositions, methods of use, disease indications and drug combination regimens related to MM-141, and if issued will expire no sooner than 2033. The term of individual patents depends upon the legal term for patents in the countries in which they are obtained. In most countries, including the United States, the patent term is 20 years from the earliest filing date of a non-provisional patent application. In the United States, a patent’s term may be lengthened by patent term adjustment, which compensates a patentee for administrative delays by the U.S. Patent and Trademark Office in examining and granting a patent, or may be shortened if a patent is terminally disclaimed over an earlier filed patent. The term of a patent that covers a drug, biological product or medical device approved pursuant to a pre-market approval, or PMA, may also be eligible for patent term extension when FDA approval is granted, provided statutory and regulatory requirements are met. The length of the patent term extension is related to the length of time the drug is under regulatory review while the patent is in force. The Drug Price Competition and Patent Term Restoration Act of 1984, or the Hatch-Waxman Act, permits a patent term extension of up to five years beyond the expiration date set for the patent. Patent extension cannot extend the remaining term of a patent beyond a total of 14 years from the date of product approval, only one patent applicable to each regulatory review period may be granted an extension and only those claims reading on the approved drug are extended. Similar provisions are available in Europe and other foreign jurisdictions to extend the term of a patent that covers an approved drug. In the future, if and when our product candidates receive approval by the FDA or foreign regulatory authorities, we expect to apply for patent term extensions on issued patents covering those products, depending upon the length of the clinical trials for each drug and other factors, including those involved in the filing of a biologics license application, or BLA, or a new drug application, or NDA. We are currently engaged in two ongoing opposition proceedings to European patents in the European Patent Office to narrow or invalidate the claims of patents owned by third parties. For more information, see 27 • a composition of matter patent that expires in 2019; • a composition of matter and method patent that expires in 2019; and • a composition of matter patent that expires in 2014. Table of Contents Item 3. Legal Proceedings in this Annual Report on Form 10-K. We have obtained favorable interim decisions in both oppositions, which are now under appeal. The ultimate outcome of these oppositions remains uncertain. We are also aware of issued or pending counterparts to some of these European patents in the United States that may be relevant to our development and commercialization of MM-121. In addition, we are aware of issued U.S. patents held by Genentech, Inc., or Genentech, broadly covering methods of producing certain types of recombinant antibodies and related compositions for antibody production that may be relevant to our development and commercialization of MM-121, MM-151 and MM-141. We rely, in some circumstances, on trade secrets to protect our technology. However, trade secrets can be difficult to protect. We seek to protect our proprietary technology and processes, in part, by confidentiality agreements with our employees, consultants, scientific advisors and contractors. We also seek to preserve the integrity and confidentiality of our data and trade secrets by maintaining physical security of our premises and physical and electronic security of our information technology systems. While we have confidence in these individuals, organizations and systems, agreements or security measures may be breached, and we may not have adequate remedies for any breach. In addition, our trade secrets may otherwise become known or be independently discovered by competitors. To the extent that our consultants, contractors or collaborators use intellectual property owned by others in their work for us, disputes may arise as to the rights in related or resulting know-how and inventions. Silver Creek In August 2010, we acquired 12,000,000 shares of Series A preferred stock of Silver Creek, a newly formed company, in exchange for our grant to Silver Creek of technology licenses. We granted to Silver Creek a royalty free license under certain antibody growth factor patent rights to develop and commercialize products covered by the licensed patent rights. This license is exclusive to Silver Creek for therapeutic or diagnostic use in humans for the promotion of organ regeneration and co-exclusive with us for all other uses. We also granted to Silver Creek royalty free, non-exclusive licenses under certain patent rights and know-how to use certain of our technologies for research and development purposes. Either party may terminate the agreement in the event of an uncured material breach by the other party. In August and December 2010, Silver Creek issued and sold an aggregate of 4,189,904 additional shares of its Series A preferred stock at a price per share of $1.00 to other investors for an aggregate purchase price of $4,189,904. In addition, on December 21, 2012, Silver Creek entered into a Note Purchase Agreement pursuant to which it issued convertible notes to various lenders, which did not include us, in aggregate principal amounts of $1.6 million in December 2012, $0.3 million in February 2013 and $0.6 million in December 2013. The convertible notes bore interest at 6%. The notes matured and converted, along with accrued interest of $0.1 million, into 2,603,281 shares of Silver Creek Series A preferred stock on December 31, 2013. As of January 31, 2014, we owned approximately 64% of the outstanding capital stock of Silver Creek, making Silver Creek a majority owned subsidiary of ours. Silver Creek is applying our Network Biology approach to the discovery and development of innovative therapeutics in the field of regenerative medicine. In the future, we may consider forming additional businesses or business units to apply our Network Biology approach to multiple additional disease areas outside the oncology field. We expect to do so in some cases, as with Silver Creek, through the establishment of separately funded companies. Government Regulation Government authorities in the United States, at the federal, state and local level, and in other countries extensively regulate, among other things, the research, development, testing, manufacture, including any manufacturing changes, packaging, storage, recordkeeping, labeling, advertising, promotion, distribution, marketing, post-approval monitoring and reporting, import and export of pharmaceutical products, biological products and medical devices, such as those we are developing. 28 Table of Contents United States drug and biological product approval process In the United States, the FDA regulates drugs and biological products under the Federal Food, Drug, and Cosmetic Act, or FDCA, the Public Health Service Act, or PHSA, and implementing regulations. The process of obtaining regulatory approvals and the subsequent compliance with appropriate federal, state, local and foreign statutes and regulations requires the expenditure of substantial time and financial resources. Failure to comply with the applicable United States requirements at any time during the product development process, approval process or after approval may subject an applicant to a variety of administrative or judicial sanctions, such as the FDA’s refusal to approve pending applications, withdrawal of an approval, imposition of a clinical hold, issuance of untitled or warning letters, product recalls, product seizures, total or partial suspension of production or distribution injunctions, fines, refusals of government contracts, restitution, disgorgement of profits, civil penalties and criminal prosecution. The process required by the FDA before a drug or biological product may be marketed in the United States generally involves the following: We expect that all of our clinical product candidates, other than MM-398, will be subject to review as biological products under BLA standards. We expect that MM-398 will be subject to review as a drug under NDA standards. MM-302 contains both drug and biological components. We believe that this combination product will be subject to review as a biological product, pursuant to a BLA. However, it is possible that the FDA could consider MM-302 subject to review pursuant to an NDA. Preclinical studies Preclinical studies include laboratory evaluation of product chemistry and formulation, as well as in vitro and animal studies to assess the potential for adverse events and in some cases to establish a rationale for therapeutic use. The conduct of preclinical studies is subject to federal regulations and requirements, including GLP regulations. An IND sponsor must submit the results of the preclinical tests, together with manufacturing information, analytical data, any available clinical data or literature and a proposed protocol for clinical studies, among other things, to the FDA as part of an IND. Some long-term preclinical testing, such as animal tests of reproductive adverse events and carcinogenicity, may continue after the IND is submitted. An IND automatically becomes effective 30 days after receipt by the FDA, unless before that time the FDA raises concerns or questions related to one or more proposed clinical trials and places the trial on clinical hold. In such a case, the IND sponsor and the FDA must resolve any outstanding concerns before the clinical trial can begin. As a result, submission of an IND may not result in the FDA allowing clinical trials to commence. 29 • completion of preclinical laboratory tests, animal studies and formulation studies in compliance with the FDA’s good laboratory practice, or GLP, regulations; • submission to the FDA of an IND, which must become effective before human clinical trials may begin; • approval by an independent institutional review board, or IRB, at each clinical site before each trial may be initiated; • performance of adequate and well-controlled human clinical trials in accordance with good clinical practices, or GCP, to establish the safety and efficacy of the proposed drug or biological product for each indication; • submission to the FDA of an NDA or BLA, as applicable; • satisfactory completion of an FDA advisory committee review, if applicable; • satisfactory completion of an FDA inspection of the manufacturing facility or facilities at which the product is produced to assess compliance with cGMP requirements and to assure that the facilities, methods and controls are adequate to preserve the drug’s identity, strength, quality and purity; and • FDA review and approval of the NDA or BLA. Table of Contents Clinical trials Clinical trials involve the administration of the investigational new drug to human subjects—healthy volunteers or patients—under the supervision of qualified investigators in accordance with GCP requirements, which include, among other things, the requirement that all research subjects provide their informed consent in writing before their participation in any clinical trial. Clinical trials are conducted under written study protocols detailing, among other things, the objectives of the study, the parameters to be used in monitoring safety and the effectiveness criteria to be evaluated. A protocol for each clinical trial and any subsequent protocol amendments must be submitted to the FDA as part of the IND. In addition, an IRB at each institution participating in the clinical trial must review and approve the plan for any clinical trial before it commences at that institution, and the IRB must conduct continuing review and reapprove the study at least annually. The IRB must review and approve, among other things, the study protocol and informed consent information to be provided to study subjects. An IRB may also require the clinical trial at the site to be halted, either temporarily or permanently, for failure to comply with the IRB’s requirements, or may impose other conditions. An IRB must operate in compliance with FDA regulations. Information about certain clinical trials must be submitted within specific timeframes to the National Institutes of Health for public dissemination on their ClinicalTrials.gov website. Human clinical trials are typically conducted in three sequential phases, which may overlap or be combined: Progress reports detailing the results of the clinical trials must be submitted at least annually to the FDA and more frequently if serious adverse events occur. Phase 1, Phase 2 and Phase 3 clinical trials may not be completed successfully within any specified period, or at all. Furthermore, the FDA or the sponsor may suspend or terminate a clinical trial at any time on various grounds, including a finding that the research subjects are being exposed to an unacceptable health risk. Similarly, an IRB can suspend or terminate approval of a clinical trial at its institution if the clinical trial is not being conducted in accordance with the IRB’s requirements or if the drug has been associated with unexpected serious harm to patients. Disclosure of clinical trial information Sponsors of clinical trials of FDA regulated products, including drugs, are required to register and disclose certain clinical trial information. Information related to the product, patient population, phase of investigation, study sites and investigators, and other aspects of the clinical trial is then made public on the ClinicalTrials.gov website as part of the registration. Sponsors are also obligated to disclose the results of their clinical trials after completion. Disclosure of the results of these trials can be delayed until the new product or new indication being studied has been approved. Competitors may use this publicly available information to gain knowledge regarding the progress of development programs. Marketing approval Assuming successful completion of the required clinical testing, the results of the preclinical and clinical studies, together with detailed information relating to the product’s pharmacology chemistry, manufacture, 30 • Phase 1: The drug or biological product is initially introduced into healthy human subjects or patients with the target disease or condition and tested for safety, side effects associated with increasing doses, pharmacological action, absorption, metabolism, distribution, excretion and, if possible, to gain an early indication of its effectiveness. • Phase 2: The drug or biological product is administered to a limited patient population to identify common adverse effects and safety risks, to preliminarily evaluate the efficacy of the product for specific targeted diseases and to determine dosage tolerance and optimal dosage. • Phase 3: The drug or biological product is administered to an expanded patient population in adequate and well-controlled clinical trials, typically at geographically dispersed clinical trial sites, to generate sufficient data to statistically confirm the efficacy and safety of the product for approval, to permit the FDA to evaluate the overall risk-benefit profile of the product and to provide adequate information for the labeling of the product. Table of Contents controls and proposed labeling, among other things, are submitted to the FDA as part of an NDA or BLA requesting approval to market the product for one or more indications. FDA approval of the NDA or BLA is required before marketing of the product may begin in the United States. Under federal law, the submission of most NDAs and BLAs is additionally subject to a substantial application user fee, currently exceeding $2,169,000, and the sponsor of an approved NDA or BLA is also subject to annual product and establishment user fees, currently exceeding $104,000 per product and $554,000 per establishment. These fees are typically increased annually. The FDA conducts a preliminary review of all NDAs and BLAs within the first 60 days after receipt before accepting them for filing based on the agency’s threshold determination that they are sufficiently complete to permit substantive review. The FDA may request additional information rather than accept an NDA or BLA for filing. In this event, the application must be resubmitted with the additional information. The resubmitted application is also subject to review before the FDA accepts it for filing. Once the submission is accepted for filing, the FDA begins an in-depth substantive review. The FDA has agreed to specified performance goals in the review of NDAs and BLAs. Most such applications for non-priority products are reviewed within ten to twelve months after filing, and most applications for priority review products, that is, drugs and biologics that the FDA determines represent a significant improvement over existing therapy, are reviewed in six to eight months after filing. The review process may be extended by the FDA for three additional months to consider certain late-submitted information or clarification regarding information already provided in the submission. The FDA may also refer applications for novel drugs or biological products or products that present difficult questions of safety or efficacy to an advisory committee, typically a panel that includes clinicians and other experts, for review, evaluation and a recommendation as to whether the application should be approved. The FDA is not bound by the recommendations of an advisory committee, but it considers such recommendations carefully when making decisions. Before approving an NDA or BLA, the FDA typically will inspect the facility or facilities where the product is manufactured. The FDA will not approve an application unless it determines that the manufacturing processes and facilities are in compliance with cGMP requirements and adequate to assure consistent production of the product within required specifications. In addition, before approving an NDA or BLA, the FDA will typically inspect one or more clinical sites to assure compliance with GCP and integrity of the clinical data submitted. The testing and approval process requires substantial time, effort and financial resources, and each may take many years to complete. Data obtained from clinical activities are not always conclusive and may be susceptible to varying interpretations, which could delay, limit or prevent regulatory approval. The FDA may not grant approval on a timely basis, or at all. We may encounter difficulties or unanticipated costs in our efforts to develop our product candidates and secure necessary governmental approvals, which could delay or preclude us from marketing our products. After the FDA’s evaluation of the NDA or BLA and inspection of the manufacturing facilities, the FDA may issue an approval letter or a complete response letter. An approval letter authorizes commercial marketing of the drug or biological product with specific prescribing information for specific indications. A complete response letter generally outlines the deficiencies in the submission and may require substantial additional testing or information in order for the FDA to reconsider the application. If and when those deficiencies have been addressed to the FDA’s satisfaction in a resubmission of the NDA, the FDA will issue an approval letter. The FDA has committed to reviewing such resubmissions in two or six months depending on the type of information included. Even with submission of this additional information, the FDA ultimately may decide that the application does not satisfy the regulatory criteria for approval. Even if the FDA approves a product, it may limit the approved indications for use for the product, require that contraindications, warnings or precautions be included in the product labeling, require that post-approval studies, including Phase 4 clinical trials, be conducted to further assess a drug’s safety after approval, require testing and surveillance programs to monitor the product after commercialization, or impose other conditions, 31 Table of Contents including distribution restrictions or other risk management mechanisms, which can materially affect the potential market and profitability of the product. The FDA may prevent or limit further marketing of a product based on the results of post-market studies or surveillance programs. After approval, some types of changes to the approved product, such as changes in indications, manufacturing changes and labeling, are subject to further testing requirements and FDA review and approval. Fast track designation The FDA is required to facilitate the development and expedite the review of drugs and biologics that are intended for the treatment of a serious or life-threatening disease or condition for which there is no effective treatment and which demonstrate the potential to address unmet medical needs for the condition. Under the fast track program, the sponsor of a new drug or biologic candidate may request the FDA to designate the product for a specific indication as a fast track product concurrent with or after the filing of the IND for the product candidate. The FDA must determine if the product candidate qualifies for fast track designation within 60 days after receipt of the sponsor’s request. In addition to other benefits, such as the ability to use surrogate endpoints and have greater interactions with the FDA, the FDA may initiate review of sections of a fast track product’s NDA or BLA before the application is complete. This rolling review is available if the applicant provides and the FDA approves a schedule for the submission of the remaining information and the applicant pays applicable user fees. However, the FDA’s time period goal for reviewing a fast track application does not begin until the last section of the NDA or BLA is submitted. In addition, the fast track designation may be withdrawn by the FDA if the FDA believes that the designation is no longer supported by data emerging in the clinical trial process. Priority review Under FDA policies, a product candidate may be eligible for priority review, or review within a six to eight month time frame from the time a complete application is accepted for filing. Products regulated by the FDA’s Center for Drug Evaluation and Research, or CDER, are eligible for priority review if they provide a significant improvement compared to marketed products in the treatment, diagnosis or prevention of a disease. Products regulated by the FDA’s Center for Biologics Evaluation and Research are eligible for priority review if they provide a significant improvement in the safety or effectiveness of the treatment, diagnosis or prevention of a serious or life-threatening disease. A fast track designated product candidate would ordinarily meet the FDA’s criteria for priority review. Accelerated approval Under the FDA’s accelerated approval regulations, the FDA may approve a drug or biologic for a serious or life-threatening illness that provides meaningful therapeutic benefit to patients over existing treatments based on a surrogate endpoint that is reasonably likely to predict clinical benefit. In clinical trials, a surrogate endpoint is a measurement of laboratory or clinical signs of a disease or condition that substitutes for a direct measurement of how a patient feels, functions or survives. Surrogate endpoints can often be measured more easily or more rapidly than clinical endpoints. A product candidate approved on this basis is subject to rigorous post-marketing compliance requirements, including the completion of Phase 4 or post-approval clinical trials to confirm the effect on the clinical endpoint. Failure to conduct required post-approval studies, or confirm a clinical benefit during post-marketing studies, would allow the FDA to withdraw the drug from the market on an expedited basis. All promotional materials for drug candidates approved under accelerated regulations are subject to prior review by the FDA. Breakthrough therapy designation The FDA is also required to expedite the development and review of the application for approval of drugs that are intended to treat a serious or life-threatening disease or condition where preliminary clinical evidence 32 Table of Contents indicates that the drug may demonstrate substantial improvement over existing therapies on one or more clinically significant endpoints. Under the breakthrough therapy program, the sponsor of a new drug candidate may request that the FDA designate the drug candidate for a specific indication as a breakthrough therapy concurrent with, or after, the filing of the IND for the drug candidate. The FDA must determine if the drug candidate qualifies for breakthrough therapy designation within 60 days of receipt of the sponsor’s request. Orphan drugs Under the Orphan Drug Act, the FDA may grant orphan drug designation to drugs or biologics intended to treat a rare disease or condition, which is generally defined as a disease or condition that affects fewer than 200,000 individuals in the United States. Orphan drug designation must be requested before submitting an NDA or BLA. After the FDA grants orphan drug designation, the generic identity of the drug or biologic and its potential orphan use are disclosed publicly by the FDA. Orphan drug designation does not convey any advantage in, or shorten the duration of, the regulatory review and approval process. The first NDA or BLA applicant to receive FDA approval for a particular active ingredient to treat a particular disease with FDA orphan drug designation is entitled to a seven-year exclusive marketing period in the United States for that product, for that indication. During the seven-year exclusivity period, the FDA may not approve any other applications to market the same drug or biologic for the same orphan indication, except in limited circumstances, such as a showing of clinical superiority to the product with orphan drug exclusivity in that it is shown to be safer, more effective or makes a major contribution to patient care. Orphan drug exclusivity does not prevent the FDA from approving a different drug or biologic for the same disease or condition, or the same drug or biologic for a different disease or condition. Among the other benefits of orphan drug designation are tax credits for certain research and a waiver of the NDA or BLA application user fee. Pediatric information Under the Pediatric Research Equity Act of 2003, an NDA, BLA or supplement to an NDA or BLA must contain data that are adequate to assess the safety and effectiveness of the drug or biological product for the claimed indications in all relevant pediatric subpopulations, and to support dosing and administration for each pediatric subpopulation for which the product is safe and effective. The FDA may, on its own initiative or at the request of the applicant, grant deferrals for submission of some or all pediatric data until after approval of the product for use in adults, or full or partial waivers from the pediatric data requirements. Unless otherwise required by regulation, the pediatric data requirements do not apply to products with orphan drug designation. The Hatch-Waxman Act Abbreviated new drug applications In seeking approval for a drug through an NDA, applicants are required to list with the FDA each patent whose claims cover the applicant’s product. Upon approval of a drug, each of the patents listed in the application for the drug is then published in the FDA’s Approved Drug Products with Therapeutic Equivalence Evaluations, commonly known as the Orange Book. Drugs listed in the Orange Book can, in turn, be cited by potential competitors in support of approval of an abbreviated new drug application, or ANDA. Generally, an ANDA provides for marketing of a drug product that has the same active ingredients in the same strengths and dosage form as the listed drug and has been shown through bioequivalence testing to be therapeutically equivalent to the listed drug. Other than the requirement for bioequivalence testing, ANDA applicants are not required to conduct or submit results of preclinical or clinical tests to prove the safety or effectiveness of their drug product, other than the requirement for bioequivalence testing. Drugs approved in this way are commonly referred to as “generic equivalents” to the listed drug, and can often be substituted by pharmacists under prescriptions written for the original listed drug. 33 Table of Contents The ANDA applicant is required to certify to the FDA concerning any patents listed for the approved product in the FDA’s Orange Book. Specifically, the applicant must certify that: A certification that the new product will not infringe the already approved product’s listed patents or that such patents are invalid is called a Paragraph IV certification. If the ANDA applicant does not challenge the listed patents, the ANDA will not be approved until all the listed patents claiming the referenced product have expired. If the ANDA applicant has provided a Paragraph IV certification to the FDA, the applicant must also send notice of the Paragraph IV certification to the NDA and patent holders once the ANDA has been accepted for filing by the FDA. The NDA and patent holders may then initiate a patent infringement lawsuit in response to the notice of the Paragraph IV certification. The filing of a patent infringement lawsuit within 45 days after the receipt of a Paragraph IV certification automatically prevents the FDA from approving the ANDA until the earlier of 30 months, expiration of the patent, settlement of the lawsuit or a decision in the infringement case that is favorable to the ANDA applicant. The ANDA also will not be approved until any applicable non-patent exclusivity, such as exclusivity for obtaining approval of a new chemical entity, listed in the Orange Book for the referenced product has expired. Federal law provides a period of five years following approval of a drug containing no previously approved active ingredients during which ANDAs for generic versions of those drugs cannot be received by the FDA unless the submission contains a Paragraph IV challenge to a listed patent, in which case the submission may be made four years following the original product approval. If there is no listed patent in the Orange Book, there may not be a Paragraph IV certification, and thus, no ANDA may be filed before the expiration of the exclusivity period. Federal law provides for a period of three years of exclusivity following approval of a listed drug that contains previously approved active ingredients but is approved in a new dosage form, route of administration or combination, or for a new use, the approval of which was required to be supported by new clinical trials conducted by or for the sponsor, during which the FDA cannot grant effective approval of an ANDA based on that listed drug. Under the Best Pharmaceuticals for Children Act, federal law also provides that periods of patent and non-patent marketing exclusivity listed in the Orange Book for a drug may be extended by six months if the NDA sponsor agrees to conduct and report on pediatric studies identified by the FDA in a written request within the statutory timeframes. Applications under the BPCA are treated as priority applications, with all the benefits that designation confers. Patent term extension After NDA approval, owners of relevant drug patents may apply for up to a five year patent term extension. The allowable patent term extension is calculated as half of the drug’s testing phase, based on the time between IND application and NDA submission, and all of the review phase, based on the time between NDA submission and approval up to a maximum of five years. The time can be shortened if the FDA determines that the applicant did not pursue approval with due diligence. The total patent term after the extension may not exceed 14 years. For patents that might expire during the application phase, the patent owner may request an interim patent term extension. An interim patent term extension increases the patent term by one year and may be renewed up to four times. For each interim patent term extension granted, the post-approval patent term extension is reduced by one year. The director of the United States Patent and Trademark Office must determine that approval of the drug covered by the patent for which a patent term extension is being sought is likely. Interim patent term extensions are not available for a drug for which an NDA has not been submitted. 34 • the required patent information has not been filed; • the listed patent has expired; • the listed patent has not expired, but will expire on a particular date and approval is sought after patent expiration; or • the listed patent is invalid or will not be infringed by the new product. Table of Contents Section 505(b)(2) new drug applications Most drug products obtain FDA marketing approval pursuant to an NDA or an ANDA. A third alternative is a special type of NDA, commonly referred to as a Section 505(b)(2) NDA, which enables the applicant to rely, in part, on the FDA’s previous approval of a similar product, or published literature, in support of its application. Section 505(b)(2) NDAs often provide an alternate path to FDA approval for new or improved formulations or new uses of previously approved products. Section 505(b)(2) permits the filing of an NDA where at least some of the information required for approval comes from studies not conducted by or for the applicant and for which the applicant has not obtained a right of reference. If the Section 505(b)(2) applicant can establish that reliance on the FDA’s previous approval is scientifically appropriate, it may eliminate the need to conduct certain preclinical or clinical studies of the new product. The FDA may also require companies to perform additional studies or measurements to support the change from the approved product. The FDA may then approve the new product candidate for all or some of the label indications for which the referenced product has been approved, as well as for any new indication sought by the Section 505(b)(2) applicant. To the extent that the Section 505(b)(2) applicant is relying on studies conducted for an already approved product, the applicant is required to certify to the FDA concerning any patents listed for the approved product in the Orange Book to the same extent that an ANDA applicant would. As a result, approval of a Section 505(b)(2) NDA can be stalled until all the listed patents claiming the referenced product have expired, until any non-patent exclusivity, such as exclusivity for obtaining approval of a new chemical entity, listed in the Orange Book for the referenced product has expired, and, in the case of a Paragraph IV certification and subsequent patent infringement suit, until the earlier of 30 months, settlement of the lawsuit or a decision in the infringement case that is favorable to the Section 505(b)(2) applicant. Combination products A combination product is a product comprised of (i) two or more regulated components (i.e., drug/device, biologic/device, drug/biologic or drug/device/biologic) that are physically, chemically, or otherwise combined or mixed and produced as a single entity; (ii) two or more separate products packaged together in a single package or as a unit and comprised of drug and device products, device and biological products, or biological and drug products; (iii) a drug, device, or biological product packaged separately that according to its investigational plan or proposed labeling is intended for use only with an approved individually specified drug, device, or biological product where both are required to achieve the intended use, indication, or effect and where, upon approval of the proposed product, the labeling of the approved product would need to be changed (e.g., to reflect a change in intended use, dosage form, strength, route of administration, or significant change in dose); or (iv) any investigational drug, device, or biological product packaged separately that according to its proposed labeling is for use only with another individually specified investigational drug, device, or biological product where both are required to achieve the intended use, indication, or effect. The FDA is divided into various branches, or Centers, by product type. Different Centers typically review drug, biologic or device applications. In order to review an application for a combination product, the FDA must decide which Center should be responsible for the review. FDA regulations require that the FDA determine the combination product’s primary mode of action, or PMOA, which is the single mode of a combination product that provides the most important therapeutic action of the combination product. The Center that regulates that portion of the product that generates the PMOA or that has expertise in the relevant therapeutic area becomes the lead evaluator. If there are two independent modes of action, neither of which is subordinate to the other, the FDA makes a determination as to which Center to assign the product based on consistency with other combination products raising similar types of safety and effectiveness questions or to the Center with the most expertise in evaluating the most significant safety and effectiveness questions raised by the combination product. When evaluating an application, a lead Center may consult other Centers but still retain complete reviewing authority, or it may collaborate with another Center, by which the lead Center assigns review of a specific section of the application to another Center, delegating its review authority for that section. Typically, the FDA requires 35 Table of Contents a single marketing application submitted to the Center selected to be the lead evaluator, although the agency has the discretion to require separate applications to more than one Center. One reason to submit multiple evaluations is if the applicant wishes to receive some benefit that accrues only from approval under a particular type of application, like new drug product exclusivity. If multiple applications are submitted, each application may be evaluated by a different lead Center. Biosimilars law The Biologics Price Competition and Innovation Act of 2009, or BPCIA, amended the PHSA to create a new licensure framework for biosimilar products, which could ultimately subject our biological products to competition. Under the BPCIA, a manufacturer may submit an application for licensure of a biologic product that is “biosimilar to” or “interchangeable with” a referenced, branded biologic product. Previously, there had been no licensure pathway for such biosimilar or interchangeable products. For purposes of the BPCIA, a reference product is defined as the single biological product licensed under a full BLA against which a biological product is evaluated in an application submitted under a follow-on BLA. Biosimilarity sufficient to reference a prior FDA-approved product requires that there be no differences in conditions of use, route of administration, dosage form, and strength, and no clinically meaningful differences between the biological product and the reference product in terms of safety, purity, and potency. Biosimilarity must be shown through analytical studies, animal studies, and at least one clinical study, absent a waiver by the Secretary of the U.S. Department of Health & Human Services. A biosimilar product may be deemed interchangeable with a prior approved product if it meets the higher hurdle of demonstrating that it can be expected to produce the same clinical results as the reference product and, for products administered multiple times, the biologic and the reference biologic may be switched after one has been previously administered without increasing safety risks or risks of diminished efficacy relative to exclusive use of the reference biologic. No biosimilar or interchangeable products have been approved under the BPCIA to date. Complexities associated with the larger, and often more complex, structures of biological products, as well as the process by which such products are manufactured, pose significant hurdles to implementation which are still being evaluated by the FDA. The BPCIA also created a 12-year period of reference product exclusivity, which can be extended to 12 1 ⁄ 2 years with pediatric exclusivity. The 12-year exclusivity period begins on the date of first licensure of the reference product under the PHSA and during which the licensure of a follow-on application for a biosimilar or interchangeable product cannot be made effective. During the first four years (or four and one-half years with pediatric exclusivity) of the 12-year period, an application for a biosimilar or interchangeable version of the reference product cannot be submitted to the FDA. The BPCIA includes limits on obtaining 12-year reference product exclusivity for certain changes or modifications to the reference product. A separate 12-year reference product exclusivity period does not apply to: The FDA has not yet issued proposed regulations setting forth its interpretation of the BPCIA’s exclusivity provisions and it is unclear when the FDA will do so. In addition to creating a 12-year period of reference product exclusivity, the BPCIA clarifies the interaction of that exclusivity with orphan drug exclusivity, such that the licensure of a biosimilar or interchangeable version of a reference product that was designated and approved as an orphan drug may only occur after the later of the 36 • a BLA supplement for the product that is the reference product; • a subsequent BLA filed by the same reference product sponsor or manufacturer (or a licensor, predecessor in interest, or other related entity) for a change (not including a modification to the structure of the biological product) that results in a new indication, route of administration, dosing schedule, dosage form, delivery system, delivery device or strength; or • a modification to the structure of the biological product that does not result in a change in safety, purity or potency. Table of Contents expiration of any applicable seven-year orphan drug exclusivity or the 12-year reference product exclusivity (or seven and one-half years and 12 1 ⁄ 2 years with pediatric exclusivity). Like pediatric exclusivity applicable to drug products approved under the FDCA, pediatric exclusivity applicable to biological reference products is subject to an exception. Pediatric exclusivity will not apply to either the 12-year reference product or the seven-year orphan drug exclusivity periods if the FDA determines later than nine months prior to the expiration of such period that the study reports a BLA sponsor submitted in response to a written request for pediatric studies met the terms of that request. Our investigational biological products, if approved, could be considered reference products entitled to 12-year exclusivity. Even if our products are considered to be reference products eligible for exclusivity, another company could market a competing version of any of our biological products if the FDA approves a full BLA for such product containing the sponsor’s own preclinical data and data from adequate and well-controlled clinical trials to demonstrate the safety, purity and potency of their product. The BPCIA also sets forth a complex mechanism for resolving patent disputes that involves a step-wise exchange of information prior to the initiation of a patent infringement lawsuit against a biosimilar or interchangeable product sponsor. Unlike the Hatch-Waxman Act, the BPCIA provides no automatic stay on approval of a biosimilar or interchangeable product application. Overview of FDA regulation of companion diagnostics We are developing in vitro and in vivo companion diagnostics for use in selecting the patients that we believe will respond to our cancer therapeutics. FDA officials have indicated that the agency intends to publish guidance that, when finalized, would address issues critical to developing in vitro companion diagnostics, such as biomarker qualification, establishing clinical validity, the use of retrospective data, the appropriate patient population and when the FDA will require that the device and the drug be approved simultaneously. The draft guidance issued in July 2011 states that if safe and effective use of a therapeutic depends on an in vitro diagnostic, then the FDA generally will require approval or clearance of the diagnostic at the same time that the FDA approves the therapeutic. Although still in draft, this guidance represents the FDA’s current practice. The FDA has yet to issue final guidance, and it is unclear when it will do so, or what the scope would be. The FDA previously has required in vitro companion diagnostics intended to select the patients who will respond to the cancer treatment to obtain PMA, simultaneously with approval of the drug or licensure of the biologic. Based on the draft guidance, and the FDA’s past treatment of companion diagnostics, we believe that the FDA will require one or more of our in vitro companion diagnostics to obtain PMA for our companion diagnostics to identify patient populations suitable for our cancer therapies, such as the in vitro companion diagnostic for MM-121. The review of these in vitro companion diagnostics in conjunction with the review of our cancer treatments involves coordination of review by CDER and by the FDA’s Center for Devices and Radiological Health Office of In Vitro Diagnostics and Radiological Health. Our in vivo companion diagnostics, which are in the form of imaging agents, are regulated as drugs by CDER and, as such, are generally subject to the regulatory requirements applicable to other new drug candidates. PMA pathway A medical device, including an in vitro diagnostic, or IVD, to be commercially distributed in the United States must receive either 510(k) clearance or PMA (or be a Class I exempt device that does not require pre-market review) from the FDA prior to marketing. Devices deemed by the FDA to pose the greatest risk, such as 37 Table of Contents life-sustaining, life supporting or implantable devices, or devices deemed not substantially equivalent to a previously 510(k) cleared device or a preamendment class III device for which PMA applications have not been called, are placed in Class III requiring PMA. The PMA pathway requires proof of the safety and effectiveness of the device to the FDA’s satisfaction. The PMA pathway generally takes from one to three years or even longer from submission of the application. A PMA application for an IVD must provide extensive preclinical and clinical trial data. Preclinical data for an IVD includes many different tests, including how reproducible the results are when the same sample is tested multiple times by multiple users at multiple laboratories. The clinical data need to establish that the test is sufficiently safe, effective and reliable in the intended use population. In addition, the FDA must be convinced that a device has clinical utility, meaning that an IVD provides information that is clinically meaningful. A biomarker’s clinical significance may be obvious, or the applicant may be able to rely upon published literature or submit data to show clinical utility. A PMA application also must provide information about the device and its components regarding, among other things, device design, manufacturing and labeling. The sponsor must pay an application fee. As part of the PMA review, the FDA will typically inspect the manufacturer’s facilities for compliance with Quality System Regulation, or QSR, requirements, which impose elaborate design control, testing, control, documentation and other quality assurance procedures. Upon submission, the FDA determines if the PMA application is sufficiently complete to permit a substantive review, and, if so, the FDA accepts the application for filing. The FDA then commences an in-depth review of the PMA application. The entire process typically takes one to three years, but may take longer. The review time is often significantly extended as a result of the FDA asking for more information or clarification of information already provided. The FDA also may respond with a not approvable determination based on deficiencies in the application and require additional clinical trials that are often expensive and time-consuming and can substantially delay approval. During the review period, an FDA advisory committee, typically a panel of clinicians, likely will be convened to review the application and recommend to the FDA whether, or upon what conditions, the device should be approved. Although the FDA is not bound by the advisory panel decision, the panel’s recommendation is important to the FDA’s overall decision making process. If the FDA’s evaluation of the PMA application is favorable, the FDA typically issues an approvable letter requiring the applicant’s agreement to specific conditions, such as changes in labeling, or specific additional information, such as submission of final labeling, in order to secure final approval of the PMA. If the FDA concludes that the applicable criteria have been met, the FDA will issue a PMA for the approved indications, which can be more limited than those originally sought by the manufacturer. The PMA can include post-approval conditions that the FDA believes necessary to ensure the safety and effectiveness of the device, including, among other things, restrictions on labeling, promotion, sale and distribution. Failure to comply with the conditions of approval can result in material adverse enforcement action, including the loss or withdrawal of the approval. Even after approval of a PMA, a new PMA or PMA supplement may be required in the event of a modification to the device, its labeling or its manufacturing process. Supplements to a PMA often require the submission of the same type of information required for an original PMA, except that the supplement is generally limited to the information needed to support the proposed change from the product covered by the original PMA. Clinical trials A clinical trial is almost always required to support a PMA application. All clinical studies of investigational devices must be conducted in compliance with the FDA’s requirements. If an investigational device could pose a significant risk to patients pursuant to FDA regulations, 38 Table of Contents the FDA must approve an Investigational Device Exemption, or IDE, application prior to initiation of investigational use. IVD trials usually do not require an IDE, as the FDA does not judge them to be a significant risk because the results do not affect the patients in the study. However, for a trial where the IVD result directs the therapeutic care of patients with cancer (companion diagnostics), we believe that the FDA would consider the investigation to present significant risk and require an IDE. An IDE application must be supported by appropriate data, such as laboratory test results, showing that it is safe to test the device in humans and that the testing protocol is scientifically sound. The FDA typically grants IDE approval for a specified number of patients. A nonsignificant risk device does not require FDA approval of an IDE. Both significant risk and nonsignificant risk investigational devices require approval from IRBs at the study centers where the device will be used. During the trial, the sponsor must comply with the FDA’s IDE requirements for investigator selection, trial monitoring, reporting and record keeping. The investigators must obtain patient informed consent, rigorously follow the investigational plan and study protocol, control the disposition of investigational devices and comply with all reporting and record keeping requirements. Prior to granting PMA, the FDA typically inspects the records relating to the conduct of the study and the clinical data supporting the PMA application for compliance with applicable requirements. Although the QSR does not fully apply to investigational devices, the requirement for controls on design and development does apply. The sponsor also must manufacture the investigational device in conformity with the quality controls described in the IDE application and any conditions of IDE approval that the FDA may impose with respect to manufacturing. Post-market After a device is on the market, numerous regulatory requirements apply. These requirements include: the QSR, labeling regulations, the FDA’s general prohibition against promoting products for unapproved or “off label” uses, the Medical Device Reporting regulation, which requires that manufacturers report to the FDA if their device may have caused or contributed to a death or serious injury or malfunctioned in a way that would likely cause or contribute to a death or serious injury if it were to recur, and the Reports of Corrections and Removals regulation, which requires manufacturers to report recalls and field actions to the FDA if initiated to reduce a risk to health posed by the device or to remedy a violation of the FDCA. The FDA enforces these requirements by inspection and market surveillance. If the FDA finds a violation, it can institute a wide variety of enforcement actions, ranging from a public warning letter to more severe sanctions such as: fines, injunctions and civil penalties; recall or seizure of products; operating restrictions, partial suspension or total shutdown of production; refusing requests for PMA of new products; withdrawing PMAs already granted; and criminal prosecution. Other regulatory requirements Any drug or biological products manufactured or distributed by us pursuant to FDA approvals are subject to pervasive and continuing regulation by the FDA, including, among other things, requirements relating to recordkeeping, periodic reporting, product sampling and distribution, advertising and promotion and reporting of adverse experiences with the product. After approval, most changes to the approved product, such as adding new indications or other labeling claims are subject to prior FDA review and approval. The FDA may impose a number of post-approval requirements as a condition of approval of an NDA or BLA. For example, the FDA may require post-marketing testing, including phase 4 clinical trials, and surveillance to further assess and monitor the product’s safety and effectiveness after commercialization. 39 Table of Contents Regulatory approval of oncology products often requires that patients in clinical trials be followed for long periods to determine the OS benefit of the drug or biologic. In addition, drug and biologic manufacturers and other entities involved in the manufacture and distribution of approved drugs and biological products are required to register their establishments with the FDA and state agencies, and are subject to periodic unannounced inspections by the FDA and these state agencies for compliance with cGMP requirements. Changes to the manufacturing process are strictly regulated and often require prior FDA approval before being implemented. FDA regulations also require investigation and correction of any deviations from cGMP and impose reporting and documentation requirements upon us and any third-party manufacturers that we may decide to use. Accordingly, manufacturers must continue to expend time, money and effort in the areas of production and quality control to maintain cGMP compliance. Once an approval is granted, the FDA may withdraw the approval if compliance with regulatory requirements and standards is not maintained or if problems occur after the product reaches the market. Later discovery of previously unknown problems with a product, including adverse events of unanticipated severity or frequency, or with manufacturing processes, or failure to comply with regulatory requirements, may result in revisions to the approved labeling to add new safety information, imposition of post-market studies or clinical trials to assess new safety risks or imposition of distribution or other restrictions under a Risk Evaluation and Mitigation Strategy program. Other potential consequences include, among other things: The FDA strictly regulates marketing, labeling, advertising and promotion of products that are placed on the market. Drugs and biologics may be promoted only for the approved indications and in accordance with the provisions of the approved label. The FDA and other agencies actively enforce the laws and regulations prohibiting the promotion of off label uses, and a company that is found to have improperly promoted off label uses may be subject to significant liability. Additional provisions Anti-kickback and false claims laws In addition to FDA restrictions on marketing of pharmaceutical products, several other types of state and federal laws have been applied to restrict certain marketing practices in the pharmaceutical industry in recent years. These laws include anti-kickback statutes and false claims statutes. The federal healthcare program anti-kickback statute prohibits, among other things, knowingly and willfully offering, paying, soliciting or receiving remuneration to induce or in return for purchasing, leasing, ordering or arranging for the purchase, lease or order of any healthcare item or service reimbursable under Medicare, Medicaid or other federally financed healthcare programs. The Patient Protection and Affordable Care Act, or the PPACA, amended the intent element of the federal statute so that a person or entity no longer needs to have actual knowledge of the statute or specific intent to violate it. This statute has been interpreted to apply to arrangements between pharmaceutical manufacturers on the one hand and prescribers, purchasers and formulary managers on the other. Violations of the anti-kickback statute are punishable by imprisonment, criminal fines, civil monetary penalties and exclusion from participation in federal healthcare programs. Although there are a number of statutory exemptions and regulatory safe harbors 40 • restrictions on the marketing or manufacturing of the product, complete withdrawal of the product from the market or product recalls; • fines, untitled and warning letters or holds on post-approval clinical trials; • refusal of the FDA to approve pending applications or supplements to approved applications, or suspension or revocation of product license approvals; • product seizure or detention, or refusal to permit the import or export of products; or • consent decrees, injunctions or the imposition of civil or criminal prosecution. Table of Contents protecting certain common activities from prosecution or other regulatory sanctions, the exemptions and safe harbors are drawn narrowly, and practices that involve remuneration intended to induce prescribing, purchases or recommendations may be subject to scrutiny if they do not qualify for an exemption or safe harbor. Federal false claims laws prohibit any person from knowingly presenting, or causing to be presented, a false claim for payment to the federal government, or knowingly making, or causing to be made, a false statement to have a false claim paid. Recently, several pharmaceutical and other healthcare companies have been prosecuted under these laws for allegedly inflating drug prices they report to pricing services, which in turn were used by the government to set Medicare and Medicaid reimbursement rates, and for allegedly providing free product to customers with the expectation that the customers would bill federal programs for the product. In addition, certain marketing practices, including off-label promotion, may also violate false claims laws. Additionally, the PPACA amended the federal false claims law such that a violation of the federal healthcare program anti-kickback statute can serve as a basis for liability under the federal false claims law. The majority of states also have statutes or regulations similar to the federal anti-kickback law and false claims laws, which apply to items and services reimbursed under Medicaid and other state programs, or, in several states, apply regardless of the payor. Physician drug samples As part of the sales and marketing process, pharmaceutical companies frequently provide samples of approved drugs to physicians. The Prescription Drug Marketing Act, or the PDMA, imposes requirements and limitations upon the provision of drug samples to physicians, as well as prohibits states from licensing distributors of prescription drugs unless the state licensing program meets certain federal guidelines that include minimum standards for storage, handling and record keeping. In addition, the PDMA sets forth civil and criminal penalties for violations. Foreign regulation In order to market any therapeutic or diagnostic product outside of the United States, we would need to comply with numerous and varying regulatory requirements of other countries regarding safety and efficacy and governing, among other things, clinical trials, marketing authorization, commercial sales and distribution of our products. Whether or not we obtain FDA approval for a product, we would need to obtain the necessary approvals by the comparable regulatory authorities of foreign countries before we can commence clinical trials or marketing of the product in those countries. The approval process varies from country to country and can involve additional product testing and additional administrative review periods. The time required to obtain approval in other countries might differ from and be longer than that required to obtain FDA approval. Regulatory approval in one country does not ensure regulatory approval in another, but a failure or delay in obtaining regulatory approval in one country may negatively impact the regulatory process in others. To date, other than applying for and being granted orphan medicinal product designation and obtaining advice from the Scientific Advice Working Party of the EMA in the European Union for MM-398 for the treatment of pancreatic cancer, we have not initiated any discussions with the EMA or any other foreign regulatory authorities with respect to seeking regulatory approval for any of our products in Europe or in any other country outside the United States. The EMA grants orphan medicinal product designation to promote the development of products that may offer therapeutic benefits for life-threatening or chronically debilitating conditions affecting not more than five in 10,000 people in the European Union. In addition, orphan medicinal product designation can be granted if the drug is intended for a life threatening, seriously debilitating or serious and chronic condition and without incentives it is unlikely that sales of the drug in the European Union would be sufficient to justify developing the drug. Orphan medicinal product designation is only available if there is no other satisfactory method approved in the European Union of diagnosing, preventing or treating the condition, or if such a method exists, the proposed orphan medicinal product will be of significant benefit to patients. Orphan medicinal product designation provides opportunities for 41 Table of Contents free protocol assistance and fee reductions for access to the centralized regulatory procedures. Orphan medicinal product designation also provides ten years of market exclusivity following drug approval. The exclusivity period may be reduced to six years if the designation criteria are no longer met, including where it is shown that the product is sufficiently profitable not to justify maintenance of market exclusivity. New legislation and regulations From time to time, legislation is drafted, introduced and passed in Congress that could significantly change the statutory provisions governing the testing, approval, manufacturing and marketing of products regulated by the FDA. For example, the BPCIA and the Food and Drug Administration Safety and Innovation Act, or the FDASIA, were enacted in 2010 and 2012, respectively. The FDASIA is a broad, sweeping law that establishes new user fee programs and provides the FDA with new authority in the areas of drugs, biologics and medical devices. In particular, the FDASIA provides the FDA with new inspection authorities. A drug or biologic will be considered adulterated, with possible resulting civil and criminal penalties, if the owner or operator of the establishment where it is made, processed, packed or held delays, denies, limits or refuses inspection. The FDASIA also replaces the biennial inspection schedule for drugs and biologics with a risk-based inspection schedule. The law grants the FDA authority to require a drug or biologics manufacturer to provide, in advance or instead of an inspection, and at the manufacturer’s expense, any records or other information that the agency may otherwise inspect at the facility. The FDASIA also permits the FDA to share inspection information with foreign governments under certain circumstances. The FDASIA also provides the FDA with additional authority to exercise against manufacturers of drugs or biologics that are not adhering to pediatric study requirements, which apply even if the manufacturer is not seeking to market the drug or biologic to pediatric patients. As of April 2013, the FDA must issue non-compliance letters to companies who do not meet the pediatric study requirements. The company has an opportunity to respond, and the non-compliance letter and company response will become publicly available. The FDASIA is complex and has yet to be interpreted and implemented by the FDA. In the area of companion diagnostics, FDA officials indicated in 2010 that the agency planned to issue two guidances in this area. The FDA issued one draft guidance in July 2011. The FDA has yet to issue a second draft guidance and may decide not to issue a second draft guidance or finalize the existing draft guidance. As a result, its ultimate impact, implementation and meaning are subject to uncertainty. In addition to new legislation, FDA regulations and policies are often revised or interpreted by the agency in ways that may significantly affect our business and our products. It is impossible to predict whether further legislative changes will be enacted or whether FDA regulations, guidance, policies or interpretations changed or what the effect of such changes, if any, may be. Pharmaceutical coverage, pricing and reimbursement Significant uncertainty exists as to the coverage and reimbursement status of any drug products for which we obtain regulatory approval. Sales of any of our product candidates, if approved, will depend, in part, on the extent to which the costs of the products will be covered by third-party payors, including government health programs such as Medicare and Medicaid, commercial health insurers and managed care organizations. The process for determining whether a payor will provide coverage for a drug product may be separate from the process for setting the price or reimbursement rate that the payor will pay for the drug product once coverage is approved. Third-party payors may limit coverage to specific drug products on an approved list, or formulary, which might not include all of the approved drugs for a particular indication. In order to secure coverage and reimbursement for any product that might be approved for sale, we may need to conduct expensive pharmacoeconomic studies in order to demonstrate the medical necessity and cost-effectiveness of the product, in addition to the costs required to obtain FDA or other comparable regulatory approvals. Our product candidates may not be considered medically necessary or cost-effective. A payor’s decision to provide coverage for a drug product does not imply that an adequate reimbursement rate will be approved. Third-party reimbursement may not be sufficient to enable us to maintain price levels high enough to realize an appropriate return on our investment in product development. 