UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 10-K

(Mark One)

 

 

x

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended: December 31, 2006

or

o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from                  to

Commission file number: 000-50797

MOMENTA PHARMACEUTICALS, INC.

( Exact name of registrant as specified in its charter)

Delaware

 

04-3561634

(State or other jurisdiction of

 

(I.R.S. Employer Identification No.)

incorporation or organization)

 

 

 

675 West Kendall Street, Cambridge, Massachusetts 02142

(Address of principal executive offices) (zip code)

Registrant’s telephone number, including area code: (617) 491-9700

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

 

Name of each exchange on which registered

Common Stock, $0.0001 par value
(excluding Preferred Stock Purchase Rights,
$0.01 par value)

 

NASDAQ Global Market

Securities registered pursuant to Section 12(g) of the Act:

None

(Title of Class)

Preferred Stock Purchase Rights, $0.01 par value

Indicate by check mark if registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.  Yes   o    No   x

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 o    No x

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   x    No   o

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.    o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer   o              Accelerated filer   x               Non-accelerated filer   o

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes   o    No   x

The aggregate market value of the registrant’s voting shares Common Stock held by non-affiliates of the registrant on June 30, 2006, based on $12.71 per share, the last reported sale price of the shares of Common Stock on the Nasdaq Global Market on that date was $228,326,113.

The number of shares outstanding of each of the registrant’s classes of common stock, as of March 1, 2007:

Class

 

 

 

Number of Shares

 

Common Stock, $0.0001 par value

 

36,318,535

DOCUMENTS INCORPORATED BY REFERENCE:

Portions of the information required by Part III of Form 10-K will appear in the registrant’s definitive Proxy Statement on Schedule 14A for the 2007 Annual Meeting of Stockholders and are hereby incorporated by reference into this report.

 




TABLE OF CONTENTS

 

 

 

Page

 

PART I

 

 

 

 

 

Item 1.

 

BUSINESS

 

3

 

Item 1A.

 

RISK FACTORS

 

24

 

Item 1B.

 

UNRESOLVED STAFF COMMENTS

 

44

 

Item 2.

 

PROPERTIES

 

44

 

Item 3.

 

LEGAL PROCEEDINGS

 

45

 

Item 4.

 

SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

 

45

 

PART II

 

 

 

 

 

Item 5.

 

MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

 

45

 

Item 6.

 

SELECTED CONSOLIDATED FINANCIAL DATA

 

46

 

Item 7.

 

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

48

 

Item 7A.

 

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

57

 

Item 8.

 

FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

58

 

Item 9.

 

CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

 

84

 

Item 9A.

 

CONTROLS AND PROCEDURES

 

84

 

Item 9B.

 

OTHER INFORMATION

 

86

 

PART III

 

 

 

 

 

Item 10.

 

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

 

87

 

Item 11.

 

EXECUTIVE COMPENSATION

 

87

 

Item 12.

 

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

 

87

 

Item 13.

 

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

 

87

 

Item 14.

 

PRINCIPAL ACCOUNTANT FEES AND SERVICES

 

87

 

PART IV

 

 

 

 

 

Item 15.

 

EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

 

88

 

SIGNATURES

 

89

 

EXHIBIT INDEX

 

90

 

 

2




PART I

Item 1.                         BUSINESS

The Company

Momenta is a biotechnology company specializing in the detailed structural analysis of complex mixture drugs. We apply our technology to the development of generic versions of complex drug products as well as to the discovery and development of novel drugs. Our most advanced product candidate, M-Enoxaparin is designed to be a technology-enabled generic version of Lovenox ®  (enoxaparin sodium injection), a low molecular weight heparin, or LMWH, used to prevent and treat deep vein thrombosis, or DVT, and to support the treatment of acute coronary syndromes, or ACS. Our second major generic product candidate is M356, a technology-enabled generic version of Copaxone ®  (glatiramer acetate), a complex drug consisting of a mixture of polypeptide chains. Copaxone is indicated for the reduction of the frequency of relapses in patients with Relapse-Remitting Multiple Sclerosis, or RRMS. Our novel drug candidate, M118, is a LMWH currently in Phase I clinical studies that has been engineered to possess what we believe will be an improved therapeutic profile (compared with other currently marketed products) to support the treatment of ACS. In our glycoprotein program, we are working on developing potentially interchangeable generic and biosimilar versions of major marketed glycoprotein drugs. Within our discovery program, we are seeking to discover and develop novel therapeutics by applying our technology to better understand sugars’ functions in biological processes, with an initial focus in oncology.

We were incorporated in Delaware in May 2001 under the name Mimeon, Inc. In September 2002, we changed our name to Momenta Pharmaceuticals, Inc. Our principal executive offices are located at 675 West Kendall Street, Cambridge, Massachusetts 02142, and our telephone number is (617) 491-9700.

In this Annual Report on Form 10-K, the terms “Momenta,” “we,” “us” and “our” refer to Momenta Pharmaceuticals, Inc. and its subsidiaries.

We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and, accordingly, file reports, proxy statements and other information with the Securities and Exchange Commission. Such reports, proxy statements and other information can be read and copied at the public reference facilities maintained by the Securities and Exchange Commission at the Public Reference Room, 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Information regarding the operation of the Public Reference Room may be obtained by calling the Securities and Exchange Commission at 1-800-SEC-0330. The Securities and Exchange Commission maintains a web site (http://www.sec.gov) that contains material regarding issuers that file electronically with the Securities and Exchange Commission.

Our Internet address is www.momentapharma.com. We are not including the information contained on our web site as a part of, or incorporating it by reference into, this Annual Report on Form 10-K. We make available free of charge on our website our Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act, as soon as reasonably practicable after we electronically file such material with, or furnish it to, the Securities and Exchange Commission.

Our logo, trademarks, and service marks are the property of Momenta. Other trademarks or service marks appearing in this Annual Report on Form 10-K are the property of their respective holders.

Our Technology

Our integrated analytical technology for the study of complex mixtures utilizes three different types of tools. First, we have accumulated a comprehensive library of enzymes that we use to break down the

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components of a complex mixture into smaller, measurable units. Second, we apply proprietary improvements to established analytical techniques, such as Matrix Assisted Laser Desorption Ionization-Mass Spectrometry, or MALDI-MS, nuclear magnetic resonance, or NMR, and capillary electrophoresis, or CE, among others, in order to gather and analyze information regarding the components, structure and arrangement of the chemical building blocks of the complex mixture. Third, we apply proprietary mathematical methods that integrate the disparate information obtained from those analytical techniques to arrive at a specific, numerically-derived solution that describes the complete composition of a specific complex mixture. It is the combination of these tools that enables us to arrive at unique solutions for thoroughly characterizing complex sugars and other complex mixture drugs. In addition to using our technology to characterize final complex drug products, we further employ our characterization datasets as in-process controls to guide any manufacturing of complex drug candidates we pursue.

Product Candidates

M-Enoxaparin

Our most advanced product candidate, M-Enoxaparin, is designed to be a generic version of Lovenox. Lovenox is a widely-prescribed LMWH used for the prevention and treatment of DVT and to support the treatment of ACS. Lovenox is distributed worldwide by Sanofi-Aventis and is also known outside the United States as Clexane ®  and Klexane ® . Sanofi-Aventis reported worldwide sales of Lovenox of approximately $3.2 billion in 2006, with approximately $2.0 billion coming from the United States market. Analysts project that Lovenox will remain a leading LMWH product, with estimated annual sales approaching $3.9 billion in 2009.

Description of Our Program

Lovenox is a heterogeneous mixture of complex sugar chains that, in our view, prior to the application of our technology, had not been adequately analyzed. The length and sequence of the sugar chains varies, resulting in a diversity of chemical structures in the mixture. The current description in the package insert of Lovenox includes molecular weight distribution and in vitro measurements of Lovenox’s ability to inhibit blood clotting factors Xa and IIa, or its anti-Xa and anti-IIa activity. While molecular weight distribution provides a rough measure of the range of chain lengths, it provides no information about detailed sequences or chemical structures contained in Lovenox. Similarly, the in vitro measures of anti-Xa and anti-IIa activity describe certain aspects of anticoagulation but only partly define the biological and clinical activity of Lovenox. According to Sanofi-Aventis, only 15% to 25% of the chains in LMWHs contain sequences that bind to the factor that is responsible for anti-Xa and anti-IIa activity.

FDA regulations and guidelines require that a generic version of a product that was approved under a New Drug Application, or NDA, must be pharmaceutically equivalent to the branded drug product upon which the generic application is based. Generic drugs are considered pharmaceutically equivalent to their branded counterparts if, among other things, they have the same active ingredient(s), dosage form, route of administration, identical in strength or concentration. For a drug to be interchangeable with the branded product, it must be therapeutically equivalent, which means that it is pharmaceutically equivalent and bioequivalent, meaning it has the same rate and extent of absorption as the innovator product.  A therapeutically equivalent product is deemed to have the same clinical effect and safety profile as the innovator product. Our ability to apply our technology to sequence and analyze complex mixtures has allowed us to analyze Lovenox and develop a process to make M-Enoxaparin, a generic version of Lovenox, which we believe will demonstrate same active ingredients, route of administration, dosage form, and strength, which are essential to demonstrating the FDA’s requirements for therapeutic equivalence. An Abbreviated New Drug Application, or ANDA, for M-Enoxaparin was filed with the FDA in August 2005.

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In 2003, we formed a collaboration, the 2003 Sandoz Collaboration, with Sandoz N.V. and Sandoz Inc., together referred to as Sandoz, affiliates of Novartis AG, to exclusively develop, manufacture and commercialize M-Enoxaparin in the U.S. In July 2006, we entered into a series of agreements with Novartis AG and Sandoz AG, including a Memorandum of Understanding, or MOU, with Sandoz AG, collectively referred to as the 2006 Sandoz Collaboration. Under the terms of the MOU, we expanded the geographic markets covered by our collaboration efforts related to M-Enoxaparin to include the European Union and further agreed to exclusively collaborate with Sandoz AG on the development and commercialization of three other biosimilar and complex generic products.

Sandoz has submitted ANDAs to the FDA for syringe and vial forms of M-Enoxaparin seeking approval to market M-Enoxaparin in the United States. The FDA is currently reviewing the M-Enoxaparin ANDAs, including our manufacturing data and technology and characterization methodology. In parallel, and in collaboration with Sandoz, we are focused on activities related to supporting the FDA’s review of the ANDA and preparing for the commercialization of M-Enoxaparin, if and when approved, by advancing manufacturing, supply chain, and sales and marketing objectives.

Legal Matters

Currently, Sanofi-Aventis has two listed patents for Lovenox in the FDA’s listing of approved drug products, the Orange Book, U.S. Patent No. 5,389,618, or the ‘618 Patent, and its counter-part, Reissue Patent No. 38,743, or the ‘743 Reissue Patent. Sanofi-Aventis has brought lawsuits for patent infringement; one against Amphastar Pharmaceuticals, Inc., or Amphastar, and Teva Pharmaceuticals USA, Inc., or Teva, and a second, separate patent infringement lawsuit against Sandoz.

Amphastar/Teva Patent Infringement Lawsuit

In September 2003, prior to issuance of the ‘743 Reissue Patent, Sanofi-Aventis announced that it had received individual notices from Amphastar and Teva indicating that each had submitted its own ANDA with a paragraph IV certification for enoxaparin. Sanofi-Aventis sued Amphastar and Teva for patent infringement and in response Amphastar and Teva asserted claims of non-infringement, invalidity and/or unenforceability of the ‘618 Patent, as well as various counterclaims, and sought related declaratory judgment relief against Sanofi-Aventis.  In September 2005, Amphastar and Teva each subsequently amended their own ANDA to include a second paragraph IV certification for the ‘743 Reissue Patent.

In June 2005, the District Court granted summary judgment in the Amphastar/Teva case, finding that both the ‘618 Patent and the ‘743 Reissue Patent were unenforceable due to Aventis’ inequitable conduct before the United States Patent and Trademark Office, or USPTO. In April 2006, the Court of Appeals determined that, although there were no issues of material fact with respect to the materiality of certain information withheld from the USPTO, there remained genuine issues of material fact regarding the intent to deceive the USPTO. Accordingly, the Court of Appeals reversed the District Court’s ruling and remanded the case to the District Court for further proceedings consistent with the Court of Appeals’ decision. The District Court held a bench trial in December 2006 focused only on inequitable conduct and in February 2007 the District Court ruled in favor of Amphastar and Teva holding both the ‘618 Patent and the ‘743 Reissue Patent unenforceable by virtue of inequitable conduct before the USPTO. Sanofi-Aventis may appeal this ruling. If Sanofi-Aventis is successful in its appeal, all other remaining issues regarding invalidity, non-infringement and unenforceability could be subsequently tried by the District Court, if necessary. If Sanofi-Aventis is not successful, the ‘618 Patent and the ‘743 Reissue Patent will continue to be unenforceable.

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Sandoz Patent Infringement Lawsuit

Sandoz amended the ANDA for the syringe version of M-Enoxaparin to include a paragraph IV certification stating that Sanofi-Aventis’ patents listed in the Orange Book for Lovenox are, among other things, invalid and unenforceable. In response to Sandoz’ ANDA containing the paragraph IV certification, Sanofi-Aventis brought a patent infringement suit against Sandoz in August 2006. In response to Sanofi-Aventis’ lawsuit, Sandoz asserted, among other things, claims of invalidity and/or unenforceability of the ‘743 Reissue Patent. At this time, no trial date has been set for this litigation. Sandoz has moved to dismiss the suit based upon the District Court decision in the Amphastar/Teva case, and that motion is pending.

Continuing litigation could delay or prevent the introduction of M-Enoxaparin. Sanofi-Aventis’ efforts to litigate against potential generic challengers to protect its intellectual property around Lovenox may not be limited to potential infringement of the Orange Book patents. Pharmaceutical companies frequently sue generic challengers over potential infringement of patents that are not listed in the Orange Book. Presently, we are not aware of any litigation relating to non-Orange Book patents, but there can be no assurance that Sanofi-Aventis will not initiate such litigation against us, Sandoz, Teva, Amphastar, or others in the future.

Neither Teva nor Amphastar are currently marketing a generic version of enoxaparin in the United States, nor can they market such product in the United States unless the FDA approves Amphastar’s or Teva’s respective ANDA filings.

Exclusivity

Under the Hatch-Waxman Act, the first applicant to submit an ANDA for review by the FDA that includes a paragraph IV certification may be eligible to receive a 180-day period of generic market exclusivity. Both Amphastar and Teva submitted ANDAs containing paragraph IV certifications prior to the ANDA for M-Enoxaparin. However, there may be uncertainty as to whether only Teva or Amphastar or both of Teva and Amphastar would have rights to the 180-day exclusivity period. Therefore, if one or both of their ANDAs are approved by the FDA, one or both of them may receive market exclusivity for 180 days, which, assuming M-Enoxaparin receives FDA approval, would potentially delay the commercial launch of M-Enoxaparin. Under other circumstances, the start of the exclusivity period may be delayed or may not be triggered and we may be delayed or prevented from commercially launching our M-Enoxaparin product.

M118

M118 is a novel anticoagulant drug that was rationally designed with the goal of providing improved clinical anticoagulant properties when used to support the treatment of patients diagnosed with ACS and stable angina. We believe that M118 has the potential to provide baseline anticoagulant therapy for patients with ACS or stable angina who require a coronary intervention, as well as those ACS patients who are medically managed, or do not require intervention in order to treat their condition. M118 is designed to be a reversible and monitorable anticoagulant that can be administered intravenously or subcutaneously, and has a pharmacokinetic profile similar to a LMWH. We believe that the properties of M118 have the potential to provide greater flexibility than other therapies presently used to treat patients diagnosed with ACS and stable angina.

ACS includes several diseases ranging from unstable angina, which is characterized by chest pain at rest, to acute myocardial infarction, or heart attack, which is caused by a complete blockage of a coronary artery. While some patients are initially medically managed with anti-clotting agents such as unfractionated heparin, or UFH, or LMWH, an increasing proportion of ACS patients are proceeding to early intervention such as angioplasty or coronary artery bypass grafting, or CABG. Both angioplasty and CABG

6




require anticoagulant therapy to prevent clot formation during and immediately following the procedure. UFH is currently the foundation anti-clotting agent used in both angioplasty and CABG. No LMWHs are currently approved for use in either angioplasty or CABG. M118 is designed to be a LMWH that could be used in multiple settings, including initial medical management, angioplasty or CABG.

Description of Our Program

M118 was designed utilizing our proprietary analytical methods and technology to identify the polysaccharide sequences in heparin responsible for specific desired clinical attributes. Using this information, the design of M118 was tailored to include specific attributes that address the unmet medical needs of anticoagulation therapy in ACS, including, among others, reversibility and the ability to be monitored. The results of our preclinical animal studies suggest potential benefits of M118 over UFH and other LMWHs, including:

·        Increased efficacy .   In animal studies directly comparing M118 with UFH and other LMWHs, M118 appeared to more effectively prevent clotting of injured arteries in a rat and canine thrombosis model. The results of i n vivo and in vitro experiments suggest that M118 acts at multiple points in the coagulation cascade by inhibiting both factor Xa and factor IIa and through the release of tissue factor pathway inhibitor.

·        Reversibility.    Animal study results also suggest that the anti-clotting effects of M118 are reversible by administering protamine sulfate, the standard drug used to reverse anticoagulant activity. LMWHs are not fully reversible with protamine.

·        Ability to monitor.    Due to the presence of certain saccharide sequences in M118, we believe the anti-clotting activity of M118 can be monitored by standard, point-of-care laboratory tests that detect the presence of factor IIa, or thrombin. These assays, which include activated clotting time, or ACT, are routinely used during interventional procedures. Currently, LMWHs cannot be monitored efficiently with routine laboratory tests.

In July 2006, we filed our Investigational New Drug Application, or IND, with the FDA for our M118 intravenous injection product, and in October 2006 began Phase I clinical trials which are currently ongoing. We are not currently able to estimate the timing of commercialization of M118. Based on preliminary analysis of Phase I data, M118 has demonstrated anticoagulant activity in a dose-dependent manner that is monitorable with a rapid point-of-care assay, ACT. We expect to conduct several other Phase I studies during the first half of 2007 that we expect collectively will provide us with important information on key attributes of M118, including aspects of safety, tolerability, the pharmacokinetic and pharmacodynamic profiles, and reversibility. We expect to commence Phase II clinical trials for M118 following conclusion of the Phase I studies. We expect the Phase II study will investigate the use of M118 intravenous injection in conjunction with other commonly prescribed therapeutics in the management of patients diagnosed with coronary artery disease and undergoing elective angioplasty to restore sufficient blood flow to occluded arteries. We expect the Phase II study to provide important information about the ability to use M118 as a procedural anticoagulant.

In addition, we expect to file a second IND for M118 subcutaneous injection in 2007 and, pending clearance from regulatory agencies, commence a parallel Phase I program designed to demonstrate the safety and tolerability of M118 when administered by the subcutaneous method of administration.

M356

We are applying our technology to the analysis of other complex mixture drug products beyond heparins. These include synthetic, semi-synthetic and naturally derived products that are composed of molecules that, due to their diversity, are difficult to fully characterize. M356 is targeted to be a

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technology-enabled generic version of Copaxone (glatiramer acetate), a complex drug consisting of a mixture of polypeptide chains.

Description of Our Program

Copaxone is indicated for the reduction of the frequency of relapses in patients with RRMS. Multiple sclerosis is a chronic disease of the central nervous system characterized by inflammation and neurodegeneration. Copaxone and several interferon beta products are among the leading products marketed for treating multiple sclerosis. In North America, Copaxone is marketed through Teva Neuroscience LLC, a wholly owned subsidiary of Teva Pharmaceutical Industries Ltd., and distributed by Sanofi-Aventis. Teva and Sanofi-Aventis have an additional collaborative arrangement for the marketing of Copaxone in Europe and other markets, under which Copaxone is either co-promoted with Teva or is marketed solely by Sanofi-Aventis. Teva reported worldwide sales of Copaxone of approximately $1.4 billion in 2006, with approximately $0.9 billion from the U.S. market. Analysts project that annual worldwide sales of Copaxone will approach $1.9 billion in 2009. Under our 2006 Sandoz Collaboration, we and Sandoz agreed to jointly develop, manufacture and commercialize M356.

Copaxone is a complex product that was approved under the FDA’s NDA regulations. Like Lovenox, there are significant technical challenges involved in thoroughly characterizing Copaxone and in manufacturing an equivalent version, given its structure as a mixture of polypeptide chains of various lengths and sequences. We believe our technology can be applied to characterize glatiramer acetate and to develop a generic product that has the same active ingredients as Copaxone.

Legal Matters

Teva has listed six patents in the Orange Book for Copaxone, all of which expire in May 2014.

Glycoproteins

Many glycoprotein drugs are complex mixture drugs that have been approved by the FDA under the Biologic License Application, or BLA, regulatory pathway. The BLA pathway was created to review and approve applications for biologic drugs that are typically produced from living systems. BLA-approved complex mixture products include glycoproteins, or protein drugs containing sugars, such as erythropoietin, blood clotting factors and interferon beta. Presently, there is no abbreviated regulatory pathway for the approval of generic or biosimilar versions of BLA-approved products in the United States, however there are emerging guidelines in the EU. We believe that scientific progress in the analysis and characterization of complex mixture drugs is likely to play a significant role in the creation of such a U.S. regulatory pathway in the future.

The market size of protein-based drugs potentially vulnerable to generic or biosimilar competition, given projected patent expirations, is estimated to reach approximately $12 billion by 2010. Most of these products are glycoprotein drugs, which contain branched sugars that vary from molecule to molecule. These sugars impart specific biological properties to the glycoprotein drug and can often comprise a significant portion of the mass of the molecule. Given the inadequacies of standard technology, many of these glycoproteins have not been thoroughly characterized.

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Description of Our Program

Our glycoprotein program is focused on extending our technology for the analysis of complex sugars to glycoproteins. The goal of the program is to facilitate the development of generic or biosimilar versions of major marketed glycoprotein drugs. In addition, we believe we can assist pharmaceutical and biotechnology companies in developing improved and next-generation versions of their branded glycoprotein products by analyzing and modifying the sugar structures contained in the products. Under our 2006 Sandoz Collaboration, we are currently applying our technology to develop two generic or biosimilar proteins in partnership with Sandoz. We refer to these two glycoprotein product candidates as M178 and M249.

M-Dalteparin

Description of Our Program

M-Dalteparin is targeted to be a technology-enabled generic version of Fragmin ® , a LMWH product. Fragmin is indicated for the prevention of DVT and selected indications in ACS. In September 2005, Eisai Inc., a U.S. pharmaceutical subsidiary of Eisai Co. Ltd., obtained U.S. promotion rights to Fragmin from Pfizer Inc. Fragmin is marketed by Pfizer in Europe and by Kissei Pharmaceutical Co., Ltd. in Japan.

Similar to Lovenox, Fragmin has a description in its package insert consisting of limited measures such as molecular weight distribution, anti-Xa activity and anti-IIa activity. We believe that additional analysis is necessary to demonstrate that a generic version of Fragmin has the same active ingredients as the branded drug. Through our technology, we believe we have the ability to analyze Fragmin and develop a generic product that has the same active ingredients as Fragmin.

The M-Dalteparin program has been reprioritized in light of other more commercially attractive opportunities and we continue to assess the potential value of this program. The total cost of development and commercialization and the timing of bringing M-Dalteparin to market are subject to uncertainties relating to the market growth for Fragmin, as well as the development, regulatory and legal approval processes.

Legal Matters

The Orange Book patent listed for Fragmin expired in January 2005.

Discovery Program

The development of techniques to sequence DNA and proteins created the foundation of the biotechnology industry and enabled the first biotechnology companies to develop breakthrough products. Scientific studies have demonstrated that sugars, like DNA and proteins, play fundamental roles in the regulation of biological activity, processes and pathways and, consequently, in the cause and treatment of many diseases. Malfunctions in complex sugar production and the resulting abnormalities in sugar structures have been shown to play fundamental roles in numerous major diseases, such as cancer, cardiovascular disease, Alzheimer’s disease, inflammatory disease and viral infection.

Although significant progress has been made in the analysis of DNA and proteins, widespread analysis and application of complex sugars to drug development has been inhibited by the structural complexity of sugars and the lack of well established analytical tools and methods to analyze them. There are several technical challenges involved in thoroughly characterizing complex sugars. First, complex sugars are composed of disaccharide building blocks that are difficult to differentiate due to their unique chemical properties and subtle structural differences. Second, these building blocks can link together to form a variety of polysaccharide chains of various length and sequence and can exist in linear or branched forms. Third, complex sugars exist as heterogeneous mixtures of many similar, but chemically distinct,

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polysaccharide chains. A comprehensive analysis of complex sugars therefore requires a mathematical accounting for the inherent variability of the compounds. Finally, unlike DNA and proteins, complex sugars cannot be isolated and studied in large quantities for analysis.

Without being able to identify specific chemical structures contained in complex sugars, it has been difficult to associate how these chemical structures correlate to specific biological activity in the human body. As a consequence, to date the development of drugs containing sugars has been largely through a “trial-and-error” approach. We believe greater understanding of the composition and functions of complex sugar structures, as well as their roles in critical biological processes and pathways, will provide significant commercial opportunities for drug development.

Our discovery program is focused on the role that complex sugars play in biological systems, including regulating the development and progression of disease. Our initial focus is in the area of cancer, which is a disease characterized by unregulated cell growth, where we are seeking to discover sugar sequences with anti-cancer properties for development as therapeutics. Sugars play a part in the conversion of normal cells into cancerous cells, the regulation of tumor growth and tumor invasion and metastasis. We also may seek to broaden our focus in discovery to include other disease areas such as inflammation and infection. We believe that our technology can provide us with a better understanding of the role of sugars in disease, enabling us to discover novel sugar therapeutics, as well as to discover new disease mechanisms that can be targeted with small molecule drugs. We previously were applying our technology to the pulmonary delivery of proteins. However, in order to focus our resources on our key programs, we discontinued our drug delivery program during 2006.

Collaborations and Licenses

Sandoz

2003 Sandoz Collaboration

Under the terms of the 2003 Sandoz Collaboration, we and Sandoz agreed to exclusively work with each other to develop and commercialize injectable enoxaparin for any and all medical indications within the United States. In addition, we granted Sandoz an exclusive license under our intellectual property rights to develop and commercialize injectable enoxaparin for all medical indications within the United States.

Under this collaboration, Sandoz makes certain payments to us. As mutually agreed, we provide, and Sandoz pays us for, full-time equivalent scientific, technical and/or management work. Sandoz is also responsible for funding substantially all of the other ongoing development and commercialization costs and legal expenses incurred with respect to injectable enoxaparin, subject to termination rights upon reaching agreed upon limits. In addition, Sandoz will, in the event there are no third party competitors marketing a Lovenox-Equivalent Product, as defined in the agreement, provide to us a share of the profits from M-Enoxaparin. Alternatively, if there are one or more third party competitors marketing a Lovenox-Equivalent Product, Sandoz will either pay a royalty to us based on net sales of M-Enoxaparin or pay a combination of royalty payments and a share of profits, depending on certain circumstances. In addition, if certain milestones are achieved with respect to injectable enoxaparin under certain circumstances, Sandoz may also make milestone payments to us which would reach $55.0 million if all such milestones are achieved. In all of these scenarios, a portion of the development expenses and certain legal expenses which have exceeded a specified amount will be offset against the profit-sharing amounts, the royalties and the milestone payments. Sandoz may also offset a portion of any product liability costs and certain other expenses arising from patent litigation against the profit-sharing amounts, the royalties and the milestone payments.

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The collaboration is governed by a joint steering committee and a joint project team, each consisting of an equal number of Sandoz and Momenta representatives. Most decisions must be made unanimously, with Sandoz collectively having one vote and us having one vote. Sandoz has sole authority to make decisions with respect to any litigation claiming that the manufacture, use or sale of the injectable enoxaparin product infringes any patents listed in the Orange Book for Lovenox. In addition, Sandoz has the sole authority to determine whether or not to launch M-Enoxaparin prior to receipt of final legal clearance from any such infringement claims, as well as determine the price at which it will sell M-Enoxaparin. Sandoz filed the ANDA for M-Enoxaparin in August 2005, which was amended in 2006 to include a paragraph IV certification.

We and Sandoz will indemnify each other for losses resulting from the indemnifying party’s misrepresentation or breach of its obligations under the agreement. We will indemnify Sandoz if we actually misappropriate the know-how or trade secrets of a third party. Sandoz will indemnify us and our collaborators involved in the enoxaparin program for any losses resulting from any litigation by third parties, including Sanofi-Aventis, claiming that the manufacture, use or sale of injectable enoxaparin infringes any patents listed in the Orange Book for Lovenox, any product liability claims with respect to injectable enoxaparin and any other claims relating to the development and commercialization of injectable enoxaparin. To the extent that any losses result from a third-party claim for which we are obligated to indemnify Sandoz, Sandoz will have no obligation to indemnify us. After the expiration or termination of the agreement, these indemnification obligations will continue with respect to claims that arise before or after the termination of the agreement due to activities that occurred before or during the term of the agreement.

Unless terminated earlier, the agreement will expire upon the last sale of injectable enoxaparin by or on behalf of Sandoz in the United States. Either party may terminate the collaboration relationship for material uncured breaches or certain events of bankruptcy or insolvency by the other. Sandoz may also terminate the agreement if the product or the market lacks commercial viability, if new laws or regulations are passed or court decisions rendered that substantially diminish our legal avenues for redress, or, in multiple cases, if certain costs exceed mutually agreed upon limits. If Sandoz terminates the agreement (except due to our uncured breach) or if we terminate the agreement due to an uncured breach by Sandoz, we will be granted an exclusive license under certain intellectual property of Sandoz to develop and commercialize injectable enoxaparin in the United States and our obligation to indemnify Sandoz will survive with respect to claims that arise due to our exclusive development or commercialization of injectable enoxaparin after the term of the agreement. In the event of a termination by Sandoz due to the incurrence of costs beyond the agreed upon limits, we must pay certain royalties to Sandoz on our net sales of injectable enoxaparin. If Sandoz terminates the agreement due to our uncured breach, Sandoz retains the exclusive right to develop and commercialize injectable enoxaparin in the United States. Sandoz’ profit sharing, royalty and milestone payment obligations survive and Sandoz’ obligation to indemnify us will survive with respect to claims that arise due to Sandoz’ exclusive development or commercialization of injectable enoxaparin after the term of the agreement. In addition, if Sandoz terminates the agreement due to our uncured breach, Sandoz would retain its rights of first negotiation with respect to certain of our other products and its rights of first refusal outside the United States.

2006 Sandoz Collaboration

As part of the 2006 Sandoz Collaboration, the Company entered into a Stock Purchase Agreement and an Investor Rights Agreement with Novartis Pharma AG, and the MOU with Sandoz AG. Under the terms of the Stock Purchase Agreement, Novartis Pharma AG purchased 4,708,679 shares of our common stock representing approximately 13% of our common stock outstanding after the closing, for $15.93 per share, or an aggregate purchase price of $75.0 million. The closing of the purchase and sale of the shares of

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common stock to Novartis Pharma AG occurred on September 6, 2006. In connection with the closing, the MOU became effective.

Pursuant to the terms of the Investor Rights Agreement, we granted to Novartis Pharma AG certain registration rights and inspection rights, and Novartis Pharma AG agreed to certain standstill obligations. Specifically, Novartis Pharma AG is entitled to “piggyback” and demand registration rights under the Securities Act of 1933, as amended, with respect to the shares of common stock purchased under the Stock Purchase Agreement.

We also granted Novartis Pharma AG inspection rights whereby, subject to certain exceptions, Novartis Pharma AG may visit and inspect our properties and records, discuss our business and financial affairs with its officers, employees and other agents, and meet, at least twice a year, with the members of our Board of Directors.

Novartis Pharma AG has agreed, until the earliest of (i) the termination of the MOU (or, if later entered into, a Collaboration and License Agreement between the parties), (ii) the Termination Date (as defined in the Investor Rights Agreement) and (iii) 24 months from September 6, 2006, not to acquire any of our voting securities (other than an acquisition resulting in Novartis Pharma AG and its affiliates beneficially owning less than 13.5%  of our total outstanding voting securities), make any public proposal for any merger, other business combination or other extraordinary transaction involving us, our securities or material assets or seek to control or influence our management, Board of Directors or policies, in each case subject to specified exceptions described in the Investor Rights Agreement.

Under the terms of the MOU, we have agreed to exclusively collaborate with Sandoz AG on the development and commercialization of four follow-on and complex generic products for sale in specified regions of the world. Each party has granted the other an exclusive license under its intellectual property rights to develop and commercialize such products for all medical indications in the relevant regions. Sandoz AG has final decision-making authority with respect to certain development, regulatory and commercial decisions for certain products. Costs will be borne by the parties in varying proportions, depending on the type of expense and the product. We are also eligible to receive up to $188 million in milestone payments if all milestones are achieved for the four product candidates. The parties will share profits from the sale of such products in varying proportions, depending on the product. With respect to our M356 product, our profit share is fifty percent. Sandoz AG will indemnify us for various claims, and a certain portion of such costs may be offset against certain future payments received by us.

The MOU may be terminated if either party breaches the MOU or files for bankruptcy. In addition, the following termination rights apply to some of the products, on a product-by-product basis: (i) if clinical trials are required, (ii) at Sandoz AG’s convenience within a certain time period, (iii) if the parties agree, or the relevant regulatory authority states in writing, that our intellectual property does not contribute to product approval, or (iv) if Sandoz AG decides to permanently cease development and commercialization of a product. In addition, with limited exceptions, Sandoz AG may unilaterally terminate the collaboration of some of the products, on a product-by-product basis, at any time.

In addition, we and Sandoz AG may negotiate additional collaboration agreements with respect to other mutually selected products. Sandoz AG  has the right to (i) select a certain number of these mutually selected products and (ii) negotiate expanded territories for certain products already part of the collaboration, for which, if we and Sandoz AG do not execute a definitive agreement within a specified time frame, we are permitted to enter into a transaction for such opportunity with a third party, provided that the terms which we give to that third party can be no less favorable, taken as a whole, than the terms we last offered to Sandoz AG. If we do not enter into a transaction with a third party in a specified time frame, then the negotiations between us and Sandoz AG with respect to such product will start again, with the corresponding rights and obligations if the parties do not execute a definitive agreement within the specified time frame.

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Pursuant to the terms of the MOU, the parties are negotiating the terms of a definitive Collaboration and License Agreement. The terms of the MOU will remain in effect until a definitive Collaboration and License Agreement is executed.

Massachusetts Institute of Technology

In December 2001, we entered into a patent license agreement with the Massachusetts Institute of Technology, or M.I.T., pertaining to the characterization and synthesis of sugars for the purpose of researching, developing and commercializing products (other than sequencing machines) and processes under the licensed patents. This agreement was subsequently amended and restated in early November 2002 and has been subsequently further amended. We entered into an additional patent license agreement with M.I.T. in late October 2002, which gave us the right to develop and commercialize sequencing machines. Subject to typical retained rights of M.I.T. and the U.S. government, these two agreements grant us various exclusive and nonexclusive worldwide licenses, with the right to grant sublicenses, under certain patents and patent applications relating to (i) methods and technologies for characterizing sugars, (ii) certain heparins, heparinases and other enzymes and (iii) synthesis methods. In January 2007, we further amended the agreements to remove a patent right that was potentially relevant to our former delivery program.

We must meet certain diligence requirements in order to maintain our licenses under the two agreements. Under the agreements, we must expend at least $1.0 to $1.2 million per year commencing in 2005 towards the research, development and commercialization of products and processes covered by the agreements. In addition, we are obligated to make first commercial sales and meet certain minimum sales thresholds of products or processes including, under the amended and restated agreement, a first commercial sale of a product or process no later than June 2013 and minimal sales of products thereafter, ranging from $0.5 million to $5.0 million annually. M.I.T. may convert the exclusive licenses granted to us under the amended and restated license agreement to non-exclusive licenses, as its sole remedy, if we fail to meet our diligence obligations. Under the license agreement covering sequencing machines, M.I.T. has the right to treat a failure by us to fulfill our diligence obligations as a material breach of the license agreement.

In exchange for the licenses granted in the two agreements, we have paid M.I.T. license issue fees and we pay annual license and maintenance fees ranging, in the aggregate, from $82,500 to $157,500. We are also required to pay M.I.T. royalties on certain products and services covered by the licenses and sold by us or our affiliates or sublicensees, a percentage of certain other income received by us from corporate partners and sublicensees, and certain patent prosecution and maintenance costs. The Company recorded $487,500, $82,500 and $117,500 as expenses related to these agreements in the years ended December 31, 2006, 2005 and 2004, respectively.

We are obligated to indemnify M.I.T. and related parties from losses arising from claims relating to the products, processes or services made, used, sold or performed pursuant to the agreements, unless the losses result from the indemnified parties’ gross negligence or willful misconduct.

Each agreement expires upon the expiration or abandonment of all patents that issue and are licensed to us by M.I.T. under such agreement. The issued patents include 21 United States patents that expire between 2012 and 2023, and 39 foreign patents that expire between 2012 and 2013. We expect that additional patents will issue from presently pending patent applications. Any such patent will have a term of 20 years from the filing date of the underlying application. M.I.T. may terminate either or both agreements immediately if we cease to carry on our business, if any nonpayment by us is not cured within 60 days of written notice or if we commit a material breach that is not cured within 90 days of written notice. We may terminate either or both agreements for any reason upon six months notice to M.I.T., and,

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under one agreement, we can separately terminate the license under a certain subset of patent rights upon three months notice.

We have granted Sandoz a sublicense under the amended and restated license agreement to certain of the patents and patent applications licensed to us. If M.I.T. converts our exclusive licenses under this agreement to non-exclusive due to our failure to meet diligence obligations, or if M.I.T. terminates this agreement, M.I.T. will honor the exclusive nature of the sublicense we granted to Sandoz under our 2003 Collaboration Agreement so long as Sandoz continues to fulfill its obligations to us under the collaboration and license agreement we entered into with Sandoz and, if our agreement with M.I.T. is terminated, Sandoz agrees to assume our rights and obligations to M.I.T.

The Regents of the University of California through the Ernest Orlando Lawrence Berkeley National Laboratory

In November 2002, we entered into an agreement with The Regents of the University of California through the Ernest Orlando Lawrence Berkeley National Laboratory, or Lawrence Berkeley National Lab, under which we exclusively licensed certain patents and patent applications covering the metabolic synthesis of sugars and glycoconjugates. This agreement was subsequently amended in 2004 and 2005. Subject to typical retained rights of Lawrence Berkeley National Lab and the United States government, we were initially granted an exclusive license, with the right to grant sublicenses, for the synthesis, production or modification of sugars and glycoconjugates in or on biological molecules for purposes of researching, developing and commercializing products, services and processes for all human therapeutic applications, excluding the sale of research reagents. During 2005, we elected to retain the license under this broad field. Upon our request, but subject to statutory restrictions or obligations to research sponsors, Lawrence Berkeley National Lab must disclose certain information that is necessary or useful for our use of the licensed patent rights and we have a non-exclusive, royalty-free right to use such information.

Lawrence Berkeley National Lab has an obligation to notify us of certain future inventions that are available for licensing by Lawrence Berkeley National Lab prior to entering into negotiations with others. However, Lawrence Berkeley National Lab is not required to license those inventions to us, or even to negotiate with us.

In connection with this agreement, we paid certain license fees and minimum royalties and recorded $30,000, $130,000 and $10,000 as research and development expense in the years ended December 31, 2006, 2005 and 2004, respectively. License fees include $100,000 expensed and paid to Lawrence Berkeley National Lab in 2005 for the election to retain the broader field and $20,000 expensed and paid in 2003. We are also required to pay Lawrence Berkeley National Lab earned royalties on products, services and processes covered by the license and sold by us or our affiliates or sublicensees, a percentage of certain other income received by us from our sublicensees, and patent prosecution and maintenance costs. To the extent that earned royalties in any given year do not meet certain threshold amounts, we are required to make annual minimum royalty payments to Lawrence Berkeley National Lab, ranging from $30,000 to $60,000, in order to maintain the license. The research and development expenses include $30,000, $30,000 and $10,000 in annual minimum royalties that we paid and recorded as expense during the years ended December 31, 2006, 2005 and 2004, respectively.

In order to maintain our license, we must expend at least $1.0 million per year commencing with 2005 towards the research, development and commercialization of products covered by the agreement. If we fail to do so, Lawrence Berkeley National Lab may renegotiate the milestones, terminate the agreement or convert the exclusive license to a non-exclusive license. In order to maintain the broad field, we were required to and did expend an additional amount during 2005 and 2006 towards the research, development and commercialization of products and processes covered by the license.

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We are obligated to indemnify Lawrence Berkeley National Lab, the United States government and related parties from claims arising from our or our sublicensees’ exercise of rights under the agreement, unless the claims result from the indemnified parties’ gross negligence or willful misconduct.

The agreement expires upon the later of the expiration, abandonment or final adjudication of invalidity of the licensed patents. The licensed patents consist of two United States patents that expire in 2017 and one United States patent application. Any patent issuing from such application will have a term of 20 years from the date such application was filed. Our license to use the know-how acquired from Lawrence Berkeley National Lab is paid-up and perpetual following the expiration, but not an earlier termination, of the agreement. Either party may terminate the agreement for the other’s material breach with a 90 day cure period, although Lawrence Berkeley National Lab may terminate if we do not cure payment breaches within 30 days. We may terminate the agreement for any reason upon 180 days notice. Upon termination of the agreement, we are required to assign each sublicense to Lawrence Berkeley National Lab and Lawrence Berkeley National Lab is required to assume it unless the sublicensee is then in breach or the sublicense conflicts with Lawrence Berkeley National Lab’s obligations to state or federal governments.

Patents and Proprietary Rights

Our success depends in part on our ability to obtain and maintain proprietary protection for our technology and product candidates, to operate without infringing on the proprietary rights of others and to prevent others from infringing our proprietary rights. Our policy is to seek to protect our proprietary position by, among other methods, filing United States and foreign patent applications related to our proprietary technology and product candidates that are important to the development of our business. We also rely on trade secrets, know-how, continuing technological innovation and in-licensing opportunities to develop and maintain our proprietary position.

We license or own a patent portfolio of 41 patent families, which presently includes 25 United States patents and 60 United States patent applications as well as foreign counterparts to certain of the United States patents and patent applications. Our patent portfolio includes issued or pending claims covering: methods and technologies for characterizing sugars and other heterogeneous mixtures; the use of certain naturally occurring heparinases, heparinase variants and other enzymes which specifically recognize polysaccharides in the characterization of sugars; methods and technologies for chemical and metabolic synthesis of sugars; the composition of matter of certain novel LMWHs, including M118, and heparinase variants; methods to produce and identify sugars associated with glycoproteins; methods to analyze and monitor glycoprotein profiles for purposes associated with the diagnosis, staging, prognosis and monitoring of cancer; and methods for the in vivo non-invasive delivery of sugars.

A significant portion of our patent portfolio covering methods and technologies for characterizing sugars consists of patents and patent applications owned and licensed to us by M.I.T. In addition, a significant portion of the claims in our patent portfolio covering the composition of matter of naturally occurring heparinases, heparinase variants and other enzymes, the use of these heparinases and enzymes in the characterization of sugars, the methods and technologies for chemical synthesis of sugars, and the composition of matter of novel low molecular weight heparins consists of patents and patent applications that are owned and licensed to us by M.I.T. The portion of our patent portfolio covering methods and technologies for metabolic synthesis of sugars consist of patents and patent applications that are owned and licensed to us by Lawrence Berkeley National Lab.

The patent positions of companies like ours are generally uncertain and involve complex legal and factual questions. Our ability to maintain and solidify our proprietary position for our technology will depend on our success in obtaining effective claims and enforcing those claims once granted. We do not know whether any of our patent applications will result in the issuance of any patents. Moreover, any

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issued patent does not guarantee us the right to practice the patented technology or commercialize the patented product. Third parties may have blocking patents that could be used to prevent us from commercializing our patented products and practicing our patented technology. Our issued patents and those that may be issued in the future may be challenged, invalidated or circumvented, which could limit our ability to stop competitors from marketing related products or the length of the term of patent protection that we may have for our products. In addition, the rights granted under any issued patents may not provide us with proprietary protection or competitive advantages against competitors with similar technology. Furthermore, our competitors may independently develop similar technologies. For these reasons, we may have competition for our generic, biosimilar and novel products. Moreover, because of the extensive time required for development, testing and regulatory review of a potential product, it is possible that, before any of our novel heparin or other products can be commercialized, any related patent may expire or remain in force for only a short period following commercialization, thereby reducing any advantage of the patent.

We may rely, in some circumstances, on trade secrets to protect our technology. However, trade secrets are difficult to protect. We seek to protect our technology and product candidates, in part, by confidentiality agreements with our employees, consultants, advisors, contractors and collaborators. These agreements 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 employees, consultants, advisors, contractors and 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.

Manufacturing

We do not own facilities for manufacturing any products. Although we intend to rely on contract manufacturers, we have personnel with experience in manufacturing, as well as process development, analytical development, quality assurance and quality control. Under both the 2003 Sandoz Collaboration and the 2006 Sandoz Collaboration, Sandoz is responsible for commercialization of the products covered by those agreements.

