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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
ANNUAL
REPORT PURSUANT TO
SECTION 13
OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
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x
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ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
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For the fiscal year ended December 31,
2008
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OR
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TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(f) OF THE SECURITIES EXCHANGE
ACT OF 1934
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For the transition period
from to
Commission file number 000-50439
NITROMED, INC.
(Exact name of registrant as specified in its
charter)
Delaware
(State or other jurisdiction of incorporation or
organization)
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22-3159793
(IRS Employer Identification No.)
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45 Hayden Avenue, Suite 3000,
Lexington, Massachusetts
(Address of principal
executive offices)
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02421
(Zip Code)
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Registrants telephone number, including area
code:
(781) 266-4000
Securities registered pursuant to
Section 12(b) of the Act:
Title
of Each Class
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Name of
Each Exchange on Which Registered
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Common Stock, $.01 par value per share
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The NASDAQ Global Market
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Securities registered pursuant to
Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities Act. Yes
o
No
x
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Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or 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 registrants 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.
x
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See definitions of large accelerated filer, accelerated filer, and
smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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Accelerated filer
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Non-accelerated filer
o
(Do not check if a smaller reporting
company)
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Smaller reporting company
x
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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
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The aggregate market value of the registrants common stock held by
nonaffiliates of the registrant was approximately $31,248,000, based on the
price at which the registrants common stock was last sold on June 30,
2008.
As of March 17, 2009, there were 46,085,133 shares of the registrants
common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Specified portions of the registrants proxy statement for the annual
meeting of stockholders, which are to be filed pursuant to Regulation 14A
within 120 days after the end of the registrants fiscal year ended December 31,
2008, are incorporated by reference into Part III of this report.
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This annual report on Form 10-K contains
forward-looking statements that involve risks and uncertainties, as well as
assumptions that, if they never materialize or prove incorrect, could cause our
results to differ materially from those expressed or implied by such
forward-looking statements. All statements other than statements of historical
fact are statements that could be deemed forward-looking statements, including
any projections of revenue, expenses, earnings or losses from operations, or
other financial items; any statements of the plans, strategies and objectives
of management for future operations; any statements concerning product
development and commercialization timelines or outcomes; any statements of
expectation or belief; and any statements of assumptions underlying any of the
foregoing. The risks, uncertainties and assumptions referred to above include
risks that are described in Item 1ARisk Factors and elsewhere in this
annual report and that are otherwise described from time to time in our
Securities and Exchange Commission reports filed after this report.
The forward-looking statements included in
this annual report represent our estimates as of the date of this annual
report. We specifically disclaim any obligation to update these forward-looking
statements in the future, except as specifically required by law or the rules of
the Securities and Exchange Commission. These forward-looking statements should
not be relied upon as representing our estimates or views as of any date
subsequent to the date of this annual report.
PART I
ITEM 1.
BUSINESS
Recent Development Proposed Merger with
Deerfield Management
On January 27,
2009, we entered into an agreement and plan of merger with certain entities
affiliated with Deerfield Management, a healthcare investment organization,
which we refer to collectively as Deerfield Management. As of the date of the
merger agreement, Deerfield Management owned approximately 11% of our
outstanding common stock.
At the
effective time of the merger with Deerfield Management, each outstanding share
of our common stock will be converted into the right to receive $0.80 per share
in cash, subject to adjustment if our net cash balance at the closing of the
merger is greater than or less than $12.3 million, as calculated pursuant to
the terms of the merger agreement. In addition, all outstanding options to
purchase our common stock will become accelerated in full immediately prior to
the effective time of the merger. Any option not exercised prior to the
effective time of the merger will be converted automatically into the right to
receive cash in an amount equal to the excess, if any, of the merger
consideration per share of common stock over the exercise price of the option,
multiplied by the number of shares of common stock underlying the option. The
merger agreement includes a go-shop provision that allowed us to solicit,
negotiate and evaluate competing acquisition proposals during a post-signing
period that ended on February 26, 2009. We solicited, but did not receive
any alternative acquisition proposals prior to the termination of the go-shop
period. We currently expect to complete the merger with Deerfield Management in
the second quarter of 2009 following the satisfaction or waiver of all
conditions to the merger, including the adoption of the merger agreement by our
stockholders at a special meeting of stockholders, which is currently scheduled
for April 22, 2009.
Prior to
entering into the merger agreement with Deerfield Management, we terminated our
previously announced purchase and sale agreement with JHP Pharmaceuticals, LLC
and our previously announced agreement and plan of merger with Archemix Corp.
in accordance with the terms of each of those agreements, including the payment
of termination fees. In connection with the termination of the JHP purchase and
sale agreement, we paid a fee of approximately $900,000 to JHP. In connection
with the termination of the Archemix merger agreement, we paid a fee of
$1,500,000 to Archemix.
BiDil
We are the maker of BiDil, which is indicated for the treatment of
heart failure in self-identified black patients as an adjunct to current
standard therapies. BiDil is an orally administered fixed-dose combination of
isosorbide dinitrate and hydralazine hydrochloride. The U.S. Food and Drug
Administration, or FDA, approved BiDil in June 2005 and we commercially
launched BiDil in July 2005.
In January 2008, we discontinued active promotional efforts for
BiDil based upon our determination that the successful commercialization of
BiDil requires a magnitude of resources that we cannot allocate to the program,
as well as our plans to conserve cash in order to pursue the development of
BiDil XR, an extended release formulation of BiDil. We concurrently implemented
a restructuring plan in which we immediately and significantly reduced our
workforce. Although we have discontinued active promotional efforts related to
BiDil, we continue to contract for the manufacturing of, and to sell, BiDil and
maintain the product on the market for patients through normal wholesale and
retail channels. We have also
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conducted
limited advertising in select medical publications, and have utilized a
third-party marketing firm to contact healthcare professionals on our behalf,
in each case in an effort to maintain a limited market presence for BiDil.
Our January 2008 restructuring follows the elimination of our
discovery research program in March 2006 and the replacement of our sales
force with a small team of senior cardiovascular business managers in October 2006.
The January 2008 restructuring also follows our efforts in August 2007
to deploy an expanded field organization designed to focus on selected
prescriber targets.
BiDil XR
BiDil is an
orally-administered medicine that is presently dosed three times daily. In
connection with our efforts to develop BiDil XR as a once-daily formulation, in
February 2007 we entered into a license agreement with Elan Pharma
International Limited, or Elan, pursuant to which Elan granted to us an
exclusive worldwide royalty-bearing license to specified sustained-release
technology owned or controlled by Elan. In addition to our obligation to pay
Elan a royalty on net sales, if any, we have also agreed to pay Elan specified
amounts upon the achievement of specified development and commercialization
milestone events set forth in the agreement.
In December 2007, we
met with the FDA to discuss our proposed development plan for BiDil XR. The FDA
agreed that our clinical development plan to conduct bioequivalence and
pharmacodynamic studies comparing BiDil XR to the current commercial immediate
release formulation of BiDil is acceptable. Our proposed plan could support FDA
approval to commercialize BiDil XR, if bioequivalence is demonstrated. The
bioequivalence study design compares the pharmacokinetics of the BiDil XR
formulation to the pharmacokinetics of BiDil. Pharmacokinetics refers to the
manner in which the body absorbs, distributes, metabolizes and excretes the
study drug. The adequacy of the results will ultimately be determined by the
FDA during the regulatory review period.
In conjunction with
entering into the license agreement with Elan, we also entered into a
development agreement with an affiliate of Elan, pursuant to which we have
conducted the clinical studies on BiDil XR prototypes. Our pilot clinical
trials have tested several BiDil XR prototypes and compared their
pharmacokinetic profile with BiDil tablets. In preliminary clinical studies in
healthy volunteers, we have demonstrated our ability to delay the release of isosorbide
dinitrate and hydralazine hydrochloride by varying the amount of coating and
ratios of different polymers on beads in capsules. We have continued to develop
and refine BiDil XR prototypes as we seek a final formulation. However,
additional clinical studies and trials will be required in order to finalize
the BiDil XR formulation prior to the commencement of bioequivalence
trials. Based upon our activities in
2008 related to our now terminated agreement with JHP for the purchase and sale
of our BiDil and BiDil XR drug business, as well as our determination to enter
into a merger agreement with Deerfield Management, we have not yet commenced
the next set of clinical trials pursuant to our BiDil XR development plan. We
expect to incur minimal expenses in 2009 in connection with BiDil XR
development activities.
Nitric Oxide-Enhancing Technologies
In connection with our past research and development programs, we
generated intellectual property rights relating to our nitric oxide-enhancing
technologies. We are seeking to divest these proprietary technologies through a
sale of assets, exclusive license arrangement or other comparable transaction. Since
March 2006, we have not conducted any research, and do not have any plans to
conduct future research with respect to these technologies.
Company Information
We were incorporated in Delaware in 1992. Our office is currently
located at 45 Hayden Avenue, Suite 3000, Lexington, Massachusetts 02421,
and our telephone number is (781) 266-4000. Our Internet address is
www.nitromed.com. The information on our website is not incorporated by
reference into this annual report on Form 10-K and should not be
considered to be a part of this annual report. Our website address is included
in this annual report on Form 10-K as an inactive textual reference only.
When used in this annual report on Form 10-K, the terms
NitroMed, we, our and us refer to NitroMed, Inc., unless otherwise
specified. We own the following registered U.S. trademarks: NitroMed, BiDil,
NitroMed Cares, More Life to Live, and NitroMeds logo N. In addition, we
have filed an application for BiDil XR. Other trademarks and service marks
appearing in this annual report on Form 10-K are the property of their
respective holders.
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BiDil: Treatment for Heart Failure in African
Americans
Heart Failure in African Americans
Heart failure, also called congestive heart failure or dilated
cardiomyopathy, is a progressively worsening condition that occurs when the
heart muscle weakens and cannot pump blood efficiently enough to meet the
metabolic needs of the body. The loss of pump function is usually caused by an
underlying condition, such as hypertension or coronary artery disease, which
weakens the heart muscle and increases a persons risk of heart failure. The
most common symptoms of heart failure include shortness of breath from
congestion in the lungs, fatigue, sleeping problems due to the inability to lay
flat, sudden awakening with shortness of breath and swelling in the feet,
ankles and other parts of the body.
Heart failure affects approximately five million Americans and there is
currently no cure for the disease. After a patient is diagnosed with heart
failure, their prognosis is generally poor, with approximately 50 percent
of patients dying within five years. Heart failure is the primary reason for
hospitalizations among people over the age of 65 and is one of the most
expensive diseases faced by Americans, costing more than all cancers combined.
An estimated 750,000 African Americans are currently diagnosed with
heart failure. African Americans between the ages of 45 and 64 are 2.5 times
more likely to die from heart failure than Caucasians in the same age range.
The African American community is also more likely to be subject to the disease
at a younger age than their Caucasian counterparts, resulting in earlier
disability and higher rates of both hospitalization and premature death. Ethnic
disparities in the prevalence of heart failure have been attributed to a
variety of factors, including access to medical care, disease management,
socioeconomic factors, lifestyle habits and a higher incidence of diabetes,
hypertension and metabolic syndrome.
African American Heart Failure Trial (A-HeFT)
In 2001, we partnered with the Association of Black Cardiologists, Inc.
to conduct the African American Heart Failure Trial, or A-HeFT, the first trial
conducted in a heart failure population in which all of the participants
identified themselves as black. A retrospective analysis of an earlier study
with a combination of isosorbide dinitrate and hydralazine hydrochloride had
suggested a trend for improved survival in the subset of patients with mild to
moderate heart failure who self-identified themselves as black. The randomized,
double-blind, placebo-controlled A-HeFT study enrolled 1,050 self-identified
black patients with New York Heart Association, or NYHA, class III or IV
heart failure at 169 clinical research sites. The classification system means
that patients had marked limitation of physical activity (class III) or
were unable to carry out any physical activity without discomfort
(class IV). Participants in A-HeFT were required to be stable while
receiving standard heart failure therapy at the time of the beginning of the
trial, per their physicians. The primary end point for the trial was a
composite score made up of weighted values for death from any cause, a first
hospitalization for heart failure, and change in the quality of life.
After a unanimous recommendation from the independent A-HeFT Data
Safety Monitoring Board in July 2004, A-HeFT was halted early due to a
significant survival benefit seen with the drug. Patients taking BiDil in
addition to current therapies experienced a significant 43% decrease in the
risk of mortality (p=0.012) (absolute mortality rate: BiDil, 6.2% vs. placebo,
10.2%), a 39% reduction in the risk of first hospitalization for heart failure
(p<0.001) (absolute first hospitalization rate: BiDil, 16.4% vs. placebo,
24.4%) and a statistically significant improvement at most time points in
response to the Minnesota Living with Heart Failure Questionnaire, which is a
self-report of the patients functional status, versus patients taking placebo
in addition to current standard therapies. Adverse events reported in the trial
included symptoms of headache and dizziness, which were significantly more
frequent in the group given BiDil, and exacerbations of congestive heart
failure, both moderate and severe, which were significantly more frequent in
the placebo group.
BiDil
BiDil, an orally administered fixed-dose combination of isosorbide
dinitrate and hydralazine hydrochloride, was approved by the FDA in June 2005
for the treatment of heart failure in self-identified black patients. BiDil is
indicated for the treatment of heart failure as an adjunct to standard therapy
in self-identified black patients to improve survival, to prolong time to
hospitalization for heart failure, and to improve patient-reported functional
status. There is little experience in patients with NYHA class IV heart
failure. Most patients in the A-HeFT clinical trial received, in addition to
BiDil or placebo, concomitant therapy with one or more of the following other
heart failure medicines: a loop diuretic, an angiotensin converting enzyme
inhibitor or an angiotensin receptor blocker, and a beta blocker. In addition,
many patients also received a cardiac glycoside or an aldosterone antagonist.
BiDil is a fixed-dose combination of isosorbide dinitrate, a vasodilator with
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effects on
arteries and veins, and hydralazine hydrochloride, a predominantly arterial
vasodilator. The mechanism of action underlying the beneficial effects of BiDil
in the treatment of heart failure has not been established.
In January 2008, we discontinued active promotional activities for
BiDil based upon our determination that the successful commercialization of
BiDil requires a magnitude of resources that we cannot allocate to the program,
as well as our plans to conserve cash in order to pursue the development of
BiDil XR. Although we have discontinued promotional activities related to
BiDil, we continue to contract for the manufacture of, and to sell, BiDil and
maintain the product on the market for patients through normal wholesale and
retail channels.
We are party to a five-year exclusive manufacturing and supply
agreement with Schwarz Pharma Manufacturing, Inc., or Schwarz Pharma,
which is now a division of UCB S.A., for the three times daily immediate
release dosage formulation of BiDil. As part of the manufacturing process, we
order bulk materials of hydralazine hydrochloride from Flavine International, Inc.,
the U.S. representative of Sumitomo Corp., and isosorbide dinitrate from
Dottikon ES Holding AG.
We estimate that a substantial majority of insured African American
patients over the age of 45 have access to BiDil at Tier II insurance
reimbursement, a term generally used to denote a preferential level of
reimbursement at which patient co-pays range from approximately $15.00 to
$30.00 per prescription. Our estimates are drawn from published databases,
subscription databases and external consultants who have expertise in this
area. Due to the fact that ethnicity data is not generally collected by
commercial and Medicare Part D insurers, exact figures cannot be
determined.
BiDil XR
The current formulation of BiDil is an immediate-release tablet that
must be taken three times daily. We have pursued the development of an extended
release formulation of BiDil, known as BiDil XR, which is designed to be taken
once a day. We believe that BiDil XR could enhance the BiDil market by
facilitating greater compliance by patients with their medications schedule, an
issue which we believe is more pronounced in a patient population already on a
substantial number of concomitant medications. We commenced clinical
development of BiDil XR in October 2006, and preliminary clinical studies
with BiDil XR have demonstrated proof of principle.
Nitric Oxide-Enhancing Intellectual Property
In March 2006, we eliminated our discovery research programs, and
we do not have any plans to conduct future discovery research efforts with
respect to our nitric oxide-enhancing technologies. We are seeking to divest
these proprietary technologies through a sale of assets, exclusive license
arrangement or other comparable transaction. Prior to our March 2006
restructuring, we utilized our nitric oxide expertise and proprietary position
to develop product candidates for a variety of medical conditions. Our previous
efforts sought to produce nitric oxide-enhancing drug candidates by combining
an existing, marketed medicine with a nitric oxide donor, which is a molecule
capable of increasing nitric oxide levels in the body. The nitric oxide donor
and the existing medicine can be combined together through either a chemical
linkage to potentially create a proprietary new chemical entity or through the
direct mixing of the medicine and the nitric oxide-enhancing compound to
potentially create a patentable new use and dosage form. Our prior research
efforts did not result in any commercialized drug products.
Research and Development
Our current development activities have been solely directed to the
continued development of BiDil XR. During the fiscal years ended December 31,
2008, 2007 and 2006, our total company-sponsored research and development
expenses were $2.8 million, $12.2 million, and $17.0 million,
respectively.
Proprietary Rights and Licensing
Our policy is to prosecute and enforce our patents and proprietary
technology. We will be able to protect our proprietary technologies from
unauthorized use by third parties only to the extent that our proprietary
rights are covered by valid and enforceable patents or are effectively
maintained as trade secrets.
BiDil.
As of
December 31, 2008, NitroMed has two issued U.S. patents that expire
in 2020, which relate to co-administration of the components of BiDil. The
first U.S. patent covers methods for reducing mortality associated with
chronic congestive heart failure, for improving the quality of life, for
improving oxygen consumption or for improving exercise tolerance in black
patients. The second U.S. patent covers additional claims to specific
indications and dosing ranges
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for the treatment of heart
failure and other conditions in black patients. In addition, NitroMed has filed
16 U.S. patent applications and 34 corresponding foreign patent applications
that could provide additional patent protection for BiDil.
Nitric Oxide-Enhancing
Technologies
. As of December 31, 2008, NitroMed has 31
pending U.S. patent applications and 87 issued U.S. patents and
NitroMed also has 37 issued patents and 103 pending patent applications in
certain major industrial countries, including Canada, the major European market
countries, Australia and Japan generally relating to its nitric oxide-enhancing
technologies. These issued U.S. and foreign patents expire on various
dates through 2027.
Corporate Collaborations and Business
Arrangements
Elan.
In February 2007, in connection with our
efforts to develop BiDil XR, we entered into a license agreement with Elan.
Pursuant to the agreement, Elan granted to us an exclusive worldwide license,
for the term of the agreement, to certain know-how, patents and technology, and
any improvements to any of the foregoing developed by either party during the
term of the agreement. Pursuant to this license, we have the right to import,
use, offer for sale and sell the oral capsule formulation incorporating
specified technology referred to in the agreement and containing, as its sole
active combination of ingredients, the combination of the active drug
substances isosorbide dinitrate and hydralazine hydrochloride, including BiDil
XR. In consideration for the grant of the license, we have agreed to pay Elan
royalties that are calculated by reference to annual net sales parameters set
forth in the agreement. In addition, we have also agreed to pay Elan specified
amounts upon the achievement of specified development and commercialization
milestone events set forth in the agreement.
The term of the agreement runs in the United States from the effective
date of the agreement until the later of (a) the 20th anniversary of
the date of the first sale of the product by us or a permitted sublicensee to
an unaffiliated third party, which is referred to in the agreement as the first
in market sale, or (b) the expiration of the last-to-expire patent for the
product listed in the FDAs Orange Book. Elsewhere in the world, the term
will run on a country by country basis from the effective date of the agreement
until the later of (a) the 20th anniversary of the date of the first
in market sale of the product in the country concerned or (b) the
expiration of the life of the last to expire patent included in the Elan
intellectual property in that country. Following the expiration of the initial
term, the agreement shall continue automatically for rolling 3 year
periods thereafter, unless the agreement has been terminated by either of the
parties by serving 1 years written notice on the other party prior to the
end of the initial term or any such additional 3 year period. Either Elan
or we may terminate the agreement in the event of a material, uncured breach by
the other party, or if the other party goes into liquidation or becomes
bankrupt or insolvent. In addition, we may terminate the agreement in the event
of a technical failure, which is defined as the inability to achieve a
pharmacokinetic profile for the product consistent with that of BiDil
administered three times daily (at 6 hour intervals). Elan may terminate
the agreement with respect to a particular country in the territory in the event
that we do not meet certain obligations set forth in the agreement with respect
to such country, provided that Elan must first consult with us and, if
applicable, provide us with an opportunity to meet such obligations prior to
exercising Elans termination rights.
Schwarz Pharma Manufacturing, Inc.
In February 2005, we entered into a
five-year exclusive manufacturing and supply agreement with Schwarz Pharma for
the three times daily immediate release dosage formulation of BiDil. Under the
supply agreement, we have the right to engage a backup manufacturer but do not
currently have any backup manufacturing agreement in place. The agreement
renews automatically upon the expiration of the then-current term for
successive one year terms unless either party provides written notice of
termination at least six months prior to the expiration of the then-current
term. The agreement is also terminable upon the occurrence of certain specified
events. Schwarz Pharma is now a division of UCB S.A.
Cardinal Health PTC, LLC.
In June 2005, we entered into a
three-year exclusive distribution agreement with Cardinal Health for the
distribution of BiDil in all formulations. We are obligated to pay Cardinal
Health fees for the services provided under the agreement. Pursuant to the
terms of the agreement, Cardinal Health has the right of first negotiation for
any new pharmaceutical product to be sold by us during the term. The agreement
renews automatically unless either party provides written notice of termination
at least ninety days prior to the expiration of the then-current term. The
agreement may be terminated without cause upon 120 days notice. However, we are
obligated to pay certain fees if we exercise this termination right during the
initial term of the agreement. The agreement is also terminable upon the
occurrence of certain specified events.
Dr. Jay N. Cohn.
In January 1999, as amended in August 2000,
January 2001, March 2002 and September 2008, we entered into a
collaboration and license agreement with Dr. Jay N. Cohn, which we refer
to as the collaboration agreement. Under the collaboration agreement, Dr. Cohn
licensed to us exclusive worldwide royalty-bearing rights to technology and
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inventions owned or controlled
by Dr. Cohn and that relate to BiDil for the treatment of cardiovascular
disease. We have made milestone payments and are currently making royalty
payments to Dr. Cohn upon sales of BiDil. During the years ended December 31,
2008, 2007 and 2006, we incurred royalties to Dr. Cohn in the approximate
amounts of $448,000, $450,000, and $364,000, respectively. The collaboration
agreement imposes upon us an obligation to use reasonable best efforts to
develop and, upon receipt of regulatory approval, manufacture, market and
commercialize products based upon the licensed rights. If we fail to meet this
obligation, Dr. Cohn has the right to terminate the collaboration agreement
and the license granted to us thereunder. Dr. Cohn also has the right to
terminate the collaboration agreement if we materially breach the agreement and
fail to remedy the breach within 30 days. We have the right to terminate
the collaboration agreement at any time upon 30 days prior written notice.
Unless earlier terminated, the collaboration agreement continues in perpetuity.
Pursuant to the collaboration agreement, Dr. Cohn was appointed to our
then-current scientific advisory board, entered into a consulting agreement
with us and was granted an option to purchase 10,000 shares of our common
stock.
In September 2008,
we entered into a letter agreement with Dr. Cohn, pursuant to which we and
Dr. Cohn clarified our understandings with respect to royalty payments
pursuant to the collaboration agreement and the related amendments. The letter
agreement resolves certain disputes with regard to the amount of planned costs
and excess costs, as those terms are defined and referred to in the 2001 and
2002 amendments to the collaboration agreement. In addition, the letter
agreement clarifies that we will pay Dr. Cohn a specified reduced royalty
on net sales of collaboration products (as defined in the collaboration
agreement) until such time as the aggregate dollar amount retained by us and
not required to be paid to Dr. Cohn as a result of such reduced royalty
rate equals a specified aggregate dollar amount, which we refer to as the
maximum amount. Once the maximum amount has been achieved, we will resume
making royalty payments to Dr. Cohn at the rate specified in the
collaboration agreement. Additionally, the letter agreement clarifies that
should we sublicense our rights under the collaboration agreement to a third
party, Dr. Cohn will receive a specified percentage of any royalty
payments we receive from the sublicense, and any such payments made to Dr. Cohn
by us will also be subject to offset up to the maximum amount. Pursuant to
the terms of the letter agreement, the parties agreed to terminate the
amendments to the collaboration agreement dated January 29, 2001 and March 15,
2002. In consideration for agreeing to the terms of the letter agreement, we
made a one time cash payment to Dr. Cohn in the amount of $800,000. This
payment has been included as a component of cost of product sales in our
statement of operations for the year ended December 31, 2008.
FoxKiser.
In connection with our efforts to obtain the
approval of BiDil from the FDA, we entered into an agreement with the law firm
of FoxKiser LLC, which we refer to as FoxKiser, for services related to
the regulatory approval process for BiDil. The agreement provided for payment
of legal consulting fees upon receipt of written FDA approval of BiDil. On June 23,
2005, we received written FDA approval of BiDil, and in July 2005, we paid
$2.4 million pursuant to the terms of this agreement. In addition, the
agreement requires us to pay royalties to FoxKiser on commercial sales of
BiDil. The royalty term ends six months after the date of market introduction of
an FDA-approved generic version of BiDil. During the years ended December 31,
2008, 2007 and 2006, we incurred royalties to FoxKiser in the approximate
amounts of $448,000, $450,000 and $364,000, respectively.