42 Table of Contents The containment of healthcare costs has become a priority of federal, state and foreign governments, and the prices of drugs have been a focus in this effort. Third-party payors are increasingly challenging the prices charged for medical products and services and examining the medical necessity and cost-effectiveness of medical products and services, in addition to their safety and efficacy. If these third-party payors do not consider our products to be cost-effective compared to other available therapies, they may not cover our products after approval as a benefit under their plans or, if they do, the level of payment may not be sufficient to allow us to sell our products at a profit. The U.S. government, state legislatures and foreign governments have shown significant interest in implementing cost containment programs to limit the growth of government-paid health care costs, including price controls, restrictions on reimbursement and requirements for substitution of generic products for branded prescription drugs. Adoption of such controls and measures, and tightening of restrictive policies in jurisdictions with existing controls and measures, could limit payments for pharmaceuticals such as the drug candidates that we are developing and could adversely affect our net revenue and results. Pricing and reimbursement schemes vary widely from country to country. Some countries provide that drug products may be marketed only after a reimbursement price has been agreed. Some countries may require the completion of additional studies that compare the cost-effectiveness of a particular product candidate to currently available therapies. For example, the European Union provides options for its member states to restrict the range of drug products for which their national health insurance systems provide reimbursement and to control the prices of medicinal products for human use. European Union member states may approve a specific price for a drug product or may instead adopt a system of direct or indirect controls on the profitability of the company placing the drug product on the market. Other member states allow companies to fix their own prices for drug products, but monitor and control company profits. The downward pressure on health care costs in general, particularly prescription drugs, has become very intense. As a result, increasingly high barriers are being erected to the entry of new products. In addition, in some countries, cross-border imports from low-priced markets exert competitive pressure that may reduce pricing within a country. There can be no assurance that any country that has price controls or reimbursement limitations for drug products will allow favorable reimbursement and pricing arrangements for any of our products. The marketability of any products for which we receive regulatory approval for commercial sale may suffer if the government and third-party payors fail to provide adequate coverage and reimbursement. In addition, an increasing emphasis on managed care in the United States has increased and we expect will continue to increase the pressure on drug pricing. Coverage policies, third-party reimbursement rates and drug pricing regulation may change at any time. In particular, the Patient Protection and Affordable Care Act was enacted in the United States in March 2010 and contains provisions that may reduce the profitability of drug products, including, for example, increased rebates for drugs sold to Medicaid programs, extension of Medicaid rebates to Medicaid managed care plans, mandatory discounts for certain Medicare Part D beneficiaries and annual fees based on pharmaceutical companies’ share of sales to federal health care programs. Even if favorable coverage and reimbursement status is attained for one or more products for which we receive regulatory approval, less favorable coverage policies and reimbursement rates may be implemented in the future. Employees As of January 31, 2014, we had 254 full-time employees, including a total of 86 employees with M.D. or Ph.D. degrees. Of these full-time employees, 216 employees are engaged in research, development and manufacturing. None of our employees is represented by a labor union or covered by collective bargaining agreements. We consider our relationship with our employees to be good. Our Corporate Information We were originally incorporated in the Commonwealth of Massachusetts in 1993 and reincorporated under the laws of the State of Delaware in October 2010. Our principal executive offices are located at One Kendall Square, Suite B7201, Cambridge, MA 02139, and our telephone number is (617) 441-1000. 43 Table of Contents Information Available on the Internet We maintain a website with the address www.merrimackpharma.com . We are not including the information contained on our website as a part of, or incorporating it by reference into, this Annual Report on Form 10-K. Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and all amendments to those reports, are available to you free of charge through the “SEC Filings” section of our website as soon as reasonably practicable after those materials have been electronically filed with, or furnished to, the Securities and Exchange Commission, or the SEC. We also make available on our website our corporate governance guidelines, the charters for our audit committee, corporate governance and nominating committee, organization and compensation committee and executive committee, and our code of business conduct and ethics, which applies to our directors, officers and employees, and such information is available in print and free of charge to any of our stockholders who requests it. In addition, we intend to disclose on our website any amendments to, or waivers from, our code of business conduct and ethics that are required to be publicly disclosed pursuant to rules of the SEC. 44 Table of Contents Item 1A. Risk Factors Risks Related to Our Financial Position and Need for Additional Capital We have incurred significant losses since our inception. We expect to incur losses for the foreseeable future and may never achieve or maintain profitability. Since inception, we have incurred significant operating losses. Our net loss was $130.7 million for the year ended December 31, 2013, $91.8 million for the year ended December 31, 2012 and $79.7 million for the year ended December 31, 2011. As of December 31, 2013, we had an accumulated deficit of $572.2 million. To date, we have financed our operations primarily through private placements of our convertible preferred stock, collaborations, public offerings of our securities and a secured debt financing. We have devoted substantially all of our efforts to research and development, including clinical trials. We have not completed development of or commercialized any therapeutic product candidates or companion diagnostics. We expect to continue to incur significant expenses and increasing operating losses for at least the next several years. We anticipate that our expenses will increase substantially as we: To become and remain profitable, we must succeed in developing and eventually commercializing products with significant market potential. This will require us to be successful in a range of challenging activities, including discovering product candidates, completing preclinical testing and clinical trials of our product candidates, obtaining regulatory approval for these product candidates and manufacturing, marketing and selling those products for which we may obtain regulatory approval. We are only in the preliminary stages of some of these activities. We may never succeed in these activities and may never generate revenues that are significant or large enough to achieve profitability. Even if we do achieve profitability, we may not be able to sustain or increase profitability on a quarterly or annual basis. Our failure to become and remain profitable would depress the value of our company and could impair our ability to raise capital, expand our business, diversify our product offerings or continue our operations. A decline in the value of our company could also cause you to lose all or part of your investment. Our substantial indebtedness may limit cash flow available to invest in the ongoing needs of our business. We have, and will continue to have, a significant amount of indebtedness. As of December 31, 2013, we had outstanding borrowings in an aggregate principal amount of $40.0 million under a Loan and Security Agreement, or Loan Agreement, with Hercules Technology Growth Capital, Inc., or Hercules. In addition, on July 17, 2013, we issued $125.0 million aggregate principal amount of 4.50% convertible senior notes due 2020. We could in the future incur additional indebtedness beyond such amounts. Our substantial debt combined with our other financial obligations and contractual commitments could have significant adverse consequences, including: 45 • initiate or continue clinical trials of our six most advanced product candidates; • continue the research and development of our other product candidates; • seek to discover additional product candidates; • seek regulatory approvals for our product candidates that successfully complete clinical trials; • establish a sales, marketing and distribution infrastructure and scale up manufacturing capabilities to commercialize products for which we may obtain regulatory approval; and • add operational, financial and management information systems and personnel, including personnel to support our product development and planned commercialization efforts. • requiring us to dedicate a substantial portion of cash flow from operations to the payment of interest on, and principal of, our debt, which will reduce the amounts available to fund working capital, capital expenditures, product development efforts and other general corporate purposes; • increasing our vulnerability to adverse changes in general economic, industry and market conditions; Table of Contents In addition, we are vulnerable to increases in the market rate of interest because our currently outstanding secured debt bears interest at a variable rate. If the market rate of interest increases, we will have to pay additional interest on our outstanding debt, which would reduce cash available for our other business needs. We intend to satisfy our current and future debt service obligations with our existing cash and cash equivalents and available-for-sale securities and funds from external sources. However, we may not have sufficient funds or may be unable to arrange for additional financing to pay the amounts due under our existing debt. Funds from external sources may not be available on acceptable terms, if at all. In addition, a failure to comply with the covenants under our existing debt instruments could result in an event of default under those instruments. In the event of an acceleration of amounts due under our debt instruments as a result of an event of default, including upon the occurrence of an event that would reasonably be expected to have a material adverse effect on our business, operations, properties, assets or condition or a failure to pay any amount due, we may not have sufficient funds or may be unable to arrange for additional financing to repay our indebtedness or to make any accelerated payments, and the lenders could seek to enforce security interests in the collateral securing such indebtedness. In addition, the covenants under our existing debt instruments and the pledge of our assets as collateral limit our ability to obtain additional debt financing. Servicing our debt requires a significant amount of cash, and we may not have sufficient cash flow from our business to pay our obligations. Our ability to make scheduled payments of the principal of, to pay interest on or to refinance our indebtedness depends on our future performance, which is subject to economic, financial, competitive and other factors beyond our control. We currently do not generate cash flow from operations and, in the future, our business may not generate cash flow from operations, sufficient to service our debt and make necessary capital expenditures. If we are unable to generate cash flow, we may be required to adopt one or more alternatives, such as selling assets, restructuring debt or obtaining additional equity or debt financing on terms that may be unfavorable to us or highly dilutive. Our ability to refinance our indebtedness will depend on the capital markets and our financial condition at such time. We may not be able to engage in any of these activities at all or engage in these activities on desirable terms, which could result in a default on our debt obligations or future indebtedness. We will need substantial additional funding. If we are unable to raise capital when needed, we would be forced to delay, reduce or eliminate our product development programs or commercialization efforts. We will need substantial additional funding in connection with our continuing operations. We expect our research and development expenses to continue to increase in connection with our ongoing activities, particularly as we continue the research, development and clinical trials of, and seek regulatory approval for, our product candidates. In addition, in connection with seeking and possibly obtaining regulatory approval of any of our product candidates, we expect to incur significant commercialization expenses for product sales, marketing, manufacturing and distribution. If we are unable to raise capital when needed or on attractive terms, we would be forced to delay, reduce or eliminate our research and development programs or commercialization efforts. We expect that our existing unrestricted cash and cash equivalents and available-for-sale securities as of December 31, 2013, anticipated interest income and funding under our license and collaboration agreement with Sanofi related to MM-121 will enable us to fund operations into 2015. In the event that we obtain favorable 46 • obligating us to restrictive covenants that may reduce our ability to take certain corporate actions or obtain further debt or equity financing; • limiting our flexibility in planning for, or reacting to, changes in our business and the industry in which we compete; and • placing us at a competitive disadvantage compared to our competitors that have less debt or better debt servicing options. Table of Contents results from our Phase 3 clinical trial of MM-398, we expect that anticipated additional expenses in 2014 related to the commercialization of MM-398 will be offset by cash received from potential collaboration opportunities. Our future capital requirements will depend on many factors, including: Conducting preclinical testing and clinical trials is a time-consuming, expensive and uncertain process that takes years to complete, and we may never generate the necessary data required to obtain regulatory approval and achieve product sales. In addition, our product candidates, if approved, may not achieve commercial success. Our commercial revenues, if any, will be derived from sales of products that we do not expect to be commercially available for several years, if at all. Accordingly, we will need to continue to rely on additional financing to achieve our business objectives. Raising additional capital may cause dilution to our existing stockholders, restrict our operations or require us to relinquish rights to our technologies or product candidates. Until such time, if ever, as we can generate substantial product revenues, we expect to finance our cash needs through a combination of equity offerings, debt financings, collaborations, strategic alliances, licensing arrangements and other marketing and distribution arrangements. We do not have any committed external source of funds, other than our collaboration with Sanofi for the development and commercialization of MM-121, which is terminable by Sanofi for convenience upon 180 days’ prior written notice. Other sources of funds may not be available or, if available, may not be available on terms satisfactory to us and could result in significant stockholder dilution. On July 17, 2013, we sold an aggregate of 5,750,000 shares of our common stock at a price to the public of $5.00 per share and issued $125.0 million aggregate principal amount of 4.50% convertible senior notes due 2020 in concurrent underwritten public offerings. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the ownership interest of our existing common stockholders will be diluted, and the terms of these securities may include liquidation or other preferences that adversely affect the rights of our stockholders. Additional debt financing, if available, may involve agreements that include covenants limiting or restricting our ability to take specific actions, such as incurring additional debt, making capital expenditures or declaring dividends, and these covenants may also require us to attain certain levels of financial performance and we may not be able to do so; any such failure may result in the acceleration of such debt and the foreclosure by our creditors on the collateral we used to secure the debt. The debt issued in a debt financing would also be senior to our outstanding shares of capital stock, and may rank equally with or senior to the convertible senior notes upon our liquidation. Our existing indebtedness and the pledge of our assets 47 • the progress and results of the clinical trials of our six most advanced product candidates; • the success of our collaborations with Sanofi related to MM-121 and PharmaEngine related to MM-398; • the scope, progress, results and costs of preclinical development, laboratory testing and clinical trials for our other product candidates; • the costs, timing and outcome of regulatory review of our product candidates; • the costs of commercialization activities, including product sales, marketing, manufacturing and distribution; • the costs of preparing, filing and prosecuting patent applications and maintaining, enforcing and defending intellectual property-related claims; • the extent to which we acquire or invest in businesses, products and technologies; • our ability to establish and maintain commercial manufacturing arrangements for the manufacture of drug product on behalf of third-party pharmaceutical companies; and • our ability to establish and maintain additional collaborations on favorable terms, particularly marketing and distribution arrangements for oncology product candidates outside the United States and Europe. Table of Contents as collateral limit our ability to obtain additional debt financing. If we raise additional funds through marketing and distribution arrangements or other collaborations, strategic alliances or licensing arrangements with third parties, we may have to relinquish valuable rights to our technologies, future revenue streams, research programs or product candidates or to grant licenses on terms that may not be favorable to us. If we are unable to raise additional funds through equity or debt financings when needed, we may be required to delay, limit, reduce or terminate our product development or commercialization efforts or grant rights to develop and market product candidates that we would otherwise prefer to develop and market ourselves. Our investments are subject to risks that could result in losses. We invest our cash in a variety of financial instruments, principally securities issued by the U.S. government and its agencies, investment grade corporate bonds, including commercial paper, and money market instruments. All of these investments are subject to credit, liquidity, market and interest rate risk. Such risks, including the failure or severe financial distress of the financial institutions that hold our cash, cash equivalents and investments, may result in a loss of liquidity, impairment to our investments, realization of substantial future losses, or a complete loss of the investments in the long-term, which may have a material adverse effect on our business, results of operations, liquidity and financial condition. In order to manage the risk to our investments, we maintain an investment policy that, among other things, limits the amount that we may invest in any one issue or any single issuer and requires us to only invest in high credit quality securities. Risks Related to the Development and Commercialization of Our Product Candidates We depend heavily on the success of our six most advanced product candidates. All of our product candidates are still in preclinical and clinical development. Clinical trials of our product candidates may not be successful. If we are unable to commercialize our product candidates, or experience significant delays in doing so, our business will be materially harmed. We have invested a significant portion of our efforts and financial resources in the acquisition of rights to MM-398 and the development of our five other most advanced product candidates for the treatment of various types of cancer. All of our therapeutic product candidates are still in preclinical and clinical development. Our ability to generate product revenues, which we do not expect will occur until 2015 at the earliest, if ever, will depend heavily on the successful development and eventual commercialization of these product candidates. The success of our product candidates, which include both our therapeutic product candidates and companion diagnostic candidates, will depend on several factors, including the following: If we do not achieve one or more of these factors in a timely manner or at all, we could experience significant delays or an inability to successfully commercialize our product candidates, which would materially harm our business. 48 • successful enrollment in, and completion of, preclinical studies and clinical trials; • receipt of marketing approvals from the FDA and similar regulatory authorities outside the United States for our product candidates, including our companion diagnostics; • establishing commercial manufacturing capabilities, either by building such facilities ourselves or making arrangements with third-party manufacturers; • launching commercial sales of any approved products, whether alone or in collaboration with others; • acceptance of any approved products by patients, the medical community and third-party payors; • effectively competing with other therapies; • a continued acceptable safety profile of any products following approval; and • qualifying for, maintaining, enforcing and defending intellectual property rights and claims. Table of Contents If clinical trials of our product candidates fail to demonstrate safety and efficacy to the satisfaction of the FDA or similar regulatory authorities outside the United States or do not otherwise produce positive results, we may incur additional costs or experience delays in completing, or ultimately be unable to complete, the development and commercialization of our product candidates. Before obtaining regulatory approval for the sale of our product candidates, we must conduct extensive clinical trials to demonstrate the safety and efficacy of our product candidates in humans. Clinical testing is expensive, difficult to design and implement, can take many years to complete and is uncertain as to outcome. A failure of one or more of our clinical trials can occur at any stage of testing. The outcome of preclinical testing and early clinical trials may not be predictive of the success of later clinical trials, and successful interim results of a clinical trial do not necessarily predict successful final results. We may experience numerous unexpected events during, or as a result of, clinical trials that could delay or prevent our ability to receive regulatory approval or commercialize our product candidates, including: For example, in a Phase 2 clinical trial of MM-121 in patients with non-small cell lung cancer, two of the three cohorts (Groups A and C) failed to meet their primary endpoints, and the third cohort (Group B) did not pass its planned interim analysis and will no longer be enrolling patients. Additionally, we did not meet the primary endpoints in our Phase 2 clinical trials of MM-121 in patients with ovarian cancer or in patients with breast cancer, although our ongoing biomarker analysis in each trial identified a potential subpopulation of patients benefiting from MM-121 in combination with either paclitaxel or exemestane, respectively. Preclinical and clinical data may not be predictive of the success of later clinical trials, and are often susceptible to varying interpretations and analyses. Many companies that have believed their product candidates performed satisfactorily in preclinical studies and clinical trials have nonetheless failed to obtain marketing approval of their products. For instance, the favorable results from a Phase 2 clinical trial of MM-398 in patients with metastatic pancreatic cancer may not be predictive of success in our Phase 3 clinical trial of MM-398 for the same indication, in particular because the trials have different efficacy endpoints and the Phase 2 clinical trial 49 • regulators or institutional review boards may not authorize us or our investigators to commence a clinical trial or conduct a clinical trial at a prospective trial site; • clinical trials of our product candidates may produce negative or inconclusive results, and we may decide, or regulators may require us, to conduct additional clinical trials or abandon product development programs; • the number of patients required for clinical trials of our product candidates may be larger than we anticipate, enrollment in these clinical trials may be insufficient or slower than we anticipate or patients may drop out of these clinical trials at a higher rate than we anticipate; • our third-party contractors may fail to comply with regulatory requirements or meet their contractual obligations to us in a timely manner, or at all; • we might have to suspend or terminate clinical trials of our product candidates for various reasons, including a finding of a lack of clinical response or a finding that the patients are being exposed to unacceptable health risks; • regulators or institutional review boards may require that we or our investigators suspend or terminate clinical research for various reasons, including noncompliance with regulatory requirements; • the cost of clinical trials of our product candidates may be greater than we anticipate; • the supply or quality of our product candidates, companion diagnostics or other materials necessary to conduct clinical trials of our product candidates may be insufficient or inadequate; and • our product candidates may have undesirable side effects or other unexpected characteristics, causing us or our investigators to suspend or terminate the trials. Table of Contents was a single arm study that did not compare MM-398 to other therapies. Our Phase 3 clinical trial, as amended, is designed to compare the efficacy of each of MM-398 as a monotherapy and MM-398 in combination with 5-FU and leucovorin against a common control of the combination of 5-FU and leucovorin. This Phase 3 clinical trial is based on an efficacy endpoint of statistically significant difference in OS. If we are required to conduct additional clinical trials or other testing of our product candidates beyond those that we currently contemplate, if we are unable to successfully complete clinical trials of our product candidates or other testing, if the results of these trials or tests are not positive or are only modestly positive or if there are safety concerns, we may: In particular, it is possible that the FDA and other regulatory agencies may not consider the results of our Phase 3 clinical trial of MM-398 for the treatment of patients with metastatic pancreatic cancer, once completed, to be sufficient for approval of MM-398 for this indication. In general, the FDA suggests two adequate and well-controlled clinical trials to demonstrate effectiveness because a conclusion based on two persuasive studies will be more secure. Although the FDA informed us that the original design of our Phase 3 clinical trial of MM-398, plus supportive Phase 2 data obtained to date, could potentially provide sufficient safety and effectiveness data for the treatment of patients with metastatic pancreatic cancer, the FDA has further advised us that whether one or two adequate and well controlled clinical trials will be required will be a review issue in connection with an NDA submission. Even if we achieve favorable results in our Phase 3 clinical trial, the FDA may nonetheless require that we conduct additional clinical trials, possibly using a different design. Delays in testing or approvals may result in increases to our product development costs. We do not know whether any clinical trials will begin as planned, will need to be restructured or will be completed on schedule, or at all. Significant clinical trial delays also could shorten any periods during which we may have the exclusive right to commercialize our product candidates or allow our competitors to bring products to market before we do and impair our ability to commercialize our product candidates and may harm our business and results of operations. If serious adverse or undesirable side effects are identified during the development of our product candidates, we may need to abandon our development of some of our product candidates. All of our product candidates are still in preclinical or clinical development and their risk of failure is high. It is impossible to predict when or if any of our product candidates will prove effective or safe in humans or will receive regulatory approval. Currently marketed therapies for solid tumors are generally limited to some extent by their toxicity. Use of our product candidates as monotherapies in clinical trials also has resulted in adverse events consistent in nature with other marketed therapies. When used in combination with other marketed or investigational therapies, our product candidates may exacerbate adverse events associated with the other therapy. If our product candidates, either alone or in combination with other therapies, result in undesirable side effects or have characteristics that are unexpected, we may need to modify or abandon their development. 50 • be delayed in obtaining marketing approval for our product candidates; • not obtain marketing approval at all; • obtain approval for indications that are not as broad as intended; • have the product removed from the market after obtaining marketing approval; • be subject to additional post-marketing testing requirements; • be subject to restrictions on how the product is distributed or used; or • be unable to obtain reimbursement for use of the product. Table of Contents If we experience delays in the enrollment of patients in our clinical trials, our receipt of necessary regulatory approvals could be delayed or prevented. We may not be able to initiate or continue clinical trials for our product candidates if we are unable to locate and enroll a sufficient number of eligible patients to participate in these trials as required by the FDA or other regulatory authorities. In addition, many of our competitors have ongoing clinical trials for product candidates that could be competitive with our product candidates. Patients who would otherwise be eligible for our clinical trials may instead enroll in clinical trials of our competitors’ product candidates or rely upon treatment with existing therapies that may preclude them from eligibility for our clinical trials. Enrollment delays in our clinical trials may result in increased development costs for our product candidates, which would cause the value of the company to decline and limit our ability to obtain additional financing. Our inability to enroll a sufficient number of patients for any of our current or future clinical trials would result in significant delays or may require us to abandon one or more clinical trials altogether. In general, we forecast enrollment for our clinical trials based on experience from previous clinical trials and monitor enrollment to be able to make adjustments to clinical trials when appropriate, including as a result of slower than expected enrollment that we experience from time to time in our clinical trials. For example, we experienced slower than expected enrollment in our Phase 2 clinical trial of MM-121 in combination with exemestane for hormone receptor positive breast cancer. In response, we revised the entry criteria for the clinical trial to correspond with changes in clinical practice and also expanded the number of sites and countries participating in the clinical trial. It is possible that slow enrollment in other clinical trials in the future could require us to make similar adjustments. If these adjustments do not overcome problems with slow enrollment, we could experience significant delays or abandon the applicable clinical trial altogether. If we are unable to successfully develop companion diagnostics for our therapeutic product candidates, or experience significant delays in doing so, we may not realize the full commercial potential of our therapeutics. An important component of our business strategy is to develop in vitro or in vivo companion diagnostics for each of our therapeutic product candidates. There has been limited success to date industry-wide in developing companion diagnostics, in particular in vitro companion diagnostics. To be successful, we will need to address a number of scientific, technical, regulatory and logistical challenges. Although we have developed prototype assays for some in vitro diagnostic candidates, all of our companion diagnostic candidates are in preclinical development or clinical feasibility testing. We have limited experience in the development of diagnostics and may not be successful in developing appropriate diagnostics to pair with any of our therapeutic product candidates that receive marketing approval. The FDA and similar regulatory authorities outside the United States are generally expected to regulate in vitro companion diagnostics as medical devices and in vivo companion diagnostics as drugs. In each case, companion diagnostics require separate regulatory approval prior to commercialization. Given our limited experience in developing diagnostics, we expect to rely in part on third parties for their design, development and manufacture. If we, or any third parties that we engage to assist us, are unable to successfully develop companion diagnostics for our therapeutic product candidates, or experience delays in doing so, the development of our therapeutic product candidates may be adversely affected, our therapeutic product candidates may not receive marketing approval and we may not realize the full commercial potential of any therapeutics that receive marketing approval. As a result, our business would be harmed, possibly materially. 51 Table of Contents Even if any of our product candidates, including our six most advanced product candidates, receive regulatory approval, they may fail to achieve the degree of market acceptance by physicians, patients, healthcare payors and others in the medical community necessary for commercial success. If any of our product candidates, including our six most advanced product candidates, receive marketing approval, they may nonetheless not gain sufficient market acceptance by physicians, patients, healthcare payors and others in the medical community. If these products do not achieve an adequate level of acceptance, we may not generate significant product revenues and we may not become profitable. The degree of market acceptance of our product candidates, if approved for commercial sale, will depend on a number of factors that may be uncertain or subjective, including: If we are unable to establish sales and marketing capabilities or enter into agreements with third parties to sell and market our product candidates, we may not be successful in commercializing our product candidates. We do not have a sales or marketing infrastructure and have no experience in the sale, marketing or distribution of therapeutic products. To achieve commercial success for any approved product, we must either develop a sales and marketing organization or outsource these functions to third parties. Our current plan for our oncology products, other than MM-121, for which we receive marketing approval, is to market and sell these products ourselves in the United States and Europe and to establish distribution or other marketing arrangements with third parties for these products in the rest of the world. We have an option to co-promote MM-121 in the United States with Sanofi, which otherwise holds worldwide commercialization rights to this product candidate. There are risks involved with both establishing our own sales and marketing capabilities and entering into arrangements with third parties to perform these services. For example, recruiting and training a sales force is expensive and time-consuming and could delay any product launch. If the commercial launch of a product candidate for which we recruit a sales force and establish marketing capabilities is delayed or does not occur for any reason, we would have prematurely or unnecessarily incurred these commercialization expenses. This may be costly, and our investment would be lost if we cannot retain or reposition our sales and marketing personnel. Establishing effective sales, marketing and distribution capabilities and infrastructure in Europe may be particularly difficult for us. We have no prior experience in these areas. In addition, there are complex regulatory, tax, labor and other legal requirements imposed by both the European Union and many of the individual countries in Europe with which we will need to comply. Many U.S.-based biopharmaceutical companies have found the process of marketing their own products in Europe to be very challenging. We also may not be successful entering into arrangements with third parties to sell and market our product candidates or doing so on terms that are favorable to us. We likely will have little control over such third parties, and any of them may fail to devote the necessary resources and attention to sell and market our products effectively. If we do not establish sales and marketing capabilities successfully, either on our own or in collaboration with third parties, we will not be successful in commercializing our product candidates. 52 • the prevalence and severity of any side effects; • efficacy and potential advantages or disadvantages compared to alternative treatments; • the price we charge for our product candidates; • convenience and ease of administration compared to alternative treatments; • the willingness of the target patient population to try new therapies and of physicians to prescribe these therapies; • our ability to successfully develop companion diagnostics that effectively identify patient populations likely to benefit from treatment with our therapeutic products; • the strength of marketing and distribution support; and • sufficient third-party coverage or reimbursement. Table of Contents We face substantial competition, which may result in others discovering, developing or commercializing products before or more successfully than we do. The development and commercialization of new therapeutic and diagnostic products is highly competitive. We face competition with respect to our current product candidates, and will face competition with respect to any products that we may seek to develop or commercialize in the future, from major pharmaceutical companies, specialty pharmaceutical companies and biotechnology companies worldwide. Several large pharmaceutical and biotechnology companies currently market and sell products for the treatment of the solid tumor indications for which we are developing our product candidates. Potential competitors also include academic institutions, government agencies and other public and private research organizations that conduct research, seek patent protection and establish collaborative arrangements for research, development, manufacturing and commercialization. Many of these competitors are attempting to develop therapeutics for our target indications. We are developing our product candidates for the treatment of solid tumors. There are a variety of available therapies marketed for solid tumors. In many cases, these drugs are administered in combination to enhance efficacy. Some of these drugs are branded and subject to patent protection, and others are available on a generic basis, including the active ingredients in MM-398 and MM-302. Many of these approved drugs are well established therapies and are widely accepted by physicians, patients and third-party payors. This may make it difficult for us to achieve our business strategy of replacing existing therapies with our product candidates. There are also a number of products in late stage clinical development to treat solid tumors. Our competitors may develop products that are more effective, safer, more convenient or less costly than any that we are developing or that would render our product candidates obsolete or non-competitive. Our competitors may also obtain FDA or other regulatory approval for their products more rapidly than we may obtain approval for ours. Many of our competitors have significantly greater financial resources and expertise in research and development, manufacturing, preclinical testing, conducting clinical trials, obtaining regulatory approvals and marketing approved products than we do. Mergers and acquisitions in the pharmaceutical, biotechnology and diagnostic industries may result in even more resources being concentrated among a smaller number of our competitors. Smaller or early stage companies may also prove to be significant competitors, particularly through collaborative arrangements with large and established companies. These third parties compete with us in recruiting and retaining qualified scientific and management personnel, establishing clinical trial sites and patient registration for clinical trials, as well as in acquiring technologies complementary to, or necessary for, our programs. Even if we are able to commercialize any product candidates, the products may become subject to unfavorable pricing regulations, third-party reimbursement practices or healthcare reform initiatives, which could harm our business. The regulations that govern marketing approvals, pricing and reimbursement for new therapeutic and diagnostic products vary widely from country to country. Some countries require approval of the sale price of a product before it can be marketed. In many countries, the pricing review period begins after marketing or product licensing approval is granted. In some foreign markets, prescription pharmaceutical pricing remains subject to continuing governmental control even after initial approval is granted. As a result, we might obtain regulatory approval for a product in a particular country, but then be subject to price regulations that delay our commercial launch of the product and negatively impact the revenues we are able to generate from the sale of the product in that country. Adverse pricing limitations may hinder our ability to recoup our investment in one or more product candidates, even if our product candidates obtain regulatory approval. Our ability to commercialize any products successfully also will depend in part on the extent to which reimbursement for these products and related treatments will be available from government health administration authorities, private health insurers and other organizations. Government authorities and third-party payors, such 53 Table of Contents as private health insurers and health maintenance organizations, decide which medications they will pay for and establish reimbursement levels. A primary trend in the U.S. healthcare industry and elsewhere is cost containment. Government authorities and these third-party payors have attempted to control costs by limiting coverage and the amount of reimbursement for particular medications. Increasingly, third-party payors are requiring that companies provide them with predetermined discounts from list prices and are challenging the prices charged for medical products. We cannot be sure that reimbursement will be available for any product that we commercialize and, if reimbursement is available, what the level of reimbursement will be. Reimbursement may impact the demand for, or the price of, any product for which we obtain marketing approval. Obtaining reimbursement for our products may be particularly difficult because of the higher prices often associated with products administered under the supervision of a physician. If reimbursement is not available or is available only to limited levels, we may not be able to successfully commercialize any product candidate that we successfully develop. There may be significant delays in obtaining reimbursement for approved products, and coverage may be more limited than the purposes for which the product is approved by the FDA or regulatory authorities in other countries. Moreover, eligibility for reimbursement does not imply that any product will be paid for in all cases or at a rate that covers our costs, including research, development, manufacture, sale and distribution. Interim payments for new products, if applicable, may also not be sufficient to cover our costs and may not be made permanent. Payment rates may vary according to the use of the product and the clinical setting in which it is used, may be based on payments allowed for lower cost products that are already reimbursed, and may be incorporated into existing payments for other services. Net prices for products may be reduced by mandatory discounts or rebates required by government healthcare programs or private payors and by any future weakening of laws that presently restrict imports of products from countries where they may be sold at lower prices than in the United States. Third-party payors often rely upon Medicare coverage policy and payment limitations in setting their own reimbursement policies. Our inability to promptly obtain coverage and profitable payment rates from both government-funded and private payors for new products that we develop could have a material adverse effect on our operating results, our ability to raise capital needed to commercialize products and our overall financial condition. Product liability lawsuits against us could cause us to incur substantial liabilities and to limit commercialization of any products that we may develop. We face an inherent risk of product liability exposure related to the testing of our product candidates in human clinical trials and will face an even greater risk if we commercially sell any products that we may develop. If we cannot successfully defend ourselves against claims that our product candidates or products caused injuries, we will incur substantial liabilities. Regardless of merit or eventual outcome, liability claims may result in: We currently hold $10.0 million in product liability insurance coverage, which may not be adequate to cover all liabilities that we may incur. Insurance coverage is increasingly expensive. We may not be able to maintain insurance coverage at a reasonable cost or in an amount adequate to satisfy any or every liability that may arise. 54 • decreased demand for any product candidates or products that we may develop; • injury to our reputation and significant negative media attention; • withdrawal of patients from clinical trials; • significant costs to defend the related litigation; • substantial monetary awards to patients; • loss of revenue; and • the inability to commercialize any products that we may develop. Table of Contents We may expend our limited resources to pursue a particular product candidate or indication and fail to capitalize on product candidates or indications that may be more profitable or for which there is a greater likelihood of success. Because we have limited financial and managerial resources, we focus on research programs and product candidates for specific indications. As a result, we may forego or delay pursuit of opportunities with other product candidates or other indications that later prove to have greater commercial potential. Our resource allocation decisions may cause us to fail to capitalize on viable commercial products or profitable market opportunities. Our spending on current and future research and development programs and product candidates for specific indications may not yield any commercially viable products. We have based our research and development efforts on our Network Biology approach. Notwithstanding our large investment to date and anticipated future expenditures in Network Biology, we have not yet developed, and may never successfully develop, any marketed products using this approach. As a result of pursuing our Network Biology approach, we may fail to address or develop product candidates or indications based on other scientific approaches that may offer greater commercial potential or for which there is a greater likelihood of success. We also may not be successful in our efforts to identify or discover additional product candidates through our Network Biology approach. Research programs to identify new product candidates require substantial technical, financial and human resources. These research programs may initially show promise in identifying potential product candidates, yet fail to yield product candidates for clinical development. If we do not accurately evaluate the commercial potential or target market for a particular product candidate, we may relinquish valuable rights to that product candidate through collaboration, licensing or other royalty arrangements in cases in which it would have otherwise been more advantageous for us to retain sole development and commercialization rights. We plan to establish separately funded companies for the development of product candidates using our Network Biology approach in some areas outside the oncology field. These companies may not be successful in the development and commercialization of any product candidates. We plan to apply our Network Biology approach to multiple additional disease areas outside the oncology field. We expect to do so in some cases through the establishment of separately funded companies. For example, we established Silver Creek to develop product candidates in the field of regenerative medicine using Network Biology. Silver Creek has received separate funding from investors other than us. Although Silver Creek is currently majority owned by us, in the future we may not be the majority owner of or control Silver Creek or other companies that we establish. If in the future we do not control Silver Creek or any future similar company that we establish, Silver Creek or such other companies could take actions that we do not endorse or with which we disagree, such as using Network Biology in a way that reflects adversely on us. In addition, these companies may have difficulty raising additional funds and could encounter any of the risks in developing and commercializing product candidates to which we are subject. If we fail to comply with environmental, health and safety laws and regulations, we could become subject to fines or penalties or incur costs that could have a material adverse effect on the success of our business. We are subject to numerous environmental, health and safety laws and regulations, including those governing laboratory procedures and the handling, use, storage, treatment and disposal of hazardous materials and wastes. Our operations involve the use of hazardous and flammable materials, including chemicals and radioactive and biological materials. Our operations also produce hazardous waste products. We generally contract with third parties for the disposal of these materials and wastes. We also store certain low level radioactive waste at our facilities until the materials can be properly disposed of. We cannot eliminate the risk of 55 Table of Contents contamination or injury from these materials. In the event of contamination or injury resulting from our use of hazardous materials, we could be held liable for any resulting damages, and any liability could exceed our resources. We also could incur significant costs associated with civil or criminal fines and penalties. Although we maintain workers’ compensation insurance to cover us for costs and expenses we may incur due to injuries to our employees resulting from the use of hazardous materials, this insurance may not provide adequate coverage against potential liabilities. We do not maintain insurance for environmental liability or toxic tort claims that may be asserted against us in connection with our storage, use or disposal of biological, hazardous or radioactive materials. In addition, we may be required to incur substantial costs to comply with current or future environmental, health and safety laws and regulations. These current or future laws and regulations may impair our research, development or production efforts. Failure to comply with these laws and regulations also may result in substantial fines, penalties or other sanctions. Fluctuations in foreign currency exchange rates could substantially increase the costs of our clinical trial programs. A significant portion of our clinical trial activities are conducted outside of the United States, and associated costs may be incurred in the local currency of the country in which the trial is being conducted, which costs could be subject to fluctuations in foreign exchange rates. At present, we do not engage in hedging transactions to protect against uncertainty in future exchange rates between particular foreign currencies and the U.S. dollar. A decline in the value of the U.S. dollar against currencies in geographies in which we conduct clinical trials could have a negative impact on our research and development costs. We cannot predict the impact of foreign currency fluctuations, and foreign currency fluctuations in the future may adversely affect our development costs. Risks Related to Our Dependence on Third Parties The successful development and commercialization of MM-121 depends substantially on our collaboration with Sanofi. If Sanofi is unable or unwilling to further develop or commercialize MM-121, or experiences significant delays in doing so, our business will be materially harmed. MM-121 is one of our most clinically advanced product candidates. In 2009, we entered into a license and collaboration agreement with Sanofi for the development and commercialization of MM-121. Prior to this collaboration, we did not have a history of working together with Sanofi. The collaboration involves a complex allocation of rights, provides for milestone payments to us based on the achievement of specified development, regulatory and commercial sale milestones, and provides us with royalty-based revenue if MM-121 is successfully commercialized. We cannot predict the success of the collaboration. Under our license and collaboration agreement, Sanofi has significant control over the conduct and timing of development and commercialization efforts with respect to MM-121. Although we and Sanofi have approved a global development plan, Sanofi may change its development plans for MM-121 at any time. We have little control over the amount, timing and quality of resources that Sanofi devotes to the development or commercialization of MM-121. If Sanofi fails to devote sufficient financial and other resources to the development or commercialization of MM-121, the development and commercialization of MM-121 would be delayed or could fail. This would result in a delay in our receiving milestone payments or royalties with respect to MM-121 or in our not receiving such milestone payments or royalties at all. If we lose Sanofi as a collaborator in the development or commercialization of MM-121, it would materially harm our business. Sanofi has the right to terminate our agreement for the development and commercialization of MM-121, in whole or with respect to specified territories, at any time and for any reason, upon 180 days’ prior written notice. Sanofi also has the right to terminate our agreement if we fail to cure a material breach of our agreement within a specified cure period, or fail to diligently pursue a cure if such a breach is not curable within such period. 56 Table of Contents If Sanofi terminates our agreement at any time, whether on the basis of our uncured material breach or for any other reason, it would delay or prevent our development of MM-121 and materially harm our business and could accelerate our need for additional capital. In particular, we would have to fund the clinical development and commercialization of MM-121 on our own, seek another collaborator or licensee for such clinical development and commercialization, or abandon the development and commercialization of MM-121. The successful development and commercialization of MM-398 currently depend on our collaboration with PharmaEngine. If PharmaEngine does not provide clinical trial data to us, our business may be materially harmed. We have a collaboration with PharmaEngine for the development of MM-398. Under this collaboration, PharmaEngine has rights to commercialize MM-398 in Taiwan, while we hold commercialization rights in all other countries, including the United States. PharmaEngine also has the opportunity to participate in the development of MM-398, for which we are reimbursing their costs. We cannot predict the success of the collaboration. The collaboration involves an allocation of rights, provides for milestone payments by us to PharmaEngine based on the achievement of specified milestones and provides for us to pay PharmaEngine royalties on sales of MM-398 in Europe and specified Asian countries if MM-398 is successfully commercialized in Europe and such specified Asian countries. We rely on PharmaEngine to provide data and information to us from trials they have conducted and are currently conducting. This information is necessary for our development of MM-398 in the United States. If PharmaEngine does not provide this information to us, our development of MM-398 could be significantly delayed and our costs could increase significantly. We may depend on collaborations with third parties for the development and commercialization of our product candidates. If those collaborations are not successful, we may not be able to capitalize on the market potential of these product candidates. Our business plan is to enter into distribution and other marketing arrangements for our oncology products in areas of the world outside of the United States and Europe. In addition, depending on our capital requirements, development and commercialization costs, need for additional therapeutic expertise and other factors, it is possible that we will enter into broader development and commercialization arrangements with respect to either oncology product candidates in addition to MM-121 or product candidates in other therapeutic areas in the United States or Europe or other territories. In particular, while we expect to apply our Network Biology approach to other disease areas through arrangements similar to Silver Creek, it is also possible that we will seek to enter into licensing agreements or other types of collaborations for the application of our Network Biology approach. Our likely collaborators for any distribution, marketing, licensing or broader collaboration arrangements include large and mid-size pharmaceutical companies, regional and national pharmaceutical companies and biotechnology companies. We are also a party to a right of review agreement with Sanofi pursuant to which, if we determine to enter into negotiations with a third party regarding any license, option, collaboration, joint venture or similar transaction involving any therapeutic or companion diagnostic product candidate in our pipeline, we will notify Sanofi of such opportunity. Following such notice, Sanofi will have a specified period of time to review the opportunity and determine whether to exercise an additional right to exclusively negotiate an agreement with us with respect to such opportunity for a specified period of time. In addition, in specified circumstances, if we subsequently propose to enter into any third-party agreement, we must first offer the same terms and conditions to Sanofi. Our right of review agreement with Sanofi could discourage other companies from engaging with us in discussions or negotiations regarding collaboration agreements. We will have limited control over the amount and timing of resources that our collaborators dedicate to the development or commercialization of our product candidates. Our ability to generate revenues from these arrangements will depend on our collaborators’ abilities to successfully perform the functions assigned to them in these arrangements. 57 Table of Contents Collaborations involving our product candidates, including our collaboration with Sanofi, pose the following risks to us: Collaboration agreements may not lead to development or commercialization of product candidates in the most efficient manner or at all. In addition, there have been a significant number of recent business combinations among large pharmaceutical companies that have resulted in a reduced number of potential future collaborators. If a present or future collaborator of ours were to be involved in a business combination, the continued pursuit and emphasis on our product development or commercialization program could be delayed, diminished or terminated. If we are not able to establish additional collaborations, we may have to alter our development plans. Our product development programs and the potential commercialization of our product candidates will require substantial additional cash to fund expenses. For some of our product candidates, we may decide to collaborate with pharmaceutical and biotechnology companies for the development and potential commercialization of those product candidates. We face significant competition in seeking appropriate collaborators. Collaborations are complex and time-consuming to negotiate and document. We may also be restricted under existing collaboration agreements from entering into agreements on certain terms with other potential collaborators. We may not be able to negotiate collaborations on acceptable terms, or at all. If that were to occur, we may have to curtail the development of a particular product candidate, reduce or delay its development program or one or more of our other development programs, delay its potential commercialization or reduce the scope of our sales or marketing activities, or increase our expenditures and undertake development or commercialization activities at our own expense. If we elect to increase our expenditures to fund development or commercialization activities on our own, we may need to obtain additional capital, which may not be available to us on acceptable terms or at all. If we do not have sufficient funds, we will not be able to bring our product candidates to market and generate product revenue. 