We have entered into various agreements with third party contractors for process development, analytical services and manufacturing. In each of our agreements with contractors, we retain ownership of our intellectual property and generally own and/or are assigned ownership of processes, developments, data, results and other intellectual property generated during the course of the performance of each agreement that primarily relate to our products. Where applicable, we are granted non-exclusive licenses to certain contractor intellectual property for purposes of exploiting the products that are the subject of the agreement and in a few instances we grant non-exclusive licenses to the contract manufacturers for use outside of our product area. The agreements also typically contain provisions for both parties to terminate for material breach, bankruptcy and insolvency.

Sales and Marketing

We do not currently have any sales and marketing capabilities, nor do we currently have any plans to build a sales and marketing force to support any of our products.  In order to commercialize any products that are not encompassed by the 2003 Sandoz Collaboration or 2006 Sandoz Collaboration, we must either develop a sales and marketing infrastructure or collaborate with third parties that have sales and marketing experience, and we will review these options as our other product candidates move closer to commercialization.

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Competition

The development and commercialization of pharmaceutical products is highly competitive. In the event that we were to receive approval for, and market and sell M-Enoxaparin, we would face competition from Sanofi-Aventis, the company currently marketing Lovenox, and from other firms if they receive marketing approval for generic versions of Lovenox. Sanofi-Aventis may also choose to market a generic version of Lovenox itself or through an authorized third-party distributor. While there are no generic versions of Lovenox approved by the FDA to date, ANDAs have been submitted to the FDA by Amphastar and Teva, and other ANDAs or other regulatory applications may have been submitted or will be submitted in the future.

In addition, other anticoagulants used in the treatment of DVT and ACS will compete with our M-Enoxaparin product, should it be approved by the FDA. Competitive anticoagulants targeted for DVT will also compete with our M-Dalteparin product, if we choose to pursue it. These competitors include GlaxoSmithKline’s factor Xa inhibitor, Arixtra ®, which is approved in multiple DVT indications and ACS, and other LMWH products. We are also aware of other anticoagulant drugs in development for the treatment of DVT, including next-generation LMWHs and several factor Xa inhibitors that are in clinical trials. These include SR-123781 and idraparinux which are being developed by Sanofi-Aventis, rivaroxaban which is being developed by Bayer AG, and dabigatran etexilate which is being developed by Boehringer Ingelheim.

Our M118 product is targeted to support treatment of patients with ACS. Potential competitors to this product include: the Medicines Company’s direct thrombin inhibitor, Angiomax ® , which is approved for use in angioplasty; GlaxoSmithKline’s Arixtra, which recently received an approvable letter to treat patients with UA/NSTEMI and STEMI in ACS; and various other LMWH and unfractionated heparin products.

There are other anticoagulant drugs in development for ACS, including next-generation LMWHs and several factor Xa inhibitors, which are in clinical trials. M118 also faces competition from products other than heparins, such as anti-platelet and direct thrombin inhibitors which may be used in the treatment of ACS.

In the field of complex mixtures, there are several competitors seeking to provide additional characterization or create biosimilar, generic, and/or improved versions of marketed complex products. Neose Technologies, Inc. and GlycoFi, a wholly-owned subsidiary of Merck & Co., Inc., possess selected analytical and engineering capabilities for complex sugars which could be applied to creating biosimilar, generic, or improved versions of complex protein-based products containing sugars. Companies such as Barr Pharmaceuticals, Inc., Teva, Sandoz, BioGenerix AG, Dragon Pharmaceuticals, Inc., Stada Arzneimittel, Cangene Corporation and GeneMedix Ltd. also have disclosed intentions to develop and commercialize generic and/or improved versions of marketed protein products in the U.S. or Europe. Most of these companies have experience with manufacturing complex protein products or with commercializing generic products. There has been substantial growth in recent years in the number of generic companies looking to develop biosimilar or generic versions of protein-based products. Biotechnology and pharmaceutical companies also continue to invest significantly in better understanding their own products or creating improved versions of marketed products.

Similarly, our discovery work in oncology faces substantial competition from major pharmaceutical and other biotechnology companies that are actively working on improved and novel therapeutics. Companies competing most directly with our approach of developing sugar-based therapeutics for oncology include Progen Industries Limited. Pfizer has also conducted investigative clinical trials using Fragmin as a therapeutic drug for cancer; while there are no approved indications, selected trials are ongoing.

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The field of glycobiology generally is a growing field with increased competition. However, the capabilities of the field can generally be segmented into those companies using sugars as therapeutics, companies focused on engineering or modifying sugars, including pegylation technologies, and companies focused on analytics. Among those in analytics, we are not aware of others that have similar capabilities for detailed chemical characterization of complex sugars. Procognia Limited’s technology is largely focused on analyzing proteins and their glycosylation. In addition, many major pharmaceutical and biotechnology companies such as Amgen and Biogen Idec Inc. have successfully improved products through sugar modification. Potential competitors with broad glycobiology capabilities include Neose Technologies, Inc., Keryx Pharmaceuticals and Pro-Pharmaceuticals, Inc. as well as many private, start-up pharmaceutical organizations. Many of these companies are focused on providing services to pharmaceutical companies rather than focused on drug discovery and product development.

Regulatory and Legal Matters

Government authorities in the United States, at the federal, state and local level, the European Union, and other countries extensively regulate, among other things, the research, development, testing, manufacture, labeling, promotion, advertising, distribution, marketing and export and import of products such as those we are developing.

United States Government Regulation

In the United States, the information that must be submitted to the FDA in order to obtain approval to market a new drug varies depending on whether the drug is a new product whose safety and effectiveness has not previously been demonstrated in humans, or a drug whose active ingredient(s) and certain other properties are the same as those of a previously approved drug. Drugs follow either the NDA or BLA routes, and a drug that claims to be the same as an already approved NDA drug may be able to follow the ANDA route. Drugs approved as BLAs including glycoproteins, are typically classified as biologics, as they are produced from living systems.

NDA and BLA Approval Processes

In the United States, the FDA regulates drugs and biologics under the Federal Food, Drug, and Cosmetic Act, and, in the case of biologics, also under the Public Health Service Act, and implementing regulations. The steps required before a drug or biologic may be marketed in the United States include:

·        completion of preclinical laboratory tests, animal studies and formulation studies under the FDA’s current good laboratory practices;

·        submission to the FDA of an IND for human clinical testing, which must become effective before human clinical trials may begin and must include independent Institutional Review Board, or IRB, approval at each clinical site before the trial is initiated;

·        performance of adequate and well-controlled clinical trials to establish the safety and efficacy of the product for each indication;

·        submission to the FDA of an NDA or BLA;

·        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 current Good Manufacturing Practices, or cGMPs, to assure that the facilities, methods and controls are adequate to preserve the drug’s identity, strength, quality and purity or to meet standards designed to ensure the biologic’s continued safety, purity and potency; and

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·        FDA review and approval of the NDA or BLA.

Preclinical tests include laboratory evaluations of product chemistry, toxicity, and formulation, as well as animal studies. An IND sponsor must submit the results of the preclinical tests, together with manufacturing information and analytical data, to the FDA as part of the IND. An IND will automatically become effective 30 days after receipt by the FDA, unless before that time, the FDA raises concerns or questions about issues such as the conduct of the trials as outlined in the IND. In that case, the IND sponsor and the FDA must resolve any outstanding FDA concerns or questions before clinical trials can proceed. Submission of an IND may not result in the FDA allowing clinical trials to commence.

Clinical trials involve the administration of the investigational product to human subjects or patients in accordance with specific protocols and under the supervision of qualified investigators. Each clinical trial protocol must be submitted to the FDA as part of the IND, and an IRB at each site where the study is conducted must also approve the study. Clinical trials typically are conducted in three sequential phases, but the phases may overlap or be combined. Phase I trials usually involve the initial introduction of the investigational drug into humans to evaluate the product’s safety, dosage tolerance and pharmacodynamics and, if possible, to gain an early indication of its effectiveness. Phase II trials usually involve controlled trials in a limited patient population to evaluate dosage tolerance and appropriate dosage, identify possible adverse effects and safety risks and evaluate the preliminary efficacy of the drug for specific indications. Phase III trials usually further evaluate clinical efficacy and test further for safety in an expanded patient population. Phase I, Phase II and Phase III testing may not be completed successfully within any specified period, if at all. Furthermore, the FDA or we may suspend or terminate clinical trials at any time on various grounds, including a finding that the subjects or patients are being exposed to an unacceptable health risk.

Assuming successful completion of the required clinical testing, the results of the preclinical studies and of the clinical studies, together with other detailed information, including information on the chemistry, manufacture and control criteria of the product, are submitted to the FDA in the form of an NDA or BLA requesting approval to market the product for one or more indications. The FDA reviews an NDA to determine, among other things, whether a product is safe and effective for its intended use and whether its manufacturing is cGMP-compliant to assure and preserve the product’s identity, strength, quality and purity. The FDA reviews a BLA to determine, among other things, whether the product is safe, pure and potent and the facility in which it is manufactured, processed, packed or held meets standards designed to assure the product’s continued safety, purity and potency. The FDA may refuse to accept and review insufficiently complete applications.

Before approving an NDA or BLA, the FDA will inspect the facility or the facilities at which the product is manufactured. If the FDA determines the application, manufacturing process or manufacturing facilities are not acceptable, it will outline the deficiencies in the submission and often will request additional testing or information. Notwithstanding the submission of any requested additional information, the FDA ultimately may decide that the application does not satisfy the regulatory criteria for approval.

The testing and approval process requires substantial time, effort and financial resources, and each may take several years to complete. The FDA may not grant approval on a timely basis, or at all. We may encounter difficulties or unanticipated costs in our efforts to secure necessary governmental approvals, which could delay or preclude us from marketing our products. The FDA may limit the indications for use or place other conditions on any approvals that could restrict the commercial application of the products. After approval, some types of changes to the approved product, such as adding new indications, manufacturing changes and additional labeling claims, are subject to further FDA review and approval.

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ANDA Process

FDA approval is required before a generic equivalent of an existing brand name drug can be marketed. Such approval for products is typically obtained by submitting an ANDA to the FDA and demonstrating therapeutic equivalence. However, it is within the FDA’s regulatory discretion to determine the kind and amount of evidence required to approve a product for marketing. Although the FDA has accepted ANDAs for generic versions of Lovenox for review, the FDA could determine that therapeutic equivalence cannot be shown for M-Enoxaparin and require instead that an NDA be submitted for approval. An ANDA may be submitted for a drug on the basis that it is the same as a previously approved branded drug, also known as a listed drug. Specifically, the generic drug that is the subject of the ANDA must have the same active ingredient(s), route of administration, dosage form, and strength, as well as the same labeling, with certain exceptions, and the labeling must prescribe conditions of use that have been previously approved for the listed drug. If the generic drug product has a different route of administration, dosage form, or strength, the FDA must grant a suitability petition approving the differences(s) from the listed drug before the ANDA may be filed. The ANDA must also contain data and information demonstrating that the generic drug is bioequivalent to the listed drug, or if the application is submitted pursuant to an approved suitability petition, information to show that the listed drug and the generic drug can be expected to have the same therapeutic effect as the listed drug when administered to patients for a proposed condition of use.

Generic drug applications are termed “abbreviated” because they are not required to duplicate the clinical (human) testing or, generally, preclinical testing necessary to establish the underlying safety and effectiveness of the branded product. However, the FDA may refuse to approve an ANDA if there is insufficient information to show that the active ingredients are the same and to demonstrate that any impurities or differences in active ingredients do not affect the safety or efficacy of the generic product. In addition, like NDAs, an ANDA will not be approved unless the product is manufactured in cGMP-compliant facilities to assure and preserve the drug’s identity, strength, quality and purity. As is the case for NDAs and BLAs, the FDA may refuse to accept and review insufficiently complete ANDAs.

In an ANDA submission, determination of the “sameness” of the active ingredients to those in the reference listed drug is based on the demonstration of the chemical equivalence of the components of the generic version to those of the branded product. While the standard for demonstrating chemical equivalence is relatively straightforward for small molecule drugs, it is inherently more difficult to define active ingredients for complex drugs. Under the NDA pathway, these types of drugs include such products as heparins and recombinant versions of certain hormones, among others. Due to the limited number of ANDA submissions for complex generics, the FDA has not reached a final position for demonstrating chemical equivalence for many of these products specifically, nor provided broad guidance for achieving “sameness” for complex drugs in general. In many cases, the criteria the FDA may apply are still evolving. Additionally, there is currently no abbreviated approval mechanism for protein-based products, which are generally approved under the BLA pathway. Although, to our knowledge, the FDA has not provided official guidance on the legal and scientific aspects of follow-on protein regulation, bills were introduced in Congress in 2006 and reintroduced in early 2007 intending to seek legislative approval that would provide a pathway for abbreviated approval of generic or biosimilar versions of BLA products. We anticipate this issue will be the subject of significant Congressional debate, as well as lobbying efforts by both generic and branded pharmaceutical companies.

To demonstrate bioequivalence, ANDAs generally must also contain in vivo bioavailability data for the generic and branded drugs. “Bioavailability” indicates the rate and extent of absorption and levels of concentration of a drug product in the bloodstream needed to produce a therapeutic effect. “Bioequivalence” compares the bioavailability of one drug product with another, and when established, indicates that the rate of absorption and levels of concentration of a generic drug in the body are the same as the previously approved branded drug. The studies required to demonstrate in vivo bioequivalence are

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generally very small, quick to complete, and involve relatively few subjects. Under current regulations, the FDA may waive requirements for in vivo bioequivalence data for certain drug products, including where bioequivalence is self evident such as injectable solutions which have been shown to contain the same active and inactive ingredients as the reference listed drug. The FDA, however, does not always waive requirements for in vivo bioequivalence data. For example, bioequivalence data was required for the M-Enoxaparin ANDA submission.

Generic drug products that are found to be therapeutically equivalent by the FDA receive an “A” rating in FDA’s Orange Book, which lists all approved drug products and therapeutic equivalence evaluations. Products that are therapeutically equivalent can be expected in the FDA’s judgment to have equivalent clinical effect and no difference in their potential for adverse effects when used under the conditions of their labeling. Products with “A” ratings are generally substitutable for the innovator drug by both in-hospital and retail pharmacies. Many health insurance plans require automatic substitution for “A” rated generic versions of products when they are available, although physicians may still prescribe the branded drug for individual patients.

The timing of final FDA approval of a generic drug for commercial distribution depends on a variety of factors, including whether the applicant challenges any listed patents for the drug and/or its use and whether the manufacturer of the branded product is entitled to one or more statutory exclusivity periods, during which the FDA is prohibited from accepting or approving generic product applications. For example, submission of an ANDA for a drug that was approved under an NDA as a new chemical entity will be blocked for five years after the pioneer’s approval, or for four years after approval if the application includes a paragraph IV certification of non-infringement or invalidity against a patent applicable to the branded drug. This does not apply to M-Enoxaparin and M-Dalteparin but may apply to future generic products that we pursue. In certain circumstances, a regulatory exclusivity period can extend beyond the life of a patent, and thus block ANDAs from being approved on or after the patent expiration date. For example, a three-year exclusivity period may be granted for new uses or versions of previously approved drugs, if approval of such changes required the sponsor to conduct new clinical studies. In addition, the FDA may extend the exclusivity of a product by six months past the date of patent expiry or other regulatory exclusivity if the manufacturer undertakes studies on the effect of their product in children, a so-called pediatric extension.

Post-Approval Requirements

After regulatory approval of a product is obtained, we are required to comply with a number of post-approval requirements. For example, as a condition of approval of an NDA or BLA, the FDA may require post-marketing testing and surveillance to monitor the product’s safety or efficacy. Proposed legislation, if enacted, could expand our post-approval regulatory obligations, and the cost of complying with such obligations.

In addition, holders of an approved NDA, BLA, or ANDA are required to report certain adverse reactions and production problems to the FDA, to provide updated safety and efficacy information and to comply with requirements concerning advertising and promotional labeling for their products. Also, quality control and manufacturing procedures must continue to conform to cGMP after approval. The FDA periodically inspects manufacturing facilities to assess compliance with cGMP, which imposes certain procedural, substantive and recordkeeping requirements. Accordingly, manufacturers must continue to expend time, money and effort in the area of production and quality control to maintain compliance with cGMP and other aspects of regulatory compliance. We use, and will continue to use in at least the near term, third-party manufacturers to produce our products in clinical and commercial quantities. Future FDA inspections may identify compliance issues at our facilities or at the facilities of our contract manufacturers that may disrupt production or distribution or require substantial resources to correct.

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Discovery of problems with a product or 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 administrative or judicial sanctions. These sanctions could include a clinical hold on or termination of studies, the FDA’s refusal to approve pending applications, license suspension or revocation, withdrawal of an approval, restriction on marketing, warning letters, product recalls, product seizures, total or partial suspension of production or distribution, injunctions, fines, civil penalties or criminal prosecution. Also, new government requirements may be established that could delay or prevent regulatory approval of our products under development.

Patent Challenge Process Regarding ANDAs

The Hatch-Waxman Act provides incentives for generic pharmaceutical manufacturers to challenge patents on branded pharmaceutical products and/or their methods of use, as well as to develop products comprising non-infringing forms of the patented drugs. The Hatch-Waxman legislation places significant burdens on the ANDA filer to ensure that such challenges are not frivolous, but also offers the opportunity for significant financial reward if the challenge is successful.

If there is a patent listed for the branded drug in the FDA’s Orange Book at the time of submission of the ANDA or at any time before the ANDA is approved the generic company’s ANDA must include one of four types of patent certification with respect to each listed patent. If the applicant seeks approval to market the generic equivalent prior to the expiration of a listed patent, the generic company includes a certification asserting that the patent is invalid, unenforceable and/or not infringed, a so-called “paragraph IV certification.”  After receiving notice from the FDA that its application is acceptable for review, or immediately if the ANDA has been amended to include a paragraph IV certification after the application was submitted to the FDA, the generic applicant is required to send the patent owner and the holder of the NDA for the brand-name drug notice explaining why it believes that the listed patents in question are invalid, unenforceable or not infringed. If the patent holder commences a patent infringement lawsuit within 45 days of receipt of such notice, the Hatch-Waxman Act provides for an automatic stay on the FDA’s ability to grant final approval of the ANDA for the generic product, generally for a period of 30 months. A 30-month stay may be shortened or lengthened by the court if the court finds that a party has failed to reasonably cooperate in expediting the action. Moreover, the court may, before expiration of the stay, issue a preliminary injunction prohibiting the commercial sale of the generic drug until the court rules on the issues of validity, infringement, and enforceability. If the district court finds that the relevant patent is invalid, unenforceable, or not infringed, such ruling terminates the 30-month stay on the date of the judgment. If the court rules that the patent is valid, enforceable, and infringed, approval of the ANDA may not be granted prior to the expiration of the patent. In addition, if the challenged patent expires during the 30-month period, the FDA may grant final approval for the generic drug for marketing, if the FDA has determined that the application meets all technical and regulatory requirements for approval and there are no other obstacles to approval.

In most cases, patent holders may only obtain one 30 month stay with respect to patents listed in the Orange Book. Specifically, for ANDAs with paragraph IV certifications to a patent listed for the branded drug in the Orange Book on or after August 18, 2003, a single 30-month stay is available for litigation related to that patent only if the patent was submitted to the FDA before the date that the ANDA (excluding an amendment or supplement) was submitted. In other words, 30-months stays are not triggered by later listed patents submitted to the FDA on or after the date the ANDA application was submitted. Because of this limitation, in most cases ANDAs will be subject to no more than one 30-month stay.

Under the Hatch-Waxman Act, the first ANDA applicant to have submitted a substantially complete ANDA that includes a paragraph IV certification may be eligible to receive a 180-day period of generic market exclusivity during which the FDA may not approve any other ANDA for the same drug product.

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However, this exclusivity does not prevent the sponsor of the innovator drug from selling an unbranded “authorized generic” version of its own product during the 180-day exclusivity period. This period of market exclusivity may provide the patent challenger with the opportunity to earn a return on the risks taken and its legal and development costs and to build its market share before other generic competitors can enter the market. Under the Hatch-Waxman law, as amended by the Medicare Modernization Act of 2003, or MMA, there are a number of ways an applicant who has filed an ANDA after the date of the MMA may forfeit its 180-day exclusivity, including if the ANDA is withdrawn or if the applicant fails to market its product within the specified statutory timeframe. In addition, For ANDAs filed after the MMA was enacted, it is possible for more than one ANDA applicant to be eligible for 180-day exclusivity. This occurs when multiple “first” applicants submit substantially complete ANDAs with paragraph IV certifications on the same day.

Foreign Regulation

In addition to regulations in the United States, we will be subject to a variety of foreign regulations governing clinical trials and commercial sales and distribution of our products when we enter those markets. Whether or not we obtain FDA approval for a product, we must obtain approval of a clinical trial application or product 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 the time may be longer or shorter than that required for FDA approval. The requirements governing the conduct of clinical trials, product licensing, pricing and reimbursement vary greatly from country to country.

Under European Union regulatory systems, we may submit marketing authorizations either under a centralized or decentralized procedure. The centralized procedure provides for the grant of a single marketing authorization that is valid for all European Union member states. The decentralized procedure provides for mutual recognition of national approval decisions. Under this procedure, the holder of a national marketing authorization may submit an application to the remaining member states. Within 90 days of receiving the applications and assessment report, each member state must decide whether to recognize approval.

Related Matters

From time to time, legislation is drafted, introduced and passed in Congress that could significantly change the statutory provisions governing the approval, manufacturing and marketing of products regulated by the FDA. In addition, FDA regulations and guidance are often revised or reinterpreted by the agency in ways that may significantly affect our business and our products. It is impossible to predict whether legislative changes will be enacted, or FDA regulations, guidance or interpretations changed, or what the impact of such changes, if any, may be.

Hazardous Materials

Our research and development processes involve the controlled use of certain hazardous materials and chemicals, including radioactive materials and equipment. We are subject to federal, state and local laws and regulations governing the use, manufacture, storage, handling and disposal of hazardous materials and waste products. We do not expect the cost of complying with these laws and regulations to be material.

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Employees

We believe that our success will depend greatly on our ability to identify, attract and retain capable employees. As of December 31, 2006, we had 153 employees, including a total of 40 employees who hold M.D. or Ph.D. degrees. Our employees are not represented by any collective bargaining unit, and we believe our relations with our employees are good.

Item 1A.                 RISK FACTORS

Statements contained or incorporated by reference in this Annual Report on Form 10-K that are not based on historical fact are “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act. These forward-looking statements regarding future events and our future results are based on current expectations, estimates, forecasts, projections, intentions, goals, strategies, plans, prospects and the beliefs and assumptions of our management including, without limitation, our expectations regarding results of operations, general and administrative expenses, research and development expenses, current and future development and manufacturing efforts, regulatory filings, clinical trial results and the sufficiency of our cash for future operations. Forward-looking statements can be identified by terminology such as “anticipate,” “believe,” “could,” “could increase the likelihood,” “hope,” “target,” “project,” “goals,” “potential,” “predict,” “might,” “estimate,” “expect,” “intend,” “is planned,” “may,” “should,” “will,” “will enable,” “would be expected,” “look forward,” “may provide,” “would” or similar terms, variations of such terms or the negative of those terms.

We cannot assure investors that our assumptions and expectations will prove to have been correct. Important factors could cause our actual results to differ materially from those indicated or implied by forward-looking statements. Such factors that could cause or contribute to such differences include those factors discussed below. We undertake no intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. If any of the following risks actually occur, our business, financial condition or results of operations would likely suffer.

Risks Relating to Our Business

We have a limited operating history and have incurred a cumulative loss since inception. If we do not generate significant revenues, we will not be profitable.

We have incurred significant losses since our inception in May 2001. At December 31, 2006, our accumulated deficit was approximately $125.5 million. We have not generated revenues from the sale of any products to date. We expect that our annual operating losses will increase over the next several years as we expand our drug commercialization, development and discovery efforts. To become profitable, we must successfully develop, and obtain regulatory approval for, our existing drug candidates, and effectively manufacture, market and sell any drugs we develop. Accordingly, we may never generate significant revenues and, even if we do generate significant revenues, we may never achieve profitability.

To become and remain profitable, we must succeed in developing and commercializing drugs with significant market potential. This will require us to be successful in a range of challenging activities: developing drugs; obtaining regulatory approval for them; and manufacturing, marketing and selling them. 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 cause the market price of our common stock to decrease and could impair our ability to raise capital, expand our business, diversify our product offerings or continue our operations.

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If we fail to obtain approval for and commercialize our most advanced product candidate, M-Enoxaparin, we may have to curtail our product development programs and our business would be materially harmed.

We have invested a significant portion of our time, financial resources and collaboration efforts in the development of our most advanced product candidate, M-Enoxaparin, a technology-enabled generic version of Lovenox. Our near-term ability to generate revenues and our future success, in large part, depends on the development and commercialization of M-Enoxaparin.

In accordance with our 2003 Sandoz Collaboration, Sandoz submitted an ANDA to the FDA on August 29, 2005 seeking approval to market M-Enoxaparin in the United States. FDA approval of an ANDA is required before marketing of a generic equivalent of a drug previously approved under an NDA. If we are unable to satisfactorily demonstrate therapeutic equivalence, if the FDA disagrees with our characterization approach or does not agree that M-Enoxaparin is equivalent to Lovenox, or if we otherwise fail to meet FDA requirements for the ANDA (including but not limited to manufacturing and bioequivalence requirements) or obtain FDA approval for, and successfully commercialize, M-Enoxaparin, we may never realize revenue from this product and we may have to curtail our other product development programs. As a result, our business would be materially harmed.

Patent litigation with Sanofi-Aventis, the innovator of Lovenox, may cause delays and additional expense in the commercialization of M-Enoxaparin. If we are not successful in commercializing M-Enoxaparin or are significantly delayed in doing so, our business would be materially harmed, which could include without limitation the curtailment of our other development programs.

Companies that produce branded pharmaceutical products for which there are unexpired patents listed in the FDA’s listing of approved drug products, the Orange Book, often bring patent infringement litigation against applicants seeking FDA approval to manufacture and market generic forms of the branded products before patent expiration. Litigation against Sandoz, us or others with respect to Lovenox may cause delays and additional expense in the commercialization of M-Enoxaparin.

Currently, Sanofi-Aventis has two listed patents for Lovenox in the Orange Book, the ‘618 Patent and the ‘743 Reissue Patent. Sanofi-Aventis has reported that the claims of the ‘618 Patent are identical or substantially identical to the corresponding claims of the ‘743 Reissue Patent. According to Sanofi-Aventis, by operation of law, the ‘618 Patent ceases to exist and has been replaced by the ‘743 Reissue Patent. According to the Orange Book, the ‘743 Reissue Patent expires February 14, 2012.

Sanofi-Aventis has brought lawsuits for patent infringement; one against Amphastar and Teva, and a second, separate patent infringement lawsuit pending against Sandoz.

Amphastar/Teva Patent Infringement Lawsuit

In September 2003, prior to issuance of the’743 Reissue Patent, Sanofi-Aventis announced that it received individual notices from Amphastar and Teva indicating that each had submitted with the FDA its own ANDA with a paragraph IV certification for enoxaparin. Sanofi-Aventis sued Amphastar and Teva for patent infringement, and in response Amphastar and Teva asserted claims of non-infringement, invalidity and/or unenforceability of the ‘618 Patent, as well as various counterclaims, and sought related declaratory judgment relief against Sanofi-Aventis.  In September 2005, Amphastar and Teva each subsequently amended their own ANDA to include a second paragraph IV certification for the ‘743 Reissue Patent.

On June 16, 2005, the District Court granted summary judgment in the Amphastar/Teva case, finding that the ‘743 Reissue Patent was unenforceable due to Aventis’ inequitable conduct before the United States Patent and Trademark Office, or USPTO. Thereafter, Sanofi-Aventis appealed the decision to the U.S. Court of Appeals for the Federal Circuit, or the Court of Appeals. On April 10, 2006, the Court of

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Appeals determined that, although there were no issues of material fact with respect to the materiality of certain information withheld from the USPTO, there remained genuine issues of material fact regarding the intent to deceive the USPTO. Accordingly, the Court of Appeals reversed the District Court’s ruling and remanded the case to the District Court for further proceedings consistent with the Court of Appeals’ decision. The District Court held a bench trial in December 2006 focused only on inequitable conduct. On February 7, 2007, the District Court ruled in favor of Amphastar and Teva holding both the ‘618 Patent and the ‘743 Reissue Patent unenforceable by virtue of inequitable conduct before the USPTO. Sanofi-Aventis may appeal this ruling. If Sanofi-Aventis is successful in its appeal, all other remaining issues regarding invalidity, non-infringement and unenforceability could be subsequently tried by the District Court, if necessary.

Sandoz Patent Infringement Lawsuit

In August 2005, Sandoz filed an ANDA with the FDA to obtain approval for the commercial manufacture, use and sale of enoxaparin. In 2006, Sandoz amended its ANDA by filing with the FDA a paragraph IV certification, stating, among other things, that the ‘618 Patent and ‘743 Reissue Patent are invalid and unenforceable. Sanofi-Aventis brought a patent infringement suit against Sandoz in August 2006. In response to Sanofi-Aventis’ lawsuit, Sandoz asserted, among other things, claims of invalidity and/or unenforceability of the ‘743 Reissue Patent. At this time, no trial date has been set for this litigation. Sandoz has moved to dismiss the suit based upon the District Court decision in the Amphastar/Teva case, and that motion is pending.

Continuing litigation could delay or prevent the introduction of M-Enoxaparin and Sanofi-Aventis’ efforts to litigate against potential generic challengers to protect its intellectual property around Lovenox may not be limited to enforcement of the ‘743 Reissue Patent. Pharmaceutical companies also frequently sue generic challengers over potential infringement of patents that are not listed in the Orange Book. Presently, we are not aware of any litigation relating to non-Orange Book patents, but it is possible that Sanofi-Aventis will initiate such litigation against us, Sandoz, Teva, Amphastar, or others in the future. If Sanofi-Aventis were to initiate litigation relating to a non-Orange Book patents, this litigation could significantly delay, impair or prevent our ability to commercialize M-Enoxaparin and our business would be materially harmed.

Under our 2003 Sandoz Collaboration, in most circumstances, the decision as to when to begin marketing M-Enoxaparin will be determined jointly by us and Sandoz. Sandoz, however, has sole discretion over the decision as to when to begin marketing M-Enoxaparin under certain circumstances. Sandoz could decide to market M-Enoxaparin prior to final resolution of either the Teva and Amphastar or Sandoz litigation matters, which could result in significant damages, including possibly treble damages, in the event Sanofi-Aventis is successful in either patent litigation case. Although Sandoz has agreed to indemnify us for patent liability damages, Sandoz’s has the right to offset certain of these liabilities against the profit-sharing amounts, the royalties and the milestone payments otherwise due to us from the marketing of M-Enoxaparin.

Litigation involves many risks and uncertainties, and there is no assurance that Amphastar, Teva, Sandoz or we will prevail in any lawsuit with Sanofi-Aventis. In addition, Sanofi-Aventis has significant resources and any litigation with Sanofi-Aventis could last a number of years, potentially delaying or prohibiting the commercialization of M-Enoxaparin. If we are not successful in commercializing M-Enoxaparin or are significantly delayed in doing so, we may have to curtail our other product development programs and our business would be materially harmed.

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If other generic versions of enoxaparin are approved and successfully commercialized, our business would suffer.

In March 2003, Amphastar and Teva each submitted ANDAs for generic versions of Lovenox with the FDA. In addition, other third parties, including without limitation Sanofi-Aventis, may seek approval to market generic versions of Lovenox in the United States. If a competitor obtains FDA approval or obtains licenses from Sanofi-Aventis to market an authorized generic, the resulting financial returns to us would be materially adversely affected. Under these circumstances, we may not gain any competitive advantage and the resulting market price for our M-Enoxaparin product may be lower, we may be delayed from commercial launch or we may not be able to launch our product at all. Also, we may never achieve significant market share for M-Enoxaparin if one or more third parties markets generic versions of Lovenox. Under the Hatch-Waxman Act, any developer of a generic drug that is first to have its ANDA accepted for review by the FDA, and whose submission includes a paragraph IV certification, is eligible to receive a 180-day period of generic market exclusivity. Sandoz was not the first applicant to file an enoxaparin ANDA with a paragraph IV certification, so we will be forced to wait until the expiration of Teva and/or Amphastar’s exclusivity period before the FDA will be able to finally approve our application. As a result, Teva and/or Amphastar may have the opportunity to establish long term supply agreements with institutional customers before we can enter the market, which would hinder our ability to penetrate the market for generic enoxaparin products.

The 2003 Sandoz Collaboration contains terms which specify the sharing of commercial returns of M-Enoxaparin between us and Sandoz. Under circumstances when one or more third parties successfully commercialize a generic version of Lovenox, significantly less favorable economic terms would be triggered under our collaboration with Sandoz. Consequently, if other generic versions of Lovenox are approved and commercialized, our revenues for M-Enoxaparin would be reduced and, as a result, our business, including our near-term financial results and our ability to fund future discovery and development programs, would suffer.

If our other generic versions of our generic and novel drug products are approved and successfully commercialized, our business would suffer.

We expect that certain of our generic product candidates may face intense and increasing competition from other manufacturers of generic and/or branded products. As patents for branded products and related exclusivity periods expire, manufacturers of generic products may receive regulatory approval for generic equivalents and may be able to achieve significant market penetration. As this happens, or as branded manufacturers launch authorized generic versions of such products, market share, revenues and gross profit typically decline, in some cases, dramatically. If any of our generic product offerings, including M-Enoxaparin, enter markets with a number of competitors, we may not achieve significant market share, revenues or gross profit. In addition, as other generic products are introduced to the markets in which we participate, the market share, revenues and gross profit of our generic products could decline.

We utilize new technologies in the development of some of our products that have not been reviewed or accepted by regulatory authorities.

Some of our products in current or future development, including M-Enoxaparin and M356, may be based on new technologies that have not previously been formally reviewed or accepted by the FDA or other regulatory authorities. It is possible that the FDA’s review and acceptance of our technologies may take time and resources, require independent third-party analysis or not be accepted by the FDA and other regulatory authorities. For some of our products, the regulatory approval path and requirements may not be clear, which could add significant delay and expense. Delays or failure to obtain regulatory approval of any of the products that we develop would adversely affect our business.

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If we experience manufacturing difficulties or are unable to obtain sufficient quantities of raw materials or manufacture sufficient quantities of M-Enoxaparin, our development and commercialization efforts may be materially harmed.

We have limited personnel with experience in, and we do not own facilities for, manufacturing any products. We depend upon third parties to provide raw materials, manufacture the drug substance, produce the final drug product and provide certain analytical services with respect to M-Enoxaparin. We or our third party contractors may have difficulty meeting FDA manufacturing requirements, including but not limited to, reproducibility, validation and scale-up, and continued compliance with current good manufacturing practices requirements. In addition, we or our third party contractors may have difficulty producing M-Enoxaparin in the quantities necessary to meet anticipated market demand. If we are unable to satisfy the FDA requirements for approval or to produce M-Enoxaparin in sufficient quantities to meet the requirements for the launch of the product or to meet future demand, our revenues and gross margins could be adversely affected.

We will need to develop or acquire additional technologies as part of our efforts to analyze the chemical composition of complex mixtures other than heparins.

To date, our analytical techniques and methods have been primarily focused on the characterization of complex mixtures composed of linear sugars, such as those found in the heparin class of drugs. In order to adequately analyze other complex mixtures, such as glycoproteins, we will need to develop or acquire new technologies. Our inability to develop or acquire and apply these new technologies would impair our ability to assist biotechnology companies in developing improved and next-generation versions of existing products, and limit our ability to perform the analysis that we believe may be required to enable biosimilar or equivalent versions of these biologics. Our inability to develop or acquire additional technology for the characterization of complex mixtures other than heparins could reduce the likelihood of our success developing other products.

Competition in the biotechnology and pharmaceutical industries is intense, and if we are unable to compete effectively, our financial results will suffer.

The markets in which we intend to compete are undergoing, and are expected to continue to undergo, rapid and significant technological change. We expect competition to intensify as technological advances are made or new biotechnology products are introduced. New developments by competitors may render our current or future product candidates and/or technologies non-competitive, obsolete or not economical. Our competitors’ products may be more efficacious or marketed and sold more effectively than any of our products.

Many of our competitors have:

·        significantly greater financial, technical and human resources than we have at every stage of the discovery, development,  manufacturing and commercialization process;

·        more extensive experience in commercializing generic drugs, preclinical testing, conducting clinical trials, obtaining regulatory approvals, challenging patents and in manufacturing and marketing pharmaceutical products;

·        products that have been approved or are in late stages of development; and

·        collaborative arrangements in our target markets with leading companies and research institutions.

If we successfully develop and obtain approval for our drug candidates, we will face competition based on many different factors, including:

·        the safety and effectiveness of our products;

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·        the timing and scope of regulatory approvals for these products;

·        the availability and cost of manufacturing, marketing and sales capabilities;

·        the effectiveness of our marketing and sales capabilities;

·        the price of our products;

·        the availability and amount of third-party reimbursement for our products; and

·        the strength of our patent position.

Our competitors may develop or commercialize products with significant advantages in regard to any of these factors. Our competitors may therefore be more successful in commercializing their products than we are, which could adversely affect our competitive position and business.

If we are unable to establish and maintain key customer arrangements, sales of our products, and therefore revenues, would decline.

Generic pharmaceutical products are sold through various channels, including retail, mail order, and to hospitals through group purchasing organizations, or GPOs. As enoxaparin is primarily a hospital-based product, we expect to derive a large percentage of our future revenue for M-Enoxaparin through contracts with GPOs. Currently, a relatively small number of GPOs control a substantial portion of generic pharmaceutical sales to hospital customers. In order to establish and maintain contracts with these GPOs, we believe that we, in collaboration with Sandoz, will need to maintain adequate drug supplies, remain price competitive, comply with FDA regulations and provide high-quality products. The GPOs with whom we hope to establish contracts may also have relationships with our competitors and may decide to contract for or otherwise prefer products other than ours, limiting access of M-Enoxaparin to certain hospital segments. Our sales could also be negatively affected by any rebates, discounts or fees that are required by our customers, including the GPOs, wholesalers, distributors, retail chains or mail order services, to gain and retain market acceptance for our products. M356 is primarily distributed through retail channels and mail order services. If we are unable to establish and maintain arrangements with all of these customers, future sales of our products, including M-Enoxaparin and M356, our revenues and our profits would suffer.

Even if we receive approval to market our drug candidates, the market may not be receptive to our drug candidates upon their commercial introduction, which could prevent us from being profitable.

Even if our drug candidates are successfully developed, our success and growth will also depend upon the acceptance of these drug candidates by physicians and third-party payors. Acceptance of our product development candidates will be a function of our products being clinically useful, being cost effective and demonstrating superior therapeutic effect with an acceptable side effect profile as compared to existing or future treatments. In addition, even if our products achieve market acceptance, we may not be able to maintain that market acceptance over time.

Factors that we believe will materially affect market acceptance of our drug candidates under development include:

·        the timing of our receipt of any marketing approvals, the terms of any approval and the countries in which approvals are obtained;

·        the safety, efficacy and ease of administration of our products;

·        the competitive pricing of our products;

·        the success of our physician education and marketing programs;

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·        the sales and marketing efforts of competitors; and

·        the availability and amount of government and third-party payor reimbursement.

If our products do not achieve market acceptance, we will not be able to generate sufficient revenues from product sales to maintain or grow our business.

We will require substantial additional funds to execute our business plan and, if additional capital is not available, we may need to limit, scale back or cease our operations.

As of December 31, 2006, we had cash, cash equivalents and marketable securities totaling $191.3 million. For the twelve months ended December 31, 2006, we had a net loss of $51.9 million and used cash in operating activities of $25.2 million. We will continue to require substantial funds to conduct research and development, process development, manufacturing, preclinical testing and clinical trials of our drug candidates, as well as funds necessary to manufacture and market any products that are approved for commercial sale. Because successful development of our drug candidates is uncertain, we are unable to estimate the actual funds we will require to complete research and development and commercialize our products under development.

Our future capital requirements may vary depending on the following:

·        the timing of FDA approval of the products of our competitors;

·        the advancement of our generic product candidates and other development programs;

·        the cost of litigation, including potential patent litigation with Sanofi-Aventis relating to Lovenox that is not otherwise covered by our collaboration agreement, or potential patent litigation with others, as well as any damages, including possibly treble damages, that may be owed to Sanofi-Aventis or others should we be unsuccessful in such litigation;

·        the time and costs involved in obtaining regulatory approvals;

·        the continued progress in our research and development programs, including completion of our preclinical studies and clinical trials;

·        the potential acquisition and in-licensing of other technologies, products or assets; and

·        the cost of manufacturing, marketing and sales activities, if any.

We may seek additional funding in the future and intend to do so through collaborative arrangements and public or private equity and debt financings. Additional funds may not be available to us on acceptable terms or at all. In addition, the terms of any financing may adversely affect the holdings or the rights of our stockholders. If we are unable to obtain funding on a timely basis, we may be required to significantly curtail one or more of our research or development programs. We also could be required to seek funds through arrangements with collaborators or others that may require us to relinquish rights to some of our technologies, product candidates or products which we would otherwise pursue on our own.

If we are not able to retain our current senior management team or attract and retain qualified scientific, technical and business personnel, our business will suffer.

We are dependent on the members of our senior management team for our business success. Our employment arrangements with our executive officers are terminable by either party on short notice or no notice. We do not carry life insurance on the lives of any of our personnel. The loss of any of our executive officers would result in a significant loss in the knowledge and experience that we, as an organization, possess and could cause significant delays, or outright failure, in the development and approval of our product candidates. In addition, our growth will require us to hire a significant number of qualified

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scientific and administrative personnel. There is intense competition from numerous pharmaceutical and biotechnology companies, universities, governmental entities and other research institutions, for human resources, including management, in the technical fields in which we operate, and we may not be able to attract and retain qualified personnel necessary for the successful development and commercialization of our product candidates.

There is a substantial risk of product liability claims in our business. If our existing product liability insurance is insufficient, a product liability claim against us that exceeds the amount of our insurance coverage could adversely affect our business.

Our business exposes us to significant potential product liability risks that are inherent in the development, manufacturing and marketing of human therapeutic products. Product liability claims could delay or prevent completion of our development programs. If we succeed in marketing products, such claims could result in a recall of our products or a change in the indications for which they may be used. While we currently maintain product liability insurance coverage that we believe is adequate for our current operations, we cannot be sure that such coverage will be adequate to cover any incident or all incidents. Furthermore, clinical trial and product liability insurance is becoming increasingly expensive. As a result, we may be unable to maintain sufficient insurance at a reasonable cost to protect us against losses that could have a material adverse effect on our business. These liabilities could prevent or interfere with our product development and commercialization efforts.

As we evolve from a company primarily involved in drug discovery and development into one that is also involved in the commercialization of drug products, we may have difficulty managing our growth and expanding our operations successfully.

As we advance our drug candidates through the development process, we will need to expand our development, regulatory, manufacturing, sales and marketing capabilities or contract with other organizations to provide these capabilities for us. As our operations expand, we expect that we will need to manage additional relationships with various collaborative partners, suppliers and other organizations. Our ability to manage our operations and growth requires us to continue to improve our operational, financial and management controls, reporting systems and procedures. Such growth could place a strain on our administrative and operational infrastructure. We may not be able to make improvements to our management information and control systems in an efficient or timely manner and may discover deficiencies in existing systems and controls.

We may acquire or make investments in companies or technologies that could adversely effect our business and financial results.

We may in the future acquire or invest in companies, products and technologies. Such transactions involve a number of risks, including:

·        we may find that the acquired company or assets do not further our business strategy, or that we overpaid for the company or assets, or that economic conditions change, all of which may generate a future impairment charge;

·        difficulty integrating the operations and personnel of the acquired business, and difficulty retaining the key personnel of the acquired business;

·        difficulty incorporating the acquired technologies;

·        difficulties or failures with the performance of the acquired technologies or drug products;

·        we may face product liability risks associated with the sale of the acquired company’s products;

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·        disruption or diversion of management’s attention by transition or integration issues and the complexity of managing diverse locations;

·        difficulty maintaining uniform standards, internal controls, procedures and policies;

·        the acquisition may result in litigation from terminated employees or third-parties; and

·        we may experience significant problems or liabilities associated with product quality, technology and legal contingencies.

These factors could have a material adverse effect on our business, results of operations and financial condition or cash flows, particularly in the case of a larger acquisition or multiple acquisitions in a short period of time. From time to time, we may enter into negotiations for acquisitions that are not ultimately consummated. Such negotiations could result in significant diversion of management time, as well as out-of-pocket costs.

The consideration paid in connection with an acquisition also affects our financial results. If we were to proceed with one or more significant acquisitions in which the consideration included cash, we could be required to use a substantial portion of our available cash to consummate any acquisition. To the extent we issue shares of stock or other rights to purchase stock, including options or other rights, existing stockholders may be diluted and earnings per share may decrease. In addition, acquisitions may result in the incurrence of debt, large one-time write-offs and restructuring charges. They may also result in goodwill and other intangible assets that are subject to impairment tests, which could result in future impairment charges.

Risks Relating to Development and Regulatory Approval

If we are not able to demonstrate therapeutic equivalence for our generic versions of complex drugs, including M-Enoxaparin, to the satisfaction of the FDA, we will not obtain regulatory approval for commercial sale of our generic product candidates, and our future results of operations will be adversely affected.