Trademarks, Trade Secrets and Other Proprietary
Information
We own the following registered U.S. trademarks:
·
BiDil;
·
NitroMed;
·
NitroMed Cares;
·
More Life to Live; and
·
NitroMed N logo.
We have also filed applications for BiDil XR and HeartHealthHeritage.
In addition, we depend upon trade secrets, know-how and continuing
technological improvements to develop and maintain our competitive position. To
maintain the confidentiality of trade secrets and proprietary information, we
require our employees, scientific advisors, consultants and collaborators, upon
commencement of a relationship with us, to execute confidentiality agreements
and, in the case of parties other than our research and development
collaborators, to agree to assign their inventions to us. These agreements are
designed to protect our proprietary information and to grant us ownership of
technologies that are developed in connection
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with their
relationship with us. These agreements may not, however, provide protection for
our trade secrets in the event of unauthorized disclosure of such information.
Competition
We face intense competition from a wide range of pharmaceutical and life
science companies, as well as academic and research institutions and government
agencies. These competitors include organizations that are pursuing the same or
similar technologies to those which constitute our technology platform and
organizations that are developing and commercializing pharmaceutical products
that may be competitive with BiDil and, if successfully developed and
commercialized, BiDil XR.
We believe that competition for BiDil principally comes from companies
currently marketing and selling therapeutics to treat heart failure in the
general population. These competitors include GlaxoSmithKline, plc, Merck & Co., Inc.,
Pfizer Inc. and AstraZeneca plc. We also compete on the basis of the
availability in generic form and at substantially lower prices of the
individual components that constitute BiDil (isosorbide dinitrate, which is
separately marketed for angina, and hydralazine hydrochloride, which is
separately marketed for hypertension). Although these generic components are
not bioequivalent to BiDil, physicians have prescribed them in lieu of
prescribing BiDil and may continue to do so in the future. We expect to face
similar competitive factors with respect to BiDil XR to the extent that BiDil
XR is successfully developed and commercialized.
Principal competitive factors in our industry include:
·
improved patient outcomes;
·
cost-effectiveness;
·
acceptance by patients, physicians,
other health care providers and third-party public and private payors;
·
the quality and breadth of an
organizations technology;
·
the skill of an organizations employees
and its ability to recruit and retain skilled employees;
·
an organizations intellectual
property protection;
·
development, sales and marketing
capabilities; and
·
the availability of substantial
capital resources to fund development and commercialization activities.
Companies with which we compete generally have financial and other
resources that are substantially greater than our own. Moreover, because we
have discontinued all promotional activities for BiDil and we have ceased all
research and development activities related to our nitric oxide based
technologies, our ability to compete has been significantly adversely affected.
Government Regulation and Reimbursement
FDA Requirements for
New Drug Compounds
The research, testing, manufacture, import, export and marketing of
drug products (including their components) are extensively regulated by
numerous governmental authorities in the United States and other countries. In
the United States, drugs are subject to rigorous regulation by the FDA. The
Federal Food, Drug, and Cosmetic Act, and other federal and state statutes and
regulations, govern, among other things, the research, development, testing,
manufacture, storage, recordkeeping, labeling, promotion, sampling, marketing
and distribution of pharmaceutical products. Failure to comply with applicable
regulatory requirements may subject us to a variety of enforcement actions all
of which could have a material effect.
The steps ordinarily required before a new pharmaceutical product may
be marketed in the United States include pre-clinical laboratory tests, animal
tests and formulation studies under the FDAs good laboratory practice
regulations, or GLP; the submission to the FDA of a notice of claimed
investigational exemption or an investigational new drug application, or IND,
which must become effective before clinical testing may commence; adequate and
well-controlled clinical trials to
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establish the safety and
efficacy of the drug for each indication for which FDA approval is sought;
submission to the FDA of a new drug application, or NDA; satisfactory
completion of a FDA inspection of the manufacturing facility or facilities at
which the product is produced to assess compliance with current good
manufacturing practice, or cGMP, requirements; and FDA review and approval of
the NDA. Satisfaction of FDA pre-market approval requirements typically takes
several years, and the actual time required may vary substantially based upon
the type, complexity and novelty of the product or disease. Government
regulation may delay or prevent marketing of potential product candidates for a
considerable period of time and impose costly procedures upon a manufacturers
activities. Success in early stage clinical trials does not assure success in
later stage clinical trials. Data obtained from clinical activities is not
always conclusive and may be susceptible to varying interpretations that could
delay, limit or prevent regulatory approval. Even if a product receives
regulatory approval, later discovery of previously unknown problems with a
product, including new safety risks, may result in restrictions on the product
or even complete withdrawal of the product from the market.
Clinical
trials to support a NDA for marketing approval are typically conducted in three
phases. In phase I, the drug is tested to assess safety, including side
effects associated with increasing doses, metabolism, pharmacokinetics and
pharmacological actions. Phase II usually involves trials in a limited
patient population, to determine dosage tolerance and optimum dosage, identify
possible adverse effects and safety risks, and provide preliminary support for
the efficacy of the drug in the indication being studied. Phase III trials
are undertaken to further evaluate clinical efficacy and to further test for
safety within an expanded patient population. The FDA may require
bioequivalence, bioavailability, or other clinical studies to support approval
of new formulations of approved products, such as BiDil XR. All clinical trials
must be conducted in compliance with patient protection laws and regulations,
including requirements related to informed consent and institutional review
board, or IRB, review and approval.
Clinical
testing of any product may not be completed successfully within any specified
time period, if at all. The FDA closely monitors the progress of clinical
trials that are conducted under an IND and may, at its discretion, reevaluate,
alter, suspend or terminate the testing based upon the data accumulated to that
point and the FDAs assessment of the risk/benefit ratio to the patient. The
FDA, an IRB, or a clinical trial sponsor may suspend or terminate clinical
trials at any time for various reasons, including a finding that the subjects
or patients are being exposed to an unacceptable health risk. The FDA can also
request additional clinical trials be conducted as a condition to product
approval.
After
successful completion of the required clinical testing, generally a NDA or
supplement to an existing NDA is prepared and submitted to the FDA. FDA
approval of the NDA or the NDA supplement is required before marketing of the
product may begin in the United States. The cost of preparing and submitting a
NDA or NDA supplement is substantial.
Following the
FDAs evaluations of the NDA or NDA supplement, including inspection of the
manufacturing facilities, the FDA may issue an approval letter, an approvable
letter, or a not approvable letter. A not approvable letter outlines
deficiencies in the submission and often requires additional testing or
information in order for the FDA to reconsider the application. An approvable
letter generally contains a statement of specific conditions that must be met
in order to secure final approval of the NDA. If and when those conditions have
been met to the FDAs satisfaction, the FDA will typically issue an approval
letter. An approval letter authorizes commercial marketing of the drug with
specific prescribing information for specific indications. As a condition of
NDA approval, the FDA may require post-approval commitments, including testing
and surveillance to monitor the drugs safety or efficacy, and may also impose
other conditions, including labeling restrictions which can materially impact
the potential market and profitability of the drug. Once granted, product
approvals may be withdrawn if compliance with regulatory standards is not
maintained or problems are identified following initial marketing.
Once the NDA
or NDA supplement is approved, a product will be subject to certain
post-approval requirements, including requirements for adverse event reporting
and submission of periodic reports and/or supplemental NDAs for approval of
changes to the originally approved prescribing information, product
formulation, and manufacturing and testing requirements. Following approval,
drug products are required to be manufactured and tested for compliance with
NDA and/or compendial specifications prior to release for commercial
distribution. The manufacture and testing must be performed in approved
manufacturing and testing sites complying with current Good Manufacturing
Practice, or cGMP, requirements and subject to FDA inspection authority. Drug
manufacturers and their subcontractors are required to register their
facilities with the FDA and are subject to periodic unannounced inspections by
the FDA to assess compliance with cGMPs. Accordingly, after approval
manufacturers must continue to expend time, money and effort in the area of
production and quality control, and employee training, to maintain compliance
with cGMPs and other aspects of regulatory compliance.
The FDA
strictly regulates the promotional claims that may be made about prescription
drug products, including direct-to-consumer advertising, industry-sponsored
scientific and educational activities, and promotional activities involving
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the Internet. Approved drug
products must be promoted in a manner which is consistent with their terms and
conditions of approval and the statutory standards of the Food, Drug, and
Cosmetic Act. Failure to market consistent with the statutory and regulatory
standards may result in enforcement action by the FDA, which may include
product seizures, civil or criminal penalties, or regulatory letters, which may
require corrective advertising or other corrective communications to healthcare
professionals. Failure to comply with FDA regulations can also result in
Department of Justice investigation based on the False Claims Act and other
federal laws governing reimbursement for drugs under the Medicare, Medicaid and
other federally supported healthcare programs. Both the FDA and Department of
Justice enforcement may relate to previous marketing practices that we have
since suspended.
Once a NDA is
approved, the product covered thereby becomes a listed drug which can, in
turn, be cited by potential competitors in support of approval of an
abbreviated NDA, or ANDA. An approved ANDA provides for marketing of a drug
product that has the same conditions of use, active ingredients, strength,
dosage form, route of administration, and labeling as the listed drug and has
been shown through bioequivalence testing to be therapeutically equivalent to
the listed drug. There is no requirement, other than the requirement for
bioequivalence testing, for an abbreviated NDA applicant to conduct or submit
results of pre-clinical or clinical tests to prove the safety or efficacy of
its drug product. Drugs approved in this way are commonly referred to as
generic equivalents to the listed drug, are listed as such by the FDA, and
can often be substituted by pharmacists under prescriptions written for the
original listed drug.
Federal law
provides for a period of three years of marketing exclusivity following
approval of a listed drug that contains previously approved active ingredients
but is approved in a new dosage, dosage form, route of administration or
combination, or for a new use, if the FDA deems that the approval of the drug
was required to be supported by new clinical trials (other than bioequivalence
studies) that were conducted by or for the sponsor. During this three-year
period, the FDA cannot grant final approval of an ANDA based on that listed
drug. Additionally, in the event that the sponsor of the listed drug has
properly informed the FDA of patents covering its listed drug, applicants
submitting an ANDA referencing that drug are required to certify whether they
intend to market their generic products prior to expiration of those patents.
If an ANDA applicant certifies that it believes all listed patents are invalid
or not infringed, it is required to provide notice of its filing to the NDA
sponsor and the patent holder. If the patent holder then initiates a suit for
patent infringement against the ANDA sponsor within 45 days of receipt of
the notice, the FDA cannot grant effective approval of the ANDA until either
30 months has passed or there has been a court decision holding that the
patents in question are invalid, unenforceable or not infringed. If the ANDA
applicant certifies that it does not intend to market its generic product
before some or all listed patents on the listed drug expire, then the FDA
cannot grant effective approval of the ANDA until those patents expire.
From time to
time, legislation is drafted and introduced in Congress that could
significantly change the statutory provisions governing the approval,
manufacturing and marketing of drug products. In addition, FDA regulations and
guidance are often revised or reinterpreted by the agency or the courts in ways
that may significantly affect our business and our product candidates. 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.
Foreign Regulation
of New Drug Compounds
Approval of a
drug product by comparable regulatory authorities will be necessary in all or
most foreign countries prior to the commencement of marketing of the product in
those countries, whether or not FDA approval has been obtained. The approval
procedure varies among countries and can involve requirements for additional
testing. The time required may differ than that required for FDA approval.
Hazardous Materials
Our previous
research and development processes involved the controlled use of hazardous
materials, chemicals and radioactive materials and produce waste products. 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.
Reimbursement
Our ability to
continue to generate revenue through the sale of BiDil and any future products
depends in part on the extent to which reimbursement for the costs of such
products will be available from government health administration authorities,
private health insurers and other third-party payors. Significant uncertainty
exists as to the reimbursement status of newly-approved health care products,
products used for indications not approved by the FDA and products which have
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competitors for their approved
indications. If we are unable to maintain our level of preferential
reimbursement treatment for BiDil from governmental and other third-party
payors, our ability to sell and/or maintain acceptable pricing schemes for
BiDil may be impaired, thereby reducing our revenue.
Employees
As of December 31,
2008, we had five full-time employees, all of whom were engaged in management,
administration, finance and regulatory functions. None of our employees are
represented by a labor union or covered by a collective bargaining agreement,
nor have we experienced work stoppages.
Product Liability Insurance
The
administration of our products to humans, whether in clinical trials or after
marketing approvals are obtained and the product is in use commercially, may
expose us to liability claims. These claims might be made by customers,
including corporate partners, clinical trial subjects, patients, pharmaceutical
companies or others. We maintain product liability insurance coverage for
claims arising from the use of our products, whether in clinical trials or
approved commercial usage. However, insurance coverage is becoming increasingly
expensive, and our insurance may not provide sufficient coverage to fully
protect us against liability. If we are unable to maintain sufficient levels of
insurance due to increased costs or if our insurance does not provide
sufficient coverage against liability claims, a finding of liability could
deplete our resources and reduce the assets available for our daily operations.
Significant Customers
Our
significant customers in each of the last three years, and their percentage of
our total sales, are as follows:
|
|
Year ended December 31,
|
|
Customer
|
|
2008
|
|
2007
|
|
2006
|
|
McKesson Corporation
|
|
38
|
%
|
38
|
%
|
34
|
%
|
Cardinal Health
|
|
35
|
%
|
36
|
%
|
36
|
%
|
Amerisource Bergen Corporation
|
|
18
|
%
|
17
|
%
|
18
|
%
|
Our sales of
BiDil are made to customers geographically located throughout the United
States.
We recognized
$750,000 in research and development revenue from the non-exclusive licensing
of certain non-strategic intellectual property in 2007, and recognized no
research and development revenue in 2008 and 2006. No other company accounted
for more than 10% of our total revenues in fiscal years 2008, 2007 or 2006.
Raw Materials
The active
ingredients in BiDil are hydralazine hydrochloride, which we purchase from
Flavine International, Inc., the U.S. representative of Sumitomo Corp.,
and isosorbide dinitrate, which we purchase from Dottikon ES Holding AG. We
believe that Sumitomo is currently the only supplier that is qualified to
provide hydralazine hydrochloride for the manufacture of BiDil. We do not have
any agreement with Sumitomo regarding the supply of hydralazine hydrochloride.
Segment Information
During the
three years ended December 31, 2008, 2007 and 2006, we operated in one
reportable business segment, developing nitric oxide-enhancing medicines, under
the management approach of Statement of Financial Accounting Standards No. 131,
Disclosures about Segments of an Enterprise
and Related Information.
Available Information
Our internet
website address is http://www.nitromed.com. Through our website, we make
available, free of charge, our annual report on Form 10-K, quarterly
reports on Form 10-Q, current reports on Form 8-K and any amendments
to those reports, proxy and registration statements, and all of our insider Section 16
reports, as soon as reasonably practicable after such material is
electronically filed with, or furnished to, the Securities and Exchange
Commission, or SEC. These SEC reports can be accessed through the Investors
section of our website. We also make available on our website the charters for
our audit committee, compensation committee, and nominating and corporate
governance committee, as well as our code
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of business conduct and ethics,
and such information is available in print to any stockholder of NitroMed who
requests it. In addition, we intend to disclose on our website any amendments
to, or waivers from, our code of business conduct and ethics that are required
to be publicly disclosed pursuant to rules of the SEC and The NASDAQ
Global Market. The information found on our website is not part of this or any
other report we file with, or furnish to, the SEC.
ITEM 1A.
RISK FACTORS
You should carefully consider the following risk factors, in addition
to other information included in this annual report, in evaluating NitroMed and
our business. If any of the following risks occur, our business, financial
condition and operating results could be materially adversely affected.
Risks Relating to Our Proposed Merger with Deerfield
Management
Our proposed merger with Deerfield
Management may be delayed, enjoined by a court or not occur at all for a
variety of reasons, including the possibility that the merger agreement is
terminated prior to the completion of the merger.
The merger agreement with
Deerfield Management may be terminated at any time before the completion of the
merger, by either us or Deerfield Management, if:
·
|
|
the merger has not been completed by
June 30, 2009, provided that neither we nor Deerfield Management can
terminate the merger agreement if the failure of the merger to be completed
by that date is principally caused by our or Deerfield Managements own
action or failure to act, respectively, and that action or failure to act
constitutes a breach of the merger agreement;
|
|
|
|
·
|
|
a court of competent jurisdiction or other
governmental entity has issued a final and nonappealable order, decree or
ruling or taken any other action that permanently restrains, enjoins or
otherwise prohibits the merger; or
|
|
|
|
·
|
|
the required vote of our stockholders to
adopt the merger agreement is not obtained at the meeting of our stockholders
where that vote is taken, provided that we may not terminate the merger
agreement if the failure to obtain the required vote of our stockholders to
adopt the merger agreement was caused by our action or failure to act and
that action or failure to act is a material breach of the merger agreement.
|
In addition, the merger agreement may be
terminated by Deerfield Management at any time before the completion of the
merger if, among other things:
·
|
|
our board of directors withholds, amends, withdraws or modifies its
recommendation that our stockholders vote to adopt the merger agreement;
|
|
|
|
·
|
|
we fail to hold the special meeting of stockholders within 45 days after
the relevant proxy statement is first mailed to our stockholders; or
|
|
|
|
·
|
|
we breach any of our representations,
warranties, covenants or other agreements set forth in the merger agreement
or if any of our representations or warranties become inaccurate, in either
case such that the closing conditions of the merger would not be satisfied as
of the time of the breach or inaccuracy, provided that if the breach or
inaccuracy is curable, Deerfield Management may not terminate until the
earlier of the expiration of a 30-day notice period and our ceasing to
exercise commercially reasonable efforts to cure the breach, if the breach
has not already been cured.
|
In the event that the proposed merger between
us and Deerfield Management does not occur, we will review the strategic
alternatives for our remaining business and assets, including the possible
dissolution of our company and liquidation of our assets, the discharge of any
remaining liabilities, and the eventual distribution of remaining assets, if
any, to our stockholders. If we determine to dissolve and liquidate our assets,
we will seek the approval of the holders of the majority of our then
outstanding shares of common stock for that action, and we can not give any
assurances as to the amount or timing of the payment of liquidation proceeds
that might eventually be distributed to our stockholders.
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Even if our proposed merger with Deerfield
Management is completed, our stockholders may receive less consideration than
$0.80 for each share of our common stock, depending on our net cash balance at
the closing of the merger.
The terms of our merger
agreement with Deerfield Management provide that the amount of the merger
consideration that our stockholders will be entitled to receive for each share
of our common stock upon completion of the merger is $0.80 per share in cash,
without interest, subject to the following adjustments:
·
|
|
if our net cash at the closing of the merger exceeds $12.3 million,
the amount of the merger consideration per share will be increased by the
amount of such excess divided by the number of shares of our common stock
outstanding at the effective time of the merger;
|
|
|
|
·
|
|
if our net cash at the closing of the merger is less than $12.3
million, the amount of the merger consideration per share will be decreased
by the amount of such difference divided by the number of shares of our
common stock outstanding at the effective time of the merger;
|
|
|
|
·
|
|
if we complete a sale of our nitric oxide research technology
platform before the closing of the merger, the amount of the merger
consideration per share will be increased by the amount of the proceeds from
such a sale, not to exceed 2 million, divided by the number of shares of our
common stock outstanding at the effective time of the merger; and
|
|
|
|
·
|
|
if we are required, pursuant to the terms of the merger agreement, to
pay accountants expenses in connection with a dispute regarding the
calculation of our net cash balance at closing, the amount of the merger
consideration per share will be decreased by the amount of any such expenses
to be borne by us divided by the number of shares of our common stock outstanding
at the effective time of the merger.
|
Whether
or not our net cash at closing is greater than, equal to or less than $12.3
million will depend on a variety of factors, including continued sales of
BiDil, operational costs related to maintaining BiDil on the market and
transactional costs related to completing the proposed merger with Deerfield
Management. Many of the underlying forces that will determine our net cash at
closing are not within our control, and we can make no assurance that our net cash
at closing will be equal to or greater than $12.3 million. Accordingly, our
shareholders may receive an amount of merger consideration that is less than
$0.80 for each share of our common stock upon completion of the merger.
During the pendency of the merger
with Deerfield Management, we may not be able to enter into a business
combination with another party because of restrictions in the merger agreement.
Covenants in the merger agreement limit our ability to make
acquisitions or complete other transactions that are not in the ordinary course
of business pending completion of the merger with Deerfield Management. While
the merger agreement is in effect, and subject to limited exceptions, we are
prohibited from soliciting, initiating, encouraging or taking actions designed
to facilitate any inquiries or the making of any proposal or offer that could
lead to the entering into certain extraordinary transactions with any third
party, such as a sale of assets, other than the asset sale or a sale of our
nitric oxide business other than in specified circumstances, an acquisition of
our common stock, a tender offer for our common stock, a merger or other
business combination outside the ordinary course of business. Any such
transactions could be favorable to our stockholders.
Class action litigation could require us
to incur significant costs and suffer management distraction, as well as delay
and/or enjoin our potential merger with Deerfield Management.
We are aware of a purported class action
lawsuit related to the merger with Deerfield Management that has been filed
against us, each of our directors, our president and chief executive officer
and certain of Deerfield Managements affiliates in Suffolk County Superior
Court in Massachusetts. The lawsuit,
Mieczyslaw Stachnik et al.
v. Kenneth Bate et al.
, Civil Action No. 09-0622-BLS, was filed
on February 12, 2009 and alleges, among other things, that the merger
consideration to be paid to our stockholders in the merger is unfair and
undervalues our company. In addition, the complaint alleges that our directors
and our president and chief executive officer violated their fiduciary duties
by, among other things, failing to maximize stockholder value and failing to
engage in a fair sale process. The complaint seeks, among other relief, an
injunction preventing completion of the merger or, if the merger is
consummated, rescissory damages. We believe that this lawsuit is without merit
and plan to defend it vigorously. However, we could incur substantial costs in
defending this lawsuit.
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In addition, even though we believe this lawsuit is without merit, our
potential merger with Deerfield Management could be delayed and/or enjoined by
a court of competent jurisdiction, any of which could substantially harm our
business and require us to pursue alternative strategic options, including the
dissolution of our company and liquidation of our assets.
Risks Relating to Our Business, Strategy and
Financial Condition
We have discontinued active promotional activities
related to our only commercially-available product, BiDil, which is likely to
significantly adversely affect our future revenue and our ability to continue
to fund our operations, including supporting continued sales of BiDil and
development of BiDil XR.
In January 2008, we discontinued active promotional activities for
BiDil based upon our determination that the successful commercialization of
BiDil requires a magnitude of resources that we cannot allocate to the program,
as well as our plans at that time to conserve cash in order to pursue the
development of BiDil XR. We concurrently implemented a restructuring plan that
eliminated approximately 80 positions
, and we currently employ four
full-time individuals. Although we have discontinued our promotional activities
for BiDil, we continue to contract for the manufacturing of, and to sell, BiDil
and maintain the product on the market for patients through normal wholesale
and retail channels. We have also conducted limited advertising in select
medical publications, and have utilized a third-party marketing firm to contact
healthcare professionals on our behalf, in each case in an effort to maintain a
limited market presence for BiDil.
Unless and until we complete the merger with Deerfield Management, we
expect to incur operating expenses going forward primarily related to keeping
BiDil available on the market. We expect to fund a substantial portion of these
operating expenses through ongoing BiDil sales. We believe that the elimination
of our sales force and discontinuation of our active promotional efforts
related to BiDil is likely to result in a decline in BiDil prescriptions by
healthcare providers and could also adversely affect the willingness of third
party payors to provide reimbursement at favorable levels. If physicians do not
continue to prescribe BiDil in sufficient quantities, and/or if managed care
providers remove BiDil from a preferential reimbursement tier on their plan
formularies, then our future revenue from sales of BiDil will decline
significantly, we may not generate sufficient capital to support continued
sales of BiDil, and our ability to advance the development of BiDil XR will be
adversely affected, in which case we may be required to further curtail or
cease our operations.
We have a history of operating losses and, if
we are not able to complete the merger with Deerfield Management, we will
require substantial additional amounts of cash to fund our operating plan,
including our plans to support any continued sales of BiDil and seek to develop
and commercialize BiDil XR. If additional capital is not available, we may be
required to cease operations.
We have
experienced significant operating losses since our inception in 1992. For the
year ended December 31, 2008, we had a net loss of $5.9 million, and
as of December 31, 2008, we had an accumulated deficit of
$351.3 million. We have incurred loses in all but one quarter since
inception, we have discontinued active promotion of BiDil, and we may incur
losses in future periods. Losses that we may incur in the future could
fluctuate from quarter to quarter, and these fluctuations may be substantial.