58 • collaborators have significant discretion in determining the efforts and resources that they will apply to these collaborations; • collaborators may not pursue development and commercialization of our product candidates or may elect not to continue or renew development or commercialization programs based on clinical trial results, changes in their strategic focus or available funding, or external factors such as an acquisition that diverts resources or creates competing priorities; • collaborators may delay clinical trials, provide insufficient funding for a clinical trial program, stop a clinical trial or abandon a product candidate, repeat or conduct new clinical trials or require a new formulation of a product candidate for clinical testing; • collaborators could independently develop, or develop with third parties, products that compete directly or indirectly with our products or product candidates if the collaborators believe that competitive products are more likely to be successfully developed or can be commercialized under terms that are more economically attractive; • a collaborator with marketing and distribution rights to one or more products may not commit sufficient resources to their marketing and distribution; • collaborators may not properly maintain or defend our intellectual property rights or may use our proprietary information in such a way as to invite litigation that could jeopardize or invalidate our proprietary information or expose us to potential litigation; • disputes may arise between us and the collaborators that result in the delay or termination of the research, development or commercialization of our product candidates or that result in costly litigation or arbitration that diverts management attention and resources; and • collaborations may be terminated and, if terminated, may result in a need for additional capital to pursue further development or commercialization of the applicable product candidates. Table of Contents We rely on third parties to conduct our clinical trials, and those third parties may not perform satisfactorily, including failing to meet deadlines for the completion of such trials. We do not independently conduct clinical trials of our product candidates. We rely on third parties, such as contract research organizations, clinical data management organizations, medical institutions and clinical investigators, to perform this function. Our reliance on these third parties for clinical development activities reduces our control over these activities but does not relieve us of our responsibilities. We remain responsible for ensuring that each of our clinical trials is conducted in accordance with the general investigational plan and protocols for the trial. Moreover, the FDA and other international regulatory agencies require us to comply with standards, commonly referred to as good clinical practices, for conducting, recording and reporting the results of clinical trials to assure that adverse event data are reported within required timeframes, that data and reported results are credible and accurate and that the rights, integrity and confidentiality of patients in clinical trials are protected. Furthermore, these third parties may also have relationships with other entities, some of which may be our competitors. If these third parties do not successfully carry out their contractual duties, meet expected deadlines or conduct our clinical trials in accordance with regulatory requirements or our stated protocols, we will not be able to obtain, or may be delayed in obtaining, regulatory approvals for our product candidates and will not be able to, or may be delayed in our efforts to, successfully commercialize our product candidates. We also rely on other third parties to store and distribute supplies for our clinical trials. Any performance failure on the part of our existing or future distributors could delay clinical development or regulatory approval of our product candidates or commercialization of our products or cause us to incur additional costs, producing additional losses and depriving us of potential product revenue. Risks Related to the Manufacturing of Our Product Candidates We have limited experience in manufacturing our product candidates. We will need to upgrade and expand our manufacturing facility and augment our manufacturing personnel and processes in order to meet our business plans. If we fail to do so, we may not have sufficient drug product to meet our clinical development and commercial requirements. We have a manufacturing facility located at our corporate headquarters in Cambridge, Massachusetts. We manufacture drug substance at this facility that we use for research and development purposes and for clinical trials of our product candidates. We do not have experience in manufacturing products at a commercial scale. Our current facility may not be sufficient to permit manufacturing of our product candidates for Phase 3 clinical trials or commercial sale. In order to meet our business plan, which contemplates our internally manufacturing drug substance for most of our clinical trials and, over the long-term, for a significant portion of our commercial requirements, we will need to upgrade and expand our manufacturing facilities, add manufacturing personnel and ensure that validated processes are consistently implemented in our facilities. The upgrade and expansion of our facilities will require additional regulatory approvals. In addition, it will be costly and time-consuming to expand our facilities and recruit necessary additional personnel. If we are unable to expand our manufacturing facilities in compliance with regulatory requirements or to hire additional necessary manufacturing personnel, we may encounter delays or additional costs in achieving our research, development and commercialization objectives, including in obtaining regulatory approvals of our product candidates, which could materially damage our business and financial position. If our manufacturing facility is damaged or destroyed or production at this facility is otherwise interrupted, our business and prospects would be negatively affected. If the manufacturing facility at our corporate headquarters or the equipment in it is damaged or destroyed, we may not be able to quickly or economically replace our manufacturing capacity or replace it at all. In the event of a temporary or protracted loss of this facility or equipment, we might not be able to transfer manufacturing to a third party. Even if we could transfer manufacturing to a third party, the shift would likely be expensive and time-consuming, particularly since the new facility would need to comply with the necessary 59 Table of Contents regulatory requirements and we would need FDA approval before selling any products manufactured at that facility. Such an event could delay our clinical trials or, if our product candidates are approved by the FDA, reduce our product sales. Currently, we maintain insurance coverage against damage to our property and equipment and to cover business interruption and research and development restoration expenses. If we have underestimated our insurance needs with respect to an interruption in our clinical manufacturing of our product candidates, we may not be able to cover our losses. Any other interruption of production at our manufacturing facility also could damage our business. For example, in 2009, we experienced a viral contamination at this facility that required that we shut the facility entirely for decontamination. Because of this contamination, the FDA placed a partial clinical hold on our IND for MM-121 until we submitted supporting documentation to the FDA regarding our decontamination procedures. Although we were able to resolve this issue, with the FDA lifting the partial clinical hold in April 2010, other companies have experienced similar contamination problems, and we could experience a similar problem in the future that is more difficult to resolve and could lead to a clinical hold. We expect to continue to contract with third parties for at least some aspects of the production of our product candidates for clinical trials and for our products if they are approved for marketing. This increases the risk that we will not have sufficient quantities of our product candidates or products or such quantities at an acceptable cost, which could delay, prevent or impair our development or commercialization efforts. We currently rely on third-party manufacturers for some aspects of the production of our product candidates for preclinical testing and clinical trials, including fill-finish and labeling activities. In addition, while we believe that our existing manufacturing facility, or additional facilities that we will be able to build, will be sufficient to meet our requirements for manufacturing a significant portion of drug substance for our research and development activities, we may need to rely on third-party manufacturers for some of these requirements, particularly later stage clinical trials of our antibody product candidates, and, at least in the near term, for commercial supply of any product candidates for which we obtain marketing approval. We do not have any agreements with third-party manufacturers for the clinical or commercial supply of any of our product candidates, and we may be unable to conclude such agreements or to do so on acceptable terms. Reliance on third-party manufacturers entails additional risks, including: Third-party manufacturers may not be able to comply with cGMP, QSR or similar regulatory requirements outside the United States. Our failure, or the failure of our third-party manufacturers, to comply with applicable regulations could result in sanctions being imposed on us, including fines, injunctions, civil penalties, delays, suspension or withdrawal of approvals, license revocation, seizures or recalls of products, operating restrictions and criminal prosecutions, any of which could significantly and adversely affect supplies of our products. Any products that we may develop may compete with other product candidates and products for access to manufacturing facilities. Because there are a limited number of manufacturers that operate under cGMP or QSR regulations and that might be capable of manufacturing for us, we may not have access to such manufacturers. We currently rely on single suppliers for the resins, media and filters that we use for our manufacturing process. We purchase these materials from our suppliers on a purchase order basis and do not have long-term supply agreements in place. Any performance failure or refusal to supply on the part of our existing or future 60 • reliance on the third party for regulatory compliance and quality assurance; • the possible breach of the manufacturing agreement by the third party; and • the possible termination or nonrenewal of the agreement by the third party at a time that is costly or inconvenient for us. Table of Contents suppliers could delay clinical development, marketing approval or commercialization of our products. If our current suppliers cannot perform as agreed, we may be required to replace one or more of these suppliers. Although we believe that there may be a number of potential long-term replacements to each supplier, we may incur added costs and delays in identifying and qualifying any such replacements. We likely will rely upon third-party manufacturers to provide us with necessary reagents and instruments to develop, test and manufacture our in vitro companion diagnostics. Currently, many reagents are marketed as Research Use Only, or RUO, products under FDA regulations. In June 2011, the FDA issued a draft guidance that outlined the FDA’s intention to impose additional restrictions on the provision of RUO products. If this guidance is finalized as drafted, we may experience difficulty securing the reagents that we need. Our potential future dependence upon others for the manufacture of our product candidates may adversely affect our future profit margins and our ability to commercialize any products that receive regulatory approval on a timely and competitive basis. We rely on third parties to perform various tasks related to the manufacturing of our product candidates. Compliance by such third parties with regulations of the FDA or other regulatory bodies cannot be assured, which could adversely impact our clinical trials. A former fill-finish third-party contractor that we used to fill and package both MM-121 and MM-111 experienced FDA inspection issues with its quality control processes that resulted in a formal warning letter from the FDA. Following a review by Sanofi and us, some MM-121 was pulled from clinical trial sites and replaced with MM-121 that was filled by a different contractor. This restocking resulted in a few patients missing one or two doses of MM-121. The MM-111 that was being used in our clinical trials was also filled and packaged by this same contractor. The FDA inquired about the effect of this contractor’s quality issues on MM-111 clinical trial materials. Following our response to the FDA’s inquiry, the FDA requested in January 2012 that we obtain new consents from any patients enrolled in our ongoing Phase 1 clinical trials of MM-111 in connection with continued use in these trials of MM-111 material filled and packaged by this contractor. In addition, the FDA placed a partial clinical hold on these ongoing clinical trials, which restricted our ability to enroll new patients in these trials, until MM-111 material filled and packaged by a new third-party contractor that we engaged was available. This restocking is complete and resulted in a short delay in the dosing of a few patients without any patients missing a dose. Although we have addressed the concerns of the FDA with respect to the clinical trial material filled and packaged by our former third-party contractor, it is possible that we could experience similar issues with other contractors. Risks Related to Our Intellectual Property If we fail to fulfill our obligations under our intellectual property licenses with third parties, we could lose license rights that are important to our business. We are a party to a number of intellectual property license agreements with third parties, including with respect to MM-121, MM-111, MM-302, MM-151 and MM-141, and expect to enter into additional license agreements in the future. Our existing license agreements impose, and we expect that our future license agreements will impose, various diligence, milestone payment, royalty, insurance and other obligations on us. If we fail to comply with these obligations, our licensors may have the right to terminate these agreements, in which event we might not be able to develop and market any product that is covered by these agreements. Termination of these licenses or reduction or elimination of our licensed rights may result in our having to negotiate new or reinstated licenses with less favorable terms. The occurrence of such events could materially harm our business. 61 Table of Contents If we are unable to obtain and maintain patent protection for our technology and products, or if our licensors are unable to obtain and maintain patent protection for the technology or products that we license from them, our competitors could develop and commercialize technology and products similar or identical to ours, and our ability to successfully commercialize our technology and products may be adversely affected. Our success depends in large part on our and our licensors’ ability to obtain and maintain patent protection in the United States and other countries with respect to our proprietary technology and products. In some circumstances, we may not have the right to control the preparation, filing and prosecution of patent applications, or to maintain the patents, covering technology or products that we license from third parties. Therefore, we cannot be certain that these patents and applications will be prosecuted and enforced in a manner consistent with the best interests of our business. In addition, if third parties who license patents to us fail to maintain such patents, or lose rights to those patents, the rights we have licensed may be reduced or eliminated. We have sought to protect our proprietary position by filing patent applications in the United States and abroad related to our novel technologies and products that are important to our business. This process is expensive and time-consuming, and we may not be able to file and prosecute all necessary or desirable patent applications at a reasonable cost or in a timely manner. It is also possible that we will fail to identify patentable aspects of our research and development output before it is too late to obtain patent protection. Under our license and collaboration agreement with Sanofi, we are obligated, at our expense, to use commercially reasonable efforts to file and prosecute patent applications, and maintain patents, covering MM-121 in specified jurisdictions, and these patent rights are licensed to Sanofi. The patent position of biotechnology and pharmaceutical companies generally is highly uncertain, involves complex legal and factual questions and has in recent years been the subject of much litigation. As a result, the issuance, scope, validity, enforceability and commercial value of our and our licensors’ patent rights are highly uncertain. Our and our licensors’ pending and future patent applications may not result in patents being issued which protect our technology or products or which effectively prevent others from commercializing competitive technologies and products. Changes in either the patent laws or interpretation of the patent laws in the United States and other countries may diminish the value of our patents or narrow the scope of our patent protection. The laws of foreign countries may not protect our rights to the same extent as the laws of the United States. Publications of discoveries in the scientific literature often lag behind the actual discoveries, and patent applications in the United States and other jurisdictions are typically not published until 18 months after filing, or in some cases not at all. Therefore, we cannot be certain that we or our licensors were the first to make the inventions claimed in our owned and licensed patents or pending patent applications, or that we or our licensors were the first to file for patent protection of such inventions. Assuming the other requirements for patentability are met, the first to file a patent application is entitled to the patent. Under the America Invents Act enacted in 2011, the United States moved to this first to file system in early 2013 from the previous system under which the first to make the claimed invention was entitled to the patent. We may become involved in opposition, interference or derivation proceedings challenging our patent rights or the patent rights of others. An adverse determination in any such proceeding could reduce the scope of, or invalidate, our patent rights, allow third parties to commercialize our technology or products and compete directly with us, without payment to us, or result in our inability to manufacture or commercialize products without infringing third-party patent rights. Even if our owned and licensed patent applications issue as patents, they may not issue in a form that will provide us with any meaningful protection, prevent competitors from competing with us or otherwise provide us with any competitive advantage. Our competitors may be able to circumvent our owned or licensed patents by developing similar or alternative technologies or products in a non-infringing manner. The issuance of a patent is not conclusive as to its scope, validity or enforceability, and our owned and licensed patents may be challenged in the courts or patent offices in the United States and abroad. Such challenges may result in patent claims being narrowed, invalidated or held unenforceable, which could limit our ability to stop or prevent us from stopping others from using or commercializing similar or identical technology and products, or limit the duration of the patent protection of our technology and products. Given the amount of time required for the development, testing 62 Table of Contents and regulatory review of new product candidates, patents protecting such candidates might expire before or shortly after such candidates are commercialized. As a result, our owned and licensed patent portfolio may not provide us with sufficient rights to exclude others from commercializing products similar or identical to ours. We may become involved in lawsuits to protect or enforce our patents, which could be expensive, time-consuming and unsuccessful. Competitors may infringe our patents. To counter infringement or unauthorized use, we may be required to initiate infringement lawsuits, which can be expensive and time-consuming. In addition, in an infringement proceeding, a court may decide that a patent of ours is invalid or unenforceable, or may refuse to stop the other party from using the technology at issue on the grounds that our patents do not cover the technology in question. An adverse result in any litigation proceeding could put one or more of our patents at risk of being invalidated or interpreted narrowly. Furthermore, because of the substantial amount of discovery required in connection with intellectual property litigation, there is a risk that some of our confidential information could be compromised by disclosure during this type of litigation. Third parties may initiate legal proceedings alleging that we are infringing their intellectual property rights, the outcome of which would be uncertain and could have a material adverse effect on the success of our business. Our commercial success depends upon our ability and the ability of our collaborators to develop, manufacture, market and sell our product candidates and use our proprietary technologies without infringing the enforceable proprietary rights of third parties. We may become party to, or threatened with, future adversarial proceedings or litigation regarding intellectual property rights with respect to our products and technology, including interference or derivation proceedings before the U.S. Patent and Trademark Office. Third parties may assert infringement claims against us based on existing patents or patents that may be granted in the future. If we are found to infringe a third party’s intellectual property rights, we could be required to obtain a license from such third party to continue developing and marketing our products and technology. However, we may not be able to obtain any required license on commercially reasonable terms or at all. Even if we were able to obtain a license, it could be non-exclusive, thereby giving our competitors access to the same technologies licensed to us. We could be forced, including by court order, to cease commercializing the infringing technology or product. In addition, we could be found liable for monetary damages. A finding of infringement could prevent us from commercializing our product candidates or force us to cease some of our business operations, which could materially harm our business. Claims that we have misappropriated the confidential information or trade secrets of third parties can have a similar negative impact on our business. For example, we are aware of issued U.S. patents held by Genentech broadly covering methods of producing certain types of recombinant antibodies and related compositions for antibody production that may be relevant to our development and commercialization of MM-121, MM-151 and MM-141. These patents expire in 2018. Genentech has asserted infringement claims against several pharmaceutical and biotechnology companies based on these patents. If these patents were determined to be valid and cover our product candidates, we would need to obtain a license to the patented technology, which may cause us to incur licensing related costs. However, a license to these patents may not be available on commercially reasonable terms, or at all. Our failure to obtain a license to these patents could delay or prevent our development and commercialization of our product candidates in the United States. We may be subject to claims that our employees have wrongfully used or disclosed alleged trade secrets of their former employers. Many of our employees were previously employed at universities or other biotechnology or pharmaceutical companies, including our competitors or potential competitors. Although we try to ensure that our employees do not use the proprietary information or know-how of others in their work for us, we may be subject to claims that we or these employees have used or disclosed intellectual property, including trade secrets or other proprietary 63 Table of Contents information, of any such employee’s former employer. Litigation may be necessary to defend against these claims. If we fail in defending any such claims, in addition to paying monetary damages, we may lose valuable intellectual property rights or personnel. Even if we are successful in defending against such claims, litigation could result in substantial costs and be a distraction to management. We are currently engaged in two ongoing opposition proceedings to European patents in the European Patent Office. If we are not successful in these proceedings, we may not be able to commercialize some of our product candidates without infringing patents held by third parties. We are currently engaged in two ongoing opposition proceedings to European patents in the European Patent Office to narrow or invalidate the claims of patents owned by third parties. For more information, see Part I, Item 3. Legal Proceedings in this Annual Report on Form 10-K. We have obtained favorable interim decisions in both oppositions, although both decisions are now under appeal. The ultimate outcome of these oppositions remains uncertain. If we are not ultimately successful in these proceedings, and the issued claims of the patents we are opposing were determined to be valid and construed to cover MM-121, MM-111 or MM-141, we may not be able to commercialize MM-121, MM-111 or MM-141 in some or all European countries without infringing such patents. If we infringe a valid claim of these patents, we would need to obtain a license to the patented technology, which may cause us to incur licensing-related costs. For example, under our license and collaboration agreement with Sanofi, we are obligated to pay all licensing costs for specified third-party patent rights that we or Sanofi may in the future license for the development and commercialization of MM-121, including the patent rights that are the subject of one of these opposition proceedings. However, a license to the patents that are the subject of these opposition proceedings may not be available on commercially reasonable terms or at all. As a result, we could be liable for monetary damages or we may be forced to delay, suspend, forego or cease commercializing these product candidates in some or all countries in Europe if we were found to infringe a valid claim of these patents. In addition, even if we are ultimately successful in these European opposition proceedings, such results would be limited to our activities in Europe. We are also aware of issued or pending counterparts to one of these European patents in the United States that may be relevant to our development and commercialization of MM-121. If these patents were determined to be valid and construed to cover MM-121, our development and commercialization of MM-121 in the United States could be delayed or prevented. Intellectual property litigation could cause us to spend substantial resources and distract our personnel from their normal responsibilities. Even if resolved in our favor, litigation or other legal proceedings relating to intellectual property claims may cause us to incur significant expenses, and could distract our technical and management personnel from their normal responsibilities. In addition, there could be public announcements of the results of hearings, motions or other interim proceedings or developments and if securities analysts or investors perceive these results to be negative, it could have a substantial adverse effect on the price of our common stock. Such litigation or proceedings could substantially increase our operating losses and reduce our resources available for development activities. We may not have sufficient financial or other resources to adequately conduct such litigation or proceedings. Some of our competitors may be able to sustain the costs of such litigation or proceedings more effectively than we can because of their substantially greater financial resources. Uncertainties resulting from the initiation and continuation of patent litigation or other proceedings could have a material adverse effect on our ability to compete in the marketplace. If we are unable to protect the confidentiality of our trade secrets, our business and competitive position would be harmed. In addition to our patented technology and products, we rely on trade secrets, including unpatented know-how, technology and other proprietary information, to maintain our competitive position. We seek to protect these trade secrets, in part, by entering into non-disclosure and confidentiality agreements with parties that have 64 Table of Contents access to them, such as our employees, corporate collaborators, outside scientific collaborators, sponsored researchers, contract manufacturers, consultants, advisors and other third parties. We also enter into confidentiality and invention or patent assignment agreements with our employees and consultants. In addition, any of these parties may breach the agreements and disclose our proprietary information, and we may not be able to obtain adequate remedies for such breaches. Enforcing a claim that a party illegally disclosed or misappropriated a trade secret is difficult, expensive and time-consuming, and the outcome is unpredictable. In addition, some courts inside and outside the United States are less willing or unwilling to protect trade secrets. If any of our trade secrets were to be lawfully obtained or independently developed by a competitor, we would have no right to prevent them from using that technology or information to compete with us. If any of our trade secrets were to be disclosed to or independently developed by a competitor, our competitive position would be harmed. Risks Related to Regulatory Approval of Our Product Candidates If we are not able to obtain required regulatory approvals, we will not be able to commercialize our product candidates, and our ability to generate revenue will be materially impaired. Our product candidates, including our six most advanced product candidates, and the activities associated with their development and commercialization, including their design, testing, manufacture, safety, efficacy, recordkeeping, labeling, storage, approval, advertising, promotion, sale and distribution, import, export, sampling and marketing are subject to comprehensive regulation by the FDA and other regulatory agencies in the United States and by comparable authorities in other countries. Failure to obtain regulatory approval for a product candidate will prevent us from commercializing the product candidate. We have not received regulatory approval to market any of our product candidates in any jurisdiction. We have only limited experience in filing and supporting the applications necessary to gain regulatory approvals and expect to rely on third-party contract research organizations to assist us in this process. Securing regulatory approval requires the submission of extensive preclinical and clinical data and supporting information to the FDA and other regulatory agencies for each therapeutic indication to establish the product candidate’s safety and efficacy. Securing regulatory approval also requires the submission of information about the product manufacturing process to, and inspection of manufacturing facilities by, the FDA or other regulatory agencies. Our product candidates may not be effective, may be only moderately effective or may prove to have undesirable or unintended side effects, toxicities or other characteristics that may preclude our obtaining regulatory approval or prevent or limit commercial use. The process of obtaining regulatory approvals is expensive, may take many years if additional clinical trials are required, if approval is obtained at all, and can vary substantially based on a variety of factors, including the type, complexity and novelty of the product candidates involved. Changes in regulatory approval policies during the development period, changes in or the enactment of additional statutes or regulations, changes in regulatory review for each submitted product application or approval of other products for the same indication may cause delays in the approval or rejection of an application. Regulatory agencies have substantial discretion in the approval process and may refuse to accept any application or may decide that our data is insufficient for approval and require additional preclinical, clinical or other studies. In addition, varying interpretations of the data obtained from preclinical and clinical testing could delay, limit or prevent regulatory approval of a product candidate. Any regulatory approval we ultimately obtain may be limited or subject to restrictions or post-approval commitments that render the approved product not commercially viable. If we pursue development of a companion diagnostic to identify patients who are likely to benefit from a therapeutic product, failure to obtain approval for the diagnostic may prevent or delay approval of the therapeutic product. We are attempting to develop companion diagnostics to identify patients who are likely to benefit from our therapeutic product candidates. All of our companion diagnostic candidates are in preclinical development or clinical feasibility testing. We have very limited experience in the development of diagnostics and, even with the help of third parties with greater experience, may fail to obtain the required diagnostic product marketing approval, which could prevent or delay approval of the therapeutic product. 65 Table of Contents In July 2011, the FDA issued draft guidance that stated that if safe and effective use of a therapeutic depends on an in vitro diagnostic, then the FDA generally will not approve the therapeutic unless the FDA approves or clears this “ in vitro companion diagnostic device” at the same time that the FDA approves the therapeutic. The approval or clearance of the in vitro diagnostic most likely will occur through the FDA’s Center for Devices and Radiological Health Office of In Vitro Diagnostics and Radiological Health. It is unclear whether the FDA will finalize this guidance in its current format. Even if the FDA does finalize the guidance in its current format, it is unclear how it will interpret the guidance. Even with the issuance of the draft guidance, the FDA’s expectations for in vitro companion diagnostics remain unclear in some respects. The FDA’s developing expectations will affect our in vitro companion diagnostics. In particular, the FDA may limit our ability to use retrospective data, otherwise disagree with our approaches to trial design, biomarker qualification, clinical and analytical validity and clinical utility, or make us repeat aspects of the trial or initiate new trials. Because our companion diagnostic candidates are at an early stage of development, we cannot yet know what the FDA will require for any of these tests. For four of our six most advanced product candidates, MM-121, MM-111, MM-151 and MM-141, we are attempting to develop an in vitro companion diagnostic that will help identify patients likely to benefit from the therapy. Whether the FDA will consider these in vitro diagnostics to be “ in vitro companion diagnostic devices” that require simultaneous approval or clearance with the therapeutics under the draft guidance will depend on whether the FDA views the diagnostics to be essential to the safety and efficacy of these therapeutics. For our two other most advanced product candidates, MM-398 and MM-302, although we are also investigating possible in vitro companion diagnostics, we are currently developing in vivo companion diagnostics in the form of imaging agents that may help identify patients likely to benefit from the therapy. Imaging agents are regulated as drugs by the FDA’s Center for Drug Evaluation and Research and, as such, are generally subject to the regulatory requirements applicable to other new drug candidates. Although the FDA has not issued guidance with respect to the simultaneous approval of in vivo diagnostics and therapeutics, it is possible that the FDA will apply a standard similar to that for in vitro diagnostics. Based on the FDA’s past practice with companion diagnostics, if we are successful in developing a companion diagnostic for any of our six most advanced product candidates, we would expect that FDA approval of an in vitro companion diagnostic, and possibly an in vivo companion diagnostic, would be required for approval and subsequent commercialization of each such therapeutic product candidate. We are not aware of any currently available diagnostics that, if necessary, would otherwise allow us to proceed with the approval and subsequent commercialization of our product candidates despite a delay in or failure of our attempts to develop companion diagnostics. If we fail to maintain orphan drug exclusivity for MM-398 or MM-111, we will have to rely on other rights and protections for these product candidates. We have obtained orphan drug designation in the United States and orphan medicinal product designation in the European Union for MM-398 for the treatment of pancreatic cancer and have obtained orphan drug designation in the United States for MM-111 for the treatment of esophageal cancer and of gastric and gastroesophageal junction cancers. In the United States, under the Orphan Drug Act, the FDA may designate a product as an orphan drug if it is a drug intended to treat a rare disease or condition, which is generally defined as a patient population of fewer than 200,000 individuals in the United States. In the United States, the company that first obtains FDA approval for a designated orphan drug for the specified rare disease or condition receives orphan drug marketing exclusivity for that drug for a period of seven years. This orphan drug exclusivity prevents the FDA from approving another application, including a full NDA, to market the same drug for the same orphan indication, except in limited circumstances. For purposes of small molecule drugs, the FDA defines the term “same drug” to mean a drug that contains the same active molecule and that is intended for the same use as the approved orphan drug. Orphan drug exclusivity may be lost if the 66 Table of Contents FDA determines that the request for designation was materially defective or if the manufacturer is unable to assure sufficient quantity of the drug to meet the needs of patients with the rare disease or condition. Even if we obtain orphan drug exclusivity for a product, that exclusivity may not effectively protect the product from competition because different drugs can be approved for the same condition. Even after an orphan drug is approved, the FDA can subsequently approve the same drug for the same condition if the FDA concludes that the later drug is clinically superior in that it is shown to be safer, more effective or makes a major contribution to patient care. The EMA grants orphan medicinal product designation to promote the development of products that may offer therapeutic benefits for life-threatening or chronically debilitating conditions affecting not more than five in 10,000 people in the European Union. Orphan medicinal product designation from the EMA provides ten years of marketing exclusivity following drug approval, subject to reduction to six years if the designation criteria are no longer met. Our therapeutic product candidates for which we intend to seek approval as biological or drug products may face competition sooner than expected. With the enactment of the BPCIA as part of the Health Care and Education Reconciliation Act of 2010, or the Health Care Reform Law, an abbreviated pathway for the approval of biosimilar and interchangeable biological products was created. The abbreviated regulatory pathway establishes legal authority for the FDA to review and approve biosimilar biologics, including the possible designation of a biosimilar as “interchangeable” based on their similarity to existing brand product. Under the BPCIA, an application for a biosimilar product cannot be approved by the FDA until 12 years after the original branded product was approved under a BLA. The BPCIA is complex and is only beginning to be interpreted and implemented by the FDA. As a result, its ultimate impact, implementation and meaning is subject to uncertainty. While it is uncertain when any such processes may be fully adopted by the FDA, any such processes could have a material adverse effect on the future commercial prospects for our biological products. We believe that any of our products approved as a biological product under a BLA should qualify for the 12-year period of exclusivity. However: Moreover, the extent to which a biosimilar, once approved, will be substituted for any one of our reference products in a way that is similar to traditional generic substitution for non-biological products is not yet clear and will depend on a number of marketplace and regulatory factors that are still developing. In addition, a drug product approved under an NDA, such as MM-398 if it were to be approved, could face generic competition earlier than expected. The enactment of the Generic Drug User Fee Amendments of 2012 as part of the FDASIA established a user fee program that will generate hundreds of millions of dollars in funding for the FDA’s generic drug review program. Funding from the user fee program, along with performance goals that the FDA negotiated with the generic drug industry, could significantly decrease the timeframe for FDA review and approval of generic drug applications. 67 • a potential competitor could seek and obtain approval of its own BLA during our exclusivity period instead of seeking approval of a biosimilar version; and • the FDA could consider a particular product candidate, such as MM-302, which contains both drug and biological product components, to be a drug subject to review pursuant to an NDA, and therefore eligible for a significantly shorter marketing exclusivity period as provided under the Drug Price Competition and Patent Term Restoration Act of 1984. Table of Contents Failure to obtain regulatory approval in international jurisdictions would prevent us from marketing our products abroad. We intend to market our products both within and outside the United States. In particular, we plan to market and sell ourselves any products for which we receive marketing approval in the European Union, rather than relying on third parties for these capabilities. This may increase the risks described below with respect to our compliance with foreign regulations. In order to market and sell our products in the European Union and many other jurisdictions, we must obtain separate regulatory approvals and comply with numerous and varying regulatory requirements. The approval procedure varies among countries and can involve additional testing, including sometimes additional testing in children. The time required to obtain approval in foreign countries may differ substantially from that required to obtain FDA approval. The regulatory approval process outside the United States generally includes all of the risks associated with obtaining FDA approval. In addition, in many countries outside the United States, it is required that the product be approved for reimbursement before the product can be sold in that country. We may not obtain approvals from regulatory authorities outside the United States on a timely basis, if at all. Approval by the FDA does not ensure approval by regulatory authorities in other countries or jurisdictions, and approval by one regulatory authority outside the United States does not ensure approval by regulatory authorities in other countries or jurisdictions or by the FDA. We may not be able to file for regulatory approvals and may not receive necessary approvals to commercialize our products in any market. Any product for which we obtain marketing approval could be subject to restrictions or withdrawal from the market and we may be subject to penalties if we fail to comply with regulatory requirements or if we experience unanticipated problems with our products, when and if any of them are approved. Any product for which we obtain marketing approval, along with the manufacturing processes, post-approval clinical data, labeling, advertising and promotional activities for such product, will be subject to continual requirements of and review by the FDA and other regulatory authorities. These requirements include submissions of safety and other post-marketing information and reports, registration and listing requirements, cGMP or QSR requirements relating to quality control, quality assurance and corresponding maintenance of records and documents, requirements regarding the distribution of samples to physicians and recordkeeping. Even if regulatory approval of a product is granted, the approval may be subject to limitations on the indicated uses for which the product may be marketed or to the conditions of approval, or contain requirements for costly post-marketing testing and surveillance to monitor the safety or efficacy of the product. Later discovery of previously unknown problems with our products, manufacturers or manufacturing processes, or failure to comply with regulatory requirements, may result in actions such as: 68 • restrictions on such products, manufacturers or manufacturing processes; • restrictions on the marketing of a product; • restrictions on product distribution; • requirements to conduct post-marketing clinical trials; • warning or untitled letters; • withdrawal of the products from the market; • refusal to approve pending applications or supplements to approved applications that we submit; • recall of products; • fines, restitution or disgorgement of profits or revenue; • suspension or withdrawal of regulatory approvals; • refusal to permit the import or export of our products; • product seizure; or • injunctions or the imposition of civil or criminal penalties. Table of Contents The FDASIA provides the FDA with new inspection authorities. A drug or biologic will be considered adulterated, with possible resulting civil and criminal penalties, if the owner or operator of the establishment where it is made, processed, packed or held delays, denies, limits or refuses inspection. The FDASIA also replaces the biennial inspection schedule for drugs and biologics with a risk-based inspection schedule. The law grants the FDA authority to require a drug or biologics manufacturer to provide, in advance or instead of an inspection, and at the manufacturer’s expense, any records or other information that the agency may otherwise inspect at the facility. The FDASIA also permits the FDA to share inspection information with foreign governments under certain circumstances. The FDASIA is complex and has yet to be fully interpreted and implemented by the FDA. As a result, its ultimate impact, implementation and meaning are subject to uncertainty. The FDASIA also provides the FDA with additional authority to exercise against manufacturers of drugs or biologics that are not adhering to pediatric study requirements, which apply even if the manufacturer is not seeking to market the drug or biologic to pediatric patients. As of April 2013, the FDA must issue non-compliance letters to companies who do not meet the pediatric study requirements. Any company receiving a non-compliance letter would have an opportunity to respond, and the non-compliance letter and company response would become publicly available. Our relationships with customers and payors will be subject to applicable anti-kickback, fraud and abuse and other healthcare laws and regulations, which could expose us to criminal sanctions, civil penalties, contractual damages, reputational harm and diminished profits and future earnings. Healthcare providers, physicians and others play a primary role in the recommendation and prescription of any products for which we obtain marketing approval. Our future arrangements with third-party payors and customers may expose us to broadly applicable fraud and abuse and other healthcare laws and regulations that may constrain the business or financial arrangements and relationships through which we market, sell and distribute our products for which we obtain marketing approval. Restrictions under applicable federal and state healthcare laws and regulations include the following: 69 • the federal healthcare anti-kickback statute prohibits, among other things, persons from knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or reward either the referral of an individual for, or the purchase, order or recommendation of, any good or service, for which payment may be made under federal healthcare programs such as Medicare and Medicaid; • the federal False Claims Act imposes criminal and civil penalties, including civil whistleblower or qui tam actions, against individuals or entities for knowingly presenting, or causing to be presented, to the federal government, claims for payment that are false or fraudulent or making a false statement to avoid, decrease or conceal an obligation to pay money to the federal government; • the federal Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act, imposes criminal and civil liability for executing a scheme to defraud any healthcare benefit program and also imposes obligations, including mandatory contractual terms, with respect to safeguarding the privacy, security and transmission of individually identifiable health information; • the federal false statements statute prohibits knowingly and willfully falsifying, concealing or covering up a material fact or making any materially false statement in connection with the delivery of or payment for healthcare benefits, items or services; • the federal transparency requirements under the Health Care Reform Law requires manufacturers of drugs, devices, biologics and medical supplies to report to the Department of Health and Human Services information related to physician payments and other transfers of value and physician ownership and investment interests; and Table of Contents Efforts to ensure that our business arrangements with third parties will comply with applicable healthcare laws and regulations will involve substantial costs. It is possible that governmental authorities will conclude that our business practices may not comply with current or future statutes, regulations or case law involving applicable fraud and abuse or other healthcare laws and regulations. If our operations are found to be in violation of any of these laws or any other governmental regulations that may apply to us, we may be subject to significant civil, criminal and administrative penalties, damages, fines, exclusion from government funded healthcare programs, such as Medicare and Medicaid, and the curtailment or restructuring of our operations. If any of the physicians or other providers or entities with whom we expect to do business with are found to be not in compliance with applicable laws, they may be subject to criminal, civil or administrative sanctions, including exclusions from government funded healthcare programs. Recently enacted and future legislation may increase the difficulty and cost for us to obtain marketing approval of and commercialize our product candidates and affect the prices we may obtain. In the United States and some foreign jurisdictions, there have been a number of legislative and regulatory changes and proposed changes regarding the healthcare system that could prevent or delay marketing approval of our product candidates, restrict or regulate post-approval activities and affect our ability to profitably sell any products for which we obtain marketing approval. In the United States, the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, or the Medicare Modernization Act, changed the way Medicare covers and pays for pharmaceutical products. The legislation expanded Medicare coverage for drug purchases by the elderly and introduced a new reimbursement methodology based on average sales prices for physician administered drugs. In addition, this legislation provided authority for limiting the number of drugs that will be covered in any therapeutic class. Cost reduction initiatives and other provisions of this legislation could decrease the coverage and price that we receive for any approved products. While the Medicare Modernization Act applies only to drug benefits for Medicare beneficiaries, private payors often follow Medicare coverage policy and payment limitations in setting their own reimbursement rates. Therefore, any reduction in reimbursement that results from the Medicare Modernization Act may result in a similar reduction in payments from private payors. Moreover, in March 2010, President Obama signed into law the Health Care Reform Law, a sweeping law intended to broaden access to health insurance, reduce or constrain the growth of healthcare spending, enhance remedies against fraud and abuse, add new transparency requirements for health care and health insurance industries, impose new taxes and fees on the health industry and impose additional health policy reforms. Effective October 1, 2010, the Health Care Reform Law revises the definition of “average manufacturer price” for reporting purposes, which could increase the amount of Medicaid drug rebates to states. Further, the new law imposes a significant annual fee on companies that manufacture or import branded prescription drug products. Substantial new provisions affecting compliance have also been enacted, which may affect our business practices with health care practitioners. We will not know the full effects of the Health Care Reform Law until all applicable federal and state agencies have issued regulations or guidance under the new law. Although it is too early to determine the effect of the Health Care Reform Law, the new law appears likely to continue the pressure on pharmaceutical pricing, especially under the Medicare program, and may also increase our regulatory burdens and operating costs. 70 • analogous state laws and regulations, such as state anti-kickback and false claims laws, may apply to sales or marketing arrangements and claims involving healthcare items or services reimbursed by non-governmental third-party payors, including private insurers, and some state laws require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal government in addition to requiring manufacturers to report information related to payments to physicians and other health care providers or marketing expenditures. Table of Contents Most recently, on July 9, 2012, President Obama signed the FDASIA into law. The broad, sweeping law establishes new user fee programs and provides the FDA with new authority in the areas of drugs, biologics and medical devices. We are not certain what the full impact of these changes will be on our business, particularly as the FDA will need to publish regulations and issue guidances to implement the new legislation. We are not sure whether additional legislative changes will be enacted, or whether other FDA regulations, guidance or interpretations will be changed, or what the impact of such changes on the marketing approvals of our product candidates, if any, may be. In the area of companion diagnostics, FDA officials indicated in 2010 that the agency planned to issue two guidances in this area. The FDA issued one draft guidance in July 2011. The FDA has yet to issue a second draft guidance and may decide not to issue a second draft guidance. The FDA’s expected issuance of a final guidance, or issuance of additional draft guidance, could affect our development of in vitro companion diagnostics and the applicable regulatory requirements. In addition, increased scrutiny by Congress of the FDA’s approval process may significantly delay or prevent marketing approval, as well as subject us to more stringent product labeling and post-marketing testing and other requirements. Risks Related to Employee Matters and Managing Growth Our future success depends on our ability to retain our chief executive officer and other key executives and to attract, retain and motivate qualified personnel. We are highly dependent on Robert J. Mulroy, our President and Chief Executive Officer, and the other principal members of our executive and scientific teams. Although we have formal employment agreements with each of our executive officers, these agreements do not prevent our executives from terminating their employment with us at any time. We do not maintain “key person” insurance for any of our executives or other employees. The loss of the services of any of these persons could impede the achievement of our research, development and commercialization objectives. Recruiting and retaining qualified scientific, clinical, manufacturing and sales and marketing personnel will also be critical to our success. We may not be able to attract and retain these personnel on acceptable terms given the competition among numerous pharmaceutical and biotechnology companies for similar personnel. We also experience competition for the hiring of scientific and clinical personnel from universities and research institutions. In addition, we rely on consultants and advisors, including scientific and clinical advisors, to assist us in formulating our research and development and commercialization strategy. Our consultants and advisors may be employed by employers other than us and may have commitments under consulting or advisory contracts with other entities that may limit their availability to us. We expect to expand our development, manufacturing, regulatory and sales and marketing capabilities, and as a result, we may encounter difficulties in managing our growth, which could disrupt our operations. We expect to experience significant growth in the number of our employees and the scope of our operations, particularly in the areas of drug development, manufacturing, regulatory affairs and sales and marketing. To manage our anticipated future growth, we must continue to implement and improve our managerial, operational and financial systems, expand our facilities and continue to recruit and train additional qualified personnel. Due to our limited financial resources and the limited experience of our management team in managing a company with such anticipated growth, we may not be able to effectively manage the expansion of our operations or recruit and train additional qualified personnel. The physical expansion of our operations may lead to significant costs and may divert our management and business development resources. Any inability to manage growth could delay the execution of our business plans or disrupt our operations. 71 Table of Contents We have entered into and may continue to enter into or seek to enter into business combinations and acquisitions which may be difficult to integrate, disrupt our business, divert management attention or dilute stockholder value. As part of our business strategy, we may enter into business combinations and acquisitions. Although we acquired Hermes in October 2009, we have limited experience in making acquisitions. In addition, acquisitions are typically accompanied by a number of risks, including: If we are not successful in completing acquisitions that we may pursue in the future, we would be required to reevaluate our business strategy and we may have incurred substantial expenses and devoted significant management time and resources in seeking to complete the acquisitions. In addition, with future acquisitions, we could use substantial portions of our available cash as all or a portion of the purchase price. As we did for the acquisition of Hermes, we could also issue additional securities as consideration for these acquisitions, which could cause our stockholders to suffer significant dilution. Risks Related to Our Common Stock Our executive officers, directors and principal stockholders maintain the ability to significantly influence all matters submitted to stockholders for approval. Our executive officers, directors and stockholders who own more than 5% of our outstanding common stock, in the aggregate, beneficially own a large portion of our capital stock. As a result, if these stockholders were to choose to act together, they would be able to significantly influence all matters submitted to our stockholders for approval, as well as our management and affairs. For example, these persons, if they choose to act together, will significantly influence the election of directors and approval of any merger, consolidation or sale of all or substantially all of our assets. This concentration of voting power could allow, delay or prevent an acquisition of our company on terms that other stockholders may desire. Provisions in our corporate charter documents and under Delaware law could make an acquisition of us, which may be beneficial to our stockholders, more difficult and may prevent attempts by our stockholders to replace or remove our current management. Provisions in our corporate charter and our bylaws may discourage, delay or prevent a merger, acquisition or other change in control of us that stockholders may consider favorable, including transactions in which you might otherwise receive a premium for your shares. These provisions could also limit the price that investors might be willing to pay in the future for shares of our common stock, thereby depressing the market price of our common stock. In addition, these provisions may frustrate or prevent any attempts by our stockholders to replace or remove our current management by making it more difficult for stockholders to replace members of our board of directors. Because our board of directors is responsible for appointing the members of our management team, these provisions could in turn affect any attempt by our stockholders to replace current members of our management team. Among others, these provisions: 72 • the difficulty of integrating the operations and personnel of the acquired companies; • the potential disruption of our ongoing business and distraction of management; • potential unknown liabilities and expenses; • the failure to achieve the expected benefits of the combination or acquisition; • the maintenance of acceptable standards, controls, procedures and policies; and • the impairment of relationships with employees as a result of any integration of new management and other personnel. • allow the authorized number of our directors to be changed only by resolution of our board of directors; • establish advance notice requirements for stockholder proposals that can be acted on at stockholder meetings and nominations to our board of directors; Table of Contents Moreover, because we are incorporated in Delaware, we are governed by the provisions of Section 203 of the Delaware General Corporation Law, which prohibits a person who owns in excess of 15% of our outstanding voting stock from merging or combining with us for a period of three years after the date of the transaction in which the person acquired in excess of 15% of our outstanding voting stock, unless the merger or combination is approved in a prescribed manner. Further, the repurchase right under the convertible senior notes in connection with a fundamental change (as defined therein) and any increase in the conversion rate in connection with a make-whole fundamental change could also discourage a potential acquirer. Our stock price has been and may in the future be volatile, which could cause holders of our common stock to incur substantial losses. Our stock price has been and in the future may be subject to substantial price volatility. The stock market in general and the market for biotechnology companies in particular have experienced extreme volatility that has often been unrelated to the operating performance of particular companies. As a result of this volatility, our stockholders could incur substantial losses. The market price for our common stock may be influenced by many factors, including: Because we do not anticipate paying any cash dividends on our common stock in the foreseeable future, capital appreciation, if any, will be the sole source of gain for holders of our common stock. We have never declared or paid cash dividends on our common stock. We currently intend to retain all of our future earnings, if any, to finance the growth and development of our business. In addition, the terms of existing or any future debt agreements may preclude us from paying dividends. As a result, capital appreciation, if any, of our common stock will be the sole source of gain for holders of our common stock for the foreseeable future. 73 • require that stockholder actions must be effected at a duly called stockholder meeting and prohibit actions by our stockholders by written consent; • limit who may call stockholder meetings; • authorize our board of directors to issue preferred stock without stockholder approval, which could be used to institute a “poison pill” that would work to dilute the stock ownership of a potential hostile acquirer, effectively preventing acquisitions that have not been approved by our board of directors; and • require the approval of the holders of at least 75% of the votes that all our stockholders would be entitled to cast to amend or repeal certain provisions of our charter or bylaws. • the success of competitive products or technologies; • results of clinical trials of our product candidates or those of our competitors; • regulatory or legal developments in the United States and other countries; • developments or disputes concerning patents or other proprietary rights; • the recruitment or departure of key personnel; • variations in our financial results or those of companies that are perceived to be similar to us; • changes in the structure of healthcare payment systems; • market conditions in the pharmaceutical and biotechnology sectors and issuance of new or changed securities analysts’ reports or recommendations; • general economic, industry and market conditions; and • the other factors described in this “Risk Factors” section. Table of Contents We are an “emerging growth company” and our election to delay adoption of new or revised accounting standards applicable to public companies may result in our financial statements not being comparable to those of other public companies. As a result of this and other reduced disclosure requirements applicable to emerging growth companies, our common stock may be less attractive to investors. We are an “emerging growth company,” as defined in the JOBS Act, and may remain an emerging growth company for up to five years, until December 31, 2017, although if the market value of our common stock that is held by non-affiliates exceeds $700 million as of any June 30 before that time or if we have annual gross revenues of $1 billion or more in any fiscal year, we would cease to be an emerging growth company as of December 31 of the applicable year. For so long as we remain an emerging growth company, we are permitted and intend to rely on exemptions from certain reporting requirements that are applicable to other public companies that are not emerging growth companies. These exemptions include but are not limited to not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002, not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements, reduced disclosure obligations regarding executive compensation in our periodic reports and proxy statements, and exemptions from the requirements of holding a non-binding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. Among other provisions, the JOBS Act provides that an emerging growth company can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act of 1933, as amended, or the Securities Act, for complying with new or revised accounting standards. This allows an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to delay such adoption of new or revised accounting standards, and as a result, we may not comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for public companies that are not emerging growth companies. As a result of such election, our financial statements may not be comparable to the financial statements of other public companies. We cannot predict whether investors will find our common stock less attractive because we will rely on these exemptions. If some investors find our common stock less attractive as a result, there may be a less active trading market for our common stock and our stock price may be more volatile. Future sales of shares of our common stock, including by us or our directors and executive officers or shares issued upon the exercise of currently outstanding options and warrants, or upon conversion of outstanding convertible notes, could cause the market price of our common stock to drop significantly, even if our business is doing well. A substantial portion of our outstanding common stock can be traded without restriction at any time. Some of these shares are currently restricted as a result of securities laws, but will be able to be sold, subject to any applicable volume limitations under federal securities laws with respect to affiliate sales, in the near future. As such, sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the perception in the market that the holders of a large number of shares intend to sell shares, by us or others, could reduce the market price of our common stock. In addition, we have a significant number of shares that are subject to outstanding options and warrants, and we may issue shares of our common stock upon conversion of outstanding convertible notes. The exercise of these options and warrants or the issuance of shares of our common stock upon conversion of the notes and the subsequent sale of the underlying common stock could cause a further decline in our stock price. These sales also might make it difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate. We cannot predict the size of future issuances or the effect, if any, that any future issuances may have on the market price for our common stock. Item 1B. Unresolved Staff Comments None. 74 Table of Contents Item 2. Properties Our principal facilities consist of approximately 122,000 square feet of research, manufacturing and office space located at One Kendall Square in Cambridge, Massachusetts. The lease on all this space expires in June 2019. We retain an option to renew the lease on all of our current space for an additional period of either one or five years. The facilities of our Silver Creek subsidiary consist of approximately 1,878 square feet of research and office space located in San Francisco, California. The lease on this space expires in June 2014, subject to an option to extend the lease for six additional months. Item 3. Legal Proceedings We are currently engaged in two ongoing opposition proceedings to European patents in the European Patent Office to narrow or invalidate the claims of patents owned by third parties. We have obtained favorable interim decisions in both oppositions, although both decisions are now under appeal. The ultimate outcome of these oppositions remains uncertain. We filed our notice of opposition in the first proceeding, opposing a patent (EP 0896586) held by Genentech in July 2007 on the grounds of added matter, insufficient disclosure, lack of novelty and lack of inventive step. Amgen Inc. and U3 Pharma GmbH also opposed the Genentech patent. If the issued claims of the Genentech patent were determined to be valid and construed to cover MM-121, MM-111 or MM-141, our development and commercialization of these product candidates in Europe could be delayed or prevented. In August 2009, the European Patent Office issued a written decision rejecting several sets of Genentech’s claims and upholding the patent solely on the basis of a further set of claims that we believe will not restrict the development or commercialization of MM-121, MM-111 or MM-141. All parties have appealed this decision. Pending the outcome of the appeal proceedings, the original issued claims of the Genentech patent remain in effect. Each party has submitted written statements regarding the appeal to the European Patent Office. Oral proceedings for the appeal are scheduled for May 2014. We filed our notice of opposition in the second proceeding, opposing a patent (EP 1187634) held by Zensun (Shanghai) Science and Technology Ltd., or Zensun, in September 2008 on the grounds of added matter, insufficient disclosure, lack of novelty and lack of inventive step. If the issued claims of the Zensun patent were determined to be valid and construed to cover MM-111, our development and commercialization of MM-111 in Europe could be delayed or prevented. In August 2010, the European Patent Office issued a written decision revoking Zensun’s patent. Zensun has appealed this decision. Pending the outcome of this appeal, the original issued claims of the Zensun patent remain in effect. Each party has submitted written statements regarding the appeal to the European Patent Office. No date has been set for a hearing for the appeal. We are not currently a party to any other material legal proceedings. Item 4. Mine Safety Disclosures Not applicable. 