Our future results of operations depend, to a significant degree, on our ability to obtain regulatory approval for and commercialize generic versions of complex drugs, including M-Enoxaparin. We will be required to demonstrate to the satisfaction of the FDA, among other things, that our generic products contain the same active ingredients, are of the same dosage form, strength and route of administration as the branded products upon which they are based, and meet compendial or other applicable standards for strength, quality, purity and identity, including potency. In addition, we will be required to conduct in vivo studies to demonstrate that our generic versions of complex drugs are bioequivalent, meaning generally that there are no significant differences between the generic drug and its branded counterpart with respect to the rate and extent to which the active ingredients are absorbed and become available at the site of drug action.

Determination of the same active ingredients for our generic versions of complex drugs will be based on our demonstration of chemical equivalence to the respective reference listed drugs. The FDA may not agree that we have adequately characterized our products or that our products are equivalent to their respective branded drugs. The FDA may require confirmatory information including, for example, animal or human testing, to determine the sameness of active ingredients and that any inactive ingredients or impurities do not compromise the product’s safety and efficacy. Provision of sufficient information for approval may prove difficult, time consuming and expensive. We must also demonstrate the adequacy of our methods, controls and facilities used in the manufacture of the product, including that they meet current good manufacturing practices, or cGMP. We cannot predict whether any of our generic product candidates will meet FDA requirements for approval.

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In the event that the FDA modifies its current standards for therapeutic equivalence with respect to generic versions of Lovenox or other complex drug products, does not establish standards for interchangeability for generic versions of complex drug products, or requires us to conduct clinical trials or other lengthy processes, the commercialization of some of our development candidates could be delayed or prevented. Delays in any part of the process or our inability to obtain regulatory approval for our products could adversely affect our operating results by restricting or significantly delaying our introduction of new products.

If the FDA is not able to establish specific guidelines or arrive at a consensus regarding the scientific analyses required for characterizing biosimilar or generic versions of complex protein drugs, and if the U.S. Congress does not take action to create an abbreviated regulatory pathway for protein products, then the uncertainty about the value of our glycoprotein program will be increased.

The regulatory climate for generic and biosimilar versions of protein products remains uncertain. Although there has been recent legislative activity, there is currently no established statutory or regulatory pathway for approval of biosimilar or generic versions of most protein drugs. The FDA has approved the majority of protein products under the Public Health Service Act, or PHSA, through the use of BLAs. Unlike drugs approved through the submission of NDAs under section 505 of the Federal Food, Drug, and Cosmetic Act, or the FDCA, there is no provision in the PHSA for an abbreviated BLA approval pathway, and the FDA has stated it does not believe it has the authority to rely on prior BLA approvals or on their underlying data to approve a biosimilar product. Moreover, even for proteins originally approved as NDAs, there is uncertainty as to what data the FDA may deem is necessary to demonstrate the sameness required for approval of an ANDA under section 505(j) of the FDCA. In addition, there has been opposition to the FDA’s use of section 505(b)(2), which allows an applicant to rely on information from published scientific literature and/or a prior approval of a similar drug, to approve similar or follow-on versions of protein and other complex drug products approved under section 505 of the FDCA.

Although the FDA has previously stated its intention to draft guidance that is broadly applicable to follow-on protein products, the agency has not issued such guidance to date and may never do so. Protracted timelines and failure of the FDA to establish standards for approval of generic or biosimilar protein products or of the U.S. Congress to enact legislation establishing an abbreviated pathway for approval for biosimilar or generic products to approved BLA products could reduce the value of, or render obsolete, our glycoprotein program.

If our preclinical studies and clinical trials for our development candidates, including M118, are not successful, we will not be able to obtain regulatory approval for commercial sale of our novel or improved drug candidates.

To obtain regulatory approval for the commercial sale of our novel or improved drug candidates, we are required to demonstrate through preclinical studies and clinical trials that our drug development candidates are safe and effective. Preclinical testing and clinical trials of new development candidates are lengthy and expensive and the historical failure rate for development candidates is high.

A failure of one or more of our preclinical studies or clinical trials can occur at any stage of testing. We may experience numerous unforeseen events during, or as a result of, preclinical testing and the clinical trial process that could delay or prevent our ability to receive regulatory approval or commercialize M118 or our other drug candidates, including:

·        regulators or institutional review boards may not authorize us to commence a clinical trial or conduct a clinical trial at a prospective trial site;

·        preclinical studies or clinical trials may produce negative or inconclusive results, and we may be required to conduct additional preclinical studies or clinical trials or we may abandon projects that we expect to be promising;

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·        enrollment in our clinical trials may be slower than we anticipate, resulting in significant delays, and participants may drop out of our clinical trials at a higher rate than we anticipate;

·        we might have to suspend or terminate our clinical trials if the participants are being exposed to unacceptable health risks;

·        regulators or institutional review boards may require that we hold, suspend or terminate clinical research for various reasons, including noncompliance with regulatory requirements;

·        the cost of our clinical trials may be greater than we anticipate; and

·        the effects of our drug candidates may not be the desired effects or may include undesirable side effects or the product candidates may have other unexpected characteristics.

The results from preclinical testing of a development candidate may not predict the results that will be obtained in human clinical trials.  If we are required to conduct additional clinical trials or other testing of M118 or our product candidates beyond those that we currently contemplate, if we are unable to successfully complete our clinical trials or other tests, or if the results of these trials are not positive or are only modestly positive, we may be delayed in obtaining marketing approval for our drug candidates or we may not be able to obtain marketing approval at all. Our product development costs will also increase if we experience delays in testing or approvals. Significant clinical trial delays could allow our competitors to bring products to market before we do and impair our ability to commercialize our products or potential products. If any of this occurs, our business will be materially harmed.

Failure to obtain regulatory approval in foreign jurisdictions would prevent us from marketing our products abroad.

We intend in the future to market our products outside of the United States. In order to market our products in the European Union and many other foreign jurisdictions, we must obtain separate regulatory approvals and comply with the numerous and varying regulatory requirements of each jurisdiction. The approval procedure and requirements varies among countries, and can require, among other things, submitting or conducting additional testing in each jurisdiction. The time required to obtain approval abroad may differ from that required to obtain FDA approval. The foreign regulatory approval process may include all of the risks associated with obtaining FDA approval, and we may not obtain foreign regulatory approvals on a timely basis, if at all. Approval by the FDA does not ensure approval by regulatory authorities in other countries, and approval by one foreign regulatory authority does not ensure approval by regulatory authorities in any other foreign country or by the FDA. We and our collaborators may not be able to file for regulatory approvals and may not receive necessary approvals to commercialize our products in any market outside of the United States. The failure to obtain these approvals could materially adversely affect our business, financial condition and results of operations.

Even if we obtain regulatory approvals, our marketed drugs will be subject to ongoing regulatory review. If we fail to comply with continuing United States and foreign regulations, we could lose our approvals to market drugs and our business would be seriously harmed.

Even after approval, any drug products we develop will be subject to ongoing regulatory review, including the review of clinical results which are reported after our drug products are made commercially available. In addition, the manufacturer and manufacturing facilities we use to produce any of our drug candidates will be subject to periodic review and inspection by the FDA. We will be required to report any serious and unexpected adverse experiences and certain quality problems with our products and make other periodic reports to the FDA. The discovery of any new or previously unknown problems with the product, manufacturer or facility may result in restrictions on the drug or manufacturer or facility, including withdrawal of the drug from the market. Certain changes to an approved product, including in

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the way it is manufactured or promoted, often require prior FDA approval before the product as modified may be marketed. If we fail to comply with applicable continuing regulatory requirements, we may be subject to warning letters, civil penalties, suspension or withdrawal of regulatory approvals, product recalls and seizures, injunctions, operating restrictions and/or criminal prosecutions and penalties. In addition, neither we, nor any of our third-party collaborators, are permitted to employ in any capacity, any individual who has been debarred under the FDA’s Application Integrity Policy, and if such person is or has been so employed, the FDA may delay its review and approval of some or all of our applications, reject certain studies, withdraw approval of our applications, and take other adverse administrative action against us.

If third-party payors do not adequately reimburse customers for any of our approved products, they might not be purchased or used, and our revenues and profits will not develop or increase.

Our revenues and profits will depend heavily upon the availability of adequate reimbursement for the use of our approved product candidates from governmental and other third-party payors, both in the United States and in foreign markets. Reimbursement by a third-party payor may depend upon a number of factors, including the third-party payor’s determination that use of a product is:

·        a covered benefit under its health plan;

·        safe, effective and medically necessary;

·        appropriate for the specific patient;

·        cost-effective; and

·        neither experimental nor investigational.

Obtaining reimbursement approval for a product from each government or other third-party payor is a time-consuming and costly process that could require us to provide supporting scientific, clinical and cost-effectiveness data for the use of our products to each payor. We may not be able to provide data sufficient to gain acceptance with respect to reimbursement. There is substantial uncertainty whether any particular payor will reimburse the use of any drug products incorporating new technology. Even when a payor determines that a product is eligible for reimbursement, the payor may impose coverage limitations that preclude payment for some uses that are approved by the FDA or comparable authority. Moreover, eligibility for coverage does not imply that any product will be reimbursed in all cases or at a rate that allows us to make a profit or even cover our costs. Interim payments for new products, if applicable, may also not be sufficient to cover our costs and may not be made permanent. Reimbursement 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, may be incorporated into existing payments for other products or services, and may reflect budgetary constraints and/or imperfections in Medicare, Medicaid or other data used to calculate these rates. Net prices for products may be reduced by mandatory discounts or rebates required by government health care programs or by any future relaxation of laws that restrict imports of certain medical products from countries where they may be sold at lower prices than in the United States.

There have been, and we expect that there will continue to be, federal and state proposals to constrain expenditures for medical products and services, which may affect payments for our products. The Centers for Medicare and Medicaid Services, or CMS, frequently change product descriptors, coverage policies, product and service codes, payment methodologies and reimbursement values. Third-party payors often follow Medicare coverage policy and payment limitations in setting their own reimbursement rates, and both CMS and other third-party payors may have sufficient market power to demand significant price reductions. Due in part to actions by third-party payors, the health care industry is experiencing a trend toward containing or reducing costs through various means, including lowering reimbursement rates,

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limiting therapeutic class coverage and negotiating reduced payment schedules with service providers for drug products.

Our inability to promptly obtain coverage and profitable reimbursement rates from government-funded and private payors for our products could have a material adverse effect on our operating results and our overall financial condition.

New federal legislation will increase the pressure to reduce prices of pharmaceutical products paid for by Medicare, which could adversely affect our revenues, if any.

The Medicare Prescription Drug Improvement and Modernization Act of 2003, or MMA, changed the way Medicare covers and reimburses for pharmaceutical products. The legislation introduced a new reimbursement methodology based on average sales prices for drugs that are used in hospital settings or under the direct supervision of a physician and, starting in 2006, expanded Medicare coverage for drug purchases by the elderly. In addition, the MMA requires the creation of formularies for self-administered drugs, and provides authority for limiting the number of drugs that will be covered in any therapeutic class and provides for plan sponsors to negotiate prices with manufacturers and suppliers of covered drugs. As a result of the MMA and the expansion of federal coverage of drug products, we expect continuing pressure to contain and reduce costs of pharmaceutical products. Cost reduction initiatives and other provisions of this legislation could decrease the coverage and price that we receive for our products and could materially adversely affect our operating results and overall financial condition. While the MMA generally applies only to drug benefits for Medicare beneficiaries, private payors often follow Medicare coverage policy and payment limitations in setting their own reimbursement policies, and any reduction in coverage or payment that results from the MMA may result in a similar reduction in coverage or payments from private payors.

Congress has considered separate legislation, which if enacted, would permit more widespread re-importation of drugs from foreign countries into the United States and which may include re-importation from foreign countries where drugs are frequently sold at lower prices than in the United States; other proposed legislation would remove restrictions on CMS’ ability to negotiate discounts directly with prescription drug manufacturers provided through the Medicare program. Such legislation, or similar regulatory changes, could decrease the amount of reimbursement we receive for any approved products which, in turn, could materially adversely affect our operating results and our overall financial condition.

If efforts by manufacturers of branded products to delay or limit the use of generics are successful, our sales of technology-enabled generic products may suffer.

Many manufacturers of branded products have increasingly used legislative, regulatory and other means to delay competition from manufacturers of generic drugs. These efforts have included:

·        settling patent lawsuits with generic companies, resulting in such patents remaining an obstacle for generic approval by others;

·        innovator companies settling paragraph IV patent litigation with generic companies to prevent the expiration of the 180-day generic marketing exclusivity period or to delay the triggering of such exclusivity period;

·        submitting Citizen Petitions to request the Commissioner of Food and Drugs to take administrative action with respect to prospective and submitted generic drug applications;

·        seeking changes to the United States Pharmacopeia, an industry recognized compilation of drug standards;

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·        pursuing new patents for existing products or processes which may issue before the expiration of one patent, which could extend patent protection for a number of years or otherwise delay the launch of generic drugs; and

·        attaching special patent extension amendments to unrelated federal legislation.

In February 2003, Aventis filed a Citizen Petition with the FDA requesting that the FDA withhold approval of any ANDA for a generic version of Lovenox until and unless the FDA determines that the manufacturing process used by the generic applicant is equivalent to the process used to make Lovenox, or until the generic applicant demonstrates through clinical trials that its product is equally safe and effective as Lovenox, and unless the generic product is shown to contain a specific molecular structure. Teva, Amphastar, and others have filed comments opposing the Petition, and Aventis has filed at least three supplements and numerous reply comments in support of its Petition. The FDA has yet to rule on the Petition, and if the FDA ultimately grants the Petition, we and Sandoz may be unable to obtain approval of our ANDA for M-Enoxaparin, which would materially harm our business.

Further, some manufacturers of branded products have engaged in state-by-state initiatives to enact legislation that restrict the substitution of some branded drugs with generic drugs. If these efforts to delay or block competition are successful, we may be unable to sell our generic products, which could have a material adverse effect on our sales and profitability.

Foreign governments tend to impose strict price controls, which may adversely affect our revenues, if any.

In some foreign countries, particularly the countries of the European Union, the pricing of prescription pharmaceuticals is subject to governmental control. In these countries, pricing negotiations with governmental authorities can take considerable time after the receipt of marketing approval for a product. To obtain reimbursement or pricing approval in some countries, we may be required to conduct a clinical trial that compares the cost-effectiveness of our product candidate to other available therapies. If reimbursement of our products is unavailable or limited in scope or amount, or if pricing is set at unsatisfactory levels, our business could be adversely affected.

If we do not comply with laws regulating the protection of the environment and health and human safety, our business could be adversely affected.

Our research and development involves, and may in the future involve, the use of hazardous materials and chemicals and certain radioactive materials and related equipment. For the years ended December 31, 2006, 2005 and 2004, we spent approximately $31,000, $19,000, and $25,000, respectively, in order to comply with environmental and waste disposal regulations. Although we believe that our safety procedures for handling and disposing of these materials comply with the standards mandated by state and federal regulations, the risk of accidental contamination or injury from these materials cannot be eliminated. If an accident occurs, we could be held liable for resulting damages, which could be substantial. We are also subject to numerous environmental, health and workplace safety laws and regulations, including those governing laboratory procedures, exposure to blood-borne pathogens and the handling of biohazardous materials. Although we maintain workers’ compensation insurance as prescribed by the Commonwealth of Massachusetts and, for claims not covered by workers’ compensation insurance, employer’s liability insurance, to cover us for costs and expenses we may incur due to injuries to our employees resulting from the use of these 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. Additional federal, state and local laws and regulations affecting our operations may be adopted in the future. We may incur substantial costs to comply with, and substantial fines or penalties if we violate, any of these laws or regulations.

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Risks Relating to Patents and Licenses

If we are not able to obtain and enforce patent protection for our discoveries, our ability to successfully commercialize our product candidates will be harmed and we may not be able to operate our business profitably.

Our success depends, in part, on our ability to protect proprietary methods and technologies that we develop under the patent and other intellectual property laws of the United States and other countries, so that we can prevent others from using our inventions and proprietary information. However, we may not hold proprietary rights to some patents related to our current or future product candidates. Because patent applications in the United States and many foreign jurisdictions are typically not published until 18 months after filing, or in some cases not at all, and because publications of discoveries in scientific literature lag behind actual discoveries, we cannot be certain that we were the first to make the inventions claimed in issued patents or pending patent applications, or that we were the first to file for protection of the inventions set forth in our patent applications. As a result, we may be required to obtain licenses under third-party patents to market our proposed products. If licenses are not available to us on acceptable terms, or at all, we will not be able to market the affected products.

Our strategy depends on our ability to rapidly identify and seek patent protection for our discoveries. 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. Despite our efforts to protect our proprietary rights, unauthorized parties may be able to obtain and use information that we regard as proprietary. The issuance of a patent does not guarantee that it is valid or enforceable, so even if we obtain patents, they may not be valid or enforceable against third parties. In addition, the issuance of a patent does not guarantee that we have the right to practice the patented invention. Third parties may have blocking patents that could be used to prevent us from marketing our own patented product and practicing our own patented technology.

Our pending patent applications may not result in issued patents. The patent position of pharmaceutical or biotechnology companies, including ours, is generally uncertain and involves complex legal and factual considerations. The standards which the USPTO and its foreign counterparts use to grant patents are not always applied predictably or uniformly and can change. There is also no uniform, worldwide policy regarding the subject matter and scope of claims granted or allowable in pharmaceutical or biotechnology patents. The laws of some foreign countries do not protect proprietary information to the same extent as the laws of the United States, and many companies have encountered significant problems and costs in protecting their proprietary information in these foreign countries. Accordingly, we do not know the degree of future protection for our proprietary rights or the breadth of claims allowed in any patents issued to us or to others. The allowance of broader claims may increase the incidence and cost of patent interference proceedings and/or opposition proceedings, and the risk of infringement litigation. On the other hand, the allowance of narrower claims may limit the value of our proprietary rights. Our issued patents may not contain claims sufficiently broad to protect us against third parties with similar technologies or products, or provide us with any competitive advantage. Moreover, once they have issued, our patents and any patent for which we have licensed or may license rights may be challenged, narrowed, invalidated or circumvented. If our patents are invalidated or otherwise limited, other companies will be better able to develop products that compete with ours, which could adversely affect our competitive business position, business prospects and financial condition.

We also rely on trade secrets, know-how and technology, which are not protected by patents, to maintain our competitive position. If any trade secret, know-how or other technology not protected by a patent were to be disclosed to or independently developed by a competitor, our business and financial condition could be materially adversely affected.

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Our competitors may allege that we are infringing their intellectual property, forcing us to expend substantial resources in resulting litigation, the outcome of which would be uncertain. Any unfavorable outcome of such litigation could have a material adverse effect on our business, financial position and results of operations .

If any party successfully asserts that we are infringing their intellectual property or that our creation or use of proprietary technology infringes upon their intellectual property rights, we might be forced to incur expenses to litigate the claims and pay damages, potentially including treble damages, if we are found to have willfully infringed such parties’ patent rights. In addition, if we are unsuccessful in litigation, or pending the outcome of litigation, a court could issue a temporary injunction or a permanent injunction preventing us from marketing and selling the patented drug or other technology for the life of the patent that we have allegedly or been deemed to have infringed. Litigation concerning patents, other forms of intellectual property and proprietary technologies is becoming more widespread and can be protracted and expensive, and can distract management and other key personnel from performing their duties for us.

Any legal action against us or our collaborators claiming damages and seeking to enjoin any activities, including commercial activities relating to the affected products, and processes could, in addition to subjecting us to potential liability for damages, require us or our collaborators to obtain a license in order to continue to manufacture or market the affected products and processes. Any license required under any patent may not be made available on commercially acceptable terms, if at all. In addition, some licenses may be non-exclusive, and therefore, our competitors may have access to the same technology licensed to us. If we fail to obtain a required license or are unable to design around a patent, we may be unable to effectively market some of our technology and products, which could limit our ability to generate revenues or achieve profitability and possibly prevent us from generating revenue sufficient to sustain our operations.

If we become involved in patent litigation or other proceedings, we could incur substantial costs, substantial liability for damages and may be required to stop our product commercialization efforts.

We may need to resort to litigation to enforce a patent issued to us or to determine the scope and validity of third-party patent or other proprietary rights in jurisdictions where we intend to market our products, including the United States, the European Union, and many other foreign jurisdictions. Alternatively, we may be subject to claims of patent infringement in jurisdictions where we intend to market our products. The cost to us of any litigation or other proceeding relating to determining the validity of intellectual property rights, even if resolved in our favor, could be substantial and could divert our management’s efforts. Some of our competitors may be able to sustain the costs of complex patent litigation more effectively than we can because they may have substantially greater resources. Moreover, the failure to obtain a favorable outcome in any litigation in a jurisdiction where there is a claim of patent infringement could significantly delay marketing of our products in that particular jurisdiction. The costs and uncertainties resulting from the initiation and continuation of any litigation could limit our ability to continue our operations.

We in-license a significant portion of our proprietary technologies and if we fail to comply with our obligations under any of the related agreements, we could lose license rights that are necessary to develop our product candidates.

We are a party to and rely on a number of in-license agreements with third parties, such as those with the Massachusetts Institute of Technology, that give us rights to intellectual property that is necessary for our business. In addition, we expect to enter into additional licenses in the future. Our current in-license arrangements impose various development, royalty and other obligations on us. If we breach our obligations with regard to our exclusive in-licenses, they could be converted to non-exclusive licenses or the agreements could be terminated, which would result in our being unable to develop, manufacture and sell products that are covered by the licensed technology.

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Risks Relating to Our Dependence on Third Parties

Our 2003 Sandoz Collaboration and 2006 Sandoz Collaboration are important to our business. If Sandoz fails to adequately perform under either collaboration, or we or Sandoz terminate all or a portion of either collaboration, the development and commercialization of some of our drug candidates, including injectable enoxaparin, would be delayed or terminated and our business would be adversely affected.

Under our 2003 Sandoz Collaboration, we and Sandoz agree to exclusively work with each other in the development and commercialization of injectable enoxaparin within the United States. We also granted to Sandoz the right to negotiate additional rights for certain products under certain circumstances. Under our 2006 Sandoz Collaboration, we and Sandoz agree to exclusively work with each other in the development and commercialization of four follow-on and complex generic products for sale in specified regions of the world, M356 and the expansion of M-Enoxaparin activity into the European Union.

2003 Sandoz Collaboration

Either we or Sandoz may terminate the 2003 Sandoz Collaboration for material uncured breaches or certain events of bankruptcy or insolvency by the other party. Sandoz may also terminate the 2003 Sandoz Collaboration if the injectable enoxaparin product or the market lacks commercial viability, if new laws or regulations are passed or court decisions rendered that substantially diminish our legal avenues for redress, or, in multiple cases, if certain costs exceed mutually agreed upon limits. If the 2003 Sandoz Collaboration is terminated other than due to our uncured breach or bankruptcy, we will be granted an exclusive license under certain intellectual property of Sandoz to develop and commercialize injectable enoxaparin in the United States. In that event, we would need to expand our internal capabilities or enter into another collaboration, which could cause significant delays that could prevent us from completing the development and commercialization of injectable enoxaparin. If Sandoz terminates the 2003 Sandoz Collaboration due to our uncured breach or bankruptcy, Sandoz would retain the exclusive right to develop and commercialize injectable enoxaparin in the United States. In that event, we would no longer have any influence over the development or commercialization strategy of injectable Enoxaparin in the United States. In addition, Sandoz would retain its rights of first negotiation with respect to certain of our other products in certain circumstances and its rights of first refusal outside of the United States and the European Union. Accordingly, if Sandoz terminates the 2003 Collaboration, our introduction of M-Enoxaparin may be significantly delayed, we may decide to discontinue the M-Enoxaparin project, or our revenues may be reduced, any one of which could have a material adverse effect on our business.

2006 Sandoz Collaboration

Either we or Sandoz may terminate the 2006 Sandoz Collaboration for material uncured breaches or certain events of bankruptcy or insolvency by the other party. In addition, the following termination rights apply to some of the products, on a product-by-product basis: (i) if clinical trials are required, (ii) at Sandoz’ convenience within a certain time period, (iii) if the parties agree, or the relevant regulatory authority states in writing, that our intellectual property does not contribute to product approval, or (iv) if Sandoz decides to permanently cease development and commercialization of a product. For some of the products, for any termination of the 2006 Sandoz Collaboration other than a termination by Sandoz due to our uncured breach or bankruptcy, or a termination by us alone due to the need for clinical trials, we will be granted an exclusive license under certain intellectual property of Sandoz to develop and commercialize the particular product. In that event, we would need to expand our internal capabilities or enter into another collaboration, which could cause significant delays that could prevent us from completing the development and commercialization of such product. For some products, if Sandoz terminates the 2006 Sandoz Collaboration due to our uncured breach or bankruptcy, or if there is a termination by us alone due to the need for clinical trials, Sandoz would retain the exclusive right to develop and commercialize the applicable product. In that event, we would no longer have any influence over the development or

40




commercialization strategy of such product. In addition, for other products, if Sandoz terminates the 2006 Sandoz Collaboration due to our uncured breach or bankruptcy, Sandoz retains a right to license certain intellectual property of Momenta without the obligation to make any additional payments for such licenses. For certain products, if the 2006 Collaboration is terminated other than due to our uncured breach or bankruptcy, neither party will have a license to the other party’s intellectual property. In that event, we would need to expand our internal capabilities or enter into another collaboration, which could cause significant delays that could prevent us from completing the development and commercialization of such product. Accordingly, if the 2006 Sandoz Collaboration is terminated, our introduction of certain products may be significantly delayed, or our revenues may be significantly reduced either of which could have a material adverse effect on our business.

We depend on third parties for the manufacture of products. If in the future we encounter difficulties in our supply or manufacturing arrangements, our business may be materially adversely affected.

We have limited personnel with experience in, and we do not own facilities for, manufacturing any products. In addition, we do not have, and do not intend to develop, the ability to manufacture material for our clinical trials or at commercial scale. To develop our drug candidates, apply for regulatory approvals and commercialize any products, we or our partners need to contract for or otherwise arrange for the necessary manufacturing facilities and capabilities. As a result, we expect generally to rely on contract manufacturers for regulatory compliance. If our contract manufacturers were to breach or terminate their manufacturing arrangements with us, the development or commercialization of the affected products or drug candidates could be delayed, which could have a material adverse effect on our business. In addition, any change in our manufacturers could be costly because the commercial terms of any new arrangement could be less favorable and because the expenses relating to the transfer of necessary technology and processes could be significant.

We have relied upon third parties to produce material for preclinical studies and may continue to do so in the future. Although we believe that we will not have any material supply issues, we cannot be certain that we will be able to obtain long-term supply arrangements of those materials on acceptable terms, if at all. If we are unable to arrange for third-party manufacturing, or to do so on commercially reasonable terms, we may not be able to complete development of our products or market them.

In addition, the FDA and other regulatory authorities require that our products be manufactured according to cGMP regulations. Any failure by us or our third-party manufacturers to comply with cGMP, and/or our failure to scale-up our manufacturing processes could lead to a delay in, or failure to obtain, regulatory approval. In addition, such failure could be the basis for action by the FDA to withdraw approvals for drug candidates previously granted to us and for other regulatory action. To the extent we rely on a third-party manufacturer, the risk of non-compliance with cGMPs may be greater and the ability to effect corrective actions for any such noncompliance may be compromised or delayed.

We may need or elect to enter into alliances or collaborations with other companies to supplement and enhance our own capabilities or fund our development efforts. If we are unsuccessful in forming or maintaining these alliances on favorable terms, or if any collaborative partner terminates or fails to perform its obligations, our business could be adversely affected.

Because we have limited or no capabilities for drug development, manufacturing, sales, marketing and distribution, we may need to enter into alliances with other companies that can assist with the development and commercialization of our drug candidates. We may, for example, form alliances with major pharmaceutical companies to jointly develop specific drug candidates and to jointly commercialize them if they are approved. In such alliances, we would expect our pharmaceutical company partners to provide substantial capabilities in clinical development, manufacturing, regulatory affairs, sales and marketing. We may not be successful in entering into any such alliances. Even if we do succeed in securing such alliances,

41




we may not be able to maintain them if, for example, development or approval of a drug candidate is delayed or sales of an approved drug are disappointing.

Factors that may affect the success of our collaborations include the following:

·        disputes may arise in the future with respect to the ownership of rights to technology developed with collaborators;

·        our collaborators may pursue alternative technologies or develop alternative products, either on their own or in collaboration with others, that may be competitive with the products on which they are collaborating with us or which could affect our collaborators’ commitment to our collaborations;

·        our collaborators may terminate their collaborations with us, which could make it difficult for us to attract new collaborators or adversely affect how we are perceived in the business and financial communities;

·        our collaborators may pursue higher-priority programs or change the focus of their development programs, which could affect the collaborators’ commitment to us; and

·        our collaborators with marketing rights may choose to devote fewer resources to the marketing of our product candidates, if any are approved for marketing, than to products from their own development programs.

In addition to relying on a third party for its capabilities, we may depend on our alliances with other companies to provide substantial additional funding for development and potential commercialization of our drug candidates. We may not be able to obtain funding on favorable terms from these alliances, and if we are not successful in doing so, we may not have sufficient funds to develop a particular drug candidate internally, or to bring drug candidates to market. Failure or delays in bringing our drug candidates to market will reduce their competitiveness and prevent us from generating sales revenues, which may substantially harm our business.

Furthermore, in an effort to continually update and enhance our proprietary technology platform we enter into agreements with other companies to develop, license, acquire and/or collaborate on various technologies. If we are unable to enter into the desired agreements, if the agreements do not yield the intended results or if the agreements terminate, we may need to find alternative approaches to such technology needs.

If any of these occur, the development and commercialization of one or more drug candidates could be delayed, curtailed or terminated, any of which may adversely affect our business.

If we are unable to establish sales and marketing capabilities or enter into agreements with third parties to market and sell our product candidates, we may be unable to generate product revenues.

We do not have a sales organization and have no experience as a company in the sales, marketing and distribution of pharmaceutical products. There are risks involved with establishing our own sales and marketing capabilities, as well as entering into arrangements with third parties to perform these services. For example, developing a sales force is expensive and time consuming and could delay any product launch. In addition, to the extent that we enter into arrangements with third parties to perform sales, marketing and distribution services, we will have less control over sales of our products, and our future revenues would depend heavily on the success of the efforts of these third parties.

42




General Company Related Risks

Our directors, executive officers and major stockholders have substantial influence or control over matters submitted to stockholders for approval that could delay or prevent a change in corporate control.

Our directors, executive officers and principal stockholders, together with their affiliates and related persons, beneficially owned, in the aggregate, approximately 41% of our outstanding common stock as of December 31, 2006. As a result, these stockholders, if acting together, may have the ability to determine the outcome of or influence matters submitted to our stockholders for approval, including the election and removal of directors and any merger, consolidation or sale of all or substantially all of our assets. In addition, these persons, acting together, may have the ability to control the management and affairs of our company. Accordingly, this concentration of ownership may harm the market price of our common stock by:

·        delaying, deferring or preventing a change in control of our company;

·        entrenching our management and/or board;

·        impeding a merger, consolidation, takeover or other business combination involving our company; or

·        discouraging a potential acquirer from making a tender offer or otherwise attempting to obtain control of our company.

Anti-takeover provisions in our 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 certificate of incorporation and our by-laws may delay or prevent an acquisition of us or a change in our management. 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. These provisions include:

·        a classified board of directors;

·        a prohibition on actions by our stockholders by written consent;

·        a “poison pill” in accordance with the Company’s Shareholders Rights Plan 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

·        limitations on the removal of directors.

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. Finally, these provisions establish advance notice requirements for nominations for election to our board of directors or for proposing matters that can be acted upon at stockholder meetings. These provisions would apply even if the offer may be considered beneficial by some stockholders.

43




Our stock price may be volatile, and purchasers of our common stock could incur substantial losses.

The stock market in general and the market prices for securities of biotechnology companies in particular have experienced extreme volatility that often have been unrelated or disproportionate to the operating performance of these companies. The trading price of our common stock has been, and is likely to continue to be, volatile. Our stock price could be subject to wide fluctuations in response to a variety of factors, including the following:

·        failure to obtain FDA approval for M-Enoxaparin or other adverse FDA decisions relating to M-Enoxaparin, including the FDA requiring clinical trials as a condition to M-Enoxaparin approval;

·        FDA approval of other ANDAs for generic versions of Lovenox;

·        litigation involving our company or our general industry or both;

·        a decision in favor of Sanofi-Aventis in either of the current patent litigation matters, or a settlement related to either of those cases;

·        results or delays in our or our competitors’ clinical trials or regulatory filings;

·        failure to demonstrate therapeutic equivalence with respect to our technology-enabled generic product candidates and safety and efficacy for our novel development product candidates;

·        our ability to manufacture any products to commercial standards;

·        failure of any of our product candidates, if approved, to achieve commercial success;

·        developments or disputes concerning our patents or other proprietary rights;

·        changes in estimates of our financial results or recommendations by securities analysts;

·        termination of any of our strategic partnerships;

·        significant acquisitions, strategic partnerships, joint ventures or capital commitments by us or our competitors; and

·        investors’ general perception of our company, our products, the economy and general market conditions.

If any of these factors causes an adverse effect on our business, results of operations or financial condition, the price of our common stock could fall and investors may not be able to sell their common stock at or above their respective purchase prices.

Item 1B.                UNRESOLVED STAFF COMMENTS

Not applicable.

Item 2.                         PROPERTIES

As of March 1, 2007, pursuant to our sublease agreements, we are leasing a total of approximately 100,800 square feet of office and laboratory space in two buildings in Cambridge, Massachusetts:

Property Location

 

 

 

Approximate
Square
Footage

 

Use

 

Lease
Expiration
Date

675 West Kendall Street
Cambridge, Massachusetts 02142

 

78,500

 

Laboratory & Office

 

04/30/2011

300 Third Street,
Cambridge, Massachusetts 02142

 

22,300

 

Laboratory & Office

 

04/30/2011

 

44




Item 3.                         LEGAL PROCEEDINGS

We are not a party to any material legal proceedings.

Item 4.                         SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS

Not applicable.

PART II

Item 5.                         MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

Market Information

Prior to June 2004, there was no established market for our common stock. Since June 22, 2004, our common stock has been traded on the NASDAQ National and Global Markets under the symbol “MNTA.” The following table sets forth the high and low last sale prices of our common stock for the periods indicated, as reported on the NASDAQ Global Market:

Quarter ended

 

 

 

High

 

Low

 

March 31, 2005

 

$

8.73

 

$

6.55

 

June 30, 2005

 

20.45

 

7.60

 

September 30, 2005

 

30.99

 

19.20

 

December 31, 2005

 

29.06

 

18.33

 

March 31, 2006

 

25.05

 

18.78

 

June 30, 2006

 

19.09

 

11.76

 

September 30, 2006

 

18.02

 

10.76

 

December 31, 2006

 

18.18

 

13.05

 

 

Holders

On March 1, 2007, the approximate number of holders of record of our common stock was 58 and the approximate number of beneficial holders of our common stock was 2,245.

Dividends

We have never declared or paid any cash dividends on our common stock. We anticipate that, in the foreseeable future, we will continue to retain any earnings for use in the operation of our business and will not pay any cash dividends.

Equity Compensation Plan Information

Information relating to compensation plans under which our equity securities are authorized for issuance is set forth under “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters” in our definitive proxy statement for our 2007 Annual Meeting of Stockholders.

Use of Proceeds

On June 25, 2004, we sold 5,350,000 shares, together with an additional 802,500 shares pursuant to the exercise by the underwriters of an over-allotment option, of our common stock in connection with the closing of our initial public offering, or the Offering. The Registration Statement on Form S-1 (Reg. No. 333-113522) we filed to register our common stock in the Offering was declared effective by the Securities and Exchange Commission on June 21, 2004.

45




From June 25, 2004 to December 31, 2006, we have expended all of the $35.3 million in net proceeds of the Offering. Such proceeds were primarily expended on: our operating activities, including research and development expenses; our development programs, including M-Enoxaparin, M118, M-Dalteparin and M356; our discovery programs, including pulmonary delivery, oncology and technology development; and other general corporate purposes. We utilized approximately $34.0 million to fund our operations, and approximately $1.3 million to make principal payments on our equipment lease obligations and line of credit.

None of the net proceeds were directly or indirectly paid to (i) any of our directors, officers or their associates, (ii) any person(s) owning 10% or more of any class of our equity securities or (iii) any of our affiliates.

Item 6.                         SELECTED CONSOLIDATED FINANCIAL DATA

The selected consolidated financial data set forth below with respect to our statement of operations data for the years ended December 31, 2006, 2005 and 2004 and the balance sheet data as of December 31, 2006 and 2005 are derived from our audited financial statements included in this Annual Report on Form 10-K. The statement of operations data for the years ended December 31, 2003, 2002 and the period from inception through December 31, 2001 and the balance sheet data as of December 31, 2004, 2003, 2002 and 2001 are derived from our audited financial statements, which are not included herein. Historical results are not necessarily indicative of future results. See the notes to the consolidated financial statements for an explanation of the method used to determine the number of shares used in computing basic and diluted net loss per common share. The selected consolidated financial data set forth below should be read in conjunction with and is qualified in its entirety by our audited consolidated financial statements and related notes thereto found at “Item 8. Financial Statements and Supplementary Data” and “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations”, which are included elsewhere in this Annual Report on Form 10-K.

46




Momenta Pharmaceuticals, Inc.
Selected Financial Data

 

 

 

 

 

 

 

 

 

 

 

 

Period
from

 

 

 

 

 

 

 

 

 

 

 

 

 

Inception
(May 17,

 

 

 

 

 

 

 

 

 

 

 

 

 

2001)

 

 

 

Year Ended December 31,

 

through
December 31,

 

 

 

2006

 

2005

 

2004

 

2003

 

2002

 

2001

 

 

 

(In thousands, except per share information)

 

Statements of Operations Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Collaboration revenue

 

$

15,999

 

$

13,011

 

$

7,832

 

$

1,454

 

$

 

 

$

 

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Research and development

 

46,916

 

23,710

 

15,722

 

5,347

 

2,174

 

 

206

 

 

General and administrative

 

28,466

 

14,059

 

6,751

 

4,083

 

2,712

 

 

167

 

 

Total operating expenses

 

75,382

 

37,769

 

22,473

 

9,430

 

4,886

 

 

373

 

 

Loss from operations

 

(59,383

)

(24,758

)

(14,641

)

(7,976

)

(4,886

)

 

(373

)

 

Interest income

 

7,974

 

3,353

 

605

 

74

 

17

 

 

2

 

 

Interest expense

 

(504

)

(257

)

(39

)

(43

)

 

 

 

 

Net loss

 

(51,913

)

(21,662

)

(14,075 )

 

(7,945

)

(4,869

)

 

(371

)

 

Deemed dividend related to beneficial conversion feature of Series C redeemable convertible preferred stock

 

 

 

(20,389 )

 

 

 

 

 

 

Dividends and accretion to redemption value of redeemable convertible preferred stock

 

 

 

(1,852

)

(1,898

)

(520

)

 

(22

)

 

Net loss attributable to common stockholders

 

$

(51,913

)

$

(21,662

)

$

(36,316

)

$

(9,843

)

$

(5,389

)

 

$

(393

)

 

Basic and diluted net loss per share attributable to common stockholders

 

$

(1.62

)

$

(0.79

)

$

(2.56 )

 

$

(5.02

)

$

(5.70

)

 

$

(6.74

)

 

Shares used in computing basic and diluted net loss per share attributable to common stockholders

 

32,103

 

27,283

 

14,177

 

1,961

 

946

 

 

58

 

 

 

 

 

 

As of December 31,

 

 

 

2006

 

2005

 

2004

 

2003

 

2002

 

2001

 

 

 

(In thousands)

 

Balance Sheet Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

 

$

22,351

 

 

$

25,890

 

$

11,678

 

$

4,613

 

$

1,471

 

$

181

 

Marketable securities

 

 

168,914

 

 

130,364

 

41,943

 

7,994

 

 

 

Working capital

 

 

185,299

 

 

155,661

 

54,154

 

13,044

 

633

 

(128

)

Total assets

 

 

216,385

 

 

171,101

 

64,330

 

16,084

 

2,500

 

184

 

Line of credit obligations—net of current portion

 

 

738

 

 

1,621

 

1,105

 

372

 

 

 

Capital lease obligations—net of current portion

 

 

3,998

 

 

1,375

 

 

 

 

 

Lease financing liability—net of current portion

 

 

2,321

 

 

 

 

 

 

 

Redeemable convertible preferred stock

 

 

 

 

 

 

27,225

 

6,427

 

22

 

Accumulated deficit

 

 

(125,519

)

 

(73,606

)

(51,944

)

(15,628

)

(5,785

)

(396

)

Total stockholders’ equity (deficit)

 

 

$

182,591

 

 

$

160,155

 

$

56,993

 

$

(13,779

)

$

(4,831

)

$

(148

)

 

47




Item 7.                         MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

Our Management’s Discussion and Analysis of Financial Condition and Results of Operations includes the identification of certain trends and other statements that may predict or anticipate future business or financial results. There are important factors that could cause our actual results to differ materially from those indicated. See “Risk Factors” in Item 1A of this Annual Report on Form 10-K.

Business Overview

We are a biotechnology company specializing in the detailed structural analysis of complex mixture  drugs. We apply our technology to the development of generic versions of complex drug products as well as to the discovery and development of novel drugs. Through detailed analysis of the molecular structure of complex sugars and other complex mixtures, we believe our proprietary technology enables us to define the specific sequences contained in complex drugs, including those structures that had previously not been described due to a lack of available technology. We apply our technology to the discovery and development of novel drugs through gaining a deeper understanding of the role of sugars in disease, such as the roles that complex sugars play in cellular function, disease and drug action based on our analytical capabilities. With our capabilities, we have developed a diversified pipeline of complex generic and novel drug candidates, as well as a novel drug discovery program.

Our business strategy is to apply our technology to develop generic versions of complex drugs, such as M-Enoxaparin and M356, to generate product revenue which will contribute to funding our novel drug discovery and development programs. Over the long term, we expect to generate additional value by leveraging our understanding of sugars to create novel therapeutics, which address critical unmet medical needs in a wide range of disease areas, including oncology, cardiovascular disease, infectious disease, inflammation and immunology.

Our most advanced product candidate, M-Enoxaparin, is designed to be a technology-enabled generic version of Lovenox ® , a widely prescribed low molecular weight heparin, or LMWH. In 2003, we formed a collaboration, the 2003 Sandoz Collaboration, with Sandoz N.V. and Sandoz Inc., collectively Sandoz, affiliates of Novartis AG, to jointly develop, manufacture and commercialize M-Enoxaparin. On August 29, 2005, Sandoz submitted an Abbreviated New Drug Application, or ANDA, to the FDA for M-Enoxaparin, which was amended in 2006 to include a paragraph IV certification stating that Sanofi-Aventis’ patents listed in the FDA’s listing of approved drug products, the Orange Book, for Lovenox are, among other things, invalid or unenforceable. In July 2006, we entered into a series of agreements with Novartis AG and Sandoz AG, including a Memorandum of Understanding, or MOU, with Sandoz AG, collectively referred to as the 2006 Sandoz Collaboration. Under the terms of the MOU, we expanded the geographic markets covered by our collaboration efforts related to M-Enoxaparin to include the European Union and further agreed to exclusively collaborate with Sandoz AG on the development and commercialization of three other biosimilar and complex generic products.

Since our inception in May 2001, we have incurred annual net losses. As of December 31, 2006, we had an accumulated deficit of $125.5 million. We recognized net losses of $51.9 million, $21.7 million and $14.1 million for the years ended December 31, 2006, 2005 and 2004, respectively. We expect to incur substantial and increasing losses for the next several years as we develop our product candidates, expand our research and development activities and prepare for the commercial launch of our product candidates. Additionally, we plan to continue to evaluate possible acquisitions or licensing of rights to additional technologies, products or assets that fit within our growth strategy. Accordingly, we will need to generate significant revenues to achieve and then maintain profitability.

Since our inception, we have had no revenues from product sales. Our revenues for the years ended December 31, 2006, 2005 and 2004 of $16.0 million, $13.0 million and $7.8 million, respectively, have been

48




derived from our 2003 Sandoz Collaboration and primarily consist of amounts earned by us for reimbursement by Sandoz of research and development services and development costs for M-Enoxaparin.  In June 2004, we completed an initial public offering of our common stock, the net proceeds of which were $35.3 million after deducting underwriters’ discounts and expenses. In July 2005, we raised $122.3 million in a follow-on public offering, net of expenses, from the sale and issuance of 4,827,300 shares of our common stock. In connection with the 2006 Sandoz Collaboration, the Company sold 4,708,679 shares of common stock to Novartis Pharma AG for an aggregate purchase price of $75.0 million. To date, we have devoted substantially all of our capital resources to the research and development of our product candidates.