In January 2008,
we ceased actively promoting sales of BiDil, which is our only significant
source of revenue. Pending the completion of our merger with Deerfield
Management, we expect to incur operating expenses going forward primarily
related to keeping BiDil available on the market. We expect to also incur
minimal additional expenses in 2009 related to the further development of BiDil
XR. Whether or not the merger with Deerfield Management is completed, we
believe that our existing sources of liquidity and the cash expected to be
generated from future sales of BiDil, together with the significant reduction
in expenditures as a result of our January 2008 restructuring, will be
sufficient to fund our operations for at least the next twelve months. However,
our future capital requirements, and the period in which we expect our current
cash to support our operations, may vary due to a number of factors, including
the following:
·
|
|
our ability to successfully consummate the
proposed merger with Deerfield Management, or a comparable strategic
arrangement related to our business and assets, and the expenses related to
any such transaction;
|
|
|
|
·
|
|
the amount of future product sales of
BiDil;
|
|
|
|
·
|
|
the cost of manufacturing and selling
BiDil;
|
|
|
|
·
|
|
the timing of collections related to sales
of BiDil;
|
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·
|
|
the time and costs involved in completing
the clinical trials and further development of, and obtaining regulatory
approvals for, BiDil XR, if at all;
|
|
|
|
·
|
|
the effect of competing technological and
market developments;
|
|
|
|
·
|
|
the costs involved in preparing, filing,
prosecuting, maintaining and enforcing patent claims, and in meeting our
reporting obligations as a publicly traded company;
|
|
|
|
·
|
|
the cost of maintaining licenses to use
patented technologies;
|
|
|
|
·
|
|
unfavorable conditions in the capital
markets, which may adversely affect the value and liquidity of its
investments; and
|
|
|
|
·
|
|
general global and domestic economic
conditions, including inflation, recessionary risks and volatile energy
costs.
|
While we intend to consummate the proposed merger
with Deerfield Management, if the proposed merger with Deerfield Management is
not approved by our stockholders or is not completed for other reasons, we will
review the strategic alternatives available for our business, including the
possible dissolution of our company and liquidation of our assets, the
discharge of any remaining liabilities, and the eventual distribution of
remaining assets, if any, to our stockholders
.
If we fail
to regain compliance with the requirements for continued listing on The NASDAQ
Global Market, our common stock could be delisted from trading, which would
adversely affect the liquidity of our common stock and our ability to raise
additional capital or enter into strategic transactions.
On September 16, 2008,
we received a letter from the NASDAQ Stock Markets Listing Qualifications
Department providing notification that, for the last 30 consecutive business
days, the bid price of our common stock had closed below the minimum $1.00 per
share requirement for continued inclusion on The NASDAQ Global Market, referred
to as the minimum bid price rule. NASDAQ stated in such notification that, in
accordance with the NASDAQ Marketplace Rules, we have 180 calendar days, or
until March 16, 2009, to regain compliance with the minimum bid price
rule. On October 22, 2008, we received an additional letter from NASDAQ to
advise us that it has suspended enforcement of the bid price requirements for
all NASDAQ listed companies through January 19, 2009. On December 23, 2008, we received another letter
from NASDAQ to advise us that NASDAQ had determined to extend the suspension of
the bid price requirements for all NASDAQ listed companies, and that
enforcement of the bid price rules will be reinstated on April 20,
2009. The letter further stated that prior to the resumption of the bid price
rules, NASDAQ will contact us to inform us of the number of calendar days
remaining in our compliance period. Based upon the first suspension letter, in
which NASDAQ informed us that we still had 151 days remaining in our 180 day
compliance period as of the suspension date, upon reinstatement of the bid
price rules on April 20, 2009, we believe that we will still have
that number of days to regain compliance.
Prior to the end of the
remaining time in our compliance period following the reinstatement of the bid
price rules, if the bid price of our common stock closes at $1.00 per share or
more for a minimum of 10 consecutive business days, NASDAQ will provide written
notification that we have achieved compliance with the minimum bid price rule.
However, NASDAQ may, in its discretion, require that we maintain a bid price of
in excess of $1.00 for a period in excess of 10 days, but generally no more
than 20 days, before determining that we have demonstrated the ability to
maintain long-term compliance. If we do not regain compliance with the minimum
bid price rule prior to the end of the remaining time in our compliance
period following the reinstatement of the bid price rules, NASDAQ will provide
written notification that our securities will be delisted from The NASDAQ
Global Market. At that time, we may appeal NASDAQs determination to delist our
securities to a NASDAQ Listing Qualifications Panel. We cannot assure you that
any such appeal, if made, would be successful. Alternatively, in the event such
delisting is based solely upon non-compliance with the minimum bid price rule,
we could apply to transfer our securities to The NASDAQ Capital Market,
provided that we satisfy the requirements for initial listing on such market,
other than the minimum bid price rule. If such an application were approved and
we otherwise maintain the listing requirements for The NASDAQ Capital Market,
other than the minimum bid price requirement, we would be afforded the
remainder of The NASDAQ Capital Markets second 180 calendar day grace period
in order to regain compliance with the minimum bid price rule.
In the event that our
proposed merger with Deerfield Management is delayed or not completed at all,
any potential delisting of our common stock from The NASDAQ Global Market would
make it more difficult for our stockholders to sell our common stock in the
public market and would likely result in decreased liquidity and increased
volatility for our common stock. There are many factors that may adversely
affect our minimum bid price, including those described throughout this
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section titled
Risk Factors. Many of these factors are outside of our control. As a result,
we may not be able to sustain compliance with the minimum bid price rule in
the long term.
Commercialization risks and other factors may
adversely affect our ability to maintain sales of BiDil and, if successfully
developed, BiDil XR.
Factors that
we believe may materially adversely affect continued sales of BiDil, and may
also affect sales of BiDil XR, if it is successfully developed and
commercialized, include:
·
|
|
the discontinuation of our active
promotional programs as a result of our January 2008 restructuring plan;
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·
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the unavailability of favorable government
and third-party payor reimbursement;
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·
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our inability to manufacture and sell BiDil
at a competitive price;
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·
|
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the availability in generic form and at
substantially lower prices of the individual components that constitute BiDil
(isosorbide dinitrate, which is separately marketed for angina, and
hydralazine hydrochloride, which is separately marketed for hypertension) and
the misperception by physicians, patients and payors that these generic
components are equivalent to BiDil;
|
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·
|
|
the requirement by potential large
purchasers of BiDil, such as hospitals or health maintenance organizations,
or by state formularies, other government agencies or private payors that
approve reimbursement for drugs, that the generic components of BiDil be
substituted for BiDil;
|
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|
·
|
|
the failure of physicians, third-party
payors and patients to accept a product intended to improve therapeutic
results based on ethnicity or to accept BiDil as being safe, effective, easy
to administer and medically necessary; and
|
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·
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our inability to maintain the necessary
patent protection, licenses and regulatory approvals required to manufacture
and sell BiDil.
|
If the third-party manufacturer of BiDil
encounters delays or difficulties in production, we may not be able to meet
demand for the product and we may lose potential revenue, which would adversely
affect our financial results and our ability to execute our business plan.
We do not
physically manufacture BiDil and have no plans to do so. We have engaged
Schwarz Pharma under a five-year exclusive manufacturing and supply agreement
solely for the three times daily immediate release dosage formulation of BiDil.
The terms of the supply agreement provide that it may be terminated by either
us or Schwarz Pharma under specified circumstances, including a material breach
of the supply agreement by either party, the occurrence of a payment default by
us, our material impairment of the manufacturing licenses we have granted to
Schwarz Pharma or a failure of Schwarz Pharma to supply conforming products. In
addition, either party may terminate the supply agreement in the event the FDA
takes any action, the result of which is to permanently prohibit the
manufacture, sale or use of the product.
Furthermore,
Schwarz Pharma may encounter difficulties in production. These problems may
include, but are not limited to:
·
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|
difficulties with production costs and
yields;
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·
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quality control and assurance;
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·
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difficulties obtaining ingredients for our
products;
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·
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shortages of qualified personnel;
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compliance with strictly enforced federal,
state and foreign regulations; and
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lack of capital funding.
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If we are
unable to maintain a commercially reasonable manufacturing agreement for the
production of BiDil with Schwarz Pharma, we have no back-up manufacturing facility
and thus we would not be able to manufacture and sell BiDil until another
facility was qualified. The number of third-party manufacturers with the
manufacturing and regulatory expertise and facilities necessary to manufacture
finished products for us on a commercial scale is limited, and it would take a
significant amount of time to arrange, qualify, and receive necessary
regulatory approval for alternative arrangements. We may not be able to
contract for alternative manufacturing on acceptable terms, if at all.
If we are
unable to successfully contract for third-party manufacturing, or if Schwarz
Pharma or any other third-party manufacturer of BiDil fails to deliver the
required commercial quantities of finished product on a timely basis and at commercially
reasonable prices, we may be unable to meet the demand for our product and we
may lose potential revenues, all of which could cause the price of our common
stock to decline and would adversely affect our financial results and our
ability to execute our business plan.
We rely on a single supplier for one of the
two active ingredients in BiDil, and the loss of this supplier could prevent or
interrupt the sale of BiDil, which would materially harm our business.
We rely on
Sumitomo Corp. for our supply of hydralazine hydrochloride, one of the two
active ingredients in BiDil. We believe that Sumitomo is currently the only
supplier that is qualified to provide hydralazine hydrochloride for the
manufacture of BiDil. We do not have any agreement with Sumitomo regarding the
supply of hydralazine hydrochloride. If Sumitomo stops manufacturing or is
unable to manufacture hydralazine hydrochloride, or if we are unable to procure
hydralazine hydrochloride from Sumitomo on commercially favorable terms, we
will need to identify, qualify, and obtain FDA approval of a new drug
application, or NDA, supplement for an alternative manufacturer/supplier of
hydralazine hydrochloride. If we are unable or delayed in doing this, we may be
unable to continue to sell BiDil on commercially viable terms, if at all, or
the supply of BiDil may be interrupted
. Furthermore, because Sumitomo is
currently the sole qualified supplier of hydralazine hydrochloride for the
manufacture of BiDil, Sumitomo exercises control over the price of hydralazine
hydrochloride that we purchase. Any increase in the price for hydralazine
hydrochloride may reduce our gross margins and adversely affect our ability to
sell BiDil at a favorable price
,
unless an alternative manufacturer/supplier can be identified and qualified, a
NDA supplement for the use of this manufacturer/supplier can be approved by the
FDA, and a favorable price can be negotiated.
BiDil is subject to ongoing regulatory review
and oversight. If we fail to comply with continuing United States regulations,
we could lose our approval to market BiDil and our business would be seriously
harmed.
Even after
approval, any products we develop are subject to ongoing regulatory review and
restrictions, including the review of new clinical results and other
post-marketing data. The FDA can propose to withdraw approval or place
additional restrictions on indications for which we can market the product or
the manner in which we may distribute the product if new clinical data or
experience shows that a product is not safe for use under the approved
conditions of use. In addition, we are
required to report any serious and unexpected adverse experiences and certain
quality problems with BiDil and make other periodic reports to the FDA.
The marketing
claims we are permitted to make in labeling or advertising regarding our
marketed products must comply with FDA laws and regulations and are limited to
those specified in any FDA approval. Although we are not actively marketing
BiDil, we could face liability for our previous marketing activities if the FDA
believes that we have promoted our products for unapproved indications or
otherwise failed to comply with the FDAs promotional labeling or advertising
regulations, or guidelines regarding company support for continuing medical
education. Based on such allegations, the FDA could issue an untitled letter or
warning letter, or take other enforcement action including seizure of allegedly
violative product, injunctions or civil or criminal prosecution against us and
our officers or employees. In addition, the Department of Justice enforces laws
prohibiting kickbacks to healthcare providers and false claims in connection
with government-funded reimbursement programs for drug purchases, such as
Medicare and Medicaid, and any prior off-label marketing of BiDil could subject
us to civil or criminal prosecution, for which the government could seek to
recover substantial monetary penalties, the imposition of restrictions on our
marketing activities, and the exclusion of BiDil from eligibility for
government reimbursement programs.
In addition,
the manufacturer and the manufacturing facilities we use to produce BiDil are
subject to periodic review and inspection by the FDA. We are required to report
any serious and unexpected adverse experiences and certain quality problems
with BiDil and make other periodic reports to the FDA. The discovery of any
previously unknown problems with a product, manufacturer or facility may result
in restrictions on the product, manufacturer or manufacturing facility,
including
16
Table of Contents
withdrawal of the product from
the market. Certain changes to an approved product often require prior FDA
approval before the product, as modified, may be marketed.
If we or our
third-party manufacturers or service providers fail to comply with applicable
federal, state or foreign laws or regulations, we or they could be subject to
enforcement actions which could affect our ability to develop, market and sell
BiDil successfully and could harm our reputation and lead to lower acceptance
of BiDil by the market. These enforcement actions include product seizures;
voluntary or mandatory recalls; patient or physician notifications, including
letters to healthcare professionals and corrective advertising; withdrawal of
product approvals; restrictions on, or prohibitions against, marketing our
products; operating restrictions; fines; restrictions on importation or
exportation of our products; injunctions; debarments; civil and criminal
penalties; and suspension of review of, or refusal to approve, pending
applications.
Clinical testing of BiDil XR may not be
successful, in which case we may be unable to commercialize BiDil XR and the
value of our business will substantially decline.
In order to
obtain regulatory approvals for the commercial sale of BiDil XR, we will be
required to complete clinical trials in humans to demonstrate the safety and
efficacy of BiDil XR. Clinical testing is expensive, difficult to design and
implement, can take many years to complete and is uncertain as to outcome. A
failure of one or more of our clinical trials of BiDil XR can occur at any
stage of testing.
We met with
the FDA in December 2007, and the agency agreed that our clinical
development plan to conduct bioequivalence and pharmacodynamic studies
comparing BiDil XR to the current commercial immediate release formulation of
BiDil is acceptable. The agency indicated that such a plan could support FDA
approval to commercialize BiDil XR, if bioequivalence is demonstrated. The
bioequivalence study design compares the pharmacokinetics of the XR formulation
to the pharmacokinetics of the immediate release formulation. Pharmacokinetics
refers to the manner in which the body absorbs, distributes, metabolizes and
excretes the study drug. The adequacy of the results will ultimately be
determined by the FDA during the regulatory review period. Although we are encouraged
by this meeting with the FDA, we may experience numerous unforeseen events
during, or as a result of, our planned clinical trials of BiDil XR that could
delay or prevent our ability to receive regulatory approval for, or
commercialize, BiDil XR, including:
·
conditions imposed on us by the FDA
regarding the scope or design of our clinical trials;
·
difficulty obtaining or maintaining
IRB approval of studies;
·
problems in finalizing the
formulation of BiDil XR through our planned clinical studies;
·
our clinical trials may produce
negative or inconclusive results, and we may decide, or regulators may require
us, to conduct additional clinical trials, including testing alternative
formulations of BiDil XR;
·
the number of patients required for
our clinical trials may be larger than we anticipate, enrollment in our
clinical trials may be slower than we currently anticipate, or participants may
drop out of our clinical trials at a higher rate than we anticipate, any of
which would result in significant delays and increased costs;
·
our third party contractors may fail
to comply with regulatory requirements or meet their contractual obligations to
us in a timely manner;
·
we might have to suspend or terminate
one or more of our clinical trials if the participants are being exposed to
unacceptable health risks;
·
regulators 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;
·
the supply or quality of BiDil XR or
other materials necessary to conduct our clinical trials may be insufficient or
inadequate; and
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Table
of Contents
·
the effects of BiDil XR may not be
the desired effects or may include undesirable side effects or may have other
unexpected characteristics.
If we are
required to conduct additional clinical trials or other testing of BiDil XR
beyond those that we currently contemplate, if we are unable to successfully
complete our clinical trials or other testing, if the results of these trials
or tests are not positive or are only modestly positive or if there are safety
concerns, we may:
·
be delayed in obtaining marketing
approval for BiDil XR;
·
not be able to obtain marketing
approval;
·
obtain approval for an indication
that is not as broad as intended; or
·
have the product removed from the
market after obtaining marketing approval.
Our product
development costs will also increase if we experience delays in testing or
approvals. We do not know whether future clinical trials will begin as planned,
will need to be redesigned or will be completed on schedule, if at all.
Significant clinical trial delays also could shorten any periods during which
we may have the exclusive right to commercialize BiDil XR, or allow our
competitors to bring products to market before we do, which could impair our
ability to commercialize BiDil XR and may harm our business and results of
operations.
If we are not able to obtain required
regulatory approvals, we will not be able to commercialize BiDil XR and our
ability to generate revenue will be materially impaired.
BiDil XR, and
the activities associated with its development and commercialization, including
testing, manufacture, safety, efficacy, recordkeeping, labeling, storage,
approval, advertising, promotion, sale and distribution, are subject to
comprehensive regulation by the FDA and other regulatory agencies in the United
States and by authorities in other countries. Failure to obtain regulatory
approval for BiDil XR will prevent us from commercializing BiDil XR.
Securing FDA
approval may require the submission of extensive preclinical and clinical data,
information about product manufacturing processes and inspection of facilities
and supporting information to the FDA for each therapeutic indication to
establish the product candidates safety and efficacy. BiDil XR may not be
effective, may be only moderately effective or may prove to have undesirable
side effects, toxicities or other characteristics that may preclude our
obtaining regulatory approval or prevent or limit commercial use.
The process of
obtaining regulatory approvals is expensive and often takes many years, if approval
is obtained at all, and can vary substantially based upon the type, complexity
and novelty of the product candidate involved. Changes in the regulatory
approval policy during the development period, changes in or the enactment of
additional statutes or regulations, or changes in regulatory review for each
submitted product application, may cause delays in the approval or rejection of
an application. The FDA has substantial discretion in the approval process and
may refuse to accept any application or may decide that our data are
insufficient for approval and require additional preclinical, clinical or other
studies. In addition, varying interpretations of the data obtained from
preclinical and clinical testing could delay, limit or prevent regulatory
approval of a product candidate. Any regulatory approval we ultimately obtain
may be limited in scope or subject to restrictions or post-approval commitments
that render the product not commercially viable. If any regulatory approval
that we obtain is delayed or is limited, we may decide not to commercialize
BiDil XR after receiving that approval.
The development and future commercialization
of BiDil XR may be terminated or delayed, and the cost of development and
future commercialization may increase, if third parties on whom we rely to
manufacture BiDil XR do not fulfill their obligations.
We do not have
manufacturing capabilities for BiDil XR and have no current plans to develop
any such capacity in the future. In order to continue to develop BiDil XR,
apply for regulatory approvals and commercialize this product, we plan to rely
on our collaborative licensor, Elan Pharma International Limited, and its
affiliate, Elan Drug Delivery, Inc., for the production of clinical and
commercial quantities of BiDil XR. In addition, contract manufacturers are
subject to ongoing periodic, unannounced inspection by the FDA and
corresponding state and foreign agencies or their designees to ensure strict
compliance with current Good Manufacturing Practices, or cGMP, and other
governmental regulations and corresponding foreign standards. The cGMP
requirements govern, among other things, quality control of the manufacturing
process and documentation of policies and procedures. Other than through
contract, we do not have control over compliance by our
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contract manufacturers with
these regulations and standards. Our present or future contract manufacturers
may not be able to comply with cGMP and other FDA requirements or similar
regulatory requirements outside the United States. Any failure by our contract
manufacturers or us to comply with applicable regulations could result in sanctions
being imposed on us, including fines, injunctions, civil penalties, failure of
regulatory authorities to grant marketing approval of BiDil, delays, suspension
or withdrawal of approvals, seizures or recalls of such product candidate,
operating restrictions, and criminal prosecutions, any of which could
significantly and adversely affect our business. We will depend upon these
third parties to perform their obligations in a timely manner and in accordance
with applicable laws and regulations, including those related to quality
control and quality assurance. To the extent that third-party manufacturers
with whom we contract fail to perform their obligations in accordance with
applicable laws and regulations, we may be adversely affected in a number of ways,
including:
·
we may not be able to initiate or
continue clinical trials of BiDil XR;
·
we may be delayed in submitting
applications for regulatory approvals for BiDil XR; and
·
even if we successfully commercialize
BiDil XR, we may be required to cease distribution and/or recall some or all
batches of the product and we may not be able to meet commercial demands for
our products or achieve profitability.
Risks Relating to Our Intellectual Property
Rights
Our patent protection for BiDil, the
individual components of which are available in generic form, is limited, and
we may be subject to generic substitution or competition and resulting pricing
pressure.
We have no
composition of matter patent covering BiDil, our product for the treatment of
heart failure in self-identified black patients as an adjunct to current
standard therapy. BiDil is a fixed-dose combination of two individual
components, isosorbide dinitrate and hydralazine hydrochloride, both of which
are available in generic form, which are approved and separately marketed, in
dosages similar to those we include in BiDil, for indications other than heart
failure, at prices below the prices we are charging for BiDil. We have two
issued method-of-use patents that expire in 2020. One patent covers the use of the
combination of isosorbide dinitrate and hydralazine hydrochloride to reduce
mortality associated with chronic congestive heart failure, for improving the
oxygen consumption, for improving the quality of life or for improving exercise
tolerance in a black patient. The other patent covers the use of the
combination of isosorbide dinitrate and hydralazine hydrochloride in certain
dosage amounts for reducing mortality associated with heart failure in a black
patient. Our method of use patent that covered the use of the combination of
isosorbide dinitrate and hydralazine hydrochloride to reduce the incidence of
mortality associated with chronic congestive heart failure expired in
accordance with its terms in April 2007.
We may not be
able to enforce our method-of-use patents to prevent physicians from
prescribing isosorbide dinitrate and hydralazine hydrochloride separately for
the treatment of heart failure in black patients, even though neither drug is
approved for such use. We also may not be able to enforce these method-of-use
patents to prevent hospitals and pharmacies from supplying such patients with
these individual components separately in lieu of BiDil.
Other factors
may also adversely affect our patent protection for BiDil. If we are successful
in marketing BiDil, manufacturers of generic drugs will have an incentive to
challenge our patent position. The combination therapy of isosorbide dinitrate
and hydralazine hydrochloride for use in heart failure was developed through
lengthy, publicly-sponsored clinical trials conducted during the 1980s, prior
to the filing of the patent application that resulted in the 2007 patent. The
U.S. Patent and Trademark Office, or U.S. patent office, considered published
reports on these clinical trials and concluded that they did not constitute
prior art that would prevent the issuance of the 2007 patent. The U.S. patent
office also considered the question of whether the 2007 patent constituted
prior art with respect to the 2020 patents, and determined that the claims of
the 2020 patents were non-obvious and patentable. A court considering the
validity of the 2020 patents with respect to questions of prior art might be
presented with other alleged prior art or might reach conclusions different
than those reached by the U.S. patent office. If the 2020 patents were to be
invalidated or if physicians were to prescribe isosorbide dinitrate and
hydralazine hydrochloride separately for heart failure in black patients, our
BiDil revenue could be significantly reduced, we could fail to recover the cost
of developing BiDil and BiDil might not be a viable commercial product.
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If we are not able to obtain and enforce
patent protection for our discoveries, our ability to divest our product
candidates and technologies will be harmed.
Our success
depends, in part, on our ability to protect proprietary methods and
technologies that we developed under the patent and other intellectual property
laws of the United States and other countries, in order to prevent others from
using our inventions and proprietary information. Because certain United States
patent applications are confidential until patents issue, such as applications
filed prior to November 29, 2000, or applications filed after such date
which will not be filed in foreign countries, third parties may have filed
patent applications for technology covered by our pending patent applications without
our being aware of those applications, and our patent applications may not have
priority over patent applications of others.
The process of
seeking patent protection for our discoveries is expensive and time consuming,
and we may not be able to prosecute all necessary or desirable patent
applications or maintain all issued patents at a reasonable cost. Despite our
efforts to protect our proprietary rights, unauthorized parties may be able to
obtain and use information that we regard as proprietary. The mere issuance of
a patent does not guarantee that it is valid or enforceable; even if we have
obtained patents, they may not be valid or enforceable against third parties.
The issued
patents and patent applications for our potential product candidates and nitric
oxide technology include claims with respect to both the composition of
specific products or compounds and specific methods of using these products or
compounds in therapeutic areas. In some cases, like BiDil, our only patent
protection is with respect to the method of using a product or compound.
Method-of-use patents may provide less protection for our product candidates
and products. If another company gains FDA approval for an indication separate
from the one claimed in our method-of-use patents, physicians may be able to
prescribe that product for use in the approved indication. In addition,
physicians may prescribe a product for which we or our potential strategic
partners have obtained approval for an unapproved indication for that product.
As a practical matter, we or our potential strategic partners may not be able
to enforce our method-of-use patents against physicians prescribing products
for such off-label use. Off-label use and any resulting off-label sales could
make it more difficult to obtain the price we or our potential strategic
partners would otherwise wish to achieve for, or to successfully commercialize,
our potential products. In addition, in those situations where we have only
method-of-use patent coverage for a product candidate, it may be more difficult
to find a pharmaceutical company partner to license or support development of
our potential product candidates.
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 U.S. patent office and its foreign counterparts use to grant patents
are not always applied predictably or uniformly and can change over time. There
is also no uniform, worldwide policy regarding the subject matter and scope of
claims granted or allowable in pharmaceutical or biotechnology patents.
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.
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.
If we become involved in patent litigation or
other proceedings to enforce our patent rights, we would incur substantial
costs and expenses, could incur substantial liability for damages and could be
required to stop product development and commercialization efforts.
A third party
may sue us for infringing on its patent rights. Likewise, we may need to resort
to litigation to enforce a patent issued to us or to seek a declaratory
judgment on the scope and validity of third-party proprietary rights. The cost
to us of any litigation or other proceedings relating to intellectual property
rights, even if resolved in our favor, could be substantial, and the litigation
would divert management efforts. Some of our competitors may be able to sustain
the costs of complex patent litigation more effectively than we can because
they have substantially greater resources. Uncertainties resulting from
litigation could limit our ability to continue our operations.