75 Table of Contents PART II Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities Our common stock has been publicly traded on the NASDAQ Global Market since March 29, 2012 under the symbol “MACK”. Prior to that time, there was no public market for our common stock. As a result, the following table sets forth, for the quarterly periods indicated, the high and low sales prices of our common stock as reported on the NASDAQ Global Market for each quarter in the years ended December 31, 2012 and 2013. Holders As of February 28, 2014, there were approximately 203 holders of record of our common stock. This number does not include beneficial owners whose shares are held by nominees in street name. Dividends We have never declared or paid cash dividends on our common stock, and we do not expect to pay any cash dividends on our common stock in the foreseeable future. 76 High Low Year ended December 31, 2012 First quarter (beginning March 29, 2012) $ 6.50 $ 5.81 Second Quarter $ 9.00 $ 5.66 Third Quarter $ 11.11 $ 7.00 Fourth Quarter $ 9.40 $ 5.91 Year ended December 31, 2013 First Quarter $ 6.69 $ 5.90 Second Quarter $ 6.76 $ 4.06 Third Quarter $ 7.09 $ 3.26 Fourth Quarter $ 5.41 $ 2.05 Table of Contents Corporate Performance Graph The following performance graph and related information shall not be deemed to be “soliciting material” or to be “filed” with the SEC for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, nor shall such information be incorporated by reference into any future filing under the Exchange Act or Securities Act, except to the extent that we specifically incorporate it by reference into such filing. The following graph compares the performance of our common stock to the NASDAQ Composite Index and to the NASDAQ Biotechnology Index from March 29, 2012 (the first date that shares of our common stock were publicly traded) through December 31, 2013. The comparison assumes $100 was invested after the market closed on March 29, 2012 in our common stock and in each of the foregoing indices, and it assumes reinvestment of dividends, if any. The stock price performance included in this graph is not necessarily indicative of future stock price performance. COMPARISON CUMULATIVE TOTAL RETURN Among the NASDAQ Composite Index, the NASDAQ Biotechnology Index and Merrimack Pharmaceuticals, Inc. 77 Table of Contents Item 6. Selected Financial Data You should read the following selected consolidated financial data together with our consolidated financial statements and the related notes appearing at the end of this Annual Report on Form 10-K and the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of this Annual Report on Form 10-K. We have derived the consolidated statements of comprehensive loss data for the years ended December 31, 2013, 2012 and 2011 and the consolidated balance sheet data as of December 31, 2013 and 2012 from our audited consolidated financial statements included in this Annual Report on Form 10-K. We have derived the consolidated statements of comprehensive loss data for the years ended December 31, 2010 and 2009 and the consolidated balance sheet data as of December 31, 2011, 2010 and 2009 from our audited consolidated financial statements not included in this Annual Report on Form 10-K. Our historical results for any prior period are not necessarily indicative of results to be expected in any future period. 78 Years ended December 31, (in thousands, except per share amounts) 2013 (1) 2012 (1) 2011 (1) 2010 (1) 2009 (2) Consolidated statements of comprehensive loss data Collaboration revenues $ 47,786 $ 48,921 $ 34,215 $ 20,305 $ 2,148 Operating expenses: Research and development 147,139 125,858 100,630 58,278 37,658 General and administrative 21,187 15,805 14,454 11,381 12,178 Contingent consideration — — — (178 ) — Total operating expenses 168,326 141,663 115,084 69,481 49,836 Loss from operations (120,540 ) (92,742 ) (80,869 ) (49,176 ) (47,688 ) Other income and expenses: Interest income 166 184 56 74 81 Interest expense (3) (10,938 ) (553 ) (13 ) (3,726 ) (4,909 ) Other, net 627 1,357 1,150 2,669 41 Net loss before income taxes (130,685 ) (91,754 ) (79,676 ) (50,159 ) (52,475 ) Benefit from income taxes — — — — 3,402 Net loss (130,685 ) (91,754 ) (79,676 ) (50,159 ) (49,073 ) Less net income (loss) attributable to non-controlling interest 240 (477 ) (453 ) (55 ) — Net loss attributable to Merrimack Pharmaceuticals, Inc. (130,925 ) (91,277 ) (79,223 ) (50,104 ) (49,073 ) Net loss per share available to common stockholders—basic and diluted (4) ($ 1.32 ) $ (1.28 ) $ (7.67 ) $ (5.57 ) $ (7.28 ) Weighted-average common shares used in computing net loss per share available to common stockholders—basic and diluted (5) 98,919 72,831 11,343 10,994 7,387 (1) In August 2010, and thereafter, we acquired a controlling interest in and consolidated Silver Creek. (2) In October 2009, we acquired Hermes. (3) In July 2013, we issued $125.0 million aggregate principal amount of 4.50% convertible senior notes due 2020 in an underwritten public offering. In November and December 2012, we borrowed an aggregate principal amount of $40.0 million under our Loan Agreement with Hercules. In October 2010, we reissued Series F convertible preferred stock, or Series F preferred stock, and recorded Series F preferred stock proceeds received in advance of the reissuance as a short-term liability and recognized noncash imputed interest expense for financial statement purposes for the years ended December 31, 2010 and 2009. Upon completion of the reissuance of Series F preferred stock in October 2010, the Series F preferred stock liability was relieved and we recorded the investment as convertible preferred stock and the accrued noncash interest expense as additional paid-in capital. Table of Contents 79 (4) The numerator in the calculation of net loss per share available to common stockholders—basic and diluted includes unaccreted dividends on our convertible preferred stock. (5) In April 2012, we closed our IPO, which resulted in the sale of approximately 15.0 million shares of common stock and the conversion of all shares of outstanding convertible preferred stock into approximately 66.3 million shares of common stock. In July 2013, we closed an underwritten public offering of common stock, which resulted in the sale of approximately 5.75 million shares of common stock. As of December 31, (in thousands) 2013 2012 (1) 2011 2010 2009 Consolidated balance sheet data Cash and cash equivalents (2) $ 65,086 $ 37,714 $ 50,454 $ 30,713 $ 58,387 Available-for-sale securities (2) 90,116 72,238 — — — Total assets 192,417 148,974 85,299 57,577 82,156 Loans payable 39,097 39,855 — — — Capital lease obligations — — 48 491 1,355 Derivative liability — 196 — — — 4.50% convertible senior notes (2) 72,578 — — — — Deferred revenues 75,475 80,464 85,745 73,782 60,937 Convertible preferred stock warrants — — 1,516 652 578 Total liabilities 235,545 155,394 106,990 85,257 141,645 Non-controlling interest 337 97 574 1,027 — Convertible preferred stock — — 268,225 191,257 131,273 Total stockholders’ deficit (43,465 ) (6,517 ) (290,490 ) (219,964 ) (190,762 ) (1) Upon closing of our IPO in April 2012, all outstanding shares of our convertible preferred stock were converted into 66.3 million shares of common stock, all outstanding warrants to purchase shares of convertible preferred stock were converted into warrants to purchase shares of common stock and approximately $4.3 million of cash dividends became payable to the holders of Series B convertible preferred stock. (2) In July 2013, we sold an aggregate of 5.75 million shares of our common stock at a price to the public of $5.00 per share and issued $125.0 million aggregate principal amount of convertible senior notes in concurrent underwritten public offerings, in which we received aggregate net proceeds of approximately $147.3 million, after deducting underwriting discounts and commissions and offering expenses payable by us. $51.9 million net of issuance costs of the aggregate principal amount of the convertible senior notes is considered a conversion feature and is included as a component of stockholders’ deficit. Table of Contents Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations The following discussion of our financial condition and results of operations should be read in conjunction with our financial statements and the notes to those financial statements appearing elsewhere in this Annual Report on Form 10-K. This discussion contains forward-looking statements that involve significant risks and uncertainties. As a result of many factors, such as those set forth in Part I, Item 1A. Risk Factors of this Annual Report on Form 10-K, which are incorporated herein by reference, our actual results may differ materially from those anticipated in these forward-looking statements. Overview We are a biopharmaceutical company discovering, developing and preparing to commercialize innovative medicines consisting of novel therapeutics paired with companion diagnostics. Our mission is to provide patients, physicians and the healthcare system with the medicines, tools and information to transform the approach to care from one based on the identification and treatment of symptoms to one focused on the diagnosis and treatment of illness through a more precise mechanistic understanding of disease. We seek to accomplish our mission by applying our proprietary systems-based approach to biomedical research, which we call Network Biology. Our initial focus is in the field of oncology. We have six novel therapeutics in clinical development. In our most advanced program, we are conducting a Phase 3 clinical trial. We have devoted substantially all of our resources to our drug discovery and development efforts, including advancing our Network Biology approach, conducting clinical trials for our product candidates, protecting our intellectual property and providing general and administrative support for these operations. We have not generated any revenue from product sales and, to date, have financed our operations primarily through private placements of our convertible preferred stock, collaborations, public offerings of our securities and a secured debt financing. Through December 31, 2013, we have received $268.2 million from the sale of convertible preferred stock and warrants, $126.7 million of net proceeds from the sale of common stock during our April 2012 initial public offering and July 2013 follow-on underwritten public offering, $39.6 million of net proceeds from a secured debt financing, $120.6 million of net proceeds from the issuance of 4.50% convertible senior notes due 2020, or the convertible senior notes, in our July 2013 underwritten public offering and $219.1 million of upfront license fees, milestone payments, reimbursement of research and development costs and manufacturing services and other payments from our collaborations. We have also entered into an arrangement to use our manufacturing capabilities to manufacture drug product on behalf of a third-party pharmaceutical company, for which we have received $2.0 million in upfront fees and reimbursements as of December 31, 2013. As of December 31, 2013, we had unrestricted cash and cash equivalents and available-for-sale securities of $155.2 million. In July 2013, we sold an aggregate of 5,750,000 shares of our common stock at a price to the public of $5.00 per share and issued $125.0 million aggregate principal amount of 4.50% convertible senior notes due 2020 in concurrent underwritten public offerings. As a result of the concurrent common stock offering and convertible senior notes offering, we received aggregate net proceeds of approximately $147.3 million, after deducting underwriting discounts and commissions and offering expenses payable by us. On November 8, 2012, we entered into the Loan Agreement with Hercules. The Loan Agreement provided for an initial term loan advance of $25.0 million, which closed on November 8, 2012, and an additional term loan advance of $15.0 million, which closed on December 14, 2012, and resulted in aggregate net proceeds of $39.6 million. We expect that our existing unrestricted cash and cash equivalents and available-for-sale securities as of December 31, 2013, anticipated interest income and funding under our license and collaboration agreement with Sanofi related to MM-121 will enable us to fund operations into 2015. In the event that we obtain favorable results from our Phase 3 clinical trial of MM-398, we expect that anticipated additional expenses in 2014 related to the commercialization of MM-398 will be offset by cash received from potential collaboration opportunities. 80 Table of Contents We have never been profitable and, as of December 31, 2013, we had an accumulated deficit of $572.2 million. Our net loss was $130.7 million for the year ended December 31, 2013, $91.8 million for the year ended December 31, 2012 and $79.7 million for the year ended December 31, 2011. We expect to continue to incur significant expenses and increasing operating losses for at least the next several years. We expect our research and development expenses to increase in connection with our ongoing activities, particularly as we continue the research, development and clinical trials of our product candidates, including multiple simultaneous clinical trials for certain product candidates, some of which we expect will be entering late stage clinical development. In addition, in connection with seeking and possibly obtaining regulatory approval of any of our product candidates, we expect to incur significant commercialization expenses for product sales, marketing, manufacturing and distribution. Until such time, if ever, as we can generate substantial product revenues, we expect to finance our cash needs through a combination of equity offerings, debt financings, collaborations, strategic alliances, licensing arrangements and other marketing and distribution arrangements. We may be unable to raise capital when needed or on attractive terms, which would force us to delay, limit, reduce or terminate our research and development programs or commercialization efforts. We will need to generate significant revenues to achieve profitability, and we may never do so. Strategic Partnerships, Licenses and Collaborations Sanofi In September 2009, we entered into a license and collaboration agreement with Sanofi for the development and commercialization of MM-121. Under this agreement, we granted Sanofi an exclusive, royalty-bearing, worldwide right and license to develop and commercialize MM-121 in exchange for payment by Sanofi of an upfront license fee of $60.0 million, up to $410.0 million in potential development and regulatory milestone payments, of which we have already received $25.0 million, up to $60.0 million in potential sales milestone payments and tiered, escalating royalties beginning in the sub-teen double digits based on net sales of MM-121 in the United States and beginning in the high single digits based on net sales of MM-121 outside the United States. We have the right, but not the obligation, to co-promote and commercialize MM-121 in the United States and to participate in the development of MM-121 through Phase 2 proof of concept trials, which we are currently conducting. If we co-promote MM-121 in the United States, we will be responsible for paying our sales force costs and a specified percentage of direct medical affairs, marketing and promotion costs for MM-121 in the United States and will be eligible to receive tiered, escalating royalties beginning in the high teens based on net sales of MM-121 in the United States. We are also entitled to an increase in the royalty rate if a diagnostic product is actually used with MM-121 in the treatment of solid tumor indications. Sanofi is responsible for all development and manufacturing costs for MM-121. We have completed our manufacturing obligations under the agreement, and Sanofi has assumed responsibility for all manufacturing of MM-121. Sanofi reimburses us for internal time at a designated full-time equivalent rate per year and reimburses us for direct costs and services related to the development and manufacturing of MM-121. In addition, in June 2012, we entered into a right of review agreement with Sanofi pursuant to which, if we determine to enter into negotiations with a third party regarding any license, option, collaboration, joint venture or similar transaction involving any therapeutic or companion diagnostic product candidate in our pipeline, we will notify Sanofi of such opportunity. Following such notice, Sanofi will have a specified period of time to review the opportunity and determine whether to exercise an additional right to exclusively negotiate an agreement with us with respect to such opportunity for a specified period of time. In addition, in specified circumstances, if we subsequently propose to enter into any third-party agreement, we must first offer the same terms and conditions to Sanofi. The right of review terminates on April 1, 2017. The timing of cash received from Sanofi differs from revenue recognized for financial statement purposes. We recognize revenue for development services within the period they are incurred and billable. Billable expenses are defined during each specified budget period. For the year ended December 31, 2013, the specified budget period comprised the 12 months ending December 31, 2013. In the event that total development services expense incurred and expected to be incurred during any particular budget period, exceed the total contractually 81 Table of Contents allowed billable amount for development services during the same period, we recognize only a percentage of the development services incurred as revenue in that period. This percentage is calculated as total development services expense incurred during the specified period divided by the sum of total development services expense incurred plus estimated development services expense to be incurred during the specified period, multiplied by the total contractually allowed billable amount for development services during the specified period, less development services revenue recognized within the specified period. We recognize revenue on expenses incurred in excess of this percentage in the budget period when the excess amounts become contractually billable. We also recognize revenue for the upfront payment, milestone payments and manufacturing services using the contingency-adjusted performance model over the expected development period, which is currently estimated to be 12 years from the effective date of our agreement with Sanofi. During the years ended December 31, 2013, 2012 and 2011, we recognized revenue based on the following components of the Sanofi agreement: We perform development services for which we recognize revenue under the Sanofi agreement in accordance with the specified budget period. During the year and specified budget period ended December 31, 2013, we performed $10.1 million of development services in excess of recognized revenue. During the years ended December 31, 2012 and 2011, development services approximated recognized revenue. Actavis In November 2013, we entered into a development, license and supply agreement with Watson Laboratories, Inc., or Actavis, pursuant to which we will develop, manufacture and exclusively supply the bulk form of doxorubicin HCl liposome injection, or the initial product, to Actavis. Under the agreement, Actavis is responsible for all costs related to finished product processing and global commercialization. Pursuant to the agreement, additional products may be developed for Actavis in the future. We are eligible to receive up to $15.5 million, including $2.0 million upfront, which was received in December 2013, and the remainder in development funding and development, regulatory and commercial milestone payments related to the initial product. We will also receive a double digit share of net profits on global sales of the initial product and any additional products. We will manufacture and supply the initial product to Actavis in bulk form at an agreed upon unit price. The agreement will expire with respect to each product ten years after Actavis’ first sale of such product, unless terminated earlier, and will automatically renew for additional two year periods thereafter unless either party provides notice of non-renewal. Either party may terminate the agreement in the event of an uncured material breach or bankruptcy filing by the other party. Actavis may also terminate the agreement for convenience in specified circumstances upon 90 days’ prior written notice. We applied revenue recognition guidance to determine whether the performance obligations under this collaboration, including the license, participation on steering committees, development services, and manufacturing and supply services, could be accounted for separately or as a single unit of accounting. We determined that these obligations represent a single unit of accounting and will recognize revenue as product is supplied to Actavis. Therefore, we have deferred total billed and billable milestones and development expenses of $2.1 million as of December 31, 2013. 82 Years ended December 31, (in thousands) 2013 2012 2011 Upfront payment $ 5,000 $ 5,000 $ 5,000 Milestone payments 2,083 2,975 2,616 Development services 36,283 36,905 25,053 Manufacturing services and other 3,867 3,307 1,456 Total $ 47,233 $ 48,187 $ 34,125 Table of Contents GTC Biotherapeutics, Inc. In July 2009, we entered into a license agreement with GTC Biotherapeutics, Inc., or GTC, for the development of MM-093. Under this license agreement, we granted GTC an exclusive worldwide license to research, develop, manufacture and commercialize MM-093 for the treatment of autoimmune diseases in exchange for GTC returning approximately 662,000 shares of our Series C convertible preferred stock. In addition, we became eligible to receive from GTC potential development and sales milestone payments as well as tiered royalties based on a percentage of net sales of MM-093, while GTC became responsible for all development and commercialization costs for MM-093. At the time of the license agreement, we assigned a fair value of $1.5 million for the shares returned to us and were recognizing this as revenue over the expected development term, which was estimated to be 19 years from the effective date of our license agreement with GTC. To date, we have not received any milestone or royalty payments from GTC. GTC terminated the license agreement in accordance with the terms of the license agreement on March 19, 2013. As a result, we recognized the remaining $0.6 million of deferred revenue related to this license agreement during the first quarter of 2013. Silver Creek Pharmaceuticals, Inc. In 2010, we established Silver Creek Pharmaceuticals, Inc., or Silver Creek, as a subsidiary. Silver Creek’s mission is to apply our Network Biology approach to the discovery and development of innovative therapeutics in the field of regenerative medicine. On December 31, 2013, $2.6 million of convertible notes and related accrued interest converted to shares of Series A preferred stock of Silver Creek. As of December 31, 2013 and 2012, we owned approximately 64% and 74%, respectively, of the outstanding preferred stock of Silver Creek. We concluded that Silver Creek is a variable interest entity and that we are the primary beneficiary. We have the ability to direct the activities of Silver Creek through our ownership percentage and through the board of directors seats controlled by us and our de facto agents, and therefore, we consolidate Silver Creek for financial reporting purposes. In the future, we may consider forming additional businesses or business units to apply our Network Biology approach to multiple additional disease areas outside the oncology field. We expect to do so in some cases, as with Silver Creek, through the establishment of separately funded companies. Financial Obligations Related to the License and Development of MM-398 In September 2005, Hermes BioSciences, Inc., or Hermes, which we acquired in October 2009, entered into a license agreement with PharmaEngine, Inc., or PharmaEngine, under which PharmaEngine received an exclusive license to research, develop, manufacture and commercialize MM-398 in Europe and certain countries in Asia. In May 2011, we entered into a new agreement with PharmaEngine under which we reacquired all previously licensed rights for MM-398, other than rights to commercialize MM-398 in Taiwan. As a result, we now have the exclusive right to commercialize MM-398 in all territories in the world, except for Taiwan, where PharmaEngine has an exclusive commercialization right. Upon entering into the May 2011 agreement with PharmaEngine, we paid PharmaEngine a $10.0 million upfront license fee. In addition, we made a milestone payment of $5.0 million to PharmaEngine in connection with dosing the first patient in our Phase 3 clinical trial of MM-398, which occurred and was paid in the first quarter of 2012. If we elect to apply for and are awarded certain specified regulatory designations with respect to filing submissions to the FDA within the United States, we may be obligated to pay PharmaEngine an additional $5.0 million milestone payment in 2014. We may also be required to pay up to an additional $70.0 million in aggregate development and regulatory milestone payments and $130.0 million in additional sales milestone payments to PharmaEngine upon the achievement of specified development, regulatory and annual net sales milestones. PharmaEngine is also entitled to tiered royalties on net sales of MM-398 in Europe and certain countries in Asia. The royalty rates under the agreement range from high single digits up to the low teens as a percentage of our net sales of MM-398 in these territories. Under the May 2011 agreement, we are responsible for all future development costs of MM-398 except those required 83 Table of Contents specifically for regulatory approval in Taiwan. During the years ended December 31, 2013, 2012 and 2011, we recognized research and development expenses of $1.5 million, $6.2 million and $11.2 million, respectively, under the agreement with PharmaEngine, which include the $5.0 million milestone payment in 2012 and the $10.0 million upfront payment in 2011. Our financial obligations under other license and development agreement are summarized below under “—Liquidity and Capital Resources—Contractual obligations and commitments.” Financial Operations Overview Revenues We have not yet generated any revenue from product sales. All of our revenue to date has been derived from license fees, milestone payments and research, development, manufacturing and other payments received from collaborations, primarily with Sanofi, and, to a lesser extent, from grant payments received from the National Cancer Institute. In the future, we may generate revenue from a combination of product sales, license fees, milestone payments and research, development and manufacturing payments from collaborations and royalties from the sales of products developed under licenses of our intellectual property. We expect that any revenue we generate will fluctuate from quarter to quarter as a result of the timing and amount of license fees, research, development and manufacturing reimbursements, milestone and other payments from collaborations, and the amount and timing of payments that we receive upon the sale of our products, to the extent any are successfully commercialized. We do not expect to generate revenue from product sales until 2015 at the earliest. If we or our collaborators fail to complete the development of our product candidates in a timely manner or obtain regulatory approval for them, our ability to generate future revenue, and our results of operations and financial position, would be materially adversely affected. Research and development expense Research and development expenses consist of the costs associated with our research and discovery activities, including investment in our Network Biology approach, conduct of preclinical studies and clinical trials, manufacturing development efforts and activities related to regulatory filings. Our research and development expenses consist of: We expense research and development costs as incurred. Conducting a significant amount of research and development is central to our business model. Product candidates in late stages of clinical development generally have higher development costs than those in earlier stages of clinical development, primarily due to the increased size and duration of late stage clinical trials. We plan to increase our research and development expenses for the foreseeable future as we seek to complete development of our six most advanced product candidates, MM-398, MM-121, MM-111, MM-302, MM-151 and MM-141, and to further advance our preclinical products and earlier stage research and development projects. 84 • employee salaries and related expenses, which include stock compensation and benefits for the personnel involved in our drug discovery and development activities; • external research and development expenses incurred under agreements with third-party contract research organizations and investigative sites; • manufacturing material expense for in-house manufacturing and third-party manufacturing organizations and consultants; • license fees for and milestone payments related to in-licensed products and technologies; and • facilities, depreciation and other allocated expenses, which include direct and allocated expenses for rent and maintenance of facilities, depreciation of leasehold improvements and equipment, and laboratory and other supplies. Table of Contents We use our employee and infrastructure resources across multiple research and development programs. We track expenses related to our six most advanced product candidates on a per project basis. Accordingly, we allocate internal employee-related and infrastructure costs, as well as third-party costs, to each of these programs. We do not allocate to particular development programs either stock compensation expense or expenses related to preclinical programs. Costs that are not directly attributable to specific clinical programs or early preclinical activities, such as general laboratory supplies, wages related to shared laboratory services, travel and employee training and development, are not allocated and are considered general research and discovery expenses. The following table summarizes our principal product development programs, including the latest related stages of development for each product candidate in development and the research and development expenses allocated to each clinical product candidate. Prior to May 2011, our collaborator, PharmaEngine, led the clinical development of MM-398 with minimal investment by us. The development, regulatory and clinical expenses related to the agreement we entered into with Actavis in November 2013 are included within our preclinical, general research and discovery expenses for the year ended December 31, 2013. The successful development of our clinical and preclinical product candidates is highly uncertain. At this time, other than as discussed below, we cannot reasonably estimate the nature, timing or costs of the efforts that will be necessary to complete the remainder of the development of any of our preclinical or clinical product candidates or the period, if any, in which material net cash inflows from these product candidates may commence. This is due to the numerous risks and uncertainties associated with developing drugs, including the uncertainty of: A change in the outcome of any of these variables with respect to the development of a product candidate could mean a significant change in the costs and timing associated with the development of that product candidate. For example, if the FDA or another regulatory authority were to require us to conduct clinical trials beyond those which we currently anticipate will be required for the completion of clinical development of a product candidate or if we experience significant delays in enrollment in any of our clinical trials, we could be required to expend significant additional financial resources and time on the completion of clinical development. 85 (in thousands) Indication Current Phase of Development Years ended December 31, 2013 2012 2011 MM-398 Cancer Phase 3 $ 28,135 $ 22,321 $ 18,999 MM-121 Cancer Phase 2 45,144 37,173 32,347 MM-111 Cancer Phase 2 16,251 14,249 10,091 MM-302 Cancer Phase 1 7,906 7,126 5,126 MM-151 Cancer Phase 1 6,909 7,236 10,047 MM-141 Cancer Phase 1 6,758 8,963 2,875 Preclinical, general research and discovery 30,082 24,556 17,548 Stock compensation 5,954 4,234 3,597 Total research and development expense $ 147,139 $ 125,858 $ 100,630 • the scope, rate of progress and expense of our ongoing, as well as any additional, clinical trials and other research and development activities; • the potential benefits of our product candidates over other therapies; • our ability to market, commercialize and achieve market acceptance for any of our product candidates that we are developing or may develop in the future; • future clinical trial results; • the terms and timing of regulatory approvals; and • the expense of filing, prosecuting, defending and enforcing any patent claims and other intellectual property rights. Table of Contents MM-398 MM-398 is currently being evaluated in a Phase 3 clinical trial in patients with metastatic pancreatic cancer whose cancer has progressed on treatment with gemcitabine. Our current estimate of the remaining external costs associated with completing the Phase 3 clinical trial is up to $3.0 million. We are also conducting a Phase 1 translational study to identify predictive biomarkers associated with MM-398. A translational study is a clinical trial where biomarker investigation is performed, with a goal of identifying biomarkers that predict patients’ response to the therapy. In addition, several trials are ongoing in which the majority of the total clinical trial costs are paid for by the investigators. These trials include an investigator-sponsored Phase 2 clinical trial in colorectal cancer, an investigator-sponsored Phase 1 clinical trial in glioma and an investigator-initiated Phase 1 clinical trial in pediatric solid tumors. In the first quarter of 2012, we made a milestone payment of $5.0 million to PharmaEngine in connection with dosing the first patient in our Phase 3 clinical trial. If we elect to apply for and are awarded certain specified regulatory designations with respect to filing submissions to the FDA within the United States, we may be obligated to pay PharmaEngine an additional $5.0 million milestone payment in 2014. We may also be required to pay up to an additional $70.0 million in aggregate development and regulatory milestone payments and $130.0 million in additional sales milestone payments to PharmaEngine upon the achievement of specified development, regulatory and annual net sales milestones. PharmaEngine is also entitled to tiered royalties based on net sales of MM-398 in Europe and certain countries in Asia. The royalty rates range from high single digits up to the low teens as a percentage of our net sales of MM-398 in these territories. MM-121 We have entered into a license and collaboration agreement with Sanofi related to MM-121. Under the terms of the agreement, we are currently responsible for executing clinical trials through Phase 2 proof of concept trials for each indication. We have completed our manufacturing obligations under the agreement, and Sanofi has assumed responsibility for all manufacturing of MM-121. All expenses related to manufacturing are required to be reimbursed by Sanofi. Sanofi pays a portion of the estimated manufacturing campaign costs upfront and the remainder during and upon completion of the manufacturing campaign in accordance with an agreed upon budget. We separately record revenue and expenses on a gross basis under this arrangement. Sanofi is responsible for all development and manufacturing costs of MM-121. We are currently conducting four Phase 2 clinical trials and three Phase 1 clinical trials of MM-121 in multiple cancer types. Prior to 2011, we received a $10.0 million milestone payment from Sanofi for dosing the first patient in a proof of concept Phase 2 clinical trial of MM-121 in breast cancer. During the year ended December 31, 2011, we received a $10.0 million milestone payment from Sanofi for dosing the first patient in a proof of concept Phase 2 clinical trial of MM-121 in non-small cell lung cancer. During the year ended December 31, 2012, we received a $5.0 million milestone payment from Sanofi for dosing the first patient in a proof of concept Phase 2 clinical trial of MM-121 in ovarian cancer. We expect MM-121 expenses to be lower in 2014 compared to 2013 as the Phase 2 clinical trials that we are conducting are brought to their conclusions. MM-111 We are currently conducting a Phase 2 clinical trial of MM-111 in gastric cancer and a Phase 1 clinical trial of MM-111 in solid tumors. MM-302 We are currently conducting one Phase 1 clinical trial of MM-302 in breast cancer. MM-151 We are currently conducting one Phase 1 clinical trial of MM-151 in solid tumors. During the first quarter of 2012, we made a $1.5 million payment under our collaboration agreement with Adimab LLC, or Adimab. 86 Table of Contents MM-141 We are currently conducting one Phase 1 clinical trial of MM-141 in solid tumors. General and administrative expense General and administrative expense consists primarily of salaries and other related costs for personnel, including stock-based compensation expenses and benefits, in our executive, legal, intellectual property, business development, finance, purchasing, accounting, information technology, corporate communications, investor relations and human resources departments. Other general and administrative expenses include employee training and development, board of directors costs, depreciation, insurance expenses, facility-related costs not otherwise included in research and development expense, professional fees for legal services, including patent-related expenses, pre-commercialization costs, and accounting and information technology services. We expect that general and administrative expense will increase in future periods in proportion to increases in research and development and as a result of increased payroll, expanded infrastructure, increased consulting, legal, accounting and investor relations expenses associated with being a public company and costs incurred to develop and commercialize our clinical products. In addition, we expect that general and administrated expense will increase significantly upon the initiation of commercialization procedures in the event of positive MM-398 data. Interest income and interest expense Interest income consists of interest earned on our cash and cash equivalents and available-for-sale securities. Interest expense consists primarily of cash and non-cash interest recorded on our loans payable and convertible senior notes. We expect that interest expense will be higher in 2014 and through the time periods that our loans payable and convertible senior notes remain outstanding. Other income (expense) Other income (expense) primarily consists of gains and losses on the change in value and time to expiration of convertible preferred stock warrants, the gains and losses on the change in fair value of derivative liabilities, the recognition of tax incentives and other one-time income or expense-related items. Critical Accounting Policies and Significant Judgments and Estimates Our management’s discussion and analysis of our financial condition and results of operations is based on our consolidated financial statements, which we have prepared in accordance with the rules and regulations of the Securities and Exchange Commission, or the SEC, and generally accepted accounting principles in the United States, or GAAP. The preparation of these consolidated financial statements requires us to make estimates and assumptions that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported revenues and expenses during the reporting periods. We evaluate our estimates and judgments on an ongoing basis. Estimates include revenue recognition, lease accounting, valuation of derivative liabilities and embedded conversion options, useful lives with respect to long-lived assets and intangibles, valuation of stock options, convertible preferred stock warrants, contingencies, accrued expenses and other, intangible assets, goodwill, in-process research and development and tax valuation reserves. We base our estimates on historical experience and on various other factors that we believe are reasonable under the circumstances, the results of which form the basis for making judgments about the carrying value of assets and liabilities that are not readily apparent from other sources. Our actual results may differ from these estimates under different assumptions or conditions. While our significant accounting policies are more fully described in Note 2 to our consolidated financial statements appearing at the end of this Annual Report on Form 10-K, we believe that the following accounting policies are the most critical to aid you in fully understanding and evaluating our financial condition and results of operations. 87 Table of Contents Revenue recognition We enter into biopharmaceutical product development agreements with collaborators for the research and development of therapeutic and diagnostic products. The terms of these agreements may include nonrefundable signing and licensing fees, funding for research, development and manufacturing, milestone payments and royalties on any product sales derived from collaborations. We assess these multiple elements in accordance with the Financial Accounting Standards Board, or FASB, Accounting Standards Codification 605, Revenue Recognition , in order to determine whether particular components of the arrangement represent separate units of accounting. In January 2011, we adopted authoritative guidance on revenue recognition for multiple element arrangements. This guidance, which applies to multiple element arrangements entered into or materially modified on or after January 1, 2011, separates and allocates consideration in a multiple element arrangement according to the relative selling price of each deliverable. The fair value of deliverables under the arrangement may be derived using a best estimate of selling price if vendor specific objective evidence and third-party evidence are not available. Deliverables under the arrangement will be separate units of accounting provided that a delivered item has value to the customer on a stand-alone basis and if the arrangement does not include a general right of return relative to the delivered item and delivery or performance of the undelivered item is considered probable and substantially in the control of the vendor. We entered into a development, license and supply agreement with Actavis in November 2013, which was evaluated under the accounting guidance on revenue recognition for multiple element arrangements. We determined that the obligations represent a single unit of accounting and will recognize revenue as product is supplied to Actavis. Therefore, we have deferred total billed and billable milestones and development expenses of $2.1 million as of December 31, 2013. All milestone payments received and development expenses reimbursed until the period of commercialization will be deferred, and upon commercialization will be recognized over the delivery period of the bulk drug to Actavis. Our existing collaboration agreements continue to be accounted for under previously issued revenue recognition guidance for multiple element arrangements and milestone revenue recognition, as described below. We recognized upfront license payments as revenue upon delivery of the license only if the license had stand-alone value and the fair value of the undelivered performance obligations could be determined. If the fair value of the undelivered performance obligations could be determined, such obligations were accounted for separately as the obligations were fulfilled. If the license was considered to either not have stand-alone value or have stand-alone value but the fair value of any of the undelivered performance obligations could not be determined, the arrangement was accounted for as a single unit of accounting and the license payments and payments for performance obligations were recognized as revenue over the estimated period of when the performance obligations would be performed. Whenever we determined that an arrangement should be accounted for as a single unit of accounting, we determined the period over which the performance obligations would be performed and revenue would be recognized. If we could not reasonably estimate the timing and the level of effort to complete our performance obligations under the arrangement, then we recognized revenue under the arrangement on a straight-line basis over the period that we expected to complete our performance obligations, which is reassessed at each subsequent reporting period. Our collaboration agreements may include additional payments upon the achievement of performance-based milestones. As milestones are achieved, a portion of the milestone payment, equal to the percentage of the total time that we have performed the performance obligations to date over the total estimated time to complete the performance obligations, multiplied by the amount of the milestone payment, is recognized as revenue upon achievement of such milestone. The remaining portion of the milestone will be recognized over the remaining 88 Table of Contents performance period. Milestones that are tied to regulatory approval are not considered probable of being achieved until such approval is received. Milestones tied to counterparty performance are not included in our revenue model until the performance conditions are met. We will recognize royalty revenue upon the sale of the related products, provided we have no remaining performance obligations under the arrangement. To date, we have not received any royalty payments or recognized any royalty revenue. We record deferred revenue when payments are received in advance of the culmination of the earnings process. This revenue is recognized in future periods when the applicable revenue recognition criteria have been met. Marketable securities Our holdings of marketable securities may consist of U.S. government agencies securities, commercial paper, corporate notes and bonds and certificates of deposit, which are maintained by an investment manager and have expected average maturity dates in excess of three months. We classify these investments as available-for-sale. Available-for-sale securities are carried at fair value, with the unrealized gains and losses included in other comprehensive income (loss) as a component of stockholders’ deficit until realized. Realized gains and losses are recognized in interest income. Any premium or discount arising at purchase is amortized and/or accreted to interest income. Goodwill Goodwill represents the difference between the purchase price and the fair value of the tangible and identifiable intangible net assets acquired. Goodwill is not amortized but is evaluated for impairment within our single reporting unit on an annual basis, during the third quarter, or more frequently if an event occurs or circumstances change that would more likely than not reduce the fair value of our reporting unit below its carrying amount. When performing an evaluation of goodwill impairment, we have the option to first assess qualitative factors to determine whether it is necessary to perform the quantitative two-step impairment test. If we elect this option and find, as a result of the qualitative assessment, that it is more likely than not that the fair value of the reporting unit is less than its carrying amount, the quantitative two-step impairment test must be performed; otherwise, no further testing is required. This requires us to assess the impact of significant events, milestones and changes to expectations and activities that may have occurred since the last impairment evaluation. Significant changes to these estimates, judgments and assumptions could materially change the outcome of the impairment assessment. Alternatively, we may elect to not first assess qualitative factors and immediately perform the quantitative two-step impairment test. If such an election occurs, in the first step, the fair value of our reporting unit is compared to the carrying value. If the carrying value of the net assets assigned to the reporting unit exceeds the fair value of the reporting unit, then the second step of the impairment test is performed in order to determine the implied fair value of the reporting unit’s goodwill. If the carrying value of the reporting unit’s goodwill exceeds the implied fair value, then we would record an impairment loss equal to the difference. Accrued expenses As part of the process of preparing financial statements, we are required to estimate accrued expenses. This process involves identifying services that have been performed on our behalf and estimating the level of services performed and the associated costs incurred for such services where we have not yet been invoiced or otherwise notified of actual cost. We record these estimates in our consolidated financial statements as of each balance sheet date. Examples of estimated accrued expenses include: 89 • fees due to contract research organizations in connection with preclinical and toxicology studies and clinical trials; • fees paid to investigative sites in connection with clinical trials; and • professional service fees. Table of Contents In accruing service fees, we estimate the time period over which services will be provided and the level of effort in each period. If the actual timing of the provision of services or the level of effort varies from the estimate, we will adjust the accrual accordingly. In the event that we do not identify costs that have been incurred or we under or overestimate the level of services performed or the costs of such services, our actual expenses could differ from such estimates. The date on which some services commence, the level of services performed on or before a given date and the cost of such services are often subjective determinations. We make estimates based on the facts and circumstances known to us at the time and in accordance with GAAP. There have been no material changes in estimates for the periods presented. Stock-based compensation We account for stock-based compensation by measuring and recognizing compensation expense for all stock-based awards made to employees, including stock options, based on the estimated grant date fair values. For employees, we use the straight-line method to allocate compensation expense to reporting periods over each optionee’s requisite service period, which is generally the vesting period. For non-employees, we record awards at fair value, periodically remeasure awards to reflect the current fair value at each reporting period and recognize expense over the related service period. When applicable, we account for these equity instruments based on the fair value of the consideration received or the fair value of the equity instrument issued, whichever is more reliably measurable. We estimate the fair value of stock-based awards to employees and non-employees using the Black-Scholes option valuation model. Determining the fair value of stock-based awards requires the use of highly subjective assumptions, including volatility, the calculation of expected term, risk free interest rate and the fair value of the underlying common stock on the date of grant, among other inputs. The assumptions used in determining the fair value of stock-based awards represent our best estimates, which involve inherent uncertainties and the application of judgment. As a result, if factors change, and different assumptions are used, our level of stock-based compensation could be materially different in the future. As of December 31, 2013, there was $15.9 million of total unrecognized compensation cost related to nonvested employee stock awards, and we expect to recognize those costs over weighted average periods of approximately 1.8 years. The fair value of options granted in 2013, 2012 and 2011 were estimated at the date of grant using the following assumptions: The expected volatility rate that we use to value stock option grants is based on historical volatilities of a peer group of similar companies whose share prices are publicly available. The peer group includes companies in the pharmaceutical and biotechnology industries in a similar stage of development with a comparable market capitalization or a similar clinical focus. Because we do not have a sufficient history to estimate the expected term, we use the simplified method for estimating the expected term. Under this approach, the weighted-average expected life is presumed to be the average of the vesting term and the contractual term of the option for each tranche. The risk-free interest rate assumption was based on zero coupon U.S. treasury instruments that had terms consistent with the expected term of the stock option grants. We recognize compensation expense for only the portion of options that are expected to vest. Accordingly, expected future forfeiture rates of stock options have been estimated based on our historical forfeiture rate, as adjusted for known trends. Forfeitures are estimated at the time of grant. If actual forfeiture rates vary from historical rates and estimates, additional adjustments to compensation expense may be required in future periods. 90 Years ended December 31, 2013 2012 2011 Risk-free interest rate 0.1 - 1.9% 0.7 - 1.1% 1.3 - 2.5% Expected dividend yield 0% 0% 0% Expected term 5.3 - 5.9 years 5 - 5.9 years 5 - 5.9 years Expected volatility 67 - 70% 66 - 72% 71 - 73% Table of Contents JOBS Act On April 5, 2012, the Jumpstart Our Business Startups Act, or the JOBS Act, was enacted. Among other provisions, the JOBS Act provides that an “emerging growth company” can take advantage of the extended transition period provided in Section 7(a)(2)(B) of the Securities Act for complying with new or revised accounting standards. This allows an emerging growth company to delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected to delay such adoption of new or revised accounting standards, and as a result, we may not comply with new or revised accounting standards on the relevant dates on which adoption of such standards is required for public companies that are not emerging growth companies. Additionally, we are in the process of evaluating the benefits of relying on other exemptions and reduced reporting requirements provided by the JOBS Act. Subject to certain conditions set forth in the JOBS Act, as an emerging growth company, we intend to rely on certain of these exemptions, including not being required to provide an auditor’s attestation report on our system of internal controls over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act of 2002 and comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements. We may remain an emerging growth company for up to five years, until December 31, 2017, although if the market value of our common stock that is held by non-affiliates exceeds $700.0 million as of any June 30 before that time or if we have annual gross revenues of $1.0 billion or more in any fiscal year, we would cease to be an emerging growth company as of December 31 of the applicable year. Results of Operations Comparison of the years ended December 31, 2013 and 2012 Collaboration revenues Collaboration revenues for 2013 were $47.8 million, compared to $48.9 million for 2012, a decrease of $1.1 million, or 2%. Increases in MM-121 research and development expenses were offset by decreases primarily attributable to recognizing revenue only up to the approved collaboration budget for 2013 pursuant to our license and collaboration agreement with Sanofi. Research and development expenses Research and development expenses for 2013 were $147.1 million, compared to $125.9 million for 2012, an increase of $21.3 million, or 17%. This increase was primarily attributable to: 91 Years ended December 31, (in thousands) 2013 2012 Collaboration revenues $ 47,786 $ 48,921 Research and development expenses 147,139 125,858 General and administrative expenses 21,187 15,805 Loss from operations (120,540 ) (92,742 ) Interest income 166 184 Interest expense (10,938 ) (553 ) Other income 627 1,357 Net loss $ (130,685 ) $ (91,754 ) • $8.0 million of increased MM-121 spending primarily due to increased enrollment and clinical analysis and costs associated with our ongoing clinical trials and close-down costs associated with clinical trials that have reported results; • $5.8 million of increased MM-398 spending primarily due to due to increased enrollment and costs associated primarily with our ongoing Phase 3 clinical trial of $10.8 million, partially offset by the absence of a $5.0 million milestone payment that occurred in the first quarter of 2012; Table of Contents These costs were partially offset by $2.5 million of decreased spending on MM-151 and MM-141, primarily due to the timing of costs associated with ongoing clinical trials. General and administrative expenses General and administrative expenses for 2013 were $21.2 million, compared to $15.8 million for 2012, an increase of $5.4 million, or 34%. This increase was primarily attributable to increases in labor and labor-related costs, efforts to prepare for potential commercialization of our product candidates and increased facility-related costs. Interest expense Interest expense for 2013 was $10.9 million, compared to $0.5 million for 2012. This increase was primarily attributable to the interest recorded on the loans payable to Hercules and the convertible senior notes issued in July 2013. Other income Other income for 2013 was $0.6 million, which was comprised of remeasurement of the fair value of the derivative liability associated with the Silver Creek convertible notes and other Silver Creek expenses and $0.5 million related to the amortization of Massachusetts Life Sciences Center, or MLSC, tax incentives. Other income for 2012 was $1.4 million, which was comprised of $0.6 million of benefit from the remeasurement of fair value of our convertible preferred stock warrants and $0.8 million related to the amortization of MLSC tax incentives. Comparison of the years ended December 31, 2012 and 2011 92 • $4.7 million of increased spending on preclinical, general research and discovery primarily due to an increased number of preclinical programs in our pipeline and increased costs associated with each preclinical program as these programs approach clinical development; • $2.0 million of increased MM-111 spending due to the initiation and ongoing efforts related to our Phase 2 clinical trial; • $1.7 million of increased stock compensation expense due the annual grant of stock options to employees; • $0.8 million of impairment charge related to in-process research and development for an early-stage preclinical program; and • $0.8 million of increased MM-302 spending due to increased enrollment and costs associated with ongoing clinical trials. Years ended December 31, (in thousands) 2012 2011 Collaboration revenues $ 48,921 $ 34,215 Research and development expenses 125,858 100,630 General and administrative expenses 15,805 14,454 Contingent consideration — — Loss from operations (92,742 ) (80,869 ) Interest income 184 56 Interest expense (553 ) (13 ) Other income 1,357 1,150 Net loss $ (91,754 ) $ (79,676 ) Table of Contents Collaboration revenues Collaboration revenues for 2012 were $48.9 million, compared to $34.2 million for 2011, an increase of $14.7 million, or 43%. This increase resulted from increases in development services, milestone and manufacturing revenues recognized under our collaboration agreement with Sanofi. Research and development expenses Research and development expenses for 2012 were $125.9 million, compared to $100.6 million for 2011, an increase of $25.3 million, or 25%. This increase was primarily attributable to: These increases were partially offset by $2.8 million of decreased MM-151 spending primarily due to the absence of IND-enabling activities that occurred in 2011, partially offset by an increase of $0.3 million in payments made to collaborators and increased costs associated with a new clinical trial that occurred in 2012. General and administrative expenses General and administrative expenses for 2012 were $15.8 million, compared to $14.5 million for 2011, an increase of $1.3 million, or 9%. This increase was primarily attributable to increases in labor and labor-related costs, rent, insurance and pre-commercialization costs, partially offset by decreased depreciation expense. Interest income Interest income for 2012 was $0.2 million, compared to $0.1 million for 2011, an increase of $0.1 million or 100%. Interest income for 2012 was earned on available-for-sale securities purchased with net proceeds from our IPO, which closed in April 2012. Interest expense Interest expense for 2012 was $0.5 million, compared to minimal expense recognized for 2011. This increase was primarily related to the Loan Agreement that we entered into with Hercules in November 2012. Other income Other income for 2012 was $1.4 million, which was comprised of $0.6 million of benefit from the remeasurement of fair value of our convertible preferred stock warrants and $0.8 million related to the 93 • $7.0 million of increased spending on preclinical, general research and discovery due to new preclinical programs in our pipeline, increased costs associated with each preclinical program as these programs approach clinical development and the timing of manufacturing activities; • $6.1 million of increased MM-141 spending due to IND-enabling activities and initiating and executing a new clinical trial, including $1.4 million in fees under our agreement with Dyax, which occurred during 2012; • $4.8 million of increased MM-121 spending primarily due to increased enrollment and costs associated with clinical trials; • $4.2 million of increased MM-111 spending primarily due to costs associated with preparing and initiating our planned Phase 2 clinical trial and costs associated with on-going clinical trials; • $3.3 million of increased MM-398 spending due to $13.3 million of increased costs primarily attributable to our ongoing Phase 3 clinical trial, partially offset by the absence of a $10.0 million license payment made to PharmaEngine in 2011; • $2.1 million of increased MM-302 spending due to increased preclinical diagnostic-related costs and clinical trial activities; and • $0.6 million of increased stock compensation expense due to increased headcount. Table of Contents amortization of MLSC tax incentives. Other income for 2011 was $1.2 million, which was comprised of a $1.8 million cash settlement from a former service provider and $0.3 million of recognized income related to the amortization of MLSC tax incentives, partially offset by $0.9 million expense from the remeasurement of fair value of our convertible preferred stock warrants. Liquidity and Capital Resources Sources of liquidity We have financed our operations to date primarily through private placements of our convertible preferred stock, collaborations, public offerings of our securities and a secured debt financing. Through December 31, 2013, we have received $268.2 million from the sale of convertible preferred stock and warrants, $126.7 million of net proceeds from the sale of common stock during our initial public offering and July 2013 follow-on underwritten public offering, $39.6 million of net proceeds from a secured debt financing, $120.6 million of net proceeds from the issuance of the convertible senior notes in our July 2013 underwritten public offering and $219.1 million of upfront license fees, milestone payments, reimbursement of research and development costs and manufacturing services and other payments from our collaborations. We have also entered into an arrangement to use our manufacturing capabilities to manufacture drug product on behalf of a third-party pharmaceutical company, for which we have received $2.0 million in upfront fees and reimbursements as of December 31, 2013. As of December 31, 2013, we had unrestricted cash and cash equivalents and available-for-sale securities of $155.2 million. In April 2012, we closed our IPO pursuant to a registration statement on Form S-1, as amended. We sold an aggregate of 15,042,459 shares of common stock under the registration statement at a public offering price of $7.00 per share, including 742,459 shares pursuant to the exercise by the underwriters of an over-allotment option. Net proceeds were approximately $98.1 million, after deducting underwriting discounts and commissions and other offering expenses but prior to the payment of dividends on our Series B convertible preferred stock. At the time of our IPO, our convertible preferred stock and warrants to purchase convertible preferred stock automatically converted to common stock and warrants to purchase common stock. On November 8, 2012, we entered into the Loan Agreement with Hercules. The Loan Agreement provided for an initial term loan advance of $25.0 million, which closed on November 8, 2012, and an additional term loan advance of $15.0 million, which closed on December 14, 2012. On July 17, 2013, we sold an aggregate of 5,750,000 shares of our common stock at a price to the public of $5.00 per share and issued $125.0 million aggregate principal amount of 4.50% convertible senior notes due 2020 in concurrent underwritten public offerings. As a result of the concurrent common stock offering and convertible senior notes offering, we received aggregate net proceeds of approximately $147.3 million, after deducting underwriting discounts and commissions and offering expenses payable by us. As of December 31, 2013, within our unrestricted cash and cash equivalents, $0.9 million was cash and cash equivalents held by our majority owned subsidiary, Silver Creek, which is consolidated for financial reporting purposes. This $0.9 million held by Silver Creek is designated for the operations of Silver Creek. Cash flows The following table provides information regarding our cash flows for the years ended December 31, 2013, 2012 and 2011. 