The biotechnology and pharmaceutical industries in which we compete are undergoing, and are expected to continue to undergo, rapid and significant technological change. We expect competition to intensify as technological advances are made or new biotechnology products are introduced. To become and remain profitable, we must succeed in rapidly developing and commercializing drugs with significant market potential. This will require us to be successful in a range of challenging activities for which we are only in the preliminary stages: developing drugs; obtaining regulatory approval for them; and manufacturing, marketing and selling them. We have invested a significant portion of our time, financial resources and collaboration efforts in the development of our most advanced product candidate, M-Enoxaparin. Our successful development and commercialization of M-Enoxaparin, in collaboration with Sandoz, depends on several factors, including: using our technology to demonstrate successfully to the FDA that M-Enoxaparin is therapeutically equivalent to Lovenox; meeting any other FDA requirements for marketing approval;  successfully manufacturing M-Enoxaparin in a consistent, cost-effective and reproducible manner and at a commercial scale; achieving a favorable outcome in any patent litigation with Sanofi-Aventis relating to enoxaparin, or a third party achieving a favorable outcome in the pending patent litigation with Sanofi-Aventis; achieving market acceptance of M-Enoxaparin in the medical community and with third-party payors; and FDA approval of other generic versions of Lovenox.

Financial Operations Overview

Revenue

We have not yet generated any revenue from product sales and are uncertain whether or not we will generate any revenue from the sale of products over the next several years. We have recognized, in the aggregate, $38.3 million of revenue from our inception through December 31, 2006. This revenue was derived entirely from our 2003 Sandoz Collaboration. We will seek to generate revenue from a combination of research and development payments, profit sharing payments, milestone payments and royalties in connection with our 2003 Sandoz Collaboration and 2006 Sandoz Collaboration and similar future collaborative or strategic relationships. We expect that any revenue we generate will fluctuate from quarter to quarter as a result of the timing and amount of research and development and other payments received under our collaborative or strategic relationships, and the amount and timing of payments we receive upon the sale of our products, to the extent any are successfully commercialized.

Research and Development

Research and development expenses consist of costs incurred in identifying, developing and testing product candidates. These expenses consist primarily of salaries and related expenses for personnel, license fees, consulting fees, contract research and manufacturing, and the costs of laboratory equipment and facilities. We expense research and development costs as incurred.

The following summarizes our primary research and development programs:

49




Development Programs

M-Enoxaparin

Our most advanced product candidate, M-Enoxaparin, is designed to be a generic version of Lovenox. Lovenox is a widely-prescribed LMWH used for the prevention and treatment of deep vein thrombosis, or DVT, and to support the treatment of acute coronary syndromes, or ACS. Under our 2003 Sandoz Collaboration, we work with Sandoz exclusively to develop, manufacture and commercialize M-Enoxaparin in the U.S. and Sandoz is responsible for funding substantially all of the U.S.-related M-Enoxaparin development, regulatory, legal and commercialization costs. The total cost of development and commercialization, and the timing of M-Enoxaparin marketing, are subject to uncertainties relating to the development, regulatory approval and legal processes. In accordance with our 2003 Sandoz Collaboration, Sandoz submitted ANDAs to the FDA for M-Enoxaparin in syringe and vial forms seeking approval to market M-Enoxaparin in the United States. The syringe ANDA was subsequently amended in 2006 to include a paragraph IV certification stating that Sanofi-Aventis’ patents listed in the Orange Book for Lovenox are, among other things, invalid and unenforceable.

The FDA is currently reviewing the M-Enoxaparin ANDAs, including our manufacturing data and technology and characterization methodology. In parallel, and in collaboration with Sandoz, we are focused on activities related to supporting the FDA’s review of the ANDA and preparing for the commercialization of M-Enoxaparin, if and when approved, by advancing manufacturing, supply chain, and sales and marketing objectives.

Our 2006 Sandoz Collaboration expanded our collaboration efforts related to M-Enoxaparin to include the European Union. Under the 2006 Sandoz Collaboration, we will share certain development, regulatory, legal and commercialization costs as well as a portion of the profits, if any.

M118

M118 is a novel anticoagulant drug that was rationally designed with the goal of providing improved clinical anticoagulant properties to support the treatment of patients diagnosed with acute coronary syndromes, or ACS, and stable angina. We believe that M118 has the potential to provide baseline anticoagulant therapy to treat patients with ACS or stable angina who require a coronary intervention, as well as those ACS patients who are medically managed, or do not require intervention in order to treat their coronary attack. M118 is designed to be a reversible and monitorable anticoagulant that can be administered intravenously or subcutaneously, and has a pharmacokinetic profile similar to a LMWH. We believe that the properties of M118 have the potential to provide greater flexibility than other therapies presently used to treat patients diagnosed with ACS and stable angina.

In July 2006, we filed our Investigational New Drug Application, or IND, with the FDA for our M118 intravenous injection product, and in October 2006 began Phase I clinical trials.

M356

M356 is targeted to be a technology-enabled generic version of Copaxone ® , a complex drug consisting of a mixture of polypeptide chains. Copaxone is indicated for reduction of the frequency of relapses in patients with Relapse-Remitting Multiple Sclerosis. Multiple sclerosis is a chronic disease of the central nervous system characterized by inflammation and neurodegeneration. In North America, Copaxone is marketed through Teva Neuroscience LLC, a wholly owned subsidiary of Teva Pharmaceutical Industries Ltd., and distributed by Sanofi-Aventis. Teva and Sanofi-Aventis have an additional collaborative arrangement for the marketing of Copaxone in Europe and other markets, under which Copaxone is either co-promoted with Teva or is marketed solely by Sanofi-Aventis. Under our 2006 Sandoz Collaboration, we and Sandoz jointly develop, manufacture and commercialize M356. We are responsible for funding

50




substantially all of the U.S. related M356 development costs, with Sandoz responsible for regulatory, legal and commercialization costs. Outside of the U.S., we and Sandoz share equally the development costs, with Sandoz responsible for commercialization and legal costs.

Glycoproteins

Our glycoprotein program is focused on extending our technology for the analysis of complex sugars to glycoproteins. The goal of the program is to facilitate the development of generic or biosimilar versions of major marketed glycoprotein drugs. In addition, we believe we can assist pharmaceutical and biotechnology companies in developing improved versions of their branded glycoprotein products by analyzing and modifying the sugar structures contained in the products. Many glycoprotein drugs have been approved by the FDA under the Biological Licensing Application, or BLA, regulatory pathway. BLA-approved complex mixture products include glycoproteins such as erythropoietin, blood clotting factors and interferon beta.

These glycoprotein drugs contain branched sugars that vary from molecule to molecule. These sugars impart specific biological properties to the glycoprotein drug and can often comprise a significant portion of the mass of a molecule. However, many of these products have not been thoroughly characterized due to inadequacies of standard technology.

The goal of our glycoprotein program is to facilitate the development of generic or biosimilar versions of major marketed glycoprotein drugs. Under our 2006 Sandoz Collaboration, we are currently applying our technology to develop two follow-on proteins in partnership with Sandoz. We refer to these two product candidates as M178 and M249.

M-Dalteparin

M-Dalteparin is targeted to be a technology-enabled generic version of Fragmin ® , a LMWH product. Fragmin is indicated for the prevention of DVT and selected indications in ACS. In September 2005, Eisai Inc., a U.S. pharmaceutical subsidiary of Eisai Co. Ltd., obtained U.S. promotion rights to Fragmin from Pfizer Inc. Fragmin is marketed by Pfizer in Europe and by Kissei Pharmaceutical Co., Ltd. in Japan. Through our technology, we believe we have the ability to analyze Fragmin and develop a generic product has the same active ingredients as Fragmin. The M-Dalteparin program has been reprioritized in light of other more commercially attractive opportunities.

Discovery Program

We are also applying our analytical capabilities to drug discovery. Our discovery program is focused on the role that complex sugars play in biological systems, including regulating the development and progression of disease. Our initial focus is in the area of cancer, which is a disease characterized by unregulated cell growth, where we are seeking to discover sugar sequences with anti-cancer properties for development as therapeutics. Sugars play a part in the conversion of normal cells into cancerous cells, the regulation of tumor growth and tumor invasion and metastasis. We believe that our technology can provide us with a better understanding of the role of sugars in disease, enabling us to discover novel sugar therapeutics, as well as to discover new disease mechanisms that can be targeted with small molecule drugs. We previously were applying our technology to the pulmonary delivery of proteins. However, in order to focus our resources on our key programs, we discontinued our drug delivery program during 2006.

General and Administrative

General and administrative expenses consist primarily of salaries and other related costs for personnel in executive, finance, legal, accounting, investor relations, business development and human resource

51




functions. Other costs include facility and insurance costs not otherwise included in research and development expenses and professional fees and other expenses for legal and accounting services.

Results of Operations

Years Ended December 31, 2006, 2005 and 2004

Revenue

Revenue for 2006 was $16.0 million, compared with $13.0 million for 2005 and $7.8 million for 2004. The increase of $3.0 million from 2005 to 2006 and $5.2 million from 2004 to 2005 is entirely attributable to our 2003 Sandoz Collaboration. These revenues consist of amounts earned by us for payment by Sandoz of research and development services and reimbursement of development costs for M-Enoxaparin and amortization of the initial payment received under our 2003 Sandoz Collaboration. The increase in revenues was the result of increased reimbursable expenditures associated with preparing for the potential commercial launch of M-Enoxaparin in the U.S.

We have not recognized any revenue to date from the 2006 Sandoz Collaboration. We will commence amortization of the $13.6 million representing the excess of the purchase price of $15.93 per share of common stock purchased by Novartis Pharma AG over the closing price of $13.05 per share on July 24, 2006, the last trading day of our common stock before execution of the 2006 Sandoz Collaboration, as collaboration revenue when we can reasonably estimate the period of ongoing involvement or performance obligations under the 2006 Sandoz Collaboration. We expect to be able make such an estimate when a definitive collaboration and license agreement is executed with Sandoz AG.

Research and Development

Research and development expense for 2006 was $46.9 million, compared with $23.7 million in 2005 and $15.7 million in 2004. The increase of $23.2 million from 2005 to 2006 principally resulted from an increase of $6.0 million in manufacturing and process development costs and research conducted by third parties, $4.7 million in personnel and related costs, $3.7 million in stock-based compensation, of which $2.2 million is related to the adoption of SFAS 123R, $3.4 million in laboratory expenses, $2.6 million in facilities costs, $1.0 million in consultant costs and $0.9 million in depreciation expense. The increase of $8.0 million from 2004 to 2005 principally resulted from an increase of $2.8 million in personnel and related costs, $2.1 million in manufacturing and research provided by third parties, $1.6 million in facilities costs, and $0.8 million in consultant costs and $0.6 million in depreciation expense.

The lengthy process of securing FDA approvals for new drugs requires the expenditure of substantial resources. Any failure by us to obtain, or any delay in obtaining, regulatory approvals would materially adversely affect our product development efforts and our business overall. Accordingly, we cannot currently estimate, with any degree of certainty, the amount of time or money that we will be required to expend in the future on our product candidates prior to their regulatory approval, if such approval is ever granted. As a result of these uncertainties surrounding the timing and outcome of any approvals, we are currently unable to estimate when, if ever, our product candidates will generate revenues and cash flows. We expect future research and development expenses to increase in support of our product candidates.

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The following table summarizes the primary components of our research and development expenditures for our principal research and development programs for the years ended December 31, 2006, 2005, and 2004.

Research and Development Expense (in thousands)

 

 

 

2006

 

2005

 

2004

 

Development programs

 

$

36,648

 

$

16,606

 

$

12,391

 

Discovery programs

 

4,920

 

3,472

 

2,309

 

Other research

 

5,348

 

3,632

 

1,022

 

Total research and development expense

 

$

46,916

 

$

23,710

 

$

15,722

 

 

Our increase in expenditures on development programs of $20.0 million from 2005 to 2006 was primarily related to preclinical and toxicology work intended to support the M118 IND filing, commencement of our Phase I clinical studies for M118, manufacturing and professional fees related to our M-Enoxaparin program and the expenses of our M356 program. Our increase in expenditures on development programs of $4.2 million from 2004 to 2005 was primarily due the increased personnel and manufacturing costs of our M-Enoxaparin program. The increases in expenditures on our discovery programs from 2005 to 2006 and from 2004 to 2005 were primarily related to increased expenditures to support our disease biology and drug delivery programs. We discontinued our drug delivery program in 2006.

The increases in other research expense from 2005 to 2006 and from 2004 to 2005 were primarily due to an increase in headcount and headcount related costs relating to general technology development and support activities.

General and Administrative

General and administrative expense for the year ended December 31, 2006 was $28.5 million compared to $14.1 million in 2005 and $6.8 million in 2004. General and administrative expense increased by $14.4 million from 2005 to 2006 due primarily to an increase of $5.4 million in stock-based compensation, of which $3.9 million is related to the adoption of SFAS 123R, increases of $4.6 million in professional fees and other legal expenses and $3.8 million in personnel and related costs. General and administrative expense increased by $7.3 million from 2004 to 2005 due primarily to an increase of $4.1 million in professional fees, including legal, consulting, accounting and other professional fees, $2.3 million in personnel and related costs, $0.7 million in insurance and $0.2 million in office and computer supplies.

We anticipate additional increases in general and administrative expenses to support our research and development programs. These increases will likely include the hiring of additional personnel. We intend to continue to incur increased internal and external legal and business development costs to support our various product development efforts, which can vary from period to period.

53




Interest Income

Interest income was $8.0 million, $3.4 million and $0.6 million for the years ended December 31, 2006, 2005 and 2004, respectively. The increase of $4.6 million from 2005 to 2006 was primarily due to higher average investment balances as a result of the proceeds from the issuance of common stock to Novartis Pharma AG in September 2006 and from our follow-on public offering in July 2005. The increase of $2.8 million from 2004 to 2005 was primarily due to higher average investment balances as a result of the proceeds from our follow-on public offering in July 2005.

Interest Expense

Interest expense was $0.5 million, $0.3 million and $39,000 for the years ended December 31, 2006, 2005 and 2004, respectively. The increase of $0.2 million from 2005 to 2006 and $0.2 million from 2004 to 2005 is primarily due to additional amounts drawn from our equipment line of credit during 2005 and 2006.

Liquidity and Capital Resources

We have financed our operations since inception primarily through the sale of equity securities, payments from our 2003 Sandoz Collaboration, borrowings from our lines of credit, and capital lease obligations. Since our inception, we have received net proceeds of $45.4 million from the issuance of redeemable convertible preferred stock. In June 2004, we completed our initial public offering and raised net proceeds of $35.3 million. In July 2005, we completed a follow-on public offering and raised net proceeds of $122.3 million. In September 2006, we received net proceeds of $74.9 million from Novartis Pharma AG’s purchase of 4,708,679 shares of our common stock in connection with the 2006 Sandoz Collaboration. As of December 31, 2006, we have received a cumulative total of $37.7 million from our 2003 Sandoz Collaboration, $4.0 million from debt financing, $4.9 million from capital lease obligations, $3.2 million from our landlord for leasehold improvements related to our corporate facility, and additional funds from interest income.

At December 31, 2006, we had $191.3 million in cash, cash equivalents and marketable securities. In addition, we also hold $4.7 million in restricted cash, which serves as collateral for a letter of credit related to our facility leases. During the years ended December 31, 2006, 2005 and 2004, our operating activities used $25.2 million, $17.0 million and $12.6 million, respectively. The use of cash was primarily a result of net losses associated with our research and development activities and administrative costs.

Net cash used in investing activities was $46.3 million, $93.3 million and $37.2 million for the years ended December 31, 2006, 2005 and 2004, respectively. During 2006, we used $243.2 million of cash to purchase marketable securities, offset by cash provided of $206.6 million in maturities of marketable securities. During 2005, we used $151.6 million of cash to purchase marketable securities, offset by cash provided of $62.0 million in maturities of marketable securities. During 2004, we used $64.9 million of cash to purchase marketable securities, offset by cash provided of $29.8 million in maturities of marketable securities. During the years ended December 31, 2006, 2005 and 2004, we used $9.8 million, $3.7 million and $2.1 million respectively, to purchase laboratory equipment and leasehold improvements.

Net cash provided by financing activities for the year ended December 31, 2006 was $68.0 million. We received net proceeds of $74.9 million from the sale of 4,708,679 shares of common stock to Novartis Pharma AG of which $13.6 million is included in deferred revenue in our consolidated balance sheet as of December 31, 2006. Additionally, we borrowed $3.7 million on an equipment lease agreement entered into in December 2005, received $3.2 million in financing from our landlord for leasehold improvements related to our corporate facility, and received proceeds of $1.3 million from stock option exercises and purchases of common shares through our Employee Stock Purchase Plan, offset by principal payments of $1.3 million on our line of credit and lease agreement obligations and payments of $0.3 million on financed leasehold improvements. Net cash provided by financing activities for the year ended December 31, 2005

54




was $124.5 million. We received proceeds of $122.3 million from our secondary public offering of common stock in July 2005, $1.6 million from our line of credit obligation, $1.2 million from our equipment lease agreement entered into in December 2005, $0.3 million from stock option exercises, purchases of common shares through our Employee Stock Purchase Plan and a payment related to restricted stock. The total proceeds of $125.4 million were offset by $0.9 million in principal payments on our line of credit obligation. Net cash provided by financing activities for the year ended December 31, 2004 was $56.9 million. We received net proceeds of $35.3 million from our initial public offering of common stock in June 2004, net proceeds of $20.4 million from the issuance of our Series C redeemable convertible preferred stock and $1.4 million in borrowings from a line of credit with a bank. The total proceeds of $57.1 million were offset by $0.3 million in principal payments on our line of credit obligation.

The following table summarizes our contractual obligations and commercial commitments at December 31, 2006:

 

 

Payments
Due by Period

 

 

 

 

 

 

 

Contractual Obligations (in thousands)

 

 

 

Total

 

2007

 

2008
through
2010

 

2011
through
2012

 

After
2012

 

License maintenance obligations

 

$

1,095

 

$

113

 

$

547

 

 

$

435

 

 

 

*

 

 

Short and long-term line of credit obligation

 

1,621

 

883

 

738

 

 

 

 

 

$

 

 

Capital lease obligations

 

4,939

 

941

 

3,998

 

 

 

 

 

 

 

Operating lease obligations

 

19,912

 

4,448

 

13,921

 

 

1,543

 

 

 

 

 

Total contractual obligations

 

$

27,567

 

$

6,385

 

$

19,204

 

 

$

1,978

 

 

 

$

 

 


*                     After 2012, the annual obligations, which extend indefinitely, are approximately $0.2 million per year.

We anticipate that our current cash, cash equivalents and short-term investments will be sufficient to fund our operations through at least 2008. However, our forecast of the period of time through which our financial resources will be adequate to support our operations is a forward-looking statement that involves risks and uncertainties, and actual results could vary materially.

Critical Accounting Policies and Estimates

Our discussion and analysis of our financial condition and results of operations are based on our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. On an on-going basis, we evaluate our estimates and judgments, including those related to revenue, accrued expenses and certain equity instruments. Prior to our initial public offering, we also evaluated our estimates and judgments regarding the fair valuation assigned to our common stock. We base our estimates on historical experience, known trends and events and various other factors that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources. Actual results may differ from these estimates under different assumptions or conditions.

We believe the following critical accounting policies affect our more significant judgments and estimates used in the preparation of our financial statements.

Revenue

We record revenue on an accrual basis as it is earned and when amounts are considered collectible. Revenues received in advance of performance obligations or in cases where we have a continuing

55




obligation to perform services are deferred and recognized over the performance period. Revenues from milestone payments that represent the culmination of a separate earnings process are recorded when the milestone is achieved. Contract revenues are recorded as the services are performed. When we are required to defer revenue, the period over which such revenue should be recognized is subject to estimates by management and may change over the course of the collaborative agreement.

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 then estimating the level of service performed and the associated cost incurred for such service as of each balance sheet date in our financial statements. Examples of estimated expenses for which we accrue include contract service fees paid to contract manufacturers in conjunction with the production of clinical drug supplies and to contract research organizations. In connection with such service fees, our estimates are most affected by our understanding of the status and timing of services provided relative to the actual levels of services incurred by such service providers. The majority of our service providers invoice us monthly in arrears for services performed. In the event that we do not identify certain costs, which have begun to be incurred, or we under- or over-estimate the level of services performed or the costs of such services, our reported expenses for such period would be too low or too high. The date on which certain services commence, the level of services performed on or before a given date and the cost of such services are often determined based on subjective judgments. We make these judgments based upon the facts and circumstances known to us in accordance with generally accepted accounting principles.

Stock-Based Compensation

We adopted Statement of Financial Accounting Standards, or SFAS, No. 123 (revised 2004), “ Share Based Payment ,” (SFAS 123R), effective January 1, 2006 under the modified prospective transition method. SFAS 123R requires the recognition of the fair value of stock-based compensation expense in our operations, and accordingly the adoption of SFAS No. 123R fair value method has had and will continue to have a significant impact on our results of operations, although it will have no impact on our overall financial position. Option valuation models require the input of highly subjective assumptions, including stock price volatility and expected term of an option. Changes in market price directly affect volatility and could cause future stock-based compensation expense to vary significantly in future reporting periods. The adoption of SFAS 123R on January 1, 2006 resulted in the recognition of stock-based compensation expense of $6.1 million for the year ended December 31, 2006. At December 31, 2006, the total unrecognized compensation cost related to non-vested stock options was $14.6 million. The cost is expected to be recognized over a weighted average period of 2.8 years.

Due to our limited historical share options exercise data and the characteristics of our share options, we follow the simplified method of estimating the expected term, as described in the U.S. Securities and Exchange Commission, or SEC, issued Staff Accounting Bulletin No. 107, Share-Based Payments, or SAB 107. The expected term is derived from the average midpoint between vesting and the contractual term. Upon adoption of SFAS 123R, we validated our estimates and assumptions used in the Black-Scholes model with an independent third party having the relevant expertise in valuation methodologies. We update these assumptions on a quarterly basis to reflect recent historical data. Additionally, we are required to estimate forfeiture rates to estimate the number of shares that will vest in a period to which the fair value is applied.

Prior to January 1, 2006, we accounted for employee stock options under the recognition and measurement provisions of Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees , or APB 25, and provided pro forma disclosures of net loss attributable and net loss per share allocable to common stockholders as if we had adopted the fair value based method of accounting in

56




accordance with SFAS No. 123,   Accounting for Stock-Based Compensation , or SFAS 123, as amended by SFAS No. 148,   Accounting for Stock-Based Compensation—Transition and Disclosure—an amendment of FASB Statement No. 123,   or SFAS 148.

Recently Issued Accounting Pronouncements

In June 2006, the FASB issued FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes—An Interpretation of FASB Statement No. 109 , or FIN 48, which clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements in accordance with FASB Statement No. 109, Accounting for Income Taxes . FIN 48 prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return and provides guidance on derecognition, classification, interest and penalties, accounting in interim periods, disclosure and transition. FIN 48 will be effective for fiscal years beginning after December 15, 2006. The Company has not yet completed its evaluation of the impact of adoption, but does not currently believe that adoption will have a material impact on its results of operations, financial position or cash flows.

In September 2006, the SEC issued Staff Accounting Bulletin No. 108, Considering the Effects of Prior Year Misstatements W hen Quantifying Misstatements in Current Year Financial Statements , or SAB 108. SAB 108 was issued in order to eliminate the diversity in practice surrounding how public companies quantify financial statement misstatements. SAB 108 requires that registrants quantify errors using both a balance sheet and income statement approach and evaluate whether either approach results in a misstated amount that, when all relevant quantitative and qualitative factors are considered, is material. SAB 108 must be implemented by the end of our fiscal year 2007.  We do not currently believe that the adoption of this standard will result in a material effect on our financial position or results of operations.

In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements , or SFAS 157. SFAS 157 provides a common definition of fair value and establishes a framework to make measurement of fair value in generally accepted accounting principles more consistent and comparable. SFAS 157 also requires expanded disclosures to provide information about the extent to which fair value is used to measure assets and liabilities, the methods and the assumptions used to measure fair value, and the effect of fair value measures on earnings. SFAS 157 will be effective for our 2008 fiscal year, although early adoption is permitted. We are currently assessing the potential effect of SFAS 157 on our consolidated financial statements.

Item 7A.                 QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

We are exposed to market risk related to changes in interest rates. Our current investment policy is to maintain an investment portfolio consisting mainly of U.S. money market and high-grade corporate securities, directly or through managed funds, with maturities of twenty-four months or less. Our cash is deposited in and invested through highly rated financial institutions in North America. Our marketable securities are subject to interest rate risk and will fall in value if market interest rates increase. However, due to the conservative nature of our investments and relatively short effective maturities of debt instruments, interest rate risk is mitigated. If market interest rates were to increase immediately and uniformly by 10% from levels at December 31, 2006 or 2005, we estimate that the fair value of our investment portfolio would decline by an immaterial amount. We do not own derivative financial instruments in our investment portfolio. Accordingly, we do not believe that there is any material market risk exposure with respect to derivative, foreign currency or other financial instruments that would require disclosure under this item.

57




Item 8.                         FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

Momenta Pharmaceuticals, Inc.
Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of Momenta Pharmaceuticals, Inc.

We have audited the accompanying consolidated balance sheets of Momenta Pharmaceuticals, Inc. as of December 31, 2006 and 2005, and the related consolidated statements of operations, redeemable convertible preferred stock, stockholders’ equity (deficit) and comprehensive income (loss) and cash flows for each of the three years in the period ended December 31, 2006. 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 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. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Momenta Pharmaceuticals, Inc. at December 31, 2006 and 2005, and the consolidated results of its operations and its cash flows for each of the three years in the period ended December 31, 2006, in conformity with U.S. generally accepted accounting principles.

As discussed in Note 2 to the consolidated financial statements, effective January 1, 2006, the Company adopted Statement of Accounting Standards No. 123R, “Share-Based Payments” using the modified prospective transition method.

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the effectiveness of Momenta Pharmaceuticals, Inc.’s internal control over financial reporting as of December 31, 2006, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated March 12, 2007 expressed an unqualified opinion thereon.

 

/s/ ERNST & YOUNG LLP

Boston, Massachusetts

 

 

March 12, 2007

 

 

 

58




Momenta Pharmaceuticals, Inc.
Consolidated Balance Sheets

 

 

December 31,

 

 

 

2006

 

2005

 

 

 

(In thousands,
except per share amounts)

 

Assets

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

22,351

 

$

25,890

 

Marketable securities

 

168,914

 

130,364

 

Unbilled collaboration revenue

 

4,727

 

4,347

 

Prepaid expenses and other current assets

 

2,069

 

2,799

 

Total current assets

 

198,061

 

163,400

 

Property and equipment, net of accumulated depreciation

 

13,603

 

5,917

 

Restricted cash

 

4,685

 

1,778

 

Other assets

 

36

 

6

 

Total assets

 

$

216,385

 

$

171,101

 

Liabilities and Stockholders’ Equity

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Accounts payable

 

$

4,311

 

$

3,080

 

Accrued expenses

 

5,786

 

3,355

 

Deferred revenue

 

123

 

147

 

Line of credit obligations

 

883

 

845

 

Capital lease obligations

 

941

 

284

 

Lease financing liability

 

596

 

 

Deferred rent

 

122

 

28

 

Total current liabilities

 

12,762

 

7,739

 

Deferred revenue, net of current portion

 

13,552

 

123

 

Line of credit obligations, net of current portion

 

738

 

1,621

 

Capital lease obligations, net of current portion

 

3,998

 

1,375

 

Lease financing liability, net of current portion

 

2,321

 

 

Deferred rent, net of current portion

 

423

 

88

 

Total liabilities

 

33,794

 

10,946

 

Commitments and contingencies (Note 13)

 

 

 

 

 

Stockholders’ Equity:

 

 

 

 

 

Preferred stock, $0.01 par value; 5,000 shares authorized at December 31, 2006 and 2005, 100 shares of Series A Junior Participating Preferred Stock, $0.01 par value designated and no shares issued and outstanding

 

 

 

Common stock, $0.0001 par value; 100,000 shares authorized at December 31, 2006 and 2005, 36,098 and 30,465 shares issued and outstanding at December 31, 2006 and 2005, respectively

 

4

 

3

 

Additional paid-in capital

 

308,061

 

236,190

 

Deferred compensation

 

 

(2,193

)

Accumulated other comprehensive income (loss)

 

45

 

(239

)

Accumulated deficit

 

(125,519

)

(73,606

)

Total stockholders’ equity

 

182,591

 

160,155

 

Total liabilities and stockholders’ equity

 

$

216,385

 

$

171,101

 

 

The accompanying notes are an integral part of these consolidated financial statements.

59




Momenta Pharmaceuticals, Inc.
Consolidated Statements of Operations

 

 

Year Ended December 31,

 

 

 

2006

 

2005

 

2004

 

 

 

(In thousands,
except per share amounts)

 

Collaboration revenue

 

$

15,999

 

$

13,011

 

$

7,832

 

Operating expenses:

 

 

 

 

 

 

 

Research and development*

 

46,916

 

23,710

 

15,722

 

General and administrative*

 

28,466

 

14,059

 

6,751

 

Total operating expenses

 

75,382

 

37,769

 

22,473

 

Loss from operations

 

(59,383

)

(24,758

)

(14,641

)

Other income (expense):

 

 

 

 

 

 

 

Interest income

 

7,974

 

3,353

 

605

 

Interest expense

 

(504

)

(257

)

(39

)

Net loss

 

$

(51,913

)

$

(21,662

)

$

(14,075

)

Deemed dividend related to beneficial conversion feature of Series C redeemable convertible preferred stock

 

 

 

(20,389

)

Dividends and accretion to redemption value of redeemable convertible preferred stock

 

 

 

(1,852

)

Net loss attributable to common stockholders

 

$

(51,913

)

$

(21,662

)

$

(36,316

)

Basic and diluted net loss per share attributable to common stockholders

 

$

(1.62

)

$

(0.79

)

$

(2.56

)

Shares used in computing basic and diluted net loss per share attributable to common stockholders

 

32,103

 

27,283

 

14,177

 

*  Includes stock-based compensation as follows:

 

 

 

 

 

 

 

Research and development

 

$

4,367

 

$

634

 

$

875

 

General and administrative

 

7,035

 

1,659

 

1,145

 

Total stock-based compensation

 

$

11,402

 

$

2,293

 

$

2,020

 

 

The accompanying notes are an integral part of these consolidated financial statements.

60




Momenta Pharmaceuticals, Inc.

CONSOLIDATED STATEMENTS OF REDEEMABLE CONVERTIBLE PREFERRED STOCK,

STOCKHOLDERS’ EQUITY (DEFICIT) AND COMPREHENSIVE INCOME (LOSS)

In thousands

 

 

Redeemable

 

 

 

 

 

 

 

 

 

Accumulated

 

 

 

 

 

 

 

 

 

 

 

Convertible

 

 

 

 

 

 

 

 

 

Other

 

 

 

 

 

 

 

Total

 

 

 

Preferred Stock

 

 

 

Common Stock

 

Additional

 

Comprehensive

 

Due

 

Deferred

 

 

 

Stockholders’

 

 

 

 

 

 

 

 

 

Par

 

Paid-In

 

Income

 

from

 

Stock

 

Accumulated

 

Equity

 

 

 

Shares

 

Amount

 

 

 

Shares

 

Value

 

Capital

 

(Loss)

 

Officer

 

Compensation

 

Deficit

 

(Deficit)

 

Balances at December 31, 2003

 

9,117

 

$ 27,225

 

 

 

4,163

 

 

$ —

 

 

 

$   4,960

 

 

 

$        (6

)

 

 

$ (71

)

 

 

$ (3,034

)

 

 

$ (15,628

)

 

 

$ (13,779

)

 

Sale of Series C Redeemable Convertible Preferred Stock, net of offering costs of $110

 

2,613

 

20,390

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accretion of Preferred Stock to redemption value

 

 

37

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(37

)

 

 

(37

)

 

Preferred Stock dividends

 

 

1,815

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1,815

)

 

 

(1,815

)

 

Proceeds from redeemable preferred stock allocated to beneficial conversion feature

 

 

 

 

 

 

 

 

 

 

20,389

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

20,389

 

 

Dividend on redeemable preferred stock attributable to beneficial conversion feature

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(20,389

)

 

 

(20,389

)

 

Conversion of redeemable convertible preferred stock to common stock

 

(11,730

)

(49,467

)

 

 

15,014

 

 

2

 

 

 

49,465

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

49,467

 

 

Issuance of common stock in Initial Public Offering

 

 

 

 

 

6,153

 

 

1

 

 

 

35,296

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

35,297

 

 

Issuance of common stock pursuant to the exercise of stock options

 

 

 

 

 

67

 

 

 

 

 

27

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

27

 

 

Payment of officer obligation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

35

 

 

 

 

 

 

 

 

 

35

 

 

Deferred stock compensation expense associated with stock options

 

 

 

 

 

 

 

 

 

 

1,714

 

 

 

 

 

 

 

 

 

(1,714

)

 

 

 

 

 

 

 

Amortization of deferred stock compensation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,367

 

 

 

 

 

 

1,367

 

 

Compensation expense associated with options issued to nonemployees

 

 

 

 

 

 

 

 

 

 

221

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

221

 

 

Compensation expense associated with accelerated vesting of employee options

 

 

 

 

 

 

 

 

 

 

432

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

432

 

 

Vesting of restricted stock

 

 

 

 

 

 

 

 

 

 

6

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6

 

 

Cashless exercise of warrant

 

 

 

 

 

12

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Unrealized loss on marketable securities

 

 

 

 

 

 

 

 

 

 

 

 

 

(153

)

 

 

 

 

 

 

 

 

 

 

 

(153

)

 

Net loss

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(14,075

)

 

 

(14,075

)

 

Comprehensive loss

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(14,228

)

 

Balances at December 31, 2004

 

 

$         —

 

 

 

25,409

 

 

$ 3

 

 

 

$ 112,510

 

 

 

$   (159

)

 

 

$ (36

)

 

 

$ (3,381

)

 

 

$ (51,944

)

 

 

$ 56,993

 

 

Issuance of common stock in follow-on public offering

 

 

 

 

 

4,827

 

 

 

 

 

122,327

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

122,327

 

 

Issuance of common stock pursuant to the exercise of stock options and employee stock purchase plan

 

 

 

 

 

229

 

 

 

 

 

248

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

248

 

 

Payment of officer obligation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

36

 

 

 

 

 

 

 

 

 

36

 

 

Deferred stock compensation expense associated with stock options

 

 

 

 

 

 

 

 

 

 

213

 

 

 

 

 

 

 

 

 

(213

)

 

 

 

 

 

 

 

Amortization of deferred stock compensation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,401

 

 

 

 

 

 

1,401

 

 

Compensation expense associated with options issued to nonemployees

 

 

 

 

 

 

 

 

 

 

783

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

783

 

 

Compensation expense associated with the modification of stock options

 

 

 

 

 

 

 

 

 

 

109

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

109

 

 

Unrealized loss on marketable securities

 

 

 

 

 

 

 

 

 

 

 

 

 

(80

)

 

 

 

 

 

 

 

 

 

 

 

(80

)

 

Net loss

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(21,662

)

 

 

(21,662

)

 

 

61




Momenta Pharmaceuticals, Inc.

CONSOLIDATED STATEMENTS OF REDEEMABLE CONVERTIBLE PREFERRED STOCK,

STOCKHOLDERS’ EQUITY (DEFICIT) AND COMPREHENSIVE INCOME (LOSS) (Continued)

In thousands

 

 

Redeemable

 

 

 

 

 

 

 

 

 

Accumulated

 

 

 

 

 

 

 

 

 

 

 

Convertible

 

 

 

 

 

 

 

 

 

Other

 

 

 

 

 

 

 

Total

 

 

 

Preferred Stock

 

 

 

Common Stock

 

Additional

 

Comprehensive

 

Due

 

Deferred

 

 

 

Stockholders’

 

 

 

 

 

 

 

 

 

Par

 

Paid-In

 

Income

 

from

 

Stock

 

Accumulated

 

Equity

 

 

 

Shares

 

Amount

 

 

 

Shares

 

Value

 

Capital

 

(Loss)

 

Officer

 

Compensation

 

Deficit

 

(Deficit)

 

Comprehensive loss

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(21,742

)

 

Balances at December 31, 2005

 

 

 

 

 

$ —

 

 

 

 

30,465

 

 

$ 3

 

 

 

$ 236,190

 

 

 

$ (239

)

 

 

$ —

 

 

 

$ (2,193

)

 

 

$ (73,606

)

 

 

$ 160,155

 

 

Issuance of common stock to Sandoz

 

 

 

 

 

 

 

 

 

4,709

 

 

1

 

 

 

61,383

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

61,384

 

 

Issuance of common stock pursuant to the exercise of stock options and employee stock purchase plan

 

 

 

 

 

 

 

 

 

379

 

 

 

 

 

1,279

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,279

 

 

Issuance of restricted stock

 

 

 

 

 

 

 

 

 

745

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cancellation of restricted stock

 

 

 

 

 

 

 

 

 

(200

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Reclassification of unearned compensation on non-vested share awards upon adoption of SFAS 123R

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(2,193

)

 

 

 

 

 

 

 

 

2,193

 

 

 

 

 

 

 

 

Stock-based compensation expense for employees

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11,130

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

11,130

 

 

Stock-based compensation expense for non-employees

 

 

 

 

 

 

 

 

 

 

 

 

 

 

272

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

272

 

 

Unrealized gain on marketable securities

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

284

 

 

 

 

 

 

 

 

 

 

 

 

284

 

 

Net loss

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(51,913

)

 

 

(51,913

)

 

Comprehensive loss

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(51,629

)

 

Balances at December 31, 2006

 

 

 

 

 

$ —

 

 

 

 

36,098

 

 

$ 4

 

 

 

$ 308,061

 

 

 

$   45

 

 

 

$ —

 

 

 

$       —

 

 

 

$ (125,519

)

 

 

$ 182,591

 

 

 

The accompanying notes are an integral part of these consolidated financial statements

62




Momenta Pharmaceuticals, Inc.
Consolidated Statements of Cash Flows

 

 

Year Ended December 31,

 

 

 

2006

 

2005

 

2004

 

 

 

(In Thousands)

 

Cash Flows from Operating activities:

 

 

 

 

 

 

 

Net loss

 

$

(51,913

)

$

(21,662

)

$

(14,075

)

Adjustments to reconcile net loss to net cash used in operating activities:

 

 

 

 

 

 

 

Depreciation and amortization

 

1,947

 

967

 

526

 

Stock-based compensation expense

 

11,402

 

2,293

 

2,020

 

Noncash interest expense

 

 

10

 

11

 

Loss on disposal of assets

 

147

 

62

 

 

(Accretion of discount)/amortization of premium on investments

 

(1,702

)

1,050

 

1,015

 

Changes in operating assets and liabilities:

 

 

 

 

 

 

 

Accounts receivable

 

 

2,238

 

(2,238

)

Unbilled collaboration revenue

 

(380

)

(1,546

)

(783

)

Prepaid expenses and other current assets

 

730

 

(1,442

)

(1,194

)

Restricted cash

 

(2,907

)

(293

)

(1,485

)

Other assets

 

(30

)

 

74

 

Accounts payable

 

1,231

 

(409

)

2,685

 

Accrued expenses

 

2,431

 

1,744

 

1,040

 

Deferred rent

 

429

 

116

 

 

Deferred revenue

 

13,405

 

(147

)

(147

)

Net cash used in operating activities

 

(25,210

)

(17,019

)

(12,551

)

Cash Flows from Investing activities:

 

 

 

 

 

 

 

Purchases of marketable securities

 

(243,176

)

(151,554

)

(64,921

)

Proceeds from maturities of marketable securities

 

206,612

 

62,003

 

29,804

 

Purchase of property and equipment

 

(9,780

)

(3,726

)

(2,132

)

Net cash used in investing activities

 

(46,344

)

(93,277

)

(37,249

)

Cash Flows from Financing activities:

 

 

 

 

 

 

 

Proceeds from public offering of common stock, net of issuance costs

 

 

122,327

 

35,297

 

Proceeds from issuance of redeemable convertible preferred stock, net of issuance costs

 

 

 

20,389

 

Proceeds from issuance of common stock to Sandoz, net of issuance costs

 

61,384

 

 

 

Proceeds from issuance of common stock under stock plans

 

1,279

 

248

 

27

 

Proceeds from financing of leasehold improvements

 

3,199

 

 

 

Payments on financed leasehold improvements

 

(282

)

 

 

Proceeds from line of credit

 

 

1,551

 

1,448

 

Principal payments on line of credit

 

(845

)

(896

)

(331

)

Proceeds from capital lease obligations

 

3,735

 

1,242

 

 

Principal payments on capital lease obligations

 

(455

)

 

 

Payment of officer obligation

 

 

36

 

35

 

Net cash provided by financing activities

 

68,015

 

124,508

 

56,865

 

Increase (decrease) in cash and cash equivalents

 

(3,539

)

14,212

 

7,065

 

Cash and cash equivalents, beginning of period

 

25,890

 

11,678

 

4,613

 

Cash and cash equivalents, end of period

 

$

22,351

 

$

25,890

 

$

11,678

 

Supplemental Cash Flow Information:

 

 

 

 

 

 

 

Cash paid for interest

 

$

504

 

$

163

 

$

28

 

Non Cash Transactions:

 

 

 

 

 

 

 

Acquisition of assets under capital lease

 

$

 

$

398

 

$

 

 

The accompanying notes are an integral part of these consolidated financial statements.

63




Momenta Pharmaceuticals, Inc.
Notes to Consolidated Financial Statements December 31, 2006

1.    The Company

Business

Momenta Pharmaceuticals, Inc. (the “Company”) was incorporated in the state of Delaware on May 17, 2001. Its facilities are located in Cambridge, Massachusetts. Momenta is a biotechnology company specializing in the detailed structural analysis of complex mixture drugs, applying its technology to the development of generic or biosimilar versions of complex drug products as well as to the discovery and development of novel drugs.

2.    Summary of Significant Accounting Policies

Principles of Consolidation

The Company’s consolidated financial statements include the Company’s accounts and the accounts of the Company’s wholly-owned subsidiary, Momenta Pharmaceuticals Securities Corporation. All intercompany transactions have been eliminated.

Reclassifications

Certain prior year amounts in collaboration revenue and research and development expenses of the consolidated statements of operations have been reclassified to conform to the current year presentation. This reclassification was determined not to be material to the Company’s consolidated financial statements and has no impact on previously reported net loss attributable to common stockholders or accumulated deficit.

Certain prior year amounts in the reconciliation of federal statutory income tax provision to the Company’s actual provision have been reclassified to conform to the current year presentation.

Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ materially from those estimates.

Cash, Cash Equivalents, and Marketable Securities

The Company invests its excess cash in bank deposits, money market accounts, corporate debt securities and U.S. government obligations. The Company considers all highly liquid investments purchased with maturities of three months or less from the date of purchase to be cash equivalents. Cash equivalents are carried at fair value, which approximates cost, and primarily consist of money market funds maintained at major U.S. financial institutions. All marketable securities, which primarily represent marketable debt securities, have been classified as “available-for-sale.” Purchased premiums or discounts on debt securities are amortized to interest income through the stated maturities of the debt securities. Management determines the appropriate classification of its investments in debt securities at the time of purchase and evaluates such designation as of each balance sheet date. Unrealized gains and losses are included in accumulated other comprehensive income (loss) and reported as a separate component of stockholders’ equity. Realized gains and losses and declines in value judged to be other-than-temporary, if

64




any, on available-for-sale securities are included in interest income. The cost of securities sold is based on the specific identification method. Interest earned on marketable securities is included in interest income.

Credit Risks and Concentrations

Financial instruments that potentially subject the Company to a concentration of credit risk consist of cash and cash equivalents and marketable securities. The Company has established guidelines relating to diversification and maturities that allow the Company to manage risk.

Fair Value of Financial Instruments

The carrying amounts of the Company’s financial instruments, which include cash equivalents and other accrued expenses, approximate their fair values due to their short maturities. The carrying amount of the Company’s line of credit and capital lease obligations approximate their fair values due to their variable interest rates.

Unbilled Collaboration Revenue

Unbilled collaboration revenue represents amounts owed from one collaborative partner at December 31, 2006 and December 31, 2005. The Company has not recorded any allowance for uncollectible accounts or bad debt write-offs and it monitors its receivables to facilitate timely payment.

Property and Equipment

Property and equipment are stated at cost. Costs of major additions and betterments are capitalized; maintenance and repairs, which do not improve or extend the life of the respective assets are charged to expense. Upon disposal, the related cost and accumulated depreciation or amortization is removed from the accounts and any resulting gain or loss is included in the results of operations. Depreciation is computed using the straight-line method over the estimated useful lives of the assets, which range from three to seven years. Leased assets meeting certain capital lease criteria are capitalized and the present value of the related lease payments is recorded as a liability. Assets under capital lease arrangements are depreciated using the straight-line method over their estimated useful lives. Leasehold improvements are amortized over the estimated useful lives of the assets or related lease terms, whichever is shorter.

Long-Lived Assets

The Company evaluates the recoverability of its property and equipment when circumstances indicate that an event of impairment may have occurred in accordance with the provisions of Statement of Financial Accounting Standards (“SFAS”) No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets , or SFAS 144. SFAS 144 further refines the requirements of SFAS No. 121, Accounting for the Impairment of Long-Lived Assets and Long-Lived Assets to be Disposed of , such that companies (1) recognize an impairment loss only if the carrying amount of a long-lived asset is not recoverable based on its undiscounted future cash flows and (2) measure an impairment loss as the difference between the carrying amount and fair value of the asset. Impairment is measured based on the difference between the carrying value of the related assets or businesses and the undiscounted future cash flows of such assets or businesses. In addition, SFAS 144 provides guidance on accounting and disclosure issues surrounding long-lived assets to be disposed of by sale. No impairment charges have been required to be recognized through December 31, 2006.