If a third
party is able to successfully claim that the development or use by us of
proprietary technologies infringes upon that partys intellectual property
rights, we might be forced to pay damages, potentially including treble
damages, if we are found to have willfully infringed on such parties patent
rights. In addition to any damages we might have to pay, a court could require
us to stop the infringing activity or obtain a license on terms that are
unfavorable to us. In addition, some licenses may be non-exclusive, and
therefore our competitors may have access to the same technology licensed to
us. If we
20
Table of Contents
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 product candidates, which could
limit our ability to generate revenues or achieve profitability and possibly
prevent us from generating sufficient revenue to sustain our operations.
We in-license a significant portion of our
principal 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 commercializing BiDil and out-licensing our other product
candidates.
We are a party
to several licenses that give us rights to third-party intellectual property
that are necessary for our business. In particular, we have obtained the
exclusive right to develop and commercialize BiDil pursuant to a license
agreement with Dr. Jay N. Cohn, and some of our intellectual property
rights relating to nitric oxide compounds have been obtained pursuant to
license agreements with the Brigham and Womens Hospital and Boston University.
In addition, we may enter into additional licenses in the future. These
licenses impose various development, commercialization, funding, royalty,
diligence, and other obligations on us. If we breach these obligations, the
licensor may have the right to terminate the license or render the license
non-exclusive, which could result in us being unable to develop, manufacture
and sell products that are covered by the licensed technology.
Risks Relating to Our Industry
We could be negatively impacted by the
application or enforcement of federal and state fraud and abuse laws, including
anti-kickback laws and other federal and state anti-referral laws.
We are subject
to various federal and state laws pertaining to healthcare fraud and abuse,
including anti-kickback laws and physician self-referral laws. Violations of
these laws are punishable by criminal and civil sanctions, including, in some
instances, imprisonment and exclusion from participation in federal and state
healthcare programs, including the Medicare, Medicaid and Veterans
Administration health programs. Because of the far-reaching nature of these
laws, we may be required to alter or discontinue one or more of our practices
to be in compliance with these laws. Healthcare fraud and abuse regulations are
complex, and even minor irregularities can potentially give rise to claims that
a statute or prohibition has been violated. Any violations of these laws, or
any action against us for violation of these laws, even if we successfully
defend against it, could result in a material adverse effect on our business,
financial condition and results of operations. Moreover, if there is a change
in law, regulation or administrative or judicial interpretations, we may have
to change or discontinue our business practices or our existing business
practices could be challenged as unlawful, which could have a material adverse
effect on our business, financial condition and results of operations.
In addition,
we could become subject to false claims litigation under federal statutes,
which can lead to treble damages based on the reimbursements by federal healthcare
programs, civil money penalties (including penalties levied on a per false
claim basis), restitution, criminal fines and imprisonment, and exclusion from
participation in Medicare, Medicaid and other federal and state healthcare
programs. These false claims statutes include the False Claims Act, which
allows any person to bring suit on behalf of the federal government alleging
the submission of false or fraudulent claims, or causing to present such false
or fraudulent claims, under federal programs or contracts claims or other
violations of the statute and to share in any amounts paid by the entity to the
government in fines or settlement. These suits against pharmaceutical and
biotechnology companies have increased significantly in recent years and have
increased the risk that a healthcare company will have to defend a false claim
action, pay fines or restitution, or be excluded from the Medicare, Medicaid or
other federal and state healthcare programs as a result of an investigation
arising out of such action. It is possible that we could become subject to such
litigation and, if we are not successful in defending against it, such
litigation would have a material adverse effect on our business, financial
condition and results of operations. In addition, the cost of defending claims
or allegations under the False Claims Act, even if successful, would also have
a material adverse effect on our business, financial condition and results of
operations.
We face significant
competition and our ability to successfully compete has been significantly
adversely affected by our discontinuation of promotional activities for BiDil,
which may result in others commercializing competitive products more
successfully
.
The
pharmaceutical industry is highly competitive and characterized by rapid and
significant technological change. Moreover, because we have discontinued all
promotional activities for BiDil and we have ceased all research and
development related to our nitric oxide-based product candidates, our ability to
effectively compete in the marketplace has been significantly adversely
affected. Our principal competitors are large, multinational pharmaceutical
companies that have substantially greater financial and other resources than we
do and are conducting extensive research and development
21
Table of Contents
activities on technologies and
product candidates similar to or competitive with ours. Many of our competitors
are more experienced than we are in pharmaceutical development and
commercialization, obtaining regulatory approvals and product marketing and
manufacturing. As a result, our competitors may:
·
develop and commercialize products
that render BiDil and/or BiDil XR, if successfully developed and
commercialized, obsolete or non-competitive or that cause BiDil to be less
desirable as a result of patent or non-patent exclusivity;
·
develop product candidates and market
products that are less expensive or more effective than BiDil;
·
initiate or withstand substantial
price competition more successfully than we can;
·
have greater success in recruiting
skilled scientific workers from the limited pool of available talent;
·
more effectively negotiate
third-party licenses and strategic relationships; and
·
take advantage of product acquisition
or other opportunities more readily than we can.
There are a
number of companies currently marketing and selling products to treat heart failure
in the general population that compete with BiDil. These include
GlaxoSmithKline, plc, which currently markets Coreg
®
, Merck & Co., Inc.,
which currently markets Vasotec
®
and AstraZeneca, plc, which currently
markets Toprol XL
®
. We
also compete on the basis of the availability in generic form and at
substantially lower prices of the individual components that constitute BiDil
(isosorbide dinitrate, which is separately marketed for angina, and hydralazine
hydrochloride, which is separately marketed for hypertension). Although these
generic components are not bioequivalent to BiDil, physicians have prescribed
them in lieu of prescribing BiDil and may continue to do so in the future.
We expect to
face similar competitive factors with respect to BiDil XR to the extent that
BiDil XR is successfully developed and commercialized.
We may be exposed to product liability claims
and may not be able to obtain or maintain adequate product liability insurance.
Our business
exposes us to the risk of product liability claims that is inherent in the
clinical testing, manufacturing and marketing of human therapeutic products.
Our clinical trial and commercial product liability insurance is subject to
deductibles and coverage limitations. We may not be able to obtain or maintain
insurance on acceptable terms, if at all. Moreover, any insurance that we do
obtain may not provide adequate protection against potential liabilities, and
our capital resources could be depleted as a result.
Risks Relating to Our Common Stock
The price of our common stock is likely to
continue to be volatile in the future.
The stock
market has from time to time experienced significant price and volume
fluctuations that may be unrelated to the operating performance of particular
companies. In addition, the market price of our common stock has been and may
continue to be highly volatile. During the period from January 1, 2006 to March 1,
2009, our stock price has ranged from a low of $0.15 per share on each of October 8
and 10 and November 25, 2008 to a high of $14.90 per share January 9,
2006. The following factors, among others, may affect the price of our common
stock:
·
fluctuations in our financial
results, including with respect to sales of BiDil;
·
announcements concerning fundamental
or material corporate transactions, restructuring or the like, or our failure
to successfully consummate any such transaction, including the proposed merger
with Deerfield Management;
·
general market conditions, both
domestic and international;
·
announcements of technological
innovations or new commercial products by our competitors;
22
Table
of Contents
·
announcements of actual or potential
results relating to our BiDil XR development program;
·
governmental regulations and
regulatory developments in both the U.S. and foreign countries affecting us or
our competitors;
·
disputes relating to patents or other
proprietary rights affecting us, our potential strategic partners or our
competitors;
·
public concern as to the safety of
products developed by us or other biotechnology and pharmaceutical companies;
·
fluctuations in price and volume in
the stock market in general, or in the trading of the stock of
biopharmaceutical and biotechnology companies in particular, that are unrelated
to our operating performance;
·
issuances of securities in equity,
debt or other financings;
·
sales of common stock by existing
stockholders; and
·
the perception that such issuances or
sales could occur.
Insiders have substantial control over us and
could delay or prevent a change in corporate control.
As of March 17,
2009, our directors and executive officer, together with their affiliates,
owned, in the aggregate, approximately 33% of our outstanding common stock. As
a result, these stockholders, if acting together, may have the ability to
determine the outcome of most 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, if acting together, could 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;
·
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.
Provisions in our charter documents and under
Delaware law may prevent or frustrate attempts by stockholders to change
current management and hinder efforts to acquire a controlling interest in our
company.
Provisions of
our restated certificate of incorporation and bylaws may discourage, delay or
prevent a merger, acquisition or other change in control that stockholders may
consider favorable, including transactions in which stockholders might
otherwise receive a premium for their shares. These provisions may prevent or
frustrate attempts by stockholders to replace or remove our current management.
These provisions include:
·
a prohibition on stockholder action
through written consent;
·
a requirement that special meetings
of stockholders be called only by a majority of the board of directors, the
chairman of the board or the chief executive officer;
·
advance notice requirements for
stockholder proposals and nominations;
·
limitations on the ability of
stockholders to amend, alter or repeal our certificate of incorporation or
bylaws; and
·
the authority of the board of
directors to issue preferred stock with such terms as the board of directors
may determine.
In addition, Section 203
of the Delaware General Corporation Law prohibits a publicly held Delaware
corporation from engaging in a business combination with an interested
stockholder, generally defined as a person or entity which
23
Table of Contents
together with its affiliates
owns or within the last three years has owned 15% of our voting stock, for a
period of three years after the date of the transaction in which the person
became an interested stockholder, unless the business combination is approved
in a prescribed manner. Accordingly, Section 203 may discourage, delay or
prevent a change in control of our company.
Substantially all of our outstanding common
stock may be sold into the market at any time. This could cause the market
price of our common stock to drop significantly.
Sales of a
substantial number of shares of our common stock in the public market could
occur at any time. These sales, or the perception in the market that the
holders of a large number of shares intend to sell shares, could reduce the
market price of our common stock. As of March 17, 2009, there were
46,085,133 shares of common stock outstanding. Substantially all of these
shares may also be resold in the public market at any time. In addition, we
have a significant number of shares that are subject to outstanding options and
restricted stock awards. The sale of the common stock underlying these options
and pursuant to these restricted stock awards after such time as the options
and restricted stock awards have vested and become exercisable or free from
forfeiture, as the case may be, could cause a further decline in our stock
price. These sales also might make it difficult for us to sell equity
securities in the future at a time and at a price that we deem appropriate.
ITEM 1B.
UNRESOLVED STAFF COMMENTS
None.
ITEM 2.
PROPERTIES
We sublease approximately
4,000 square feet of office space at a facility located at 45 Hayden Avenue
in Lexington, Massachusetts pursuant to a month-to-month sublease. We believe
that our office space is adequate for our needs for the foreseeable future.
ITEM 3.
LEGAL PROCEEDINGS
We are aware of a
purported class action lawsuit related to the merger with Deerfield Management
that has been filed against us, each of our directors, our president and chief
executive officer and certain of Deerfield Managements affiliates in Suffolk
County Superior Court in Massachusetts. The lawsuit,
Mieczyslaw
Stachnik et al. v. Kenneth Bate et al.
, Civil Action No. 09-0622-BLS,
was filed on February 12, 2009 and alleges, among other things, that the
merger consideration to be paid to our stockholders in the merger is unfair and
undervalues our company. In addition, the complaint alleges that our directors
and our president and chief executive officer violated their fiduciary duties
by, among other things, failing to maximize stockholder value and failing to
engage in a fair sale process. The complaint seeks, among other relief, an
injunction preventing completion of the merger or, if the merger is
consummated, rescissory damages. We believe that this lawsuit is without merit
and we plan to defend it vigorously.
ITEM 4.
SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
On December 15, 2008,
we filed a proxy statement requesting approval at a special meeting of
stockholders, initially scheduled for January 14, 2009, for the sale of
substantially all of the assets related to our BiDil and BiDil XR drug business
pursuant to a purchase and sale agreement, dated October 22, 2008, between
us and JHP Pharmaceuticals, LLC. In connection with the termination of the
purchase and sale agreement with JHP Pharmaceuticals and our subsequent entry
into a merger agreement with Deerfield Management, our board of directors
cancelled this special meeting of stockholders
.
24
Table of Contents
PART II
ITEM 5.
MARKET FOR REGISTRANTS COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND
ISSUER PURCHASES OF EQUITY SECURITIES
Market Price of and Dividends on NitroMeds
Common Stock and Related Stockholder Matters; Recent Sales of Unregistered
Securities.
Market Price and Dividends
Our common
stock is traded on The NASDAQ Global Market under the symbol NTMD. The
following table sets forth the high and low sale prices per share of our common
stock as reported on The NASDAQ Global Market for the periods indicated.
|
|
Common stock price
|
|
|
|
High
|
|
Low
|
|
Fiscal year ended December 31, 2008
|
|
|
|
|
|
First quarter
|
|
$
|
1.25
|
|
$
|
0.80
|
|
Second quarter
|
|
$
|
1.52
|
|
$
|
0.81
|
|
Third quarter
|
|
$
|
1.12
|
|
$
|
0.37
|
|
Fourth quarter
|
|
$
|
0.83
|
|
$
|
0.15
|
|
Fiscal year ended December 31, 2007
|
|
|
|
|
|
First quarter
|
|
$
|
4.44
|
|
$
|
2.25
|
|
Second quarter
|
|
$
|
3.98
|
|
$
|
2.11
|
|
Third quarter
|
|
$
|
2.52
|
|
$
|
1.75
|
|
Fourth quarter
|
|
$
|
1.80
|
|
$
|
1.00
|
|
On March 17,
2009, the reported last sale price of our common stock on The NASDAQ Global
Market was $0.75 per share, and we had approximately 54 holders of record of
our common stock. This number does not include shareholders for whom shares are
held in a nominee or street name.
We have never
paid or declared any cash dividends on our common stock. We currently intend to
retain earnings, if any, to finance the growth and development of our business,
and we do not expect to pay any cash dividends on our common stock in the
foreseeable future. Payment of future dividends, if any, will be at the
discretion of our board of directors.
On September 16,
2008, we received a letter from the NASDAQ Stock Markets Listing
Qualifications Department providing notification that, for the last 30
consecutive business days, the bid price of our common stock had closed below
the minimum $1.00 per share requirement for continued inclusion on The NASDAQ
Global Market, referred to as the minimum bid price rule. NASDAQ stated in such
notification that, in accordance with the NASDAQ Marketplace Rules, we have 180
calendar days, or until March 16, 2009, to regain compliance with the
minimum bid price rule. On October 22,
2008, we received an additional letter from NASDAQ to advise us that it has
suspended enforcement of the bid price requirements for all NASDAQ listed
companies through January 19, 2009. On December 23,
2008, we received another letter from NASDAQ to advise us that NASDAQ had
determined to extend the suspension of the bid price requirements for all
NASDAQ listed companies, and that enforcement of the bid price rules will
be reinstated on April 20, 2009. The letter further stated that prior to
the resumption of the bid price rules, NASDAQ will contact us to inform us of
the number of calendar days remaining in our compliance period. Based upon the
first suspension letter, in which NASDAQ informed us that we still had 151 days
remaining in our 180 day compliance period as of the suspension date, upon
reinstatement of the bid price rules on April 20, 2009, we believe
that we will still have that number of days to regain compliance.
Prior to the end of the
remaining time in our compliance period following the reinstatement of the bid
price rules, if the bid price of our common stock closes at $1.00 per share or
more for a minimum of 10 consecutive business days, NASDAQ will provide written
notification that we have achieved compliance with the minimum bid price rule.
However, NASDAQ may, in its discretion, require that we maintain a bid price of
in excess of $1.00 for a period in excess of 10 days, but generally no more
than 20 days, before determining that we have demonstrated the ability to
maintain long-term compliance
Information
regarding our equity compensation plans and the securities authorized for
issuance there under is set forth in Note 6 in our Notes to Financial
Statements below.
25
Table of Contents
Comparative Stock Performance Graph
The
comparative stock performance graph below compares the cumulative total
stockholder return (assuming reinvestment of dividends, if any) from investing
$100 on December 31, 2003 and plotted at the close of the last trading day
of the fiscal years ended December 31, 2004, 2005, 2006, 2007 and 2008, in
each of (i) our common stock, (ii) The NASDAQ Global Stock Market
Index of U.S. Companies, which we refer to as the NASDAQ Composite Index, and (iii) The
NASDAQ Global Stock Market Pharmaceutical Index, which we refer to as the
NASDAQ Pharmaceutical Index.
COMPARISON
OF 5 YEAR CUMULATIVE TOTAL RETURN*
Among NitroMed
Inc., The NASDAQ Composite Index
And The NASDAQ
Pharmaceutical Index
*$100 invested on 12/31/03 in stock & index-including reinvestment
of dividends.
Fiscal year ending December 31.
COMPARISON OF CUMULATIVE TOTAL RETURN
Among
NitroMed Inc., The NASDAQ Composite Index
And The NASDAQ Pharmaceutical Index
Measurement Period
(Fiscal Year Covered)
|
|
NitroMed, Inc.
|
|
NASDAQ Composite
Index
|
|
NASDAQ
Pharmaceutical Index
|
|
12/31/2003
|
|
$
|
100.00
|
|
$
|
100.00
|
|
$
|
100.00
|
|
12/31/2004
|
|
$
|
370.91
|
|
$
|
110.08
|
|
$
|
110.22
|
|
12/31/2005
|
|
$
|
194.15
|
|
$
|
112.88
|
|
$
|
111.87
|
|
12/31/2006
|
|
$
|
34.10
|
|
$
|
126.51
|
|
$
|
114.89
|
|
12/31/2007
|
|
$
|
14.06
|
|
$
|
138.13
|
|
$
|
106.37
|
|
12/31/2008
|
|
$
|
5.29
|
|
$
|
80.47
|
|
$
|
97.32
|
|
The information included under
the heading Comparative Stock Performance Graph in this Item 5 of our
annual report on Form 10-K shall not be deemed to be soliciting material
or subject to Regulation 14A or 14C, shall not be deemed filed for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended,
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.
26
Table of Contents
ITEM 6.
SELECTED FINANCIAL DATA
You should
read carefully the financial statements included in this report, including the
notes to the financial statements and Managements Discussion and Analysis of
Financial Condition and Results of Operations. The selected financial data in
this section are not intended to replace the financial statements.
We derived the
statement of operations data for the years ended December 31, 2008, 2007
and 2006 and the balance sheet data as of December 31, 2008 and 2007 from
our audited financial statements, which are included elsewhere in this report.
We derived the statement of operations data for the years ended December 31,
2005 and 2004 and the balance sheet data as of December 31, 2006, 2005 and
2004 from our audited financial statements, which are not included herein.
Historical results are not necessarily indicative of future results. See the
notes to the 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.
|
|
Year Ended December 31,
|
|
|
|
2008(1)
|
|
2007(1)
|
|
2006(1)
|
|
2005
|
|
2004
|
|
|
|
(in thousands, except per share data)
|
|
Statement of Operations Data:
|
|
|
|
|
|
|
|
|
|
|
|
Revenue
|
|
$
|
14,920
|
|
$
|
16,019
|
|
$
|
12,086
|
|
$
|
6,047
|
|
$
|
16,458
|
|
Cost and operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
Cost of product sales
|
|
3,451
|
|
4,236
|
|
3,560
|
|
8,009
|
|
|
|
Research and development
|
|
2,751
|
|
12,185
|
|
17,029
|
|
31,340
|
|
27,401
|
|
Sales, general and administrative
|
|
12,137
|
|
31,358
|
|
59,403
|
|
74,596
|
|
20,185
|
|
Restructuring charges
|
|
2,724
|
|
1,004
|
|
5,283
|
|
|
|
|
|
Total costs and operating expenses
|
|
21,063
|
|
48,783
|
|
85,275
|
|
113,945
|
|
47,586
|
|
Loss from operations
|
|
(6,143
|
)
|
(32,764
|
)
|
(73,189
|
)
|
(107,898
|
)
|
(31,128
|
)
|
Other income, net
|
|
226
|
|
1,190
|
|
1,852
|
|
2,046
|
|
1,355
|
|
Net loss attributable to common
stockholders
|
|
$
|
(5,917
|
)
|
$
|
(31,574
|
)
|
$
|
(71,337
|
)
|
$
|
(105,852
|
)
|
$
|
(29,773
|
)
|
Net loss per common share:
|
|
|
|
|
|
|
|
|
|
|
|
Basic and diluted
|
|
$
|
(0.13
|
)
|
$
|
(0.75
|
)
|
$
|
(1.96
|
)
|
$
|
(3.49
|
)
|
$
|
(1.14
|
)
|
Weighted average basic and diluted common
shares outstanding
|
|
45,976
|
|
41,997
|
|
36,399
|
|
30,355
|
|
26,152
|
|
(1)
|
|
We include the expense associated with
employee stock options in the Statement of Operations beginning in 2006 upon
the adoption of Statement of Financial Accounting Standards No. 123(R),
which resulted in an aggregate of $0.5 million, $5.0 million and
$8.0 million recorded in the line items of research and development and
sales, general and administrative expenses for the years ended
December 31, 2008, 2007 and 2006, respectively.
|
|
|
As of December 31,
|
|
|
|
2008
|
|
2007
|
|
2006
|
|
2005
|
|
2004
|
|
|
|
(in thousands)
|
|
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
Cash, cash equivalents and marketable
securities
|
|
$
|
17,445
|
|
$
|
31,400
|
|
$
|
42,153
|
|
$
|
61,541
|
|
$
|
142,367
|
|
Working capital
|
|
16,538
|
|
21,722
|
|
31,041
|
|
39,924
|
|
133,238
|
|
Total assets
|
|
22,329
|
|
35,567
|
|
48,705
|
|
76,521
|
|
149,357
|
|
Long-term debt
|
|
|
|
|
|
3,728
|
|
10,653
|
|
|
|
Accumulated deficit
|
|
(351,299
|
)
|
(345,382
|
)
|
(313,808
|
)
|
(242,471
|
)
|
(136,619
|
)
|
Total stockholders equity
|
|
$
|
18,004
|
|
$
|
22,225
|
|
$
|
29,079
|
|
$
|
33,066
|
|
$
|
137,012
|
|
27
Table of Contents
ITEM 7.
MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Recent Development Proposed Merger
with Deerfield Management
On January 27, 2009, we entered into an agreement and plan of
merger with certain entities affiliated with Deerfield Management, a healthcare
investment organization, which we refer to collectively as Deerfield
Management. As of the date of the merger agreement, Deerfield Management owned
approximately 11% of our outstanding common stock.
At the effective time of the merger with Deerfield Management, each
outstanding share of our common stock will be converted into the right to
receive $0.80 per share in cash, subject to adjustment if our net cash balance
at the closing of the merger is greater than or less than $12.3 million, as
calculated pursuant to the terms of the merger agreement. In addition, all
outstanding options to purchase our common stock will become accelerated in
full immediately prior to the effective time of the merger. Any option not
exercised prior to the effective time of the merger will be converted
automatically into the right to receive cash in an amount equal to the excess,
if any, of the merger consideration per share of common stock over the exercise
price of the option, multiplied by the number of shares of common stock
underlying the option. The merger agreement includes a go-shop provision that
allowed us to solicit, negotiate and evaluate competing acquisition proposals
during a post-signing period that ended on February 26, 2009. We
solicited, but did not receive any alternative acquisition proposals prior to
the termination of the go-shop period. We currently expect to complete the
merger with Deerfield Management in the second quarter of 2009 following the
satisfaction or waiver of all conditions to the merger, including the adoption
of the merger agreement by our stockholders at a special meeting of
stockholders, which is currently scheduled for April 22, 2009.
The
merger agreement with Deerfield Management contains customary representations,
warranties and covenants including, among others, covenants relating to using
commercially reasonable efforts to obtain the requisite stockholder approval of
the merger and related transactions, as well as our conduct of business during
the period between the date of signing the merger agreement and the closing of
the merger. Our and Deerfield Managements obligations to consummate the merger
are subject to the satisfaction or waiver of customary conditions, including (1) requisite
approval of the merger by our stockholders, (2) the absence of any order
or injunction preventing the consummation of the merger or any legal
requirement that makes the consummation of the merger illegal, (3) obtaining
any required governmental authorizations or consents and (4) determination
of our final net cash in accordance with the merger agreement. Each partys
obligation to consummate the merger is also subject to other specified
customary conditions, including the accuracy of the representations and
warranties of the other party, subject to an overall material adverse effect
qualification, and material compliance by the other party with its covenants.
The merger agreement also provides us and Deerfield Management with specified
termination rights. If the merger agreement is terminated under specified
circumstances, we will be required to reimburse Deerfield Management for its
documented fees and expenses associated with the merger agreement and the
transactions contemplated thereby, up to a maximum of $750,000.
Prior to entering into the merger agreement with Deerfield Management,
we terminated our previously announced purchase and sale agreement with JHP
Pharmaceuticals, LLC and our previously announced agreement and plan of merger
with Archemix Corp. in accordance with the terms of each of those agreements,
including the payment of termination fees. In connection with the termination
of the JHP purchase and sale agreement, we paid a fee of approximately $900,000
to JHP. In connection with the termination of the Archemix merger agreement, we
paid a fee of $1,500,000 to Archemix.
BiDil
We are the
maker of BiDil, which is indicated for the treatment of heart failure in
self-identified black patients as an adjunct to current standard therapies.