94 Years ended December 31, (in thousands) 2013 2012 2011 Cash used in operating activities $ (95,175 ) $ (79,816 ) $ (52,817 ) Cash used in investing activities (27,739 ) (75,221 ) (3,747 ) Cash provided by financing activities 150,286 142,297 76,305 Net increase (decrease) in cash and cash equivalents $ 27,372 $ (12,740 ) $ 19,741 Table of Contents We invest primarily in U.S. government agencies securities, commercial paper, corporate notes and bonds and certificates of deposit. Our investment objectives are primarily to assure liquidity and preservation of capital and secondarily to obtain investment income. All of our investments in debt securities are recorded at fair value and are available-for-sale. Fair value is determined based on quoted market prices and models using observable data inputs. We have not recorded any impairment charges to our fixed income marketable securities as of December 31, 2013. Operating activities Cash used in operating activities of $52.8 million during the year ended December 31, 2011 was primarily a result of our net loss of $79.7 million, partially offset by non-cash items of $12.4 million, and changes in operating assets and liabilities of $14.4 million, which includes receipt of a $10.0 million milestone payment under the collaborative agreement with Sanofi. Cash used in operating activities of $79.8 million during the year ended December 31, 2012 was primarily a result of our $91.8 million net loss, partially offset by non-cash items of $10.0 million and changes in operating assets and liabilities of $2.0 million, which includes receipt of a $5.0 million milestone payment under our license and collaboration agreement with Sanofi. Cash used in operating activities of $95.2 million during the year ended December 31, 2013 was primarily a result of our $130.7 million net loss, partially offset by non-cash items of $18.4 million and changes in operating assets and liabilities of $17.1 million. Investing activities Cash used in investing activities of $3.7 million for the year ended December 31, 2011 was primarily due to the purchase of plant, property and equipment. Cash used in investing activities of $75.2 million for the year ended December 31, 2012 was primarily due to the purchase of available-for-sale securities of $115.7 million, which was partially offset by maturities and sales of available-for-sale securities of $43.9 million, as well as $3.2 million related to the purchase of property and equipment and other investing activities. Cash used in investing activities for the year ended December 31, 2013 was primarily due to purchases of available-for-sale securities net of proceeds from sales and maturities of $17.8 million, as well as $9.9 million of property and equipment purchases. Financing activities Cash provided by financing activities of $76.3 million for the year ended December 31, 2011 was primarily a result of $76.9 million of proceeds received from the Series G convertible preferred stock financing, net of offering costs, $1.7 million of proceeds from the issuance of common stock from the exercise of warrants and stock options, partially offset by deferred financing costs of $1.9 million and the payment of capital leases of $0.4 million. Cash provided by financing activities of $142.3 million for the year ended December 31, 2012 was primarily a result of $100.0 million of proceeds from our IPO, net of offering costs, which closed in April 2012, $41.1 million from us entering into the Loan Agreement with Hercules in November 2012 and Silver Creek entering into the convertible note payable, net of offering costs, and $5.4 million from the issuance of common stock upon the exercise of stock options, partially offset by the payment of $4.2 million of dividends on our Series B convertible preferred stock. Cash provided by financing activities of $150.3 million for the year ended December 31, 2013 was primarily a result of $26.7 million of proceeds from our follow-on underwritten offering of common stock in July 2013, net of offering costs, $120.6 million of proceeds from our underwritten convertible senior notes offering in July 2013, net of offering costs, $2.0 million of proceeds from the exercise of common stock options and $0.9 million of proceeds from the convertible notes offered by Silver Creek, net of offering costs. 95 Table of Contents Funding requirements We have not completed development of any therapeutic products or companion diagnostics. We expect to continue to incur significant expenses and increasing operating losses for at least the next several years. We anticipate that our expenses will increase substantially as we: As of December 31, 2013, we had unrestricted cash and cash equivalents and available-for-sale securities of $155.2 million. We expect that our existing unrestricted cash and cash equivalents and available-for-sale securities as of December 31, 2013, anticipated interest income and funding under our license and collaboration agreement with Sanofi related to MM-121 will enable us to fund operations into 2015. In the event that we obtain favorable results from our Phase 3 clinical trial of MM-398, we expect that anticipated additional expenses in 2014 related to the commercialization of MM-398 will be offset by cash received from potential collaboration opportunities. We have based this estimate on assumptions that may prove to be wrong, and we could use our available capital resources sooner than we currently expect. Because of the numerous risks and uncertainties associated with the development and commercialization of our product candidates, and the extent to which we utilize collaborations with third parties to participate in their development and commercialization, we are unable to estimate the amounts of increased capital outlays and operating expenditures associated with our current and anticipated clinical trials. Our future capital requirements will depend on many factors, including: Until such time, if ever, as we can generate substantial product revenues, we expect to finance our cash needs through a combination of equity offerings, debt financings, collaborations, strategic alliances, licensing arrangements and other marketing and distribution arrangements. We do not have any committed external sources of funds, other than our collaboration with Sanofi for the development and commercialization of MM-121, which is terminable by Sanofi for convenience upon 180 days’ prior written notice, and under our development, license and supply agreement with Actavis, which is terminable by Actavis for convenience in 96 • initiate or continue clinical trials of our six most advanced product candidates; • continue the research and development of our other product candidates; • seek to discover additional product candidates; • seek regulatory approvals for our product candidates that successfully complete clinical trials; • establish a sales, marketing and distribution infrastructure and scale up manufacturing capabilities to commercialize products for which we may obtain regulatory approval; and • add operational, financial and management information systems and personnel, including personnel to support our product development and planned commercialization efforts. • the progress and results of the clinical trials of our six most advanced product candidates; • the success of our collaborations with Sanofi related to MM-121 and with PharmaEngine related to MM-398; • the scope, progress, results and costs of preclinical development, laboratory testing and clinical trials for our other product candidates; • the costs, timing and outcome of regulatory review of our product candidates; • the costs of commercialization activities, including product sales, marketing, manufacturing and distribution; • the costs of preparing, filing and prosecuting patent applications and maintaining, enforcing and defending intellectual property-related claims; • the extent to which we acquire or invest in businesses, products and technologies; and • our ability to establish and maintain additional collaborations on favorable terms, particularly marketing and distribution arrangements for oncology product candidates outside the United States and Europe. Table of Contents specified circumstances upon 90 days’ prior written notice. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the ownership interest of our stockholders will be diluted, and the terms of these securities may include liquidation or other preferences that adversely affect the rights of our stockholders. Debt financing, if available, may involve agreements that include covenants limiting or restricting our ability to take specific actions, such as incurring additional debt, making capital expenditures or declaring dividends. For example, if we raise additional funds through marketing and distribution arrangements or other collaborations, strategic alliances or licensing arrangements with third parties, we may have to relinquish valuable rights to our technologies, future revenue streams, research programs or product candidates or to grant licenses on terms that may not be favorable to us. If we are unable to raise additional funds through equity or debt financings when needed, we may be required to delay, limit, reduce or terminate our product development or commercialization efforts or grant rights to develop and market product candidates that we would otherwise prefer to develop and market ourselves. Borrowings 4.50% Convertible Senior Notes Due 2020 In July 2013, we issued $125.0 million aggregate principal amount of 4.50% convertible senior notes due 2020. We issued the convertible senior notes under a base indenture between us and Wells Fargo Bank, National Association, as trustee, as supplemented by a supplemental indenture between us and the trustee. As a result of the convertible senior notes offering, we received net proceeds of approximately $120.6 million, after deducting underwriting discounts and commissions and offering expenses payable by us. The convertible senior notes bear interest at a rate of 4.50% per year, payable semiannually in arrears on January 15 and July 15 of each year, beginning on January 15, 2014. The convertible senior notes are general unsecured senior obligations of ours and rank (i) senior in right of payment to any of our indebtedness that is expressly subordinated in right of payment to the convertible senior notes, (ii) equal in right of payment to any of our unsecured indebtedness that is not so subordinated, (iii) effectively junior in right of payment to any of our secured indebtedness to the extent of the value of the assets securing such indebtedness, and (iv) structurally junior to all indebtedness and other liabilities (including trade payables) of our subsidiaries. The convertible senior notes will mature on July 15, 2020, or the maturity date, unless earlier repurchased by us or converted at the option of holders. Holders may convert their convertible senior notes at their option at any time prior to the close of business on the business day immediately preceding April 15, 2020 only under the following circumstances: On or after April 15, 2020 until the close of business on the business day immediately preceding the maturity date, holders may convert their convertible senior notes at any time, regardless of the foregoing circumstances. Upon any conversion of convertible senior notes that occurs while our indebtedness to Hercules under the Loan Agreement remains outstanding, the convertible senior notes will be settled in shares of our 97 • during any calendar quarter commencing after September 30, 2013 (and only during such calendar quarter), if the last reported sale price of our common stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable trading day; • during the five business day period after any five consecutive trading day period, or the measurement period, in which the trading price (as defined in the convertible senior notes) per $1,000 principal amount of convertible senior notes for each trading day of the measurement period was less than 98% of the product of the last reported sale price of our common stock and the conversion rate on each such trading day; or • upon the occurrence of specified corporate events set forth in the indenture. Table of Contents common stock. Following the repayment and satisfaction in full of our obligations to Hercules under the Loan Agreement, upon any conversion of the convertible senior notes, the convertible senior notes may be settled, at our election, in cash, shares of our common stock or a combination of cash and shares of our common stock. The initial conversion rate of the convertible senior notes is 160 shares of our common stock per $1,000 principal amount of convertible senior notes, which is equivalent to an initial conversion price of $6.25 per share of common stock. The initial conversion price represents a premium of 25% over the public offering price per share of $5.00 in our concurrent underwritten public offering of common stock. The conversion rate will be subject to adjustment in some events, but will not be adjusted for any accrued and unpaid interest. In addition, following certain corporate events that occur prior to the maturity date, we will increase the conversion rate for a holder who elects to convert its convertible senior notes in connection with such a corporate event in certain circumstances. Upon the occurrence of a fundamental change (as defined in the indenture) involving us, holders of the convertible senior notes may require us to repurchase all or a portion of their convertible senior notes for cash at a price equal to 100% of the principal amount of the convertible senior notes to be purchased, plus accrued and unpaid interest to, but excluding, the fundamental change repurchase date. The indenture contains customary terms and covenants and events of default with respect to the convertible senior notes. If an event of default (as defined in the indenture) occurs and is continuing, the trustee by written notice to us, or the holders of at least 25% in aggregate principal amount of the convertible senior notes then outstanding by written notice to us and the trustee, may, and the trustee at the request of such holders shall, declare 100% of the principal of and accrued and unpaid interest on the convertible senior notes to be due and payable. In the case of an event of default arising out of certain events of bankruptcy, insolvency or reorganization involving us or a significant subsidiary (as set forth in the indenture), 100% of the principal of and accrued and unpaid interest on the convertible senior notes will automatically become due and payable. Loan Agreement In November 2012, we entered into the Loan Agreement with Hercules pursuant to which we received loans in the aggregate principal amount of $40.0 million in 2012. In July 2013, in connection with the convertible senior notes offering, we and Hercules entered into an amendment, consent and waiver to the Loan Agreement that permitted the convertible senior notes offering and the issuance of the convertible senior notes. The Loan Agreement provides for interest-only payments for twelve months and repayment of the aggregate outstanding principal balance of the loans in monthly installments starting on December 1, 2013 and continuing through May 1, 2016. As a result of our concurrent underwritten public offerings of common stock and convertible senior notes in July 2013, we received aggregate net proceeds in excess of $75.0 million, which enabled us to elect to elect to extend the interest-only period by six months so that the aggregate outstanding principal balance of the loans issued pursuant to the Loan Agreement would be repaid in monthly installments starting on June 1, 2014 and continuing through November 1, 2016. On October 27, 2013, we notified Hercules of our election to extend the interest-only period as permitted under the Loan Agreement. Our obligations associated with the Loan Agreement are secured by a security interest in all of our personal property now owned or hereafter acquired, excluding intellectual property but including the proceeds from the sale, if any, of intellectual property, and a negative pledge on intellectual property. 98 Table of Contents Contractual obligations and commitments The following table summarizes our contractual obligations as of December 31, 2013: Expenditures to contract research organizations represent a significant cost in clinical development. However, our contracts with these research organizations are cancellable at our option upon short notice and do not have cancellation penalties. Therefore, payments to contract research organizations have not been included in the above table. In January 2010, we received $1.5 million of tax incentives from the MLSC, an independent agency of the Commonwealth of Massachusetts, which allowed us to monetize approximately $1.4 million of state research and development tax credits. In exchange for these incentives, we pledged to hire an incremental 50 employees and to maintain the additional headcount through at least December 31, 2014. Failure to do so could result in our being required to repay some or all of these incentives. This contingent obligation has not been included in the above table as we cannot estimate if or when it will become payable. In January 2011, we received $1.3 million of tax incentives from the MLSC, which allowed us to monetize approximately $1.2 million of state research and development tax credits. In exchange for these incentives, we pledged to hire an incremental 50 employees and to maintain the additional headcount through at least December 31, 2015. Failure to do so could result in our being required to repay some or all of these incentives. This contingent obligation has not been included in the above table as we cannot estimate if or when it will become payable. In January 2013, the MLSC awarded us an additional $0.5 million of tax incentives under its Life Science Tax Incentive Program, which allows us to monetize approximately $0.4 million of state research and development tax credits. We received this payment in the fourth quarter of 2013. In exchange for these incentives, we have pledged to hire an incremental 20 employees and to maintain the additional headcount through at least December 31, 2017. Failure to do so could result in us being required to repay some or all of these incentives. We have deferred and will amortize the benefit of this incentive on a straight-line basis over the five-year performance period, commencing with a cumulative catch-up when the pledge is achieved. Other than the specific payments noted in the table and as described above, milestone and royalty payments associated with antibody licensing, manufacturing technology licensing costs and other in-licensed collaboration payments have not been included in the above table as management cannot reasonably estimate if or when they will occur. These arrangements include the following: 99 (in thousands) Total Less than 1 year 1 to 3 years 3 to 5 years More than 5 years Short and long-term loans payable (1) $ 48,399 $ 12,353 $ 36,046 — — 4.50% convertible senior notes (1) 164,344 5,594 11,250 11,250 136,250 Operating lease obligations 29,526 5,095 10,562 11,056 2,813 Series B dividends 25 25 — — — License, collaboration, antibody and technology licensing costs (2) 1,882 236 673 973 — Total contractual cash obligations $ 244,176 $ 23,303 $ 58,531 $ 23,279 $ 139,063 (1) Payments are inclusive of interest and principal payments. (2) License, collaboration, antibody and technology licensing costs include milestone and annual license maintenance fee payments. We have not included annual license maintenance fees or minimum royalty payments after December 31, 2017, as we cannot estimate if they will occur. • Under a collaboration agreement with Dyax related to antibody identification and evaluation, we are required to make aggregate development and regulatory milestone payments of up to $16.2 million for Table of Contents Milestone and royalty payments that we may be required to make to Dyax, the U.S. Public Health Service and Selexis SA related to MM-121 are fully reimbursed by Sanofi under the terms of our license and collaboration agreement. Sanofi is then entitled to deduct 50% of any amount reimbursed against future royalty payments that Sanofi may be required to make to us. During the third quarter of 2013, we issued $125.0 million aggregate principal amount of 4.50% convertible senior notes due 2020. Contractual interest obligations related to the convertible senior notes total $5.6 million due in each year from 2014 through 2020. We have elected to extend the interest-only period under the Loan Agreement with Hercules by six months so that the aggregate outstanding principal balance of the loans issued pursuant to the Loan Agreement will be repaid in monthly installments starting on June 1, 2014 and continuing through November 1, 2016. As of December 31, 2013, there here have been no other material changes to our contractual obligations and commitments outside the ordinary course of business. Off-Balance Sheet Arrangements We did not have during the periods presented, and we do not currently have, any off-balance sheet arrangements, as defined under SEC rules. Tax Loss Carryforwards At December 31, 2013, we had net operating loss carryforwards for federal and state income tax purposes of $304.2 million and $230.7 million, respectively. Included in the federal and state net operating loss carryforwards is approximately $11.6 million of deduction related to the exercise of stock options. This amount represents an excess tax benefit, which will be realized when it results in reduction of cash taxes in accordance 100 therapeutic products and aggregate regulatory milestone payments of up $1.0 million for diagnostic products directed to selected targets. We also are required to pay mid single digit royalties on net sales of licensed products. • Under license agreements with The Regents of the University of California, we are required to make aggregate development and regulatory milestone payments of up to $1.3 million associated with MM-111 and MM-302 and pay royalties in the low single digits on net sales of licensed products. • In addition to the amounts included in the table above payable to Adimab, we are required to make aggregate development and regulatory milestone payments of up to $52.5 million related to therapeutic antibody licensing costs associated with MM-151 and pay mid single digit royalties on net sales of licensed products. • Under a license agreement with the U.S. Public Health Service, a division of the U.S. Department of Health and Human Services, we are required to make aggregate development and regulatory milestone payments of up to $6.0 million per therapeutic licensed product related to ErbB3 receptor patents associated with MM-121, MM-111 and MM-141 and pay royalties in the low single digits on net sales of licensed products. The term of the agreement extends until the expiration of the licensed patent rights, which is 2016. • Under an agreement with Selexis SA, we are required to make aggregate milestone payments of up to €1.0 million per licensed product related to the manufacturing of all of our clinical programs, with the exception MM-398, and royalties of less than one percent on net sales of licensed products. • Under an agreement with PharmaEngine, if we elect to apply for and are awarded certain specified regulatory designations with respect to a regulatory filing with the FDA, we may be obligated to pay an additional $5.0 million milestone payment in 2014. Table of Contents with Accounting Standards Codification 718. This excess tax benefit will be directly credited to additional paid-in capital when it is realized. Our existing federal and state net operating loss carryforwards will expire in years through 2033. We also have available research and development credits for federal and state income tax purposes of approximately $18.6 million and $6.3 million, respectively. The federal and state research and development credits will begin to expire in 2022 and 2024, respectively. As of December 31, 2013, we also have available investment tax credits for state income tax purposes of $0.3 million, which will expire in years through 2016 if not used. In addition we have federal orphan drug credits of $14.4 million that begin to expire in 2031. We have evaluated the positive and negative evidence bearing upon the realizability of our deferred tax assets, which are comprised principally of net operating loss carryforwards, deferred revenue and capitalized research and development expenses. Under the applicable accounting standards, we have considered our history of losses and concluded that it is more likely than not that we will not recognize the benefits of federal and state deferred tax assets. Accordingly, we have established a full valuation allowance against the deferred tax assets. Utilization of the net operating loss and research and development credit carryforwards may be subject to a substantial annual limitation under Section 382 of the Internal Revenue Code of 1986, as amended (the “Internal Revenue Code”), due to ownership change limitations that have occurred previously or that could occur in the future. These ownership changes may limit the amount of net operating loss and research and development credit carryforwards that can be utilized annually to offset future taxable income and tax. We have not currently completed an evaluation of ownership changes through December 31, 2013 to assess whether utilization of our net operating loss or research and development credit carryforwards would be subject to an annual limitation under Section 382 of the Internal Revenue Code. To the extent an ownership change occurs in the future, the net operating loss and credit carryforwards may be subject to limitation. We have not yet conducted a study of our domestic research and development credit carryforwards and orphan drug credits. This study may result in an increase or decrease to our credit carryforwards; however, until a study is completed and any adjustment is known, no amounts are being presented as an uncertain tax position. A full valuation allowance has been provided against the credits, and if an adjustment is required, this adjustment would be offset by an adjustment to the valuation allowance. As a result, there would be no impact to the statement of comprehensive loss or cash flows if an adjustment were required. Recent Accounting Pronouncements In February 2013, the FASB issued amendments to the accounting guidance for presentation of comprehensive income to improve the reporting of reclassifications out of accumulated other comprehensive income. The amendments do not change the current requirements for reporting net income or other comprehensive income, but do require an entity to provide information about the amounts reclassified out of accumulated other comprehensive income by component. In addition, an entity is required to present, either on the face of the statement where the net income is presented or in the notes, significant amounts reclassified out of accumulated other comprehensive income by the respective line items of net income but only if the amount reclassified is required under GAAP to be reclassified to net income in its entirety in the same reporting period. For other amounts that are not required under GAAP to be reclassified in their entirety to net income, an entity is required to cross-reference to other disclosures required under GAAP that provide additional detail about these amounts. For public companies, these amendments are effective prospectively for reporting periods beginning after December 15, 2012. Other than a change in presentation, the adoption of this guidance did not have a material impact on our consolidated financial statements. In July 2013, the FASB issued guidance to address the diversity in practice related to the financial statement presentation of unrecognized tax benefits as either a reduction of a deferred tax asset or a liability when a net operating loss carryforward, a similar tax loss or a tax credit carryforward exists. This guidance is effective prospectively for fiscal years, and interim periods within those years, beginning after December 15, 2013. The adoption of this guidance is not expected to have a material impact on our consolidated financial statements. 101 Table of Contents Item 7A. Quantitative and Qualitative Disclosures About Market Risk We invest in a variety of financial instruments, principally cash deposits, money market funds, securities issued by the U.S. government and its agencies and corporate debt securities. The goals of our investment policy are preservation of capital, fulfillment of liquidity needs and fiduciary control of cash and investments. We also seek to maximize income from our investments without assuming significant risk. Our primary exposure to market risk is interest income sensitivity, which is affected by changes in the general level of interest rates, particularly because our investments are in short-term marketable securities. Due to the short-term duration of our investment portfolio and the low risk profile of our investments, an immediate 1% change in interest rates would not have a material effect on the fair market value of our portfolio. We have the ability and intention to hold our investments until maturity, and therefore, we would not expect our operating results or cash flows to be affected to any significant degree by the effect of a sudden change in market interest rates on our investment portfolio. We do not currently have any auction rate or mortgage-backed securities. We do not believe our cash, cash equivalents and available-for-sale investments have significant risk of default or illiquidity, however we cannot provide absolute assurance that in the future our investments will not be subject to adverse changes in market value. The term loans under the Loan Agreement with Hercules bear interest at variable rates. We have an aggregate principal amount of $40.0 million outstanding under this facility. Interest is payable at an annual rate equal to the greater of 10.55% and 10.55% plus the prime rate of interest minus 5.25%, but may not exceed 12.55%. As a result of the 12.55% maximum annual interest rate, we have limited exposure to changes in interest rates on borrowings under this facility. For each 1% increase in the interest rate on the outstanding debt amount, subject to a maximum 2% increase, we would have an increase in future cash outflows of approximately $0.4 million over the next twelve month period based on the term of the loans as of December 31, 2013. The convertible senior notes bear interest at a fixed rate of 4.50% per year, payable semiannually in arrears on January 15 and July 15 of each year, beginning on January 15, 2014. As a result, we are not subject to interest rate risk with respect to the convertible senior notes. Item 8. Financial Statements and Supplementary Data Our consolidated financial statements, together with the report of our independent registered public accounting firm, appear on pages F-1 through F-32 of this Annual Report on Form 10-K. Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure None. Item 9A. Controls and Procedures Evaluation of Disclosure Controls and Procedures Our management, with the participation of our Chief Executive Officer and Chief Financial Officer (our principal executive officer and principal financial officer, respectively), evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2013. The term “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports 102 Table of Contents that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on the evaluation of our disclosure controls and procedures as of December 31, 2013, our Chief Executive Officer and Chief Financial Officer concluded that, as of such date, our disclosure controls and procedures were effective at the reasonable assurance level. Management’s Annual Report on Internal Control Over Financial Reporting Our management is responsible for establishing and maintaining adequate internal control over financial reporting for the company. Internal control over financial reporting is defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Exchange Act as a process designed by, or under the supervision of, the company’s principal executive and principal financial officers and effected by the company’s board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP and includes those policies and procedures that: Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Our management assessed the effectiveness of our internal control over financial reporting as of December 31, 2013. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission in Internal Control-Integrated Framework (1992). Based on its assessment, management concluded that, as of December 31, 2013, our internal control over financial reporting is effective based on those criteria. This Annual Report on Form 10-K does not include an attestation report of our independent registered public accounting firm regarding internal control over financial reporting. Management’s report was not subject to attestation by our independent registered public accounting firm pursuant to an exemption under Section 989G of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Changes in Internal Control Over Financial Reporting No change in our internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) occurred during the three months ended December 31, 2013 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting. Item 9B. Other Information None. 103 • Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the company; • Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and • Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the company’s assets that could have a material effect on the financial statements. Table of Contents PART III Item 10. Directors, Executive Officers and Corporate Governance The information required by this Item 10 will be included under the captions “Executive Officers,” “Director Nomination Process,” “Board Policies,” “Code of Business Conduct and Ethics,” “Board Meetings and Attendance” and “Section 16(a) Beneficial Ownership Reporting Compliance” in our definitive proxy statement to be filed with the SEC with respect to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference. Item 11. Executive Compensation The information required by this Item 11 will be included under the captions “Executive and Director Compensation Processes,” “Compensation Discussion and Analysis,” “Summary Compensation Table,” “Grants of Plan-Based Awards Table,” “Option Exercises and Stock Vested Table,” “Employment Agreements,” “Potential Payments Upon Termination or Change in Control” and “Compensation Committee Interlocks and Insider Participation” in our definitive proxy statement to be filed with the SEC with respect to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference. Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters The information required by this Item 12 will be included under the captions “Security Ownership of Certain Beneficial Owners and Management” and “Securities Authorized for Issuance Under Our Equity Compensation Plans” in our definitive proxy statement to be filed with the SEC with respect to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference. Item 13. Certain Relationships and Related Transactions, and Director Independence The information required by this Item 13 will be included, as applicable, under the captions “Employment Agreements,” “Potential Payments Upon Termination or Change in Control,” “Board Determination of Independence” and “Related Person Transactions” in our definitive proxy statement to be filed with the SEC with respect to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference. Item 14. Principal Accounting Fees and Services The information required by this Item 14 will be included under the captions “Audit Fees and Services” and “Pre-Approval Policies and Procedures” in our definitive proxy statement to be filed with the SEC with respect to our 2014 Annual Meeting of Stockholders and is incorporated herein by reference. 104 Table of Contents PART IV Item 15. Exhibits and Financial Statement Schedules Our consolidated financial statements are set forth on pages F-1 through F-32 of this Annual Report on Form 10-K and are incorporated herein by reference. Schedules have been omitted since they are either not required or not applicable or the information is otherwise included herein. The exhibits filed as part of this Annual Report on Form 10-K are listed in the Exhibit Index immediately preceding such Exhibits, which Exhibit Index is incorporated herein by reference. 105 (1) Financial Statements (2) Financial Statement Schedules (3) Exhibits Table of Contents MERRIMACK PHARMACEUTICALS, INC. INDEX TO CONSOLIDATED FINANCIAL STATEMENTS F-1 Report of Independent Registered Public Accounting Firm F-2 Consolidated Balance Sheets F-3 Consolidated Statements Of Comprehensive Loss F-4 Consolidated Statements of Convertible Preferred Stock, Non-Controlling Interest and Stockholders’ Deficit F-5 Consolidated Statements of Cash Flows F-6 Notes to Consolidated Financial Statements F-7 Table of Contents Report of Independent Registered Public Accounting Firm To the Board of Directors and Stockholders of Merrimack Pharmaceuticals, Inc. In our opinion, the accompanying consolidated balance sheets and the related consolidated statements of comprehensive loss, statements of convertible preferred stock, non-controlling interest and stockholders’ deficit, and statements of cash flows present fairly, in all material respects, the financial position of Merrimack Pharmaceuticals, Inc. and its subsidiaries at December 31, 2013 and December 31, 2012, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2013 in conformity with accounting principles generally accepted in the United States of America. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits of these statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. /s/ PricewaterhouseCoopers LLP Boston, Massachusetts March 4, 2014 F-2 Table of Contents Merrimack Pharmaceuticals, Inc. Consolidated Balance Sheets The accompanying notes are an integral part of these consolidated financial statements. F-3 December 31, (in thousands, except per share amounts) 2013 2012 Assets Current assets: Cash and cash equivalents $ 65,086 $ 37,714 Available-for-sale securities 90,116 72,238 Restricted cash 101 100 Accounts receivable 5,857 9,267 Prepaid expenses and other current assets 5,484 8,982 Total current assets 166,644 128,301 Restricted cash 584 528 Property and equipment, net 13,364 6,297 Other assets 175 1,068 Intangible assets, net 1,845 2,165 In-process research and development 6,200 7,010 Goodwill 3,605 3,605 Total assets $ 192,417 $ 148,974 Liabilities, Non-Controlling Interest and Stockholders’ Deficit Current liabilities: Accounts payable, accrued expenses and other $ 38,814 $ 25,644 Deferred revenues 9,336 9,350 Deferred rent 1,336 1,153 Long-term debt, current portion 8,248 2,373 Total current liabilities 57,734 38,520 Deferred revenues, net of current portion 66,139 71,114 Deferred rent, net of current portion 6,538 6,323 Deferred tax incentives, net of current portion 507 755 Long-term debt, net of current portion 103,427 37,482 Accrued interest 1,200 1,200 Total liabilities $ 235,545 $ 155,394 Commitments and contingencies (Note 16) Non-controlling interest 337 97 Stockholders’ deficit: Preferred stock, $0.01 par value: 10,000 shares authorized at December 31, 2013 and 2012, respectively; no shares issued or outstanding at December 31, 2013 or 2012 — — Common stock, $0.01 par value: 200,000 shares authorized at December 31, 2013 and 2012, respectively, 102,523 and 95,825 issued and outstanding at December 31, 2013 and 2012, respectively 1,025 958 Additional paid-in capital 527,779 434,679 Accumulated other comprehensive loss (24 ) (38 ) Accumulated deficit (572,245 ) (442,116 ) Total stockholders’ deficit $ (43,465 ) $ (6,517 ) Total liabilities, non-controlling interest and stockholders’ deficit $ 192,417 $ 148,974 Table of Contents Merrimack Pharmaceuticals, Inc. Consolidated Statements of Comprehensive Loss The accompanying notes are an integral part of these consolidated financial statements. F-4 Years ended December 31, (in thousands, except per share amounts) 2013 2012 2011 Collaboration revenues $ 47,786 $ 48,921 $ 34,215 Operating expenses: Research and development 147,139 125,858 100,630 General and administrative 21,187 15,805 14,454 Total operating expenses 168,326 141,663 115,084 Loss from operations (120,540 ) (92,742 ) (80,869 ) Other income and expenses Interest income 166 184 56 Interest expense (10,938 ) (553 ) (13 ) Other, net 627 1,357 1,150 Net loss (130,685 ) (91,754 ) (79,676 ) Less net income (loss) attributable to non-controlling interest 240 (477 ) (453 ) Net loss attributable to Merrimack Pharmaceuticals, Inc. (130,925 ) (91,277 ) (79,223 ) Other comprehensive income (loss): Unrealized loss on available-for-sale securities 14 (38 ) — Other comprehensive income (loss) 14 (38 ) — Comprehensive loss (130,911 ) (91,315 ) (79,223 ) Net loss per share available to common stockholders—basic and diluted ($ 1.32 ) ($ 1.28 ) ($ 7.67 ) Weighted-average common shares used in computing net loss per share available to common stockholders—basic and diluted 98,919 72,831 11,343 Table of Contents Merrimack Pharmaceuticals, Inc. Consolidated Statements of Convertible Preferred Stock, Non-Controlling Interest and Stockholders’ Deficit The accompanying notes are an integral part of these consolidated financial statements. F-5 Series B-G convertible preferred stock Non- controlling interest Common stock Additional paid-in capital Accumulated Other Comprehensive Loss Accumulated deficit Total stockholders’deficit (in thousands) Shares Amount Shares Amount Balance at December 31, 2010 53,148 $ 191,257 $ 1,027 11,073 $ 111 $ 51,541 $ — $ (271,616 ) $ (219,964 ) Exercise of stock options and common stock warrants — — — 761 7 1,738 — — 1,745 Stock-based compensation — — — — — 6,952 — — 6,952 Issuance of Series G stock 11,000 76,949 — — — — — — — Issuance of Series C stock as a result of warrant exercises 3 19 — — — — — — — Loss attributable to non-controlling interest — — (453 ) — — — — 453 453 Net loss — — — — — — — (79,676 ) (79,676 ) Balance at December 31, 2011 64,151 268,225 574 11,834 118 60,231 — (350,839 ) (290,490 ) Exercise of stock options and common stock warrants — — — 2,693 27 5,400 — — 5,427 Stock-based compensation — — — — — 6,889 — — 6,889 Conversion of convertible preferred stock into common stock 64,151 268,225 — 66,256 663 267,562 — — 268,225 Initial public offering, net of issuance costs — — — 15,042 150 97,931 — — 98,081 Series B dividends declared — — — — — (4,263 ) — — (4,263 ) Conversion of convertible preferred stock warrants to common stock warrants — — — — — 929 — — 929 Other comprehensive loss — — — — — — (38 ) — (38 ) Loss attributable to non-controlling interest — — (477 ) — — — — 477 477 Net loss — — — — — — — (91,754 ) (91,754 ) Balance at December 31, 2012 — — 97 95,825 958 434,679 (38 ) (442,116 ) (6,517 ) Exercise of stock options and common stock warrants — — — 948 9 2,027 — — 2,036 Stock-based compensation — — — — — 10,733 — — 10,733 Issuance of common stock in a public offering, net of issuance costs — — — 5,750 58 26,658 — — 26,716 Conversion option of convertible senior notes — — — — — 51,875 — — 51,875 Conversion of Silver Creek convertible notes payable — — 796 — — 1,807 — — 1,807 Other comprehensive income — — — — — — 14 — 14 Loss attributable to non-controlling interest — — (556 ) — — — — 556 556 Net loss — — — — — — — (130,685 ) (130,685 ) Balance at December 31, 2013 — $ — $ 337 102,523 $ 1,025 $ 527,779 $ (24 ) (572,245 ) $ (43,465 ) Table of Contents Merrimack Pharmaceuticals, Inc. Consolidated Statements of Cash Flows The accompanying notes are an integral part of these consolidated financial statements. F-6 Years ended December 31, (in thousands) 2013 2012 2011 Cash flows from operating activities Net loss $ (130,685 ) $ (91,754 ) $ (79,676 ) Adjustments to reconcile net loss to net cash (used in) provided by operating activities Non-cash interest expense 4,548 78 — Depreciation and amortization 2,589 3,664 4,596 Stock-based compensation 10,733 6,889 6,952 Other non-cash items 579 (587 ) 864 Changes in operating assets and liabilities: Purchased premiums and interest on available-for-sale securities (1,809 ) (2,354 ) — Accounts receivable 3,410 (1,841 ) (3,681 ) Prepaid expenses and other current assets 4,037 (2,477 ) (3,933 ) Accounts payable, accrued expenses and other 13,304 6,985 8,815 Deferred revenues (4,989 ) (5,281 ) 11,963 Deferred rent and tax incentives 2,076 7,892 1,264 Other assets and liabilities, net 1,032 (1,030 ) 19 Net cash used in operating activities (95,175 ) (79,816 ) (52,817 ) Cash flows from investing activities Purchase of available-for-sale securities (112,923 ) (115,665 ) — Proceeds from sales and maturities of available-for-sale securities 95,100 43,880 — Purchase of property and equipment (9,857 ) (3,189 ) (3,754 ) Assignment of restricted cash (57 ) (628 ) — Release of restricted cash — 381 — Other investing activities, net (2 ) — 7 Net cash used in investing activities (27,739 ) (75,221 ) (3,747 ) Cash flows from financing activities Proceeds from public offerings, net of offering costs 26,716 100,025 — Proceeds from issuance of convertible preferred stock, net of offering costs — — 76,949 Proceeds from exercise of common stock and warrants 2,036 5,427 1,745 Principal payment on capital lease obligations — (48 ) (443 ) Proceeds from issuance of debt, net of issuance costs 121,537 41,128 — Payments of dividends on Series B convertible preferred stock (3 ) (4,235 ) — Deferred financing costs — — (1,946 ) Net cash provided by financing activities 150,286 142,297 76,305 Net increase (decrease) in cash and cash equivalents 27,372 (12,740 ) 19,741 Cash and cash equivalents, beginning of period 37,714 50,454 30,713 Cash and cash equivalents, end of period $ 65,086 $ 37,714 $ 50,454 Noncash financing and investing activities Conversion of convertible preferred stock to common stock — 268,225 — Conversion of convertible preferred stock warrants to common stock warrants — 929 — Issuance of derivative liability 35 196 — Value of conversion feature of convertible senior notes, classified in Stockholders’ Deficit 51,876 — — Changes in property and equipment in accounts payable and accrued expenses — 412 — Disposals of fully depreciated assets 210 671 — Reclassification of deferred financing costs to stockholders’ deficit 278 2,748 — Dividends on Series B convertible preferred stock declared but not paid — 28 — Conversion of Silver Creek convertible notes 2,603 — — Supplemental disclosure of cash flows Cash paid for interest $ 3,915 $ 169 $ 13 Table of Contents Merrimack Pharmaceuticals, Inc. Notes to Consolidated Financial Statements 1. Nature of the Business Merrimack Pharmaceuticals, Inc. (the “Company”) is a biopharmaceutical company discovering, developing and preparing to commercialize innovative medicines consisting of novel therapeutics paired with companion diagnostics. The Company has six novel therapeutic oncology candidates in clinical development (MM-398, MM-121, MM-111, MM-302, MM-151 and MM-141), multiple product candidates in preclinical development and a discovery effort advancing additional candidate medicines. The Company has also recently entered into an agreement to utilize its manufacturing expertise to develop, manufacture and exclusively supply bulk drug to a third party, who will in turn process the drug into a finished product and commercialize it globally. The Company’s discovery and development efforts are driven by Network Biology, which is its proprietary systems biology-based approach to biomedical research. The Company was incorporated in the Commonwealth of Massachusetts in 1993 and reincorporated in the State of Delaware in October 2010. The Company is subject to risks and uncertainties common to companies in the biopharmaceutical industry, including, but not limited to, its ability to secure additional capital to fund operations, success of clinical trials, development by competitors of new technological innovations, dependence on collaborative arrangements, protection of proprietary technology, compliance with government regulations and dependence on key personnel. Product candidates currently under development will require significant additional research and development efforts, including extensive preclinical and clinical testing and regulatory approval prior to commercialization. These efforts require significant amounts of additional capital, adequate personnel, infrastructure and extensive compliance reporting capabilities. The Company has incurred significant losses and has not generated revenue from commercial sales. The accompanying consolidated financial statements have been prepared on a basis which assumes that the Company will continue as a going concern and which contemplates the realization of assets and satisfaction of liabilities and commitments in the normal course of business. As of December 31, 2013, the Company had unrestricted cash and cash equivalents and available-for-sale securities of $155.2 million. The Company expects that its existing unrestricted cash and cash equivalents and available-for-sale securities as of December 31, 2013, anticipated interest income and funding under its license and collaboration agreement with Sanofi related to MM-121 will enable the Company to fund operations into 2015. In the event that the Company obtains favorable results from the Phase 3 clinical trial of MM-398, the Company expects that anticipated additional expenses in 2014 related to the commercialization of MM-398 will be offset by cash received from potential collaboration opportunities. The Company may seek additional funding through public or private debt or equity financings, or through existing or new collaboration arrangements. The Company may not be able to obtain financing on acceptable terms, or at all, and the Company may not be able to enter into additional collaborative arrangements. The terms of any financing may adversely affect the holdings or the rights of the Company’s stockholders. Arrangements with collaborators or others may require the Company to relinquish rights to certain of its technologies or product candidates. If the Company is unable to obtain funding, the Company could be forced to delay, reduce or eliminate its research and development programs or commercialization efforts, which could adversely affect its business prospects. F-7 Table of Contents 2. Summary of Significant Accounting Policies Significant accounting policies followed by the Company in the preparation of its consolidated financial statements are as follows: Basis of Presentation and Consolidation The accompanying consolidated financial statements have been prepared under U.S. generally accepted accounting principles (“GAAP”) and include the accounts of the Company and its wholly owned subsidiaries. The Company’s wholly owned subsidiaries include Hermes BioSciences, Inc. (“Hermes”), which was merged with and into the Company during 2009, and Merrimack Pharmaceuticals (Bermuda) Ltd., which was incorporated during 2011. The Company also consolidates its majority owned subsidiary, Silver Creek Pharmaceuticals, Inc. (“Silver Creek”). All intercompany transactions and balances have been eliminated in consolidation. Use of Estimates GAAP requires the Company’s management to make estimates and judgments that may affect the reported amounts of assets, liabilities, revenues, expenses and related disclosures. The Company bases estimates and judgments on historical experience and on various other factors that it believes to be reasonable under the circumstances. The most significant estimates in these consolidated financial statements include revenue recognition, including the estimated percentage of billable expenses in any particular budget period, periods of meaningful use of licensed products, estimates used in accounting for revenue separability and recognition, useful lives with respect to long-lived assets and intangibles, accounting for stock-based compensation, convertible preferred stock warrants, contingencies, intangible assets, goodwill, in-process research and development, derivative liability, valuation of convertible debt, tax valuation reserves and accrued expenses, including clinical research costs. The Company’s actual results may differ from these estimates under different assumptions or conditions. The Company evaluates its estimates on an ongoing basis. Changes in estimates are reflected in reported results in the period in which they become known by the Company’s management. Segment and Geographic Information Operating segments are defined as components of an enterprise engaging in business activities for which discrete financial information is available and regularly reviewed by the chief operating decision maker in deciding how to allocate resources and in assessing performance. The Company views its operations and manages its business in one operating segment and the Company operates in only one geographic segment. Cash, Cash Equivalents and Restricted Cash Cash and cash equivalents are short-term, highly liquid investments with original maturities of three months or less at the date of purchase. Investments qualifying as cash equivalents typically primarily consist of money market funds, commercial paper, corporate notes and bonds and certificates of deposit. Cash accounts with any type of restriction are classified as restricted cash. If restrictions are expected to be lifted in the next twelve months, the restricted cash account is classified as current. As of December 31, 2013 and 2012, the Company recorded restricted cash of $685,000 and $628,000, respectively, which were primarily related to the Company’s facility lease. Available-for-Sale Securities The Company classifies marketable securities with a remaining maturity when purchased of greater than three months as available-for-sale. Available-for-sale securities may consist of U.S. government agencies securities, commercial paper, corporate notes and bonds and certificates of deposit, which are maintained by an investment manager. Available-for-sale securities are carried at fair value, with the unrealized gains and losses included in other comprehensive income (loss) as a component of stockholders’ deficit until realized. Realized gains and losses are recognized in interest income. Any premium or discount arising at purchase is amortized F-8 Table of Contents and/or accreted to interest income. There were no realized gains or losses recognized on the sale or maturity of available-for-sale securities during the years ended December 31, 2013, 2012 or 2011. Concentration of Credit Risk Financial instruments that subject the Company to credit risk consist primarily of cash and cash equivalents, available-for-sale securities and accounts receivable. The Company places its cash deposits in accredited financial institutions and, therefore, the Company’s management believes these funds are subject to minimal credit risk. The Company invests cash equivalents and available-for-sale securities in money market funds, U.S. government agencies securities and various corporate debt securities. Credit risk in these securities is reduced as a result of the Company’s investment policy to limit the amount invested in any one issue or any single issuer and to only invest in high credit quality securities. The Company has no significant off-balance sheet concentrations of credit risk such as foreign currency exchange contracts, option contracts or other hedging arrangements. For each of the years ended December 31, 2013 and 2012, Sanofi represented greater than 98% of collaboration revenues. As of December 31, 2013 and 2012, Sanofi represented greater than 98% and 99% of accounts receivable, respectively. Property and Equipment Property and equipment, including leasehold improvements, are recorded at cost and depreciated when placed into service using the straight-line method, based on their estimated useful lives as follows: Costs for capital assets not yet placed into service have been capitalized as construction-in-progress and will be depreciated in accordance with the above guidelines once placed into service. Costs for repairs and maintenance are expensed as incurred, while major betterments are capitalized. The Company capitalizes interest cost incurred on funds used to construct property and equipment. The capitalized interest is recorded as part of the asset to which it relates and is depreciated over the asset’s estimated useful life. Upon retirement or sale, the cost of assets disposed of and the related accumulated depreciation are removed from the accounts and any resulting gain or loss is reflected in earnings. The Company reviews its long-lived assets for impairment whenever events or changes in business circumstances indicate that the carrying amount of assets may not be fully recoverable or that the useful lives of these assets are no longer appropriate. Each impairment test is based on a comparison of the undiscounted cash flow to the recorded value of the asset. If impairment is indicated, the asset will be written down to its estimated fair value on a discounted cash flow basis. Non-Controlling Interest Non-controlling interest represents the non-controlling stockholders’ proportionate share of preferred stock and net loss of the Company’s majority owned consolidated subsidiary, Silver Creek. The non-controlling stockholders’ proportionate share of the preferred stock in Silver Creek is reflected as non-controlling interest in the Company’s consolidated balance sheets as of December 31, 2013 and 2012, respectively, as a component of mezzanine equity. Derivative Liability In December 2012, the Company’s majority owned subsidiary, Silver Creek, entered into a Note Purchase Agreement pursuant to which it issued convertible notes to various lenders in aggregate principal amounts of $1.6 million in December 2012, $0.3 million in February 2013 and $0.6 million in December 2013. Upon F-9 Asset classification Estimated useful life (in years) Lab equipment 3 - 7 IT equipment 3 - 7 Leaseholds improvements Lesser of useful life or lease term Furniture and fixtures 3 - 7 Table of Contents issuance, the Company determined that the underlying convertible notes represented share-settled debt and the potential conversion of the convertible notes into Silver Creek’s next qualifying series of preferred stock at a discount met the definition of a derivative, which was classified as a liability and remeasured each reporting period. Prior to conversion on December 31, 2013, the derivative was remeasured with changes in fair value recognized in earnings. The aggregate principal of $2.5 million and accrued interest of $0.1 million converted into shares of Silver Creek Series A preferred stock upon maturity on December 31, 2013. The Company estimated the value of the derivative liability issued in connection with the convertible notes payable at zero upon full conversion as of December 31, 2013 and $196,000 as of December 31, 2012. Revenue Recognition The Company enters into biopharmaceutical product development agreements with collaborative partners for the research and development of therapeutic and diagnostic products. The terms of the agreements may include nonrefundable signing and licensing fees, funding for research, development and manufacturing, milestone payments and royalties or profit-sharing on any product sales derived from collaborations. These multiple element arrangements are analyzed to determine whether the deliverables can be separated or whether they must be accounted for as a single unit of accounting. In January 2011, the Company adopted authoritative guidance on revenue recognition for multiple element arrangements. This guidance, which applies to multiple element arrangements entered into or materially modified on or after January 1, 2011, separates and allocates consideration in a multiple element arrangement according to the relative selling price of each deliverable. The fair value of deliverables under the arrangement may be derived using a best estimate of selling price if vendor specific objective evidence and third-party evidence are not available. Deliverables under the arrangement will be separate units of accounting provided that a delivered item has value to the customer on a stand-alone basis and if the arrangement does not include a general right of return relative to the delivered item and delivery or performance of the undelivered item is considered probable and substantially in the control of the vendor. The Company entered into a collaboration agreement with Watson Laboratories, Inc. (“Actavis”) in November 2013, which was evaluated under the accounting guidance on revenue recognition for multiple element arrangements. See Note 5, “License and Collaboration Agreements,” for additional information. The Company’s license and collaboration agreements executed prior to January 1, 2011 continue to be accounted for under previously issued revenue recognition guidance for multiple element arrangements and milestone revenue recognition. The Company recognized upfront license payments as revenue upon delivery of the license only if the license had stand-alone value and the fair value of the undelivered performance obligations could be determined. If the fair value of the undelivered performance obligations could be determined, such obligations were accounted for separately as the obligations were fulfilled. If the license was considered to either not have stand-alone value or have stand-alone value but the fair value of any of the undelivered performance obligations could not be determined, the arrangement was accounted for as a single unit of accounting and the license payments and payments for performance obligations were recognized as revenue over the estimated period of when the performance obligations would be performed. Whenever the Company determined that an arrangement should be accounted for as a single unit of accounting, it determined the period over which the performance obligations would be performed and revenue would be recognized. If the Company could not reasonably estimate the timing and the level of effort to complete its performance obligations under the arrangement, then revenue under the arrangement was recognized on a straight-line basis over the period the Company expected to complete its performance obligations, which is reassessed at each subsequent reporting period. The Company’s collaboration agreements may include additional payments upon the achievement of performance-based milestones. As milestones are achieved, a portion of the milestone payment, equal to the percentage of the total time that the Company has performed the performance obligations to date over the total F-10 Table of Contents estimated time to complete the performance obligations, multiplied by the amount of the milestone payment, will be recognized as revenue upon achievement of such milestone. The remaining portion of the milestone will be recognized over the remaining performance period. Milestones that are tied to regulatory approvals are not considered probable of being achieved until such approval is received. Milestones tied to counterparty performance are not included in the Company’s revenue model until the performance conditions are met. Royalty revenue will be recognized upon the sale of the related products provided the Company has no remaining performance obligations under the arrangement. The Company did not materially modify any of its previously-existing multiple element arrangements during the years ended December 31, 2013 and 2012. Research and Development Expenses Research and development expenses are charged to expense as incurred. Research and development expenses comprise costs incurred in performing research and development activities, including personnel-related costs, stock-based compensation, facilities, research-related overhead, clinical trial costs, contracted services, manufacturing, license fees and other external costs. The Company accounts for nonrefundable advance payments for goods and services that will be used in future research and development activities as expenses when the service has been performed or when the goods have been received rather than when the payment is made. Stock-Based Compensation The Company expenses the fair value of employee stock options over the vesting period. Compensation expense is measured using the fair value of the award at the grant date, net of estimated forfeitures, and is adjusted annually to reflect actual forfeitures. The fair value of each stock-based award is estimated using the Black-Scholes option valuation model and is expensed straight-line over the vesting period. The Company records stock options issued to non-employees at fair value, periodically remeasures to reflect the current fair value at each reporting period, and recognizes expense over the related service period. When applicable, these equity instruments are accounted for based on the fair value of the consideration received or the fair value of the equity instrument issued, whichever is more reliably measurable. Comprehensive Income (Loss) Comprehensive income (loss) is defined as the change in equity of a business enterprise during a period from transactions, and other events and circumstances, from non-owner sources and currently consists of net loss and changes in unrealized gains and losses on available-for-sale securities. Other Income and Expense The Company records gains and losses on the remeasurement of fair value of convertible preferred stock warrants and other derivative liabilities, the federal and state sponsored tax incentives and other one-time income or expense-related items in other income. In January 2010, the Massachusetts Life Sciences Center (“MLSC”), an independent agency of the Commonwealth of Massachusetts, awarded the Company $1.5 million of tax incentives under its Life Sciences Tax Incentive Program. These incentives allowed the Company to monetize approximately $1.4 million of state research and development tax credits. The Company received this payment in 2010. In exchange for these incentives, the Company pledged to hire an incremental 50 employees and retain these employees until at least December 31, 2014. Failure to do so could result in the repayment of some or all of these incentives. The Company deferred and is amortizing the benefit of this incentive on a straight-line basis over the five-year performance period, with a cumulative catch-up in the period the pledge is achieved. For the years ended December 31, 2013, 2012 and 2011, the Company recognized $0.3 million of benefit in other income in each period. F-11 Table of Contents In January 2011, the MLSC awarded the Company an additional $1.3 million of tax incentives under its Life Sciences Tax Incentive Program, which allowed the Company to monetize approximately $1.2 million of state research and development tax credits. The Company received this payment in the second quarter of 2011. In exchange for these incentives, the Company pledged to hire an incremental 50 employees and retain these employees until at least December 31, 2015. Failure to do so could result in the repayment of some or all of these incentives. The Company deferred and is amortizing the benefit of this incentive on a straight-line basis over the five-year performance period, with a cumulative catch-up in the period the pledge is achieved. For the years ended December 31, 2013 and 2012, the Company recognized $0.2 million and $0.5 million, respectively, of benefit in other income. For the year ended December 31, 2011, the Company did not recognize any benefit in other income. In January 2013, the MLSC awarded the Company an additional $0.5 million of tax incentives under its Life Science Tax Incentive Program, which allows the Company to monetize approximately $0.4 million of state research and development tax credits. The Company received this payment in the fourth quarter of 2013. In exchange for these incentives, the Company pledged to hire an incremental 20 employees and to maintain the additional headcount through at least December 31, 2017. Failure to do so could result in the Company being required to repay some or all of these incentives. The Company has deferred and will amortize the benefit of this incentive on a straight-line basis over the five-year performance period, commencing with a cumulative catch-up when the pledge is achieved. Deferred Financing Costs The Company capitalizes certain legal, accounting and other fees that are directly associated with in-process debt and equity financings as current assets until such financings occur. In the case of an equity financing, after occurrence, these costs are recorded in equity or mezzanine equity, net of proceeds received. In the case of a debt financing, these costs are recorded as assets and amortized over the term of the debt. In April 2012, the Company closed the initial public offering of its common stock. Upon closing, $2.7 million of deferred financing costs were netted against the equity proceeds within stockholders’ deficit. In July 2013, the Company closed a follow-on underwritten public offering of additional shares of common stock and issued convertible senior notes in concurrent public offerings. Upon closing, $0.6 million of aggregate deferred financing costs were netted against the proceeds of these offerings. Income Taxes The Company accounts for income taxes under the asset and liability method. Under this method, deferred tax assets and liabilities are recognized for the estimated future tax consequences attributable to differences between financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted rates in effect for the year in which these temporary differences are expected to be recovered or settled. Valuation allowances are provided if based on the weight of available evidence, it is more likely than not that some or all of the deferred tax assets will not be realized. The Company provides reserves for potential payments of tax to various tax authorities related to uncertain tax positions and other issues. Reserves are based on a determination of whether and how much of a tax benefit taken by the Company in its tax filing is more likely than not to be realized following resolution of any potential contingencies present related to the tax benefit. Potential interest and penalties associated with such uncertain tax positions are recorded as components of income tax expense. To date, the Company has not taken any uncertain tax positions or recorded any reserves, interest or penalties. F-12 Table of Contents Goodwill and Intangible Assets Goodwill and indefinite-lived intangible assets, including in-process research and development (“IPR&D”), are evaluated for impairment on an annual basis or more frequently if an indicator of impairment is present. No impairment of goodwill resulted from the Company’s most recent evaluation, which occurred in the third quarter of 2013. The Company’s next annual impairment evaluation will be made in the third quarter of 2014 unless indicators arise that would require the Company to evaluate at an earlier date. When performing an evaluation of goodwill impairment, the Company has the option to first assess qualitative factors to determine whether it is necessary to perform the quantitative two-step impairment test. If the Company elects this option and finds, as a result of the qualitative assessment, that it is more likely than not that the fair value of the reporting unit is less than its carrying amount, the quantitative two-step impairment test is required; otherwise, no further testing is required. This requires the Company to assess the impact of significant events, milestones and changes to expectations and activities that may have occurred since the last impairment evaluation. Significant changes to these estimates, judgments and assumptions could materially change the outcome of the impairment assessment. Alternatively, the Company may elect to not first assess qualitative factors and immediately perform the quantitative two-step impairment test. If such an election occurs, in the first step, the fair value of the Company’s reporting unit is compared to the carrying value. If the carrying value of the net assets assigned to the reporting unit exceeds the fair value of the reporting unit, then the second step of the impairment test is performed in order to determine the implied fair value of the reporting unit’s goodwill. If the carrying value of the reporting unit’s goodwill exceeds the implied fair value, then the Company would record an impairment loss equal to the difference. As described above, the Company operates in one operating segment, which is considered the only reporting unit. The Company’s evaluation of IPR&D impairment included a qualitative assessment to determine whether further impairment testing of indefinite-lived intangible assets was necessary. For all but one IPR&D asset, it was determined that it was not more likely than not that an impairment existed as of August 31, 2013 and, therefore, impairment evaluations were not performed. In this one case, because it was determined that it was more likely than not that an impairment of one IPR&D asset existed as of August 31, 2013, an impairment evaluation was performed. These determinations and the evaluation required management to make significant estimates, judgments and assumptions as to development activities and future commercial potential of IPR&D and to assess the impact of significant events, milestones and changes to expectations and activities that may have occurred since the last impairment evaluation. Specifically, management considered estimated time and cost until the expected commencement of commercial activities, estimates of expected future revenues and cash flows, estimates of probabilities of success of the Company’s IPR&D, estimates of expected intellectual property protection and discount rates. Significant changes to these estimates, judgments and assumptions could materially change the outcome of management’s impairment assessment. The impairment evaluation resulted in the Company recognizing a $0.8 million impairment charge related to an early-stage preclinical program, which was charged to research and development expense. See Note 8, “Goodwill and Intangible Assets, Net,” for additional information. The Company commences amortization of indefinite-lived intangible assets, such as IPR&D, once the assets have reached technological feasibility or are determined to have an alternative future use and amortizes the assets over their estimated future lives. Amortization of remaining IPR&D has not commenced as of December 31, 2013. Definite-lived intangible assets, such as core technology, are evaluated for impairment whenever events or circumstances indicate that the carrying value may not be fully recoverable. Definite-lived intangible assets are separate from goodwill and indefinite-lived intangible assets and are deemed to have a definite life. The Company amortizes these assets over their estimated useful lives. The Company has not recorded any impairment charges related to definite-lived intangible assets. F-13 Table of Contents Subsequent Events The Company has evaluated all events or transactions that occurred after December 31, 2013 up through the date the Company issued these financial statements. Other than the items discussed at Note 20, “Subsequent Events,” the Company did not have any other material recognizable or unrecognizable subsequent events. Recent Accounting Pronouncements In February 2013, the Financial Accounting Standards Board (“FASB”) issued amendments to the accounting guidance for presentation of comprehensive income to improve the reporting of reclassifications out of accumulated other comprehensive income. The amendments do not change the current requirements for reporting net income or other comprehensive income, but do require an entity to provide information about the amounts reclassified out of accumulated other comprehensive income by component. In addition, an entity is required to present, either on the face of the statement where the net income is presented or in the notes, significant amounts reclassified out of accumulated other comprehensive income by the respective line items of net income but only if the amount reclassified is required under GAAP to be reclassified to net income in its entirety in the same reporting period. For other amounts that are not required under GAAP to be reclassified in their entirety to net income, an entity is required to cross-reference to other disclosures required under GAAP that provide additional detail about these amounts. For public companies, these amendments are effective prospectively for reporting periods beginning after December 15, 2012. Other than a change in presentation, the adoption of this guidance did not have a material impact on the Company’s consolidated financial statements. In July 2013, the FASB issued guidance to address the diversity in practice related to the financial statement presentation of unrecognized tax benefits as either a reduction of a deferred tax asset or a liability when a net operating loss carryforward, a similar tax loss or a tax credit carryforward exists. This guidance is effective prospectively for fiscal years, and interim periods within those years, beginning after December 15, 2013. The adoption of this guidance is not expected to have a material impact on the Company’s consolidated financial statements. 3. Marketable Securities Available-for-sale securities, all of which have maturities of twelve months or less, as of December 31, 2013 consisted of the following: The aggregate fair value of securities held by the Company in an unrealized loss position for less than 12 months as of December 31, 2013 was $77.1 million, representing 21 securities. To determine whether an other-than-temporary impairment exists, the Company performs an analysis to assess whether it intends to sell, or whether it would more likely than not be required to sell, the security before the expected recovery of the amortized cost basis. Where the Company intends to sell a security, or may be required to do so, the security’s decline in fair value is deemed to be other-than-temporary and the full amount of the unrealized loss is recognized on the statement of comprehensive loss as an other-than-temporary impairment charge. When this is not the case, the Company performs additional analysis on all securities with unrealized losses to evaluate losses associated with the creditworthiness of the security. Credit losses are identified where the Company does not expect to receive cash flows, based on using a single best estimate, sufficient to recover the amortized cost basis of a security and amount of the loss recognized in other income (expense). F-14 Amortized Cost Unrealized Gains Unrealized Losses Fair Value (in thousands) December 31, 2013: Commercial paper $ 49,685 $ — $ (5 ) $ 49,680 Corporate debt securities 40,455 — (19 ) 40,436 Total $ 90,140 $ — $ (24 ) $ 90,116 Table of Contents Available-for-sale securities in an unrealized loss position as of December 31, 2013 consisted of the following: The Company does not intend to sell and it is not more likely than not that the Company will be required to sell the above investments before recovery of their amortized cost bases, which may be maturity. The Company determined that there was no material change in the credit risk of the above investments. As a result, the Company determined it did not hold any investments with an other-than-temporary-impairment as of December 31, 2013. 4. Net Loss Per Common Share Basic net loss per share is calculated by dividing the net loss available to common stockholders by the weighted-average number of common shares outstanding during the period, without consideration for common stock equivalents. Diluted net loss per share is computed by dividing the net loss available to common stockholders by the weighted-average number of common share equivalents outstanding for the period determined using the treasury-stock method. For purposes of this calculation, convertible preferred stock, stock options and warrants are considered to be common stock equivalents and are only included in the calculation of diluted net loss per share when their effect is dilutive. The following table presents the computation of basic and diluted net loss per share available to common stockholders: As discussed in Note 11, “Borrowings,” in July 2013, the Company issued $125.0 million aggregate principal amount of 4.50% convertible senior notes due 2020 (the “Notes”) in an underwritten public offering. Upon any conversion of the Notes while the Company has indebtedness outstanding under the Loan and Security Agreement (the “Loan Agreement”) with Hercules Technology Growth Capital, Inc. (“Hercules”), the Notes will be settled in shares of the Company’s common stock. Following the repayment and satisfaction in full of the Company’s obligations to Hercules under the Loan Agreement, upon any conversion of the Notes, the Notes may be settled, at the Company’s election, in cash, shares of the Company’s common stock or a combination of cash and shares of the Company’s common stock. For purposes of calculating the maximum dilutive impact, it is presumed that the conversion premium will be settled in common stock, inclusive of a contractual make-whole provision resulting from a fundamental change, and the resulting potential common shares included in diluted F-15 Aggregate Fair Value Unrealized Losses (in thousands) December 31, 2013: Commercial paper $ 36,683 $ (5 ) Corporate debt securities 40,436 (19 ) $ 77,119 $ (24 ) Years ended December 31, (in thousands, except per share amount) 2013 2012 2011 Net Loss Per Share: Numerator: Net loss attributable to Merrimack Pharmaceuticals, Inc. $ (130,925 ) $ (91,277 ) $ (79,223 ) Plus: Unaccreted dividends on convertible preferred stock — (2,107 ) (7,789 ) Net loss available to common stockholders—basic and diluted (130,925 ) (93,384 ) (87,012 ) Denominator: Weighted-average common shares—basic and diluted 98,919 72,831 11,343 Net loss per share available to common stockholders—basic and diluted $ (1.32 ) $ (1.28 ) $ (7.67 ) Table of Contents earnings per share if the effect is more dilutive. The stock options, warrants and conversion premium on the Notes are excluded from the calculation of diluted loss per share because the net loss for the years ended December 31, 2013, 2012 and 2011 causes such securities to be anti-dilutive. The potential dilutive effect of these securities is shown in the chart below: 5. License and Collaboration Agreements Sanofi On September 30, 2009, the Company entered into a license and collaboration agreement with Sanofi for the development and commercialization of a drug candidate being developed by the Company under the name MM-121. The agreement became effective on November 10, 2009 and Sanofi paid the Company a nonrefundable, noncreditable upfront license fee of $60.0 million. Over the life of the agreement, the Company has received total milestone payments of $25.0 million. These milestone payments were $10.0 million associated with dosing the first patient in a Phase 2 clinical trial in breast cancer in 2010, $10.0 million associated with dosing the first patient in a Phase 2 clinical trial in non-small cell lung cancer in 2011 and $5.0 million associated with dosing the first patient in a Phase 2 clinical trial in ovarian cancer in 2012. The Company is eligible to receive additional future development, regulatory and sales milestone payments as well as future royalty payments depending on the success of MM-121. Under the agreement, Sanofi is responsible for all MM-121 development and manufacturing costs. The Company has the right, but not the obligation, to co-promote and commercialize MM-121 in the United States and to participate in the development of MM-121 through Phase 2 proof of concept trials. Also as part of the agreement, the Company was required to manufacture certain quantities of MM-121 and, at Sanofi’s and the Company’s option, may continue to manufacture additional quantities of MM-121 in the future. The Company has satisfied its manufacturing obligations under the agreement as of December 31, 2013. Sanofi reimburses the Company for direct costs incurred in both development and manufacturing and compensates the Company for its internal development efforts based on a full time equivalent (“FTE”) rate. The Company applied revenue recognition guidance to determine whether the performance obligations under this collaboration, including the license, the right to future technology, back-up compounds, participation on steering committees, development services and manufacturing services, could be accounted for separately or as a single unit of accounting. The Company determined that its development services performance obligation is considered a separate unit of accounting as it is set at the Company’s option, has stand-alone value and the FTE rate is considered fair value. Therefore, the Company recognizes cost reimbursements for MM-121 development services within the period they are incurred and billable. Billable expenses are defined during each specified budget period. For the year ended December 31, 2013, this specified budget period is the 12-month annual period ended December 31, 2013. In the event that total development services expense incurred and expected to be incurred, during any particular budget period, exceed the total contractually allowed billable amount for development services during the same period, the Company recognizes only a percentage of the development services incurred as revenue during that period. This percentage is calculated as total development services expense incurred during the specified budget period divided by the sum of total development services expense incurred plus estimated development services expense to be incurred during the specified period, multiplied by the total contractually allowed billable amount for development services during the specified period, less development services revenue previously recognized within the specified period. The Company determined that F-16 Years ended December 31, (in thousands) 2013 2012 2011 Common stock warrants 2,777 2,842 2,640 Convertible preferred stock — — 66,256 Options to purchase common stock 20,107 18,066 17,617 Convertible preferred stock warrants — — 302 Conversion of the Notes 25,000 — — Table of Contents the license, the right to future technology, back-up compounds, participation on steering committees and manufacturing services performance obligations represented a single unit of accounting. As the Company cannot reasonably estimate its level of effort over the collaboration, the Company recognizes revenue from the upfront payment, milestone payment and manufacturing services payments using the contingency-adjusted performance model over the expected development period, which is currently estimated to be 12 years from the effective date of the agreement. Under this model, when a milestone is earned or manufacturing services are rendered and product is delivered, revenue is immediately recognized on a pro-rata basis in the period the milestone was achieved or product was delivered based on the time elapsed from the effective date of the agreement. Thereafter, the remaining portion is recognized on a straight-line basis over the remaining development period. During the years ended December 31, 2013, 2012 and 2011, the Company recognized revenue based on the following components of the Sanofi agreement: The Company performs development services for which revenue is recognized under the Sanofi agreement in accordance with the specified budget period. During the year and specified budget period ended December 31, 2013, the Company performed $10.1 million of development services in excess of recognized revenue. During the years ended December 31, 2012 and 2011, development services approximated recognized revenue. As of December 31, 2013 and 2012, the Company maintained the following assets and liabilities related to the Sanofi agreement: PharmaEngine, Inc. On May 5, 2011, the Company entered into an assignment, sublicense and collaboration agreement with PharmaEngine, Inc. (“PharmaEngine”) under which the Company reacquired rights in Europe and certain countries in Asia to a drug being developed under the name MM-398. In exchange, the Company agreed to pay PharmaEngine a nonrefundable, noncreditable upfront payment of $10.0 million and will be required to pay up to an aggregate of $80.0 million in development and regulatory milestone payments and $130.0 million in sales milestone payments upon the achievement of specified development, regulatory and annual net sales milestones. During the first quarter of 2012, the Company paid a milestone of $5.0 million under the collaboration agreement with PharmaEngine in connection with dosing the first patient in a Phase 3 clinical trial of MM-398 in pancreatic cancer. PharmaEngine is also entitled to tiered royalties on net sales of MM-398 in Europe and certain countries in Asia. The Company is responsible for all future development costs of MM-398 except those required specifically for regulatory approval in Taiwan. During the years ended December 31, 2013, 2012 and 2011, the Company recognized research and development expenses of $1.5 million, $6.2 million and $11.2 million, respectively, related to the agreement with PharmaEngine. These amounts include a $5.0 million milestone payment expensed in the year ended F-17 Years ended December 31, (in thousands) 2013 2012 2011 Upfront payment $ 5,000 $ 5,000 $ 5,000 Milestone payment 2,083 2,975 2,616 Development services 36,283 36,905 25,053 Manufacturing services and other 3,867 3,307 1,456 Total $ 47,233 48,187 $ 34,125 December 31, (in thousands) 2013 2012 Accounts receivable, billed $ 2,357 $ 1,577 Accounts receivable, unbilled 3,417 7,690 Deferred revenues 73,392 79,913 Table of Contents December 31, 2012 and a $10.0 million upfront payment expensed in the year ended December 31, 2011. As of December 31, 2013 and 2012, the Company had amounts accrued and payable of $0.6 million and $0.3 million, respectively, related to the agreement with PharmaEngine. Actavis In November 2013, the Company and Actavis entered into a development, license and supply agreement pursuant to which the Company will develop, manufacture and exclusively supply the bulk form of doxorubicin HCl liposome injection (the “Initial Product”) to Actavis. Under the agreement, Actavis is responsible for all costs related to finished product processing and global commercialization. Pursuant to the agreement, additional products may be developed for Actavis in the future. The Company is eligible to receive up to $15.5 million, including $2.0 million upfront, which was received in December 2013, and the remainder in development funding and development, regulatory and commercial milestone payments related to the Initial Product. The Company will also receive a double digit share of net profits on global sales of the Initial Product and any additional products. The Company will manufacture and supply the Initial Product to Actavis in bulk form at an agreed upon unit price. The agreement will expire with respect to each product ten years after Actavis’ first sale of such product, unless terminated earlier, and will automatically renew for additional two year periods thereafter unless either party provides notice of non-renewal. Either party may terminate the agreement in the event of an uncured material breach or bankruptcy filing by the other party. Actavis may also terminate the agreement for convenience in specified circumstances upon 90 days’ prior written notice. The Company applied revenue recognition guidance to determine whether the performance obligations under this collaboration, including the license, participation on steering committees, development services, and manufacturing and supply services could be accounted for separately or as a single unit of accounting. The Company determined that these obligations represent a single unit of accounting and will recognize revenue as product is supplied to Actavis. Therefore, the Company has deferred total billed and billable milestones and development expenses of $2.1 million as of December 31, 2013. GTC Biotherapeutics, Inc. In July 2009, the Company entered into a license agreement with GTC Biotherapeutics, Inc. (“GTC”) for the development of MM-093 by GTC. On March 19, 2013, GTC terminated the license agreement. As a result, the Company recognized the remaining $0.6 million of deferred revenue related to this license agreement during the first quarter of 2013. 6. Fair Value of Financial Instruments The carrying value of financial instruments, including cash and cash equivalents, restricted cash, available-for-sale securities, prepaid expenses, accounts receivable, accounts payable and accrued expenses, and other short-term assets and liabilities approximate their respective fair values due to the short-term maturities of these instruments and debts. The derivative liability is also carried at fair value. Fair value is an exit price, representing the amount that would be received from the sale of an asset or paid to transfer a liability in an orderly transaction between market participants. Fair value is determined based on observable and unobservable inputs. Observable inputs reflect readily obtainable data from independent sources, while unobservable inputs reflect certain market assumptions. As a basis for considering such assumptions, GAAP establishes a three-tier value hierarchy, which prioritizes the inputs used to develop the assumptions and for measuring fair value as follows: (Level 1) observable inputs such as quoted prices in active markets for identical assets; (Level 2) inputs other than the quoted prices in active markets that are observable either directly or indirectly; and (Level 3) unobservable inputs in which there is little or no market data, which requires the Company to develop its own assumptions. This hierarchy requires the Company to use observable market data, when available, and to minimize the use of unobservable inputs when determining fair value. F-18 Table of Contents Recurring Fair Value Measurement The following tables show assets and liabilities measured at fair value on a recurring basis as of December 31, 2013 and 2012 and the input categories associated with those assets and liabilities: The Company’s investment portfolio consists of investments classified as cash equivalents and available-for-sale securities. All highly liquid investments with an original maturity of three months or less when purchased are considered to be cash equivalents. The Company’s cash and cash equivalents are invested in U.S. treasury and various corporate debt securities that approximate their face value. All marketable securities with an original maturity when purchased of greater than three months are classified as available-for-sale. Available-for-sale securities are carried at fair value, with the unrealized gains and losses reported in other comprehensive income (loss). The amortized cost of securities in this category is adjusted for amortization of premiums and accretion of discounts to maturity. The fair value of the derivative liability as of December 31, 2012 and throughout the year ended December 31, 2013 was determined using a probability-weighted valuation model based on the likelihood of Silver Creek achieving a qualified financing. The significant unobservable input used in the fair value measurement of the Company’s derivative liability was the probability of Silver Creek’s successful achievement of aggregate financings of at least $4.0 million of gross proceeds prior to December 31, 2013. As discussed in Note 11, “Borrowings,” Silver Creek’s derivative liability was remeasured upon the maturation and conversion of the underlying note payable on December 31, 2013 to a zero percent probability of achieving the aggregate financings and converting at a discount, with the change in fair value recognized in other income. The following table provides a roll-forward of the fair value of the liabilities categorized as Level 3 instruments, for the years ended December 31, 2013 and 2012: F-19 As of December 31, 2013 (in thousands) Level 1 Level 2 Level 3 Assets: Cash equivalents—money market funds $ 47,740 $ — $ — Cash equivalents—commercial paper — 13,998 — Investments—commercial paper — 49,680 — Investments—corporate debt securities — 40,436 — As of December 31, 2012 (in thousands) Level 1 Level 2 Level 3 Assets: Cash equivalents—money market funds $ 25,668 $ — $ — Cash equivalents—certificates of deposit — 480 — Cash equivalents—corporate debt securities — 5,017 — Investments—certificates of deposit — 240 — Investments—commercial paper — 12,465 — Investments—corporate debt securities — 59,533 — Liabilities: Derivative liability — — 196 (in thousands) Convertible preferred stock warrants Derivative Liability Balance, December 31, 2011 $ 1,516 $ — Unrealized gain included in other income (expense) (587 ) — Reclassification to common stock warrants (929 ) — Portion of convertible note allocated to derivative — 196 Balance, December 31, 2012 $ — $ 196 Portion of convertible note allocated to derivative — 35 Remeasurement of derivative liability upon conversion of underlying note — (231 ) Balance, December 31, 2013 $ — $ — Table of Contents Non-Recurring Fair Value Measurements Certain assets, including IPR&D, may be measured at fair value on a non-recurring basis in periods subsequent to initial recognition. During the third quarter of 2013, the Company made a decision to deprioritize and delay efforts to further develop an early-stage preclinical program. As a result of this decision, in connection with the Company’s annual impairment test performed in the third quarter of 2013, the fair value estimate for the IPR&D asset related to the early-stage preclinical program incorporated the assumptions of significantly lower estimated cash flows from future revenues and a delay in when those cash flows would occur. The fair value was derived from assumptions that are representative of those a market participant would use in estimating fair value. The impairment analysis resulted in the Company recognizing a $0.8 million impairment charge related to the early-stage preclinical program, which was charged to research and development expense. The following table provides quantitative information associated with the fair value measurement of the Company’s non-recurring Level 3 inputs: Other Fair Value Measurements The estimated fair value and carrying value of the $125.0 million aggregate principal amount of the Notes was $127.5 million and $125.0 million, respectively, as of December 31, 2013. The Company estimated the fair value of the Notes by using a quoted market rate in an inactive market, which is classified as a Level 2 input. The estimated fair value and carrying value of the Hercules loans payable was $39.5 million and $40.3 million, respectively, as of December 31, 2013. The Company estimated the fair value of the loans payable by using publically available information related to Hercules’ portfolio of debt investments based on unobservable inputs, which is classified as a Level 3 input. 7. Consolidated Subsidiaries Hermes BioSciences, Inc. On October 6, 2009, (the “Acquisition Date”), the Company completed the acquisition of all outstanding shares of Hermes, a privately-held biotechnology company developing lipidic nano-carriers to allow for targeted delivery of small molecule drugs, including chemotherapies, with the goal of improving cancer treatment safety and efficacy. Silver Creek Pharmaceuticals, Inc. On August 20, 2010, the Company acquired a controlling interest in Silver Creek. In December 2012, as described in Note 11, “Borrowings,” Silver Creek entered into a Note Purchase Agreement pursuant to which it issued convertible notes to various lenders in aggregate principal amounts of $1.6 million in December 2012, $0.3 million in February 2013 and $0.6 million in December 2013. As of December 31, 2013, Silver Creek’s outstanding borrowings and related accrued interest of $2.6 million converted to shares of Silver Creek Series A preferred stock at the Series A preferred stock value of $1.00 per share. As a result of changes to the ownership composition of Silver Creek, the non-controlling interest increased by $0.8 million. As of December 31, 2013 and 2012, the Company owned 64% and 74% of the voting stock of Silver Creek, respectively, and recorded a non-controlling interest of $337,000 and $97,000, respectively, as a component of mezzanine equity on the Company’s consolidated balance sheets based on the terms of the Silver Creek Series A preferred stock. F-20 Fair Value as of August 31, 2013 Valuation Technique Unobservable Input Percentage (in thousands) IPR&D asset $ — Income approach—Probability weighted discounted cash flow analysis Discount rate 25.7 % Table of Contents As of December 31, 2013, the Company consolidated Silver Creek’s total assets and total liabilities of $1.0 million and $0.1 million, respectively. As of December 31, 2012, the Company consolidated Silver Creek’s total assets and total liabilities of $2.2 million and $1.8 million, respectively. As of December 31, 2013 and 2012, employees and directors of the Company owned approximately 7% and 6% of the outstanding shares of Silver Creek Series A preferred stock, respectively. Merrimack Pharmaceuticals (Bermuda) Ltd. Merrimack Pharmaceuticals (Bermuda) Ltd. was incorporated in Bermuda during 2011, is wholly owned by the Company and holds certain intellectual property rights with respect to MM-398. 8. Goodwill and Intangible Assets, Net As part of the acquisition of Hermes, the Company recognized acquired IPR&D of $7.0 million related to several development programs: an antibody-targeted nanotherapeutic that contains a chemotherapy drug, a nanotherapeutic that contains a chemotherapy drug and other early-stage preclinical programs in the amounts of $2.8 million, $3.4 million and $0.8 million, respectively. The Company also acquired intangible assets of $3.2 million related to core nano-carrier technology. These values were determined at the time of acquisition by estimating the costs to develop the acquired IPR&D into commercially viable products, estimating the net cash flows from such projects and discounting the net cash flows back to their present values. The probability of success factors and discount rates used for each project considered the uncertainty surrounding the successful development of the acquired IPR&D. As of December 31, 2013 and 2012, none of the IPR&D projects have reached technological feasibility nor do they have any alternative future use. Therefore, the Company has not commenced amortization of those assets. The full value of the antibody-targeted nanotherapeutic that contains a chemotherapy drug and the nanotherapeutic that contains a chemotherapy drug recorded at the Acquisition Date remained unchanged as of December 31, 2013 and 2012. The core technology asset is being amortized on a straight-line basis over a period of ten years, which is management’s best estimate of the useful life of this technology. The deprioritization and delay of the other early-stage preclinical programs during the year ended December 31, 2013 resulted in an impairment charge of $0.8 million during the third quarter of 2013. Changes in the carrying value of goodwill, IPR&D and intangible assets for the years ended December 31, 2013, 2012 and 2011 were as follows: F-21 (in thousands) Intangible assets IPR&D Goodwill Balance, December 31, 2010 $ 2,805 $ 7,010 $ 3,605 Amortization (320 ) — — Balance, December 31, 2011 2,485 7,010 3,605 Amortization (320 ) — — Balance, December 31, 2012 2,165 7,010 3,605 Amortization (320 ) — — Impairment — (810 ) — Balance, December 31, 2013 $ 1,845 $ 6,200 $ 3,605 Table of Contents Definite-lived intangible assets subject to amortization consist of core technology acquired from Hermes. The Company commenced amortization of these assets as of the Acquisition Date on a straight-line basis over a period of ten years, which is the estimated useful life of this technology. Amortization expense is expected to be as follows for the next five-year period: 9. Property and Equipment, Net Property and equipment consisted of the following: Depreciation expense was $2.8 million, $3.5 million and $5.0 million for the years ended December 31, 2013, 2012 and 2011, respectively. Capitalized interest costs were immaterial for the years ended December 31, 2013 and 2012. There were no capitalized interest costs for the year ended December 31, 2011. During the years ended December 31, 2013 and 2012, the Company disposed of $0.2 million and $0.7 million of fully depreciated assets. No fixed assets were disposed of or sold during the year ended December 31, 2011. There were no recognized impairment charges related to fixed assets in the years ended December 31, 2013, 2012 or 2011. 10. Accounts Payables, Accrued Expenses and Other Accounts payable, accrued expenses and other as of December 31, 2013 and 2012 consisted of the following: F-22 Years Ended December 31, (in thousands) 2014 $ 320 2015 320 2016 320 2017 320 2018 320 December 31, (in thousands) 2013 2012 Lab equipment $ 13,714 $ 12,616 IT equipment 2,701 2,346 Leasehold improvements 10,523 8,200 Furniture and fixtures 340 330 Construction in process 7,635 1,774 34,913 25,266 Less: Accumulated depreciation and amortization (21,549 ) (18,969 ) $ 13,364 $ 6,297 December 31, (in thousands) 2013 2012 Accounts payable $ 1,889 $ 283 Accrued goods and services 26,031 17,615 Accrued payroll and related benefits 7,255 5,853 Accrued interest 2,926 306 Accrued dividends payable 25 28 Deferred tax incentives 688 512 Derivative liability — 196 Other contractual liability — 851 Total accounts payable, accrued expenses and other $ 38,814 $ 25,644 Table of Contents 11. Borrowings Future minimum payments under indebtedness agreements outstanding as of December 31, 2013 are as follows: 4.50% Convertible Senior Notes In July 2013, the Company issued $125.0 million aggregate principal amount of Notes in an underwritten public offering. The Company issued the Notes under an indenture, dated as of July 17, 2013 (the “Base Indenture”) between the Company and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the supplemental indenture, dated as of July 17, 2013, between the Company and the Trustee (together with the Base Indenture, the “Indenture”). As a result of the Notes offering, the Company received net proceeds of approximately $120.6 million, after deducting underwriting discounts and commissions and offering expenses payable by the Company. The Notes bear interest at a rate of 4.50% per year, payable semiannually in arrears on January 15 and July 15 of each year, beginning on January 15, 2014. The Notes are general unsecured senior obligations of the Company and rank (i) senior in right of payment to any of the Company’s indebtedness that is expressly subordinated in right of payment to the Notes, (ii) equal in right of payment to any of the Company’s unsecured indebtedness that is not so subordinated, (iii) effectively junior in right of payment to any of the Company’s secured indebtedness to the extent of the value of the assets securing such indebtedness, and (iv) structurally junior to all indebtedness and other liabilities (including trade payables) of the Company’s subsidiaries. The Notes will mature on July 15, 2020 (the “Maturity Date”), unless earlier repurchased by the Company or converted at the option of holders. Holders may convert their Notes at their option at any time prior to the close of business on the business day immediately preceding April 15, 2020 only under the following circumstances: F-23 Years Ending December 31: (in thousands) 4.50% Convertible Senior Notes Loan Agreement 2014 $ 5,594 $ 12,353 2015 5,625 18,130 2016 5,625 17,916 2017 5,625 — 2018 and thereafter 141,875 — $ 164,344 $ 48,399 Less interest (39,344 ) (7,199 ) Less unamortized discount (52,422 ) (2,103 ) Less current portion — (8,248 ) Loans payable, net of current portion $ 72,578 $ 30,849 • during any calendar quarter commencing after September 30, 2013 (and only during such calendar quarter), if the last reported sale price of the Company’s common stock for at least 20 trading days (whether or not consecutive) during a period of 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable trading day; • during the five business day period after any five consecutive trading day period (the “measurement period”) in which the trading price (as defined in the Notes) per $1,000 principal amount of Notes for each trading day of the measurement period was less than 98% of the product of the last reported sale price of the Company’s common stock and the conversion rate on each such trading day; or • upon the occurrence of specified corporate events set forth in the Indenture. Table of Contents On or after April 15, 2020 until the close of business on the business day immediately preceding the Maturity Date, holders may convert their Notes at any time, regardless of the foregoing circumstances. Upon any conversion of Notes that occurs while the Company’s indebtedness to Hercules under the Loan Agreement remains outstanding, the Notes will be settled in shares of the Company’s common stock. Following the repayment and satisfaction in full of the Company’s obligations to Hercules under the Loan Agreement, upon any conversion of the Notes, the Notes may be settled, at the Company’s election, in cash, shares of the Company’s common stock or a combination of cash and shares of the Company’s common stock. The initial conversion rate of the Notes is 160 shares of the Company’s common stock per $1,000 principal amount of Notes, which is equivalent to an initial conversion price of $6.25 per share of common stock. The initial conversion price represents a premium of 25% over the public offering price per share of $5.00 in the Company’s concurrent underwritten public offering of common stock, as described in Note 13, “Common Stock.” The conversion rate will be subject to adjustment in some events, but will not be adjusted for any accrued and unpaid interest. In addition, following certain corporate events that occur prior to the Maturity Date, the Company will increase the conversion rate for a holder who elects to convert its Notes in connection with such a corporate event in certain circumstances. Upon the occurrence of a fundamental change (as defined in the Indenture) involving the Company, holders of the Notes may require the Company to repurchase all or a portion of their Notes for cash at a price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest to, but excluding, the fundamental change repurchase date. The Indenture contains customary terms and covenants and events of default with respect to the Notes. If an event of default (as defined in the Indenture) occurs and is continuing, the Trustee by written notice to the Company, or the holders of at least 25% in aggregate principal amount of the Notes then outstanding by written notice to the Company and the Trustee, may, and the Trustee at the request of such holders shall, declare 100% of the principal of and accrued and unpaid interest on the Notes to be due and payable. In the case of an event of default arising out of certain events of bankruptcy, insolvency or reorganization involving the Company or a significant subsidiary (as set forth in the Indenture), 100% of the principal of and accrued and unpaid interest on the Notes will automatically become due and payable. The Company has separately accounted for the liability and equity components of the Notes by bifurcating gross proceeds between the indebtedness, or liability component, and the embedded conversion option, or equity component. This bifurcation was done by estimating an effective interest rate as of the date of issuance for similar notes which do not contain an embedded conversion option. This effective interest rate was estimated to be 15% and was used to compute the initial fair value of the indebtedness of $71.2 million. The gross proceeds received from the issuance of the Notes less the initial amount allocated to the indebtedness resulted in a $53.8 million allocation to the embedded conversion option. The embedded conversion option was recorded in stockholders’ deficit and as debt discount, to be subsequently amortized as interest expense over the term of the Notes. Underwriting discounts and commissions and offering expenses totaled $4.4 million and were allocated to the indebtedness and the embedded conversion option based on their relative values. As a result, $2.5 million attributable to the indebtedness was recorded as debt discount, to be subsequently amortized as interest expense over the term of the Notes, and $1.9 million attributable to the embedded conversion option was netted with the embedded conversion option in stockholders’ deficit. For the year ended December 31, 2013, interest expense related to the outstanding principal balance of the Notes was $6.2 million. Loan Agreement In November 2012, the Company entered into the Loan Agreement with Hercules pursuant to which the Company received loans in the aggregate principal amount of $40.0 million in 2012. In July 2013, in connection with the Notes offering, the Company and Hercules entered into an amendment, consent and waiver to the Loan F-24 Table of Contents Agreement that permitted the Notes offering and the issuance of the Notes. The term loans bear interest at an annual rate equal to the greater of 10.55% and 10.55% plus the prime rate of interest minus 5.25%, but may not exceed 12.55%. Net proceeds from both advances received during the fourth quarter of 2012 were $39.6 million. The Loan Agreement provides for interest-only payments for twelve months and repayment of the aggregate outstanding principal balance of the loans in monthly installments starting on December 1, 2013 and continuing through May 1, 2016. In the event the Company receives aggregate gross proceeds of at least $75.0 million in one or more transactions prior to December 1, 2013, the Company has the option to elect to extend the interest-only period by six months so that the aggregate outstanding principal balance of the loans issued pursuant to the Loan Agreement would be repaid in monthly installments starting on June 1, 2014 and continuing through November 1, 2016. At the Company’s option, the Company may elect to prepay all or any part of the outstanding term loans without penalty. As described above and in Note 13, “Common Stock,” in July 2013, the Company sold an aggregate of 5,750,000 shares of its common stock to the public at a price to the public of $5.00 per share and issued $125.0 million aggregate principal amount of Notes in concurrent underwritten public offerings, and as a result of these offerings, the Company received aggregate net proceeds in excess of $75.0 million. On October 27, 2013, the Company notified Hercules of its election to extend the interest-only period as permitted under the Loan Agreement. In connection with the Loan Agreement, the Company granted Hercules a security interest in all of the Company’s personal property now owned or hereafter acquired, excluding intellectual property but including the proceeds from the sale, if any, of intellectual property, and a negative pledge on intellectual property. The Loan Agreement also contains certain representations, warranties and non-financial covenants of the Company. In addition, the Loan Agreement grants Hercules an option to purchase up to an aggregate of $1.0 million of the Company’s equity securities sold to institutional accredited investors in a private financing within one year after the closing of the Loan Agreement upon the same terms and conditions afforded to such investors. The Loan Agreement defines events of default to include the occurrence of an event that results in a material adverse effect upon the Company’s business, operations, properties, assets or condition (financial or otherwise); the Company’s ability to perform its obligations when due in accordance with the terms of the Loan Agreement, or upon the ability of Hercules to enforce any of its rights or remedies with respect to such obligations; or the collateral under the Loan Agreement or Hercules’ liens on such collateral or the priority of such liens. As of December 31, 2013, there have been no events of default under the Loan Agreement. Upon full repayment or maturity of the loans, the Company is required to pay Hercules a fee of $1.2 million, which has been recorded as a discount to the loans and as a long-term liability on the consolidated balance sheets. Additionally, the Company reimbursed Hercules for costs incurred related to the loans, which has been reflected as a discount to the carrying value of the loans. The Company is amortizing these loan discounts totaling $1.6 million to interest expense over the term of the loans using the effective interest method. For the years ended December 31, 2013 and 2012, interest expense related to the Hercules loans payable were $4.9 million and $0.5 million, respectively. Convertible Notes—Silver Creek In December 2012, as described in Note 2, “Summary of Significant Accounting Policies–Derivative Liability,” the Company’s majority owned subsidiary, Silver Creek, entered into a Note Purchase Agreement pursuant to which it issued convertible notes to various lenders in aggregate principal amounts of $1.6 million in December 2012, $0.3 million in February 2013 and $0.6 million in December 2013. The notes issued pursuant to the Note Purchase Agreement bore interest at 6% per annum. Upon issuance, these convertible notes contained a feature wherein at any time prior to maturity Silver Creek enters into a qualifying equity financing, defined as a sale or series of related sales of equity securities prior to the maturity date and resulting in at least $4.0 million of gross proceeds, the notes would automatically convert into the next qualifying equity financing at a 25% discount. The Company determined that this convertible feature met the definition of a derivative and required F-25 Table of Contents separate accounting treatment. The derivative was estimated to be valued at $0.2 million for the year ended December 31, 2012 using a probability-weighted model as described in Note 6, “Fair Value of Financial Instruments—Recurring Fair Value Measurement,” and was recorded as derivative liability on the consolidated balance sheets. For the year ended December 31, 2013, the derivative was remeasured upon conversion with the gain in remeasurement recognized in other income. The notes matured and converted, along with accrued interest of $0.1 million, into shares of Silver Creek Series A preferred stock on December 31, 2013. Upon conversion, the Company’s ownership percentage of Silver Creek outstanding preferred stock decreased from 74% to 64%, and a $0.8 million increase to non-controlling interest was recognized. 12. Stock Warrants The following is a description of the common and convertible preferred stock warrant activity of the Company: During the year ended December 31, 2012, warrants to purchase approximately 100,000 shares of common stock were cashless exercised and 71,000 shares of common stock were issued. During the year ended December 31, 2013, warrants to purchase approximately 65,000 shares of common stock were cashless exercised and 35,000 shares of common stock were issued. 13. Common Stock In July 2013, the Company sold an aggregate of 5,750,000 shares of its common stock at a price to the public of $5.00 per share in an underwritten public offering and received net proceeds of approximately $26.7 million, after deducting underwriting discounts and commissions and offering expenses payable by the Company. During the first quarter of 2012, the Company amended its certificate of incorporation to increase the number of authorized shares of common stock to 200.0 million shares of $0.01 par value common stock. As of December 31, 2013 and 2012, the Company had 200.0 million shares of $0.01 par value common stock authorized. There were approximately 102,523,000 and 95,825,000 shares of common stock issued and outstanding as of December 31, 2013 and 2012, respectively. The shares reserved for future issuance as of December 31, 2013 and 2012 consisted of the following: F-26 (in thousands, except per share amounts) Warrants for the Purchase of Common Stock Weighted Average Exercise Price Warrants for the Purchase of Convertible Preferred Stock Weighted Average Exercise Price Balance—December 31, 2010 2,937 $ 2.93 306 $ 3.48 Expired (1 ) $ 2.47 — — Exercised (296 ) $ 2.46 (4 ) $ 1.89 Balance—December 31, 2011 2,640 $ 2.98 302 $ 3.50 Conversion 302 $ 3.50 (302 ) $ 3.50 Exercised (100 ) $ 2.63 — — Balance—December 31, 2012 2,842 $ 3.05 — — Exercised (65 ) $ 2.82 Balance—December 31, 2013 2,777 $ 3.05 — — (in thousands) December 31, 2013 December 31, 2012 Common stock warrants 2,777 2,842 Options to purchase common stock 20,107 18,066 Conversion of the Notes 25,000 — Table of Contents 14. Stock-Based Compensation Prior to 2008, the Company granted equity awards to employees, officers and consultants under the 1999 Stock Option Plan (as amended, the “1999 Plan”). In 2008, the Company adopted the 2008 Stock Incentive Plan (as amended, the “2008 Plan”) for employees, officers, directors, consultants and advisors and decided that no additional shares of common stock would be issued under the 1999 Plan. The 2011 Stock Incentive Plan (the “2011 Plan”) became effective upon closing of the Company’s initial public offering in April 2012. Upon effectiveness of the 2011 Plan, no further awards were available to be issued under the 2008 Plan. The 2011 Plan is administered by the Board of Directors of the Company and permits the Company to grant incentive and non-qualified stock options, stock appreciation rights, restricted stock, restricted stock units and other stock-based awards. The 2011 Plan increased the total number of shares of common stock available to be issued by 3.5 million, for a total of 4.3 million shares. Additional shares also become available for grant by reason of the forfeiture, cancellation, expiration or termination of existing awards. In February 2013, the Company registered 3.4 million additional shares of common stock related to the 2011 Plan. As of December 31, 2013, there were 1.7 million shares of common stock available to be issued under the 2011 Plan. During the years ended December 31, 2013, 2012 and 2011, the Company issued options to purchase 3.3 million, 3.3 million and 2.3 million shares of common stock, respectively. These options generally vest over a three-year period for employees. Prior to the closing of the Company’s initial public offering in April 2012, options previously granted to directors had vested immediately. After the closing of the Company’s initial public offering in April 2012, options granted to directors vest over a one-year period. During the years ended December 31, 2013, 2012 and 2011, the Company also issued options to purchase less than 0.1 million shares of common stock to non-employees in each period. The assumptions used to estimate the fair value of options granted to non-employees at the date of grant were materially consistent with those used for employee and director grants. The Company recognized stock-based compensation expense as follows: The stock-based compensation for non-employee awards recognized during the year ended December 31, 2013 was negative due to the change in fair value of the options granted during previous periods. The fair value of employee options granted during the years ended December 31, 2013, 2012 and 2011 was estimated at the date of grant using the following assumptions: The Company uses the simplified method to calculate the expected term, as it does not have sufficient historical exercise data to provide a reasonable basis upon which to estimate expected term. The computation of expected volatility is based on the historical volatility of comparable companies from a representative peer group F-27 Years ended December 31, (in thousands) 2013 2012 2011 Employee awards: Research and development $ 5,954 $ 4,234 $ 3,597 General and administrative 4,808 2,510 2,875 Stock-based compensation for employee awards 10,762 6,744 6,472 Stock-based compensation for non-employee awards (29 ) 145 480 Total stock-based compensation $ 10,733 $ 6,889 $ 6,952 Years ended December 31, 2013 2012 2011 Risk-free interest rate 0.1 – 1.9% 0.7 – 1.1% 1.3 –2.5% Expected dividend yield 0% 0% 0% Expected term 5.3 – 5.9 years 5 – 5.9 years 5 – 5.9 years Expected volatility 67 – 70% 66 – 72% 71 – 73% Table of Contents selected based on industry and market capitalization. The risk-free interest rate is based on a treasury instrument whose term is consistent with the expected life of the stock options. Management estimates expected forfeitures based on historical experience and recognizes compensation costs only for those equity awards expected to vest. The following table summarizes stock option activity: The aggregate intrinsic value was calculated as the difference between the exercise price of the stock options and the fair value of the underlying common stock. The aggregate intrinsic value of options exercised in 2013, 2012 and 2011 was $2.7 million, $13.7 million and $1.4 million, respectively. As of December 31, 2013, there was $15.9 million of total unrecognized compensation cost related to nonvested employee stock awards. As of December 31, 2013, the Company expects to recognize those costs over a weighted average period of approximately 1.8 years. 15. Income Taxes As a result of losses incurred, the Company did not provide for any income taxes in the years ended December 31, 2013, 2012 and 2011. A reconciliation of the Company’s effective tax rate to the statutory federal income tax rate is as follows: During the year ended December 31, 2013, the Company recorded a deferred tax liability related to the embedded conversion option of the 4.50% convertible senior notes through equity. This deferred tax liability is reflected in the deferred tax table below, but is appropriately excluded from the effective tax rate. F-28 Shares Weighted Average Exercise Price Weighted Average Remaining Contractual Term Aggregate Intrinsic Value Outstanding at December 31, 2012 18,066 $ 3.50 6.54 $ 51,486 Granted 3,286 $ 6.04 Exercised (913 ) $ 2.23 Cancelled (332 ) $ 6.02 Outstanding at December 31, 2013 20,107 $ 3.93 6.11 $ 38,348 Vested and expected to vest at December 31, 2013 19,829 $ 3.89 6.07 $ 38,307 Exercisable at December 31, 2013 15,672 $ 3.19 5.33 $ 37,861 Year Ended December 31, 2013 2012 2011 Federal income tax at statutory federal rate 35.0 % 35.0 % 35.0 % State taxes 4.3 4.5 4.2 Permanent differences (2.0 ) (0.2 ) (0.4 ) Stock-based compensation (0.6 ) (0.3 ) (1.2 ) Tax credits 12.4 1.1 3.9 Foreign rate differential (2.8 ) (4.1 ) (4.4 ) Other (1.5 ) (0.5 ) (0.8 ) Change in valuation allowance (44.8 ) (35.5 ) (36.3 ) — % — % — % Table of Contents Temporary differences that give rise to significant net deferred tax assets as of December 31, 2013 and 2012 are as follows: The Company concluded that there are no significant uncertain tax positions requiring recognition in the consolidated financial statements. The Company’s evaluation was performed for the tax years ended December 31, 2010 through 2013, the tax years which remain subject to examination by major tax jurisdictions as of December 31, 2013. However, to the extent the Company utilizes net operating losses from years prior to 2010, the statute remains open to the extent of the net operating losses utilized. The Company annually files a federal income tax return and a state income tax return in Massachusetts. The Company’s policy is to recognize interest and penalties for uncertain tax positions as a component of income tax expense. The Company has not recognized any interest and penalties historically through December 31, 2013. At December 31, 2013, the Company had net operating loss carryforwards for federal and state income tax purposes of $304.2 million and $230.7 million, respectively. Included in the federal and state net operating loss carryforwards is approximately $11.6 million of deduction related to the exercise of stock options. This amount represents an excess tax benefit, which will be realized when it results in reduction of cash taxes in accordance with Accounting Standards Codification 718. This excess tax benefit will be directly credited to additional paid-in capital when it is realized. The Company’s existing federal and state net operating loss carryforwards will expire in years through 2033. The Company also has available research and development credits for federal and state income tax purposes of approximately $18.6 million and $6.3 million, respectively. The federal and state research and development credits will begin to expire in 2022 and 2024, respectively. As of December 31, 2013, the Company also had available investment tax credits for state income tax purposes of $0.3 million, which will expire in years through 2016 if unused. In addition we have federal orphan drug credits of $14.4 million which begin to expire in 2031. The Company’s management has evaluated the positive and negative evidence bearing upon the realizability of its deferred tax assets, which are comprised principally of net operating loss carryforwards, deferred revenue and capitalized research and development expenses. Under the applicable accounting standards, management has considered the Company’s history of losses and concluded that it is more likely than not that the Company will not recognize the benefits of federal and state deferred tax assets. Accordingly, the Company has established a full valuation allowance against the deferred tax assets. Utilization of the net operating loss and research and development credit carryforwards may be subject to a substantial annual limitation under Section 382 of the Internal Revenue Code of 1986, as amended (the “Internal F-29 (in thousands) 2013 2012 Deferred tax assets Net operating losses $ 113,843 $ 77,806 Capitalized research and development expenses 32,771 40,083 Credit carryforwards 37,304 14,398 Depreciation 2,735 2,931 Deferred compensation 8,249 5,068 Accrued expenses 841 1,184 Deferred revenue 28,381 29,936 Other temporary differences 5,885 1,934 Total gross deferred tax asset 230,009 173,340 Valuation allowance (207,304 ) (169,651 ) Net deferred tax asset 22,705 3,689 Deferred tax liabilities Intangible assets (3,234 ) (3,689 ) Debt discount (19,471 ) — Net deferred taxes $ — $ — Table of Contents Revenue Code”), due to ownership change limitations that have occurred previously or that could occur in the future. These ownership changes may limit the amount of net operating loss and research and development credit carryforwards that can be utilized annually to offset future taxable income and tax. The Company has not currently completed an evaluation of ownership changes through December 31, 2013 to assess whether utilization of the Company’s net operating loss or research and development credit carryforwards would be subject to an annual limitation under Section 382 of the Internal Revenue Code. To the extent an ownership change occurs in the future, the net operating loss and credit carryforwards may be subject to limitation. The Company has not yet conducted a study of its domestic research and development credit carryforwards and orphan drug credits. This study may result in an increase or decrease to the Company’s credit carryforwards; however, until a study is completed and any adjustment is known, no amounts are being presented as an uncertain tax position. A full valuation allowance has been provided against the Company’s credits, and if an adjustment is required, this adjustment would be offset by an adjustment to the valuation allowance. As a result, there would be no impact to the statement of operations and comprehensive loss or cash flows if an adjustment were required. The change in the valuation allowance against the deferred tax assets in the years ended December 31, 2013, 2012 and 2011 was as follows: 16. Commitments and Contingencies Operating Leases The Company leases its office, laboratory and manufacturing space under non-cancelable operating leases. Total rent expense under these operating leases was $5.5 million, $4.3 million and $3.2 million for the years ended December 31, 2013, 2012 and 2011, respectively. During August 2012, the Company entered into an Indenture of Lease (the “Amended Lease”), which amended and restated its facility lease, and agreed to occupy approximately a total of 109,000 square feet (the “Leased Space”), all of which is leased until June 30, 2019. In March and September 2013, the Company entered into facility lease amendments that are co-terminus with the existing lease. The aggregate minimum lease payments due over the seven-year term of the Amended Lease are approximately $35.0 million. As part of the Amended Lease and subsequent amendments, the landlord agreed to reimburse the Company for a portion of tenant improvements made to the facility, up to approximately $8.2 million. As of December 31, 2013, the Company has received $5.5 million of these tenant improvement reimbursements, with the remaining reimbursable tenant improvements recorded within other current assets on the consolidated balance sheets as of December 31, 2013. Tenant improvements recorded in deferred rent are amortized over the term of the lease as reductions to rent expense. The Amended Lease expires on June 30, 2019. The Company retains an option to renew the Amended Lease with respect to all of the Leased Space for an additional period of either one or five years. Future minimum lease payments under noncancelable operating leases at December 31, 2013 are as follows: F-30 (in thousands) Balance at beginning of period Additions Deductions Balance at end of period December 31, 2011 $ 103,881 28,802 — $ 132,683 December 31, 2012 $ 132,683 36,968 — $ 169,651 December 31, 2013 $ 169,651 37,653 — $ 207,304 Years ended December 31, (in thousands) 2014 5,095 2015 5,208 2016 5,354 2017 5,470 2018 and thereafter 8,399 Table of Contents 17. Related Party Transactions In connection with the initial public offering of the Company’s common stock, Sanofi, a collaborator, purchased 5,217,391 shares of the Company’s common stock in April 2012. In June 2012, the Company entered into a Right of Review Agreement (the “Agreement”) with Sanofi pursuant to which, if the Company determines to enter into negotiations with a third party regarding any license, option, collaboration, joint venture or similar transaction involving any therapeutic or companion diagnostic product candidate in the Company’s pipeline (an “Opportunity”), the Company will notify Sanofi of such Opportunity. Following such notice, Sanofi will have a specified period of time to determine whether to exercise an additional right to exclusively negotiate an agreement with the Company with respect to such Opportunity for a specified period of time. In addition, in specified circumstances, if the Company subsequently proposes to enter into any third-party agreement, the Company must first offer the same terms and conditions to Sanofi. The Agreement terminates on April 1, 2017. In December 2012, February 2013 and December 2013, Silver Creek entered into an aggregate $2.5 million convertible note payable, of which $0.3 million was with directors, officers, scientific advisory board members and related parties of the Company. As of December 31, 2013, these notes and related accrued interest of $0.1 million converted into shares of Silver Creek Series A preferred stock. 