Revenue Recognition

The Company uses revenue recognition criteria outlined in Staff Accounting Bulletin (“SAB”) No. 104, Revenue Recognition , and Emerging Issues Task Force (“EITF”) Issue 00-21, Revenue

65




Arrangements with Multiple Deliverables , or EITF 00-21. Accordingly, revenues from licensing agreements with multiple deliverables are divided into separate units of accounting based upon the criteria of EITF 00-21 and are recognized based on the performance requirements of the agreement. Non-refundable, up-front fees where the Company has an ongoing involvement or performance obligation are recorded as deferred revenue in the consolidated balance sheet and amortized into collaboration revenue in the consolidated statement of operations over the term of the performance obligation if it can be determined. Revenues from research and development services and expenses with stand alone value are recognized in the period the services are performed and the reimbursable costs are incurred, net of any amounts due to the collaborative partner for costs incurred during the period for shared development costs.

Research and Development

Research and development costs are expensed as incurred. Research and development costs include wages, benefits, facility and other research-related overhead expenses, as well as license fees and contracted research and development activities.

Stock-Based Compensation

The Company’s 2002 Stock Incentive Plan, as amended, provides for the granting of stock options to purchase the Company’s common stock and awards of restricted stock to employees, officers, directors, consultants and advisors. Options granted under the 2002 Stock Incentive Plan may be incentive stock options or nonstatutory stock options under the applicable provisions of the Internal Revenue Code. Since the effective date of the 2004 Stock Incentive Plan, as amended (described below), the Company no longer grants options under the 2002 Stock Incentive Plan. Any authorized and ungranted shares and unvested shares granted under the 2002 Stock Incentive Plan that are returned to the Company as a result of terminations will subsequently lapse.

Pursuant to the terms of the Company’s 2004 Stock Incentive Plan, as amended, (the “Incentive Plan”), at December 31, 2006 the Company was authorized to issue up to 3,948,785 shares of common stock with annual increases (to be added on the first day of the Company’s fiscal years during the period beginning in fiscal year 2005 and ending on the second day of fiscal year 2013) equal to the lowest of (i) 1,974,393 shares, (ii) 5% of the then outstanding number of common shares or (iii) such other amount as the Board of Directors may authorize. The Company’s Board of Directors elected not to increase the number of authorized shares related to the Incentive Plan for 2005 and 2006. The Company’s Board of Directors increased the number of authorized shares by 1,802,053 effective January 1, 2007.

Incentive stock options are granted only to employees of the Company. Incentive stock options granted to employees who own more than 10% of the total combined voting power of all classes of stock will be granted at no less than 110% of the fair market value of the Company’s common stock on the date of grant. Non-statutory stock options may be granted to employees, officers, directors, consultants and advisors. Incentive stock options generally vest ratably over four years. Non-statutory stock options granted have varying vesting schedules. The options generally expire ten years after the date of grant.

The unvested shares held by consultants have been and will be revalued using the Company’s estimate of fair value at each balance sheet date pursuant to EITF Issue No. 96-18, Accounting for Equity Instruments That Are Issued to Other Than Employees for Acquiring, or in Conjunction with Selling, Goods or Services. The charge to operations is recorded in accordance with FASB Interpretation No. 28, “ Accounting for Stock Appreciation Rights and Other Variable Stock Option or Award Plans .”

Effective January 1, 2006, the Company adopted the fair value recognition provisions of SFAS No. 123R, Share-Based Payment (“SFAS 123R”) using the modified prospective method. Under that method, stock-based compensation expense recognized during the year ended December 31, 2006 includes: (a) compensation cost for all share-based payments granted prior to, but not yet vested as of

66




January 1, 2006, based on the grant date fair value estimated in accordance with the original provisions of SFAS 123, Accounting for Stock-Based Compensation (“SFAS No. 123”) and (b) compensation cost for all share-based payments granted subsequent to January 1, 2006, based on the grant date fair value estimated in accordance with the provisions of SFAS 123R. In accordance with SFAS 123R, the estimated grant date fair value of each stock-based award is recognized as expense on a ratable basis over the requisite service period (generally the vesting period). Results for prior periods have not been restated.

Prior to January 1, 2006, the Company accounted for stock based compensation plans under the recognition and measurement provisions of Accounting Principles Board Opinion No. 25, Accounting for Stock Issued to Employees , or APB 25, and related interpretations, as permitted by SFAS 123. In accordance with APB 25, cost for stock-based compensation was recognized as expense based on the excess, if any, of the quoted market price of the stock at the grant date of the award or other measurement date over the amount an employee must pay to acquire the stock. In prior years, certain grants of stock options and stock awards were made at exercise prices deemed to be less than the fair value of the Company’s common stock and, as a result, the Company recorded stock-based compensation expense. Non-vested share awards were recorded as compensation cost over the requisite service periods based on the market value on the date of grant.

The following table illustrates the effect on fiscal year 2005 and 2004 net loss attributable to common stockholders and net loss per share allocable to common stockholders if the Company had applied the fair value recognition provisions of SFAS 123 to options granted under the Company’s stock option plans.

 

 

2005

 

2004

 

 

 

(in thousands, except per share data)

 

Net loss attributable to common stockholders as reported

 

$ (21,662

)

$ (36,316

)

Add: Stock-based employee compensation expense included in reported net loss attributable to common stockholders

 

1,510

 

1,799

 

Deduct: Total stock-based employee compensation expense determined under fair value method for all awards

 

(3,119

)

(1,148

)

Pro forma net loss

 

$ (23,271

)

$ (35,665

)

Basic and diluted net loss per share allocable to common stockholders:

 

 

 

 

 

As reported

 

$   (0.79

)

$   (2.56

)

Pro forma net loss

 

$   (0.85

)

$   (2.52

)

 

For purposes of this pro forma disclosure, the value of the options is estimated using the Black-Scholes-Merton option-pricing formula and amortized to expense on a straight-lined basis over the options’ vesting periods using the following assumptions:

 

 

2005

 

2004

 

Expected volatility

 

 

80

%

 

 

80

%

 

Expected dividends

 

 

 

 

 

 

 

Expected term (in years)

 

 

6

 

 

 

7

 

 

Risk-free interest rate

 

 

4.0

%

 

 

3.7

%

 

 

Income Taxes

The Company accounts for income taxes under SFAS No. 109, Accounting for Income Taxes . Under this method, deferred tax assets and liabilities are determined based on the differences between the financial reporting and tax bases of assets and liabilities and are measured using the enacted tax rates that will be in effect when the differences are expected to reverse. A valuation allowance is recorded when it is more likely than not that the deferred tax asset will not be recovered.

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Comprehensive Income (Loss)

The Company reports comprehensive income (loss) in accordance with SFAS No. 130, Reporting Comprehensive Income , or SFAS 130. SFAS 130 establishes rules for the reporting and display of comprehensive income (loss) and its components. Accumulated other comprehensive income (loss) as of December 31, 2006 and December 31, 2005 consists entirely of unrealized gains and losses on available-for-sale securities. Comprehensive loss for the years ended December 31, 2006, 2005 and 2004 was $51.6 million, $21.7 million and $14.2 million, respectively.

Net Loss Per Share

The Company computes net loss per share in accordance with SFAS No. 128, Earnings per Share, or SFAS 128. Under the provisions of SFAS 128, basic net loss per common share is computed by dividing net loss available to common stockholders by the weighted-average number of common shares outstanding during the reporting period. Diluted net loss per common share is computed by dividing net loss available to common stockholders by the weighted-average number of common shares and dilutive common share equivalents then outstanding. Potential common stock equivalent shares consist of the incremental common shares issuable upon the conversion of preferred stock, shares issuable upon the exercise of stock options and upon the exercise of warrants. Since the Company has a net loss for all periods presented, the effect of all potentially dilutive securities is antidilutive. Accordingly, basic and diluted net loss per share is the same. The total number of shares excluded from the calculations of historical diluted net loss per share, due to their antidilutive effect, was 3,273,386, 1,783,611 and 1,334,575 for the years ended December 31, 2006, 2005 and 2004, respectively.

Segment Reporting

The Company has adopted SFAS No. 131, Disclosure About Segments of an Enterprise and Related Information , which requires companies to report selected information about operating segments, as well as enterprise-wide disclosures about products, services, geographical areas, and major customers. Operating segments are determined based on the way management organizes its business for making operating decisions and assessing performance. The Company has only one operating segment, the discovery, development and commercialization of drug products. All of the Company’s revenues through December 31, 2006 have come from one collaborative partner.

Redeemable Convertible Preferred Stock

In connection with the closing of the Company’s initial public offering in the second quarter of 2004, all shares of redeemable convertible preferred stock were converted to common stock. Prior to the Company’s initial public offering, the carrying value of redeemable convertible preferred stock was increased by periodic accretions so that the carrying amount would equal the redemption value at the redemption date. These accretions were effected through charges against accumulated deficit. The holders of redeemable convertible preferred stock were entitled to dividends at 10% per annum through their redemption date, payable only upon redemption.

Recently Issued Accounting Pronouncements

In June 2006, the FASB issued FASB Interpretation No. 48, Accounting for Uncertainty in Income Taxes—An Interpretation of FASB Statement No. 109 , or FIN 48, which clarifies the accounting for uncertainty in income taxes recognized in an enterprise’s financial statements in accordance with FASB Statement No. 109, Accounting for Income Taxes . FIN 48 prescribes a recognition threshold and measurement attribute for the financial statement recognition and measurement of a tax position taken or expected to be taken in a tax return and provides guidance on derecognition, classification, interest and

68




penalties, accounting in interim periods, disclosure and transition. FIN 48 will be effective for fiscal years beginning after December 15, 2006. The Company has not yet completed its evaluation of the impact of adoption, but does not currently believe that adoption will have a material impact on its results of operations, financial position or cash flows.

In September 2006, the U.S. Securities and Exchange Commission (SEC) staff issued Staff Accounting Bulletin No. 108, Considering the Effects of Prior Year Misstatements When Quantifying Misstatements in Current Year Financial Statements , or SAB 108. SAB 108 was issued in order to eliminate the diversity in practice surrounding how public companies quantify financial statement misstatements. SAB 108 requires that registrants quantify errors using both a balance sheet and income statement approach and evaluate whether either approach results in a misstated amount that, when all relevant quantitative and qualitative factors are considered, is material. SAB 108 must be implemented by the end of the Company’s fiscal year 2007. The Company does not currently believe that the adoption of this standard will result in a material effect on its financial position or results of operations.

In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements , or SFAS 157. SFAS 157 provides a common definition of fair value and establishes a framework to make measurement of fair value in generally accepted accounting principles more consistent and comparable. SFAS 157 also requires expanded disclosures to provide information about the extent to which fair value is used to measure assets and liabilities, the methods and the assumptions used to measure fair value, and the effect of fair value measures on earnings. SFAS 157 is effective for the Company’s 2008 fiscal year, although early adoption is permitted. The Company is currently assessing the potential effect of SFAS 157 on its financial statements.

3.    Stock-Based Compensation

Total stock-based compensation for all share-based payment arrangements for the years ended December 31, 2006, 2005 and 2004 was $11.4 million, $2.3 million and $2.0 million, respectively. The increase in 2006 is primarily attributable to the adoption of SFAS 123R in the first quarter of 2006 using the modified prospective transition method. The adoption of SFAS 123R on January 1, 2006 resulted in the recognition of stock-based compensation expense of $6.1 million for the year ended December 31, 2006, an increase in net loss attributable to common stockholders of $6.1 million and an increase in basic and diluted net loss per share allocable to common stockholders of $0.19 per share. The Company additionally reclassified its unearned compensation on non-vested share awards of $2.2 million at January 1, 2006 to additional paid-in capital.

In accordance with SFAS 123R, the fair value of each option award was estimated on the date of grant using the Black-Scholes-Merton option-pricing model that uses the assumptions noted in the table below. Because of the Company’s limited history as a publicly-traded company, to estimate expected volatility the Company used a 50/50 blend of its own historic and implied volatility and an average of historic and implied volatilities of similar entities. For purposes of identifying similar entities, the Company considered characteristics such as industry, stage of life cycle and financial leverage. The expected term of options granted is derived from the average midpoint between vesting and the contractual term, as described in SAB No. 107, Share-Based Payment . In the future, as information regarding post-vesting termination becomes more accessible, the Company will change its method of deriving the expected term. This change could impact the Company’s fair value of options granted in the future. The Company expects to refine its method of deriving expected term no later than January 1, 2008. The risk-free interest rate for the expected term of the option is based on the U.S. Treasury yield curve in effect at the time of grant.

In addition, the Company applies an expected forfeiture rate when amortizing stock-based compensation expense. The Company’s estimate of the forfeiture rate is based primarily upon annualized pre-vest termination rates. Pre-vest termination rates are calculated monthly by dividing the total number of options that were both unvested at the beginning of the month and that were cancelled by the total

69




number of options that were unvested at the beginning of the month. These monthly rates are averaged and then annualized.

The Company estimated fair values using the following weighted average assumptions during fiscal 2006:

 

 

2006

 

Expected volatility

 

 

72

%

 

Expected dividends

 

 

 

 

Expected term (in years)

 

 

6

 

 

Risk-free interest rate

 

 

4.8

%

 

 

The following table summarizes all stock option plan activity for the year ended December 31, 2006:

 

 

Number of

 

Weighted

 

Weighted

 

Aggregate

 

 

 

Stock

 

average

 

average

 

Intrinsic

 

 

 

Options

 

exercise

 

remaining

 

Value

 

 

 

(in thousands)

 

price

 

life in years

 

(in thousands)

 

Outstanding at January 1, 2006

 

 

1,969

 

 

 

$ 7.63

 

 

 

 

 

 

 

 

 

 

Granted

 

 

1,252

 

 

 

17.16

 

 

 

 

 

 

 

 

 

 

Exercised

 

 

(345

)

 

 

2.81

 

 

 

 

 

 

 

 

 

 

Forfeited

 

 

(146

)

 

 

11.91

 

 

 

 

 

 

 

 

 

 

Outstanding at December 31, 2006

 

 

2,730

 

 

 

12.38

 

 

 

8.24

 

 

 

$ 13,426

 

 

Exercisable at December 31, 2006

 

 

1,126

 

 

 

$ 8.45

 

 

 

7.47

 

 

 

$ 9,332

 

 

Vested or expected to vest at December 31, 2006

 

 

2,518

 

 

 

$ 12.06

 

 

 

8.18

 

 

 

$ 13,069

 

 

 

The weighted average grant date fair value of options granted during the years ended December 31, 2006, 2005 and 2004 was $11.50, $10.54 and $4.35 per option, respectively. The total intrinsic value of options exercised during the years ended December 31, 2006, 2005 and 2004 was $4.9 million $3.5 million and $0.8 million, respectively. At December 31, 2006, the total unrecognized compensation cost related to non-vested stock options was $14.6 million. The cost is expected to be recognized over a weighted average period of 2.8 years. The fair value of shares vested during the years ended December 31, 2006, 2005 and 2004 was $7.0 million, $1.5 million and $0.1 million, respectively.

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Cash received from option exercises for the years ended December 31, 2006, 2005 and 2004 was $1.0 million, $0.2 million and $27,000, respectively. Due to the Company’s net loss position, the tax benefit related to the tax deductions from option exercises was not realized in any of the periods presented.

Restricted Stock Grants

During 2002, the Company entered into Restricted Stock Purchase Agreements with two officers and a non-employee to purchase an aggregate of 1,101,870 shares of common stock. Pursuant to one of the Restricted Stock Purchase Agreements, 980,859 shares of common stock were sold to an officer for $106,662. The purchase price was payable ratably over approximately three years with the final payment made during the first quarter of 2005. Each Restricted Stock Purchase Agreement provided for the repurchase of the common stock by the Company at a price equal to the original price paid, adjustable for certain dilutive events, until the shares vested. The repurchase provisions generally lapsed over a three to four year period provided that each recipient subject to such agreements continued service with the Company. At December 31, 2006 and 2005, there were no shares and 64,967 shares, respectively, of unvested restricted common stock outstanding under these agreements.

On March 7, 2006, the Company entered into Restricted Stock Purchase Agreements with certain executive officers and an employee to purchase an aggregate of 630,000 shares of common stock. Each of these restricted stock grants was made under the Incentive Plan, with the following vesting provisions: (i) one half of the shares of common stock vest and become free from forfeiture provisions and transfer restrictions on the fourth anniversary of the grant date (i.e., March 7, 2010) and (ii) one half of the shares of common stock vest and become free from forfeiture provisions and transfer restrictions upon the commercial launch of M-Enoxaparin in the United States by the Company (or any of the Company’s partners or collaborators), provided that such commercial launch occurs on or before March 7, 2011. In each case, the shares of common stock issued pursuant to each restricted stock agreement described above will only vest if the recipient is an employee of the Company as of the applicable vesting date. The fair value of the restricted stock for the agreements entered into during 2006 is the market price of common stock at the date of grant, which is amortized to compensation expense ratably over the explicit and implicit service periods. Concurrent with the resignation of an executive officer in September 2006, 200,000 of the 630,000 shares of common stock described above were forfeited and $1.0 million of stock-based compensation expense previously recorded on the forfeited shares was reversed.

On August 22, 2006, the Company entered into a Restricted Stock Purchase Agreement with an executive officer to purchase 100,000 shares of common stock. This restricted stock grant was made under the Incentive Plan and will vest and become free from forfeiture on the fourth anniversary of the grant date, subject to acceleration if the executive officer’s employment with the Company terminates under certain circumstances, provided that the recipient is an employee of the Company as of the vesting date. The fair value of the restricted common stock for this agreement is the market price of common stock at the date of grant, which is amortized to compensation expense ratably over the explicit service period. Under the terms of the Employment Agreement dated August 22, 2006 executed with this executive officer, the Company agreed to issue 175,000 shares of restricted common stock on or about January 1, 2007. On January 17, 2007 this award was granted under the Incentive Plan and will vest and become free from forfeiture upon fulfillment of certain performance conditions. The fair value of the restricted common stock for this agreement is the market price of the common stock at the date of the employment agreement, which is amortized to compensation expense ratably over the performance period.

On December 15, 2006, the Company entered into a Restricted Stock Purchase Agreement with an officer to purchase 15,000 shares of common stock. This restricted stock grant was made under the Incentive Plan, with the following vesting provisions: (i) 25% of the shares of common stock vest and become free from forfeiture provisions and transfer restrictions on December 15, 2007 and (ii) an additional 6.25% of the shares of common stock vest and become free from forfeiture provisions and

71




transfer restrictions at the end of each three-month period from December 15, 2007 through December 15, 2010. The fair value of the restricted common stock for this agreement is the market price of the common stock at the date of grant, which is amortized to compensation expense ratably over the explicit service period.

Changes in the Company’s restricted stock for the year ended December 31, 2006 were as follows:

 

 

Restricted
 Shares

 

Weighted-average
 grant date
 fair value

 

 

 

(in thousands)

 

 

 

Non-vested restricted stock at January 1, 2006

 

 

65

 

 

 

$

1.87

 

 

Granted

 

 

745

 

 

 

22.49

 

 

Forfeited

 

 

(200

)

 

 

23.62

 

 

Vested

 

 

(65

)

 

 

1.87

 

 

Non-vested restricted stock at December 31, 2006

 

 

545

 

 

 

$

22.07

 

 

 

The Company recorded stock-based compensation expense of $5.0 million, $0.4 million and $0.4 million related to outstanding restricted stock grants during the years ended December 31, 2006, 2005 and 2004, respectively. As of December 31, 2006, there was $8.1 million of unrecognized compensation cost related to non-vested restricted stock arrangements. The cost is expected to be recognized over a weighted average period of 2.3 years. The total fair value of shares that vested during the years ended December 31, 2006, 2005 and 2004 was zero, $0.4 million and $0.4 million, respectively.

Common Stock Options Issued to Consultants

As of December 31, 2006, the Company had granted options to purchase 154,162 shares of common stock to consultants, 48,800 of which the Company granted to two individuals who are members of the Board of Directors, and an option to purchase 4,562 shares of common stock to a member of the Board of Directors who previously provided consulting services to the Company. Of the total options granted, 25,598 were exercised and not subject to repurchase and 22,868 were unvested. These options were granted in exchange for consulting services to be rendered and vest over periods of up to four years. The Company recorded a charge to operations for stock options granted to consultants, using the graded-vesting method, of $0.3 million, $0.8 million and $0.2 million during the years ended December 31, 2006, 2005 and 2004, respectively. The fair value of the options is estimated on the date of grant and subsequently revalued at each reporting period using the Black-Scholes Merton option pricing model and assumptions including an expected life ranging from three to ten years, volatility of approximately 68% to 75% and risk free interest rates ranging from 3.5 to 5.1%.

Employee Stock Purchase Plan

The Company’s 2004 Employee Stock Purchase Plan (the “Purchase Plan”) became effective on June 25, 2004, the closing date of the Company’s initial public offering. Under the Purchase Plan, participating employees purchase common stock through payroll deductions. An employee may withdraw from an offering before the purchase date and obtain a refund of the amounts withheld through payroll deductions. The purchase price is equal to 85% of the lower of the closing price of the Company’s common stock on the first business day and the last business day of the relevant plan period. The first plan period began on June 25, 2004 and ended on January 31, 2005. The second plan period began on February 1, 2005 and ended on January 31, 2006 (the “2005 Offering”). In February 2006, the Purchase Plan was amended to provide for two 6-month plan periods, the first plan period from February 1, 2006 through July 31, 2006 (the “First 2006 Offering”) and the second from August 1, 2006 through January 31, 2007 (“the Second 2006 Offering”).

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The purchase price for the 2005 Offering was $5.85 and 23,057 shares of common stock were issued in January 2006 under the Purchase Plan. The purchase price for the First 2006 Offering was $14.73 and 11,770 shares of common stock were issued in July 2006 under the Purchase Plan. The purchase price for the Second 2006 Offering was $14.20 and 15,001 shares of common stock were issued in January 2007 under the Purchase Plan. During the year ended December 31, 2006, the Company recorded stock-based compensation expense of approximately $0.2 million related to the 2005 Offering and the First and Second 2006 Offerings.

The fair value of the offerings was estimated on the date of grant using the Black-Scholes-Merton option-pricing model that uses the assumptions noted in the following table. The risk-free interest rate is based on the U.S. Treasury yield curve in effect at the time of grant.

 

 

Second
 2006

 

First
 2006

 

2005

 

 

 

Offering

 

Offering

 

Offering

 

Risk-free interest rate

 

5.2

%

4.6

%

 

2.9

%

 

Expected volatility

 

68

%

73

%

 

80

%

 

Expected life

 

6 months

 

6 months

 

 

1 year

 

 

Expected dividend

 

 

 

 

 

 

 

The weighted average grant date fair value of the offerings during 2006, 2005 and 2004 was $6.27, $14.95 and $2.85, respectively.

4. Collaborations and License Agreements

Sandoz

In November 2003, the Company entered into a collaboration and license agreement (the “2003 Sandoz Collaboration”) with Sandoz N.V. and Sandoz Inc. (“Sandoz”) to jointly develop and commercialize M-Enoxaparin, a generic version of Lovenox, a low molecular weight heparin. Under the terms of this agreement, the Company and Sandoz agreed to exclusively work with each other to develop and commercialize M-Enoxaparin for medical indications within the United States.

Under this collaboration, Sandoz makes certain payments to the Company. As mutually agreed, the Company provides, and Sandoz pays the Company, for full-time equivalent scientific, technical and/or management work. Sandoz is also responsible for funding substantially all of the other ongoing development and commercialization costs and legal expenses incurred with respect to injectable enoxaparin, subject to termination rights upon reaching agreed upon limits. In addition, Sandoz will, in the event there are no third party competitors marketing a Lovenox-Equivalent Product (as defined in the agreement) share profits with the Company. Alternatively, in certain circumstances, if there are third party competitors marketing a Lovenox-Equivalent Product, Sandoz will pay royalties to the Company on net sales of injectable enoxaparin. If certain milestones are achieved with respect to injectable enoxaparin under certain circumstances, Sandoz will make certain milestone payments to the Company, which would reach $55.0 million if all such milestones are achieved. A portion of the development expenses and certain legal expenses, which in the aggregate have exceeded a specified amount will be offset against the profit-sharing amounts, the royalties and the milestone payments. Sandoz may also offset a portion of any product liability costs and certain other expenses arising from patent litigation against any profit-sharing amounts, royalties and milestone payments.

Revenues associated with the Company’s 2003 Sandoz Collaboration include an initial payment, reimbursement of development services and expenses, and potential future milestones, profit share payments and royalties. The initial payment represented reimbursement of specific development costs incurred prior to the date of the collaboration and is being recognized over the period of the Company’s

73




substantial involvement. Amounts earned under the collaboration agreement are not refundable if the research or development is unsuccessful. To date, the Company has not earned any milestones or royalties under the 2003 Sandoz Collaboration.

In July 2006, the Company entered into a series of agreements, including a Stock Purchase Agreement and an Investor Rights Agreement (each with Novartis Pharma AG), and a Memorandum of Understanding (“MOU”) with Sandoz AG (an affiliate of Novartis Pharma AG) (collectively referred to as the “2006 Sandoz Collaboration”). In connection with the 2006 Sandoz Collaboration, the Company sold 4,708,679 shares of common stock (the “Shares”) to Novartis Pharma AG for an aggregate purchase price of $75.0 million.

Pursuant to the terms of the Investor Rights Agreement, Novartis Pharma AG is entitled to “piggyback” and demand registration rights with respect to the Shares, and has agreed until the earliest of (i) the termination of the MOU (or, if later entered into, a collaboration and license agreement between the parties), (ii) the Termination Date (as defined in the Investor Rights Agreement) and (iii) 24 months from the date of the closing of the purchase of the Shares, not to acquire any additional voting securities of the Company (other than an acquisition resulting in Novartis Pharma AG and its affiliates beneficially owning no greater than 13% of the Company’s total outstanding voting securities) nor make any public proposal for any merger, business combination or other extraordinary transaction or seek to control or influence the Company’s management, Board or policies.

Under the terms of the MOU, the Company will exclusively collaborate with Sandoz AG on the development and commercialization of four follow-on and complex generic products for sale in specified regions of the world. Each party has granted the other an exclusive license under its intellectual property rights to develop and commercialize such products for all medical indications in the relevant regions. Costs will be borne by the parties in varying proportions, depending on the type of expense and the product. The Company is also eligible to receive up to $188 million in milestone payments if all milestones are achieved for the four product candidates. The parties will share profits from the sale of such products in varying proportions, depending on the product, with the Company receiving fifty percent of the profits with respect to its M356 product, a technology-enabled generic version of Copaxone®, which is a complex mixture drug indicated for reduction of the frequency of relapses in patients with Relapse-Remitting Multiple Sclerosis. Sandoz AG will indemnify the Company for various claims, and a certain portion of such indemnification costs may be offset against certain future payments received by the Company. In addition, the Company and Sandoz AG may negotiate additional collaboration agreements with respect to other mutually selected products and the Company has granted Sandoz AG the right to negotiate expanded territories for certain products already part of the collaboration.

Among other termination rights, the following termination rights apply to some of the products, on a product-by-product basis:  (i) if clinical trials are required, (ii) at Sandoz AG’s convenience within a certain time period or (iii) if Sandoz AG decides to permanently cease development and commercialization of a product.  The parties are negotiating the terms of a definitive collaboration and license agreement. The terms of the MOU will remain in effect until such an agreement is executed; however, the MOU is binding in the absence of such agreement.

At December 31, 2006, the Company has recorded deferred revenue of $13.6 million representing the excess of the purchase price of $15.93 per Share purchased by Novartis Pharma AG over the closing price of $13.05 per common share (the “Premium”) on July 24, 2006, the last trading day of the Company’s common stock before execution of the 2006 Sandoz Collaboration. The Company will commence amortization of the Premium as collaboration revenue when it can reasonably estimate the period of ongoing involvement or performance obligations under the 2006 Sandoz Collaboration. The Company expects to be able make such an estimate when a definitive collaboration and license agreement is executed with Sandoz AG.

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Massachusetts Institute of Technology

The Company has two patent license agreements with the Massachusetts Institute of Technology (“M.I.T.”) that grant the Company various exclusive and nonexclusive worldwide licenses, with the right to grant sublicenses, under certain patents and patent applications relating to methods and technologies for analyzing and characterizing sugars and certain heparins, heparinases and other enzymes and synthesis methods. Subject to typical retained rights of M.I.T. and the United States government, the Company was granted exclusive rights under certain of these patents and applications in certain fields.

In exchange for these rights, the Company paid M.I.T. a license issue fee, and pays annual license maintenance fees. The Company, upon commercialization, is also required to pay M.I.T. royalties on products and services covered by the licenses and sold by the Company or its affiliates or sublicensees, a percentage of certain other income received by the Company from corporate partners and sublicensees, and certain patent prosecution and maintenance costs. M.I.T. and certain contributing individuals were also issued shares of the Company’s common stock. The Company recorded $487,500, $82,500 and $117,500 related to these agreements in the years ended December 31, 2006, 2005 and 2004, respectively.

The Company must meet certain diligence requirements in order to maintain its licenses under the two agreements. Under the agreements, the Company must expend at least $1.0 to $1.2 million per year commencing in 2005 towards the research, development and commercialization of products and processes covered by the agreements. In addition, the Company is obligated to make first commercial sales and meet certain minimum sales thresholds of products or processes including, under the amended and restated agreement, a first commercial sale of a product or process no later than June 2013 and minimal sales of products thereafter, ranging from $0.5 million to $5.0 million annually. If the Company fails to meet its diligence obligations, M.I.T. may, as its sole remedy, convert the exclusive licenses granted to the Company under the amended and restated license agreement to non-exclusive licenses. Under the license agreement covering sequencing machines, M.I.T. has the right to treat the Company’s failure to fulfill its diligence obligations as a material breach of the license agreement.

If, due to the Company’s failure to meet diligence obligations, M.I.T. converts certain of the Company’s exclusive licenses to non-exclusive, or if M.I.T. terminates one of the agreements, M.I.T. will honor the exclusive nature of the sublicense the Company granted to Sandoz so long as Sandoz both continues to fulfill its obligations to the Company under the 2003 Sandoz Collaboration and license agreement and agrees to assume the Company’s rights and obligations to M.I.T.

The Regents of the University of California through the Ernest Orlando Lawrence Berkeley National Laboratory

In November 2002, the Company entered into an agreement with The Regents of the University of California through the Ernest Orlando Lawrence Berkeley National Laboratory (“Lawrence Berkeley National Lab”) under which the Company licensed certain patents and applications covering the metabolic synthesis of sugars and glycoconjugates and were granted an exclusive license, with the right to grant sublicenses, for the synthesis, production or modification of sugars and glycoconjugates in or on biological molecules for purposes of researching, developing and commercializing products, services and processes for all human therapeutic applications, excluding the sale of research reagents. This agreement was subsequently amended as the Company elected to retain the license under the broad field.

In connection with this agreement, the Company paid certain license fees and minimum royalties and recorded $30,000, $130,000 and $10,000 as research and development expense in the years ended December 31, 2006, 2005 and 2004, respectively. License fees include $100,000 expensed and paid to Lawrence Berkeley National Lab in 2005 for the election to retain the broader field. The Company is also required to pay Lawrence Berkeley National Lab earned royalties on products, services and processes covered by the license and sold by it or its affiliates or sublicensees, a percentage of certain other income received by the Company from its sublicensees, and patent prosecution and maintenance costs. To the

75




extent that earned royalties in any given year do not meet certain threshold amounts, the Company is required to make annual minimum royalty payments to Lawrence Berkeley National Lab, ranging from $30,000 to $60,000, in order to maintain the license. The research and development expenses include $30,000, $30,000 and $10,000 in annual minimum royalties that the Company paid and recorded as expense during the years ended December 31, 2006, 2005 and 2004, respectively.

In order for the Company to retain its license, the Company must expend at least $1.0 million per year towards the research, development and commercialization of products covered by the agreement. If the Company fails to do so, Lawrence Berkeley National Lab may renegotiate the milestones, terminate the agreement or convert the exclusive license to a non-exclusive license. In order to maintain the broad field, the Company is required to and did expend an additional amount during 2005 and 2006 towards the research, development and commercialization of products and processes covered by the license.

5. Cash, Cash Equivalents, and Marketable Securities

The following is a summary of cash, cash equivalents, and marketable securities as of December 31, 2006 and 2005 (in thousands):

December 31, 2006

 

 

 

Cost

 

Gross
Unrealized
Gains

 

Gross
Unrealized
Losses

 

Fair Value

 

Cash and money market funds

 

$

19,444

 

 

$

 

 

 

$

 

 

$

19,444

 

Corporate debt securities due in one year or less

 

171,776

 

 

58

 

 

 

(13

)

 

171,821

 

Total

 

$

191,220

 

 

$

58

 

 

 

$

(13

)

 

$

191,265

 

Reported as:

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

22,351

 

 

$

 

 

 

$

 

 

$

22,351

 

Marketable securities

 

168,869

 

 

58

 

 

 

(13

)

 

168,914

 

Total

 

$

191,220

 

 

$

58

 

 

 

$

(13

)

 

$

191,265

 

 

December 31, 2005

 

 

 

Cost

 

Gross
Unrealized
Gains

 

Gross
Unrealized
Losses

 

Fair Value

 

Cash and money market funds

 

$

14,412

 

 

$

 

 

 

$

 

 

$

14,412

 

Corporate debt securities due in one year or less

 

142,081

 

 

5

 

 

 

(244

)

 

141,842

 

Total

 

$

156,493

 

 

$

5

 

 

 

$

(244

)

 

$

156,254

 

Reported as:

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

25,891

 

 

$

 

 

 

$

(1

)

 

$

25,890

 

Marketable securities

 

130,602

 

 

5

 

 

 

(243

)

 

130,364

 

Total

 

$

156,493

 

 

$

5

 

 

 

$

(244

)

 

$

156,254

 

 

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The following table summarizes the aggregate fair value of corporate debt securities in an unrealized loss position for less than and greater than one year at December 31, 2006 and 2005. The Company reviews its investments for other than temporary impairment whenever the fair value of an investment is less than the amortized cost and evidence indicates that an investment’s carrying value is not recoverable within a reasonable period of time. At December 31, 2006 and 2005, there were four and 59 marketable securities in an unrealized loss position, respectively. Investments in an unrealized loss position at December 31, 2006 and 2005 were caused by fluctuations in interest rates. The Company reviewed its investments with unrealized losses and has concluded that no other-than-temporary impairment existed at December 31, 2006 and 2005 as the Company has the ability and intent to hold these investments to maturity. The Company had no realized gains or losses during the years ended December 31, 2006, 2005 or 2004.

(in thousands)

 

2006

 

2005

 

 

 

Aggregate
Fair Value

 

Unrealized 
Losses

 

Aggregate
Fair Value

 

Unrealized 
Losses

 

Corporate debt securities due in one year or less

 

 

$

18,676

 

 

 

$

(13

)

 

$

118,658

 

 

$

(222

)

 

Corporate debt securities due greater than one year

 

 

 

 

 

 

 

7,753

 

 

(22

)

 

Total

 

 

$

18,676

 

 

 

$

(13

)

 

$

126,411

 

 

$

(244

)

 

 

6. Property and Equipment

At December 31, 2006 and 2005, property and equipment, net consists of the following (in thousands):

 

 

2006

 

2005

 

Depreciable
Lives

 

Computer equipment

 

$

171

 

$

498

 

3 years

 

Software

 

935

 

270

 

3 years

 

Office furniture and equipment

 

920

 

496

 

5 to 6 years

 

Laboratory equipment

 

4,991

 

3,915

 

7 years

 

Leasehold improvements

 

4,022

 

401

 

Shorter of asset life or lease term

 

Equipment purchased under capital lease obligations

 

5,570

 

1,656

 

3 to 7 years

 

Less: accumulated depreciation

 

(3,006

)

(1,319

)

 

 

 

 

$

13,603

 

$

5,917

 

 

 

 

Depreciation and amortization expense, including amortization of assets recorded under capital leases, amounted to $1.9 million, $1.0 million, and $0.5 million for the years ended December 31, 2006, 2005 and 2004, respectively.

7. Restricted Cash

In September 2004, $1.5 million of the Company’s cash was designated as collateral for a letter of credit related to the lease of office and laboratory space. This balance will remain restricted during the 80-month lease term and the Company will continue to earn interest on the balance. In December 2005, this balance was increased to $1.8 million due to an increase in leased space.

In October 2006, an additional $2.9 million of the Company’s cash was designated as collateral for a letter of credit related to the lease of office and laboratory space. This balance will remain restricted during the 55-month lease term and the Company will continue to earn interest on the balance.

77




8. Accrued Expenses

At December 31, 2006 and 2005, accrued expenses consisted of the following (in thousands):

 

 

2006

 

2005

 

Accrued compensation

 

$

2,661

 

$

1,552

 

Accrued contracted research costs

 

2,152

 

911

 

Accrued professional fees

 

680

 

629

 

Other

 

293

 

263

 

 

 

$

5,786

 

$

3,355

 

 

9. Preferred Stock

Series C Redeemable Convertible Preferred Stock

In February 2004, the Company sold 2,612,696 shares of Series C redeemable convertible preferred stock for net proceeds of $20.4 million. These shares contained a beneficial conversion feature based on the fair value of the Company’s common stock at the date of such sale compared to the Series C redeemable convertible preferred stock share price. For financial accounting purposes, the total value of the beneficial conversion feature of approximately $20.4 million was recognized as a dividend in the first quarter of 2004.

On June 25, 2004, the Company completed an initial public offering of its common stock. In connection with the closing of its initial public offering, each share of the Company’s redeemable convertible preferred stock was converted into that number of shares of common stock that resulted from dividing $1.00, $1.7067, $2.87, $2.95 and $7.8463 for the Series A Preferred, the Series A Prime Preferred, the Series A Double Prime Preferred, the Series B Preferred and the Series C Preferred, respectively, by the then-applicable conversion price for each series of preferred stock in effect at the time of conversion which was $0.78, $1.33, $2.24, $2.31 and $6.13 for the Series A Preferred, the Series A Prime Preferred, the Series A Double Prime, the Series B Preferred and the Series C Preferred, respectively. In the aggregate, 15,014,415 shares of common stock were issued in connection with such conversion.

Shareholders’ Rights Agreement

Effective November 7, 2005, the Board of Directors of the Company declared a dividend of one right (collectively, the “Rights”) to buy one one-thousandth of a share of newly designated Series A Junior Participating Preferred Stock (“Series A Junior Preferred Stock”) for each outstanding share of the Company’s common stock to stockholders of record at the close of business on November 18, 2005. Initially, the Rights are not exercisable and will be attached to all certificates representing outstanding shares of common stock, and no separate Rights Certificates will be distributed. The Rights will expire at the close of business on November 6, 2008 unless earlier redeemed or exchanged. Until a right is exercised, the holder thereof, as such, will have no rights as a stockholder of the Company, including the right to vote or to receive dividends. The rights are not immediately exercisable. Subject to the terms and conditions of the Rights Agreement entered into by the Company with American Stock Transfer & Trust Company, as Rights Agent (the “Rights Agreement”), the Rights will become exercisable upon the earlier of (1) 10 business days following the later of (a) the first date of a public announcement that a person or group (an “Acquiring Person”) acquires, or obtained the right to acquire, beneficial ownership of 20 percent or more of the outstanding shares of common stock of the Company or (b) the first date on which an executive officer of the Company has actual knowledge that an Acquiring Person has become such or (2) 10 business days following the commencement of a tender offer or exchange offer that would result in a person or group beneficially owning more than 20 percent of the outstanding shares of common stock of the Company. Each right entitles the holder to purchase one one-thousandth of a share of Series A Junior

78




Preferred Stock at an initial purchase price of $125.00 in cash, subject to adjustment. In the event that any person or group becomes an Acquiring Person, unless the event causing the 20% threshold to be crossed is an offer permitted pursuant to the Rights Agreement, each Right not owned by the Acquiring Person will entitle its holder to receive, upon exercise, that number of shares of common stock of the Company (or in certain circumstances, cash, property or other securities of the Company), which equals the exercise price of the Right divided by 50% of the current market price (as defined in the Rights Agreement) per share of such common stock at the date of the occurrence of the event. In the event that, at any time after any person or group becomes an Acquiring Person, (i) the Company is consolidated with, or merged with and into, another entity and the Company is not the surviving entity of such consolidation or merger (other than a consolidation or merger which follows a Permitted Offer) or if the Company is the surviving entity, but shares of its outstanding Common Stock are changed or exchanged for stock or securities (of any other person) or cash or any other property, or (ii) more than 50% of the Company’s assets or earning power is sold or transferred, each holder of a Right (except Rights which previously have been voided as set forth in the Rights Agreement) shall thereafter have the right to receive, upon exercise, that number of shares of common stock of the acquiring company which equals the exercise price of the Right divided by 50% of the current market price of such common stock at the date of the occurrence of the event.

10. Common Stock

Holders of common stock are entitled to one vote per share on all matters to be voted upon by the stockholders of the Company.

Shares of common stock reserved for future issuance at December 31, 2006 are as follows (in thousands):

Shares available for grant under stock option plans

 

1,097

 

Shares available for exercise of stock options

 

2,730

 

Shares available for grant under employee stock purchase plan

 

478

 

Total

 

4,305

 

 

In July 2005, the Company raised $122.3 million in a follow-on public offering, net of expenses, from the sale and issuance of 4,827,300 shares of common stock. The price to the public was $27.02 per share.

In connection with the 2006 Sandoz Collaboration, the Company sold 4,708,679 shares of common stock to Novartis Pharma AG for an aggregate purchase price of $75.0 million.

11. Income Taxes

A reconciliation of federal statutory income tax provision to the Company’s actual provision for the years ended December 31, 2006, 2005 and 2004 is as follows:

 

 

2006

 

2005

 

2004

 

Benefit at federal statutory tax rate

 

$

(17,651

)

$

(7,365

)

$

(4,785

)

Unbenefited operating losses

 

15,318

 

7,597

 

4,493

 

Stock-based compensation

 

3,669

 

470

 

687

 

Tax credits

 

(1,354

)

(713

)

(433

)

Other

 

18

 

11

 

38

 

Income tax provision

 

$

 

$

 

$

 

 

79




Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company’s deferred tax assets are as follows (in thousands):

 

 

December 31,

 

 

 

2006

 

2005

 

Deferred tax assets:

 

 

 

 

 

Federal and state net operating losses

 

$

29,277

 

$

17,608

 

Research credits

 

4,040

 

1,937

 

Deferred compensation

 

480

 

27

 

Deferred revenue

 

5,507

 

109

 

Accrued expenses

 

116

 

77

 

Capital leases

 

3,164

 

 

Total deferred tax assets

 

42,584

 

19,758

 

Deferred tax liabilities:

 

 

 

 

 

Depreciation

 

(3,702

)

(196

)

Unrealized gain on marketable securities

 

(16

)

 

Total deferred tax liabilities

 

(3,718

)

(196

)

Valuation allowance

 

(38,866

)

(19,562

)

Net deferred tax assets

 

$

 

$

 

 

Realization of deferred tax assets is dependent upon future earnings, if any, the timing and amount of which are uncertain. Accordingly, the net deferred tax assets have been fully offset by a valuation allowance. The valuation allowance increased by $19.3 million and $9.2 million for the years ended December 31, 2006 and 2005, respectively, as a result of the reserve for the tax benefit on the current period loss.

As of December 31, 2006, the Company had federal and state net operating loss carryforwards of approximately $75.8 million and $81.1 million, respectively, to offset future federal and state taxable income. Of this amount, approximately $4.0 million of federal and state net operating loss carryforwards relate to stock option deductions and the related tax benefit will be recognized in equity when realized. The Company also has federal and state research and development tax credit carryforwards of approximately $2.7 million and $2.0 million, respectively, as of December 31, 2006. The net operating loss carryforwards and federal research credits expire at various times through 2026.

Utilization of the Company’s net operating loss may be subject to substantial annual limitation due to the ownership change limitations provided by Internal Revenue Code (IRC) Sections 382 and 383 and similar state provisions. Such an annual limitation could result in the expiration of net operating losses and/or tax credits before utilization.

12. Line of Credit

In December 2002, the Company entered into an equipment line of credit with Silicon Valley Bank (the “Bank”), which provided for the Company to draw up to $1.2 million through March 31, 2003. Borrowings under the line bear interest at a rate between 5.0% and prime plus 0.25% and are payable over a 36-month period from the cash drawn date. The line of credit includes a provision that any material adverse change in the Company or its business, as solely determined by the bank, may be considered an event of default. There have been no events of default under this line of credit. In December 2004, the Company entered into a Loan Modification Agreement (the “Loan Modification Agreement”) with the Bank to amend selected terms and conditions of the Security Agreement of December 2002 by and between the Company and the Bank (the “Original Credit Facility”). Under the Loan Modification Agreement, the Company and the Bank agreed to amend the Original Credit Facility to, among other

80




things, conform certain provisions of the Original Credit Facility to the Loan Agreement (see below), including the grant of security interest. The Company’s ability to draw down any amounts under the Original Credit Facility expired on May 30, 2003, which term was not extended under the Loan Modification Agreement. As of December 31, 2006, the Company had no borrowings outstanding under the Original Credit Facility, as amended by the Loan Modification Agreement.