BiDil is an orally administered fixed-dose combination of isosorbide dinitrate
and hydralazine hydrochloride. The FDA approved BiDil in June 2005 and we
commercially launched BiDil in July 2005. We are currently a party to an
exclusive five-year manufacturing and supply agreement with Schwarz Pharma
Manufacturing, Inc., which is now a division of UCB S.A., for the three
times daily immediate release dosage formulation of BiDil.
In January 2008, we discontinued active promotional activities for
BiDil based upon our determination that the successful commercialization of
BiDil requires a magnitude of resources that we cannot allocate to the program,
as well as our plans to conserve ca
sh in order to pursue the development
of BiDil XR, an extended release formulation of BiDil. We concurrently
implemented a restructuring plan that eliminated approximately 80 positions,
and our reduced headcount currently stands at four full-time positions.
Although we have discontinued active promotional efforts related to BiDil, we
continue to contract for the manufacturing of, and to sell, BiDil and maintain
the
product on the market for
patients through
28
Table
of Contents
normal
wholesale and retail channels. We have also conducted limited advertising in
select medical publications, and have utilized a third-party marketing firm to
contact healthcare professionals on our behalf, in each case in an effort to
maintain a limited market presence for BiDil. In conjunction with implementing
our January 2008 restructuring plan, we implemented a plan to pursue
strategic alternatives for our business, including the potential divestiture of
our BiDil and BiDil XR business and/or our nitric oxide intellectual property
portfolio, a merger or consolidation with another company, or other comparable
arrangements.
Our January 2008
restructuring follows the elimination of our discovery research program in March 2006
and the replacement of our sales force with a small team of senior
cardiovascular business managers in October 2006. The January 2008 restructuring also
follows our efforts in August 2007 to deploy an expanded field
organization designed to focus on selected prescriber targets.
BiDil XR
BiDil is an
orally-administered medicine that is presently dosed three times daily. In
connection with our efforts to develop BiDil XR as a once-daily formulation, in
February 2007 we entered into a license agreement with Elan Pharma
International Limited, or Elan, pursuant to which Elan granted to us an
exclusive worldwide royalty-bearing license to import, use, offer for sale and
sell an oral capsule formulation incorporating specified technology owned or
controlled by Elan and containing, as its sole active combination of
ingredients, the combination of the active drug substances isosorbide dinitrate
and hydralazine hydrochloride (which includes BiDil XR). In consideration
for the grant of the license, we have agreed to pay Elan royalties that are
calculated by reference to annual net sales parameters set forth in the
agreement. In addition, we have also agreed to pay Elan specified amounts upon
the achievement of specified development and commercialization milestone events
set forth in the agreement.
In December 2007, we
met with the FDA to discuss our proposed development plan for BiDil XR. The FDA
agreed that our clinical development plan to conduct bioequivalence and
pharmacodynamic studies comparing BiDil XR to the current commercial immediate
release formulation of BiDil is acceptable. Our proposed plan could support FDA
approval to commercialize BiDil XR, if bioequivalence is demonstrated. The
bioequivalence study design compares the pharmacokinetics of the BiDil XR
formulation to the pharmacokinetics of BiDil. Pharmacokinetics refers to the
manner in which the body absorbs, distributes, metabolizes and excretes the
study drug. The adequacy of the results will ultimately be determined by the
FDA during the regulatory review period.
In conjunction with
entering into the license agreement with Elan, we also entered into a
development agreement with an affiliate of Elan, pursuant to which we have
conducted the clinical studies on BiDil XR prototypes. Our pilot clinical
trials have tested several BiDil XR prototypes and compared their
pharmacokinetic profile with BiDil tablets. In preliminary clinical studies in
healthy volunteers, we have demonstrated our ability to delay the release of
isosorbide dinitrate and hydralazine hydrochloride by varying the amount of
coating and ratios of different polymers on beads in capsules. We have
continued to develop and refine BiDil XR prototypes as we seek a final
formulation. However, additional clinical studies and trials will be required
in order to finalize the BiDil XR formulation prior to the commencement of
bioequivalence trials. Based upon our
activities in 2008 related to our now terminated agreement with JHP for the
purchase and sale of our BiDil and BiDil XR drug business, as well as our
decision to enter into a merger agreement with Deerfield Management, we have
not yet commenced the next set of clinical trials pursuant to our BiDil XR
development plan. We expect to incur minimal expenses in 2009 in connection
with BiDil XR development activities.
Liquidity
Since our
inception, we have mainly funded our operations through the sale of equity
securities, debt financings, license fees, research and development funding,
milestone payments from our collaborative partners, and more recently, sales of
BiDil. We have never been profitable and have incurred an accumulated deficit
of $351.3 million as of December 31, 2008.
We estimate
that our operating expenses related to research and development and sales,
general and administrative functions for the year ending December 31, 2009
will be approximately $11.5 million to $13.5 million, including
share-based compensation expense related to Statement of Financial Accounting
Standards No. 123(R), but excluding cost of product sales.
At December 31,
2008, our principal source of liquidity was $17.4 million of cash, cash
equivalents and short-term marketable securities, which excludes approximately
$1.6 million par value of auction rate securities classified as long-term
29
Table of Contents
marketable
securities due to liquidity constraints. Pending the completion of our merger
with Deerfield Management, we expect to incur operating expenses going forward
primarily related to keeping BiDil available on the market. We expect to incur
minimal additional expenses in 2009 related to the further development of BiDil
XR. Whether or not the merger with Deerfield Management is completed, we
believe that our existing sources of liquidity and the cash expected to be
generated from future sales of BiDil, together with the significant reduction
in expenditures as a result of our January 2008 restructuring, will be
sufficient to fund our operations for at least the next twelve months. In the
event that the planned merger with Deerfield Management is significantly
delayed or is not completed at all, our future revenue from sales of BiDil
could decline significantly based on a number of factors, including a decline
in BiDil prescriptions by healthcare providers and a decline in the willingness
of third party payors to provide reimbursement at favorable levels, in each
case due, at least in part, to the prior elimination of our sales force and
discontinuation of our active promotional efforts related to BiDil.
Financial Operations Overview
Revenue.
Our first commercial product, BiDil, was launched in July 2005, and
generated product sales of $14.9 million for the year ended December 31,
2008. Prior to the launch of BiDil, all of our revenue had been derived from
license fees, research and development payments and milestone payments that we
received from our corporate collaborators. We discontinued active promotion of
BiDil in January 2008.
Research and Development.
Research and development expense consists of
expenses incurred in identifying, developing and testing product candidates.
These expenses consist primarily of salaries and related expenses for personnel,
fees paid to professional service providers for independent monitoring and
analysis of our clinical trials, costs of contract research and manufacturing,
costs of facilities and BiDil medical support costs.
The following
summarizes our primary research and development programs during the years ended
December 31, 2008, 2007 and 2006. In some cases, we have not provided
program costs because prior to 2000 we did not track and accumulate cost
information by research program.
·
BiDil.
From May 2001 to July 2004, we
enrolled 1,050 patients at 169 clinical sites in the United States in our
phase III clinical trial for BiDil. We halted the trial in July 2004
due to a significant survival benefit in the preliminary data for patients
taking BiDil. The FDA approved BiDil on June 23, 2005, and we launched
BiDil in July 2005. The total cost for the BiDil A-HeFT trial was
approximately $43.0 million.
·
BiDil
XR.
The current formulation
of BiDil is an immediate-release tablet that must be taken three times daily.
We have pursued the development of BiDil XR, an extended release formulation of
BiDil that could be taken once a day. To date, we have incurred approximately
$11.0 million in connection with the development of BiDil XR. Preliminary
clinical studies of BiDil XR demonstrated proof of principle, and we commenced
clinical development of BiDil XR in October 2006. Additional formulation
studies and trials will be required in order to finalize the formulation prior
to the commencement of bioequivalence trials. Based upon our activities in 2008
related to our now terminated agreement with JHP for the purchase and sale of
our BiDil and BiDil XR drug business, as well as our decision to enter into a
merger agreement with Deerfield Management, we have not yet commenced the next
set of clinical trials pursuant to our BiDil XR development plan. We expect to
incur minimal expenses in 2009 in connection with BiDil XR development
activities. Due to its stage of development, and the uncertainties inherent in
pharmaceutical development generally, we may not be able to successfully
develop and commercialize BiDil XR in the event that the merger with Deerfield
Management is not completed.
·
Other
Discovery Research.
We have
used our know-how and expertise in nitric oxide to develop preclinical stage
drug candidates that are nitric oxide-enhancing versions of existing medicines
in the areas of cardiovascular, gastrointestinal/anti-inflammatory and
pulmonary medicine. These studies have not progressed beyond a discovery stage
of testing, and it remains speculative whether the addition of nitric oxide
will result in an improved clinical profile of these medicines. We continue to
seek divestiture opportunities for the intellectual property rights associated
with these technologies, and we have no plans to engage in any future research
and development activities with respect to these programs. We cannot be certain
if we will be able to secure divestiture arrangements for our nitric
oxide-based intellectual property on favorable terms, if at all.
Sales, General and Administrative.
Sales, general and administrative expense has
historically consisted primarily of salaries and other related costs for
personnel in sales and marketing, executive, finance, investor relations,
accounting, business development and human resource functions. Other costs
include facility costs not otherwise included in research and
30
Table of Contents
development expense; costs for
public relations, advertising and promotion services; professional fees for
legal and accounting services; and costs related to our former arrangements
with a contract sales organization.
Non-Operating Income.
Non-operating income includes interest earned
on our cash, cash equivalents and marketable securities, auction rate
securities impairments, state taxes and interest expense associated with our
long-term debt.
Results of Operations
Years Ended December 31,
2008, 2007 and 2006
Revenue.
Total revenue for the year ended December 31, 2008 was
$14.9 million, compared to $16.0 million in 2007 and $12.1 million
in 2006. Product sales for the year ended December 31, 2008 were
$14.9 million, compared to $15.3 million in 2007 and
$12.1 million in 2006. The decrease in product sales is due to a reduction
in prescriptions of BiDil in 2008 compared to 2007.
Research and
development revenues were $-0- for the year ended December 31, 2008,
compared to $0.8 million for 2007 and $-0- for 2006. The
$0.8 million, or 100%, decrease in research and development revenues in
2008 compared to 2007 was due to a one-time upfront payment received in
connection with our non-exclusive licensing of certain non-strategic
intellectual property in October 2007 for which we have no continuing
obligation.
Cost of Product Sales.
Cost of product sales for the year ended December 31,
2008 was $3.5 million, compared to $4.2 million in 2007 and
$3.6 million in 2006. The $0.7 million, or 19%, decrease in cost of
product sales in 2008 compared to 2007 is primarily due to a $1.7 million
decrease in inventory impairment charges, offset by a $0.8 million increase in
royalties. The $0.6 million, or 19%, increase in cost of product sales in
2007 compared with 2006 was primarily due to an increase of $0.8 million
in inventory impairment charges related to commercial trade inventory, patient sample
inventory and contractual purchase commitments. The charges were due to our
then current estimate of inventory requirements based on our sales forecast.
Research and Development.
Research and development expense for the year
ended December 31, 2008 was $2.8 million, compared to
$12.2 million in 2007 and $17.0 million in 2006. The
$9.4 million, or 77%, decrease in research and development expenses in
2008 compared with 2007 was primarily the result of a decrease in payroll and benefits
due to our restructuring in January 2008, decreases in the areas of
continuing medical education, clinical advisory boards, medical services fees,
publications, stock-based compensation expense and other various contracted
services totaling $5.9 million, and a $3.5 million decrease in spending
related to BiDil and BiDil XR. The $4.8 million, or 28%, decrease in
research and development expenses in 2007 compared with 2006 was primarily the
result of decreased clinical and medical expenses needed to support BiDil, a
decrease in payroll and benefits due to our restructuring in March 2006,
and decreases in the areas of continuing medical education, clinical advisory
boards, medical services fees, publications, stock-based compensation expense
and other various contracted services totaling $8.6 million, offset by an
increase of $3.8 million related to the development of BiDil XR.
The following
table summarizes the primary components of our research and development expense
for our principal research and development programs for the fiscal years ended December 31,
2008, 2007 and 2006.
|
|
December 31,
|
|
Research and Development Program
|
|
2008
|
|
2007
|
|
2006
|
|
BiDil
|
|
$
|
1,106,000
|
|
$
|
5,339,000
|
|
$
|
9,603,000
|
|
BiDil XR
|
|
1,619,000
|
|
6,581,000
|
|
2,774,000
|
|
Other discovery research
|
|
26,000
|
|
265,000
|
|
4,652,000
|
|
Total research and development expense
|
|
$
|
2,751,000
|
|
$
|
12,185,000
|
|
$
|
17,029,000
|
|
Sales, General and Administrative.
Sales, general and administrative expense for
the year ended December 31, 2008 was $12.1 million, compared to
$31.4 million in 2007 and $59.4 million in 2006. The
$19.3 million, or 61%, decrease in sales, general and administrative
expense in 2008 compared to 2007 was primarily due to a $8.4 million
reduction in salary and benefit expenses from our restructuring in January 2008,
a $6.6 million reduction in advertising and promotional services and
public relations, a $0.7 million reduction in rent expenses, and a
$2.4 million reduction in stock-based compensation expense. The
$28.0 million, or 47%, decrease in sales, general and administrative
expense in 2007 compared to 2006 was primarily due to a $17.3 million
reduction in salary and benefit expenses from the restructuring of our sales
31
Table of Contents
force in October 2006,
offset by the hiring of a smaller sales force in mid-2007, a $5.1 million
reduction in advertising and promotional services and public relations, a
$1.6 million reduction in rent expenses, a $1.4 million reduction in
stock-based compensation expense, and a $1.4 million reduction in
consulting expenses.
Restructurings.
In the first quarter of 2006, we recorded a
restructuring charge of $2.0 million related to a restructuring of our
discovery research operations to better align costs with revenue and operating
expectations. The restructuring charges pertained to employee severance and
impairment of assets and were recorded in accordance with Statement of Financial
Accounting Standards No. 146,
Accounting
for Costs Associated with Exit or Disposal Activities,
or
SFAS 146, and Statement of Financial Accounting Standards No. 144,
Accounting for the Impairment or Disposal of
Long-Lived Assets,
or SFAS 144. In connection with the
restructuring, we terminated 30 employees in our discovery research group, or
approximately 30% of our workforce, resulting in a charge of $1.4 million.
All employees were terminated as of March 31, 2006. As a result of
terminating these employees, we recorded an impairment charge for certain
research laboratory equipment, computer equipment, and furniture and fixtures
aggregating $0.6 million, for which the future use was uncertain. These
assets were written down to their fair value utilizing a third party appraiser
to estimate the fair value of the assets based on current market quotes and the
current condition of the equipment, furniture and fixtures.
In the fourth
quarter of 2006, we recorded a restructuring charge of $3.2 million, which
includes severance benefits of $2.5 million and impairment charges of
$0.7 million for certain research and development equipment, leasehold
improvements, furniture and fixtures, and computers. The restructuring charges
were recorded in accordance with SFAS 146 and SFAS 144. This
restructuring program included the elimination of 120 sales personnel and eight
general and administrative and research and development personnel. These
employees were terminated in October 2006, and no employee remained
employed at December 31, 2006. Due to these actions, certain research and
development equipment, leasehold improvements, furniture and fixtures and
computers became impaired. These assets were written down to the fair value
based on either a third-party quote, or the estimated discounted cash flows
they would generate over the remaining economic life.
In the first
quarter of 2007, we recorded a restructuring charge of $1.0 million
related to vacating our former headquarters location. The charge was recorded
pursuant to SFAS 146. In March 2007, we entered into an Assignment of
Lease and Assumption Agreement, which we refer to as the Assignment Agreement,
with Shire Human Genetic Therapies, Inc., or Shire, pursuant to which we
assigned our lease for office and laboratory space located at 125 Spring Street
in Lexington, Massachusetts, which we refer to as the Spring Street Lease.
Pursuant to the terms of the Assignment Agreement, we agreed to pay Shire the
amount of approximately $1.2 million as consideration for Shires assumption
of the Spring Street Lease. In addition to this charge, we incurred
$0.6 million in expenses primarily related to real estate brokerage fees
and clean-up costs. Offsetting these charges was a reversal of
$0.8 million in accrued rent related to the Spring Street Lease. All
amounts were paid as of June 30, 2007.
In the first quarter of 2008, we recorded
restructuring charges of $2.7 million, which includes severance benefits
of $2.6 million related to the reduction of our employee headcount from
approximately 90 to approximately six positions, and impairment charges of
$0.1 million for disposal of computer equipment. The severance benefit
charges were recorded in accordance with Statement of Financial Accounting
Standards No. 112,
Employers
Accounting for Postemployment Benefits
, or SFAS 112, for contractual
termination benefits for certain executives and SFAS 146 for one-time
termination benefits for the remainder of employees terminated. As of December 31,
2008, we owed $24,000 for salary continuation payments.
Stock-Based Compensation Expense.
We follow the fair value recognition
provisions of Statement of Financial Accounting Standards No. 123(R),
Share-Based Payment
, or SFAS 123R. Compensation cost recognized subsequent to December 31,
2005 includes: (a) compensation cost for all stock-based payments granted
but not yet vested as of January 1, 2006, based on the grant-date fair
value estimated in accordance with the original provisions of Statement of
Financial Accounting Standards No. 123,
Accounting
for Stock Based Compensation
, or SFAS 123, and (b) compensation
cost for all stock-based payments granted subsequent to January 1, 2006,
based on the grant-date fair value estimated in accordance with the provisions
of SFAS 123R. Such amounts have been reduced by our estimate of
forfeitures of all unvested awards. Results for prior periods have not been
restated.
Prior to the
adoption of SFAS 123R, we accounted for share-based payments to employees
using the intrinsic value method of Accounting Principles Board Opinion No. 25,
Accounting for Stock Issued to Employees
,
or APB 25.
Non-Operating Income.
Non-operating income decreased to
$0.2 million in 2008 compared to $1.2 million in 2007 and
$1.9 million in 2006. The $1.0 million, or 81%, decrease in non-operating
income in 2008 compared to 2007 was primarily related to a $1.2 million
decrease in interest income due to lower average investment balances and
impairment
32
Table of Contents
charges of $0.2 million, offset
by $0.6 million in lower interest expense associated with our debt, which
was paid in full in June 2008. The $0.7 million, or 36%, decrease in
non-operating income in 2007 compared to 2006 was primarily related to a
$1.3 million decrease in interest income due to lower average investment
balances, offset by $0.7 million in lower interest expense associated with
our debt because the principal balance due on the debt was lower in 2007.
Liquidity and Capital Resources
Since our
inception, we have primarily funded our operations through the sale of equity
securities, debt financings, license fees, research and development funding,
milestone payments from our collaborative partners and, more recently, sales of
BiDil. As of December 31, 2008, we have received net proceeds of
$321.2 million from the issuance of equity securities, primarily as the
result of:
·
the sale of $99.1 million of our
redeemable convertible preferred stock;
·
net proceeds of $60.1 million
from our initial public offering in November 2003;
·
net proceeds of $81.8 million
from our follow-on public offering in December 2004;
·
net proceeds of $58.5 million
from our registered direct offering in January 2006; and
·
net proceeds of $18.2 million
from our registered direct offering in May 2007.
At December 31,
2008, we had $17.4 million in cash, cash equivalents and marketable
securities.
During the
year ended December 31, 2008, operating activities used cash of
$9.2 million, primarily due to a net loss of $5.9 million and a
decrease of $5.3 million in accounts payable and accrued expenses, offset
by impairment charges of $0.2 million, non-cash stock-based compensation
expense of $1.4 million and $0.1 million in depreciation and
amortization. In 2007, operating activities used cash of $23.5 million,
primarily due to a net loss in 2007 of $31.6 million and a
$0.6 million increase in accounts receivable, offset by an increase of
$1.4 million in accounts payable and accrued expenses, a decrease of $1.4
million in inventory, and non-cash charges of $6.0 million for
depreciation expense and stock-based compensation expense.
During the
year ended December 31, 2008, investing activities added cash of
$15.1 million, primarily due to net sales of marketable securities of
$14.9 million. In 2007, investing activities used cash of
$1.1 million, primarily due to net purchases of marketable securities of
$2.1 million and capital expenditures of $0.2 million, offset by
$0.5 million in cash received on the disposal of fixed assets and
$0.6 million of restricted cash received by us due to the assignment of
the Spring Street Lease.
During the
year ended December 31, 2008, financing activities used cash of
$3.5 million due to $3.7 million in principal payments on long-term
debt. In 2007, financing activities provided cash of $11.7 million due to
net proceeds of $18.2 million from our registered direct offering, and
$0.4 million from the issuance of common stock under our employee stock
plans, offset by $6.9 million in principal payments on long-term debt.
In June 2005, we borrowed (i) $10.0 million
from Oxford Finance Corporation, or Oxford, and (ii) $10.0 million
from General Electric Capital Corporation, or GECC, pursuant to the terms of
promissory notes made by us with both Oxford and GECC, respectively. The notes
bore interest at a fixed rate of 9.95% per annum and were payable in 36
consecutive monthly installments of principal and accrued interest, beginning July 1,
2005. The notes were secured by a security interest in all our personal
property and fixtures with the exception of any intellectual property or
products acquired, whether by purchase, license or otherwise, on or after the
execution of the notes. As of June 30, 2008, the promissory notes had been
paid in full.
As of December 31, 2008, all marketable
securities held by us have maturity dates that range from 2009 to 2045.
As of December 31, 2008, we held
approximately $1.6 million par value of auction rate securities. These
auction rate securities are comprised of approximately $1.3 million of
preferred stock closed-end fund auction rate securities and a $0.3 million
government-backed student loan auction rate security. Auction rate securities
are securities that are structured to allow for short-term interest rate
resets, but with contractual maturity dates that can be well in excess of ten
years. Auctions have historically provided a liquid market for these
securities. However, beginning in February 2008, the majority of auction
33
Table
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rate securities in the marketplace failed at auction due to sell orders
exceeding buy orders. Such failures resulted in the interest rate on these
securities resetting to predetermined rates within the underlying loan
agreement, which might be higher or lower than the current market rate of
interest. Our ability to liquidate our auction rate securities and fully
recover the carrying value of our investments in the near term may be limited
or not exist. In the event that we need to access our investments in these
auction rate securities, we will not be able to do so until a future auction of
these investments is successful, the issuer redeems the outstanding securities,
a buyer is found outside the auction process, or the securities mature, which
could be in as many as 37 years. As a result of these factors, we recorded
impairment charges of $157,000 for the year ended December 31, 2008. We
estimated the fair value of our auction rate securities using a discounted cash
flow analysis that considered the following key inputs: (a) the underlying
structure of each security; (b) the present value of future principle and
interest payments discounted at rates considered to reflect the relevant risk
associated with each security; (c) the time horizon that the market value
of each security could return to its cost; and (d) other factors such as
the credit rating of the issuer and any other credit enhancements. We may be
required to record additional impairment charges on these investments from time
to time.
As of December 31, 2008, we classify our
auction rate securities as long-term marketable securities, reflecting
managements determination that these securities may not be liquidated within
one year due to the auction failures described above. We did not experience any
realized losses on sales of auction rate securities in 2008.
For the year ended December 31, 2008,
the cumulative impairments recorded by us include an impairment of $32,000 on
our government-backed student loan auction rate security and an impairment of
$125,000 on our preferred stock closed-end fund auction rate securities.
Payments Due by Period
The following
table summarizes our contractual obligations at December 31, 2008 and the
effects such obligations are expected to have on our liquidity and cash flows
in future periods:
Contractual Obligations
|
|
Total
|
|
Less than one
year
|
|
1-3 years
|
|
3-5 years
|
|
More than five
years
|
|
Operating lease obligation (1)
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
Purchase obligations (2)
|
|
108,000
|
|
108,000
|
|
|
|
|
|
|
|
License milestones (3)
|
|
|
|
|
|
|
|
|
|
|
|
Total contractual cash obligations
|
|
$
|
108,000
|
|
$
|
108,000
|
|
$
|
|
|
$
|
|
|
$
|
|
|
(1)
|
|
In May 2008, we entered into a sublease with Cubist
Pharmaceuticals, Inc., pursuant to which we agreed to sublease
approximately 4,000 square feet of office space at a rate of approximately
$9,200 per month. The initial term of this sublease was for three months
beginning on June 1, 2008. Upon the expiration of the initial term,
we elected to extend the sublease on a month-to-month basis subsequent to the
expiration of the initial term.
|
|
|
|
(2)
|
|
In October 2008, we placed a binding
purchase order totaling $108,000 with Schwarz Pharma for production of BiDil
finished goods during the first quarter of 2009.
|
|
|
|
(3)
|
|
On February 9, 2007, we entered into a
License Agreement with Elan, pursuant to which we may be obligated to pay
certain milestone payments in the aggregate amount of $2,500,000, of which
$250,000 has been paid to date. We are uncertain as to the timing of any
future payments, if any, pursuant to the terms of the License Agreement and
accordingly no amounts are included in the above table.
|
In January 2008,
we ceased actively promoting sales of BiDil, which is our only significant
source of revenue. Pending the completion of our merger with Deerfield
Management, we expect to incur operating expenses going forward primarily
related to keeping BiDil available on the market. We expect to also incur
minimal additional expenses in 2009 related to the further development of BiDil
XR. Whether or not the merger with Deerfield Management is completed, we
believe that our existing sources of liquidity and the cash expected to be
generated from future sales of BiDil, together with the significant reduction
in expenditures as a result of our January 2008 restructuring, will be
sufficient to fund our operations for at least the next twelve months. However,
our future capital requirements, and the period in which we expect our current
cash to support our operations, may vary due to a number of factors, including the
following:
·
our ability to successfully
consummate the proposed merger with Deerfield Management, or a comparable
strategic arrangement related to our business and assets, and the expenses
related to any such transaction;
34
Table
of Contents
·
the amount of future product sales of
BiDil;
·
the cost of manufacturing and selling
BiDil;
·
the timing of collections related to
sales of BiDil;
·
the time and costs involved in
completing the clinical trials and further development of, and obtaining
regulatory approvals for, BiDil XR, if at all;
·
the effect of competing technological
and market developments;
·
the costs involved in preparing, filing,
prosecuting, maintaining and enforcing patent claims;
·
the cost of maintaining licenses to
use patented technologies;
·
unfavorable conditions in the capital
markets, which may adversely affect the value and liquidity of its investments;
and
·
general global and domestic economic
conditions, including inflation, recessionary risks and volatile energy costs.