18. Retirement Plan On May 31, 2002, the Company established a 401(k) defined contribution savings plan for its employees who meet certain service period and age requirements. Contributions are permitted up to the maximum allowed under the Internal Revenue Code of each covered employee’s salary. The savings plan permits the Company to contribute at its discretion. For the years ended December 31, 2013, 2012 and 2011, the Company made contributions of $0.7 million, $0.6 million and $0.5 million, respectively, to the plan. 19. Selected Quarterly Financial Data (Unaudited) The following table contains quarterly financial information for 2013 and 2012. The Company believes that the following information reflects all normal recurring adjustments necessary for a fair statement of the information for the periods presented. The operating results for any quarter are not necessarily indicative of results for any future period. F-31 First Quarter Second Quarter Third Quarter Fourth Quarter (in thousands, except per share data) 2013 Collaboration revenues $ 14,655 $ 18,452 $ 6,856 $ 7,823 Total operating expenses 41,921 47,560 42,780 36,065 Net loss (28,323 ) (30,251 ) (39,763 ) (32,348 ) Net loss attributable to Merrimack Pharmaceuticals, Inc. (28,153 ) (30,082 ) (39,631 ) (33,059 ) Net loss per share available to common stockholders—basic and diluted $ (0.29 ) $ (0.31 ) $ (0.39 ) $ (0.33 ) First Quarter Second Quarter Third Quarter Fourth Quarter (in thousands, except per share data) 2012 Collaboration revenues $ 11,344 $ 12,063 $ 11,323 $ 14,191 Total operating expenses 35,379 32,368 35,197 38,719 Net loss (23,402 ) (20,139 ) (23,320 ) (24,893 ) Net loss attributable to Merrimack Pharmaceuticals, Inc. (23,284 ) (20,026 ) (23,199 ) (24,768 ) Net loss per share available to common stockholders—basic and diluted $ (2.14 ) $ (0.22 ) $ (0.25 ) $ (0.26 ) Table of Contents 20. Subsequent Events In February 2014, the Company received notice of an award of $0.6 million of tax incentives from the MLSC, which will allow the Company to monetize approximately $0.6 million of state research and development tax credits. In exchange for these incentives, the Company pledged to hire an incremental 31 employees and to maintain the additional headcount through at least December 31, 2018. Failure to do so could result in the Company being required to repay some or all of these incentives. In February 2014, Hercules exercised warrants to purchase 302,143 shares of common stock for proceeds of $1.1 million. F-32 Table of Contents SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated. MERRIMACK PHARMACEUTICALS, INC. Date: March 4, 2014 By: /s/ Robert J. Mulroy Robert J. Mulroy President and Chief Executive Officer Signature Title Date /s/ Robert J. Mulroy Robert J. Mulroy President, Chief Executive Officer and Director (Principal Executive Officer) March 4, 2014 /s/ William A. Sullivan William A. Sullivan Chief Financial Officer and Treasurer (Principal Financial and Accounting Officer) March 4, 2014 /s/ Gary L. Crocker Gary L. Crocker Chairman of the Board March 4, 2014 /s/ James van B. Dresser James van B. Dresser Director March 4, 2014 /s/ Gordon J. Fehr Gordon J. Fehr Director March 4, 2014 /s/ John Mendelsohn, M.D. John Mendelsohn, M.D. Director March 4, 2014 /s/ Sarah E. Nash Sarah E. Nash Director March 4, 2014 /s/ Michael E. Porter, Ph.D. Michael E. Porter, Ph.D. Director March 4, 2014 /s/ James H. Quigley James H. Quigley Director March 4, 2014 /s/ Anthony J. Sinskey, Sc.D. Anthony J. Sinskey, Sc.D. Director March 4, 2014 Table of Contents EXHIBIT INDEX Exhibit Number Description of Exhibit 3.1 Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-8 filed on April 27, 2012) 3.2 Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.5 to the Registrant’s Registration Statement on Form S-1, as amended, filed on January 13, 2012) 4.1 Specimen certificate evidencing shares of common stock (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) 4.2 Warrant to purchase shares of Series D Convertible Preferred Stock, dated April 6, 2005, issued by the Registrant to Hercules Technology Growth Capital, Inc. (incorporated by reference to Exhibit 4.3 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 8, 2011) 4.3 Form of warrant to purchase shares of Common Stock issued by the Registrant to various parties expiring on December 10, 2015 (incorporated by reference to Exhibit 4.7 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 8, 2011) 4.4 Form of warrant to purchase shares of Common Stock issued by the Registrant to various parties expiring on December 17, 2015 (incorporated by reference to Exhibit 4.8 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 8, 2011) 4.5 Form of warrant to purchase shares of Common Stock issued by the Registrant to various parties expiring on March 10, 2016 (incorporated by reference to Exhibit 4.9 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 8, 2011) 4.6 Indenture, dated as of July 17, 2013, by and between the Registrant and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on July 18, 2013) 4.7 First Supplemental Indenture, dated as of July 17, 2013, by and between the Registrant and Wells Fargo Bank, National Association, as trustee (incorporated by reference to Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on July 18, 2013) 10.1# 1999 Stock Option Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 8, 2011) 10.2# 2008 Stock Incentive Plan (incorporated by reference to Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 8, 2011) 10.3# 2011 Stock Incentive Plan (incorporated by reference to Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1, as amended, filed on January 13, 2012) 10.4# Form of Incentive Stock Option Agreement under 2011 Stock Incentive Plan (incorporated by reference to Exhibit 10.4 to the Registrant’s Registration Statement on Form S-1, as amended, filed on January 13, 2012) 10.5# Form of Non-Qualified Stock Option Agreement under 2011 Stock Incentive Plan (incorporated by reference to Exhibit 10.5 to the Registrant’s Registration Statement on Form S-1, as amended, filed on January 13, 2012) 10.6# Amended and Restated Employment Agreement, dated as of August 16, 2011, by and between the Registrant and Fazal R. Khan (incorporated by reference to Exhibit 10.6 to the Registrant’s Registration Statement on Form S-1, as amended, filed on August 19, 2011) 10.7# Employment Agreement, dated as of September 30, 2011, by and between the Registrant and William M. McClements (incorporated by reference to Exhibit 10.26 to the Registrant’s Registration Statement on Form S-1, as amended, filed on January 13, 2012) Table of Contents Exhibit Number Description of Exhibit 10.8# Amended and Restated Employment Agreement, dated as of August 16, 2011, by and between the Registrant and Robert J. Mulroy (incorporated by reference to Exhibit 10.7 to the Registrant’s Registration Statement on Form S-1, as amended, filed on August 19, 2011) 10.9# Amended and Restated Employment Agreement, dated as of August 16, 2011, by and between the Registrant and Ulrik B. Nielsen (incorporated by reference to Exhibit 10.8 to the Registrant’s Registration Statement on Form S-1, as amended, filed on August 19, 2011) 10.10# Amended and Restated Employment Agreement, dated as of August 16, 2011, by and between the Registrant and Edward J. Stewart (incorporated by reference to Exhibit 10.10 to the Registrant’s Registration Statement on Form S-1, as amended, filed on August 19, 2011) 10.11# Amended and Restated Employment Agreement, dated as of August 16, 2011, by and between the Registrant and William A. Sullivan (incorporated by reference to Exhibit 10.11 to the Registrant’s Registration Statement on Form S-1, as amended, filed on August 19, 2011) 10.12# Form of Indemnification Agreement between the Registrant and each director and executive officer (incorporated by reference to Exhibit 10.12 to the Registrant’s Registration Statement on Form S-1, as amended, filed on August 19, 2011) 10.13 Indenture of Lease, dated as of August 24, 2012, by and between the Registrant and DWF IV One Kendall, LLC (as successor-in-interest to RB Kendall Fee, LLC), as amended by the First Amendment of Lease, dated as of March 18, 2013 (incorporated by reference to Exhibit 10.14 to the Registrant’s Annual Report on Form 10-K filed on March 20, 2013) 10.14 Second Amendment of Lease, dated as of September 12, 2013, by and between the Registrant and DWF IV One Kendall, LLC (as successor-in-interest to RB Kendall Fee, LLC) (incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q filed on November 8, 2013) 10.15 Sublease, dated as of August 20, 2010, by and between Silver Creek Pharmaceuticals, Inc. and FibroGen, Inc., as amended on January 20, 2011, May 4, 2011, May 26, 2011, August 1, 2011 and November 2, 2012 (incorporated by reference to Exhibit 10.15 to the Registrant’s Annual Report on Form 10-K filed on March 20, 2013) 10.16* Amendment No. 6 to Sublease, dated as of December 12, 2013, by and between Silver Creek Pharmaceuticals, Inc. and FibroGen, Inc. 10.17† Patent License Agreement, dated as of February 20, 2008, by and between the Registrant and the United States Public Health Service (incorporated by reference to Exhibit 10.15 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) 10.18† License Agreement, dated as of September 26, 2005, by and between the Registrant (as successor-in-interest to Hermes BioSciences, Inc.) and Merrimack Pharmaceuticals (Bermuda) Ltd. (as assignee from PharmaEngine, Inc.), as amended on June 30, 2011 (incorporated by reference to Exhibit 10.16 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) 10.19† Assignment, Sublicense and Collaboration Agreement, dated as of May 5, 2011, by and between Merrimack Pharmaceuticals (Bermuda) Ltd. and PharmaEngine, Inc. (incorporated by reference to Exhibit 10.17 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) 10.20† License and Collaboration Agreement, dated as of September 30, 2009, by and between the Registrant and Sanofi, as amended on February 18, 2011 (incorporated by reference to Exhibit 10.18 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) Table of Contents Exhibit Number Description of Exhibit 10.21† Right of Review Agreement, dated as of June 14, 2012, by and between the Registrant and Sanofi (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on August 14, 2012) 10.22† Commercial License Agreement, dated as of June 6, 2008, by and between the Registrant and Selexis SA (incorporated by reference to Exhibit 10.19 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 8, 2011) 10.23† Exclusive License Agreement, dated as of November 1, 2000, by and between the Registrant (as successor-in-interest to Hermes BioSciences, Inc.) and The Regents of the University of California, as amended on October 6, 2003, September 13, 2006, June 6, 2007 and September 28, 2007 (incorporated by reference to Exhibit 10.20 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) 10.24† Exclusive License Agreement, dated as of March 16, 2005, by and between the Registrant and The Regents of the University of California, as amended on November 17, 2009 (incorporated by reference to Exhibit 10.21 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) 10.25† Collaboration Agreement, dated as of November 16, 2009, by and between the Registrant and Adimab LLC, as amended on April 27, 2010, June 2, 2010 and October 11, 2011 (incorporated by reference to Exhibit 10.22 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) 10.26† Sublicense Agreement, dated as of June 30, 2008, by and between the Registrant and Dyax Corp. (incorporated by reference to Exhibit 10.23 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 8, 2011) 10.27† Amended and Restated Collaboration Agreement, dated as of January 24, 2007, by and between the Registrant and Dyax Corp., as amended on July 31, 2008 and November 6, 2009 (incorporated by reference to Exhibit 10.24 to the Registrant’s Registration Statement on Form S-1, as amended, filed on October 26, 2011) 10.28 Amendment to Amended and Restated Collaboration Agreement, dated as of January 18, 2012, by and between the Registrant and Dyax Corp. (incorporated by reference to Exhibit 10.26 to the Registrant’s Annual Report on Form 10-K filed on March 20, 2013) 10.29†* Development, License and Supply Agreement, dated as of November 25, 2013, by and between the Registrant and Watson Laboratories, Inc. 10.30 Loan and Security Agreement, dated as of November 8, 2012, by and between the Registrant and Hercules Technology Growth Capital, Inc. (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on November 14, 2012) 10.31 Amendment, Consent and Waiver, dated as of July 10, 2013, by and between the Registrant and Hercules Technology Growth Capital, Inc. (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on July 12, 2013) 21.1* Subsidiaries of the Registrant 23.1* Consent of PricewaterhouseCoopers LLP, an independent registered public accounting firm 31.1* Certification of Principal Executive Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 31.2* Certification of Principal Financial Officer pursuant to Rule 13a-14(a) or Rule 15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 Table of Contents Exhibit Number Description of Exhibit 32.1* Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 32.2* Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 101.INS+ XBRL Instance Document 101.SCH+ XBRL Taxonomy Extension Schema Document 101.CAL+ XBRL Taxonomy Extension Calculation Linkbase Document 101.DEF+ XBRL Taxonomy Extension Definition Linkbase Document 101.LAB+ XBRL Taxonomy Extension Label Linkbase Database 101.PRE+ XBRL Taxonomy Extension Presentation Linkbase Document * Filed herewith. # Management contract or compensatory plan, contract or agreement. † Confidential treatment requested as to portions of the exhibit. Confidential materials omitted and filed separately with the Securities and Exchange Commission. + Furnished herewith. Exhibit 10.16 Amendment No. 6 to Sublease This Amendment No. 6 (the “ Sixth Amendment ”) is effective as of September 1, 2013 (the “ Sixth Amendment Effective Date ”) by and between Silver Creek Pharmaceuticals (“ Subtenant ”) and FibroGen, Inc. (“ FibroGen ”). This Sixth Amendment amends the Sublease entered into by and between Subtenant and FibroGen on August 6, 2010 (the “ Sublease ”), as amended pursuant to the First Amendment on February 1, 2011, the Second Amendment on May 1, 2011, the Third Amendment on June 15, 2011, the Fourth Amendment on August 1, 2011 and the Fifth Amendment on September 1, 2012 (the “ Prior Amendments ”). Subtenant and FibroGen shall be referred to individually herein as a “Party”, and collectively as, the “Parties”. Whereas , Subtenant is presently subletting certain office and laboratory space; and Whereas , Subtenant wishes to continue to sublease certain designated office and laboratory space from FibroGen in the 409 Building; and Whereas, Effective December 15, 2013 , Subtenant wishes to add 163 square feet to the space that Subtenant is currently occupying in the Vivarium Area. Now, Therefore , for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: “2.1 Conditioned upon receipt of Master Lessor’s written consent, FibroGen hereby subleases to Subtenant and Subtenant hereby takes from FibroGen certain real property as described below (the “ Subleased Premises ”) comprising of approximately the total grossed-up footprint equaling one thousand eight hundred and seventy-eight point thirty-three (1,878.33) square feet as follows: 1 • Unless otherwise defined herein, all capitalized terms and phrases used in this Sixth Amendment shall have the meaning ascribed to them in the Sublease as amended by the Prior Amendments. • Effective December 15, 2013, Section 2.1 of the Sublease is hereby deleted in its entirety and replaced with the following: • In Vivarium Area #2001, #2012, #2014, #2016, #2018 and #2024. Total grossed-up area equals five hundred and eleven point thirty-three (511.33) square feet. • 1 ⁄ 2 of Laboratory #4034/#4036. Total grossed-up area equals eight hundred and thirty (830) square feet. • Office Area #5202 and Open Area #5221. Total grossed-up area equals five hundred and thirty seven (537) square feet. • The Subleased Premises may be increased upon the mutual agreement of the Parties hereto in the form of a signed amendment to this Sublease. However, it is expressly understood that neither Party hereto is obligated to enter into such an amendment.” “3.2 This Sublease will expire on: “4.1 Subtenant shall pay a monthly rent (“ Rent ”) to FibroGen for the Subleased Premises according to the following Schedule: 2 • Section 3.2 of the Sublease is hereby deleted in its entirety and replaced with the following: • June 1, 2014 (“ Expiration Date ”) • Subtenant shall have the option to extend term of lease for one additional six (6) month term by giving thirty (30) days written notice no later than thirty (30) days from the Expiration Date stated in Section 3.2a” • Section 4.1 of the Sublease is hereby amended with the following: Months Rent/Sq.Ft./Mo. Total Sq. Ft. Amount/Mo. September 1, 2010-January 31, 2011 (Lab/Office) $6.80 761.00 $ 5,174.80 February 1, 2011-April 30, 2011 (Lab/Office) $6.80 1271.00 $ 8,642.80 May 1, 2011-June 14, 2011 (Lab/Office) $6.80 1354.00 $ 9,207.20 June 15, 2011-July 31, 2011 (Lab/Office/Vivarium) $6.50/Vivarium 348.33 $ 2,264.15 $6.80/Office/Lab 1354.00 $ 9,207.20 Total Sq. Ft. Total Amt./Mo. 1738.33 $ 11,471.35 August 1, 2011-August 7, 2011 (Lab/Office/Vivarium) $6.50/Vivarium 348.33 $ 511.28 $6.80/Office/Lab 1354.00 $ 2,079.00 Total Sq. Ft. Total Amt. 1715.33 $ 2,590.28 August 8, 2011-August 31, 2011* (Lab/Office/Vivarium) $6.50/Vivarium 348.33 $ 1,752.87 $6.60/Office/Lab 1367.00 $ 6,984.96 Total Sq. Ft. Total Amt. 1715.33 $ 8,737.83 September 1, 2011-December 14, 2013 (Lab/Office/Vivarium) $6.50/Vivarium 348.33 $ 2,264.15 $6.60/Office/Lab 1367.00 $ 9,022.20 Total Sq. Ft. Total Amt./Mo. 1715.33 $ 11,286.35 December 15, 2013-June 1, 2014 (Lab/Office/Vivarium) $6.50/Vivarium 511.33 $ 3,323.65 $6.60/Office/Lab 1367.00 $ 9,022.20 Total Sq. Ft. Total Amt./Mo. 1878.33 $ 12,345.85 * Note: Pro-Rated Rent Payment”  In Witness Whereof , the Parties have executed this Sixth Amendment to the Sublease as of the Sixth Amendment Effective Date. 3 • This Sixth Amendment, together with the Sublease, as amended by the Prior Amendments, contains the entire understanding of the Parties with respect to the subject matter hereof. Except as otherwise provided herein and in the Prior Amendments, the Sublease has not been modified or amended and remains in full force and effect. All express or implied agreements and understandings that conflict with the terms of this Sixth Amendment, either oral or written, heretofore made with respect to subject matter herein are expressly superseded by this Sixth Amendment. • This Sixth Amendment may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Counterparts may be signed and delivered by facsimile and/or via portable document format (pdf) (or similar format), each of which shall be binding when sent. FibroGen, Inc. Silver Creek Pharmaceuticals By: /s/ Pat Cotroneo By: /s/ Matthew Onsum Name: Pat Cotroneo Name: Matthew Onsum Title: CFO Title: President Date: 12/12/13 Date: 12/9/13 DEVELOPMENT, LICENSE AND SUPPLY AGREEMENT THIS DEVELOPMENT, LICENSE AND SUPPLY AGREEMENT (this “ Agreement ”) is made and entered into as of the latest dated signature on the signature page hereto (the “ Effective Date ”), and is by and between Watson Laboratories, Inc., a Nevada corporation (“ Actavis ”), on the one hand, and Merrimack Pharmaceuticals, Inc., a Delaware corporation (“ Merrimack ”), on the other hand. Actavis and Merrimack shall each sometimes be referred to herein as a “ Party ” and collectively as the “ Parties .” RECITALS WHEREAS, Actavis is engaged in the development, manufacture, promotion, sale and distribution of pharmaceutical products throughout the world; WHEREAS, Merrimack is engaged in the research, development and manufacture of pharmaceutical products; and WHEREAS, the Parties wish to collaborate on the use of the bulk Doxorubicin Hydrochloride (HCl) liposome injection product that Merrimack has developed to develop finished dosage form(s) of Doxorubicin HCl liposome injection that Actavis would register and commercialize. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties to this Agreement agree as follows: ARTICLE 1 DEFINITIONS As used herein, the following terms shall have the following meanings. “ Actavis Services ” means those services set forth in the Development Plan to be performed exclusively by Actavis. “ Additional Costs ” means the FTE Costs and Out-of-Pocket Expenses incurred by Merrimack in performing additional development related work requested by Actavis, in writing, that is not reflected in the Responsibility Matrix as being a Merrimack responsibility (i.e., those reflected as a Merrimack responsibility with an “X”), including but not limited to any FTE Costs and Out-of-Pocket Expenses relating to the Delegated Activities. Prior to undertaking any such additional activities for which such FTE Costs and Out-of-Pocket Expenses will exceed [**] U.S. Dollars ($[**]), Merrimack shall provide Actavis with a non-binding estimate of the FTE Costs and Out-of-Pocket Expenses it anticipates will be incurred in performing such activities. “ Additional Development Program ” means a development program generally described in Section 2.3; as such program may be agreed to by the Parties, in writing, pursuant to Section 2.3. Confidential Materials omitted and filed separately with the Securities and Exchange Commission. Double asterisks denote omissions. Exhibit 10.29 “ Additional Products ” means the additional products to be developed by Merrimack pursuant to the provisions of Section 2.3. “ Affiliate ” of a Party means (i) any Person (as defined below) which directly or indirectly owns, is owned by, or is under common ownership with such Party to the extent of more than fifty percent (50%) of the equity (or such lesser percentage which is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) having the power to elect the directors of such entity and (ii) any Person actually controlled by, controlling or under common control with such Party. Notwithstanding the foregoing, for purposes of this Agreement, a Wholesaler Affiliate shall not constitute an Affiliate of Actavis. “ ANDA ” means an Abbreviated New Drug Application filed with the FDA and/or a comparable application for marketing approval filed with any other Regulatory Authority with respect to the Product. “ API ” means the active pharmaceutical ingredient(s) in Bulk Product. “ Applicable Laws ” means all applicable laws, rules, regulations and guidelines that may apply to the development, marketing or sale of a Product or the performance of either Party’s obligations under this Agreement including laws, regulations and guidelines governing the import, export, development, marketing, distribution and sale of Product, to the extent applicable and relevant, and including all current Good Manufacturing Practices or guidelines promulgated by the FDA or other competent authorities and including trade association guidelines, where applicable, as well as U.S. export control laws and the U.S. Foreign Corrupt Practices Act. “ Bulk Product ” means, with respect to the initial Product, the bulk form of Doxorubicin HCl liposome injection product developed by Merrimack, manufactured and packed to meet certain specifications that have been agreed upon by the Parties, for further processing into Finished Product that can be sold in the Territory, and, with respect to each Additional Product, such bulk drug product developed by Merrimack for processing into the finished form of the applicable Additional Product. “ Calendar Quarter ” means each consecutive three (3) month period beginning on January 1, April 1, July 1 or October 1 of any given year. “ CMO ” means the contract manufacturer engaged by Actavis, with the prior consent of Merrimack, which shall not be unreasonably withheld, to manufacture the Finished Product or any Additional Product in the event Actavis determines that neither it nor any of its Affiliates should manufacture such Finished Product or Additional Product. “ Commercially Reasonable Efforts ” means, with respect to a Party, such efforts and resources which are no less than those efforts and resources typically used by such Party in connection with its own products having comparable commercial potential, taking into consideration such product’s stage of development and life cycle, medical/scientific viability, technical and regulatory profile, intellectual property protection, competitiveness in the marketplace, profitability and other relevant factors, and, in any case, which are no less than reasonable efforts. 2 “ Commercial Supply ” has the meaning set forth in Section 4.1. “ Commercial Supply Price ” means the standard cost for the manufacture and bulk packaging of the Bulk Product, as determined and adjusted pursuant to the provisions of Section 4.2. “ Competing Product ” means any pharmaceutical product that is bioequivalent to and substitutable for the Finished Product or any Additional Product. “ Competitive Infringement ” has the meaning set forth in Section 7.3. “ Confidential Information ” means, with respect to a Party, all information of any kind whatsoever (including without limitation data, compilations, formulae, models, patent disclosures, procedures, processes, projections, protocols, results of experimentation and testing, specifications, strategies, techniques and all non-public intellectual property rights, as hereinafter defined), and all tangible and intangible embodiments thereof of any kind whatsoever (including without limitation apparatus, compositions, documents, drawings, machinery, patent applications, records and reports), which is disclosed by such Party to the other Party regardless of whether same is marked, identified as or otherwise acknowledged to be confidential at the time of disclosure to the other Party. All information shall be deemed confidential unless agreed otherwise. Notwithstanding the foregoing, Confidential Information of a Party shall not include information which the other Party can establish by written documentation or similar evidence (a) to have been publicly known prior to disclosure of such information by the disclosing Party to the other Party, (b) to have become publicly known, without breach of this Agreement or violation of Applicable Laws on the part of the other Party, subsequent to disclosure of such information by the disclosing Party to the other Party, (c) to have been received by the other Party at any time from a source, other than the disclosing Party, rightfully having possession of and the right to disclose such information, (d) to have been otherwise known by the other Party under no obligation of confidentiality prior to disclosure of such information by the disclosing Party to the other Party, or (e) to have been independently developed by employees or agents of the other Party without the use of or reliance upon such information disclosed by the disclosing Party to the other Party. “ Cost of Goods ” means, as to Product, the direct and identifiable internal and external costs of manufacturing, packaging and shipping such Product, consisting of the following: (i) with regard to a Party’s or its Affiliates’ internal costs and charges, Cost of Goods shall include the direct costs and charges, including API and other materials, manufacturing plant overhead charges reasonably allocable to the Product, quality oversight (including stability and annual product reviews) and (starting in the first year of the commercialization of the Finished Product) GDUFA or similar manufacturing facility fees, in each case related to such manufacture, packaging and shipment, and shall exclude (A) costs and charges related to or occasioned by unused manufacturing capacity; (B) the manufacture of other products at such Party’s facilities; (C) amortization of property, plant or equipment not specifically related to manufacturing of Product; and (D) any allocation of general corporate overhead; and (ii) with regard to a Party’s or its Affiliates’ external costs and charges, Cost of Goods shall include the commercially reasonable invoiced costs and charges of suppliers of goods and services directly related to the manufacture, packaging and shipment of Product, quality oversight (including stability and 3 annual product reviews) and (starting in the first year of the commercialization of the Finished Product) GDUFA or similar manufacturing facility fees, as well as the costs of API and other materials directly sourced by a Party, in each case related to such manufacture, packaging and shipment. A Party’s Cost of Goods shall be determined on an accrual basis in accordance with U.S. generally accepted accounting principles, applied on a basis consistent with such Party’s annual audited financial statements. For the avoidance of doubt, shipping costs included in the Cost of Goods definition include costs relating to the shipment of the API, the Bulk Product and the Finished Product to their intended destinations, but do not include the cost of shipping the Finished Product from the Actavis distribution center to the intended customers. Those costs are included in the Sales Allowance. “ Delegated Activities ” means any activities that Merrimack agrees to perform at the request of Actavis either directly or through a Third Party reasonably acceptable to Actavis, including without limitation any stability studies on the Finished Product and any fill/finish activities; provided, however, that Delegated Activities shall not include any activities that are performed by Merrimack in an “Assist” capacity as reflected in the Responsibility Matrix. “ Development Activities ” means those activities set forth in the Development Plan to be performed by the Party identified in the Development Plan. “ Development Plan ” means the plan attached hereto as Exhibit A , including the Responsibility Matrix attached thereto, as modified by the Parties from time to time upon mutual agreement, in writing. “ Development Technology ” shall mean all proprietary rights developed or acquired by Merrimack or Actavis which directly relate to the design, development, manufacture or analysis of the Finished Product, including but not limited to: (i) patent applications, any corresponding foreign patent applications that may claim priority date of the patent applications referred to above or that relate to substantially the same subject matter of the patents referred to above, and patents that may have been granted on any of the above, including reissue patents, reexamined patents and patent extensions based on those applications; (ii) trade secrets, inventions, data, processes, techniques, procedures, compositions, devices, methods, formulas, protocols and information, whether or not patentable, including without limitation all chemical, biochemical and scientific research information; (iii) copyrightable works, copyrights and applications, registrations and renewals in connection therewith; and (iv) copies or tangible embodiments of any one or more of the foregoing. Notwithstanding the foregoing, Development Technology shall exclude all proprietary rights developed or acquired by Merrimack which directly relate to the design, development, manufacture or analysis of Bulk Product. 4 “ FDA ” means the United States Food and Drug Administration or successor agency thereto. “ Finished Product ” shall mean the finished dosage form of Doxorubicin HCl liposome injection, which uses the Bulk Product and incorporates the Licensed Technology. “ Force Majeure ” has the meaning set forth in Section 12.5. “ FTE ” means the equivalent of a full-time Merrimack employee’s annual work time dedicated to performing the activities specified in this Agreement, pro-rated based upon a total of [**] hours per year of work. “ FTE Cost ” shall mean, for any period and FTEs within a specified category of FTEs, the product of the number of FTEs in such category dedicated to the activities specified in this Agreement and the FTE Rate applicable to such category. “ FTE Rate ” shall mean, as to a category of FTE, the rate (in U.S. Dollars) per FTE specified in Exhibit B . Effective on January 1, 2015 and on January 1 of each subsequent calendar year, the FTE rates set forth on Exhibit B shall be increased for the calendar year then commencing by the percentage increase in the Consumer Price Index (“ CPI ”) over the then most recently completed calendar year. As used in this definition, Consumer Price Index or CPI means the Consumer Price Index—Urban Wage Earners and Clerical Workers, U.S. City Average, All Items, 1982-84 = 100, published by the United States Department of Labor, Bureau of Labor Statistics (or its successor equivalent index). “ Know-How ” means any information that is confidential and proprietary, including ideas, concepts, discoveries, inventions, developments, improvements, know-how, trade secrets, designs, devices, equipment, process conditions, algorithms, notation systems, works of authorship, computer programs, technology, formulas, techniques, methods, procedures, protocols, data, documentation, reports, specifications, formulations, copyrights, conclusions, skill, experience, test data and results (including pharmacological, toxicological, manufacturing, and clinical test data and results), analytical and quality control data, results or descriptions, in each case whether patentable or otherwise. “ Licensed Technology ” means all tangible or intangible Know-How, trade secrets, inventions (whether or not patentable), data, documentation, formulae, techniques, designs, processes, physical, chemical or biological materials, and other information and data, that relates to the Bulk Product, that (a) is owned, controlled or used by Merrimack and (b) is related to or used in connection with the Development Activities. For the avoidance of doubt, Merrimack shall maintain all rights in and to the Licensed Technology and any improvements to the Licensed Technology. “ Medis ” means Medis Pharma ehf, and other Actavis Affiliates whose primary business is the out-licensing of pharmaceutical products. “ Milestone Payments ” has the meaning set forth in Exhibit C . 5 “ Net Profit ” means the Net Sales of the Product less (i) the Cost of Goods for such Product, (ii) the applicable Sales Allowance, and (iii) any Other Costs incurred by Actavis in connection with the sale of the Product. Net Profit shall also include amounts specified for inclusion in Net Profit pursuant to Sections 7.1 and 7.3(a). For the avoidance of doubt, the costs deducted in clauses (i), (ii) and (iii) above shall not be double-counted (e.g., the same costs of Unsaleable Product shall not be deducted both as Cost of Goods and as Other Costs). “ Net Sales ” means the gross amount invoiced by Actavis or its Affiliates or sublicensees, on all sales of Product (excluding any sales among Actavis and its Affiliates), less the following items (whether or not separately stated on such invoice): (i) any and all promotional allowances, rebates, government mandated rebates (i.e., Medicaid, etc.), charge backs, quantity and cash discounts, and other usual and customary discounts to customers, (ii) amounts repaid or credited by reason of rejections, returns or recalls of goods, (iii) retroactive price reductions and shelf stock adjustments, (iv) any sales, excise, turnover, inventory, value-added, and similar taxes and duties assessed on applicable sales, (v) allowances for doubtful accounts accrued in the ordinary course of business, with appropriate period-to-period adjustments to such allowances based on amounts that are ultimately collected, and (vi) transportation charges (including insurance costs) and handling charges. Components of Net Sales shall be determined using the accrual method of accounting in accordance with U.S. generally accepted accounting principles. In the event Actavis or any of its Affiliates or sublicensees transfers Product for consideration, in whole or in part, other than cash, the gross sales price for such Product shall be deemed to be the standard invoice price then being invoiced by Actavis in arm’s length transactions with similar customers. In no event shall a sale be deemed to occur in the case of transfers of professional samples, product donations, or other samples or clinical research supplies or similar transfers. Notwithstanding the foregoing, for any sales by Actavis, its Affiliates or its sublicensees to a Wholesaler Affiliate, Net Sales shall be deemed to be the average selling price by Actavis to arm’s length Third Parties for Product during the fiscal quarter in which the sale to the Wholesaler Affiliate took place. Actavis shall not, as a general business practice, “bundle” or otherwise sell the Product together with any other product. However, if Actavis reasonably determines that a form of bundling is necessary for the maintenance of a customer (and, consequently, is necessary to generate Net Sales from such customer) or will result in an increase in Net Sales of Product in 6 the Territory (after giving effect to this paragraph), the reduction in price or deduction therefrom will be allocated as actually credited unless the Product receives a higher than pro rata share of any reduction or deduction that the bundled set of products receives. In such case, the reduction or deduction therefrom shall be allocated to the Product on a no greater than a pro rata basis based on the sales value (i.e., the unit average selling price multiplied by the number of units) of the Product relative to the sales value contributed by the other products in the bundle with respect to such sale. “ On Time Delivery ” means the Product is delivered no more than [**] days earlier and no later than the agreed upon delivery date for the purchase order. “ Other Costs ” means settlements and damage awards payable to Third Parties, recall costs, the cost of Unsaleable Product, costs incurred in connection with Third Party patent infringement claims, product liability claims and amounts payable to customers as a result of Actavis’ inability to timely supply Product, in each case with respect to the sale of Products by Actavis, its Affiliates or sublicensees, excluding (i) amounts that are payable or reimbursable by a Party pursuant to this Agreement, (ii) amounts that are payable or reimbursable by a Third Party, such as a CMO or an insurance carrier, and (iii) amounts payable to customers that are primarily attributable to Actavis’ failure to manufacture, package, ship and timely supply the Finished Product for reasons unrelated to (A) the unavailability of Bulk Product, (B) manufacturing, packaging or shipping problems outside the reasonable control of Actavis, or (C) Force Majeure. “ Other Product ” means other products that Merrimack currently is developing and manufacturing or may in the future develop and manufacture, and may in the future commercialize, that are not Competing Products, but may contain a Product as a component. Unless otherwise agreed by the Parties, in writing, these non-Competing Products shall not constitute Products, Bulk Product, Finished Product or Additional Products under this Agreement, and nothing in this Agreement shall limit or restrict Merrimack in its development, manufacture and commercialization of these products. “ Out-of-Pocket Expenses ” means any fees, costs or other expenses paid by a Party, as applicable, to Third Parties. “ Person ” means an individual, corporation, partnership, limited liability company, firm, association, joint venture, estate, trust, governmental or administrative body or agency, or other entity. “ Product(s) ” means the Bulk Product, the Finished Product and/or Additional Products, as applicable. “ Quality Agreement ” has the meaning set forth in Section 4.6. “ Regulatory Approvals ” shall mean any approvals, product, and/or establishment licenses, registrations or authorizations, including without limitation approvals under ANDAs, of any foreign, federal (including the FDA), state or local regulatory agency, department, bureau or other governmental entity, which are necessary for the commercial manufacture, use, storage, importation, transport, promotion, pricing or sale of the Product. 7 “ Regulatory Authority ” means the FDA and any other governmental or other authority responsible for issuing a Regulatory Approval in the Territory. “ Regulatory Dossier ” means all files regarding the Regulatory Approvals, including but not limited to correspondence, records, applications (including without limitation ANDAs), supplements, annual reports, adverse event reports, clinical studies and pre-clinical studies to the extent related to the Product. “ Responsibility Matrix ” means the chart in Exhibit A reflecting each Party’s development responsibilities. “ Sales Allowance ” means, for any period, (i) [**] percent ([**]%) of Net Sales in the United States, and (ii) a percentage amount ranging from [**]%) of Net Sales, as determined by the Steering Committee, for the marketing and sale of the Product in each country outside of the United States. “ Steering Committee ” has the meaning set forth in Section 2.8. “ Supply Deficiency ” has the meaning set forth in Section 4.3. “ Term ” has the meaning set forth in Section 10.1. “ Territory ” means the entirety of the world. “ Third Party ” means any Person that is not a Party or an Affiliate of a Party. “ Unsaleable Product ” means (i) Bulk Product that Actavis is unable to convert into saleable Finished Product, (ii) Finished Product that Actavis is unable to sell to its customers, whether as a result of short dating, damage or otherwise, and/or (iii) materials, including packaging or labeling, that Actavis is unable to use in connection with saleable Finished Product, return to the applicable vendor or otherwise use in its business. “ Warranties ” has the meaning set forth in Section 4.7. “ Wholesaler Affiliate ” shall mean a subsidiary or affiliate of Actavis whose primary business is wholesale distribution of pharmaceutical products (including without limitation Anda, Inc.). ARTICLE 2 PRODUCT DEVELOPMENT 2.1 Development . The Parties hereby agree to use Commercially Reasonable Efforts to co-develop the Product in accordance with the Development Plan. Without limiting the foregoing, (i) each Party shall be responsible for performing their respective Development Activities, (ii) each Party shall keep the other Party fully informed of the status and progress being made towards completion of their respective activities under the Development Plan, and (iii) each Party shall be entitled to inspect the other Party’s work in progress and any documents 8 relating thereto (including at the other Party’s facilities, during normal business hours and upon reasonable notice). The Parties shall maintain records in sufficient detail and in good scientific manner appropriate for patent and regulatory purposes and shall properly reflect all work done and results achieved in the performance of its obligations under the Development Plan. 2.2 Development Expenses; Milestone Payments . All expenses and costs related to the Development Activities to be performed by Merrimack shall be at Merrimack’s expense. Notwithstanding the foregoing, Actavis shall (i) be solely responsible for all regulatory fees relating to the filing and maintenance of the Regulatory Dossier, (ii) pay or reimburse Merrimack (no more often than [**]) for up to [**] U.S. Dollars ($[**]) of costs incurred in connection with the Development Activities from the Effective Date through the date the [**], (iii) make all applicable Milestone Payments, which shall become payable based upon achievement of the corresponding milestones by Merrimack, Actavis or Affiliates or sublicensees of Actavis (as applicable), to Merrimack, and (iv) pay for all Additional Costs, in each case following presentation by Merrimack of an invoice and reasonable related back-up documentation substantiating the invoiced amount. Billings pursuant to this section shall be payable within [**] days after the date of invoice. 2.3 Additional Development Program . (a) To further the collaboration between the Parties, Actavis agrees to fund Merrimack’s development of Additional Products that would be owned and commercialized by Actavis. The Parties anticipate that they will agree upon the identity of such Additional Products and the related development objectives within [**] days after the Effective Date. (b) Subject to the Parties’ reaching agreement on the identity of the Additional Products and related development objectives that will be pursued in accordance with Section 2.3(a), beginning [**] days after the Effective Date, Actavis shall (i) commence making [**] payments of [**] U.S. Dollars ($[**]) each towards the development of the Additional Products, (ii) be responsible for biostudy, clinical and regulatory costs relating to the Additional Products, (iii) make an additional [**] U.S. Dollars ($[**]) milestone payment to Merrimack for each Additional Product that [**], and (iv) on a [**] basis, pay Merrimack [**] percent ([**]%) of the Net Profit derived from the sale of each Additional Product that utilizes the Licensed Technology or otherwise received marketing approval based on development work performed in whole or in part by Merrimack (collectively the “ Additional Development Program ”). The specifics of the Additional Development Program for each Additional Product shall be documented in either a separate agreement between the Parties or in an amendment to this Agreement. For the avoidance of doubt, only one milestone payment will be made pursuant to clause (iii) above with respect to any Additional Product. (c) Merrimack shall also have the option of itself funding a portion of the development costs relating to any Additional Product in the Additional Development Program (retroactive to the initiation of the applicable program), in which case the Parties shall negotiate in good faith their respective funding obligations, milestone payments (if any) and their respective share of the Net Profit to be derived from the related product under the Additional Development Program. Merrimack shall exercise this option with respect to each Additional Product no later than [**] and, unless otherwise agreed by the Parties in writing, all such negotiations shall have been concluded, documented and signed prior to [**]. 9 (d) Following the initial two (2) year Additional Development Program period, the Parties may by mutual agreement extend the Additional Development Program for an additional two (2) year period, in which event they will agree on a budget for the Additional Development Program and, if applicable, the Additional Products to be developed, during such extension period. (e) Without regard as to whether the Additional Development Program period is extended, upon request by Actavis, Merrimack shall continue to provide reasonable technical assistance to Actavis with respect to any Additional Products that were developed during the initial Additional Development Program period that may be reasonably required in order for Actavis to (i) submit the Regulatory Dossier for the Additional Product in the Territory and to respond to questions and comments made by any Regulatory Authority with respect thereto, and (ii) validate the commercial process for the finished Additional Product (which, unless otherwise agreed by the Parties, shall be manufactured using Bulk Product supplied by Merrimack in accordance with the terms of Article 4), whether directly or through a CMO, including making Merrimack personnel (and/or contractors) who are knowledgeable regarding the processes reasonably available to Actavis and/or the CMO. Merrimack’s obligation under the foregoing clause (ii) of this Section 2.3(e) shall continue until the CMO successfully manufactures a commercial batch of each Additional Product in finished form. Actavis shall pay Merrimack’s FTE Costs and Out-of-Pocket Expenses in connection with the performance of its obligations under this Section 2.3(e) and for the Cost of Goods of any Bulk Product supplied by Merrimack. 2.4 Project Management . Each Party shall appoint one or more contact persons at their respective offices to serve as project manager and be the recipient of communications pursuant to this Agreement, and to manage all aspects of the collaboration, including development and regulatory status and timelines, launch preparations, purchase orders, deliveries, and means to reduce costs and increase efficiencies of both parties. If requested by either Party, the Parties will establish appropriately staffed project management teams that will meet at least monthly for these purposes. Merrimack shall be responsible for managing meetings and taking meeting minutes to document the progress of the development project. Actavis shall be responsible for managing meetings and taking meeting minutes to document the progress of matters relating to launch preparations, purchase orders, deliveries, and means to reduce costs and increase efficiencies of both parties. Merrimack’s FTE Costs and Out-of-Pocket Expenses of performing project management for (i) Development Activities shall be reimbursed as and to the extent set forth under Section 2.2(ii), (ii) activities relating to Merrimack’s supply of Bulk Product shall be included in the Commercial Supply Price, and (iii) activities for which Actavis is required to pay Merrimack Additional Costs hereunder shall be included in such Additional Costs. 2.5 Facility Qualification; CMO . Merrimack shall, at its expense, take all actions to qualify (and thereafter to maintain qualification of) the facility at which Merrimack will manufacture the Bulk Product, as required under Applicable Laws, to enable Actavis to file and prosecute Regulatory Filings and obtain and maintain Regulatory Approval for the use of the Bulk Product. Actavis shall take all actions to secure and qualify (and thereafter to maintain 10 qualification of) a facility at which it or a CMO will manufacture the Finished Product, as required under Applicable Laws, so that it may file and prosecute Regulatory Filings and obtain and maintain Regulatory Approval for the Finished Product. 2.6 Competitive Activities . During the Term, without the consent of the other Party, neither Party nor any of its Affiliates shall sell, offer for sale, distribute or otherwise make available (nor contract with a Third Party to do any of the foregoing) the Bulk Product, the Finished Product or any Competing Product with respect thereto to any Third Party. Notwithstanding the foregoing, this Section 2.6 shall not apply to (i) the sale of a Competing Product by either a Wholesaler Affiliate or Medis or (ii) the use or sale of the Bulk Product in connection with an Other Product. 2.7 No Disclosure of Proprietary Third Party Information . Neither Party shall disclose, nor shall either Party be obliged to disclose, to the other Party, any of its inventions, trade secrets, or any inventions, trade secrets or other information of any Third Parties that such Party does not have the right to disclose and that such other Party is not free to use without liability. 2.8 Steering Committee . The Parties shall establish a steering committee which will be responsible for overseeing the Development Plan, including without limitation (i) the monitoring of progress against the Development Plan, (ii) the oversight of any clinical studies to be performed pursuant to the Development Plan, (iii) the review and approval of amendments to the Development Plan, and (iv) regulatory developments relating to any Product (“ Steering Committee ”). The Steering Committee will be comprised of two (2) representatives from Actavis and two (2) representatives from Merrimack. Each Party will have the right to replace any of its representatives by written notice to the other Party. Neither Party may designate a non-employee to be a representative. The Steering Committee will make decisions by unanimous consent with each Party having one vote. In making decisions, the Steering Committee will consider the interests of both Parties and will act in good faith in the interest of the Development Plan and the Product. In the event the Parties fail to agree upon any matter before the Steering Committee, such matter would be escalated to Actavis’ President of Global Generics (or his designee) and Merrimack’s President, Merrimack Healthcare Solutions (or his designee) for resolution by mutual agreement; provided that, if such matter is an intellectual property matter related to whether the Finished Product or the process by which it is to be made would infringe the rights of a Third Party or a regulatory matter related to the Finished Product or any Additional Product (excluding the Bulk Product contained therein) and such officers are not able to resolve the matter within [**] days after such escalation, Actavis shall have final decision making authority with respect to such matter; provided such determination does not adversely affect Merrimack’s manufacture of the Bulk Product; and provided further that neither the Steering Committee nor such officers shall have the right to amend this Agreement or modify the Parties’ rights and obligations hereunder. The Steering Committee will meet every [**] months, or more or less frequently as reasonably agreed by the Parties. Meetings will occur in person, via teleconference or videoconference, or otherwise, as reasonably agreed by the Parties. An Actavis representative will act as the chairperson of the Steering Committee and will be responsible for taking minutes of each meeting. Such minutes will be circulated to the entire committee within [**] business days after each committee meeting, and comments, if any, will be promptly provided. If the committee members cannot agree on the minutes, the chairperson will have authority to finalize the minutes and the other committee members will have the right to note their specific objections, which will be included in the minutes. 11 ARTICLE 3 REGULATORY APPROVAL 3.1 Regulatory Dossiers . Actavis shall prepare, at its sole cost and expense, the ANDA and any other Regulatory Dossiers required to be made in connection with obtaining and maintaining Regulatory Approval of the Finished Product and any Additional Product in any country in the Territory. Actavis shall use Commercially Reasonable Efforts to file the ANDA for the Finished Product as soon as reasonably practicable, subject to Merrimack’s timely performance of the Development Activities assigned to it under the Development Plan. Actavis shall use Commercially Reasonable Efforts to obtain Regulatory Approval for each Product in the United States and the European Union. The ANDA and all other Regulatory Approvals for the Finished Product and any Additional Product shall be filed in the name of and be owned exclusively by Actavis or its Affiliates. Actavis shall provide Merrimack and the Steering Committee with periodic updates as to the status of the regulatory submissions which it files. 3.2 Records . Each Party shall maintain records in sufficient detail and in good scientific manner appropriate for patent filing and prosecution and regulatory purposes and shall properly reflect all work done and results achieved in the performance of the Development Activities (including all data in the form required to be maintained under any applicable governmental regulations). Such records shall include all Regulatory Dossiers, books, records, reports, research notes, charts, graphs, comments, computations, analyses, recordings, photographs, computer programs and documentation thereof, computer information storage means, samples of materials and other graphic or written data generated in connection with the research and development activities. During the term of this Agreement, Actavis and its Affiliates shall have the exclusive right to reference any and all data owned by Merrimack or its Affiliates submitted in support of the Regulatory Filings, including any Merrimack Know-How directly related to the Bulk Product for use in Finished Product or any Additional Product, without limiting Merrimack’s rights to use and reference and to grant Third Parties access and rights of reference thereto for Other Products. Provided the submission is sufficient to satisfy all regulatory requirements, the availability in whole or in part to the closed part of the drug master file for the Bulk Product is to be subject to the reasonable discretion of Merrimack. 3.3 Compliance . Each Party shall provide the other Party with all information necessary for the other Party to comply with any applicable reporting requirements. Each Party shall promptly notify the other Party of any comments, responses or notices received from, or inspections by, any Regulatory Authority, which relate to or may impact any Product, and shall promptly inform the other Party of any responses to such comments, responses, notices or inspections and the resolution of any issue raised by such Regulatory Authority. 3.4 GDUFA Fees . Recognizing that GDUFA manufacturing facility fees are payable upon the filing of the ANDA with the FDA, and each year thereafter, the Parties agree to share the cost of the GDUFA manufacturing facility fees, such the Actavis bears [**] percent ([**]%) of such fees and Merrimack bears [**] percent ([**]%) of such fees, until the year in which the 12 Product is first commercialized. The Party incurring such fees shall invoice the other Party for the other Party’s share of that cost, and the other Party shall pay such invoices within [**] days after its receipt of that invoice. ARTICLE 4 BULK PRODUCT SUPPLY 4.1 Supply . Merrimack shall manufacture and exclusively supply, without limiting Merrimack’s rights to manufacture and supply for Other Products, Actavis or its Affiliates with all of the quantities of the Bulk Product for use in Finished Product which Actavis requires to be sold in the Territory (“ Commercial Supply ”). Provided Merrimack is able to supply all of the Bulk Product required by Actavis, and is not otherwise in breach of this Agreement, Actavis shall exclusively purchase from Merrimack all the quantities of the Bulk Product that Actavis may require for use in Finished Product. 4.2 Commercial Supply Price . Merrimack shall sell the Bulk Product to Actavis at the Commercial Supply Price. The estimated Commercial Supply Price is set forth on Exhibit D , but such amount shall be updated prior to the placement of the first purchase order by Actavis and shall from time to time be adjusted in the manner set forth in this Agreement. (a) The Commercial Supply Price shall initially be calculated as a standard per-unit cost based on Merrimack’s Cost of Goods therefor in the manner set forth on Exhibit D . Merrimack shall provide Actavis with an itemization of such costs. (b) Approximately [**] days prior to the end of each calendar year, the Parties shall discuss and agree upon the Commercial Supply Price for the Bulk Product, which will be effective as of the first day of the following calendar year. The Commercial Supply Price shall be increased or decreased to reflect any documented increase or decrease in Merrimack’s Cost of Goods to manufacture the Bulk Product during the preceding calendar year; provided, however, if Merrimack’s Cost of Goods to manufacture increases or decreases by at least [**] percent ([**]%) during any calendar year, Merrimack shall provide Actavis with notice and reasonable documentation reflecting such change and shall be permitted to immediately adjust the Commercial Supply Price to reflect such adjustment for all future purchase orders during such year. (c) Merrimack shall use Commercially Reasonable Efforts to optimize its manufacturing processes so as to decrease its Cost of Goods, including negotiating raw material costs. (d) Actavis shall have the right to have a public accounting firm of its own selection, except one to whom Merrimack may have reasonable objection, and at its own expense (except as provided below), examine the relevant books and records of account of Merrimack during reasonable business hours upon reasonable prior written notice to Merrimack and not more often than [**], for not more than the [**] previous years, to determine whether the Commercial Supply Price was calculated appropriately hereunder. If an audit finds that Merrimack’s Cost of Goods for Bulk Product supplied to Actavis during a calendar year was less than [**] percent ([**]%) of the estimated Cost of Goods used to determine the Commercial 13 Supply Price for such calendar year, (i) Merrimack shall promptly refund the amount by which such Cost of Goods was below [**] percent ([**]%) of the applicable Commercial Supply Price, (ii) Merrimack shall pay or reimburse Actavis for the reasonable cost of the audit, and (iii) the Commercial Supply Price for the balance of that year shall become the amount that such audit determined to be Merrimack’s actual Cost of Goods for Bulk Product. The public accounting firm performing the audit shall treat as confidential, and shall not disclose to Actavis any information other than the information set forth in this Section and information which could otherwise be given to Actavis pursuant to any provision of this Agreement. 4.3 Purchase Estimate and Order . (a) Unless otherwise agreed to by the Parties, at least [**] months prior to Actavis’ anticipated date of commercial launch of the Bulk Product, Actavis shall deliver to Merrimack a rolling forecast of Actavis’ projected launch quantity requirements of Bulk Product for Commercial Supply. Thereafter, Actavis shall deliver to Merrimack a rolling [**] month forecast that shall be updated no less often than [**] or more often than [**]. (b) The first [**] months of this forecast shall be binding and the remaining [**] months shall be non-binding. Merrimack shall use the binding portion of the Actavis forecasts to order the raw materials necessary to fulfill Actavis’ forecasted Bulk Product requirements, taking into account necessary lead times. (c) At least [**] days prior to the delivery date set forth in any purchase order, Actavis shall provide Merrimack with a firm order for the quantities of the Bulk Product required by Actavis, in full batch sizes. Unless there is a bona fide business reason for doing so, the firm order shall also be in an amount which is not less than the binding portion in the most recent forecast. (d) If Actavis fails to place purchase orders that will require all of the ordered amounts of raw materials that Merrimack purchased in reliance on the binding portion of Actavis’ forecasts, Actavis shall purchase any excess raw materials (i.e., less any materials Merrimack is able to return to the vendor or use in its business) from Merrimack for the cost of such raw materials. In addition, Actavis shall pay any FTE Costs and Out-of-Pocket Expenses incurred by Merrimack in reliance on the binding portion of Actavis’ forecasts. (e) If the amount reflected in such purchase order exceeds [**] percent ([**]%) of the quantities of the Bulk Product in the last forecast submitted by Actavis to Merrimack for such period, Merrimack shall not be obligated to, but instead shall use its Commercially Reasonable Efforts to, supply Actavis with such quantities of the Bulk Product which exceeds [**] percent ([**]%) of the forecast quantity. For the avoidance of doubt, Merrimack shall be obligated to supply Actavis with such quantities up to and including [**] percent ([**]%) of the forecasted quantities of Bulk Product for such period in the last forecast submitted to Merrimack. (f) If Merrimack fails to deliver at least [**] percent ([**]%) of the Bulk Product ordered by Actavis within [**] business days after the delivery date specified in (i) [**] consecutive Actavis orders that were covered by an applicable binding forecast by Actavis or 14 (ii) [**] orders that were covered by an applicable binding forecast by Actavis during any calendar year (in either case, a “ Supply Deficiency ”), then, in addition to any other rights hereunder or under applicable law, Actavis may revise any then outstanding orders and estimates for the affected Calendar Quarters without liability. (g) No terms or conditions contained in any purchase order, acknowledgment, invoice, bill of lading, acceptance or other writing or documents issued by either Party shall be effective and only the terms and conditions contained in this Agreement shall govern with respect to the supply of Bulk Product. 4.4 Payment . An invoice will be issued by Merrimack upon delivery of the Bulk Product to Actavis. Actavis shall pay such invoices within [**] days after receipt of the invoice, subject to actual receipt by Actavis of Bulk Product for which such invoice is issued. Actavis shall have the right to withhold payment for all or any portion of an invoice for which it has a reasonable basis to dispute. All payments shall be made by Actavis to Merrimack in U.S. Dollars by wire transfer to a bank and account designated by Merrimack. 4.5 Delivery . Merrimack shall deliver the Bulk Product EXW (ICC Incoterms 2010) Merrimack’s manufacturing facility. On the same day the Bulk Product is delivered to Actavis or its designee, Merrimack will email or fax to Actavis’ designated representative a signed Certificate of Analysis certifying that each lot or batch in such shipment was tested and meets the specifications for the Bulk Product and otherwise meets each of the warranties set forth in Section 4.9 and Section 9.2 hereof. Test specifications and test results must be included for each test with the Certificate of Analysis. 