In December 2004, the Company entered into a Loan and Security Agreement (the “Loan Agreement”) with the Bank. Under the terms of the Loan Agreement, the Company was eligible to borrow up to an aggregate of $3.0 million through September 30, 2005 solely for reimbursement of purchases of Eligible Equipment, as defined under the Loan Agreement. As of December 31, 2005, the Company had drawn $3.0 million against the Loan Agreement. The Company was not obligated to draw down any amounts under the Loan Agreement and any borrowings bear interest at the per annum rate of the U.S. Treasury note yield to maturity for a term equal to forty-two months plus 5%, which rate was fixed on the funding date for each advance under the Loan Agreement. Advances under the Loan Agreement are to be repaid over a forty-two month period commencing on the applicable funding date. To secure the payment and performance in full of the Company’s obligations under the Loan Agreement, the Company granted to the Bank a continuing security interest in the Collateral, as such term is defined under the Loan Agreement and which essentially includes all Eligible Equipment and records relating thereto. As of December 31, 2006, the Company had approximately $1.6 million in borrowings outstanding under the Loan Agreement subject to interest rates ranging from 8.46% to 9.18% .

13. Commitments and Contingencies

Capital and Operating Leases

In December 2005, the Company entered into a Master Lease Agreement (the “Agreement”) with General Electric Capital Corporation (“GECC”). Under the Agreement, the Company may lease office, laboratory, computer and other equipment from GECC by executing specified equipment schedules with GECC. Each equipment schedule will specify the lease term with respect to the underlying leased equipment. As of December 31, 2006, the Company had drawn $5.4 million against the Agreement. Borrowings under the agreement are payable over a 54-month period at effective annual interest rates of 7.51% to 9.39%. In accordance with the Agreement, should the effective corporate income tax rate for calendar-year taxpayers increase above 35%, GECC will have the right to increase rent payments by requiring payment of a single additional sum, calculated in accordance with the Agreement. The Agreement also provides the Company an early purchase option after 48 months at a predetermined fair market value, which the Company intends to exercise. As a result, the Agreement is considered a capital lease for accounting purposes and the equipment is included in property and equipment. Under the Agreement, if any material adverse change in the Company or its business occurs, as solely determined by GECC, the total unpaid principal would become immediately due and payable. There have been no events of default under this agreement. As of December 31, 2006, the Company had approximately $4.9 million in outstanding borrowings under the agreement.

The Company leases office space and equipment under various operating lease agreements. Rent expense for office space under operating leases amounted to $5,435,000, $2,664,000 and $869,000 for the years ended December 31, 2006, 2005 and 2004, respectively.

In September 2004, the Company entered into an agreement to lease 53,323 square feet of office and laboratory space located at 675 West Kendall Street, Cambridge, Massachusetts, for a term of 80 months (the “West Kendall Sublease”). The Company has an option to extend the West Kendall Sublease for one additional term of 48 months, ending April 2015, or on such other earlier date as provided in accordance with the West Kendall Sublease. In November 2005, the Company amended the West Kendall Sublease to lease an additional 25,131 square feet in its current premises through April 2011. Under the lease

81




amendment, the landlord agreed to finance the leasehold improvements. In accordance with Financial Accounting Standards Board (“FASB”) Staff Position (FSP) 13-1, Accounting for Rental Costs Incurred during a Construction Period , the Company commenced expensing the applicable rent on a straight line basis beginning with the commencement of the construction period. The construction period was completed in June 2006. In accordance with EITF 97-10, The Effect of Lessee Involvement in Asset Construction , the Company was the owner of the leasehold assets during the construction period, and as of December 31, 2006, the Company has recorded $3.2 million in leasehold improvements offset by $2.9 million as a related lease financing liability.

In October 2006, the Company entered into an agreement to lease approximately 22,300 square feet of office and research space located in Cambridge, Massachusetts (the “Third Street Sublease”). The initial term of the Third Street Sublease expires on April 30, 2011 and may be extended for an additional 48 month period, subject to certain termination rights granted to the Company and the landlord. Commencing on the earlier of March 10, 2007 or the Company’s beneficial use of the leased premises, and through the term of the Third Street Sublease, the Company will pay annual fixed rent of $1.1 million in monthly installments plus operating expenses. The company expenses rent under this lease on a straight-line basis in accordance with (FSP) 13-1. Additionally, the Company has designated $2.9 million as collateral for a letter of credit in connection with the execution of the lease.

Future minimum capital and total operating lease commitments as of December 31, 2006 are as follows (in thousands):

 

 

Operating Lease

 

Capital Lease

 

2007

 

 

$

4,448

 

 

 

$

1,294

 

 

2008

 

 

4,652

 

 

 

1,305

 

 

2009

 

 

4,640

 

 

 

1,658

 

 

2010

 

 

4,629

 

 

 

1,613

 

 

2011

 

 

1,543

 

 

 

 

 

Total future minimum lease payments

 

 

$

19,912

 

 

 

5,870

 

 

Less—Amounts representing interest

 

 

 

 

 

 

(931

)

 

Capital lease obligation at December 31, 2006

 

 

 

 

 

 

4,939

 

 

Less—Current maturities

 

 

 

 

 

 

(941

)

 

Capital lease obligation, net of current maturities

 

 

 

 

 

 

$

3,998

 

 

 

License Agreements

In connection with license arrangements with the research universities discussed in Note 4, the Company has certain annual fixed obligations to pay these institutions fees for the technology licensed. At December 31, 2006, financial obligations under these agreements for each year in the next five years range from $0.1 million to $0.2 million. After 2010, the annual obligations, which extend indefinitely, are approximately $0.2 million per year. The Company may terminate the agreements at any time without further annual obligations. Annual payments may be applied towards royalties payable to the licensors for that year for product sales, sublicensing of the patent rights or joint development revenue.

Legal Contingencies

Companies that seek to market a generic version of a branded product can be sued for infringing patents that purportedly cover the branded product and/or methods of using the product if the proposed marketing is to occur before the branded product’s patents expire. The Company is not currently engaged in any actual or threatened material litigation; however, in August 2006, Sanofi-Aventis brought a patent infringement suit against Sandoz in connection with regulatory filings seeking approval to market M-Enoxaparin in the U.S. Sandoz has moved to dismiss the suit based upon a February 2007 District Court

82




decision, which found Sanofi-Aventis’ patents to be unenforceable. The Company believes that its product development plans will likely cause patent infringement litigation in the future. The accompanying consolidated financial statements do not include any provision for such potential litigation.

In December 2006, the Company entered into a settlement agreement with a third party for $1.8 million. This payment was recorded as a component of general and administrative expense as of December 31, 2006 within the Company’s consolidated statement of operations.

14. 401(k) Plan

The Company has a defined contribution 401(k) plan available to eligible employees. Employee contributions are voluntary and are determined on an individual basis, limited by the maximum amounts allowable under federal tax regulations. The Company has discretion to make contributions to the plan. In March 2005, the Company’s Board of Directors approved a match of 50% of the first 6% contributed by employees, effective for the 2004 plan year, and thereafter. The Company recorded $0.2 million and $0.2 million of such match expense in the year ended December 31, 2006 and 2005, respectively. The amount contributed in 2004 by the Company was immaterial.

15. Related Party Transactions

The Company purchased $3.3 million, $1.5 million and $0.4 million of heparin in 2006, 2005 and 2004, respectively, from Sandoz GmbH, which in turn was reimbursed under the Company’s collaboration agreement with Sandoz N.V. and Sandoz, Inc. The Company did not have any outstanding payables to Sandoz at December 31, 2006 and 2005.

Parivid, LLC, a company that provides data integration and analysis services to the Company, is considered to be a related party as a co-founder and member of the Company’s Board of Directors is the brother of the chief technology officer of Parivid. The Company recorded $1.0 million, $0.7 million and $1.0 million as research and development expense related to work performed by Parivid in the years ended December 31, 2006, 2005 and 2004, respectively. At December 31, 2006, the Company had outstanding payables totaling $0.1 million with Parivid. The Company had no outstanding payables with Parivid at December 31, 2005.

16. Selected Quarterly Financial Data (Unaudited) (in thousands, except per share data)

 

 

Quarter Ended

 

 

 

March 31

 

June 30

 

September 30

 

December 31

 

2006

 

 

 

 

 

 

 

 

 

 

 

 

 

Collaboration revenues

 

$

2,506

 

$

5,397

 

 

$

4,058

 

 

 

$

4,038

 

 

Net loss

 

(11,331

)

(12,584

)

 

(12,015

)

 

 

(15,983

)

 

Basic and diluted net loss per common share attributable to common stockholders

 

$

(0.37

)

$

(0.41

)

 

$

(0.37

)

 

 

$

(0.45

)

 

Shares used in computing basic and diluted net loss per share attributable to common stockholders

 

30,444

 

30,532

 

 

32,334

 

 

 

35,518

 

 

2005

 

 

 

 

 

 

 

 

 

 

 

 

 

Collaborative revenues

 

$

3,415

 

$

3,364

 

 

$

2,957

 

 

 

$

3,275

 

 

Net loss

 

(3,770

)

(4,580

)

 

(6,001

)

 

 

(7,311

)

 

Basic and diluted net loss per common share attributable to common stockholders

 

$

(0.15

)

$

(0.18

)

 

$

(0.21

)

 

 

$

(0.24

)

 

Shares used in computing basic and diluted net loss per share attributable to common stockholders

 

24,866

 

25,116

 

 

28,736

 

 

 

30,341

 

 

 

83




Certain prior year amounts in collaboration revenue and research and development expenses in the consolidated statements of operations have been reclassified to conform to the current year presentation. This reclassification has no impact on previously reported net loss attributable to common stockholders or accumulated deficit.

Per common share amounts for the quarters and full years have been calculated separately. Accordingly, quarterly amounts may not add to the annual amount because of differences in the weighted average common shares outstanding during each period principally due to the effect of the Company’s issuing shares of its common stock during the year.

Diluted and basic net loss per common share is identical since common equivalent shares are excluded from the calculation, as their effect is anti-dilutive.

Item 9.                         CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

Not applicable.

Item 9A.                 CONTROLS AND PROCEDURES

1.   Disclosure Controls and Procedures

Our management, with the participation of our chief executive officer and chief financial officer, evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2006. The term “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Securities Exchange Act of 1934 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 that it files or submits under the Securities Exchange Act of 1934 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 this evaluation, our chief executive officer and chief financial officer concluded that, as of December 31, 2006, our disclosure controls and procedures were effective at the reasonable assurance level.

2.   Internal Controls Over Financial Reporting

(a)   Management’s Annual Report on Internal Control Over Financial Reporting

The management of Momenta is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rule 13a-15(f) or 15d-15(f) promulgated under the Securities Exchange Act of 1934 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 generally accepted accounting principles and includes those policies and procedures that:

·        Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the company;

84




·        Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, 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.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. 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.

Momenta’s management, including the supervision and participation of Chief Executive Officer and Chief Financial Officer, assessed the effectiveness of the Company’s internal control over financial reporting as of December 31, 2006. In making this assessment, the Company’s management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in “Internal Control-Integrated Framework.”

Based on our assessment, management has concluded that, as of December 31, 2006, the Company’s internal control over financial reporting is effective based on those criteria.

The Company’s independent registered public accounting firm has issued its report on our assessment and effectiveness of the Company’s internal control over financial reporting. This report appears below.

(b)          Report of the Independent Registered Public Accounting Firm

Report of Independent Registered Public Accounting Firm

The Board of Directors and Stockholders of Momenta Pharmaceuticals, Inc.

We have audited management’s assessment, included in the accompanying Management’s Annual Report on Internal Control Over Financial Reporting, that Momenta Pharmaceuticals, Inc. maintained effective internal control over financial reporting as of December 31, 2006, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). Momenta Pharmaceuticals, Inc.’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting. Our responsibility is to express an opinion on management’s assessment and an opinion on the effectiveness of the company’s internal control over financial reporting based on our audit.

We conducted our audit 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 effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, evaluating management’s assessment, testing and evaluating the design and operating effectiveness of internal control, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed 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. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to

85




permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) 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.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, 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.

In our opinion, management’s assessment that Momenta Pharmaceuticals, Inc. maintained effective internal control over financial reporting as of December 31, 2006, is fairly stated, in all material respects, based on the COSO criteria. Also, in our opinion, Momenta Pharmaceuticals, Inc. maintained, in all material respects, effective internal control over financial reporting as of December 31, 2006, based on the COSO criteria .

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of Momenta Pharmaceuticals, Inc. as of December 31, 2006 and 2005, and the related consolidated statements of operations, redeemable convertible preferred stock, stockholders’ equity (deficit) and comprehensive income (loss) and cash flows for each of the three years in the period ended December 31, 2006 of Momenta Pharmaceuticals, Inc. and our report dated March 12, 2007 expressed an unqualified opinion thereon.

 

/s/ Ernst & Young LLP

Boston, Massachusetts

 

 

March 12, 2007

 

 

 

(c) 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 fiscal quarter ended as of December 31, 2006 that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

Item 9B.                OTHER INFORMATION

Recent Events

On March 14, 2007, we entered into Executive Retention Agreements with the following executive officers: John F. Bishop, Steven B. Brugger, Richard P. Shea and Ganesh Venkataraman; as well as three other Vice Presidents of the Company. Pursuant to the Executive Retention Agreements, in the event an executive’s employment is terminated without cause (as defined in the Executive Retention Agreement) or he or she terminates employment with good reason (as defined in the Executive Retention Agreement) within one year following a change in control of the Company (as defined in the Executive Retention Agreement), the executive shall be entitled to (i) accrued obligations as of the date of such termination, consisting of accrued and unpaid salary, the value of accrued vacation days and the amount of unreimbursed and incurred expenses, (ii) acceleration of each outstanding award then held by the executive under the Company’s outstanding equity incentive plans, (iii) the sum of (A) the amount equal to the executive’s annual base salary during the one year period prior to the date of termination and (B) the greater of (x) the target bonus for the executive for the fiscal year in which the termination occurs and (y) the annual bonus paid to the executive for the most recently completed fiscal year, and (iv) insurance, medical, dental, health and accident and disability benefits as in effect immediately prior to the termination date for a period of 12 months. The Executive Retention Agreements have a term that expires on December 31, 2007, but automatically renew for successive one year terms.

86




PART III

Item 10.                  DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

The information relating to our directors, nominees for election as directors and executive officers under the headings “Election of Directors”, “Corporate Governance—Our Executive Officers”, “Corporate Governance—Section 16(a) Beneficial Ownership Reporting Compliance” and “Corporate Governance—Board Committees” in our definitive proxy statement for the 2007 Annual Meeting of Stockholders is incorporated herein by reference to such proxy statement.

We have adopted a written code of business conduct and ethics that applies to our directors, officers and employees, including our principal executive officer, principal financial officer, principal accounting officer or controller, or persons performing similar functions. We make available our code of business conduct and ethics free of charge through our website which is located at www.momentapharma.com. We intend to disclose 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 Securities and Exchange Commission and the NASDAQ National Market by filing such amendment or waiver with the Securities and Exchange Commission and by posting it on our website.

Item 11.                  EXECUTIVE COMPENSATION

The discussion under the headings “Executive Compensation”, “Compensation of Directors”, “Compensation Committee Report” and “Compensation Committee Interlocks and Insider Participation” in our definitive proxy statement for the 2007 Annual Meeting of Stockholders is incorporated herein by reference to such proxy statement. The information specified in Item 407(e)(5) of Regulation S-K and set forth in our definitive proxy statement for the 2007 Annual Meeting of Stockholders is not incorporated by reference.

Item 12.                  SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

The discussion under the heading “Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters” in our definitive proxy statement for the 2007 Annual Meeting of Stockholders is incorporated herein by reference to such proxy statement.

Item 13.                  CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

The discussion under the headings “Certain Relationships and Related Transactions” and “Corporate Governance—Board Determination of Independence” in our definitive proxy statement for the 2007 Annual Meeting of Stockholders is incorporated herein by reference to such proxy statement.

Item 14.                  PRINCIPAL ACCOUNTANT FEES AND SERVICES

The discussion under the heading “Ratification of Selection of Independent Registered Public Accounting Firm” in our definitive proxy statement for the 2007 Annual Meeting of Stockholders is incorporated herein by reference to such proxy statement.

87




PART IV

Item 15.                  EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

(a)  The following documents are included as part of this Annual Report on Form 10-K.

1.     Financial Statements:

 

2.     All schedules are omitted as the information required is either inapplicable or is presented in the financial statements and/or the related notes.

3.     The Exhibits listed in the Exhibit Index immediately preceding the Exhibits are filed as a part of this Annual Report on Form 10-K.

88




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 this 15th day of March, 2007.

 

MOMENTA PHARMACEUTICALS, INC.

 

 

By:

 

/s/ CRAIG A. WHEELER

 

 

 

 

Craig A. Wheeler
Chief Executive Officer

 

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.

Signature

 

 

 

Title

 

 

 

Date

 

/s/ CRAIG A. WHEELER

 

President and Chief Executive Officer;

 

March 15, 2007

Craig A. Wheeler

 

Director (Principal Executive Officer)

 

 

/s/ RICHARD P. SHEA

 

Vice President and Chief Financial Officer

 

March 15, 2007

Richard P. Shea

 

(Principal Financial and Accounting Officer)

 

 

/s/ PETER BARRETT

 

Chairman of the Board and Director

 

March 15, 2007

Peter Barrett

 

 

 

 

/s/ JOHN K. CLARKE

 

Director

 

March 15, 2007

John K. Clarke

 

 

 

 

/s/ ALAN L. CRANE

 

Director

 

March 15, 2007

Alan L. Crane

 

 

 

 

/s/ MARSHA H. FANUCCI

 

Director

 

March 15, 2007

Marsha H. Fanucci

 

 

 

 

/s/ PAUL D. GOLDENHEIM

 

Director

 

March 15, 2007

Paul D. Goldenhiem

 

 

 

 

/s/ PETER BARTON HUTT

 

Director

 

March 15, 2007

Peter Barton Hutt

 

 

 

 

/s/ ROBERT S. LANGER, Jr.

 

Director

 

March 15, 2007

Robert S. Langer, Jr.

 

 

 

 

/s/ STEPHEN T. REEDERS

 

Director

 

March 15, 2007

Stephen T. Reeders

 

 

 

 

/s/ RAM SASISEKHARAN

 

Director

 

March 15, 2007

Ram Sasisekharan

 

 

 

 

/s/ BENNETT M. SHAPIRO

 

Director

 

March 15, 2007

Bennett M. Shapiro

 

 

 

 

 

89




EXHIBIT INDEX

 

 

 

 

 

Incorporated by Reference to

Exhibit
Number

 

Description

 

Form or
Schedule

 

Exhibit
No.

 

Filing
Date
with SEC

 

SEC File
Number

 

 

Articles of Incorporation and By-Laws

 

 

 

 

 

 

 

 

3.1

 

Third Amended and Restated Certificate of Incorporation

 

S-1

 

3.3

 

3/11/2004

 

333-113522

3.2

 

Certificate of Designations of Series A Junior Participating Preferred Stock of the Registrant

 

8-K

 

3.1

 

11/8/2005

 

000-50797

3.3

 

Amended and Restated By-Laws

 

S-1

 

3.2

 

3/11/2004

 

333-113522

 

 

Instruments Defining the Rights of Security Holders

 

 

 

 

 

 

 

 

4.1

 

Specimen Certificate evidencing shares of common stock

 

S-1/A

 

4.1

 

6/15/2004

 

333-113522

4.2

 

Second Amended and Restated Investors’ Rights Agreement, dated as of February 27, 2004, by and among the Purchasers listed therein, the Founders listed therein and the Registrant; Amendment No. 1 to Second Amended and Restated Investors’ Rights Agreement dated June 10, 2004, by and among the Registrant and the Investors set forth therein

 

S-1/A

 

4.3

 

6/15/2004

 

333-113522

4.3

 

Rights Agreement, dated as of November 7, 2005, between American Stock Transfer & Trust Company, as Rights Agent, and the Registrant

 

8-K

 

4.1

 

11/8/2005

 

000-50797

4.4

 

Investor Rights Agreement, dated as of July 25, 2006, by and between Novartis Pharma AG and the Registrant

 

10-Q

 

10.2

 

11/8/2006

 

000-50797

 

 

Material Contracts—License Agreements

 

 

 

 

 

 

 

 

10.1†

 

Collaboration and License Agreement, dated November 1, 2003, by and among Biochemie West Indies, N.V., Geneva Pharmaceuticals, Inc. and the Registrant

 

S-1/A

 

10.4

 

5/11/2004

 

333-113522

10.2†

 

Amended and Restated Exclusive Patent License Agreement, dated November 1, 2002, by and between the Massachusetts Institute of Technology and the Registrant (the “November 1, 2002 M.I.T. License”); First Amendment to the November 1, 2002 M.I.T. License, dated November 15, 2002, by and between the Massachusetts Institute of Technology and the Registrant; Letter Agreement, dated September 12, 2003, between the Massachusetts Institute of Technology and the Registrant; Letter Agreement, dated October 22, 2003, between the Massachusetts Institute of Technology and the Registrant; Second Amendment to the November 1, 2002 M.I.T. License, dated November 19, 2003, by and between the Massachusetts Institute of Technology and the Registrant; Third Amendment to the November 1, 2002 M.I.T. License, dated April 2, 2004, by and between the Massachusetts Institute of Technology and the Registrant

 

8-K

 

10.1

 

8/15/2006

 

000-50797

90




 

10.3†

 

Letter Agreement Regarding November 1, 2002 M.I.T. License, dated August 4, 2006, between the Massachusetts Institute of Technology and the Registrant

 

8-K

 

10.1

 

8/15/2006

 

000-50797

10.4†

 

Letter Agreement Regarding November 1, 2002 M.I.T. License, dated October 18, 2006, between the Massachusetts Institute of Technology and the Registrant

 

10-Q

 

10.6

 

11/8/2006

 

000-50797

10.5†

 

Exclusive Patent License Agreement, dated October 31, 2002, by and between the Massachusetts Institute of Technology and the Registrant (the “October 31, 2002 M.I.T. License”); First Amendment to the October 31, 2002 M.I.T. License, dated November 15, 2002, by and between the Massachusetts Institute of Technology and the Registrant

 

S-1/A

 

10.6

 

5/11/2004

 

333-113522

10.6†

 

Fourth Amendment to the Amended and Restated Exclusive Patent License Agreement, dated November 1, 2002, by and between the Massachusetts Institute of Technology and the Registrant

 

10-Q

 

10.3

 

8/16/2004

 

000-50797

10.7†

 

Fifth Amendment to the Amended and Restated Exclusive Patent License Agreement, dated November 1, 2002, by and between the Massachusetts Institute of Technology and the Registrant

 

10-Q

 

10.5

 

11/8/2006

 

000-50797

*10.8

 

Sixth Amendment to the Amended and Restated Exclusive Patent License Agreement, dated November 1, 2002, by and between the Massachusetts Institute of Technology and the Registrant

 

 

 

 

 

 

 

 

10.9†

 

Second Amendment to the Exclusive Patent License Agreement, dated October 31, 2002, by and between the Massachusetts Institute of Technology and the Registrant

 

10-Q

 

10.4

 

8/16/2004

 

000-50797

10.10†

 

Third Amendment to the Exclusive Patent License Agreement, dated October 31, 2002, by and between the Massachusetts Institute of Technology and the Registrant

 

10-Q

 

10.4

 

11/8/2006

 

000-50797

*10.11

 

Fourth Amendment to the Exclusive Patent License Agreement, dated October 31, 2002, by and between the Massachusetts Institute of Technology and the Registrant

 

 

 

 

 

 

 

 

10.12†

 

License Agreement for Installing Novel Functional Groups for Therapeutics, dated November 20 2002, by and between the Regents of the University of California through the Ernest Orlando Lawrence Berkeley National Laboratory and the Registrant

 

S-1/A

 

10.7

 

5/11/2004

 

333-113522

10.13†

 

Letter Agreement, dated November 16, 2004, between the Regents of the University of California through the Ernest Orlando Lawrence Berkley National Laboratory and the Registrant.

 

10-K

 

10.12

 

3/31/2005

 

000-50797

10.14†

 

Letter Agreement, dated February 8, 2005, between the Regents of the University of California through the Ernest Orlando Lawrence Berkley National Laboratory and the Registrant

 

10-K/A

 

10.13

 

7/14/2005

 

000-50797

91




 

10.15†

 

Memorandum of Understanding, dated July 25, 2006, between Sandoz AG and the Registrant

 

10-Q

 

10.2

 

11/8/2006

 

000-50797

*10.16

 

Letter Agreement dated January 29, 2007 between Sandoz AG and the Registrant

 

 

 

 

 

 

 

 

 

 

Material Contracts—Management Contracts and Compensation Plans

 

 

 

 

 

 

 

 

*10.17#

 

Amended and Restated 2002 Stock Incentive Plan

 

 

 

 

 

 

 

 

*10.18#

 

2004 Stock Incentive Plan, as amended

 

 

 

 

 

 

 

 

10.19#

 

Form of Incentive Stock Option Agreement Granted Under 2004 Stock Incentive Plan

 

10-Q

 

10.1

 

8/16/2004

 

000-50797

10.20#

 

Form of Nonstatutory Stock Option Agreement Granted Under 2004 Stock Incentive Plan

 

10-Q

 

10.2

 

8/16/2004

 

000-50797

10.21#

 

2004 Employee Stock Purchase Plan

 

S-1/A

 

10.3

 

4/16/2004

 

333-113522

*10.22#

 

Executive Officer Compensation Summary

 

 

 

 

 

 

 

 

*10.23#

 

Non-Employee Director Compensation Summary

 

 

 

 

 

 

 

 

10.24#

 

Severance Agreement, dated October 13, 2006, between Alan L. Crane and the Registrant

 

10-Q

 

10.12

 

11/8/2006

 

000-50797

10.25#

 

First Amended and Restated Employment Agreement, dated April 10, 2002, by and between Ganesh Venkataraman and the Registrant

 

S-1

 

10.12

 

3/11/2004

 

333-113522

10.26#

 

Restricted Stock Purchase Agreement, dated June 13, 2001, by and between Ganesh Venkataraman and the Registrant

 

S-1

 

10.13

 

3/11/2004

 

333-113522

10.27#

 

Reallocation of Founder Shares Agreement, dated April 10, 2002, by and among Ganesh Venkataraman, Ram Sasisekharan, Robert S. Langer, Jr., Polaris Venture Partners III, L.P. and the Registrant

 

S-1

 

10.14

 

3/11/2004

 

333-113522

10.28#

 

Restricted Stock Agreement, dated March 7, 2006, between Ganesh Venkataraman and the Registrant

 

10-Q

 

10.14

 

11/8/2006

 

000-50797

10.29#

 

Employment Agreement, dated April 10, 2002, by and between Susan Whoriskey and the Registrant

 

S-1

 

10.15

 

3/11/2004

 

333-113522

10.30#

 

Restricted Stock Purchase Agreement, dated April 10, 2002, by and between Susan Whoriskey and the Registrant

 

S-1

 

10.16

 

3/11/2004

 

333-113522

10.31#

 

Consulting Agreement, dated July 23, 2001, by and between Robert S. Langer, Jr. and the Registrant; Letter of Extension dated June 23, 2003

 

S-1

 

10.17

 

3/11/2004

 

333-113522

10.32#

 

Letter of Extension to Consulting Agreement, dated July 2, 2004, by and between Robert S. Langer, Jr. and the Registrant

 

10-Q

 

10.2

 

11/12/2004

 

000-50797

10.33#

 

Letter of Extension to Consulting Agreement, dated August 8, 2005, between Robert S. Langer, Jr. and the Registrant

 

8-K

 

10.1

 

8/10/2005

 

000-50797

10.34#

 

Letter Regarding Amendment and Renewal of Consulting Agreement, dated July 23, 2001, dated July 19, 2006, between Robert S. Langer, Jr. and the Registrant

 

8-K

 

10.1

 

7/25/2006

 

000-50797

10.35#

 

Restricted Stock Purchase Agreement, dated June 13, 2001, by and between Robert S. Langer, Jr. and the Registrant

 

S-1

 

10.18

 

3/11/2004

 

333-113522

92




 

10.36#

 

Consulting Agreement, dated August 16, 2001, by and between Ram Sasisekharan and the Registrant; Letter of Extension dated August 1, 2003

 

S-1

 

10.19

 

3/11/2004

 

333-113522

10.37#

 

Letter of Extension to Consulting Agreement, dated July 12, 2004, by and between Ram Sasisekharan and the Registrant

 

10-Q

 

10.1

 

11/12/2004

 

000-50797

10.38#

 

Letter of Extension to Consulting Agreement, effective as of November 8, 2005, between Ram Sasisekharan and the Registrant

 

8-K

 

10.1

 

11/10/2005

 

000-50797

10.39#

 

Restricted Stock Purchase Agreement, dated June 13, 2001, by and between Ram Sasisekharan and the Registrant

 

S-1

 

10.20

 

3/11/2004

 

333-113522

10.40#

 

Letter of Extension to Consulting Agreement, dated March 15, 2005, by and between Ram Sasisekharan and the Registrant

 

10-Q

 

10.1

 

5/13/2005

 

000-50797

10.41#

 

Letter of Extension and Amendment to Consulting Agreement, dated September 7, 2006, by and between Ram Sasisekharan and the Registrant

 

8-K

 

10.1

 

9/11/2006

 

000-50797

10.42#

 

Consulting Agreement, dated September 18, 2002, by and between Peter Barton Hutt and the Registrant; Letter of Extension dated September 29, 2003

 

S-1

 

10.21

 

3/11/2004

 

333-113522

10.43#

 

Amendment to Letter of Extension, dated October 4, 2004, between Peter Barton Hutt and the Registrant

 

10-Q

 

10.3

 

11/12/2004

 

000-50797

10.44#

 

Letter of Extension to Consulting Agreement, dated September 18, 2002, dated September 22, 2005, between Peter Barton Hutt and the Registrant

 

10-Q

 

10.2

 

11/14/2005

 

000-50797

10.45#

 

Amendment to Consulting Agreement, dated September 18, 2002, dated September 18, 2006, between Peter Barton Hutt and the Registrant

 

8-K

 

10.1

 

9/20/2006

 

000-50797

10.46#

 

Restricted Stock Purchase Agreement, dated June 13, 2001, by and between Peter Barton Hutt and the Registrant

 

S-1

 

10.22

 

3/11/2004

 

333-113522

10.47#

 

Industry Consulting Agreement, effective as of October 4, 2004, between Bennett M. Shapiro and the Registrant

 

10-Q

 

10.4

 

11/12/2004

 

000-50797

10.48#

 

Amendment (regarding Consulting Agreement, dated October 4, 2004), dated September 20, 2005, between Bennett M. Shapiro and the Registrant

 

10-Q

 

10.1

 

11/14/2005

 

000-50797

10.49#

 

Amendment (regarding Consulting Agreement, dated October 4, 2004), dated September 25, 2006, between Bennett M. Shapiro and the Registrant

 

8-K

 

10.1

 

9/28/2006

 

000-50797

10.50#

 

Letter Agreement, dated November 15, 2004, between Joseph E. Tyler and the Registrant

 

10-K

 

10.47

 

3/31/2005

 

000-50797

10.51#

 

Employment Agreement, dated August 22, 2006, between Craig Wheeler and the Registrant

 

10-Q

 

10.7

 

11/8/2006

 

000-50797

10.52#

 

Restricted Stock Agreement, dated August 22, 2006, between Craig Wheeler and the Registrant

 

10-Q

 

10.8

 

11/8/2006

 

000-50797

10.53#

 

Nonstatutory Stock Option Agreement, dated August 22, 2006, between Craig Wheeler and the Registrant

 

10-Q

 

10.9

 

11/8/2006

 

000-50797

10.54#

 

Incentive Stock Option Agreement, dated August 22, 2006, between Craig Wheeler and the Registrant

 

10-Q

 

10.10

 

11/8/2006

 

000-50797

93




 

10.55#

 

Restricted Stock Agreement, dated March 7, 2006, between Steven B. Brugger and the Registrant

 

10-Q

 

10.13

 

11/8/2006

 

000-50797

*10.56#

 

Restricted Stock Agreement, dated December 15, 2006, between John E. Bishop and the Registrant

 

 

 

 

 

 

 

 

*10.57

 

Form of Executive Retention Agreement between the Registrant and each of John E. Bishop, Steven B. Brugger, Ian Fier, Barbara Rosengren, Richard P. Shea, Ganesh Venkataraman and Susan Whoriskey

 

.

 

 

 

 

 

 

 

 

Material Contracts—Credit Agreements

 

 

 

 

 

 

 

 

10.58

 

Loan and Security Agreement, dated December 27, 2002, by and between Silicon Valley Bank and the Registrant

 

S-1

 

10.23

 

3/11/2004

 

333-113522

10.59

 

First Loan Modification Agreement, dated December 28, 2004, between Silicon Valley Bank and the Registrant

 

10-K

 

10.37

 

3/31/2005

 

000-50797

10.60

 

Loan and Security Agreement, dated December 28, 2004, between Silicon Valley Bank and the Registrant

 

10-K

 

10.38

 

3/31/2005

 

000-50797

10.61

 

Master Lease Agreement, dated December 30, 2005, between General Electric Capital Corporation and the Registrant

 

10-K

 

10.44

 

3/16/2006

 

000-50797

 

 

Material Contracts—Leases

 

 

 

 

 

 

 

 

10.62†

 

Sublease Agreement, dated September 14, 2004, by and between Vertex Pharmaceuticals Incorporated and the Registrant

 

10-Q

 

10.9

 

11/12/2004

 

000-50797

10.63

 

First Amendment to Sublease (regarding Sublease Agreement, dated September 14, 2004), dated September 7, 2005, between Vertex Pharmaceuticals Incorporated and the Registrant

 

10.Q

 

10.3

 

11/14/2005

 

000-50797

10.64

 

Second Amendment to Sublease (regarding Sublease Agreement, dated September 14, 2004, as amended), effective as of November 21, 2005, between Vertex Pharmaceuticals Incorporated and the Registrant

 

10-K

 

10.47

 

3/16/2006

 

000-50797

10.65

 

Third Amendment to Sublease (regarding Sublease Agreement, dated September 14, 2004, as amended), effective as of January 27, 2006, between Vertex Pharmaceuticals Incorporated and the Registrant

 

10-K

 

10.48

 

3/16/2006

 

000-50797

10.66

 

Letter Agreement (regarding Sublease Agreement, dated September 14, 2004, as amended), dated June 29, 2006, between Vertex Pharmaceuticals Incorporated and the Registrant

 

10-Q

 

10.01

 

8/9/2006

 

000-50797

10.67

 

Sublease, dated September 8, 2006, by and between Archemix Corp and the Registrant

 

10-Q

 

10.11

 

11/8/2006

 

000-50797

 

 

Material Contracts—Stock Purchase Agreement

 

 

 

 

 

 

 

 

10.68

 

Stock Purchase Agreement, dated July 25, 2006, by and between Novartis Pharma AG and the Registrant

 

10-Q

 

10.1

 

11/8/2006

 

000-50797

 

 

Additional Exhibits

 

 

 

 

 

 

 

 

*21

 

List of Subsidiaries

 

 

 

 

 

 

 

 

*23.1

 

Consent of Ernst & Young LLP

 

 

 

 

 

 

 

 

*31.1

 

Certification of Chief Executive Officer pursuant to Exchange Act Rules 13a-14 or 15d-14, as adopted pursuant to Section 302 of Sarbanes-Oxley Act of 2002

 

 

 

 

 

 

 

 

94




 

*31.2

 

Certification of Chief Financial Officer pursuant to Exchange Act Rules 13a-14 or 15d-14, as adopted pursuant to Section 302 of Sarbanes-Oxley Act of 2002

 

 

 

 

 

 

 

 

*32.1

 

Certification of Chief Executive Officer and Chief Financial Officer pursuant to Exchange Act Rules 13a-14(b) or 15d-14(b) and 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of Sarbanes-Oxley Act of 2002

 

 

 

 

 

 

 

 


*       Filed herewith.

                    Confidential treatment requested as to certain portions, which portions are omitted and filed separately with the Securities and Exchange Commission.

#                  Management contract or compensatory plan or arrangement filed as an Exhibit to this report pursuant to 15(a) and 15(c) of Form 10-K.

95



Exhibit 10.8

SIXTH AMENDMENT

This Sixth Amendment, effective as of the date set forth above the signatures of the parties below, pertains to the Amended and Restated Exclusive Patent License Agreement (“Agreement 4908236”), effective on November 1, 2002, as subsequently amended by a First Amendment on November 15, 2002, a Letter Agreement on September 12, 2003, a Letter Agreement on October 22, 2003, a Second Amendment on November 19, 2003, a Third Amendment on April 2, 2004, a Fourth Amendment on July 17, 2004, and a Fifth Amendment on August 5, 2006 by and between the Massachusetts Institute of Technology (“M.I.T.”) and Momenta Pharmaceuticals, Inc. (“COMPANY’)

WHEREAS, COMPANY no longer plans to commercialize the technology included in MIT Case Number 9085, “Aerosol Administration of Heparin to the Lungs,” by Dongfang Liu, Yiwei Qi, Ram Sasisekharan, Mallikarjun Sundaram and Ganesh Venkataraman;

WHEREAS, M.I.T. agrees to remove this case from Agreement 4908236 without penalty to COMPANY;

NOW, THEREFORE, M.I.T. and COMPANY hereby agree to remove this case and all future obligations relating to this case from Agreement 4908236.

All other terms and conditions of Agreement 4908236 shall remain unchanged.

The AMENDMENT EFFECTIVE DATE is January 10, 2007.

Agreed to for:

MASSACHUSETTS INTITUTE OF
TECHNOLOGY

 

MOMENTA PHARMACEUTICALS, INC.

By

     /s/ Lita Nelsen

 

By

/s/ Susan K. Whoriskey

 

Name

Lita L. Nelsen,

 

 

Name

Susan K. Whoriskey, Ph.D.

 

Title

Director, Technology Licensing Office

 

Title Vice President, Licensing & Business

 

 

Development

 



Exhibit 10.11

FOURTH AMENDMENT

This Fourth Amendment, effective as of the date set forth above the signatures of the parties below, pertains to the Exclusive Patent License Agreement (“Agreement 4909826”), effective on October 31, 2002, as subsequently amended by a First Amendment on November 15, 2002, a Second Amendment on July 17, 2004, and a Third Amendment on August 5, 2006, by and between the Massachusetts Institute of Technology (“M.I.T.”) and Momenta Pharmaceuticals, Inc. (“COMPANY”).

WHEREAS, COMPANY no longer plans to commercialize the technology included in MIT Case Number 9085, “Aerosol Administration of Heparin to the Lungs,” by Dongfang Liu, Yiwei Qi, Ram Sasisekharan, Mallikarjun Sundaram and Ganesh Venkataraman;

WHEREAS, M.I.T. agrees to remove this case from Agreement 4909826 without penalty to COMPANY;

NOW, THEREFORE, M.I.T. and COMPANY hereby agree to remove this case and all future obligations relating to this case from Agreement 4909826.

All other terms and conditions of Agreement 4909826 shall remain unchanged.

The AMENDMENT EFFECTIVE DATE is January 10, 2007.

Agreed to for:

MASSACHUSETTS INTITUTE OF

 

MOMENTA PHARMACEUTICALS, INC.

 

TECHNOLOGY

 

 

 

By

/s/ Lita Nelsen

 

By

/s/ Susan K. Whoriskey

 

Name

Lita L. Nelsen,

 

Name

Susan K. Whoriskey, Ph.D.

 

Title

Director, Technology Licensing Office

 

Title

Vice President, Licensing & Business

 

 

 

 

 

Development

 

 



Exhibit 10.16

MOMENTA PHARMACEUTICALS, INC.

675 WEST KENDALL STREET

T: 617.491.9700

F: 617.621.0431

 

CAMBRIDGE, MA 02142

WWW.MOMENTAPHARMA.COM

 

January 29, 2007

Peter Rupprecht, Authorized Signatory

Sandoz AG

Lichtstraße 35

CH 4058 Basel BS

Switzerland

Re:  Memorandum of Understanding, by and between Sandoz AG (“ Sandoz ”) and Momenta Pharmaceuticals, Inc. (“ Momenta ”), dated July 25, 2006 (the “ MOU ”)

Dear Mr. Rupprecht:

All terms used, but not defined, herein have the meanings ascribed to them in the MOU.

The Parties agree that, notwithstanding anything to the contrary in the MOU or the Collaboration Agreement, no committee on which members of both Parties participate in activities under the MOU or the Collaboration Agreement, including the Joint Steering Committee and the joint project teams, shall remain in existence after July 25, 2031, the twenty-fifth (25 th ) anniversary of the execution of the MOU.  In the event either party desires to continue the aforementioned activities, and such desire is raised in the JSC after July 25, 2030 but before July 25, 2031 the other party will discuss an extension in good faith.

Please duly sign and return two copies of this letter to Momenta, Attention:  Chief Executive Officer, at the above mentioned address.  Thank you.

Best regards,

Momenta Pharmaceuticals, Inc.

 

 

By:

/s/ Richard P. Shea

 

Name: Richard P. Shea

Title: VP & CFO

 

 

Agreed to and accepted by:

Sandoz AG

By:

/s/ Peter Rupprecht

 

Name:

 

 

Title:

 

 

 

 

By:

/s/ [illegible]

 

Name:

 

 

Title:

 

 

 



Exhibit 10.17

MOMENTA PHARMACEUTICALS, INC.

Amended and Restated 2002 Stock Incentive Plan

(as amended March 7, 2007)

1.  Purpose .  The purpose of this plan (the “Plan”) is to secure for Momenta Pharmaceuticals, a Delaware corporation (the “Company”), and its shareholders the benefits arising from capital stock ownership by employees, officers and directors of, and consultants or advisors to, the Company and its parent and subsidiary corporations who are expected to contribute to the Company’s future growth and success.  Under the Plan recipients may be awarded both (i) Options (as defined in Section 2.1) to purchase the Company’s common stock, par value $.0001 per share (“Common Stock”) and (ii) shares of the Company’s Common Stock (“Restricted Stock Awards”).  Except where the context otherwise requires, the term “Company” shall include the parent and all present and future subsidiaries of the Company as defined in Sections 424(e) and 424(f) of the Internal Revenue Code of 1986, as amended or replaced from time to time (the “Code”).  Those provisions of the Plan which make express reference to Section 422 shall apply only to Incentive Stock Options (as that term is defined in the Plan).

2.  Types of Awards and Administration .

2.1  Options .  Options granted pursuant to the Plan (“Options”) shall be authorized by action of the Board of Directors of the Company and may be either incentive stock options (“Incentive Stock Options”) meeting the requirements of Section 422 of the Code or non-statutory Options which are not intended to meet the requirements of Section 422 of the Code.  All Options when granted are intended to be non-statutory Options, unless the applicable Option Agreement (as defined in Section 5.1) explicitly states that the Option is intended to be an Incentive Stock Option.  If an Option is intended to be an Incentive Stock Option, and if for any reason such Option (or any portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option (or portion thereof) shall be regarded as a non-statutory Option appropriately granted under the Plan provided that such Option (or portion thereof) otherwise meets the Plan’s requirements relating to non-statutory Options.  The vesting of Options may be conditioned upon the completion of a specified period of employment with the Company and/or such other conditions or events as the Board may determine.  The Board may also provide that Options are immediately exercisable subject to certain repurchase rights in the Company dependent upon the continued employment of the optionee and/or such other conditions or event as the Board may determine.

2.2  Restricted Stock Awards .  The Board in its discretion may grant Restricted Stock Awards, entitling the recipient to acquire, for a purchase price determined by the Board, shares of Common Stock subject to such restrictions and conditions as the Board may determine at the time of grant (“Restricted Stock”), including continued employment and/or achievement of pre-established performance goals and objectives.




 

2.3  Administration .  The Plan shall be administered by the Board of Directors of the Company, whose construction and interpretation of the terms and provisions of the Plan shall be final and conclusive.  The Board of Directors may in its sole discretion issue Restricted Stock and grant Options to purchase shares of Common Stock, and issue shares upon exercise of such Options as provided in the Plan.  The Board shall have authority, subject to the express provisions of the Plan, to construe the respective Restricted Stock Agreements (as defined in Section 5.2), Option Agreements and the Plan, to prescribe, amend and rescind rules and regulations relating to the Plan, to determine the terms and provisions of the respective Restricted Stock Agreements and Option Agreements, and to make all other determinations in the judgment of the Board of Directors necessary or desirable for the administration of the Plan.  The Board of Directors may correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Restricted Stock Agreement or Option Agreement in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency.  No director or person acting pursuant to authority delegated by the Board of Directors shall be liable for any action or determination under the Plan made in good faith.  The Board of Directors may, to the full extent permitted by or consistent with applicable laws or regulations (including, without limitation, applicable state law), delegate any or all of its powers under the Plan to a committee (the “Committee”) appointed by the Board of Directors, and if the Committee is so appointed all references to the Board of Directors in the Plan shall mean and relate to such Committee.

3.  Eligibility .  Options may be granted, and Restricted Stock may be issued, to persons who are, at the time of such grant or issuance, employees, officers or directors of, or consultants or advisors to, the Company; provided , that the class of persons to whom Incentive Stock Options may be granted shall be limited to employees of the Company.

4.  Stock Subject to Plan .  Subject to adjustment as provided in Section 14 below, the maximum number of shares of Common Stock of the Company which may be issued under the Plan is 1,028,662 shares.  If an Option shall expire or terminate for any reason without having been exercised in full, the unpurchased shares subject to such Option shall again be available for subsequent Option grants under the Plan.  If shares of Restricted Stock shall be forfeited to, or otherwise repurchased by, the Company pursuant to a Restricted Stock Agreement, such purchased shares shall again be available for subsequent Option grants or Restricted Stock Awards under the Plan.  If shares issued upon exercise of an Option are tendered to the Company in payment of the exercise price of an Option, such tendered shares shall again be available for subsequent Option grants under the Plan.