We
intend to consummate the proposed merger with Deerfield Management. If the
proposed merger with Deerfield Management is not approved by our stockholders
or is not completed for other reasons, we will review the strategic
alternatives available for our business, including the possible dissolution of
our company and liquidation of our assets, the discharge of any remaining
liabilities, and the eventual distribution of remaining assets, if any, to our
stockholders
.
Application of 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 U.S.
generally accepted accounting principles. 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, inventory,
accrued expenses and the factors used to determine the fair value of our stock
options. We base our estimates on historical experience, known trends and
events and various other factors that we believe 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. Changes in estimates are recorded in the
period in which they become known.
We believe the
following critical accounting policies affect our more significant judgments
and estimates used in the preparation of our consolidated financial statements.
Revenue.
Our principal source of revenue is the sale
of BiDil, which began shipping in July of 2005. Other sources of revenue
to date include license fees, research and development payments and milestone
payments that we have received from our corporate collaborators. We exercise
significant judgment in determining the amount of revenue we can recognize in
connection with sales of our products and with respect to our corporate
collaborations. To the extent that actual facts and circumstances differ from
our initial judgments, our revenue recognition could change accordingly and any
such change could affect our reported operating results.
Product Sales/Deferred Revenue.
We follow the provisions of SEC Staff
Accounting Bulletin No. 104,
Revenue
Recognition,
and recognize revenue from product sales upon delivery
of product to wholesalers or pharmacies when persuasive evidence of an
arrangement exists, the fee is fixed or determinable, title to product and
associated risk of loss has passed to the wholesaler and collectibility of the
related receivable is reasonably assured. All revenues from product sales are
recorded net of applicable allowances for sales returns, wholesaler allowances,
rebates, and discounts. For arrangements where the risk of loss has not passed
to wholesalers or pharmacies, we defer the recognition of revenue by recording
deferred revenue until such time that risk of loss has passed. In addition, we
evaluate our level of shipments to wholesalers and pharmacies on a quarterly
basis compared to the estimated level of inventory in the channel, remaining
shelf-life of the product shipped, weekly prescription data and quarterly
forecasted sales.
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Sales Returns, Allowances, Rebates and Discounts.
Our product sales are subject to returns,
wholesaler allowances, rebates and cash and contract discounts that are
customary in the pharmaceutical industry. A large portion of our product sales
are made to pharmaceutical wholesalers for further distribution through
pharmacies to patients, who are consumers of the product. We determine the
provisions for sales returns, allowances, rebates and discounts based primarily
on estimates and contractual terms.
Product Returns.
Consistent with industry practice, we offer
contractual return rights that allow customers to return product only during
the period that is six months prior to, and twelve months after, product
expiration. Commercial product shipped during 2005 and the first half of 2006
had a shelf-life of twelve months from date of manufacture with expiration
dates ranging from April 2006 to May 2007. During the third quarter
of 2006, we began shipping commercial product with an expiration date of
18 months. During the second quarter of 2007, we began shipping commercial
product with an expiration date of 24 months. During the fourth quarter of
2008, we began shipping commercial product with an expiration date of 36
months. Factors that are considered in our estimate of future product returns
include an analysis of the amount of product in the wholesaler and pharmacy
channels, discussions with key wholesalers and other customers regarding
inventory levels and shipment trends, review of consumer consumption data, and
the remaining time to expiration of our product. As a result of this ongoing
evaluation, our product return reserve was $1.4 million and $0.9 million
at December 31, 2008 and 2007, respectively. For the years ended December 31,
2008, 2007 and 2006, we recorded a reduction to revenue for product returns of
$2.0 million, $1.0 million and $2.6 million, respectively. The
return rate and related reserve are evaluated on a quarterly basis, assessing
each of the factors described above, and adjusted accordingly. In developing a
reasonable estimate for the reserve for product returns, we consider the
factors in paragraph 8 of Statement of Financial Accounting Standards No. 48,
Revenue Recognition When a Right of Return
Exists.
The actual amount of product returns could vary
significantly from our estimates and could have a material effect on our
financial condition and results of operations in any reporting period. Due to
an increase in the volume of returns related to commercial product with an
expiration date of 24 months, we revised our estimated product return reserve
during the fourth quarter of 2008. Prior to the fourth quarter of 2008, we had
estimated our provision for returns for commercial product with an expiration
date of 24 months using historical return data for commercial product with
expiration dates of 12 months and 18 months. Commercial product with an
expiration date of 24 months did not begin to expire until the fourth quarter
of 2008. This revision to our estimate resulted in an increase to the provision
for returns of approximately $1.0 million in the year ended December 31,
2008, as compared to the year ended December 31, 2007.
Sample Voucher and Co-Pay Card Program.
Beginning in the third quarter of 2005, we
initiated a sample voucher program whereby we offered an incentive to patients
in the form of a free 30-day trial, or approximately 100 tablets, of BiDil. We
have accounted for this program in accordance with Emerging Issues Task Force
Issue No. 01-09,
Accounting for
Consideration Given by a Vendor to a Customer
. Initially, these
sample programs had quarterly expiration dates such that each sample voucher
program was only active for one quarter at a time. As a result, at the end of
each quarter we could determine the actual amount of reimbursement claims
received for the vouchers distributed during the quarter. The amount of
reimbursement is recorded as a reduction to revenue. During the third quarter
2006, we initiated a six month co-pay program whereby we cover the co-pay for
eligible insured patients for their BiDil prescriptions, including refills. As
a result of these programs, we recorded a reduction to revenue of
$0.1 million, $0.1 million and $0.5 million for the years ended December 31,
2008, 2007 and 2006, respectively.
Sales Discounts, Rebates and Allowances.
Sales discounts, rebates and allowances
result primarily from sales under contract with healthcare providers,
wholesalers, Medicare and Medicaid programs and other governmental agencies. We
estimate rebates and contractual allowances, cash and contract discounts and
other rebates by considering the following factors: current contract prices and
terms, sales volume, estimated customer and wholesaler inventory levels and
current average rebate rates. For the years ended December 31, 2008, 2007
and 2006, we recorded cash discounts, rebates and other allowances of
$6.1 million, $5.3 million and $1.5 million, respectively.
License and Collaboration Revenue.
We record collaboration 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 obligation to perform services, are deferred and recognized over the
contractual or estimated 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.
Inventory.
We review our estimates of the net realizable
value of our inventory at each reporting period. Our estimate of the net
realizable value of inventory is subject to judgment and estimation. The actual
net realizable value could
36
Table of Contents
vary significantly from our
estimates and could have a material effect on our financial condition and
results of operations in any reporting period. On a quarterly basis, we analyze
our current inventory levels and future irrevocable inventory purchase
commitments and write down inventory that has become un-saleable, inventory
that has a cost basis in excess of its expected net realizable value and
irrevocable inventory purchase commitments that are in excess of expected
future inventory requirements based on our sales forecasts. For the year ended December 31,
2008, we recorded inventory impairment charges of $0.5 million to cost of
sales related to commercial trade inventory, patient sample inventory and
excess raw materials. For the year ended December 31, 2007, we recorded
inventory impairment charges of $2.3 million to cost of sales related to
commercial trade inventory, patient sample inventory, contractual purchase
commitments in excess of our sales forecast, and excess raw materials. For the
year ended December 31, 2006, we recorded inventory impairment charges of
$1.5 million to cost of sales related to commercial trade inventory,
patient sample inventory and contractual purchase commitments in excess of our
sales forecast.
Accrued
Expenses.
As
part of the process of preparing financial statements, we are required to
estimate accrued expenses. This process involves identifying services which
have been performed on our behalf, and 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 fees such as amounts owed for clinical trials, sales
and marketing data management, product development, contract manufacturers for
the production of finished goods, marketing and medical support, such as
advisory boards, and publications, marketing services and professional
services, such as lawyers and accountants. In connection with such services,
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 over- or under-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.
Effective January 1, 2006, we adopted the fair value recognition
provisions of SFAS 123R to recognize compensation cost associated with
stock options issued to employees. Determining the amount of stock-based
compensation expense to be recorded requires us to develop estimates to be used
in calculating the grant-date fair value of a stock option. The fair value of
each stock award is estimated on the grant date using the Black-Scholes
option-pricing model. The use of the Black-Scholes option-pricing model
requires us to make estimates for volatility, risk-free interest rate, expected
term, and expected dividend yield. Volatility is determined exclusively using
historical volatility data of our common stock based on the period of time
since our common stock has been publicly traded. The risk-free interest rate is
based on the U.S. Treasury yield curve in effect at the time of grant
commensurate with the expected life assumption. The expected life of stock
options granted is based exclusively on historical data and represents the
weighted average period of time that stock options granted are expected to be
outstanding. The expected life is applied to the stock option grant group as a
whole, as we do not expect substantially different exercise or post-vesting
termination behavior amongst our employee population.
Accounting for
equity instruments granted or sold by us under APB 25, SFAS 123 and
Emerging Issues Task Force No. 96-18,
Accounting
for Equity Instruments That Are Issued to Other Than Employees for Acquiring,
or in Conjunction with Selling, Goods or Services
, requires fair
value estimates of the equity instrument granted or sold. If our estimates of
the fair value of these equity instruments are too high or too low, our
expenses may be over or under stated. For equity instruments granted or sold in
exchange for the receipt of goods or services, we estimate the fair value of
the equity instruments based upon consideration of factors which we deem to be
relevant at that time. Because shares of our common stock were not publicly
traded prior to the commencement of our public offering on November 5,
2003, market factors historically considered in valuing stock and stock option
grants include comparative values of public companies discounted for the risk
and limited liquidity provided for in the shares we are issuing, pricing of
private sales of our redeemable convertible preferred stock, prior valuations
of stock grants and the effect of events that have occurred between the time of
such grants, economic trends, and the comparative rights and preferences of the
security being granted compared to the rights and preferences of our other
outstanding equity.
Prior to our
initial public offering, the fair value of our common stock was determined by
our board of directors contemporaneously with the grant. In the absence of a
public trading market for our common stock, our board of directors considered
numerous objective and subjective factors in determining the fair value of our
common stock. At the time of option grants and other stock issuances, our board
of directors considered the liquidation preferences, dividend rights, voting
control and anti-dilution protection attributable to our then-outstanding
redeemable convertible preferred stock, the status of private and public
financial markets, valuations of comparable private and public companies, the
likelihood of achieving a
37
Table of Contents
liquidity event such as an
initial public offering, our existing financial resources, our anticipated
continuing operating losses and increased spending levels required to complete
our clinical trials, dilution to common stockholders from anticipated future
financings and a general assessment of future business risks.
Inflation
We believe the
effects of inflation generally do not have a material adverse impact on our
operations or financial condition.
Off-Balance Sheet Arrangements
We do not have
any material off-balance sheet arrangements.
Recently
Issued Accounting Pronouncements
In September 2006, the Financial
Accounting Standards Board, or FASB, issued Statement of Financial Accounting
Standards No. 157,
Fair Value
Measurements
, or SFAS 157.
SFAS 157 defines fair value, establishes a framework for measuring fair
value and expands disclosures about fair value measurements. In February 2008,
FASB issued Staff Position No. 157-2, or FSP 157-2, which delayed the
effective date of SFAS 157 for non-financial assets and non-financial
liabilities. We adopted the provisions of SFAS 157 related to financial
assets and liabilities and items that are recognized at fair value on a
recurring basis on January 1, 2008. The partial adoption of SFAS 157
related to financial assets and financial liabilities did not have a material impact
on our results of operations, financial position or cash flows for the year
ended December 31, 2008.
As permitted by FSP 157-2, we will not apply
the provisions of SFAS 157 to property, plant and equipment until calendar
year 2009. We believe the impact of the adoption on January 1, 2009 of the
deferred provisions of SFAS 157 will not have a material impact on our
results of operations, financial position or cash flows.
In February 2007, FASB issued Statement
of Financial Accounting Standards No. 159,
The Fair Value Option for Financial Assets and Financial
Liabilities Including an Amendment of FASB Statement No. 115
, or SFAS 159. SFAS 159 permits
companies to choose to measure many financial instruments at fair value, which
are not currently required to be measured as such, at specified election dates
under SFAS 159s fair value option. Unrealized gains and losses on items for
which the fair value option has been elected are reported in earnings at each
subsequent reporting date. SFAS 159 also establishes presentation and
disclosure requirements designed to facilitate comparisons between companies
that choose different measurement attributes for similar types of assets and
liabilities. We adopted the provisions of SFAS 159 on January 1,
2008, but did not elect the fair value option for any of our financial assets
and financial liabilities.
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Table of Contents
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 and U.S. government-related securities,
directly or through managed funds, with maturities of two years or less. In
addition, we hold auction rate securities that reset monthly. 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. If market interest rates were
to increase immediately and uniformly by 10% from levels at December 31,
2008 or December 31, 2007, we estimate that the fair value of our
investment portfolio would decline by an immaterial amount. We have the ability
to hold our fixed income investments until maturity, and therefore we do not
expect our operating results or cash flows to be affected to any significant
degree by the effect of a change in market interest rates on our investments.
The primary
objective of our investment activities is to preserve principal while at the
same time maximizing the income we receive from our investments without
significantly increasing risk. To achieve this objective, we maintain our
portfolio of cash equivalents and marketable securities in a variety of
securities, including U.S. government agencies, corporate notes and bonds,
commercial paper, and money market funds. These securities are classified as
available for sale and consequently are recorded on the balance sheet at fair
value with unrealized gains or losses reported as a separate component of
accumulated other comprehensive income (loss). If interest rates rise, the
market value of our investments may decline, which could result in a realized
loss if we are forced to sell an investment before its scheduled maturity. We
do not utilize derivative financial instruments to manage our interest rate
risks.
As of December 31, 2008, all marketable
securities held by us have maturity dates that range from 2009 to 2045.
As of December 31, 2008, we held
approximately $1.6 million par value of auction rate securities. These
auction rate securities are comprised of approximately $1.3 million of
preferred stock closed-end fund auction rate securities and a $0.3 million
government-backed student loan auction rate security. Auction rate securities
are securities that are structured to allow for short-term interest rate
resets, but with contractual maturity dates that can be well in excess of ten
years. Auctions have historically provided a liquid market for these
securities. However, beginning in February 2008, the majority of auction
rate securities in the marketplace failed at auction due to sell orders
exceeding buy orders. Such failures resulted in the interest rate on these
securities resetting to predetermined rates within the underlying loan
agreement, which might be higher or lower than the current market rate of
interest. Our ability to liquidate our auction rate securities and fully
recover the carrying value of our investments in the near term may be limited
or not exist. In the event that we need to access our investments in these
auction rate securities, we will not be able to do so until a future auction of
these investments is successful, the issuer redeems the outstanding securities,
a buyer is found outside the auction process, or the securities mature, which
could be in as many as 37 years. As a result of these factors, we recorded
impairment charges of $157,000 for the year ended December 31, 2008. We
estimated the fair value of our auction rate securities using a discounted cash
flow analysis that considered the following key inputs: (a) the underlying
structure of each security; (b) the present value of future principle and
interest payments discounted at rates considered to reflect the relevant risk
associated with each security; (c) the time horizon that the market value
of each security could return to its cost; and (d) other factors such as
the credit rating of the issuer and any other credit enhancements. We may be
required to record additional impairment charges on these investments from time
to time.
As of December 31, 2008, we classify our
auction rate securities as long-term marketable securities, reflecting
managements determination that these securities may not be liquidated within
one year due to the auction failures described above. We have not experienced
any realized losses on sales of auction rate securities in 2008.
For the year ended December 31, 2008,
the cumulative impairments recorded by us include an impairment of $32,000 on
our government-backed student loan auction rate security and an impairment of
$125,000 on our preferred stock closed-end fund auction rate securities.
39
Table of Contents
ITEM 8.
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO FINANCIAL STATEMENTS
40
Table of Contents
Report of Independent Registered Public
Accounting Firm
The Board of Directors and
Stockholders
NitroMed, Inc.
We have
audited the accompanying balance sheets of NitroMed, Inc. as of December 31,
2008 and 2007, and the related statements of operations, stockholders equity,
and cash flows for each of the three years in the period ended December 31,
2008. These financial statements are the responsibility of the Companys
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. We were not engaged to perform an
audit of the Companys internal control over financial reporting. Our audits
included consideration of internal control over financial reporting as a basis
for designing audit procedures that are appropriate in the circumstances, but
not for the purpose of expressing an opinion on the Companys internal control
over financial reporting. Accordingly, we express no such opinion. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our
opinion, the financial statements referred to above present fairly, in all
material respects, the financial position of NitroMed, Inc. at December 31,
2008 and 2007, and the results of its operations and its cash flows for each of
the three years in the period ended December 31, 2008, in conformity with
U.S. generally accepted accounting principles.
|
/s/ Ernst & Young LLP
|
Boston, Massachusetts
March 19, 2009
|
|
41
Table of Contents
NITROMED, INC.
BALANCE SHEETS
(in thousands, except par value amounts)
|
|
December 31,
|
|
|
|
2008
|
|
2007
|
|
ASSETS
|
|
|
|
|
|
Current Assets:
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
10,635
|
|
$
|
8,167
|
|
Marketable securities
|
|
6,810
|
|
23,233
|
|
Accounts receivable
|
|
1,648
|
|
1,929
|
|
Inventories
|
|
1,499
|
|
1,401
|
|
Prepaid expenses and other current assets
|
|
271
|
|
334
|
|
Total current assets
|
|
20,863
|
|
35,064
|
|
Property and equipment, net
|
|
73
|
|
312
|
|
Long-term marketable securities
|
|
1,393
|
|
|
|
Restricted cash
|
|
|
|
191
|
|
Total assets
|
|
$
|
22,329
|
|
$
|
35,567
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
|
|
|
|
|
|
Current Liabilities:
|
|
|
|
|
|
Accounts payable
|
|
$
|
557
|
|
$
|
3,235
|
|
Accrued expenses
|
|
3,744
|
|
6,379
|
|
Accrued restructuring
|
|
24
|
|
|
|
Current portion of long-term debt
|
|
|
|
3,728
|
|
Total current liabilities
|
|
4,325
|
|
13,342
|
|
Commitments and contingencies
(Note 10)
|
|
|
|
|
|
Stockholders Equity:
|
|
|
|
|
|
Preferred stock, $0.01 par value; 5,000
shares authorized; no shares issued or outstanding
|
|
|
|
|
|
Common stock, $0.01 par value; 65,000
shares authorized; 46,043 shares and 45,381 shares issued and outstanding as
of December 31, 2008 and 2007, respectively
|
|
460
|
|
454
|
|
Additional paid-in capital
|
|
368,815
|
|
367,125
|
|
Accumulated deficit
|
|
(351,299
|
)
|
(345,382
|
)
|
Accumulated other comprehensive income
|
|
28
|
|
28
|
|
Total stockholders equity
|
|
18,004
|
|
22,225
|
|
Total liabilities and stockholders equity
|
|
$
|
22,329
|
|
$
|
35,567
|
|
The accompanying
notes are an integral part of the financial statements.
42
Table
of Contents
NITROMED, INC.
STATEMENTS OF OPERATIONS
(in thousands, except per share amounts)
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
2007
|
|
2006
|
|
Revenues:
|
|
|
|
|
|
|
|
Product sales
|
|
$
|
14,920
|
|
$
|
15,269
|
|
$
|
12,086
|
|
License and collaboration
|
|
|
|
750
|
|
|
|
Total revenues
|
|
14,920
|
|
16,019
|
|
12,086
|
|
Cost and operating expenses:
|
|
|
|
|
|
|
|
Cost of product sales
|
|
3,451
|
|
4,236
|
|
3,560
|
|
Research and development(1)
|
|
2,751
|
|
12,185
|
|
17,029
|
|
Sales, general and administrative(1)
|
|
12,137
|
|
31,358
|
|
59,403
|
|
Restructuring charges
|
|
2,724
|
|
1,004
|
|
5,283
|
|
Total cost and operating expenses
|
|
21,063
|
|
48,783
|
|
85,275
|
|
Loss from operations
|
|
(6,143
|
)
|
(32,764
|
)
|
(73,189
|
)
|
Non-operating income:
|
|
|
|
|
|
|
|
Interest income
|
|
667
|
|
1,884
|
|
3,204
|
|
Interest expense
|
|
(91
|
)
|
(694
|
)
|
(1.352
|
)
|
Other expense
|
|
(350
|
)
|
|
|
|
|
|
|
226
|
|
1,190
|
|
1,852
|
|
Net loss
|
|
(5,917
|
)
|
(31,574
|
)
|
(71,337
|
)
|
Basic and diluted net loss per share
|
|
$
|
(0.13
|
)
|
$
|
(0.75
|
)
|
$
|
(1.96
|
)
|
Shares used in computing basic and diluted
net loss per share
|
|
45,976
|
|
41,997
|
|
36,399
|
|
(1)
Includes
stock-based compensation expense as follows:
Research and development
|
|
$
|
81
|
|
$
|
2,005
|
|
$
|
2,795
|
|
Sales, general and administrative
|
|
$
|
1,352
|
|
$
|
3,763
|
|
$
|
5,119
|
|
The
accompanying notes are an integral part of the financial statements.
43
Table
of Contents
NITROMED, INC.
STATEMENTS OF STOCKHOLDERS EQUITY
(in thousands)
|
|
|
|
|
|
|
|
|
|
Accumulated Other
|
|
Total
|
|
|
|
Common Stock
|
|
Additional
|
|
Deferred Stock
|
|
Accumulated
|
|
Comprehensive
|
|
Stockholders
|
|
|
|
Shares
|
|
Par Value
|
|
Paid-in Capital
|
|
Compensation
|
|
Deficit
|
|
Loss
|
|
Equity
|
|
Balance at December 31, 2005
|
|
30,512
|
|
$
|
305
|
|
$
|
276,510
|
|
$
|
(1,208
|
)
|
$
|
(242,471
|
)
|
$
|
(70
|
)
|
$
|
33,066
|
|
Elimination of deferred stock compensation in accordance with the
adoption of SFAS 123(R)
|
|
|
|
|
|
(1,208
|
)
|
1,208
|
|
|
|
|
|
|
|
Exercise of stock options
|
|
461
|
|
5
|
|
688
|
|
|
|
|
|
|
|
693
|
|
Compensation expense associated with options issued to employees
|
|
|
|
|
|
8,042
|
|
|
|
|
|
|
|
8,042
|
|
Reversal of compensation expense associated with options issued to
non-employees
|
|
|
|
|
|
(239
|
)
|
|
|
|
|
|
|
(239
|
)
|
Issuance of stock under employee stock purchase plan
|
|
32
|
|
|
|
93
|
|
|
|
|
|
|
|
93
|
|
Issuance of stock in connection with employee benefit plan
|
|
78
|
|
1
|
|
198
|
|
|
|
|
|
|
|
199
|
|
Sale of common stock in public offering (net of issuance costs of
$4,056)
|
|
6,098
|
|
61
|
|
58,444
|
|
|
|
|
|
|
|
58,505
|
|
Unrealized gains on marketable securities
|
|
|
|
|
|
|
|
|
|
|
|
57
|
|
57
|
|
Net loss
|
|
|
|
|
|
|
|
|
|
(71,337
|
)
|
|
|
(71,337
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(71,280
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2006
|
|
37,181
|
|
$
|
372
|
|
$
|
342,528
|
|
$
|
|
|
$
|
(313,808
|
)
|
$
|
(13
|
)
|
$
|
29,079
|
|
The
accompanying notes are an integral part of the financial statements.
44
Table
of Contents
NITROMED, INC.