4.6 Quality . Within [**] months after the Effective Date, the Parties will enter into a quality agreement (the “ Quality Agreement ”) with respect to the manufacture and supply of the Bulk Product by Merrimack to Actavis hereunder. The terms of the Quality Agreement, as amended from time to time by mutual written agreement of the Parties hereto, shall be incorporated herein by this reference. To the extent any of the terms of the Quality Agreement conflict with the terms of this Agreement, the terms of the Quality Agreement shall control solely as to quality issues related to the Product and its manufacture and the terms of this Agreement shall control as to all other matters. Merrimack shall perform quality and stability testing on the Bulk Product consistent with U.S. industry practices and the Quality Agreement. Merrimack may designate a Third Party to perform such quality and stability testing upon [**] days prior notice, subject to Actavis’ written approval, which approval shall not be unreasonably withheld, delayed or conditioned. Merrimack shall remain responsible for the performance and results of such quality and stability testing notwithstanding the designation of a Third Party to perform such testing. Without limiting the foregoing, Merrimack shall promptly notify Actavis of any adverse reactions or other safety or toxicity problems known to Merrimack regarding the Bulk Product. Actavis shall be responsible for maintaining a worldwide safety database for the Finished Product and for submitting all required safety and adverse event reports to applicable Regulatory Authorities relating to the Finished Product. 4.7 Nonconforming Supply . Actavis shall verify the quantity, appearance and chemical identity of all Bulk Product received by Actavis according to the methods and procedures agreed upon by the Parties within [**] days after receipt of Bulk Product by Actavis 15 or its CMO. Within such [**] day period, Actavis or the CMO shall inform Merrimack in writing of any discrepancies in the description, quantity and/or identity of the Bulk Product received and the information contained in the documents accompanying each shipment of such Bulk Product. If Actavis or the CMO fails to inform Merrimack of any damage to the Bulk Product within the foregoing [**] day period (unless the defect in the Bulk Product is not readily discoverable based on the agreed upon methods and procedures) and Actavis or its CMO cannot prove that such damage occurred prior to delivery to Actavis , then Merrimack shall have no obligation to provide the remedies described below. In the event that any quantity of the Bulk Product supplied by Merrimack to Actavis hereunder does not comply with its specifications or any of the other warranties set forth in Sections 4.9 and 9.2 hereof (collectively, the “ Warranties ”), Actavis shall have the right, at its election, to (i) receive as soon as possible replacement quantity of the quality specified in such specifications and conforming to such Warranties, subject to returning to Merrimack such nonconforming quantity, (ii) receive a refund from Merrimack of the purchase price paid by Actavis for such nonconforming quantities of Bulk Product, or (iii) receive from Merrimack a credit equal to the purchase price paid by Actavis for such nonconforming quantities of Bulk Product against the purchase price of future orders of Bulk Product; all such remedies shall be at Merrimack’s sole cost and expense (including the cost of API needed for any such replacement quantity). Merrimack, at its cost, should apply Commercially Reasonable Efforts, including overtime to expedite replacement quantities which conform to the Warranties. In the event that any concurrent quality control testing conducted by the Parties disagrees as to the conformance of any Bulk Product to the Warranties, the Parties shall endeavor to settle such matter amicably and constructively between themselves. In the event that the Parties fail to settle such matter, the Parties shall agree to refer such allegedly nonconforming quantity of the Bulk Product to a neutral laboratory as agreed upon between the Parties. The results of the neutral laboratory shall be final and binding upon the Parties solely with respect to the issue as to whether the disputed Bulk Product conforms to the Warranties. All expenses incurred on such analysis will be borne by Actavis unless the results of the neutral laboratory confirm that the disputed Bulk Product does not conform to the Warranties. 4.8 Supply . (a) Merrimack acknowledges that Actavis requires On Time Delivery for at least [**] percent ([**]%) of its orders; provided that failure to satisfy such requirement shall not constitute a breach of this Agreement, and Merrimack shall not have any liability for any failure to satisfy such requirement. (b) Merrimack shall promptly notify Actavis if Merrimack determines that the delivery of any order will be delayed. (c) In the event that there is a Supply Deficiency or both Parties’ representatives on the Steering Committee unanimously agree that it is necessary to establish and qualify another manufacturing facility as a backup source of manufacturing for the Bulk Product, Merrimack shall provide to a mutually agreed Third Party manufacturer, at Actavis’ request, copies of all documentation (including formulations, manufacturing procedures and protocols, quality control procedures, data and other Merrimack Know-How, Development Technology, Licensed Technology, etc.) necessary or useful for the manufacture and release of the Bulk 16 Product. In connection with the foregoing, Merrimack shall also assist in the transfer to such Third Party manufacturer of all analytical methods, manufacturing procedures and Know-How used by Merrimack hereunder with respect to its manufacture and release of the Bulk Product. Merrimack’s FTE Costs and Out-of-Pocket Expenses of conducting such activities shall be included in Additional Costs; provided, however, if such activities resulted from a Supply Deficiency which did not result from manufacturing, packaging or shipping problems outside the reasonable control of Merrimack or from Force Majeure, Merrimack shall be solely responsible for such FTE Costs and Out-of-Pocket Expenses. 4.9 Supply Warranty . Merrimack warrants that (a) Bulk Product supplied to Actavis hereunder shall conform with all quality requirements (including those set forth in the Quality Agreement) and applicable Product specifications, which specification for the Bulk Product is attached hereto as Exhibit E , and shall not be adulterated or misbranded within the meaning of any Applicable Law, and (b) such Bulk Product shall be manufactured no more than [**] months prior to the applicable delivery date therefor; provided, however, that Merrimack may manufacture the conformance/exhibit batches up to [**] months prior to the delivery date therefor. 4.10 API . If the Steering Committee determines that Actavis should supply Merrimack with the API required for the manufacture of the Bulk Product or any Additional Product, the following additional provisions shall apply: (a) Delivery; Title . Actavis shall deliver the API to Merrimack’s manufacturing facility no later than [**] days prior to the date Merrimack is scheduled to commence the manufacture of the batch. Title to the API shall at all times belong to and remain with Actavis. (b) Sole Use . Merrimack agrees that any API received by it from Actavis shall only be used by Merrimack in connection with the manufacture of the Product. (c) Verification . Actavis shall provide a certificate of analysis for each shipment of API supplied. Merrimack shall verify the quantity, appearance and chemical identity of all API received by Merrimack by using United States Pharmacopeial (“ USP ”) and European Pharmacopeial (“ EP ”) monograph testing within [**] days after receipt of API by Merrimack. Within such [**] day period, Merrimack shall inform Actavis in writing of any discrepancies between the USP and EP monograph testing of the API received and the information contained in the documents accompanying each shipment of such API. (d) Discrepancy . If Merrimack notifies Actavis of a discrepancy in the USP and EP monograph testing of the API within such [**] day period, Actavis shall use Commercially Reasonable Efforts to ship additional API within the time period necessary for Merrimack to manufacture the Product in accordance with the scheduled manufacturing date for the applicable purchase order, but if Actavis is unable to supply such API in such time period, Actavis shall be responsible for any and all costs associated with or resulting from any manufacturing delay, and Merrimack shall not be required to achieve On Time Delivery with respect to such purchase order. If Merrimack informs Actavis of any discrepancies in the USP and EP monograph testing of the API after such [**] day period, then Actavis shall use 17 Commercially Reasonable Efforts to supply Merrimack with additional API sufficient to manufacture the scheduled Product in accordance with the applicable purchase order, but if Actavis is unable to supply such additional API, Actavis may cancel or postpone the scheduled manufacture without any liability to Merrimack for such delay. (e) Damage . If Merrimack fails to inform Actavis of any damage to the API within the foregoing [**] day period and Merrimack cannot prove that such damage occurred prior to delivery to Merrimack, then Merrimack shall remedy such failure or damage in the manner specified below. (f) Other Damage or Loss . Except for any damage or loss resulting from fire (other than one caused by the negligence of Merrimack), flood, tornado, earthquake or other act of God beyond Merrimack’s ability to control or to the extent caused by Actavis’ negligence or willful misconduct or to the extent attributable to ordinary course yield losses during manufacture of Bulk Product, Merrimack shall assume all responsibility and liability for, and shall defend, indemnify and hold Actavis harmless from and against, any loss of or damage to the API that occurs while Merrimack has custody and control over the API. Such responsibility and liability shall commence upon the receipt of the API at Merrimack’s manufacturing facility and end upon the delivery of the Product. (g) Remedy . If any loss or damage to the API occurs as described above (i) Merrimack shall, at Actavis’ option and expense, return the API to Actavis or dispose of same according to Actavis’ instructions, and (ii) if Merrimack is responsible for any damage or loss described above, shall credit or refund to Actavis the cost of such API and its return or disposal. (h) API Yield . After Merrimack has supplied at least [**] batches of Product to Actavis for each batch size, the Parties shall mutually agree upon an acceptable yield loss for the API used in the manufacture of the Product at that batch size, on either a per batch or an annual basis. After Merrimack has supplied at least [**] batches of Product, that yield shall be reevaluated and, if appropriate, adjusted by the Parties to reflect long term API yield for the manufacture of the Bulk Product. If Merrimack thereafter exceeds that agreed upon yield loss, a credit shall be given to Actavis towards the purchase of future Product in an amount equal to Actavis’ direct material cost for the lost API beyond the agreed upon yield loss or, if Merrimack is no longer manufacturing that Product, a refund of such amount. Actavis shall document its cost of API supplied to Merrimack in connection with any claim for loss. 4.11 Access to Premises . Upon reasonable prior notice, each Party shall, from time to time during the Term, allow applicable representatives of the other Party to reasonably tour and inspect such Party’s facilities used in the manufacture, storage, packaging, testing, shipping and holding of any Product and shall provide reasonable access to its quality control documentation for purposes of an inspection or audit. Such inspections shall occur during normal business hours and on reasonable prior notice and shall be conducted in a manner that allows the inspected Party to restrict access to any proprietary or otherwise secret areas of its facilities or contents thereof that are not used in the development, manufacture, testing or packaging of a Product; provided that such inspection and audit shall occur no more frequently than [**]. Additionally, each Party may conduct “for cause” inspections or audits in the event of recalls or other events. Government authorities, including without limitation Regulatory Authorities, shall 18 have the right to inspect each Party’s facilities upon their request. Each Party shall promptly notify the other Party, and keep it fully informed of and respond to its requests regarding, the results of any regulatory inspection, comments, responses letters or notices received from the FDA, or other applicable Regulatory Authorities, which relate to or may impact any Product or the manufacture and supply of any Product hereunder. Each Party shall use Commercially Reasonable Efforts to promptly correct any undisputed non-compliance or other deficiencies noted in the above inspections and audits by the other Party or any Regulatory Authority at its sole expense. ARTICLE 5 COMMERCIALIZATION; PAYMENTS 5.1 Commercialization . After approval of the Regulatory Dossier for a Product by the Regulatory Authority, and Actavis’ receipt of sufficient quantities of Product for commercial launch (as identified in writing by Actavis), Actavis shall use Commercially Reasonable Efforts to market and sell the Product in the Territory; provided, however, that Actavis shall have sole but reasonable discretion as to the manner and extent of such commercialization of such Product (including as to issues concerning labeling, launch dates, terms of sale and pricing and customer contracts). Additionally, Actavis shall have the right in its sole but reasonable discretion to postpone or delay the commercial launch of the Product or interrupt or cease the marketing and sale of a Product in the event litigation is threatened or pending with respect to such Product. Commencing in the year prior to the commercial launch of any Product, and continuing thereafter for the remainder of the Term, Actavis shall provide to Merrimack annual commercialization plans and reports summarizing Actavis’ commercialization activities with respect to the applicable Product over the preceding year, outlining Actavis’ plans for the commercialization of such Product for the ensuing calendar year and reporting on Actavis’ progress in the prior year. Merrimack shall have the right to comment on and ask questions about such plans and reports, and Actavis shall reasonably consider any such comments and reasonably respond to any such queries from Merrimack. 5.2 Consideration . During the Term of this Agreement, subject to Section 2.3(b) hereof, Actavis shall pay Merrimack a percentage of the Net Profit for Product being marketed, in accordance with the following: (a) [**] percent ([**]%) of Net Profit earned from sales of the Finished Product and either (i) [**] percent ([**]%) or (ii) such other percentage as may be agreed upon by the Parties pursuant to Section 2.3(c), of Net Profit earned from sales of Additional Product that utilizes the Licensed Technology or otherwise received marketing approval based on development work performed in whole or in part by Merrimack. (b) To the extent the Net Profit is negative in any particular Calendar Quarter or quarters, Actavis shall be entitled to accrue and set off such shortfall against any positive Net Profit in any subsequent Calendar Quarter or quarters; provided that (i) no such set off against Net Profit shall reduce any Calendar Quarter Net Profit payment by more than [**] percent ([**]%) of the amount otherwise payable to Merrimack (and Actavis shall be permitted to carry forward for set off against Net Profits in subsequent Calendar Quarters any such shortfall amount 19 that Actavis was not able to apply during such Calendar Quarter due to the limitation set forth in this proviso), and (ii) Merrimack shall not have any obligation to pay any share of any such shortfall that Actavis is not able to set off pursuant to this Section 5.2(b). Notwithstanding the foregoing proviso or anything to the contrary herein, (x) if the negative Net Profit is the direct result of a Supply Deficiency or a recall resulting from the actions or inaction of Merrimack in breach of Merrimack’s obligations under this Agreement, Actavis shall be permitted to set off against the entire Net Profit amount otherwise payable to Merrimack, and (y) the limitation set forth in (ii) above shall not in any way limit Merrimack’s indemnification or other obligations under this Agreement. (c) Each payment shall be made within [**] days after the end of each Calendar Quarter and shall be accompanied by a written report setting forth in reasonable detail the quantity of Product sold in each country in the Territory (as measured in saleable units of Product) and Actavis’ calculations of Net Sales and Net Profit for such period. Any adjustments to be made in respect of payments previously made to Merrimack due to rebates, returns and the like, shall be factored into the calculation of subsequent payments. (d) Within [**] days after the beginning of each month, Actavis shall provide Merrimack with a written non-binding good faith estimate of Net Sales and Net Profit for the Finished Product and each Additional Product for the prior calendar month. 5.3 Records and Audits . Merrimack shall have the right to audit or have a public accounting firm of its own selection, except one to whom Actavis may have reasonable objection, and at its own expense (except as provided below), examine the relevant books and records of account of Actavis during reasonable business hours upon reasonable prior written notice to Actavis and not more often than [**], to confirm the accuracy of the calculation of the payment of consideration for the preceding [**] years. If an audit finds an underpayment by Actavis, Actavis shall promptly pay the full amount of such underpayment and, if the underpayment is more than [**] percent ([**]%) of the consideration due under this Agreement in any calendar year for which such audit is conducted, shall pay or reimburse Merrimack for the reasonable cost of the audit. The public accounting firm performing the audit shall treat as confidential, and shall not disclose to Merrimack any information other than information which could otherwise be given to Merrimack pursuant to any provision of this Agreement. 5.4 Currency of Payments . All payments under this Agreement shall be made in U.S. Dollars by wire transfer to such bank account as Merrimack may designate from time to time. Any payments due hereunder on Net Sales outside of the United States shall be payable in U.S. Dollars at the average of the rate of exchange of the currency of the country in which the Net Sales are made as reported in the New York edition of The Wall Street Journal , for the last [**] business days of the quarter for which the consideration is payable. 5.5 No Tax Withholding . Unless required due to Merrimack’s assignment of this Agreement to an entity outside the United States or Merrimack’s redomiciliation outside of the United States, no payment hereunder shall be subject to withholding of income taxes owed by Merrimack, and Actavis shall not withhold any such amount from any payment to Merrimack hereunder. 20 ARTICLE 6 RECALLS 6.1 Product Recalls . In the event Actavis is ordered by a Regulatory Authority or reasonably believes it is necessary to conduct a recall, field correction, market withdrawal, stock recovery, or other similar action (a “ Recall ”) with respect to any of the Product in the Territory, Actavis shall determine how best to proceed and shall be responsible for conducting such Recall. If a Recall is due to Merrimack’s breach of its obligations under this Agreement, including without limitation the Warranties, then Merrimack shall promptly reimburse Actavis for all Out-of-Pocket Expenses incurred by Actavis in connection with such Recall and shall replace the Commercial Supply returned to Actavis as a result of the Recall or destroyed as a result of the Recall in accordance with the timing set forth in Section 4.7 hereof. If the Recall is partially attributable to a breach of each Party’s obligations under this Agreement, the Parties shall share all costs and expenses resulting from the Recall in the same proportion as their respective responsibility for the Recall. In all other cases, Actavis shall bear all costs and expenses resulting from the Recall, subject to its indemnification rights hereunder. ARTICLE 7 INTELLECTUAL PROPERTY 7.1 License . Merrimack hereby, on behalf of itself and its Affiliates, grants to Actavis and its Affiliates an exclusive (even as to Merrimack and its Affiliates), fully paid-up license, under the Licensed Technology, to sublicense, make, have made, use, sell, distribute, import or export or otherwise exploit, anywhere in the Territory, the Product; provided that Merrimack retains the exclusive right, subject to Section 4.1, to manufacture or have manufactured Bulk Product for Finished Product. For the avoidance of doubt, however, subject to Section 2.6, Merrimack retains the right under the Licensed Technology to make, have made, use, sell, distribute, sublicense, import or export or otherwise exploit, anywhere in the Territory, products other than the Product, including by manufacturing Bulk Product that may be incorporated into Other Products. Any amounts received by Actavis and its Affiliates in connection with the sublicensing or transfer of the Licensed Technology or Development Technology shall, after deduction from such revenues of any costs incurred by Actavis and its Affiliates relating to such transaction (including but not limited to costs relating to the registration of duplicate Regulatory Dossiers and the transaction giving rise to the revenues received), be included in Net Profits hereunder. 7.2 Patent Filings . The Parties shall jointly own the Development Technology, and Actavis will, according to the decisions adopted by the Steering Committee, prepare and file any patent applications relating to the Development Technology. Merrimack shall cooperate, as reasonably requested by Actavis, in connection with such preparation, filing, prosecution and maintenance. Merrimack shall, in its sole but reasonable discretion, prepare and file any and all such patent applications relating to, underlying or arising out of the Licensed Technology and shall take any other similar actions to secure, enhance, protect or perfect its intellectual property rights related to the Licensed Technology and shall maintain and prosecute any patent or other intellectual property rights resulting therefrom. Actavis shall, cooperate, as reasonably requested by Merrimack, in connection with such preparation, filing, prosecution and maintenance. 21 7.3 Infringement By Third Party of Intellectual Property . (a) In the event of any infringement by a Third Party’s Competing Product (“ Competitive Infringement(s) ”) of the Development Technology, Actavis shall have the first right to file an action against any such infringing Third Party or seek abatement of the infringement by such Third Party. Merrimack shall reasonably cooperate with Actavis in any such action brought by Actavis, including by being joined as a party, at Actavis’ expense. Upon learning of any such Competitive Infringement, each Party shall promptly inform the other in writing of such infringement and shall supply the other with all evidence that it possesses pertaining to said infringement. Any amount recovered by Actavis in enforcing rights in the Development Technology against such Competitive Infringements shall, after deduction from such recoveries of any out-of-pocket costs of enforcement, be included in Net Profits hereunder. If Actavis elects not to enforce the Development Technology against such a Competitive Infringement within [**] days after learning of such Competitive Infringement, Merrimack shall thereafter have the sole right to enforce the Development Technology against such Competitive Infringement, in which case Actavis shall reasonably cooperate with Merrimack in any such action brought by Merrimack, including by being joined as a party, at Merrimack’s expense. Merrimack shall retain any amount that it recovers from enforcing rights in the Development Technology against such Competitive Infringements. (b) In the event of any Competitive Infringement of the Licensed Technology, Merrimack shall have the first right to file an action against any such infringing Third Party or seek abatement of the infringement by such Third Party. Actavis shall reasonably cooperate with Merrimack in any such action brought by Merrimack, including by being joined as a party, at Merrimack’s expense. Upon learning of any such Competitive Infringement, each Party shall promptly inform the other in writing of such infringement and shall supply the other with all evidence that it possesses pertaining to said infringement. Any amount recovered by Merrimack in enforcing rights in the Licensed Technology against a Competitive Infringement shall, after deduction from such recoveries of any out-of-pocket costs of enforcement, be equally shared by the Parties; payable to Actavis within [**] days after Merrimack’s receipt thereof. Any other amount recovered by Merrimack in enforcing rights in the Licensed Technology shall be retained by Merrimack. If Merrimack elects not to enforce Licensed Technology that solely and exclusively relates to a Product and does not relate to any Other Product against such a Competitive Infringement within [**] days after learning of such Competitive Infringement, Actavis shall thereafter have the right to enforce such Licensed Technology that solely and exclusively relates to a Product and does not relate to any Other Product against such Competitive Infringement, in which case Merrimack shall reasonably cooperate with Actavis in any such action brought by Actavis, including by being joined as a party, at Actavis’ expense. Actavis shall retain any amounts it recovers from enforcing rights in the Licensed Technology that solely and exclusively relate to a Product and do not relate to any Other Product against such Competitive Infringements. 22 7.4 Infringement of Third Parties’ Rights; Certain Generic Drug Filings . (a) In the event of any claim by a Third Party, or if either Party determines, that the manufacture, sale or use of the Bulk Product or Finished Product (as applicable) or filing of an ANDA with respect thereto infringes the intellectual property rights of a Third Party, Actavis shall have the sole right and obligation, so long as rights to such Bulk Product or Finished Product are licensed to Actavis hereunder, to defend and indemnify Merrimack from and against such claim at Actavis’ expense, including any judicial or administrative proceedings relating to such claim. If Merrimack is put on notice of any such claim, Merrimack shall provide prompt notice to Actavis of any such claim. Merrimack agrees to assist and cooperate with Actavis in resolving such claim. The procedures for indemnification under this Section 7.4 shall be the same as those set forth in Section 10.3. Actavis will reimburse Merrimack for all reasonable Out-of-Pocket Expenses incurred by Merrimack in the course of providing requested assistance and cooperation in accordance with this Section 7.4(a). (b) Without limiting the foregoing, and notwithstanding Section 7.4(a) above, Actavis and its attorneys shall prepare any certifications or notices required to be filed or delivered to the FDA or Third Party in connection with obtaining Regulatory Approval for Product that requires an assessment as to whether the manufacture, use and sale of Product would infringe any valid Third Party patent listed with the FDA, including without limitation such certifications and notices required pursuant to Sections 505(j)(2)(A) and (B) of the U.S. Federal Food, Drug, and Cosmetic Act, as amended. Merrimack agrees to assist and cooperate with Actavis in preparation of such certifications and notices, in accordance with the terms described in Section 7.4(a). Actavis shall have the sole right and authority to determine whether any patent held by a Third Party shall be challenged in connection with the pursuit of any Regulatory Approval and shall have the sole right to control all decisions that relate to or could impact such patent challenge (including without limitation appointment of counsel, strategies related to the prosecution of the Regulatory Approval or any related litigation, defense of any litigation or claim of infringement, settlement (including Product launch date), etc.). Actavis will reimburse Merrimack for all reasonable Out-of-Pocket Expenses incurred by Merrimack in the course of providing its assistance and cooperation in accordance with this Section 7.4(b). (c) The obligation of Actavis to indemnify Merrimack under this Article 7 is premised and contingent upon Merrimack’s representation and warranty that the Licensed Technology existing as of the Effective Date is lawfully owned by or licensed to Merrimack and has not been misappropriated from any Third Party and that, to the best of Merrimack’s knowledge as of the Effective Date, Merrimack’s manufacture and supply of Bulk Product in accordance with this Agreement will not infringe any Third Party intellectual property rights; provided that Merrimack disclaims all other representations and warranties, whether express or implied, that the Licensed Technology or any Product does not or will not infringe Third Party patent rights. Accordingly, notwithstanding the foregoing, Merrimack shall indemnify Actavis and its Affiliates for any claim for which it is judicially determined that the Licensed Technology has been misappropriated in breach of such representation and warranty. 23 ARTICLE 8 CONFIDENTIALITY AND PUBLIC DISCLOSURE 8.1 Confidentiality . Each Party will treat as confidential the Confidential Information of the other Party, and will take all necessary precautions to assure the confidentiality of such information. Each Party agrees to return to the other Party or destroy upon the expiration or termination of this Agreement all Confidential Information acquired from such other Party, except as to such information it may be required to retain under Applicable Law, and except for one (1) copy of such information to be retained by such Party’s legal department and except for copies of laboratory books which Merrimack will require to keep for audits and inspections. Until such time as the expiration or termination of this Agreement and a period of [**] years thereafter, neither Party shall, without the other Party’s express prior written consent, use or disclose any such Confidential Information for any purpose other than to carry out its obligations hereunder. Each Party, prior to disclosure of such Confidential Information to any employee, consultant or advisor shall ensure that such person is bound in writing to observe the confidentiality provisions of this Agreement. The obligations of confidentiality shall not apply to information that the receiving Party is required by law or regulation or a court of competent jurisdiction, to disclose; provided, however, that the receiving Party shall so notify the disclosing Party of its intent (so as to provide the disclosing Party a reasonable opportunity to seek relief from such required disclosure) and cooperate with the disclosing Party on reasonable measures to protect the confidentiality of the Confidential Information. 8.2 Public Disclosure . Attached as Exhibit F is a form of joint press release that the Parties have agreed to issue promptly following the Effective Date. Following such initial press release, except for such disclosure as is deemed necessary, in the reasonable judgment of a Party, to comply with Applicable Laws, including under disclosure requirements of applicable securities regulations or stock exchange rules, no public announcement, news release, statement, publication or presentation relating to the existence of this Agreement, the subject matter hereof, or either Party’s performance hereunder will be made without the other Party’s prior written approval, which approval shall not be unreasonably withheld or delayed. ARTICLE 9 GENERAL REPRESENTATIONS AND WARRANTIES 9.1 By Each Party . Each Party hereby represents and warrants to the other Party as of the Effective Date as follows: (a) Corporate Existence . Such Party is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated. (b) Authorization and Enforcement of Obligations . Such Party (a) has the corporate power and authority and the legal right to enter into this Agreement and to perform its obligations hereunder and (b) has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder. This Agreement has been duly executed and delivered on behalf of such Party, and constitutes a legal, valid, binding obligation, enforceable against such Party in accordance with its terms. 24 (c) Consents . All necessary consents, approvals and authorizations of all governmental authorities and other Persons required to be obtained by such Party in connection with its performance of this Agreement have been obtained. (d) No Conflict . The execution and delivery of this Agreement and the performance of such Party’s obligations hereunder (a) do not conflict with or violate any requirement of Applicable Laws and (b) do not conflict with, or constitute a default under, any material contractual obligation of such Party. 9.2 By Merrimack . Merrimack warrants that (a) the Bulk Product shall be developed materially in accordance with the Development Plan, (b) it is the lawful owner or licensee of the Licensed Technology, (c) no equipment, supplies, facility, funds or trade secret information of any Third Party (unless Merrimack has obtained sufficient rights thereto) have been or will be used by Merrimack in carrying out the duties Merrimack contemplated by this Agreement, (d) no Third Party shall have any claim on or interest in the Bulk Product, and (e) to the best of Merrimack’s knowledge as of the Effective Date, Merrimack’s manufacture and supply of Bulk Product in accordance with this Agreement will not infringe any Third Party intellectual property rights; provided that Merrimack disclaims all other representations and warranties, whether express or implied, that the Licensed Technology or any Product does not infringe Third Party patent rights. 9.3 By Actavis . Actavis warrants that (a) the Finished Product shall be developed in accordance with the Development Plan and (b) no equipment, supplies, facility, funds or trade secret information of any Third Party (unless Actavis has obtained sufficient rights thereto) have been or will be used by Actavis in carrying out the duties of Actavis contemplated by this Agreement. ARTICLE 10 INDEMNIFICATION; INSURANCE; LIMITATION OF LIABILITY 10.1 By Actavis . Actavis agrees to defend, indemnify and hold Merrimack and its directors, officers, employees, representatives and agents harmless from and against any and all costs, losses, liability and expenses (including reasonable attorney’s fees) (“ Losses ”) resulting from claims made by any Third Party to the extent relating to or arising out of (a) Actavis’ Development Activities or performance of its obligations under this Agreement, (b) the development, manufacture, marketing, distribution or sale of Products by Actavis, including Third Party claims that the development, manufacture, marketing, distribution or sale of Products infringes any Third Party patent rights and Third Party claims based on personal injury, death or property damage arising from the development, manufacture, marketing, distribution or sale of any Product, (c) a breach of any obligation, covenant, warranty or representation by Actavis contained in this Agreement, or (d) any negligent or intentionally wrongful act or omission of Actavis or its directors, officers, employees, representatives or agents, in each case except to the extent to, or for matters for, which Merrimack would be required to indemnify Actavis under Section 10.2 below. 25 10.2 By Merrimack . Merrimack agrees to defend, indemnify and hold Actavis and its directors, officers, employees, representatives and agents harmless from and against any and all Losses resulting from claims made by any Third Party to the extent relating to or arising out of (a) Merrimack’s Development Activities or performance of its obligations under this Agreement, (b) any claim that the Licensed Technology constitutes a misappropriation of any intellectual property or proprietary rights of any Third Party; provided that Merrimack does not defend, indemnify or hold Actavis or its directors, officers, employees, representatives or agents harmless from claims that Products infringe Third Party patent rights, (c) a breach of any obligation, covenant, warranty or representation by Merrimack contained in this Agreement, or (d) any negligent or intentionally wrongful act or omission of Merrimack or its directors, officers, employees, representatives or agents, in each case except to the extent to, or for matters for, which Actavis would be required to indemnify Merrimack under Section 10.1 above. 10.3 Procedures for Control of Third Party Claims . The Party entitled to make a claim for indemnification under this Article 10 shall be referred to as the “ Indemnified Party ” and the Party required to indemnify such claim shall be referred to as the “ Indemnifying Party .” In order for an Indemnified Party to be entitled to any indemnification provided for under this Agreement in respect of, arising out of or involving a claim or demand, made by any Third Party against the Indemnified Party (a “ Third Party Claim ”), such Indemnified Party must notify the Indemnifying Party in writing of the Third Party Claim within [**] days after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that failure to give such notification shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually materially prejudiced as a result of such failure. If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party shall be entitled to participate in the defense thereof and, upon notice to the Indemnified Party, to assume the defense thereof; provided that (i) the Indemnifying Party’s counsel is reasonably satisfactory to the Indemnified Party and (ii) the Indemnifying Party shall thereafter consult with the Indemnified Party upon the Indemnified Party’s reasonable request for such consultation from time to time with respect to such suit, action or proceeding. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right (but not the duty) to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the Indemnifying Party. The Indemnifying Party shall be liable for the fees and expenses of counsel employed by the Indemnified Party for any period during which the Indemnifying Party has not assumed the defense thereof, but the Indemnifying Party shall not be liable to the Indemnified Party for any legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof. Whether or not the Indemnifying Party defends or prosecutes any Third Party Claim, the Parties hereto shall cooperate in the defense or prosecution thereof. Such cooperation shall include the retention and (upon the Indemnifying Party’s request) the provision to the Indemnifying Party of records and information which are reasonably relevant to such Third Party Claim, and making employees or any other Indemnified Party available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld. The Indemnifying Party shall be entitled to settle a Third Party Claim so long as such settlement does not impose any obligation or burden (including loss of goodwill) on the Indemnified Party. For the avoidance of doubt, an agreement by the Indemnifying Party to a Product launch date as part of a settlement to a Third Party Claim does not impose an obligation or burden on the Indemnified Party. 26 10.4 Insurance . For the Term and for a period of [**] years thereafter, each Party agrees to obtain and maintain comprehensive general liability insurance, including Products Liability, Bodily Injury and Property Damage Insurance with a combined single limit of not less than $[**] per occurrence and in the aggregate annually; provided, however, that Actavis can satisfy such insurance requirements through a self-insurance program. The Merrimack insurance shall name Actavis as an additional insured, and Merrimack shall have its insurance carrier or carriers furnish to Actavis certificates that all insurance required under this Agreement is in force, such certificates to indicate any deductible and/or self-insured retention and the effective expiration dates of the policies, and such certificates to stipulate that Actavis shall be given [**] days written notice of cancellation or non-renewal of the policy. 10.5 LIMITATION OF LIABILITY . NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT WITH RESPECT TO A BREACH OF ARTICLE 8, A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY AND/OR PROPRIETARY RIGHTS AND THIRD PARTY CLAIMS SUBJECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS ARTICLE 10, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING FOR LOST PROFITS, OR LOSS OF OPPORTUNITY OR USE OF ANY KIND SUFFERED BY THE OTHER PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE. ARTICLE 11 TERM AND TERMINATION 11.1 Term . This Agreement shall become effective on the Effective Date. Unless sooner terminated in accordance with this Agreement, the term of this Agreement shall expire with respect to each Product, ten (10) years after Actavis’ first sale of the applicable Product in the Territory (the “ Initial Term ”), and shall automatically renew for additional two (2) year periods (each a “ Renewal Term ”) unless notice not to renew is delivered at least eighteen (18) months prior to the end of the then current term (the Initial Term and the Renewal Terms collectively are herein referred to as the “ Term ”). 11.2 Termination for Breach . Either Party may terminate this Agreement with written notice to the other Party at any time during the term of this Agreement if the other Party is in material breach of any term of this Agreement, and has not cured such breach within [**] days after written notice requesting cure of the breach, except that in the case of a Supply Deficiency that does not result from Force Majeure, Merrimack shall have [**] days after written notice to cure such breach. 11.3 Termination for Insolvency or Bankruptcy . This Agreement may be terminated prior to the expiration of its Term upon written notice by either Party: (i) in the event that the other Party hereto shall (1) apply for or consent to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of itself or of all or a substantial part of 27 its property, (2) make a general assignment for the benefit of its creditors, (3) commence a voluntary case under the U.S. Bankruptcy Code (or foreign equivalent), as now or hereafter in effect (the “ Bankruptcy Code ”), (4) file a petition seeking to take advantage of any law (the “ Bankruptcy Laws ”) relating to bankruptcy, insolvency, reorganization, winding-up, or composition or readjustment of debts, (5) fail to controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed against it in any involuntary case under the Bankruptcy Code, or (6) take any corporate action for the purpose of effecting any of the foregoing; or (ii) if a proceeding or case shall be commenced against the other Party hereto in any court of competent jurisdiction, seeking (1) its liquidation, reorganization, dissolution or winding-up, or the composition or readjustment of its debts, (2) the appointment of a trustee, receiver, custodian, liquidator or the like of the Party or of all or any substantial part of its assets, or (3) similar relief under any Bankruptcy Laws, or an order, judgment or decree approving any of the foregoing shall be entered and continue unstayed for a period of sixty (60) days; or an order for relief against the other Party hereto shall be entered in an involuntary case under the Bankruptcy Code. 11.4 Termination for Convenience . Actavis may terminate this Agreement, on ninety (90) days’ written notice to Merrimack, in the event (i) it reasonably determines that the further development or sale of the Product has become technically or commercially non-viable, (ii) any Intellectual Property of any Third Party is infringed, misappropriated or otherwise violated by the manufacture, import, use, sale or distribution of the Product, and such rights are not violated by the sale of other Competing Products, (iii) it reasonably determines that there is an unacceptable risk from a product liability perspective, and such risks are not present in other Competing Products, or (iv) any regulatory authority in the Territory requires the cessation of or a material change in the Product. 11.5 Effect of Expiration or Termination . Upon expiration or termination of this Agreement, the Parties shall have the following rights and remedies: (a) In the event Actavis terminates this Agreement pursuant to Section 11.4 or Merrimack terminates this Agreement pursuant to Section 11.2 or 11.3, Actavis shall (i) reimburse Merrimack for all Development Activities conducted after the Effective Date that were completed or are in progress as of the date of Actavis’ notice of such termination, in accordance with the prorated part of the Development Activities performed up to the date of Actavis’ notice of termination, including any FTE Costs and Out-of-Pocket Expenses incurred in the conduct of such Development Activities, to the extent such amount exceeds the amount previously paid to Merrimack pursuant to Section 2.2(ii), (ii) at Merrimack’s request, transfer to Merrimack all regulatory filings, correspondence, documentation, data and safety databases for Products and all contracts between Actavis and Third Party fill and finish manufacturers of Finished Product, and (iii) grant to Merrimack a fully paid-up, non-royalty-bearing, perpetual, non-exclusive license, with the right to grant sublicenses, under any patents and other intellectual property owned or controlled by Actavis and necessary or useful for the development, manufacture, use, offer for sale, sale or importation of Products in the Territory. (b) In the event this Agreement expires or terminates for any reason, all of Actavis’ rights and license in and to the Licensed Technology shall terminate. 28 (c) In the event (i) this Agreement expires or terminates due to an election by Actavis pursuant to Section 11.1 not to renew or Merrimack terminates this Agreement pursuant to Section 11.2 or 11.3, then the restrictions on Actavis and its Affiliates in Section 2.6 shall be extended to survive for a period of [**] years after such expiration or termination or (ii) this Agreement expires or terminates due to an election by Merrimack pursuant to Section 11.1 not to renew or Actavis terminates this Agreement pursuant to Section 11.2 or 11.3, then the restrictions on Merrimack and its Affiliates in Section 2.6 shall be extended to survive for a period of [**] years after such expiration or termination, but in either event such restrictions shall not apply to any Additional Products. (d) Articles 6 and 10 and Sections 4.9, 4.10, 7.4, 8.1, 11.5, 12.4, 12.6, 12.8, 12.9, 12.10 and 12.12 shall survive expiration or termination of this Agreement. In addition, unless otherwise expressly set forth herein, no expiration or termination of this Agreement shall have any effect on any other obligation or representation and warranty under this Agreement arising prior to such expiration or termination. ARTICLE 12 MISCELLANEOUS 12.1 Independent Supplier Status . It is expressly agreed and understood that Merrimack, including its employees and/or subcontractors, is performing services under this Agreement as an independent supplier for Actavis and neither Merrimack nor any of its employees or subcontractors is an employee or agent of Actavis. All liability to the persons actually providing services under this Agreement or related to the providing of such services, to Merrimack, including but not limited to payment of wages or other compensation, withholding of taxes and similar charges related to such wages or other compensation, and worker’s compensation, shall be the sole responsibility of Merrimack. 12.2 Expenses . Except as otherwise expressly provided herein, each Party to this Agreement shall pay its own expenses in connection with the negotiation of this Agreement, the performance of its obligations hereunder, and the consummation of the transactions contemplated herein. 12.3 Amendment; Modification . No amendment, modification or supplement of any provision of this Agreement shall be valid or effective unless made in writing and signed by a duly authorized officer of each Party. 12.4 Waiver . No provision of this Agreement shall be waived by any act, omission, course of dealing or knowledge of a Party or its agents except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party. 12.5 Force Majeure . Except as to payments required under this Agreement, if any default or delay occurs which prevents or materially impairs a Party’s performance and is due to a cause beyond the Party’s reasonable control, and provided that the default or delay is not caused by or the fault of such Party (“ Force Majeure ”), including but not limited to a shortage of materials, an act of God, flood, fire, explosion, earthquake, casualty, accident, war, revolution, civil commotion, blockade or embargo, injunction, law, proclamation, order, 29 regulation or governmental demand, the affected Party shall promptly notify the Party in writing of such cause and shall exercise Commercially Reasonable Efforts to resume performance under this Agreement as soon as possible. Neither Party will be liable to the other Party for any loss or damage due to such cause, and the Term will not be extended thereby. Neither Party may terminate this Agreement because of such default or delay except upon thirty (30) days’ prior written notice to the other Party if the default or delay has existed for five (5) months and is continuing at the end of the thirty (30) day notice period. 12.6 Notices . All notices to be given hereunder shall be in writing, shall be effective when received, and shall be delivered personally, by facsimile or other electronic transmission (receipt verified), mailed by registered or certified mail (return receipt requested), postage prepaid, or sent by express courier service, to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice, also effective only upon receipt thereof): 12.7 Assignment . This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Neither Party may assign any of its rights, liabilities or obligations hereunder without the prior written consent of the other Party and any assignment without such consent shall be void. Notwithstanding anything to the contrary in this Section, either Party may assign all or certain of its rights, liabilities and obligations hereunder without the consent of the other Party to any of its Affiliates or in connection with a sale of all or substantially all of any Product or the business to which this Agreement relates; it being understood that Actavis currently intends to conduct the non-U.S. aspects of this Agreement through its Affiliate, Actavis Group PTC ehf. 12.8 No Strict Construction . The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of strict construction shall be applied against either Party. 12.9 Complete Agreement . This Agreement, together with all Exhibits attached hereto, contains the complete agreement between the Parties and supersedes any prior understandings, agreements or representations by or between the Parties, written or oral, which may have related to the subject matter hereof in any way. 30 Notices to Actavis : with a copy to : Watson Laboratories, Inc. Actavis, Inc. Morris Corporate Center III Morris Corporate Center III 400 Interpace Parkway, Bldg. A 400 Interpace Parkway, Bldg. A Parsippany, New Jersey 07054 Parsippany, New Jersey 07054 Attention: VP Business Development Attention: General Counsel Notices to Merrimack : with a copy to : Merrimack Pharmaceuticals, Inc. Merrimack Pharmaceuticals, Inc. One Kendall Square, Suite B7201 One Kendall Square, Suite B7201 Cambridge, Massachusetts 02139 Cambridge, Massachusetts 02139 Attention: President, Merrimack Healthcare Solutions Attention: General Counsel 12.10 Governing Law . The laws (without regard to the conflicts of law provisions) of the State of Delaware shall govern all questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement. 12.11 Counterparts . This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and all of which shall be considered one and the same instrument. 12.12 Severability . If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or unenforceability of the other provisions of this Agreement shall not be affected thereby, and there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue. [Remainder of Page Intentionally Left Blank] 31 IN WITNESS WHEREOF, this Agreement is executed as of the dates written below. 32 WATSON LABORATORIES INC . MERRIMACK PHARMACEUTICALS, INC . By: /s/ Sigurdur O. Olafsson By: /s/ Robert J. Mulroy Name: Sigurdur O. Olafsson Name: Robert J. Mulroy Title: President, Actavis Pharma Title: President + CEO Date: Nov. 25, 2013 Date: November 25, 2013 EXHIBIT A DEVELOPMENT PLAN / RESPONSIBILITIES MATRIX Merrimack will be responsible to use commercially reasonable efforts to complete all activities related to the development of the Bulk Product and certain activities related to the Finished Product, as identified below or in the Responsibility Matrix. Merrimack’s responsibilities will include: [**] Actavis will be responsible to use commercially reasonable efforts to complete all activities for the manufacture of the Finished Product and certain activities related to the development of the Finished Product, as identified below or in the Responsibility Matrix. Actavis responsibilities, some or all of which may be performed by a CMO, will include: [**] Notwithstanding the foregoing, Actavis may request that Merrimack perform [**]. Merrimack will supply Bulk Product to Actavis for the purpose of ex-U.S. development, regulatory and commercialization activities. Other than providing data and support for Actavis’ ex-U.S. activities on a to be agreed upon basis, Merrimack shall have no other responsibilities outside the United States. Actavis shall be responsible for any and all clinical development, regulatory, Finished Product manufacturing and commercial activities outside the United States, and all related costs. Responsibilities Matrix 2 Activity Actavis Merrimack [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] * For “Assist” activities, the Party will bear its own costs (subject, in the case of Merrimack, to reimbursement as and to the extent set forth in Section 2.2(ii)). ** If the Parties agree this will be a Delegated Activity, Merrimack will assume primary responsibility and will charge Actavis the Additional Costs incurred in performing such activity. *** Each Party shall have primary responsibility to address deficiencies related to their earlier activities. **** With any costs from outside vendors (e.g., Althea) being paid directly by Actavis or handled as an Additional Cost. ***** Merrimack shall be solely responsible for the clinical study budget for the agreed upon clinical protocol, provided the total cost is not more than [**]% of the cost of the current clinical protocol. If the Parties agree to move ahead with a revised protocol that exceeds such amount, the Parties shall share the costs above such [**]% amount in the same proportion as they will share Net Profits (i.e., [**]% Actavis / [**]% Merrimack). The Party incurring such costs shall invoice the other Party for the other Party’s share of that cost, and the other Party shall pay such invoices within [**] days after its receipt of that invoice. EXHIBIT B INITIAL FTE RATES Additional Product Program (excluding Section 2.3(e)): $[**] Regulatory Affairs: $[**] Quality Assurance: $[**] Quality Control: $[**] Manufacturing: $[**] EXHIBIT C MILESTONE PAYMENTS Actavis shall make Milestone Payments to Merrimack in accordance with the following: [**]. • USD $2,000,000 upon the Parties’ agreement on the U.S. clinical protocol and clinical program (which, notwithstanding Section 2.2, shall be payable within [**] days); EXHIBIT D COMMERCIAL SUPPLY PRICE Assuming a production level of approximately [**] of Bulk Product per year, the Commercial Supply Price is estimated to be between $[**] and $[**] per gram. Commercial Supply Price is comprised of: [**] [**] Facility and QC lab overhead allocated based on number of weeks used for manufacture of Bulk Product over [**] weeks. • Direct Costs • Allocated Overhead, which shall not include (a) costs and charges related to or occasioned by unused manufacturing capacity; (b) the manufacture of other products at such Party’s facilities; (c) amortization of property, plant or equipment not specifically related to manufacturing of Product; and (d) any allocation of general corporate overhead EXHIBIT E BULK PRODUCT SPECIFICATIONS Test Method Reference Specification* Quality [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] Strength [**] [**] [**] [**] [**] [**] Purity [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] Identity [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] * Or as otherwise agreed by the Parties. EXHIBIT F INITIAL PRESS RELEASE Merrimack and Actavis Announce Nanotechnology Collaboration Leverages Merrimack’s Nanotechnology Platform and Expertise to Develop Specialty Pharmaceuticals CAMBRIDGE, MASS. and DUBLIN—(Globe Newswire)—[Date], 2013—Merrimack Pharmaceuticals, Inc. (NASDAQ: MACK), a biopharmaceutical company discovering, developing and preparing to commercialize innovative medicines paired with companion diagnostics for the treatment of cancer, and Actavis plc, a global, integrated specialty pharmaceutical company, today announced that the companies have entered into a collaboration agreement. Under the agreement, Merrimack will utilize its proprietary nanoliposomal technology platform to develop and manufacture various pharmaceutical products for Actavis to commercialize around the world. “This opportunity further validates Merrimack’s nanoliposomal technology platform, which we have used to develop MM-398 and MM-302, as well as other preclinical programs,” stated [Name, Title] at Merrimack. “Under this collaboration, we are able to advance the development of our commercial infrastructure and utilize our manufacturing capacity to generate upside revenue opportunities to help fund our core R&D programs. Actavis is a dynamic company with significant expertise marketing specialty products around the globe, and we think they will be a great partner.” Under the terms of the agreement, Merrimack is eligible to receive up to $15.5 million, including $2.0 million upfront and the remainder in committed near-term funding and development, regulatory and commercial milestone payments related to the first product to come out of the collaboration. In addition, Merrimack will receive a double-digit share of profits on future global sales of any commercialized products derived from the collaboration. Merrimack will be responsible for manufacturing bulk product at its Cambridge, Mass. nanoliposomal manufacturing facility. “We are pleased to enter this agreement with Merrimack and take advantage of their expertise in nanoliposomal development and manufacturing capabilities,” stated Sigurdur O. Olafsson, President of Actavis Pharma. “We are excited to be working with them and their technology and believe that together we can help meet the needs of patients around the world.” About Merrimack Merrimack is a biopharmaceutical company discovering, developing and preparing to commercialize innovative medicines paired with companion diagnostics for the treatment of cancer. Merrimack applies its systems biology-based approach to biomedical research throughout the research and development process. Merrimack currently has six oncology therapeutics in clinical development. About Actavis Actavis plc (NYSE: ACT) is a global, integrated specialty pharmaceutical company focused on developing, manufacturing and distributing generic, brand and biosimilar products. Actavis has global headquarters in Dublin, Ireland and U.S. administrative headquarters in Parsippany, New Jersey, USA. Actavis Pharma markets generic, branded generic, legacy brands and Over-the-Counter (OTC) products in more than 60 countries. Actavis Specialty Brands is a global branded specialty pharmaceutical business focused principally in the Urology and Women’s Health therapeutic categories, as well as Gastroenterology and Dermatology. Actavis Specialty Brands also has a portfolio of five biosimilar products in development in Women’s Health and Oncology. Actavis Global Operations has more than 30 manufacturing and distribution facilities around the world, and includes Anda, Inc., a U.S. pharmaceutical product distributor. For press release and other company information, visit Actavis’ Web site at http://www.actavis.com . Forward-looking statements To the extent that statements contained in this press release are not descriptions of historical facts, they are forward-looking statements reflecting the current beliefs and expectations of management made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, as amended. Forward-looking statements include any statements about Merrimack’s strategy, future operations, future financial position and future expectations and plans and prospects for Merrimack, and any other statements containing the words “anticipate,” “believe,” “estimate,” “expect,” “intend,” “may,” “plan,” “predict,” “project,” “target,” “potential,” “will,” “would,” “could,” “should,” “continue,” “hope” and similar expressions. In this press release, Merrimack’s forward-looking statements include statements about the ability to develop and manufacture products under the collaboration and the receipt of profit share, milestone and other payments under the agreement. Such forward-looking statements involve substantial risks and uncertainties that could cause Merrimack’s clinical development programs, future results, performance or achievements to differ significantly from those expressed or implied by the forward-looking statements. Such risks and uncertainties include, among others, the uncertainties inherent in the initiation of future clinical trials, availability of data from ongoing clinical trials, expectations for regulatory approvals, development progress of Merrimack’s companion diagnostics and other matters that could affect the availability or commercial potential of Merrimack’s drug candidates or companion diagnostics. Merrimack undertakes no obligation to update or revise any forward-looking statements. Forward-looking statements should not be relied upon as representing Merrimack’s views as of any date subsequent to the date hereof. For a further description of the risks and uncertainties that could cause actual results to differ from those expressed in these forward-looking statements, as well as risks relating to Merrimack’s business in general, see the “Risk Factors” section of Merrimack’s Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission (SEC) on November 8, 2013 and other reports Merrimack files with the SEC. 2 Statements contained in this press release that refer to non-historical facts are forward-looking statements that reflect Actavis’ current perspective of existing information as of the date of this release. It is important to note that Actavis’ goals and expectations are not predictions of actual performance. Actual results may differ materially from Actavis’ current expectations depending upon a number of factors, risks and uncertainties affecting Actavis’ business. These factors include, among others; the difficulty of predicting the timing and outcome of the pending patent litigation; the difficulty of predicting the timing or outcome of product development efforts, including FDA and other regulatory agency approvals and actions, if any; the impact of competitive products and pricing; the timing and success of product launches; difficulties or delays in manufacturing; the availability and pricing of third party sourced products and materials; successful compliance with FDA and other governmental regulations applicable to Actavis’ and its third party manufacturers’ facilities, products and/or businesses; changes in the laws and regulations; and such other risks and uncertainties detailed in Actavis’ periodic public filings with the SEC, including but not limited to Actavis, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2012 (as revised pursuant to Actavis, Inc.’s Current Report on Form 8-K dated as of June 17, 2013, which was filed with the SEC on June 18, 2013) and Quarterly Reports on Form 10-Q for the periods ended March 31, 2013, June 30, 2013 and September 30, 2013, and Actavis plc’s Quarterly Report on Form 10-Q for the period ended September 30, 2013. Except as expressly required by law, Actavis disclaims any intent or obligation to update these forward-looking statements. Statements in this press release attributed to Merrimack Pharmaceuticals, Inc. or its representatives reflect the views of Merrimack Pharmaceuticals, Inc. alone and should not be considered or construed as statements of Actavis plc. 3 Exhibit 21.1 SUBSIDIARIES OF THE REGISTRANT Name Jurisdiction of Incorporation Merrimack Pharmaceuticals (Bermuda) Ltd.* Bermuda Merrimack Pharmaceuticals UK Limited* UK Silver Creek Pharmaceuticals, Inc. Delaware * wholly owned Exhibit 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We hereby consent to the incorporation by reference in the Registration Statements on Forms S-3 (No. 333-186369) and S-8 (Nos. 333-180996 and 333-186370) of Merrimack Pharmaceuticals, Inc. of our report dated March 4, 2014 relating to the financial statements, which appears in this Form 10-K. /s/ PricewaterhouseCoopers LLP Boston, Massachusetts March 4, 2014 Exhibit 31.1 CERTIFICATIONS I, Robert J. Mulroy, certify that: 1. I have reviewed this Annual Report on Form 10-K of Merrimack Pharmaceuticals, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date: March 4, 2014 /s/ Robert J. Mulroy Robert J. Mulroy President and Chief Executive Officer (Principal Executive Officer) Exhibit 31.2 CERTIFICATIONS I, William A. Sullivan, certify that: 1. I have reviewed this Annual Report on Form 10-K of Merrimack Pharmaceuticals, Inc.; 2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; 3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; 4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and 5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. Date: March 4, 2014 /s/ William A. Sullivan William A. Sullivan Chief Financial Officer and Treasurer (Principal Financial Officer) Exhibit 32.1 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K of Merrimack Pharmaceuticals, Inc. (the “Company”) for the period ended December 31, 2013 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Robert J. Mulroy, President and Chief Executive Officer of the Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, that to his knowledge: (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: March 4, 2014 /s/ Robert J. Mulroy Robert J. Mulroy President and Chief Executive Officer (Principal Executive Officer) Exhibit 32.2 CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002 In connection with the Annual Report on Form 10-K of Merrimack Pharmaceuticals, Inc. (the “Company”) for the period ended December 31, 2013 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, William A. Sullivan, Chief Financial Officer and Treasurer of the Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, that to his knowledge: (1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and (2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. Date: March 4, 2014 /s/ William A. Sullivan William A. Sullivan Chief Financial Officer and Treasurer (Principal Financial Officer) 

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