Item 1.01 Entry into a Material Definitive Agreement
On Friday, December 2, 2022, Merrimack Pharmaceuticals, Inc. ("Merrimack" or the
"Company") entered into an Amendment to Section 382 Rights Plan with
Computershare Trust Company, N.A (the "Rights Plan Extension"), extending the
term of the Section 382 net operating loss rights plan (the "Plan") that was
adopted in 2019. The Plan is designed to protect the Company's ability to use
its valuable net operating loss ("NOL") carryforwards and certain other valuable
tax attributes. The extension is effective through December 2, 2025 but would
terminate at the time of the Company's 2023 annual meeting if the extension is
not approved by the Company's shareholders at that annual meeting.
In connection with the adoption of the Plan, on December 3, 2019, the Company
filed a Certificate of Designation of Series Z Junior Preferred Stock with the
Secretary of State of the State of Delaware (the "Certificate of Designation").
The terms and provisions of the Certificate of Designation are unchanged by the
Rights Plan Extension.
The foregoing description of the Rights Plan Extension does not purport to be a
complete statement of the parties' rights under the Rights Plan Extension and
the Plan and is qualified in its entirety by reference to the full text of the
Amendment to Section 382 Rights Plan, a copy of which is filed with this Current
Report as Exhibit 10.1 and is incorporated by reference herein.
Item 3.03. Material Modifications to Rights of Security Holders.
The information set forth in Item 1.01 of this Current Report on Form 8-K is
incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
On December 5, 2022, Merrimack issued a press release entitled "Merrimack
Pharmaceuticals Extends Section 382 Net Operating Loss Rights Plan." The full
text of the press release issued in connection with the announcement is
furnished as Exhibit 99.1 to this Current Report on Form 8-K. The Merrimack
press release was also simultaneously furnished on Merrimack's website.
The information in Exhibit 99.1 shall not be deemed "filed" for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or otherwise subject to the liabilities of that section, nor shall it be
deemed incorporated by reference in any filing under the Securities Act of 1933,
as amended, or the Exchange Act, except as expressly set forth by specific
reference in such a filing.
Forward Looking Statements
To the extent that statements contained in the Merrimack August 3, 2022 press
release are not descriptions of historical facts, they are forward-looking
statements reflecting the current beliefs and expectations of management made
pursuant to the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995, as amended. Forward-looking statements include any
statements about Merrimack's strategy, future operations, future financial
position, future revenues and future expectations and plans and prospects for
Merrimack, and any other statements containing the words "anticipate,"
"believe," "estimate," "expect," "intend," "may," "plan," "predict," "project,"
"target," "potential," "will," "would," "could," "should," "continue" and
similar expressions. In this press release, Merrimack's forward-looking
statements include, among others, Merrimack's rights to receive payments related
to certain milestone events or whether such milestones will be achieved, if at
all, the sufficiency of Merrimack's cash resources and Merrimack's strategic
plan, including any potential distribution of additional cash. Such
forward-looking statements involve substantial risks and uncertainties that
could cause Merrimack's future results, performance or achievements to differ
significantly from those expressed or implied by the forward-looking statements.
Such risks and uncertainties include, among others: Positive information about
pre-clinical and early stage clinical trial results does not ensure that later
stage or larger scale clinical trials will be successful. For example, Onivyde®
may not demonstrate promising therapeutic effect or appropriate safety profiles
in current or later stage or larger scale clinical trials as a result of known
or as yet unanticipated side effects. The results achieved in later stage trials
may not be sufficient to meet applicable regulatory standards or to justify
further development. Problems or delays may arise prior to the initiation of
planned clinical trials, during clinical trials or in the course of developing,
testing or manufacturing that could lead Ipsen and Elevation Oncology and their
partners and collaborators to fail to initiate or to discontinue development.
Even if later stage clinical trials are successful, unexpected concerns may
arise from subsequent analysis of data or from additional data. Obstacles may
arise or issues may be identified in connection with review of clinical data
with regulatory authorities. Regulatory authorities may disagree with Ipsen and
Elevation Oncology's view of the data or require additional data or information
or additional studies. In addition, the planned timing of initiation and
completion of clinical trials based upon Onivyde and the anti-HER Program are
subject to the ability of each of Ipsen and Elevation Oncology, respectively, to
enroll patients, enter into agreements with clinical trial sites and
investigators, and overcome technical hurdles and other issues related to the
conduct of the trials for which each of them is
--------------------------------------------------------------------------------
responsible. Additionally, each of Ipsen and Elevation Oncology are subject to
the risk that they may not successfully commercialize these development
programs. Merrimack is also subject to the risk that it may not have funding
sufficient for its foreseeable and unforeseeable operating expenses and capital
expenditure requirements. In addition, press releases and other public
statements by Ipsen and Elevation Oncology may contain forward-looking
statements. Merrimack undertakes no obligation to update or revise any
forward-looking statements. Forward-looking statements should not be relied upon
as representing Merrimack's views as of any date subsequent to the date hereof.
For a further description of the risks and uncertainties that could cause actual
results to differ from those expressed in these forward-looking statements, as
well as risks relating to Merrimack's business in general, see the "Risk
Factors" section of Merrimack's Annual Report on Form 10-K filed with
the SEC on March 9, 2022, any subsequent quarterly report on Form 10-Q filed by
Merrimack and the other reports Merrimack files with the Securities and Exchange
Commission.
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