5.  Forms of Restricted Stock Agreements and Option Agreements .

5.1  Option Agreement .  As a condition to the grant of an Option, each recipient of an Option shall execute an option agreement (“Option Agreement”) in such form not inconsistent with the Plan as may be approved by the Board of Directors.  Such Option Agreements may differ among recipients.

5.2  Restricted Stock Agreement .  As a condition to the issuance of Restricted Stock, each recipient thereof shall execute an agreement (“Restricted Stock Agreement”) in such form not inconsistent with the Plan as may be approved by the Board of Directors.  Such




Restricted Stock Agreements may differ among recipients and need not be entitled “Restricted Stock Agreements.”

5.3  “Stand-Off” Agreement .  Unless the Board of Directors specifies otherwise, each Restricted Stock Agreement and each Option Agreement shall provide that the holder of any Option or the purchaser of any Restricted Stock agrees (i) for a period of 180 days from the effective date of any registration of securities of the Company in connection with an underwritten public offering under the Securities Act of 1933, as amended (the “Securities Act”), not to sell, make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of any shares of the Company’s common stock owned or controlled by him (other than those shares permitted to be included in the offering), without the prior written consent of the Company or the underwriters managing such offering, and (ii) to execute any agreement reflecting clause (i) above as may be requested by the Company or the managing underwriters at the time of such offering.

5.4  Right of First Refusal.   Unless the Board of Directors specifies otherwise, each Restricted Stock Agreement and each Option Agreement shall provide that the Company shall have a right of first refusal with respect to the transfer or proposed transfer of any Restricted Stock (whether or not subject to vesting limitations) or shares issued upon exercise of any Option granted hereunder.

6.  Purchase Price .

6.1  General .  The purchase price per share of Restricted Stock and per share of stock deliverable upon the exercise of an Option shall be determined by the Board of Directors, provided, however , that in the case of an Incentive Stock Option, the exercise price shall not be less than 100% of the fair market value of such stock, as determined by the Board of Directors, at the time of grant of such Option, or less than 110% of such fair market value in the case of Options described in Section 11.2.

6.2  Payment of Purchase Price .  Option Agreements may provide for the payment of the exercise price by delivery of cash or a check to the order of the Company in an amount equal to the exercise price of such Options, or, to the extent provided in the applicable Option Agreement, (i) by delivery to the Company of shares of Common Stock of the Company already owned by the optionee for a period of six months and having a fair market value equal in amount to the exercise price of the Options being exercised, (ii) a personal recourse note issued by the optionee to the Company in a principal amount equal to such aggregate exercise price and with such other terms, including interest rate and maturity, as the Company may determine in its discretion; provided, however, that the interest rate borne by such note shall not be less than the lowest applicable federal rate, as defined in Section 1274(d) of the Code, (iii) by any other means which the Board of Directors determines are consistent with the purpose of the Plan and with applicable laws and regulations or (iv) by any combination of such methods of payment.  The fair market value of any shares of the Company’s Common Stock or other non-cash consideration which may be delivered upon exercise of an Option shall be determined by the Board of Directors.  Restricted Stock Agreements may provide for the payment of any purchase price in any manner approved by the Board of Directors at the time of authorizing the issuance thereof.




 

7.  Option Period .  Each Option and all rights thereunder shall expire on such date as shall be set forth in the applicable Option Agreement, provided that , in any event, in the case of an Incentive Stock Option, such date shall not be later than 10 years after the date on which the Option is granted (or five years in the case of Options described in Section 11.2), and, in the case of non-statutory Options, not later than 10 years after the date on which the Option is granted, and, in either case, shall be subject to earlier termination as provided in the Plan.

8.  Exercise of Options .  Each Option shall be exercisable either in full or in installments at such time or times and during such period as shall be set forth in the agreement evidencing such Option, subject to the provisions of the Plan.

9.  Nontransferability of Options .  No Option shall be assignable or transferable by the person to whom it is granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution.  During the life an optionee, an Option held by him or her shall be exercisable only by the optionee.

10.  Effect of Termination .  No Incentive Stock Option may be exercised unless, at the time of such exercise, the optionee is, and has continuously since the date of grant of his or her Incentive Stock Option been, employed by the Company, except that, unless the Option Agreement or instrument expressly provides otherwise:

10.1  the Incentive Stock Option may be exercised within the period of thirty days (or within such lesser period as may be specified in the applicable Option Agreement) after the date the optionee’s employment with the Company terminates other than for death, disability or termination for Cause;

10.2  if the optionee dies while in the employ of the Company, the Incentive Stock Option may be exercised by the person to whom it is transferred by will or the laws of descent and distribution within the period of one hundred and eighty days after the date of death (or within such lesser period as may be specified in the applicable Option Agreement);

10.3  if the optionee becomes disabled (within the meaning of Section 22(e)(3) of the Code or any successor provision thereto) while in the employ of the Company, the Incentive Stock Option may be exercised within the period of one hundred and eighty days after the date the optionee ceases to be such an employee because of such disability (or within such lesser period as may be specified in the applicable Option Agreement); and

10.4  if the optionee’s employment with the Company is terminated by the Company for Cause, the Incentive Stock Option shall terminate immediately.  The term “Cause” shall mean (a) any breach by the optionee of any agreement to which the optionee and the Company are both parties (including, without limitation, breach by the optionee of any provision of any employment, consulting, advisory, nondisclosure, non-competition or other similar agreement), (b) any act (other than retirement) or omission to act by the optionee which may have a material and adverse effect on the Company’s business or on the optionee’s ability to perform services for the Company, including, without limitation, the commission of any crime (other than minor traffic violations), or (c) any material misconduct or material neglect of duties by the optionee in connection with the business or affairs of the Company or any parent, subsidiary or affiliate of




the Company.  The optionee shall be considered to have been discharged for Cause if the Company determines, within 30 days after the optionee’s resignation, that discharge for Cause was warranted.  The Board shall have sole authority and discretion to determine whether the optionee’s employment has been terminated for Cause; provided, however , that in no event may any Incentive Stock Option be exercised after the expiration date of the Incentive Stock Option.  For all purposes of the Plan and any Incentive Stock Option granted hereunder, “employment” shall be defined in accordance with the provisions of Section 1.421-7(h) of the Income Tax Regulations (or any successor regulations).

A non-statutory Option granted to an employee shall be subject to the foregoing provisions of this Section 10 as if it were an Incentive Stock Option, but a non-statutory Option may also be exercised so long as the optionee maintains a relationship with the Company as a director, consultant or adviser, unless the Option Agreement provides otherwise.

11.  Incentive Stock Options .  Options which are intended to be Incentive Stock Options shall be subject to the following additional terms and conditions:

11.1  Express Designation .  All Incentive Stock Options shall, at the time of grant, be specifically designated as such in the Option Agreement covering such Incentive Stock Options.

11.2  10% Shareholder .  If any employee to whom an Incentive Stock Option is to be granted is, at the time of the grant of such Option, the owner of stock possessing more than 10% of the total combined voting power of all classes of stock of the Company (after taking into account the attribution of stock ownership rules of Section 424(d) of the Code), then the following special provisions shall be applicable to the Incentive Stock Option granted to such individual:

11.2.1  the purchase price per share of the Common Stock subject to such Incentive Stock Option shall not be less than 110% of the fair market value of one share of Common Stock at the time of grant; and

11.2.2  the option exercise period shall not exceed five years from the date of grant.

11.3  Dollar Limitation .  For so long as the Code shall so provide, Options granted to any employee under the Plan (and any other incentive stock option plans of the Company) which are intended to constitute Incentive Stock Options shall not constitute Incentive Stock Options to the extent that such Options, in the aggregate, become exercisable for the first time in any one calendar year for shares of Common Stock with an aggregate fair market value (determined as of the respective date or dates of grant) of more than $100,000.

12.  Additional Provisions .

12.1  Additional Provisions .  The Board of Directors may, in its sole discretion, include additional provisions in Restricted Stock Agreements and Option Agreements, including, without limitation, restrictions on transfer, rights of the Company to repurchase shares of




Restricted Stock or shares of Common Stock acquired upon exercise of Options, commitments to pay cash bonuses, to make, arrange for or guaranty loans or to transfer other property to optionees upon exercise of Options, or such other provisions as shall be determined by the Board of Directors; provided that such additional provisions shall not be inconsistent with any other term or condition of the Plan and such additional provisions shall not be such as to cause any Incentive Stock Option to fail to qualify as an Incentive Stock Option within the meaning of Section 422 of the Code.

12.2  Acceleration, Extension, Etc .  The Board of Directors may, in its sole discretion, (i) accelerate the date or dates on which all or any particular Option or Options may be exercised or (ii) extend the dates during which all, or any particular, Option or Options may be exercised.

13.  Rights as a Shareholder .  The holder of an Option shall have no rights as a shareholder with respect to any shares covered by the Option (including, without limitation, any rights to receive dividends or non-cash distributions with respect to such shares) until the date of issue of a stock certificate to him or her for such shares.  No adjustment shall be made for dividends or other rights for which the record date is prior to the date such stock certificate is issued.

14.  Adjustment Provisions for Recapitalizations and Related Transactions .

14.1  General .  In the event of any stock split, reverse stock split, stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any dividend or distribution to holders of Common Stock other than an ordinary cash dividend, (i) the number and class of securities available under this Plan, (ii) the number and class of securities and exercise price per share of each outstanding Option and (iii) the number of shares subject to and the repurchase price per share subject to each outstanding Restricted Stock Award shall be equitably adjusted by the Company (or substituted awards may be made, if applicable) in the manner determined by the Board.  Without limiting the generality of the foregoing, in the event the Company effects a split of the Common Stock by means of a stock dividend and the exercise price of and the number of shares subject to an outstanding Option are adjusted as of the date of the distribution of the dividend (rather than as of the record date for such dividend), then an optionee who exercises an Option between the record date and the distribution date for such stock dividend shall be entitled to receive, on the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such stock dividend.  Notwithstanding the foregoing, no adjustment shall be made pursuant to this Section 14 if such adjustment would cause the Plan to fail to comply with Section 422 of the Code.

14.2  Board Authority to Make Adjustments .  Any adjustments under this Section 14 will be made by the Board of Directors, whose determination as to what adjustments, if any, will be made and the extent thereof will be final, binding and conclusive.  No fractional shares will be issued under the Plan on account of any such adjustments.




 

15.  Merger, Consolidation, Asset Sale, Liquidation, etc .

15.1  General .  In the event of a consolidation or merger or sale of all or substantially all of the assets of the Company in which outstanding shares of Common Stock are exchanged for securities, cash or other property of any other corporation or business entity, or in the event of a liquidation of the Company, the Board of Directors of the Company, or the board of directors of any corporation assuming the obligations of the Company, may, in its discretion, take any one or more of the following actions, as to some or all outstanding Options (and need not take the same action as to each such Option): (i) provide that such Options shall be assumed, or equivalent Options shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), provided that any such Options substituted for Incentive Stock Options shall meet the requirements of Section 424(a) of the Code, (ii) upon written notice to the optionees, provide that all unexercised Options will terminate immediately prior to the consummation of such transaction unless exercised by the optionee (to the extent otherwise then exercisable) within a specified period following the date of such notice, (iii) in the event of a merger under the terms of which holders of the Common Stock of the Company will receive upon consummation thereof a cash payment for each share surrendered in the merger (the “Merger Price”), make or provide for a cash payment to the optionees equal to the difference between (A) the Merger Price times the number of shares of Common Stock subject to such outstanding Options (to the extent then exercisable at prices not in excess of the Merger Price) and (B) the aggregate exercise price of all such outstanding Options, in exchange for the termination of such Options, and (iv) provide that all or any outstanding Options shall become exercisable in full immediately prior to such event.

15.2  Substitute Options .  The Company may grant Options in substitution for Options held by employees of another corporation who become employees of the Company, or a subsidiary of the Company, as the result of a merger or consolidation of the employing corporation with the Company or a subsidiary of the Company, or as a result of the acquisition by the Company, or one of its subsidiaries, of property or stock of the employing corporation.  The Company may direct that substitute Options be granted on such terms and conditions as the Board of Directors considers appropriate in the circumstances.

15.3  Restricted Stock.   In the event of a business combination or other transaction of the type detailed in Section 15.1, any securities, cash or other property received in exchange for shares of Restricted Stock shall continue to be governed by the provisions of any Restricted Stock Agreement pursuant to which they were issued, including any provision regarding vesting, and such securities, cash, or other property may be held in escrow on such terms as the Board of Directors may direct, to insure compliance with the terms of any such Restricted Stock Agreement.

16.  No Special Employment Rights .  Nothing contained in the Plan or in any Option or Grant Stock Agreement shall confer upon any optionee any right with respect to the continuation of his or her employment by the Company or interfere in any way with the right of the Company at any time to terminate such employment or to increase or decrease the compensation of the optionee.




 

17.  Other Employee Benefits .  The amount of any compensation deemed to be received by an employee as a result of the issuance of shares of Restricted Stock or the grant or exercise of an Option or the sale of shares received upon such award or exercise will not constitute compensation with respect to which any other employee benefits of such employee are determined, including, without limitation, benefits under any bonus, pension, profit-sharing, life insurance or salary continuation plan, except as otherwise specifically determined by the Board of Directors.

18.  Amendment of the Plan and Awards .

18.1  The Board of Directors may at any time, and from time to time, modify or amend the Plan in any respect, except that if at any time the approval of the shareholders of the Company is required under Section 422 of the Code or any successor provision with respect to Incentive Stock Options, the Board of Directors may not effect such modification or amendment without such approval.

18.2  The Board of Directors may amend, modify or terminate any outstanding Option or Restricted Stock Award, including but not limited to, substituting therefore another Option or Restricted Stock Award of the same or a different type, changing the date of exercise or realization, and converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that such holder’s or purchaser’s consent to such action shall be required unless the Board of Directors determines that the action, taking into account any related action, would not materially and adversely affect such holder or purchaser.

18.3  The Board of Directors shall have the right to amend or modify the terms and provisions of the Plan and of any outstanding Incentive Stock Options to the extent necessary to qualify any or all such Options for such favorable federal income tax treatment (including deferral of taxation upon exercise) as may be afforded incentive stock options under Section 422 of the Code.

19.  Withholding .  The Company shall have the right to deduct from payments of any kind otherwise due to the optionee any federal, state or local taxes of any kind required by law to be withheld with respect to issuance of any shares of Restricted Stock or shares issued upon exercise of Options.  Subject to the prior approval of the Company, which may be withheld by the Company in its sole discretion, the obligor may elect to satisfy such minimum withholding obligations, in whole or in part, (i) by causing the Company to withhold shares of Common Stock otherwise issuable or (ii) by delivering to the Company shares of Common Stock already owned by the obligor for a period of at least six months.  The shares so delivered or withheld shall have a fair market value equal to such withholding obligation.  The fair market value of the shares used to satisfy such withholding obligation shall be determined by the Company as of the date that the amount of tax to be withheld is to be determined.  A person who has made an election pursuant to this Section 19 may only satisfy his or her withholding obligation with shares of Common Stock which are not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements.




 

20.  Effective Date and Duration of the Plan .

20.1  Effective Date .  The Plan shall become effective when adopted by the Board of Directors, but no Incentive Stock Option shall become exercisable unless and until the Plan shall have been approved by the Company’s shareholders.  If such shareholder approval is not obtained within twelve months after the date of the Board’s adoption of the Plan, no Options previously granted under the Plan shall be deemed to be Incentive Stock Options and no Incentive Stock Options shall be granted thereafter.  Amendments to the Plan not requiring shareholder approval shall become effective when adopted by the Board of Directors; amendments requiring shareholder approval (as provided in Section 18) shall become effective when adopted by the Board of Directors, but no Incentive Stock Option granted after the date of such amendment shall become exercisable (to the extent that such amendment to the Plan was required to enable the Company to grant such Incentive Stock Option to a particular optionee) unless and until such amendment shall have been approved by the Company’s shareholders.  If such shareholder approval is not obtained within twelve months of the Board’s adoption of such amendment, any Incentive Stock Options granted on or after the date of such amendment shall terminate to the extent that such amendment to the Plan was required to enable the Company to grant such Option to a particular optionee.  Subject to this limitation, Options may be granted under the Plan at any time after the effective date and before the date fixed for termination of the Plan.

20.2  Termination .  Unless sooner terminated in accordance with Section 15 or by the Board of Directors, the Plan shall terminate upon the close of business on the day next preceding the tenth anniversary of the date of its adoption by the Board of Directors.

21.  Provision for Foreign Participants .  The Board of Directors may, without amending the Plan, modify the terms of Option or Grant Stock Agreements to differ from those specified in the Plan with respect to participants who are foreign nationals or employed outside the United States to recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.

22.  Requirements of Law .  The Company shall not be required to sell or issue any shares under any Option if the issuance of such shares shall constitute a violation by the optionee or by the Company of any provisions of any law or regulation of any governmental authority.  In addition, in connection with the Securities Act, the Company shall not be required to issue any shares upon exercise of any Option unless the Company has received evidence satisfactory to it to the effect that the holder of such Option will not transfer such shares except pursuant to a registration statement in effect under the Act or unless an opinion of counsel satisfactory to the Company has been received by the Company to the effect that such registration is not required in connection with any such transfer. Any determination in this connection by the Board shall be final, binding and conclusive.  In the event the shares issuable on exercise of an Option are not registered under the Act or under the securities laws of each relevant state or other jurisdiction, the Company may imprint on the certificate(s) appropriate legends that counsel for the Company considers necessary or advisable to comply with the Act or any such state or other securities law.  The Company may register, but in no event shall be obligated to register, any securities covered by the Plan pursuant to the Act; and in the event any shares are so registered the Company may remove any legend on certificates representing such shares.  The Company shall not be obligated




to take any affirmative action in order to cause the exercise of an Option or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority.

23.  Governing Law .  This Plan and each Option shall be governed by the laws of  the Commonwealth of Massachusetts, without regard to its principles of conflicts of law.

*  *  *



Exhibit 10.18

MOMENTA PHARMACEUTICALS, INC.

2004 STOCK INCENTIVE PLAN

(as amended May 26, 2005 and March 7, 2007)

1.             Purpose

The purpose of this 2004 Stock Incentive Plan (the “Plan”) of Momenta Pharmaceuticals, Inc., a Delaware corporation (the “Company”), is to advance the interests of the Company’s stockholders by enhancing the Company’s ability to attract, retain and motivate persons who are expected to make important contributions to the Company and by providing such persons with equity ownership opportunities and performance-based incentives that are intended to better align their interests with those of the Company’s stockholders.  Except where the context otherwise requires, the term “Company” shall include any of the Company’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the “Code”) and any other business venture (including, without limitation, joint venture or limited liability company) in which the Company has a controlling interest, as determined by the Board of Directors of the Company (the “Board”).

2.             Eligibility

All of the Company’s employees, officers, directors, consultants and advisors are eligible to receive options, restricted stock awards, stock appreciation rights and other stock-based awards (each, an “Award”) under the Plan.  Each person who receives an Award under the Plan is deemed a “Participant”.

3.             Administration and Delegation

(a)   Administration by Board of Directors .  The Plan will be administered by the Board.  The Board shall have authority to grant Awards and to adopt, amend and repeal such administrative rules, guidelines and practices relating to the Plan as it shall deem advisable.  The Board may correct any defect, supply any omission or reconcile any inconsistency in the Plan or any Award in the manner and to the extent it shall deem expedient to carry the Plan into effect and it shall be the sole and final judge of such expediency.  All decisions by the Board shall be made in the Board’s sole discretion and shall be final and binding on all persons having or claiming any interest in the Plan or in any Award.  No director or person acting pursuant to the authority delegated by the Board shall be liable for any action or determination relating to or under the Plan made in good faith.

(b)   Appointment of Committees .   To the extent permitted by applicable law, the Board may delegate any or all of its powers under the Plan to one or more committees or subcommittees of the Board (a “Committee”).  All references in the Plan to the “Board” shall mean the Board or a Committee of the Board or the officers referred to in Section 3(c) to the




extent that the Board’s powers or authority under the Plan have been delegated to such Committee or officers.

(c)   Delegation to Officers .  To the extent permitted by applicable law, the Board may delegate to one or more officers of the Company the power to grant Awards to employees or officers of the Company or any of its present or future subsidiary corporations and to exercise such other powers under the Plan as the Board may determine, provided that the Board shall fix the terms of the Awards to be granted by such officers (including the exercise price of such Awards, which may include a formula by which the exercise price will be determined) and the maximum number of shares subject to Awards that the officers may grant; provided further, however, that no officer shall be authorized to grant Awards to any “executive officer” of the Company (as defined by Rule 3b-7 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or to any “officer” of the Company (as defined by Rule 16a-1 under the Exchange Act).

4.             Stock Available for Awards

(a)   Number of Shares .  Subject to adjustment under Section 10, Awards may be made under the Plan for up to the number of shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), that is equal to the sum of:

(1)           3,948,785 shares of Common Stock; plus

(2)           an annual increase to be added on the first day of each of the Company’s fiscal years during the period beginning in fiscal year 2005 and ending on the second day of fiscal year 2013 equal to the lowest of (i) 1,974,393 shares of Common Stock, (ii) 5% of the outstanding shares on such date and (iii) an amount determined by the Board.

Notwithstanding clause (2) above, in no event shall the number of shares available under this Plan be increased as set forth in clause (2) to the extent such increase, in addition to any other increases proposed by the Board in the number of shares available for issuance under all other employee or director stock plans, including, without limitation, employee stock purchase plans, would result in the total number of shares then available for issuance under all employee and director stock plans exceeding 25% of the outstanding shares of the Company on the first day of the applicable fiscal year.

If any Award expires or is terminated, surrendered or canceled without having been fully exercised or is forfeited in whole or in part (including as the result of shares of Common Stock subject to such Award being repurchased by the Company at the original issuance price pursuant to a contractual repurchase right) or results in any Common Stock not being issued, the unused Common Stock covered by such Award shall again be available for the grant of Awards under the Plan, subject, however, in the case of Incentive Stock Options, to any limitations under the Code.  Shares issued under the Plan may consist in whole or in part of authorized but unissued shares or treasury shares.

(b)           Per-Participant Limit .  Subject to adjustment under Section 10, for Awards granted after the Common Stock is registered under the Exchange Act, the maximum number of shares




of Common Stock with respect to which Awards may be granted to any Participant under the Plan shall be 512,000 per calendar year.  The per-Participant limit described in this Section 4(b) shall be construed and applied consistently with Section 162(m) of the Code (“Section 162(m)”).

5.             Stock Options

(a)   General .  The Board may grant options to purchase Common Stock (each, an “Option”) and determine the number of shares of Common Stock to be covered by each Option, the exercise price of each Option and the conditions and limitations applicable to the exercise of each Option, including conditions relating to applicable federal or state securities laws, as it considers necessary or advisable.  An Option which is not intended to be an Incentive Stock Option (as hereinafter defined) shall be designated a “Nonstatutory Stock Option”.

(b)   Incentive Stock Options .  An Option that the Board intends to be an “incentive stock option” as defined in Section 422 of the Code (an “Incentive Stock Option”) shall only be granted to employees of Momenta Pharmaceuticals, Inc., any of Momenta Pharmaceutical Inc.’s present or future parent or subsidiary corporations as defined in Sections 424(e) or (f) of the Code, and any other entities the employees of which are eligible to receive Incentive Stock Options under the Code, and shall be subject to and shall be construed consistently with the requirements of Section 422 of the Code.  The Company shall have no liability to a Participant, or any other party, if an Option (or any part thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock Option or for any action taken by the Board pursuant to Section 11(f), including without limitation the conversion of an Incentive Stock Option to a Nonstatutory Stock Option.

(c)   Exercise Price .  The Board shall establish the exercise price of each Option and specify such exercise price in the applicable option agreement.

(d)   Duration of Options .  Each Option shall be exercisable at such times and subject to such terms and conditions as the Board may specify in the applicable option agreement; provided, however, that no Option will be granted for a term in excess of 10 years.

(e)   Exercise of Option .  Options may be exercised by delivery to the Company of a written notice of exercise signed by the proper person or by any other form of notice (including electronic notice) approved by the Board together with payment in full as specified in Section 5(f) for the number of shares for which the Option is exercised.

(f)    Payment Upon Exercise.   Common Stock purchased upon the exercise of an Option granted under the Plan shall be paid for as follows:

(1)           in cash or by check, payable to the order of the Company;

(2)           except as the Board may otherwise provide in an option agreement, by (i) delivery of an irrevocable and unconditional undertaking by a creditworthy broker to deliver promptly to the Company sufficient funds to pay the exercise price and any required tax withholding or (ii) delivery by the Participant to the Company of a copy of irrevocable and unconditional instructions to a creditworthy broker to deliver promptly to the Company cash or a check sufficient to pay the exercise price and any required tax withholding;




 

(3)           when the Common Stock is registered under the Exchange Act, by delivery of shares of Common Stock owned by the Participant valued at their fair market value as determined by (or in a manner approved by) the Board (“Fair Market Value”), provided (i) such method of payment is then permitted under applicable law, (ii) such Common Stock, if acquired directly from the Company, was owned by the Participant at least six months prior to such delivery and (iii) such Common Stock is not subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements;

(4)           to the extent permitted by applicable law and by the Board, by (i) delivery of a promissory note of the Participant to the Company on terms determined by the Board, or (ii) payment of such other lawful consideration as the Board may determine; or

(5)           by any combination of the above permitted forms of payment.

(g)   Substitute Options .  In connection with a merger or consolidation of an entity with the Company or the acquisition by the Company of property or stock of an entity, the Board may grant Options in substitution for any options or other stock or stock-based awards granted by such entity or an affiliate thereof.  Substitute Options may be granted on such terms as the Board deems appropriate in the circumstances, notwithstanding any limitations on Options contained in the other sections of this Section 5 or in Section 2.

6.             Director Options .

(a)   Initial Grant .  Upon the commencement of service on the Board by any individual who is not then an employee of the Company or any subsidiary of the Company, the Company shall grant to such person a Nonstatutory Stock Option to purchase no more than 38,400 shares of Common Stock (subject to adjustment under Section 10).

(b)   Annual Grant .  Subject to an annual evaluation, which evaluation shall be overseen by the Corporation’s Nominating and Corporate Governance Committee, on the date of each annual meeting of stockholders of the Company, the Company shall grant to each member of the Board of Directors of the Company who is both serving as a director of the Company immediately prior to and immediately following such annual meeting and who is not then an employee of the Company or any of its subsidiaries, a Nonstatutory Stock Option to purchase no more than 19,200 shares of Common Stock (subject to adjustment under Section 10); provided, however, that a director shall not be eligible to receive an option grant under this Section 6(b) until such director has served on the Board for at least six months.

(c)   Terms of Director Options .  Options granted under this Section 6 shall (i) have an exercise price equal to the last reported sale price of the Common Stock on The Nasdaq Stock Market or the national securities exchange on which the Common Stock is then traded on the trading date immediately prior to the date of grant (and if the Common Stock is not then traded on The Nasdaq Stock Market or a national securities exchange, the fair market value of the Common Stock on such date as determined by the Board), (ii) be exercisable at such times as the Board may specify in the applicable option agreement; provided, however, that no option will be granted to a non-employee director for a term in excess of 10 years and (iii) contain such other terms and conditions as the Board shall determine.




 

7.             Stock Appreciation Rights .

(a)   Nature of Stock Appreciation Rights . A Stock Appreciation Right, or SAR, is an Award entitling the holder on exercise to receive an amount in cash or Common Stock or a combination thereof (such form to be determined by the Board) determined in whole or in part by reference to appreciation, from and after the date of grant, in the fair market value of a share of Common Stock.  SARs may be based solely on appreciation in the fair market value of Common Stock or on a comparison of such appreciation with some other measure of market growth such as (but not limited to) appreciation in a recognized market index.  The date as of which such appreciation or other measure is determined shall be the exercise date unless another date is specified by the Board in the SAR Award.

(b)   Grants .   Stock Appreciation Rights may be granted in tandem with, or independently of, Options granted under the Plan.

(1)           Rules Applicable to Tandem Awards .   When Stock Appreciation Rights are expressly granted in tandem with Options, (i) the Stock Appreciation Right will be exercisable only at such time or times, and to the extent, that the related Option is exercisable and will be exercisable in accordance with the procedure required for exercise of the related Option; (ii) the Stock Appreciation Right will terminate and no longer be exercisable upon the termination or exercise of the related Option, except that a Stock Appreciation Right granted with respect to less than the full number of shares covered by an Option will not be reduced until the number of shares as to which the related Option has been exercised or has terminated exceeds the number of shares not covered by the Stock Appreciation Right; (iii) the Option will terminate and no longer be exercisable upon the exercise of the related Stock Appreciation Right; and (iv) the Stock Appreciation Right will be transferable only with the related Option.

(2)           Exercise of Independent Stock Appreciation Rights A Stock Appreciation Right not expressly granted in tandem with an Option will become exercisable at such time or times, and on such conditions, as the Board may specify in the SAR Award.

(c)   Exercise .  Any exercise of a Stock Appreciation Right must be in writing, signed by the proper person and delivered or mailed to the Company, accompanied by any other documents required by the Board.

8.             Restricted Stock .

(a)   Grants .  The Board may grant Awards entitling recipients to acquire shares of Common Stock, subject to the right of the Company to repurchase all or part of such shares at their issue price or other stated or formula price (or to require forfeiture of such shares if issued at no cost) from the recipient in the event that conditions specified by the Board in the applicable Award are not satisfied prior to the end of the applicable restriction period or periods established by the Board for such Award (each, a “Restricted Stock Award”).

(b)   Terms and Conditions .  The Board shall determine the terms and conditions of a Restricted Stock Award, including the conditions for repurchase (or forfeiture) and the issue price, if any.




 

(c)   Stock Certificates .  Any stock certificates issued in respect of a Restricted Stock Award shall be registered in the name of the Participant and, unless otherwise determined by the Board, deposited by the Participant, together with a stock power endorsed in blank, with the Company (or its designee).  At the expiration of the applicable restriction periods, the Company (or such designee) shall deliver the certificates no longer subject to such restrictions to the Participant or if the Participant has died, to the beneficiary designated, in a manner determined by the Board, by a Participant to receive amounts due or exercise rights of the Participant in the event of the Participant’s death (the “Designated Beneficiary”).  In the absence of an effective designation by a Participant, “Designated Beneficiary” shall mean the Participant’s estate.

(d)   Deferred Delivery of Shares .  The Board may, at the time any Restricted Stock Award is granted, provide that, at the time Common Stock would otherwise be delivered pursuant to the Award, the Participant shall instead receive an instrument evidencing the right to future delivery of Common Stock at such time or times, and on such conditions, as the Board shall specify.  The Board may at any time accelerate the time at which delivery of all or any part of the Common Stock shall take place.

9.             Other Stock-Based Awards .

Other Awards of shares of Common Stock, and other Awards that are valued in whole or in part by reference to, or are otherwise based on, shares of Common Stock or other property, may be granted hereunder to Participants (“Other Stock Unit Awards”), including without limitation Awards entitling recipients to receive shares of Common Stock to be delivered in the future.  Such Other Stock Unit Awards shall also be available as a form of payment in the settlement of other Awards granted under the Plan or as payment in lieu of compensation to which a Participant is otherwise entitled.  Other Stock Unit Awards may be paid in shares of Common Stock or cash, as the Board shall determine.  Subject to the provisions of the Plan, the Board shall determine the conditions of each Other Stock Unit Awards, including any purchase price applicable thereto.  At the time any Award is granted, the Board may provide that, at the time Common Stock would otherwise be delivered pursuant to the Award, the Participant will instead receive an instrument evidencing the Participant’s right to future delivery of the Common Stock.

10.           Adjustments for Changes in Common Stock and Certain Other Events .

(a)   Changes in Capitalization .  In the event of any stock split, reverse stock split, stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event, or any dividend or distribution to holders of Common Stock other than an ordinary cash dividend, (i) the number and class of securities available under this Plan, (ii) the sub-limit set forth in Section 4(b), (iii) the number and class of securities and exercise price per share of each outstanding Option and each Option issuable under Section 6, (iv) the share- and per-share provisions and the exercise price of each SAR, (v) the number of shares subject to and the repurchase price per share subject to each outstanding Restricted Stock Award and (vi) the share- and per-share-related provisions and the purchase price, if any, of each outstanding Other Stock Unit Award, shall be equitably adjusted by the Company (or substituted Awards may be made, if applicable) in the manner determined by the Board.  Without limiting the generality of the foregoing, in the event the Company effects a split of the Common Stock by




means of a stock dividend and the exercise price of and the number of shares subject to an outstanding Option are adjusted as of the date of the distribution of the dividend (rather than as of the record date for such dividend), then an optionee who exercises an Option between the record date and the distribution date for such stock dividend shall be entitled to receive, on the distribution date, the stock dividend with respect to the shares of Common Stock acquired upon such Option exercise, notwithstanding the fact that such shares were not outstanding as of the close of business on the record date for such stock dividend.

(b)   Reorganization Events .

(1)           Definition .  A “Reorganization Event” shall mean:  (a) any merger or consolidation of the Company with or into another entity as a result of which all of the Common Stock of the Company is converted into or exchanged for the right to receive cash, securities or other property, (b) any exchange of all of the Common Stock of the Company for cash, securities or other property pursuant to a share exchange transaction or (c) any liquidation or dissolution of the Company.

(2)           Consequences of a Reorganization Event on Awards Other than Restricted Stock Awards .  In connection with a Reorganization Event, the Board shall take any one or more of the following actions as to all or any outstanding Awards on such terms as the Board determines:  (i) provide that Awards shall be assumed, or substantially equivalent Awards shall be substituted, by the acquiring or succeeding corporation (or an affiliate thereof), (ii) upon written notice to a Participant, provide that the Participant’s unexercised Options or other unexercised Awards shall become exercisable in full and will terminate immediately prior to the consummation of such Reorganization Event unless exercised by the Participant within a specified period following the date of such notice, (iii) provide that outstanding Awards shall become realizable or deliverable, or restrictions applicable to an Award shall lapse, in whole or in part prior to or upon such Reorganization Event, (iv) in the event of a Reorganization Event under the terms of which holders of Common Stock will receive upon consummation thereof a cash payment for each share surrendered in the Reorganization Event (the “Acquisition Price”), make or provide for a cash payment to a Participant equal to (A) the Acquisition Price times the number of shares of Common Stock subject to the Participant’s Options or other Awards (to the extent the exercise price does not exceed the Acquisition Price) minus (B) the aggregate exercise price of all such outstanding Options or other Awards, in exchange for the termination of such Options or other Awards, (v) provide that, in connection with a liquidation or dissolution of the Company, Awards shall convert into the right to receive liquidation proceeds (if applicable, net of the exercise price thereof) and (vi) any combination of the foregoing.

For purposes of clause (i) above, an Option shall be considered assumed if, following consummation of the Reorganization Event, the Option confers the right to purchase, for each share of Common Stock subject to the Option immediately prior to the consummation of the Reorganization Event, the consideration (whether cash, securities or other property) received as a result of the Reorganization Event by holders of Common Stock for each share of Common Stock held immediately prior to the consummation of the Reorganization Event (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding shares of Common Stock); provided, however, that if the consideration received as a result of the Reorganization Event is not solely common stock of the




acquiring or succeeding corporation (or an affiliate thereof), the Company may, with the consent of the acquiring or succeeding corporation, provide for the consideration to be received upon the exercise of Options to consist solely of common stock of the acquiring or succeeding corporation (or an affiliate thereof) equivalent in fair market value to the per share consideration received by holders of outstanding shares of Common Stock as a result of the Reorganization Event.

To the extent all or any portion of an Option becomes exercisable solely as a result of clause (ii) above, the Board may provide that upon exercise of such Option the Participant shall receive shares subject to a right of repurchase by the Company or its successor at the Option exercise price; such repurchase right (x) shall lapse at the same rate as the Option would have become exercisable under its terms and (y) shall not apply to any shares subject to the Option that were exercisable under its terms without regard to clause (ii) above.

(3)           Consequences of a Reorganization Event on Restricted Stock Awards .  Upon the occurrence of a Reorganization Event other than a liquidation or dissolution of the Company, the repurchase and other rights of the Company under each outstanding Restricted Stock Award shall inure to the benefit of the Company’s successor and shall apply to the cash, securities or other property which the Common Stock was converted into or exchanged for pursuant to such Reorganization Event in the same manner and to the same extent as they applied to the Common Stock subject to such Restricted Stock Award.  Upon the occurrence of a Reorganization Event involving the liquidation or dissolution of the Company, except to the extent specifically provided to the contrary in the instrument evidencing any Restricted Stock Award or any other agreement between a Participant and the Company, all restrictions and conditions on all Restricted Stock Awards then outstanding shall automatically be deemed terminated or satisfied.

11.           General Provisions Applicable to Awards

(a)   Transferability of Awards .  Except as the Board may otherwise determine or provide in an Award, Awards shall not be sold, assigned, transferred, pledged or otherwise encumbered by the person to whom they are granted, either voluntarily or by operation of law, except by will or the laws of descent and distribution or, other than in the case of an Incentive Stock Option, pursuant to a qualified domestic relations order, and, during the life of the Participant, shall be exercisable only by the Participant.  References to a Participant, to the extent relevant in the context, shall include references to authorized transferees.

(b)   Documentation .  Each Award shall be evidenced in such form (written, electronic or otherwise) as the Board shall determine.  Each Award may contain terms and conditions in addition to those set forth in the Plan.

(c)   Board Discretion .  Except as otherwise provided by the Plan, each Award may be made alone or in addition or in relation to any other Award.  The terms of each Award need not be identical, and the Board need not treat Participants uniformly.

(d)   Termination of Status .  The Board shall determine the effect on an Award of the disability, death, retirement, authorized leave of absence or other change in the employment or other status of a Participant and the extent to which, and the period during which, the Participant,




or the Participant’s legal representative, conservator, guardian or Designated Beneficiary, may exercise rights under the Award.

(e)   Withholding .  Each Participant shall pay to the Company, or make provision satisfactory to the Company for payment of, any taxes required by law to be withheld in connection with an Award to such Participant.  Except as the Board may otherwise provide in an Award, for so long as the Common Stock is registered under the Exchange Act, Participants may satisfy such tax obligations in whole or in part by delivery of shares of Common Stock, including shares retained from the Award creating the tax obligation, valued at their Fair Market Value; provided, however, that the total tax withholding where stock is being used to satisfy such tax obligations cannot exceed the Company’s minimum statutory withholding obligations (based on minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to such supplemental taxable income).  Shares surrendered to satisfy tax withholding requirements cannot be subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements.  The Company may, to the extent permitted by law, deduct any such tax obligations from any payment of any kind otherwise due to a Participant.

(f)    Amendment of Award .  The Board may amend, modify or terminate any outstanding Award, including but not limited to, substituting therefor another Award of the same or a different type, changing the date of exercise or realization, and converting an Incentive Stock Option to a Nonstatutory Stock Option, provided that the Participant’s consent to such action shall be required unless the Board determines that the action, taking into account any related action, would not materially and adversely affect the Participant.

(g)   Conditions on Delivery of Stock .  The Company will not be obligated to deliver any shares of Common Stock pursuant to the Plan or to remove restrictions from shares previously delivered under the Plan until (i) all conditions of the Award have been met or removed to the satisfaction of the Company, (ii) in the opinion of the Company’s counsel, all other legal matters in connection with the issuance and delivery of such shares have been satisfied, including any applicable securities laws and any applicable stock exchange or stock market rules and regulations, and (iii) the Participant has executed and delivered to the Company such representations or agreements as the Company may consider appropriate to satisfy the requirements of any applicable laws, rules or regulations.

(h)   Acceleration .  The Board may at any time provide that any Award shall become immediately exercisable in full or in part, free of some or all restrictions or conditions, or otherwise realizable in full or in part, as the case may be.

12.           Miscellaneous

(a)   No Right To Employment or Other Status .  No person shall have any claim or right to be granted an Award, and the grant of an Award shall not be construed as giving a Participant the right to continued employment or any other relationship with the Company.  The Company expressly reserves the right at any time to dismiss or otherwise terminate its relationship with a Participant free from any liability or claim under the Plan, except as expressly provided in the applicable Award.




 

(b)   No Rights As Stockholder .  Subject to the provisions of the applicable Award, no Participant or Designated Beneficiary shall have any rights as a stockholder with respect to any shares of Common Stock to be distributed with respect to an Award until becoming the record holder of such shares.

(c)   Effective Date and Term of Plan .  The Plan shall become effective on the date on which it is adopted by the Board, but no Award may be granted unless and until the Plan has been approved by the Company’s stockholders.  No Awards shall be granted under the Plan after the completion of 10 years from the earlier of (i) the date on which the Plan was adopted by the Board or (ii) the date the Plan was approved by the Company’s stockholders, but Awards previously granted may extend beyond that date.

(d)   Amendment of Plan .  The Board may amend, suspend or terminate the Plan or any portion thereof at any time; provided that, to the extent determined by the Board, no amendment requiring stockholder approval under any applicable legal, regulatory or listing requirement shall become effective until such stockholder approval is obtained.  No Award shall be made that is conditioned upon stockholder approval of any amendment to the Plan.

(e)   Provisions for Foreign Participants .  The Board may modify Awards or Options granted to Participants who are foreign nationals or employed outside the United States or establish subplans or procedures under the Plan to recognize differences in laws, rules, regulations or customs of such foreign jurisdictions with respect to tax, securities, currency, employee benefit or other matters.

(f)    Governing Law .  The provisions of the Plan and all Awards made hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to any applicable conflicts of law.



 

Exhibit 10.22

Executive Officer Compensation Summary

The executive officers of Momenta Pharmaceuticals, Inc. (the “Company”) are: (i) Craig A. Wheeler, President and Chief Executive Officer; (ii) John E. Bishop, Senior Vice President, Pharmaceutical Sciences; (iii) Steven B. Brugger, Senior Vice President, Strategic Business Operations; (iv) Richard P. Shea, Vice President, Chief Financial Officer; (v) Ganesh Venkataraman, Senior Vice President, Research; and (vi) Lisa Carron Shmerling, Vice President, Legal Affairs.

The compensation structure for executive officers of the Company consists of three components: (i) base salary, (ii) discretionary cash bonuses and (iii) stock options or other equity-based awards.

Employment Agreements With Executive Officers

The Company has entered into employment agreements with Craig A. Wheeler and Ganesh Venkataraman. The annual salary, severance and termination provisions of such agreements are as follows:

Craig A. Wheeler

On August 22, 2006, the Company entered into an employment agreement with Craig A. Wheeler, pursuant to which Mr. Wheeler serves as the Company’s President, Chief Executive Officer and as a Class II director of the Company. Pursuant to his employment agreement, Mr. Wheeler will receive an annual base salary of $500,000, subject to annual increases by the Company’s Board of Directors. For fiscal year 2006, Mr. Wheeler was guaranteed a bonus of up to 60% of his base salary as of December 31, 2006 pro-rated for his period of employment during 2006. Beginning with fiscal year 2007, Mr. Wheeler will be eligible to receive bonuses of up to 150% of his base salary for the applicable fiscal year, with an annual bonus target of 60% of the then-applicable base salary. Mr. Wheeler is also entitled to specified benefits, including: (i) participation in Company sponsored benefit programs, (ii) reimbursement for life insurance premium expenses and related tax gross-up payments, (iii) reimbursement of moving and travel expenses, and temporary housing and living expenses, including payment for a rental car, during the one-year period following the commencement of Mr. Wheeler’s employment with the Company and (iv) reimbursement of tax and financial advisor fees incurred by Mr. Wheeler during the period of his employment.

Mr. Wheeler’s employment agreement provides for the grant or issuance, as applicable, of the following stock-based awards to Mr. Wheeler. On August 22, 2006, the Company granted Mr. Wheeler an option to purchase 375,000 shares of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), at an exercise price of $16.18 per share (the “Initial Option Grant”). The Initial Option Grant will vest as to 25% of the shares subject to such option on August 22, 2007 and as to 6.25% of the shares subject to such option at the end of each three-month period thereafter. Additionally, on August 22, 2006, the Company issued to Mr. Wheeler 100,000 shares of restricted Common Stock (the “Time-Based Grant”). The shares of Common Stock subject to the Time-Based Grant vest and become free from forfeiture on the fourth anniversary of the date of issuance. On January 17, 2007, the Company issued to Mr. Wheeler 175,000 shares of restricted Common Stock (the “Performance Grant”). Subject to the acceleration provisions set forth in Mr. Wheeler’s employment agreement, the shares of Common Stock subject to the Performance Grant shall vest and become free from forfeiture upon fulfillment of any of the following conditions:

(1) on the date that the Board of Directors certifies that the Company (or any of the Company’s partners or collaborators) has commercially launched M-Enoxaparin in the United States, provided that (A) such commercial launch shall have occurred prior to January 17, 2011 and (B) Mr. Wheeler is then employed by the Company;

(2) on January 17, 2011, provided that Mr. Wheeler is then employed by the Company and the Board of Directors certifies that any one of the three following events shall have occurred: (A) the Company has consummated a public offering of shares of its Common Stock pursuant to a registration statement filed with the Securities and Exchange Commission with gross proceeds to the Company totaling at least $40.0 million; (B) the Company has executed a collaboration agreement with an unaffiliated third party partner (and has fulfilled the




 

conditions to closing set forth in such agreement or related agreement(s)), the terms of which shall include an irrevocable commitment from such third party to provide cash payments of at least $40.0 million to the Company within four years of the date of execution of such collaboration agreement, provided that such unaffiliated third party partner shall not include any party (i) with which the Company has an executed agreement or (ii) with which the Company has actively negotiated a collaboration, in each case prior to the date of the employment agreement; or (C) the closing price of the Common Stock on the Nasdaq Global Market has equaled or exceeded $25.00 over a period of 20 consecutive trading days (such price to be adjusted in the event of a stock split, reverse stock split, stock dividend, recapitalization, combination of shares, reclassification of shares, spin-off or other similar change in capitalization or event).