STATEMENTS OF STOCKHOLDERS EQUITY
(in thousands)
|
|
Common Stock
|
|
|
|
|
|
Accumulated Other
|
|
|
|
|
|
|
|
Par
|
|
Additional
|
|
Accumulated
|
|
Comprehensive
|
|
Total Stockholders
|
|
|
|
Shares
|
|
Value
|
|
Paid-in Capital
|
|
Deficit
|
|
Incom (Loss)
|
|
Equity
|
|
Balance at December 31, 2006
|
|
37,181
|
|
$
|
372
|
|
$
|
342,528
|
|
$
|
(313,808
|
)
|
$
|
(13
|
)
|
$
|
29,079
|
|
Exercise of stock options
|
|
273
|
|
3
|
|
309
|
|
|
|
|
|
312
|
|
Compensation expense associated with options issued to employees
|
|
|
|
|
|
4,993
|
|
|
|
|
|
4,993
|
|
Reversal of compensation expense associated with options issued to
non-employees
|
|
|
|
|
|
(26
|
)
|
|
|
|
|
(26
|
)
|
Issuance of stock under employee stock purchase plan
|
|
74
|
|
1
|
|
78
|
|
|
|
|
|
79
|
|
Issuance of stock in connection with employee benefit plan
|
|
87
|
|
1
|
|
279
|
|
|
|
|
|
280
|
|
Issuance of common stock and related stock compensation expense in
connection with restricted stock plan
|
|
166
|
|
1
|
|
800
|
|
|
|
|
|
801
|
|
Sale of common stock in public offering (net of issuance costs of
$1,485)
|
|
7,600
|
|
76
|
|
18,164
|
|
|
|
|
|
18,240
|
|
Unrealized gains on marketable securities
|
|
|
|
|
|
|
|
|
|
41
|
|
41
|
|
Net loss
|
|
|
|
|
|
|
|
(31,574
|
)
|
|
|
(31,574
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
(31,533
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2007
|
|
45,381
|
|
$
|
454
|
|
$
|
367,125
|
|
$
|
(345,382
|
)
|
$
|
28
|
|
$
|
22,225
|
|
The
accompanying notes are an integral part of the financial statements.
45
Table
of Contents
NITROMED, INC.
STATEMENTS OF STOCKHOLDERS EQUITY
(in thousands)
|
|
Common Stock
|
|
|
|
|
|
Accumulated Other
|
|
|
|
|
|
Shares
|
|
Par
Value
|
|
Additional
Paid-in Capital
|
|
Accumulated
Deficit
|
|
Comprehensive
Income
|
|
Total Stockholders
Equity
|
|
Balance at December 31, 2007
|
|
45,381
|
|
$
|
454
|
|
$
|
367,125
|
|
$
|
(345,382
|
)
|
$
|
28
|
|
$
|
22,225
|
|
Exercise of stock options
|
|
102
|
|
1
|
|
72
|
|
|
|
|
|
73
|
|
Compensation expense associated with options issued to employees
|
|
|
|
|
|
454
|
|
|
|
|
|
454
|
|
Reversal of compensation expense associated with options issued to
non-employees
|
|
|
|
|
|
(5
|
)
|
|
|
|
|
(5
|
)
|
Issuance of stock in connection with employee benefit plan
|
|
192
|
|
2
|
|
188
|
|
|
|
|
|
190
|
|
Issuance of common stock and related stock compensation expense in
connection with restricted stock plan
|
|
368
|
|
3
|
|
981
|
|
|
|
|
|
984
|
|
Unrealized gains on marketable securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
|
|
|
|
|
|
(5,917
|
)
|
|
|
(5,917
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
(5,917
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at December 31, 2008
|
|
46,043
|
|
$
|
460
|
|
$
|
368,815
|
|
$
|
(351,299
|
)
|
$
|
28
|
|
$
|
18,004
|
|
The
accompanying notes are an integral part of the financial statements.
46
Table
of Contents
NITROMED, INC.
STATEMENTS OF CASH FLOWS
(in thousands)
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
2007
|
|
2006
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(5,917
|
)
|
$
|
(31,574
|
)
|
$
|
(71,337
|
)
|
Adjustments to reconcile net loss to net
cash used in operating activities:
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
118
|
|
285
|
|
798
|
|
Non-cash restructuring charges
|
|
72
|
|
|
|
1,342
|
|
Stock-based compensation expense
|
|
1,433
|
|
5,768
|
|
7,914
|
|
Impairment charge on auction rate
securities
|
|
157
|
|
|
|
|
|
Changes in operating assets and
liabilities:
|
|
|
|
|
|
|
|
Accounts receivable
|
|
281
|
|
(559
|
)
|
1,236
|
|
Inventories
|
|
(98
|
)
|
1,445
|
|
401
|
|
Prepaid expenses and other current assets
|
|
63
|
|
236
|
|
3,290
|
|
Accounts payable
|
|
(2,678
|
)
|
1,312
|
|
(9,887
|
)
|
Accrued expenses
|
|
(2,635
|
)
|
114
|
|
(4,636
|
)
|
Accrued restructuring charge
|
|
24
|
|
(299
|
)
|
299
|
|
Deferred revenue
|
|
|
|
(206
|
)
|
(1,773
|
)
|
Net cash used in operating activities
|
|
(9,180
|
)
|
(23,478
|
)
|
(72,353
|
)
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
Purchases of property and equipment
|
|
|
|
(162
|
)
|
(111
|
)
|
Proceeds from sale of equipment
|
|
49
|
|
528
|
|
|
|
Purchases of marketable securities
|
|
(16,147
|
)
|
(69,020
|
)
|
(150,092
|
)
|
Sales and maturities of marketable
securities
|
|
31,020
|
|
66,907
|
|
179,520
|
|
Restricted cash
|
|
191
|
|
612
|
|
|
|
Net cash provided by (used in) investing
activities
|
|
15,113
|
|
(1,135
|
)
|
29,317
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
Proceeds from sale of common stock
|
|
|
|
18,240
|
|
58,505
|
|
Principal payments on long-term debt
|
|
(3,728
|
)
|
(6,925
|
)
|
(6,272
|
)
|
Proceeds from employee stock plans
|
|
263
|
|
391
|
|
786
|
|
Net cash (used in) provided by financing
activities
|
|
(3,465
|
)
|
11,706
|
|
53,019
|
|
Net increase (decrease) in cash and cash
equivalents
|
|
2,468
|
|
(12,907
|
)
|
9,983
|
|
Cash and cash equivalents, beginning
balance
|
|
8,167
|
|
21,074
|
|
11,091
|
|
Cash and cash equivalents, ending balance
|
|
$
|
10,635
|
|
$
|
8,167
|
|
$
|
21,074
|
|
Supplemental disclosure:
|
|
|
|
|
|
|
|
Cash paid during the year for interest
|
|
$
|
122
|
|
$
|
751
|
|
$
|
1,403
|
|
The
accompanying notes are an integral part of the financial statements.
47
Table of Contents
NITROMED, INC.
NOTES TO FINANCIAL STATEMENTS
(all tabular amounts in thousands except per
share amounts)
1. The Company
NitroMed, Inc.
(the Company) is the maker of BiDil
®
. Since its inception, the Company has
funded its operations mainly through the sale of equity securities, debt
financings, license fees, research and development funding, milestone payments
from its collaborative partners, and more recently, sales of BiDil. In June 2005,
the U.S. Food and Drug Administration (FDA) approved the Companys product,
BiDil, for the treatment of heart failure in self-identified black patients as
an adjunct to current standard therapies. BiDil is an orally administered
fixed-dose combination of isosorbide dinitrate and hydralazine hydrochloride.
The Company commercially launched BiDil in July 2005, and has since generated
approximately $46.7 million in product sales, including product sales of $3.2 million
during the fourth quarter of 2008, and total product sales of $14.9 million
during the year ended December 31, 2008.
Based upon the Companys determination that the successful
commercialization of BiDil requires a magnitude of resources that it cannot
allocate to the program, as well as the Companys plans to conserve cash in
order to pursue the development of an extended release formulation of BiDil,
known as BiDil XR, in January 2008 the Company discontinued active promotional
efforts related to BiDil. The Company concurrently implemented a restructuring
plan in which the Company immediately and significantly reduced its workforce.
Although the Company has discontinued active promotional efforts related to
BiDil, the Company continues to manufacture and sell BiDil and maintain the
product on the market for patients through normal wholesale and retail
channels. The Company has also conducted limited advertising in select medical
publications, and has utilized a third-party marketing firm to contact
healthcare professionals on the Companys behalf, in each case in an effort to
maintain a limited market presence for BiDil. Based upon the Companys
activities in 2008 related to its now terminated agreement with JHP
Pharmaceuticals, LLC for the purchase and sale of its BiDil and BiDil XR drug
business, as well as the Companys decision to enter into a merger agreement
with Deerfield Management, the Company has not yet commenced the next set of
clinical trials pursuant to the Companys BiDil XR development plan. The
Company expects to incur minimal expenses in 2009 in connection with BiDil XR
development activities.
As discussed below under Note 12, Subsequent Events, on January 27,
2009, the Company entered into an agreement and plan of merger with certain
entities affiliated with Deerfield Management. At the effective time of the
merger with Deerfield Management, each outstanding share of the Companys
common stock will be converted into the right to receive $0.80 per share in
cash, subject to adjustment if the Companys net cash balance at the closing of
the merger is greater than or less than $12.3 million, as calculated pursuant
to the terms of the Merger Agreement. The Company currently expects to complete
the merger with Deerfield Management in the second quarter of 2009 following
the satisfaction or waiver of all the conditions to the merger, including the
adoption of the merger agreement by the Companys stockholders at a special
meeting of stockholders, which is currently scheduled for April 22, 2009.
Pending the completion of the Companys merger with Deerfield
Management, the Company expects to incur operating expenses going forward
primarily related to keeping BiDil available on the market. The Company expects
to also incur minimal additional expenses in 2009 related to the further
development of BiDil XR. Whether or not the merger with Deerfield Management is
completed, the Company believes that its existing sources of liquidity and the
cash expected to be generated from future sales of BiDil will be sufficient to
fund its operations for at least the next twelve months. In the event that the
planned merger with Deerfield Management is significantly delayed or is not
completed at all, the Companys future revenue from sales of BiDil could
decline significantly based on a number of factors, including a decline in
BiDil prescriptions by healthcare providers and a decline in the willingness of
third party payors to provide reimbursement at favorable levels, in each case
due, at least in part, to the prior elimination of the Companys sales force
and discontinuation of the Companys active promotional efforts related to
BiDil.
2. Summary of Significant Accounting Policies
Cash Equivalents and Marketable Securities
Cash
equivalents are short-term, highly liquid investments with maturities of three
months or less at the time of acquisition. Investments with maturities in
excess of three months at the time of acquisition are classified as marketable
securities and designated as available-for-sale. Cash equivalents consist of
institutional money market funds. Available-for-sale securities, excluding
investments in auction rate securities, are carried at fair market value, as
reported by the custodian, and unrealized gains and losses are reported as a
separate component of accumulated other comprehensive income (loss) within
stockholders equity. Realized gains and losses were not material for the years
ended December 31, 2008, 2007 and 2006.
48
Table of Contents
2. Summary of
Significant Accounting Policies (Continued)
Fair Value of Financial Instruments
Financial
instruments mainly consist of cash, cash equivalents, marketable securities and
the current portion of long-term debt. The carrying amounts of cash, cash
equivalents, and marketable securities approximate their fair values. The fair
value of long-term debt approximates its carrying value due to its remaining
term to maturity.
In September 2006,
the Financial Accounting Standards Board issued Statement of Financial
Accounting Standards No. 157,
Fair Value
Measurements
(SFAS 157). SFAS 157 defines fair value, establishes
a framework for measuring fair value in accordance with generally accepted
accounting principles and expands disclosures about fair value measurements.
SFAS 157 codifies the definition of fair value as the price that would be
received to sell an asset or paid to transfer a liability in an orderly
transaction between market participants at the measurement date, clarifies the
principle that fair value should be based on the assumptions market participants
would use when pricing the asset or liability and establishes a fair value
hierarchy that prioritizes the information used to develop those assumptions.
SFAS 157 is effective for fiscal years beginning after November 15, 2007 and
interim periods within those years. The Company adopted SFAS 157 on January 1,
2008.
Research and Development Expenses
Research and
development expenses primarily consist of salaries and related expenses for
research and development personnel, fees paid to consultants and outside
service providers and materials used in clinical trials. The Company charges
research and development expenses, including costs associated with acquiring
patents, to operations as incurred.
Revenue Recognition
The Companys
principal source of revenue is the sale of BiDil, which began shipping in July 2005.
Other sources of revenue to date include license fees, research and development
payments and milestone payments that the Company has received from its
corporate collaborators.
Product Sales/Deferred Revenue.
The Company follows the provisions of
Securities and Exchange Commission Staff Accounting Bulletin No. 104,
Revenue Recognition,
and recognizes
revenue from product sales upon delivery of product to wholesalers or
pharmacies when persuasive evidence of an arrangement exists, the fee is fixed
or determinable, title to product and associated risk of loss has passed to the
wholesaler or pharmacy and collectibility of the related receivable is
reasonably assured. All revenues from product sales are recorded net of
applicable allowances for sales returns, wholesaler allowances, rebates, and
discounts. For arrangements where the risk of loss has not passed to
wholesalers or pharmacies, the Company defers the recognition of revenue by
recording deferred revenue until such time that risk of loss has passed. In
addition, the Company evaluates its level of shipments to wholesalers and
pharmacies on a quarterly basis compared to the estimated level of inventory in
the channel, remaining shelf-life of the product shipped, weekly prescription
data and quarterly forecasted sales.
Sales Returns, Allowances, Rebates and
Discounts
. The
Companys product sales are subject to returns, wholesaler allowances, rebates
and cash and contract discounts that are customary in the pharmaceutical
industry. A large portion of the Companys product sales are made to
pharmaceutical wholesalers for further distribution through pharmacies to
patients, who are consumers of the product. All revenues from product sales are recorded net of applicable
allowances for sales returns, wholesaler allowances, rebates and cash and
contract discounts. The Company determines the provisions for sales
returns, allowances, rebates and discounts based primarily on historical
experience, known trends and events, and contractual terms.
Product Returns.
Consistent with industry practice, the
Company offers contractual return rights that allow customers to return product
only during the period that is six months prior to, and twelve months after, product
expiration. Commercial product shipped during 2005 and the first half of 2006
had a shelf-life of twelve months from date of manufacture with expiration
dates ranging from April 2006 to May 2007. During the third quarter of 2006,
the Company began shipping commercial product with an expiration date of 18 months.
During the second quarter of 2007, the Company began shipping commercial
product with an expiration date of 24 months. During the fourth quarter of
2008, the Company began shipping commercial product with an expiration date of
36 months. Factors that are considered in the Companys estimate of future
product returns include an analysis of the amount of product in the wholesaler
and pharmacy channels, discussions with key wholesalers and other customers
regarding inventory levels and shipment trends, review of consumer prescription
data, an estimate of the product used by hospitals and the remaining time to
expiration of the Companys product. The Companys product return reserve was
$1.4 million and $0.9 million as of December 31, 2008 and 2007, respectively.
For the years ended December 31, 2008, 2007 and 2006, the Company recorded a
reduction to revenue for product returns of $2.0 million, $1.0 million and $2.6
million, respectively. The return rate and associated reserve are evaluated on
a quarterly basis, assessing each of the factors described above, and adjusted
accordingly. In developing a reasonable estimate for the reserve for product
returns, the Company considers the factors in paragraph 8 of Statement of
Financial Accounting Standards No. 48,
Revenue
Recognition When a Right of Return Exists.
The
49
Table of Contents
2. Summary of
Significant Accounting Policies (Continued)
Revenue Recognition (Continued)
actual amount of product returns could vary significantly from the
Companys estimates and could have a material effect on the Companys financial
condition and results of operations in any reporting period. Due to an increase
in the volume of returns related to commercial product with an expiration date
of 24 months, the Company revised its estimated product return reserve during
the fourth quarter of 2008. Prior to the fourth quarter of 2008, the Company
had estimated its provision for returns for commercial product with an
expiration date of 24 months using historical return data for commercial
product with expiration dates of 12 months and 18 months. Commercial product
with an expiration date of 24 months did not begin to expire until the fourth
quarter of 2008. This revision to the Companys estimate resulted in an
increase to the provision for returns of approximately $1.0 million in the year
ended December 31, 2008, as compared to the year ended December 31, 2007.
Sample Voucher and Co-Pay Card Program.
Beginning in the third quarter of 2005, the
Company initiated a sample voucher program whereby the Company offered an
incentive to patients in the form of a free 30-day trial of BiDil. The Company
accounts for this program in accordance with Emerging Issues Task Force Issue No.
01-09,
Accounting for Consideration Given by
a Vendor to a Customer
. Initially, these sample programs had
quarterly expiration dates such that each sample voucher program was only
active for one quarter at a time. As a result, at the end of each quarter the
Company could determine the actual amount of reimbursement claims received for
the vouchers distributed during the quarter. The amount of reimbursement is
recorded as a reduction to revenue. During the third quarter of 2006, the
Company initiated a six month co-pay program whereby the Company covers the
co-pay for eligible insured patients for their BiDil prescriptions, including
refills. As a result of these programs, the Company recorded a reduction to
revenue of $0.1 million, $0.1 million and $0.5 million for the years ended December
31, 2008, 2007 and 2006, respectively.
Sales Discounts, Rebates and Allowances.
Sales discounts, rebates and allowances
result primarily from sales under contract with healthcare providers,
wholesalers, Medicare and Medicaid programs and other governmental agencies.
The Company estimates rebates and contractual allowances, cash and contract
discounts and other rebates by considering the following factors: current
contract prices, terms, sales volume, estimated customer and wholesaler
inventory levels, and current average rebate rates. For the years ended December
31, 2008, 2007 and 2006, the Company recorded rebates, cash discounts, and
other allowances of $6.1 million, $5.3 million and $1.5 million, respectively.
License and Collaboration Revenue.
The Company records collaboration 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 the
Company has a continuing obligation to perform services, are deferred and
recognized over the contractual or estimated 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 the Company is 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. In October 2007, the Company entered into a license agreement
pursuant to which the Company granted the licensee a non-exclusive license
under certain non-strategic patent rights owned and/or licensed by the Company.
In consideration of this license, the licensee paid the Company an upfront fee
of $750,000, which the Company recognized as revenue in the fourth quarter of
2007 because the Company had no remaining deliverable at December 31, 2007.
Accounts Receivable
Accounts receivable consist of amounts due
from wholesalers and pharmacies for the purchase of BiDil. Ongoing evaluations
of customer payment histories are performed and collateral is generally not
required. As of December 31, 2008, the Company has not reserved any amount for
bad debts related to the sale of BiDil. The Company continuously reviews all
customer accounts to determine if an allowance for uncollectible accounts is
necessary. The Company currently provides substantially all of its customers
with payment terms of net 30 days. Through December 31, 2008, payments have
generally been made in a timely manner.
50
Table of Contents
2. Summary of Significant Accounting Policies
(Continued)
Property and
Equipment
Property and equipment are recorded at cost
and depreciated using the straight-line method over their estimated useful
lives, which range between three to five years. The Company reviews its
property and equipment for impairment whenever events or changes in
circumstances indicate that the carrying amount of the assets may not be recoverable
and recognizes an impairment loss when the estimated undiscounted cash flows
are less than the carrying value of the asset. The asset is written down to its
fair value, determined by either a quoted market price or by a discounted cash
flow technique, whichever is more appropriate under the circumstances. During
2008, the Company recorded impairment charges of $0.1 million (See Note 5).
There were no impairment charges recorded during 2007. Property and equipment
consist of the following:
|
|
December 31,
|
|
|
|
2008
|
|
2007
|
|
Laboratory furniture, fixtures and
equipment
|
|
$
|
362
|
|
$
|
362
|
|
Office furniture, fixtures and equipment
|
|
5
|
|
162
|
|
|
|
367
|
|
524
|
|
Less accumulated depreciation and
amortization
|
|
(294
|
)
|
(212
|
)
|
Total
|
|
$
|
73
|
|
$
|
312
|
|
In 2008, the Company sold certain office furniture and computer
equipment previously used in sales, general and administrative activities and
received proceeds in the amount of $54,000, which approximated the equipments
net book value. In February 2007, the Company sold certain equipment previously
used in research and development activities and received proceeds in the amount
of $528,000, which approximated the equipments net book value.
Inventories
Inventories
are stated at the lower of cost or market, with cost determined on a first-in,
first-out basis. Inventories consisted of the following:
|
|
December 31,
|
|
|
|
2008
|
|
2007
|
|
Raw materials
|
|
$
|
218
|
|
$
|
349
|
|
Finished goods
|
|
1,281
|
|
1,052
|
|
Total
|
|
$
|
1,499
|
|
$
|
1,401
|
|
On a quarterly
basis, the Company analyzes its current inventory levels and writes down
inventory that has become un-saleable or has a cost basis in excess of its
expected net realizable value. In addition, the Company evaluates its future
irrevocable inventory purchase commitments compared to forecasted product
sales, the current level of inventory, and its related product dating. For the
year ended December 31, 2008, the Company recorded inventory impairment charges
of $0.5 million to cost of sales for excess quantities, comprised of commercial
trade inventory, patient sample inventory and raw materials. For the year ended
December 31, 2007, the Company recorded inventory impairment charges of $2.3 million
to cost of sales for excess quantities, comprised of commercial trade
inventory, patient sample inventory, contractual purchase commitments in excess
of expected future inventory requirements based on the Companys sales
forecast, and raw materials. For the year ended December 31, 2006, the Company
recorded inventory impairment charges of $1.5 million to cost of sales
comprised of commercial trade inventory, patient sample inventory and
contractual purchase commitments in excess of expected future inventory
requirements based on the Companys sales forecast.
Net Loss Per Share
Basic net loss
per share is computed by dividing net loss by the weighted average number of
shares of common stock outstanding during the period. Diluted net loss per
share is computed by dividing net loss by the weighted average number of shares
of common stock and the dilutive potential common stock equivalents then
outstanding. Potential common stock equivalents consist of stock options and
restricted common stock. Since the Company has a net loss for all periods
presented, the
51
Table of Contents
2. Summary of Significant Accounting Policies
(Continued)
Net Loss Per Share (Continued)
effect of all potentially
dilutive securities is antidilutive. Accordingly, basic net loss per share and
diluted net loss per share are the same.
Options to
purchase 2,875,324, 4,747,755 and 4,935,930 shares of common stock for the
years ended December 31, 2008, 2007 and 2006, respectively, have been excluded
from the computation of diluted net loss per share since their inclusion would
be antidilutive. In addition, 33,333 and 451,778 shares of unvested restricted
common stock issued and outstanding as of December 31, 2008 and December 31,
2007, respectively, are also not included in the computation of diluted net
loss per share since their inclusion would be antidilutive.
Concentration of Credit Risk
Statement of
Financial Accounting Standards No. 105,
Disclosure
of Information about Financial Instruments with Off-Balance-Sheet Risk and
Financial Instruments with Concentrations of Credit Risk
, requires
disclosure of any significant off-balance-sheet and credit risk concentrations.
Financial instruments that potentially subject the Company to concentration of
credit risk consist principally of marketable securities and accounts
receivable. The Company has no off-balance-sheet or concentrations of credit
risk such as foreign exchange contracts, option contracts or other hedging
arrangements. The Company maintains its cash, cash equivalents and marketable
securities balances with several high credit quality financial institutions.
The following
table summarizes the number of trade customers that individually comprise
greater than 10% of product revenues and their respective percentage of the
Companys total product revenues on a gross basis:
|
|
Number of
Significant
|
|
Percentage of Total
Product Revenues
by Customer
|
|
Year ended:
|
|
Customers
|
|
A
|
|
B
|
|
C
|
|
December 31, 2008
|
|
3
|
|
38
|
%
|
35
|
%
|
18
|
%
|
December 31, 2007
|
|
3
|
|
38
|
%
|
36
|
%
|
17
|
%
|
December 31, 2006
|
|
3
|
|
34
|
%
|
36
|
%
|
18
|
%
|
The table
above excludes revenues from license and collaboration agreements. The Company
recognized revenue in 2007 from an upfront payment in connection with a license
agreement pursuant to which the Company granted the licensee a non-exclusive
license under certain non-strategic patent rights owned and/or licensed by the
Company.
The following
table summarizes the number of customers that individually comprise greater
than 10% of total accounts receivable and their respective percentage of the
Companys total accounts receivable:
|
|
Number of
Significant
|
|
Percentage of Total
Accounts Receivable
by Customer
|
|
As of:
|
|
Customers
|
|
A
|
|
B
|
|
C
|
|
December 31, 2008
|
|
3
|
|
32
|
%
|
39
|
%
|
18
|
%
|
December 31, 2007
|
|
3
|
|
38
|
%
|
34
|
%
|
17
|
%
|
Concentration of Other Risks
The Company
currently obtains one of the key active pharmaceutical ingredients for its
commercial requirements for BiDil from a single source. The Company also
utilizes one manufacturer to produce BiDil. The disruption or termination of
the contract with the manufacturer of BiDil or of the supply of the key
pharmaceutical ingredient for BiDil or a significant increase in the cost of
the key active pharmaceutical ingredient from this single source could have a
material adverse effect on the Companys business, financial position and
results of operations.
Advertising Costs
All
advertising costs are expensed as incurred. Advertising expenses were $1.0 million,
$7.7 million and $12.8 million for the years ended December 31, 2008, 2007 and
2006, respectively.
52
Table of Contents
2. Summary of Significant Accounting Policies
(Continued)
Use of Estimates
The preparation
of financial statements in conformity with U.S. generally accepted accounting
principles requires management to make estimates and assumptions that affect
the reported amounts of assets and liabilities and disclosure of contingent
assets and liabilities at the date of the financial statements and the reported
amounts of revenue and expenses during the reporting period. Such estimates
relate to product returns rates, contract rebates, the net realizable value of
inventory, useful lives of fixed assets, fair values of certain marketable
securities, accrued liabilities, and stock-based compensation. Actual results
could differ from those estimates, and such differences may be material to the
financial statements.