Notwithstanding the foregoing, if at any time during the four year-period ending on January 17, 2011 the Board of Directors elects to abandon the M-Enoxaparin program and no longer pursue the commercialization of M-Enoxaparin either for strategic reasons or as a result of adverse events in the regulatory process, the shares of Common Stock subject to the Performance Grant shall vest and become free from the forfeiture on the date that the Board certifies that any one of the three events set forth in item (2) above shall have occurred.

(3) in the event the shares of Common Stock subject to the Performance Grant do not vest before January 17, 2011 in accordance with the conditions set forth in items (1) or (2) above, provided that Mr. Wheeler is then employed by the Company, the date the Board of  Directors certifies that (A) the Company has commercially launched M-Enoxaparin in the United States or (B) any one of the three events set forth in item (2)(A)-(C) above shall have occurred, in each case on or after January 17, 2011 but prior to January 17, 2013.

In addition to the Initial Option Grant, the Time-Based Grant and the Performance Grant, Mr. Wheeler will be eligible to receive annual restricted stock awards and stock option grants, the first of which shall be issued and granted, respectively, to Mr. Wheeler on or about January 1, 2008 provided he is still employed by the Company. Subject to approval of the Company’s Board of Directors upon recommendation by the Compensation Committee of the Company’s Board of Directors (the “Committee”), on or about January 1, 2008, Mr. Wheeler will be eligible to receive (i) a target award of 75,000 shares of restricted Common Stock subject to vesting over four (4) years (unless Mr. Wheeler and the Company otherwise agree that the vesting of such shares shall be subject to performance conditions) (the “First Target Grant”) and (ii) an option to purchase a target amount of 100,000 shares of Common Stock subject to vesting over four (4) years, with an exercise price equal to the fair market value of the Common Stock on the date of grant (the “Second Target Grant”).

In the event that Mr. Wheeler’s employment is terminated by the Company without cause, by reason of his death or disability or by him for good reason, other than in connection with a change in control (as those terms are defined in the employment agreement), (i) the vesting schedules applicable to the Initial Option Grant, the Time-Based Grant and the Performance Grant will be fully accelerated and the shares thereunder fully vested (except in the case of a termination without cause, in which case a total of 75,000 of the shares subject to the Performance Grant shall immediately vest), (ii) the vesting schedules applicable to the First Target Grant and Second Target Grant will accelerate by an additional 12 months and (iii) the vesting schedule applicable to all future stock-based awards held by Mr. Wheeler at the time of such termination will accelerate by 25%.

In the event Mr. Wheeler’s employment is terminated by the Company without cause within 24 months following a change of control (as such term is defined in the employment agreement) or is terminated by Mr. Wheeler for good reason within 24 months following a change of control, the unvested portions of the Initial Option Grant, the Time-Based Grant, the First Target Grant, the Second Target Grant, the Performance Grant and all future stock-based awards shall fully and immediately vest.

Under his employment agreement, Mr. Wheeler or the Company may terminate his employment at any time, subject to the following severance benefits. In the event Mr. Wheeler’s employment is terminated without cause by the Company, as the result of death or disability or Mr. Wheeler terminates his employment for good reason, other than in connection with a change in control, Mr. Wheeler will receive a lump sum payment equal to (i) 12 months of the highest base salary in effect during the 12 months prior to the date of termination and (ii) the greater of 60% of Mr. Wheeler’s base salary or his last paid bonus.  Additionally, Mr. Wheeler and his dependents will receive




 

comparable benefits for a maximum of 12 months following such termination subject to his reemployment with comparable benefits.

If Mr. Wheeler terminates his employment for good reason within 24 months following a change of control of the Company, or if the Company terminates Mr. Wheeler’s employment without cause within 24 months following a change of control, Mr. Wheeler will receive a lump-sum cash payment equal to (i) 24 months of Mr. Wheeler’s highest base-salary in effect during the 12 months prior to termination of his employment, (ii) an amount equal to the greater of 60% of Mr. Wheeler’s last two years of base salary and an amount equal to two times the last bonus paid to by Mr. Wheeler and (iii) if the aggregate purchase price paid in a change of control transaction equals or exceeds $1.1 billion, an additional amount equal to 12 months of base salary in effect at the time of Mr. Wheeler’s termination and the greater of 60% of one year of base salary and the last bonus paid to Mr. Wheeler.  Additionally, Mr. Wheeler and his dependents will receive comparable benefits for a maximum of 36 months following such termination subject to his reemployment with comparable benefits.

Ganesh Venkataraman

The Company entered into an employment agreement with Dr. Venkataraman, dated June 13, 2001, which was amended and restated on April 10, 2002. Pursuant to this agreement, Dr. Venkataraman is to receive an annual base salary of $205,000, subject to increases upon review at least once every 12 months. Under the agreement, as amended, either the Company or Dr. Venkataraman may terminate his employment at any time, subject to continuation of salary payment and benefits for three months if the Company terminates Dr. Venkataraman’s employment without cause or Dr. Venkataraman terminates his employment for good reason.

Executive Officer Compensation for 2006

The Committee approved the following compensation, including base salary (effective January 1, 2007) to be paid to the Company’s executive officers:

·                   Mr. Wheeler . Pursuant to his employment agreement, the Committee approved a $108,000 bonus to be paid in 2007 with respect to 2006. One January 17, 2007, the Company granted to Mr. Wheeler 175,000 shares of restricted Common Stock, as described above under the heading “Employment Agreements with Executive Officers — Craig A. Wheeler.” Pursuant to his employment agreement, Mr. Wheeler will receive an annual base salary of $500,000 during 2007.

·                   Mr. Bishop . The Committee approved a $92,748.57 bonus to be paid in 2007 based on Mr. Bishop’s and Company achievements in 2006, and the grant of an additional option to purchase 37,500 shares of Common Stock. Mr. Bishop’s annual base salary was increased to $239,648.48 for 2007 from $230,431.23 in 2006.

·                   Mr. Brugger . The Committee approved a $112,664.58 bonus to be paid in 2007 based on Mr. Brugger’s and Company achievements in 2006, and the grant of an additional option to purchase 22,500 shares of Common Stock. Mr. Brugger’s annual base salary was increased to $293,907.60 for 2007 from $279,912 in 2006.

·                   Mr. Shea . The Committee approved an aggregate $75,900 bonus to be paid in 2007 based on Mr. Shea’s and Company achievements in 2006, and the grant of an additional option to purchase 7,000 shares of Common Stock. Mr. Shea’s annual base salary was increased to $240,350 for 2007 from $230,000 in 2006.

·                   Dr. Venkataraman . The Committee approved an aggregate $107,184 bonus to be paid in 2007 based on Dr. Venkataraman’s and Company achievements in 2006, and the grant of an additional option to purchase 15,000 shares of Common Stock. Dr. Venkataraman’s annual base salary was increased to $290,928 for 2007 from $278,400 in 2006.




 

·                   Ms. Carron Shmerling . The Committee approved an aggregate $73,922.78 bonus to be paid in 2007 based on Ms. Carron Shmerling’s and Company achievements in 2006, and the grant of an additional option to purchase 7,000 shares of Common Stock. Ms. Carron Shmerling’s annual base salary was increased to $233,138.79 for 2007 from $223,099.32 in 2006.

* * * * *



 

Exhibit 10.23

Non-Employee Director Compensation Summary

Momenta Pharmaceuticals, Inc.’s (the “Company’s”) non-employee directors are currently:  (i) Peter Barrett; (ii) Peter Barton Hutt; (iii) Paul D. Goldenheim; (iv) Bennett M. Shapiro; (v) John K. Clarke; (vi) Robert S. Langer, Jr.; (vii) Stephen T. Reeders; (viii) Ram Sasisekharan; (ix) Marsha H. Fanucci; and (x) Alan L. Crane. The compensation structure for the Company’s non-employee directors as follows:

Grant of Options Upon Appointment

Each non-employee director appointed after the 2007 annual meeting of stockholders will automatically receive an option to purchase up to 30,000 shares of the Company’s common stock upon appointment to the Board. These options will vest quarterly over the three years following the grant date, subject to such director’s continued service on the Board.

Grant of Additional Stock Options

In connection with the Nominating and Corporate Governance Committee’s annual evaluation, non-employee directors who served on the Board during fiscal year 2006 and who will continue to serve on the Board during fiscal year 2007 will be granted an option to purchase up to 19,200 shares of the Company’s common stock at the 2007 annual meeting of stockholders. These options will vest quarterly over the year following the grant date, subject to the non-employee director’s continued service on the Board.

Payment of Retainer Fee; Reimbursement of Travel and Other Expenses

In addition to an option grant, each non-employee director is entitled to receive an annual retainer of $25,000 for his or her service on the Board during 2007. Additional amounts will be paid as follows:

Position

 

Additional
Fees

 

 

 

 

 

Non-Employee Chairman of the Board

 

$25,000

 

Audit Committee Chair

 

$10,000

 

Audit Committee Members (other than the Chair)

 

$7,500

 

Compensation Committee, Nominating and Corporate Governance Committee Chairs and Members (no additional fees shall be paid to members serving on both the Compensation and the Nominating and Corporate Governance Committees)

 

$5,000

 

Science Committee Chair

 

$10,000

 

Science Committee Members

 

$7,500

 

Additional Payments to Science Committee Chair and Members

 

$3,000 for each all day
session attended (up to
a maximum of $15,000
per year) that is in
addition to the standard
quarterly meetings of
the Scientific Committee

 

 

All retainer amounts shall be paid quarterly during fiscal year 2007. Non-employee directors also receive reimbursement for reasonable travel and other expenses in connection with attending Board meetings during 2007.



Exhibit 10.56

MOMENTA PHARMACEUTICALS, INC.

Restricted Stock Agreement
Granted Under 2004 Stock Incentive Plan, as amended

AGREEMENT made on December 15, 2006 between Momenta Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), and John E. Bishop (the “ Participant ”).

For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:

1.              Issuance of Shares .

The Company hereby issues to the Participant, subject to the terms and conditions set forth in this Agreement and in the Company’s 2004 Stock Incentive Plan, as amended (the “ Plan ”), 15,000 shares (the “ Shares ”) of common stock, $0.0001 par value per share, of the Company (“ Common Stock ”). The Shares will be held in book entry by the Company’s transfer agent in the name of the Participant for that number of Shares issued to the Participant. The Participant agrees that the Shares shall be subject to the forfeiture provisions set forth in Section 2 of this Agreement and the restrictions on transfer set forth in Section 3 of this Agreement.

2.              Vesting .

2.1            Unless otherwise provided in this Agreement or the Plan, in the event that the Participant ceases to be employed by the Company on or before December 14, 2010, for any reason or no reason, with or without cause, all of the Unvested Shares (as defined below) will be immediately and automatically forfeited and returned to the Company for no consideration effective as of the date of termination of employment. The Participant will have no further rights with respect to any Shares that are so forfeited. “ Unvested Shares ” means the total number of Shares multiplied by the Applicable Percentage. The “ Applicable Percentage ” shall be (i) 100% during the 12-month period ending on December 15, 2007, (ii) 75% less 6.25% for each three-month period from and after December 15, 2007, and (iii) zero on or after December 15, 2010.

2.2            For purposes of this Agreement, employment with the Company shall include employment with a parent or subsidiary of the Company, or any successor to the Company.

3.              Restrictions on Transfer .

3.1            The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “ transfer ”) any Shares, or any interest therein, until such Shares have vested, except that the Participant may transfer such Shares (i) to or for the benefit of any spouse, children, parents, uncles, aunts, siblings, grandchildren and any other relatives approved by the Board of Directors (collectively, “ Approved Relatives ”) or to a trust established solely for the benefit of the Participant and/or Approved Relatives, provided that such Shares shall remain subject to this Agreement (including without limitation the restrictions on transfer set forth in this Section 3 and the forfeiture provisions contained in Section 2) and such permitted transferee shall, as a condition to such transfer, deliver to the Company a written instrument confirming that such transferee shall be bound by all of the terms and conditions of this Agreement or (ii) as part of the sale of all or substantially all of the shares of capital stock of the Company (including pursuant to a merger or consolidation), provided that, in accordance with the Plan and except as otherwise provided herein, the securities or other property received by the Participant in connection with such transaction shall remain subject to this Agreement.

3.2            The Company shall not be required (i) to transfer on its books any of the Shares which have been transferred in violation of any of the provisions set forth in this Agreement or (ii) to treat as owner of such Shares or to pay dividends to any transferee to whom such Shares have been transferred in violation of any of the provisions of this Agreement.

4.              Restrictive Legends .

All Shares subject to this Agreement subject to the following restriction, in addition to any other legends that may be required under federal or state securities laws:




 

“The shares of stock represented by this certificate are subject to forfeiture provisions and restrictions on transfer set forth in a certain Restricted Stock Agreement between the corporation and the registered owner of these shares (or his predecessor in interest), and such Agreement is available for inspection without charge at the office of the Secretary of the corporation.”

5.              Provisions of the Plan .

This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this Agreement. Capitalized terms used, but not otherwise defined, herein shall have the meaning given to them in the Plan.

6.              Withholding Taxes; Section 83(b) Election .

6.1            The Participant acknowledges and agrees that the Company has the right to deduct from payments of any kind otherwise due to the Participant any federal, state, local or other taxes of any kind required by law to be withheld with respect to the issuance of the Shares to the Participant or the lapse of the forfeiture provisions. For so long as the Common Stock is registered under the Exchange Act, the Participant may satisfy such tax obligations in whole or in part by delivery of shares of Common Stock, including shares retained from this award, valued at their Fair Market Value; provided , however , that (i) the total tax withholding where stock is being used to satisfy such tax obligations cannot exceed the Company’s minimum statutory withholding obligations (based on minimum statutory withholding rates for federal and state tax purposes, including payroll taxes, that are applicable to such supplemental taxable income) and (ii) satisfaction of such tax obligations through shares of the Company’s Common Stock, including Shares retained from this award, may only be authorized by the Company’s Compensation Committee in its sole discretion at any time prior to the occurrence of a vesting date (whereby such Committee may adopt a resolution permitting the Participant to satisfy his tax withholding obligation through the surrender of shares of the Company’s Common Stock, including a portion of the Shares the vesting of which gives rise to the withholding obligations). Shares surrendered to satisfy tax withholding requirements cannot be subject to any repurchase, forfeiture, unfulfilled vesting or other similar requirements.

6.2            The Participant has reviewed with the Participant’s own tax advisors the federal, state, local and other tax consequences of this investment and the transactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s own tax liability that may arise as a result of this investment and the transactions contemplated by this Agreement.

THE PARTICIPANT AGREES NOT TO FILE AN ELECTION UNDER SECTION 83(B) OF THE INTERNAL REVENUE CODE WITH RESPECT TO THE ISSUANCE OF THE SHARES.

7.              Miscellaneous .

7.1            No Rights to Employment .  The Participant acknowledges and agrees that the vesting of the Shares pursuant to Section 2 hereof is earned only by continuing service as an employee of the Company (not through the act of being hired or being granted the Shares hereunder). The Participant further acknowledges and agrees that the transactions contemplated hereunder and the vesting schedule set forth herein do not constitute an express or implied promise of continued engagement as an employee for the vesting period, for any period, or at all.

7.2            Severability .  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, and each other provision of this Agreement shall be severable and enforceable to the extent permitted by law.

7.3            Waiver .  Any provision for the benefit of the Company contained in this Agreement may be waived, either generally or in any particular instance, by the Board of Directors of the Company.

7.4            Binding Effect .  This Agreement shall be binding upon and inure to the benefit of the Company and the Participant and their respective heirs, executors, administrators, legal representatives, successors and assigns, subject to the restrictions on transfer set forth in Section 3 of this Agreement.




7.5            Notice .  Each notice relating to this Agreement shall be in writing and delivered in person or by first class mail, postage prepaid, to the address as hereinafter provided. Each notice shall be deemed to have been given on the date it is received. Each notice to the Company shall be addressed to it at its offices at 675 West Kendall Street, Cambridge, Massachusetts 02142 (Attention: Vice President, Legal Affairs). Each notice to the Participant shall be addressed to the Participant at the Participant’s last known address.

7.6            Pronouns .  Whenever the context may require, any pronouns used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural, and vice versa.

7.7            Entire Agreement .  This Agreement and the Plan constitute the entire agreement between the parties, and supersede all prior agreements and understandings, relating to the subject matter of this Agreement.

7.8            Amendment .  This Agreement may be amended or modified only by a written instrument executed by both the Company and the Participant.

7.9            Governing Law .  This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws.

7.10          Interpretation .  The interpretation and construction of any terms or conditions of the Plan, or of this Agreement or other matters related to the Plan by the Compensation Committee of the Board of Directors of the Company shall be final and conclusive.

7.11          Participant’s Acknowledgments .  The Participant acknowledges that he: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; (iv) is fully aware of the legal and binding effect of this Agreement; and (v) understands that the law firm of Wilmer Cutler Pickering Hale and Dorr LLP is acting as counsel to the Company in connection with the transactions contemplated by the Agreement, and is not acting as counsel for the Participant.

7.12          Delivery of Certificates .  The Participant may request that the Company deliver the Shares in certificated form with respect to any Shares that have ceased to be subject to forfeiture pursuant to Section 2.

7.13          No Deferral .  Notwithstanding anything herein to the contrary, neither the Company nor the Participant may defer the delivery of the Shares.




IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

MOMENTA PHARMACEUTICALS, INC.

 

 

 

 

 

 

 

 

By:

/s/ Richard P. Shea

 

 

 

 

Richard P. Shea

 

 

 

Vice President, Chief Financial Officer

 

 

 

 

 

 

 

 

/s/ John E. Bishop

 

 

 

John E. Bishop

 



Exhibit 10.57

MOMENTA PHARMACEUTICALS, INC.

Executive Retention Agreement

THIS EXECUTIVE RETENTION AGREEMENT by and between Momenta Pharmaceuticals, Inc., a Delaware corporation (the “ Company ”), and [     ] (the “ Executive ”) is effective as of the date of the last signature on the signature page attached hereto (the “ Effective Date ”).

WHEREAS, the Company recognizes that, as is the case with many publicly-held corporations, the possibility of a change in control of the Company exists and that such possibility, and the uncertainty and questions which it may raise among key personnel, may result in the departure or distraction of key personnel to the detriment of the Company and its stockholders, and

WHEREAS, the Board of Directors of the Company (the “ Board ”) has determined that appropriate steps should be taken to reinforce and encourage the continued employment and dedication of the Company’s key personnel without distraction from the possibility of a change in control of the Company and related events and circumstances.

NOW, THEREFORE, as an inducement for and in consideration of the Executive remaining in [his/her] employ, the Company agrees that the Executive shall receive the severance benefits set forth in this Agreement in the event the Executive’s employment with the Company is terminated under the circumstances described below subsequent to a Change in Control (as defined in Section 1.1).

1.              Key Definitions.

As used herein, the following terms shall have the following respective meanings:

1.1            Change in Control ” means an event or occurrence set forth in any one or more of subsections (a) through (d) below (including an event or occurrence that constitutes a Change in Control under one of such subsections but is specifically exempted from another such subsection)

(a)            the acquisition by an individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”)) (a “ Person ”) of beneficial ownership of any capital stock of the Company if, after such acquisition, such Person beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) 50% or more of either (x) the then-outstanding shares of common stock of the Company (the “ Outstanding Company Common Stock ”) or (y) the combined voting power of the then-outstanding securities of the Company entitled to vote generally in the election of directors (the “ Outstanding Company Voting Securities ”); provided , however , that for purposes of this subsection (a), the following acquisitions shall not constitute a Change in Control: (i) any acquisition directly from the Company (excluding an acquisition pursuant to the exercise, conversion or exchange of any security exercisable for, convertible into or exchangeable for common stock or voting securities of the Company, unless the Person exercising, converting or exchanging such security acquired such security directly from the Company or an underwriter or agent of the Company), (ii) any acquisition by the Company, (iii) any acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation controlled by the Company, or (iv) any acquisition by any corporation pursuant to a transaction which complies with clauses (i) and (ii) of subsection (c) of this Section 1.1; or

(b)            such time as the Continuing Directors (as defined below) do not constitute a majority of the Board (or, if applicable, the Board of Directors of a successor corporation to the Company), where the term “ Continuing Director ” means at any date a member of the  Board (i) who was a member of the Board on the date of the execution of this Agreement or (ii) who was nominated or elected subsequent to such date by at least a majority of the directors who were Continuing Directors at the time of such nomination or election or whose election to the Board was recommended or endorsed by at least a majority of the directors who were Continuing Directors at the




time of such nomination or election; provided , however , that there shall be excluded from this clause (ii) any individual whose initial assumption of office occurred as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents, by or on behalf of a person other than the Board; or

(c)            the consummation of a merger, consolidation, reorganization, recapitalization or statutory share exchange involving the Company or a sale or other disposition of all or substantially all of the assets of the Company in one or a series of transactions (a “ Business Combination ”), unless, immediately following such Business Combination, each of the following two conditions is satisfied: (i) all or substantially all of the individuals and entities who were the beneficial owners of the Outstanding Company Common Stock and Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding securities entitled to vote generally in the election of directors, respectively, of the resulting or acquiring corporation in such Business Combination (which shall include, without limitation, a corporation which as a result of such transaction owns the Company or substantially all of the Company’s assets either directly or through one or more subsidiaries) (such resulting or acquiring corporation is referred to herein as the “ Acquiring Corporation ”) in substantially the same proportions as their ownership, immediately prior to such Business Combination, of the Outstanding Company Common Stock and Outstanding Company Voting Securities, respectively; and (ii) no Person (excluding any employee benefit plan (or related trust) maintained or sponsored by the Company or by the Acquiring Corporation) beneficially owns, directly or indirectly, 50% or more of the then outstanding shares of common stock of the Acquiring Corporation, or of the combined voting power of the then-outstanding securities of such corporation entitled to vote generally in the election of directors (except to the extent that such ownership existed prior to the Business Combination); or

(d)            approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.

1.2            Change in Control Date ” means the first date during the Term (as defined in Section 2) on which a Change in Control occurs.  Anything in this Agreement to the contrary notwithstanding, if (a) a Change in Control occurs, (b) the Executive’s employment with the Company is terminated prior to the date on which the Change in Control occurs, and (c) it is reasonably demonstrated by the Executive that such termination of employment (i) was at the request of a third party who has taken steps reasonably calculated to effect a Change in Control or (ii) otherwise arose in connection with or in anticipation of a Change in Control, then for all purposes of this Agreement the “Change in Control Date” shall mean the date immediately prior to the date of such termination of employment.

1.3            Cause ” means (a) a good faith finding by no fewer than two-thirds of the members of the Board (excluding the Executive, if applicable) of (i) the Executive’s failure to (1) perform reasonably assigned lawful duties or (2) comply with a lawful instruction of the Board, Chief Executive Officer or such other executive officer with direct supervisory authority over the Executive so long as, in the case of (2), the instruction is consistent with the scope and responsibilities of the Executive’s position, or (ii) the Executive’s dishonesty, willful misconduct or gross negligence, or (iii) the Executive’s substantial and material failure or refusal to perform according to, or to comply with, the policies, procedures or practices established by the Company or the Board and, in the case of (i) or (iii), the Executive has had ten (10) days written notice to cure his failure to so perform or comply; or (b) the Executive’s indictment, or the entering of a guilty plea or plea of “no contest” with respect to a felony or any crime involving moral turpitude.

1.4            Good Reason ” means the occurrence, without the Executive’s written consent, of any of the events or circumstances set forth in clauses (a) through (d) below, provided , however , that an event described in clauses (a) through (d) below shall not constitute Good Reason unless it is communicated in writing in accordance with Section 7, within 90 days of the event giving rise to the claim, by the Executive to the Board or its successor and unless it is not corrected by the Company or its successor and the Executive has not been reasonably compensated for any loss or damages resulting therefrom within thirty (30) days of the Company’s receipt of such written notice:

(a)            the assignment to the Executive of duties inconsistent in any material respect with the Executive’s position (including status, offices, titles and reporting requirements), authority or responsibilities,




or any other action or omission by the Company which results in a material diminution in such position, authority or responsibilities;

(b)            the Board requiring the Executive to engage in unlawful conduct;

(c)            a material reduction in the Executive’s base salary; or

(d)            a change by the Company in the location at which the Executive performs [his/her] principal duties for the Company to a new location that is both (i) outside a radius of 50 miles from the Executive’s principal residence and (ii) more than 30 miles from the location at which the Executive performed his principal duties for the Company.

The Executive’s right to terminate [his/her] employment for Good Reason shall not be affected by [his/her] incapacity due to physical or mental illness.

1.5            Disability ” means the Executive’s absence from the full-time performance of the Executive’s duties with the Company for 180 consecutive calendar days as a result of incapacity due to mental or physical illness which is determined to be total and permanent by a physician selected by the Company or its insurers and acceptable to the Executive or the Executive’s legal representative.

2.              Term of Agreement .  This Agreement, and all rights and obligations of the parties hereunder, shall take effect upon the Effective Date and shall expire upon the first to occur of (a) the expiration of the Term (as defined below) if a Change in Control has not occurred during the Term, (b) the termination of the Executive’s employment with the Company prior to the Change in Control Date, (c) the date 12 months after the Change in Control Date, if the Executive is still employed by the Company as of such later date, or (d) the fulfillment by the Company of all of its obligations under Sections 4 and 5.2 if the Executive’s employment with the Company terminates within 12 months following the Change in Control Date.  “ Term ” shall mean the period commencing as of the Effective Date and continuing in effect through December 31, 2007; provided , however , that commencing on January 1, 2008 and each January 1 thereafter, the Term shall be automatically extended for one additional year unless, not later than 90 days prior to the scheduled expiration of the Term (or any extension thereof), the Company shall have given the Executive written notice that the Term will not be extended, except as otherwise provided pursuant to Section 1.2.

3.              Employment Status; Termination Following Change in Control .

3.1            Not an Employment Contract .  The Executive acknowledges that this Agreement does not constitute a contract of employment or impose on the Company any obligation to retain the Executive as an employee and that this Agreement does not prevent the Executive from terminating employment at any time.  If the Executive’s employment with the Company terminates for any reason and subsequently a Change in Control shall occur, the Executive shall not be entitled to any benefits hereunder.

3.2            Termination of Employment .

(a)            If the Change in Control Date occurs during the Term, any termination of the Executive’s employment by the Company or by the Executive within 12 months following the Change in Control Date (other than due to the death of the Executive) shall be communicated by a written notice to the other party hereto (the “ Notice of Termination ”), given in accordance with Section 7.  Any Notice of Termination shall: (i) indicate the specific termination provision (if any) of this Agreement relied upon by the party giving such notice, (ii) to the extent applicable, set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and (iii) specify the Date of Termination (as defined below).  The effective date of an employment termination (the “ Date of Termination ”) shall be the close of business on the date specified in the Notice of Termination (which date may not be less than 15 days or more than 120 days after the date of delivery of such Notice of Termination), in the case of a termination other than one due to the Executive’s death, or the date of the Executive’s death, as the case may be.  In the event the Company fails to satisfy the requirements of Section 3.2(a) regarding a Notice of Termination, the purported termination of the Executive’s employment pursuant to such Notice of Termination shall not be effective for purposes of this Agreement.




(b)            The failure by the Executive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of the Executive or the Company, respectively, hereunder or preclude the Executive or the Company, respectively, from asserting any such fact or circumstance in enforcing the Executive’s or the Company’s rights hereunder.

4.              Benefits to Executive .

4.1            Stock Acceleration .  If the Change in Control Date occurs during the Term and the Executive’s employment with the Company is terminated by the Company (other than for Cause, Disability or death) or by the Executive for Good Reason within 12 months following the Change in Control, then, effective upon the Date of Termination, each outstanding award then held by the Executive under the Company’s outstanding equity incentive plans shall become immediately exercisable in full, shall become immediately realizable or deliverable, or restrictions applicable to each such award shall lapse immediately, as applicable.

4.2            Compensation .  If the Change in Control Date occurs during the Term and the Executive’s employment with the Company terminates within 12 months following the Change in Control Date, the Executive shall be entitled to the following benefits:

(a)            Termination Without Cause or for Good Reason .  If the Executive’s employment with the Company is terminated by the Company (other than for Cause, Disability or death) or by the Executive for Good Reason within 12 months following the Change in Control Date, then the Executive shall be entitled to the following benefits:

(i)             the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:

(1)            the sum of (A) the Executive’s base salary through the Date of Termination and (B) any accrued vacation pay to the extent not previously paid (the sum of the amounts described in clauses (A) and (B) shall be hereinafter referred to as the “Accrued Obligations”); and
(2)            the sum of (A) the amount equal to the Executive’s annual base salary during the one year period prior to the Date of Termination and (B ) the greater of (x) the target bonus established by the Board (or any other person or persons having authority with respect thereto) for the Executive for the fiscal year in which the Date of Termination occurs and (y) the annual bonus paid to the Executive for the most recently completed fiscal year.
(ii)            For 12 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable life insurance, medical, dental, health and accident and disability plans in effect immediately prior to the Date of Termination or, if more favorable to the Executive and [his/her] family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided , however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and [his/her] family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and [his/her] family.  At the end of such 12 month period, the Executive may continue such plans on [his/her] own behalf or pursuant to COBRA, if applicable, and shall be responsible for all premiums thereafter;
(iii)           to the extent not previously paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive following the Executive’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the “ Other Benefits ”); and
(iv)           for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits to which the Executive is entitled, the Executive shall be considered to have remained employed by the Company until 12 months after the Date of Termination.



(b)            Resignation without Good Reason; Termination for Death or Disability .  If the Executive voluntarily terminates [his/her] employment with the Company within 12 months following the Change in Control Date, excluding a termination for Good Reason, or if the Executive’s employment with the Company is terminated by reason of the Executive’s death or Disability within 12 months following the Change in Control Date, then the Company shall (i) pay the Executive (or [his/her] estate, if applicable), in a lump sum in cash within 30 days after the Date of Termination, the Accrued Obligations and (ii) timely pay or provide to the Executive the Other Benefits.

(c)            Termination for Cause .  If the Company terminates the Executive’s employment with the Company for Cause within 12 months following the Change in Control Date, then the Company shall (i) pay the Executive, in a lump sum in cash within 30 days after the Date of Termination, the Accrued Obligations and (ii) timely pay or provide to the Executive the Other Benefits.

4.3            Taxes .

(a)            Notwithstanding any other provision of this Agreement, except as set forth in Section 4.3(b), in the event that the Company undergoes a  “Change in Ownership or Control” (as defined below), the Company shall not be obligated to provide to the Executive a portion of any “Contingent Compensation Payments” (as defined below) that the Executive would otherwise be entitled to receive to the extent necessary to eliminate any “excess parachute payments” (as defined in Section 280G(b)(1) of the Internal Revenue Code of 1986, as amended (the “ Code ”)) for the Executive.  For purposes of this Section 4.3, the Contingent Compensation Payments so eliminated shall be referred to as the “Eliminated Payments” and the aggregate amount (determined in accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision) of the Contingent Compensation Payments so eliminated shall be referred to as the “ Eliminated Amount .”

(b)            Notwithstanding the provisions of Section 4.3(a), no such reduction in Contingent Compensation Payments shall be made if (i) the Eliminated Amount (computed without regard to this sentence) exceeds (ii) 110% of the aggregate present value (determined in accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-31 and Q/A-32 or any successor provisions) of the amount of any additional taxes that would be incurred by the Executive if the Eliminated Payments (determined without regard to this sentence) were paid to [him/her] (including, state and federal income taxes on the Eliminated Payments, the excise tax imposed by Section 4999 of the Code payable with respect to all of the Contingent Compensation Payments in excess of the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code), and any withholding taxes).  The override of such reduction in Contingent Compensation Payments pursuant to this Section 4.3(b) shall be referred to as a “Section 4.3(b) Override.”  For purpose of this paragraph, if any federal or state income taxes would be attributable to the receipt of any Eliminated Payment, the amount of such taxes shall be computed by multiplying the amount of the Eliminated Payment by the maximum combined federal and state income tax rate provided by law.

(c)            For purposes of this Section 4.3 the following terms shall have the following respective meanings:

(i)             Change in Ownership or Control ” shall mean a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company determined in accordance with Section 280G(b)(2) of the Code.

(ii)          Contingent Compensation Payment ” shall mean any payment (or benefit) in the nature of compensation that is made or made available (under this Agreement or otherwise) to a “disqualified individual” (as defined in Section 280G(c) of the Code) and that is contingent (within the meaning of Section 280G(b)(2)(A)(i) of the Code) on a Change in Ownership or Control of the Company.

(d)          Any payments or other benefits otherwise due to the Executive following a Change in Ownership or Control that could reasonably be characterized (as determined by the Company) as Contingent Compensation Payments (the “ Potential Payments ”) shall not be made until the dates provided for in this Section 4.3(d).  Within 30 days after each date on which the Executive first becomes entitled to receive (whether or not then due) a Contingent Compensation Payment relating to such Change in Ownership or Control, the Company shall determine and notify the Executive (with reasonable detail regarding the basis for its determinations) (i) which Potential Payments constitute Contingent Compensation Payments, (ii) the Eliminated Amount and (iii) whether the Section 4.3(b) Override is applicable.  Within 30 days after delivery of such notice to the Executive, the Executive shall deliver a response to the Company (the “ Executive Response ”) stating either (A) that [he/she] agrees with the Company’s determination pursuant to the preceding sentence, in which case




[he/she] shall indicate, if applicable, which Contingent Compensation Payments, or portions thereof (the aggregate amount of which, determined in accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision, shall be equal to the Eliminated Amount), shall be treated as Eliminated Payments or (B) that [he/she] disagrees with such determination, in which case [he/she] shall set forth (i) which Potential Payments should be characterized as Contingent Compensation Payments, (ii) the Eliminated Amount, (iii) whether the Section 4.3(b) Override is applicable, and (iv) which (if any) Contingent Compensation Payments, or portions thereof (the aggregate amount of which, determined in accordance with Proposed Treasury Regulation Section 1.280G-1, Q/A-30 or any successor provision, shall be equal to the Eliminated Amount, if any), shall be treated as Eliminated Payments.  In the event that the Executive fails to deliver an Executive Response on or before the required date, the Company’s initial determination shall be final and the Contingent Compensation Payments that shall be treated as Eliminated Payments shall be determined by the Company in its absolute discretion.  If the Executive states in the Executive Response that [he/she] agrees with the Company’s determination, the Company shall make the Potential Payments to the Executive within three business days following delivery to the Company of the Executive Response (except for any Potential Payments which are not due to be made until after such date, which Potential Payments shall be made on the date on which they are due).  If the Executive states in the Executive Response that [he/she] disagrees with the Company’s determination, then, for a period of 60 days following delivery of the Executive Response, the Executive and the Company shall use good faith efforts to resolve such dispute.  If such dispute is not resolved within such 60-day period, such dispute shall be settled exclusively by arbitration in Boston, Massachusetts, in accordance with the rules of the American Arbitration Association then in effect.  Judgment may be entered on the arbitrator’s award in any court having jurisdiction.  The Company shall, within three business days following delivery to the Company of the Executive Response, make to the Executive those Potential Payments as to which there is no dispute between the Company and the Executive regarding whether they should be made (except for any such Potential Payments which are not due to be made until after such date, which Potential Payments shall be made on the date on which they are due).  The balance of the Potential Payments shall be made within three business days following the resolution of such dispute.  Subject to the limitations contained in Sections 4.3(a) and (b) hereof, the amount of any payments to be made to the Executive following the resolution of such dispute shall be increased by amount of the accrued interest thereon computed at the prime rate announced from time to time by The Wall Street Journal , compounded monthly from the date that such payments originally were due.

(e)            The provisions of this Section 4.3 are intended to apply to any and all payments or benefits available to the Executive under this Agreement or any other agreement or plan of the Company under which the Executive receives Contingent Compensation Payments.

4.4            Mitigation .  The Executive shall not be required to mitigate the amount of any payment or benefits provided for in this Section 4 by seeking other employment or otherwise. Further, except as provided in Section 4.2(a)(ii), the amount of any payment or benefits provided for in this Section 4 shall not be reduced by any compensation earned by the Executive as a result of employment by another employer, by retirement benefits, by offset against any amount claimed to be owed by the Executive to the Company or otherwise.

5.              Disputes .

5.1            Settlement of Disputes; Arbitration .  All claims by the Executive for benefits under this Agreement shall be directed to and determined by the Board of Directors of the Company and shall be in writing.  Any denial by the Board of Directors of a claim for benefits under this Agreement shall be delivered to the Executive in writing and shall set forth the specific reasons for the denial and the specific provisions of this Agreement relied upon.  The Board of Directors shall afford a reasonable opportunity to the Executive for a review of the decision denying a claim.  Any further dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in Boston, Massachusetts, in accordance with the rules of the American Arbitration Association then in effect.  Judgment may be entered on the arbitrator’s award in any court having jurisdiction.

5.2            Expenses .  The Company agrees to pay as incurred, to the full extent permitted by law, all legal, accounting and other fees and expenses which the Executive may reasonably incur as a result of any claim or contest (regardless of the outcome thereof) by the Company, the Executive or others regarding the validity or enforceability of, or liability under, any provision of this Agreement or any guarantee of performance thereof (including as a result of any contest by the Executive regarding the amount of any payment or benefits pursuant to this Agreement), plus in each case interest on any delayed payment at the applicable Federal rate provided for in Section 7872(f)(2)(A) of the Code.




6.              Successors .

6.1            Successor to Company .  The Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company expressly to assume and agree to perform this Agreement to the same extent that the Company would be required to perform it if no such succession had taken place.  Failure of the Company to obtain an assumption of this Agreement at or prior to the effectiveness of any succession shall be a breach of this Agreement and shall constitute Good Reason if the Executive elects to terminate employment, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination.  As used in this Agreement, “Company” shall mean the Company as defined above and any successor to its business or assets as aforesaid which assumes and agrees to perform this Agreement, by operation of law or otherwise.

6.2            Successor to Executive .  This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees.  If the Executive should die while any amount would still be payable to the Executive or [his/her] family hereunder if the Executive had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to the executors, personal representatives or administrators of the Executive’s estate.

7.              Notice .  All notices, instructions and other communications given hereunder or in connection herewith shall be in writing.  Any such notice, instruction or communication shall be sent either (i) by registered or certified mail, return receipt requested, postage prepaid, or (ii) prepaid via a reputable nationwide overnight courier service, in each case addressed to the Company, at 675 West Kendall Street, Cambridge, Massachusetts 02142, and to the Executive at the Executive’s address indicated on the signature page of this Agreement (or to such other address as either the Company or the Executive may have furnished to the other in writing in accordance herewith).  Any such notice, instruction or communication shall be deemed to have been delivered five business days after it is sent by registered or certified mail, return receipt requested, postage prepaid, or one business day after it is sent via a reputable nationwide overnight courier service. Either party may give any notice, instruction or other communication hereunder using any other means, but no such notice, instruction or other communication shall be deemed to have been duly delivered unless and until it actually is received by the party for whom it is intended.

8.              Miscellaneous .

8.1            Employment by Subsidiary .  For purposes of this Agreement, the Executive’s employment with the Company shall not be deemed to have terminated solely as a result of the Executive continuing to be employed by a wholly-owned subsidiary of the Company.

8.2            Severability .  The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.

8.3            Injunctive Relief .  The Company and the Executive agree that any breach of this Agreement by the Company is likely to cause the Executive substantial and irrevocable damage and therefore, in the event of any such breach, in addition to such other remedies which may be available, the Executive shall have the right to specific performance and injunctive relief.

8.4            Governing Law .  The validity, interpretation, construction and performance of this Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts, without regard to conflicts of law principles.

8.5            Waivers .  No waiver by the Executive at any time of any breach of, or compliance with, any provision of this Agreement to be performed by the Company shall be deemed a waiver of that or any other provision at any subsequent time.

8.6            Counterparts .  This Agreement may be executed in counterparts, each of which shall be deemed to be an original but both of which together shall constitute one and the same instrument.

8.7            Tax Withholding .  Any payments provided for hereunder shall be paid net of any applicable tax withholding required under federal, state or local law.




8.8            Entire Agreement .  This Agreement sets forth the entire agreement of the parties hereto in respect of the subject matter contained herein and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, employee or representative of any party hereto in respect of the subject matter contained herein; and any prior agreement of the parties hereto in respect of the subject matter contained herein is hereby terminated and cancelled.

8.9            Section 409A .  No payments that may be made pursuant to this Agreement that constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Internal Revenue Code and the guidance issued thereunder (“Section 409A”) may be accelerated or deferred by the Company or the Executive.  Notwithstanding anything else to the contrary in this Agreement, to the extent that any of the payments to be made hereunder constitute “nonqualified deferred compensation” within the meaning of Section 409A and the Executive is a “specified employee,” then upon [his /her] termination (as defined under Section 409A), any such payment shall be delayed until the date that is six months and one day following the Date of Termination if, absent such delay, such payment would otherwise be subject to penalties under Section 409A.  In any event, the Company makes no representation or warranty and shall have no liability to the Executive or any other person if any provisions of this Agreement are determined to constitute deferred compensation subject to Section 409A but do not satisfy the conditions of such section.

8.10          Amendments .  This Agreement may be amended or modified only by a written instrument executed by both the Company and the Executive.

8.11          Executive’s Acknowledgements .  The Executive acknowledges that [he/she] : (a) has read this Agreement; (b) has been represented in the preparation, negotiation, and execution of this Agreement by legal counsel of the Executive’s own choice or has voluntarily declined to seek such counsel; (c) understands the terms and consequences of this Agreement; and (d) understands that the law firm of WilmerHale is acting as counsel to the Company in connection with the transactions contemplated by this Agreement, and is not acting as counsel for the Executive.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first set forth above.

MOMENTA PHARMACEUTICALS, INC.

 

 

 

By:

 

 

 

 

 

 

 

Title:

 

 

 

 

 

 

 

Date:

 

 

 

 

 

 

 

[NAME OF EXECUTIVE]

 

 

 

 

 

 

 

 

 

Signature:

 

 

 

 

 

Address:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Date:

 

 

 



Exhibit 21

SUBSIDIARIES OF MOMENTA PHARMACEUTICALS, INC.  

Name of Subsidiary

 

Jurisdiction of Organization

 

 

 

Momenta Pharmaceuticals Securities Corporation

 

Massachusetts

 



Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statements (Form S-3 Nos. 333-140251, 333-126356 and 333-126798 and Form S-8 Nos. 333-140760 and 333-117173) of Momenta Pharmaceuticals, Inc. and in the related Prospectuses of our reports dated March 12, 2007, with respect to the consolidated financial statements of Momenta Pharmaceuticals, Inc., Momenta Pharmaceuticals, Inc. management’s assessment of the effectiveness of internal control over financial reporting, and the effectiveness of internal control over financial reporting of Momenta Pharmaceuticals, Inc., included in this Annual Report (Form 10-K) for the year ended December 31, 2006.

 

/s/ Ernst & Young LLP

 

 

 

 

Boston, Massachusetts

March 12, 2007

 



Exhibit 31.1

CERTIFICATION

I, Craig A. Wheeler, Chief Executive Officer and President of Momenta Pharmaceuticals, Inc., certify that:

1.                                       I have reviewed this Annual Report on Form 10-K of Momenta 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; and

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 the financial statements for external purposes in accordance with generally accepted accounting principles; and

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.

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.

 

/s/ Craig A. Wheeler

 

 

Dated:  March 15, 2007

 

Craig A. Wheeler

 

 

Chief Executive Officer and President

 



Exhibit 31.2

CERTIFICATION

I, Richard P. Shea, Vice President and Chief Financial Officer of Momenta Pharmaceuticals, Inc., certify that:

1.                                       I have reviewed this Annual Report on Form 10-K of Momenta 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; and

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 the financial statements for external purposes in accordance with generally accepted accounting principles; and

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.

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.

 

 

/s/ Richard P. Shea

 

 

Dated: March 15, 2007

 

Richard P. Shea

 

 

 

 

Vice President and Chief 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 Momenta Pharmaceuticals, Inc. (the “Company”) for the period ended December 31, 2006 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned, Craig A. Wheeler, Chief Executive Officer and President of the Company, and Richard P. Shea, Vice President and Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, that:

(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.

 

 

/s/ Craig A. Wheeler

 

 

Dated: March 15, 2007

 

Craig A. Wheeler

 

 

 

 

Chief Executive Officer and President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

/s/ Richard P. Shea

 

 

Dated: March 15, 2007

 

Richard P. Shea

 

 

 

 

Vice President and Chief Financial Officer

 

 

 

A signed original of this written statement required by Section 906 has been provided to Momenta Pharmaceuticals, Inc. and will be retained by Momenta Pharmaceuticals, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.