Accumulated Other Comprehensive Income (Loss)
The Company
presents comprehensive income (loss) in accordance with Statement of Financial
Accounting Standards No. 130,
Reporting
Comprehensive Income
. Accumulated other comprehensive income (loss)
is comprised entirely of unrealized gains and losses on available-for-sale
marketable securities.
Income Taxes
Deferred tax
assets and liabilities are determined based on differences between the
financial reporting and income tax basis of assets and liabilities, as well as
net operating loss carryforwards and tax credits, and are measured using the
enacted tax rates and laws that will be in effect when the differences are
expected to reverse. Deferred tax assets are reduced by a valuation allowance
to reflect the uncertainty associated with their ultimate realization.
Segment Information
During the
years ended December 31, 2008, 2007 and 2006, the Company operated in one
reportable business segment, developing nitric oxide-enhancing medicines, under
the management approach of Statement of Financial Accounting Standards No. 131,
Disclosures about Segments of an Enterprise
and Related Information.
Stock-Based Compensation
On January 1,
2006, the Company adopted Statement of Financial Accounting Standards No. 123(R),
Share-Based Payment
(SFAS 123R),
using the modified prospective transition method as permitted under SFAS 123R.
Under this transition method, compensation cost recognized for the years ending
December 31, 2008, 2007 and 2006 is comprised of: (a) compensation cost for all
share-based payments granted prior to but not yet vested as of December 31,
2005, based on the grant-date fair value estimated in accordance with the
provisions of Statement of Financial Accounting Standards No. 123,
Accounting for Stock Based Compensation
(SFAS 123), and (b) compensation cost for all share-based payments granted
subsequent to December 31, 2005, based on the grant-date fair value estimated
in accordance with the provisions of SFAS 123R.
See Note 6 for
additional information relating to stock-based compensation.
New Accounting Standards
In September 2006, the Financial Accounting
Standards Board (FASB) issued Statement of Financial Accounting Standards No.
157,
Fair Value Measurements
(SFAS 157). SFAS 157 defines fair
value, establishes a framework for measuring fair value and expands disclosures
about fair value measurements. In February 2008, FASB issued Staff Position No.
157-2 (FSP 157-2), which delayed the effective date of SFAS 157 for
non-financial assets and non-financial liabilities. The Company adopted the
provisions of SFAS 157 related to financial assets and liabilities and items
that are recognized at fair value on a recurring basis on January 1, 2008. The
partial adoption of SFAS 157 related to financial assets and financial
liabilities did not have a material impact on the Companys results of
operations, financial position or cash flows for the year ended December 31,
2008.
As permitted by FSP No. 157-2, the Company
will not apply the provisions of SFAS 157 to property, plant and equipment
until calendar year 2009. The Company believes the impact of the adoption on January
1, 2009 of the deferred provisions of SFAS 157 will not have a material impact
on the Companys results of operations, financial position or cash flows.
53
Table of Contents
2. Summary of Significant Accounting Policies
(Continued)
New Accounting Standards (Continued)
In February 2007, FASB issued Statement
of Financial Accounting Standards No. 159,
The Fair Value Option for Financial Assets and Financial
Liabilities Including an Amendment of FASB Statement No. 115
(SFAS 159). SFAS 159 permits
companies to choose to measure many financial instruments at fair value, which
are not currently required to be measured as such, at specified election dates
under SFAS 159s fair value option. Unrealized gains and losses on items for
which the fair value option has been elected are reported in earnings at each
subsequent reporting date. SFAS 159 also establishes presentation and
disclosure requirements designed to facilitate comparisons between companies
that choose different measurement attributes for similar types of assets and
liabilities. The Company adopted the provisions of SFAS 159 on January 1,
2008, but did not elect the fair value option for any of the Companys
financial assets and financial liabilities.
3. Cash Equivalents and Marketable Securities
The primary objective of the Companys investment
activities is to preserve principal while at the same time maximizing the
income that the Company receives from the Companys investments without
significantly increasing risk. To achieve this objective, the Company maintains
its portfolio of cash equivalents and marketable securities in a variety of
securities, including U.S. government agencies, corporate notes and bonds,
commercial paper, and money market funds. These securities are classified as
available for sale and consequently are recorded on the balance sheet at fair
value with unrealized gains or losses, other than those determined to be
other-than-temporary impairments, reported as a separate component of
accumulated other comprehensive income (loss). If interest rates rise, the
market value of the Companys investments may decline, which could result in a
realized loss if the Company is forced to sell an investment before its
scheduled maturity. The Company does not utilize derivative financial
instruments to manage its interest rate risks.
The following
is a summary of the fair market value of available-for-sale money market funds
and marketable securities the Company held at December 31, 2008 and 2007:
December 31, 2008
|
|
Amortized
Cost
|
|
Gross
Unrealized
Gains
|
|
Gross
Unrealized
Losses
|
|
Estimated Fair
Value
|
|
Cash and money market funds
|
|
$
|
10,635
|
|
$
|
|
|
$
|
|
|
$
|
10,635
|
|
U.S. Government agencies
|
|
|
|
|
|
|
|
|
|
Due in one year or less
|
|
255
|
|
|
|
|
|
255
|
|
Corporate securities
|
|
|
|
|
|
|
|
|
|
Due in one year or less
|
|
6,527
|
|
28
|
|
|
|
6,555
|
|
Total short-term marketable securities
|
|
$
|
6,782
|
|
$
|
28
|
|
$
|
|
|
$
|
6,810
|
|
Total long-term marketable securities
|
|
$
|
1,550
|
|
$
|
|
|
$
|
(157
|
)
|
$
|
1,393
|
|
December 31, 2007
|
|
Amortized
Cost
|
|
Gross
Unrealized
Gains
|
|
Gross
Unrealized
Losses
|
|
Estimated Fair
Value
|
|
Cash and money market funds
|
|
$
|
8,167
|
|
$
|
|
|
$
|
|
|
$
|
8,167
|
|
U.S. Government agencies
|
|
|
|
|
|
|
|
|
|
Due in one year or less
|
|
799
|
|
|
|
(3
|
)
|
796
|
|
Taxable auction securities
|
|
9,575
|
|
|
|
|
|
9,575
|
|
Tax-free auction securities
|
|
700
|
|
|
|
|
|
700
|
|
Corporate securities
|
|
|
|
|
|
|
|
|
|
Due in one year or less
|
|
9,897
|
|
28
|
|
(1
|
)
|
9,924
|
|
Due in one to three years
|
|
2,234
|
|
4
|
|
|
|
2,238
|
|
Total marketable securities
|
|
$
|
23,205
|
|
$
|
32
|
|
$
|
(4
|
)
|
$
|
23,233
|
|
The Company adopted SFAS 157 on January 1,
2008. The three levels of the fair value hierarchy under SFAS 157 are
described below:
·
Level
1
Observable inputs such as quoted prices in active markets that are
accessible at the measurement date for identical assets or liabilities. The
fair value hierarchy gives the highest priority to Level 1 inputs.
54
Table of Contents
3. Cash Equivalents and Marketable Securities
(Continued)
·
|
|
Level 2
- Other inputs that are observable,
directly or indirectly, such as quoted prices for similar assets and
liabilities or market corroborated inputs.
|
|
|
|
·
|
|
Level 3
- Unobservable inputs used when
little or no market data is available and require the Company to develop its
own assumptions about how market participants would price the assets or
liabilities. The fair value hierarchy gives the lowest priority to Level 3
inputs.
|
In determining fair value, the Company utilizes valuation techniques
that maximize the use of observable inputs and minimize the use of unobservable
inputs to the extent possible, and also considers counterparty credit risk in
its assessment of fair value.
The following table sets forth, by level
within the fair value hierarchy, a summary of the fair market value of
available-for-sale securities classified as cash equivalents and marketable
securities held at December 31, 2008:
December 31, 2008
|
|
Level 1
|
|
Level 2
|
|
Level 3
|
|
Total
|
|
Cash equivalent available-for-sale
investments
|
|
$
|
8,628
|
|
$
|
|
|
$
|
|
|
$
|
8,628
|
|
U.S. Government agencies
|
|
$
|
|
|
$
|
255
|
|
$
|
|
|
$
|
255
|
|
Corporate securities
|
|
|
|
6,555
|
|
|
|
6,555
|
|
Total short-term marketable securities
|
|
$
|
|
|
$
|
6,810
|
|
$
|
|
|
$
|
6,810
|
|
Long-term marketable securities (1)
|
|
$
|
|
|
$
|
|
|
$
|
1,393
|
|
$
|
1,393
|
|
(1) The Company recorded impairment
charges of $157,000 for the year ended December 31, 2008 related to
certain auction rate securities that are classified as Level 3 securities.
The reconciliation of the Companys assets
measured at fair value on a recurring basis using unobservable inputs (Level 3)
is as follows:
|
|
Auction Rate
Securities
|
|
Balance at January 1, 2008
|
|
$
|
|
|
Transfers to Level 3
|
|
1,550
|
|
Unrealized loss recorded in statement of
operations
|
|
(157
|
)
|
Balance at December 31, 2008
|
|
$
|
1,393
|
|
For available-for-sale securities that utilize Level 1 and, if
applicable, Level 2 inputs, the Company utilizes both direct and indirect
observable price quotes. Due to the lack of market quotes or other inputs that
are observable for certain of the auction rate securities held by the Company,
the Company utilizes valuation models for these securities that rely
exclusively on Level 3 inputs, including those that are based on expected cash
flow streams and collateral values, such as assessments of counterparty credit
quality, default risk underlying the security, discount rates and overall
capital market liquidity. The valuation of the auction rate securities held by
the Company is subject to uncertainties and, therefore, is difficult to
predict. Factors that may impact the Companys valuation for these securities
include changes to credit ratings of the securities and to the underlying
assets supporting those securities, rates of default of the underlying assets,
underlying collateral value, discount rates, counterparty risk and ongoing
strength and quality of market credit and liquidity.
As of December 31, 2008, all marketable
securities held by the Company have maturity dates that range from 2009 to
2045.
As of December 31, 2008, the Company
held approximately $1.6 million of auction rate securities. These auction
rate
securities are comprised of approximately $1.3 million of preferred
stock closed-end fund auction rate securities and a $0.3 million
government-backed student loan auction rate security. Auction rate securities
are securities that are structured to allow for short-term interest rate
resets, but with contractual maturity dates that can be well in excess of ten
years. Auctions have historically provided a liquid market for these
securities. However, beginning in February 2008, the majority of auction
rate securities in the marketplace failed at auction due to sell orders
exceeding buy orders. Such failures resulted in the interest rate on these
securities resetting to predetermined rates within the underlying loan
agreement, which might be higher or lower than the current market rate of
interest. The Companys ability to liquidate its auction rate securities and
fully recover the carrying value of its investments in the near term may be
limited or not exist. In the event that the Company needs to access its
investments in these auction rate securities, the Company will not be able to
do so until a future auction of these investments is successful, the issuer
redeems the outstanding securities, a buyer is found outside the auction
process, or the securities mature, which could be in as
55
Table
of Contents
3. Cash Equivalents and Marketable Securities
(Continued)
many as 37 years. As a result of these factors, the Company recorded
impairment charges of $157,000 for the year ended December 31, 2008,
respectively. The Company estimated the fair value of its auction rate
securities using a discounted cash flow analysis that considered the following
key inputs: (a) the underlying structure of each security; (b) the
present value of future principle and interest payments discounted at rates
considered to reflect the relevant risk associated with each security; (c) the
time horizon that the market value of each security could return to its cost;
and (d) other factors such as the credit rating of the issuer and any
other credit enhancements. The Company may be required to record additional impairment
charges on these investments from time to time.
As of December 31, 2008, the Company
classifies its auction rate securities as long-term marketable securities,
reflecting managements determination that these securities may not be
liquidated within one year due to the auction failures described above. The
Company did not experience any realized losses on sales of auction rate
securities in 2008.
For the year ended December 31, 2008,
the cumulative impairments recorded by the Company include an impairment of
$32,000 on its government-backed student loan auction rate security and an
impairment of $125,000 on its preferred stock closed-end fund auction rate
securities.
4. Accrued Expenses
Accrued
expenses consist of the following:
|
|
December 31,
|
|
|
|
2008
|
|
2007
|
|
Sales and marketing
|
|
$
|
|
|
$
|
304
|
|
Compensation and related benefits
|
|
225
|
|
1,955
|
|
Reimbursements and rebates related to
managed care organizations
|
|
1,025
|
|
1,800
|
|
Product returns reserve
|
|
1,381
|
|
946
|
|
Audit and legal fees
|
|
608
|
|
310
|
|
Other
|
|
505
|
|
1,064
|
|
Total
|
|
$
|
3,744
|
|
$
|
6,379
|
|
5. Restructuring Actions
In the first quarter of 2008, the Company
recorded restructuring charges of $2.7 million, which was comprised of
severance benefits of $2.6 million and impairment charges of $0.1 million
for disposed computer equipment. The severance benefits were recorded in
accordance with Statement of Financial Accounting Standards No. 112,
Employers
Accounting for
Postemployment Benefits
for contractual termination benefits for
certain executives and Statement of Financial Accounting Standards No. 146,
Accounting for Costs Associated with Exit or
Disposal Activities
,
for one-time termination benefits for the remainder of employees terminated. In
conjunction with the January 2008 restructuring, the Company eliminated
approximately 80 positions and discontinued active promotional activities
related to BiDil.
The following table summarizes the activity
as of December 31, 2008 related to the January 2008 restructuring
plan:
|
|
Charge
|
|
Cash
Payments and
Write-offs
|
|
Accrued at
December 31,
2008
|
|
Workforce reduction
|
|
$
|
2,652
|
|
$
|
(2,628
|
)
|
$
|
24
|
|
Impairment
|
|
72
|
|
(72
|
)
|
|
|
Total
|
|
$
|
2,724
|
|
$
|
(2,700
|
)
|
$
|
24
|
|
56
Table of Contents
6. Stockholders Equity
Public
Offerings
In May 2007,
the Company completed a direct offering of shares of its common stock
previously registered under its effective shelf registration statement. Pursuant
to this offering, the Company sold 7.6 million shares of its common stock
to selected institutional investors at a price of $2.60 per share. Proceeds to
the Company from this registered direct offering, net of offering expenses and
placement agency fees, totaled $18.2 million.
In January 2006,
the Company completed a direct offering of shares of its common stock
previously registered under its effective shelf registration statement.
Pursuant to this offering, the Company sold approximately 6.1 million
shares of its common stock to selected institutional investors at a price of
$10.25 per share. Proceeds to the Company from this offering, net of offering
expenses and placement agency fees, totaled $58.5 million.
Stock-Based Compensation
The Company follows
the fair value recognition provisions of SFAS 123R. Compensation cost
recognized subsequent to December 31, 2005 includes: (a) compensation
cost for all stock-based payments granted but not yet vested as of January 1,
2006, based on the grant-date fair value estimated in accordance with the
original provisions of SFAS 123, and (b) compensation cost for all
stock-based payments granted subsequent to January 1, 2006, based on the
grant-date fair value estimated in accordance with the provisions of SFAS 123R.
Such amounts have been reduced by the Companys estimate of forfeitures of all
unvested awards.
For stock
options granted to non-employees, the Company recognizes compensation expense
in accordance with the requirements of Emerging Issues Task Force No. 96-18,
Accounting for Equity Instruments That Are
Issued to Other Than Employees for Acquiring, or in Conjunction with Selling,
Goods or Services
(EITF 96-18)
.
EITF 96-18 requires companies to recognize
compensation expense based on the estimated fair value of options granted to
non-employees over their vesting period, which is generally the service period.
The fair value of unvested non-employee stock awards is re-measured at each
reporting period.
Stock Option Plans.
The Companys Amended and Restated 1993
Equity Incentive Plan (the 1993 Plan), which expired in accordance with its
terms in 2003, provided for the grant of incentive stock options, nonstatutory
stock options and restricted stock awards to purchase up to 2,288,200 shares of
the Companys common stock. Officers, employees, directors, consultants and
advisors of the Company were eligible to receive grants of options under the
1993 Plan at a price not less than 100% (or 110% in the case of incentive stock
options granted to 10% or greater stockholders) of the fair market value of the
Companys common stock, as determined by the Companys Board of Directors, at
the time the option was granted. In May 2003, the Companys stockholders
approved the 2003 Stock Incentive Plan, under which 800,000 shares of common
stock were authorized for issuance. In October 2003, the stockholders of
the Company approved an Amended and Restated 2003 Stock Incentive Plan (the
2003 Plan) which provided, among other things, for an increase of shares
authorized for issuance under the 2003 Plan to 2,500,000. In May 2005, the
stockholders of the Company approved an amendment to the 2003 Plan which
provided for an increase of shares authorized for issuance under the 2003 Plan
to 3,500,000, and the adoption of an evergreen provision that allows for an
annual increase in the number of shares of the Companys common stock available
for issuance under the 2003 Plan. The evergreen provision provides for an
annual increase to be added on the first day of each fiscal year of the Company
during the period beginning in fiscal year 2006 and ending on the second day of
fiscal year 2013. The increase provided by the evergreen provision is equal to
the lesser of (i) 1,400,000 shares of the Companys common stock, (ii) 4%
of the outstanding shares on that date or (iii) an amount determined by
the Companys Board of Directors. Pursuant to the evergreen provision, an
additional 1,219,679 shares of common stock were authorized for issuance under
the 2003 Plan in January 2006, and an additional 1,400,000 shares of
common stock were authorized for issuance under the 2003 Plan in each of January 2007,
January 2008 and January 2009.
While the
Company may grant options to employees that become exercisable at different
times or within different periods, the Company generally has granted options to
employees that are exercisable in equal annual installments of 25% on each of
the first four anniversary dates of the grant.
Employee Stock Purchase Plan.
On August 18, 2003, the Board of Directors
adopted the 2003 Employee Stock Purchase Plan (the ESPP), which allows
eligible employees to purchase common stock at a price per share equal to 85%
of the lower of the fair market value of the common stock at the beginning or
end of each six month period during the term of the ESPP. The first offering
period began on January 1, 2004. In May 2006, the stockholders of the
Company approved an amendment to the ESPP, which provided for an increase of
shares available for issuance under the ESPP to 150,000, and the adoption of an
evergreen provision that allows for an annual increase in the number of
shares of the Companys common stock available for
57
Table of Contents
6. Stockholders Equity (Continued)
Stock-Based Compensation (Continued)
issuance under the ESPP. The
evergreen provision provides for an annual increase to be added on the first
day of each fiscal year of the Company during the period beginning in fiscal
year 2007 and ending on the last day of fiscal year 2010, such increase to be
equal to the lesser of (i) 150,000 shares of the Companys common stock or
(ii) a lesser amount determined by the Companys Board of Directors.
Pursuant to the evergreen provision, an additional 150,000 shares of common
stock were authorized for issuance under the ESPP in each of January 2007,
January 2008 and January 2009.
Grant-date Fair Value.
The fair value of each stock award is estimated
on the grant date using the Black-Scholes option-pricing model. Information
pertaining to stock options and related assumptions are noted in the following
table:
|
|
December 31,
|
|
|
|
2008
|
|
2007
|
|
2006
|
|
Options granted (in thousands)
|
|
385
|
|
960
|
|
3,833
|
|
Weighted-average exercise price of stock
options
|
|
$
|
1.01
|
|
$
|
2.62
|
|
$
|
6.65
|
|
Weighted-average grant date fair-value of
stock options
|
|
$
|
0.67
|
|
$
|
1.61
|
|
$
|
4.14
|
|
Assumptions:
|
|
|
|
|
|
|
|
Volatility
|
|
76
|
%
|
76
|
%
|
74
|
%
|
Risk-free interest rate
|
|
3.1
|
%
|
4.8
|
%
|
4.7
|
%
|
Expected lives
|
|
5.5 years
|
|
4.4 years
|
|
5.4 years
|
|
Dividend
|
|
|
|
|
|
|
|
Volatility is
determined exclusively using historical volatility data of the Companys common
stock based on the period of time since the Companys common stock has been
publicly traded. The risk-free interest rate is based on the U.S. Treasury
yield curve in effect at the time of grant commensurate with the expected life
assumption. The expected life of stock options granted is based exclusively on
historical data and represents the weighted average period of time that stock
options granted are expected to be outstanding. The expected life is applied to
the stock option grant group as a whole, as the Company does not expect
substantially different exercise or post-vesting termination behavior amongst
its employee population.
Stock-Based Compensation Expense.
The Company is using the straight-line
attribution method to recognize stock-based compensation expense. The amount of
stock-based compensation expense recognized during a period is based on the
value of the portion of the awards that are ultimately expected to vest.
SFAS 123R requires forfeitures to be estimated at the time of grant and
revised, if necessary, in subsequent periods if actual forfeitures differ from
those estimates. The term forfeitures is distinct from cancellations or
expirations and represents only the unvested portion of the surrendered
option. The Company has applied an annual forfeiture rate of 7.1% to all
unvested options as of December 31, 2008. This analysis will be
re-evaluated quarterly and the forfeiture rate will be adjusted as necessary.
Ultimately, the actual expense recognized over the vesting period will only be
for those options that vest.
Stock-Based Compensation Activity
.
A summary of the activity under the Companys stock options plans as of December 31,
2008 and changes during the year then ended is presented below:
|
|
Number of
Options
|
|
Weighted-
Average Exercise Price
Per Share ($ )
|
|
Weighted-
Average Remaining
Contractual Term in
Years
|
|
Aggregate Intrinsic
Value ($ )
|
|
Options outstanding at December 31,
2007
|
|
4,748
|
|
6.28
|
|
|
|
|
|
Options granted
|
|
385
|
|
1.01
|
|
|
|
|
|
Options exercised
|
|
(102
|
)
|
0.72
|
|
|
|
|
|
Options canceled
|
|
(2,156
|
)
|
6.76
|
|
|
|
|
|
Options outstanding at December 31,
2008
|
|
2,875
|
|
5.41
|
|
|
|
|
|
Options vested or expected to vest at
December 31, 2008(1)
|
|
2,771
|
|
5.51
|
|
6.1
|
|
|
|
Options exercisable at December 31,
2008
|
|
2,011
|
|
6.38
|
|
5.2
|
|
|
|
(1)
Options
expected to vest is calculated by applying an estimated forfeiture rate to
unvested options.
During the
year ended December 31, 2008, the total intrinsic value of options
exercised (i.e., the difference between the market price at exercise and
the price paid by the employee to exercise the options) was $26,000, and the
total amount of cash received from exercise of these options was $73,000. The
total grant-date fair value of stock options that vested during the year ended December 31,
2008 was $2.1 million.
58
Table of Contents
6. Stockholders Equity (Continued)
Stock-Based Compensation (Continued)
During the
year ended December 31, 2007, the total intrinsic value of options exercised
(i.e., the difference between the market price at exercise and the price
paid by the employee to exercise the options) was $525,000, and the total
amount of cash received from exercise of these options was $311,000. The total
grant-date fair value of stock options that vested during the year ended December 31,
2007 was $5.7 million.
During the
year ended December 31, 2006, the total intrinsic value of options
exercised (i.e., the difference between the market price at exercise and
the price paid by the employee to exercise the options) was $1,887,000, and the
total amount of cash received from exercise of these options was $693,000. The
total grant-date fair value of stock options that vested during the year ended December 31,
2006 was $3.7 million.
As of December 31,
2008, there was $1.7 million of total unrecognized compensation cost
related to unvested stock options. This cost is expected to be recognized over
a weighted average period of 1.6 years.
During 1999
and 2000, the Company granted performance-based options to purchase 75,100 and
100,000 shares of common stock, respectively, with an exercise price of $1.30,
to certain employees, which allow for acceleration of the vesting period upon
the occurrence of certain defined events. Of the 100,000 options granted in
2000, 5,000 options were forfeited in 2002. Based on the terms of the
arrangements, the awards were required to be accounted for as variable, and
compensation expense was measured as the difference between the fair market
value of the Companys common stock at the reporting period date and the
exercise price of the award. Compensation expense is recognized over the
vesting period. In connection with the adoption of SFAS 123R, these awards
became fixed and their associated expense is included in stock-based
compensation expense for the years ended December 31, 2008, 2007 and 2006.
During 2003
and 2002, the Company granted options to purchase 413,250 and 241,000 shares of
common stock, respectively, to employees at exercise prices below the deemed
fair value for accounting purposes of the Companys common stock. The weighted
average exercise price of these options is $2.00 per share. The Company
recorded deferred stock compensation expense related to these grants of
$3,317,000 and $566,000 for the years ended December 31, 2003 and 2002,
respectively. These amounts were being recognized as stock-based compensation
expense ratably over the vesting period of four years. In connection with the
adoption of SFAS 123R in January 2006, the Company reversed the
remaining deferred stock compensation balance of $1,208,000. The fair value of
these awards is accounted for in accordance with SFAS 123R, and related
stock compensation expense is included in the statement of operations for the
years ended December 31, 2008, 2007 and 2006.
Since 1999,
the Company has granted options to purchase a total of 201,000 shares of common
stock to nonemployees at a weighted-average exercise price of $3.50 per share,
of which 125,000 remained outstanding at December 31, 2008, and 2007. The
Company has applied the recognition provisions of EITF 96-18 related to
these stock options and utilized the Black-Scholes option pricing model to
determine the fair value of these stock options at each reporting date. In connection
with these awards, the Company recognized a reversal of stock based
compensation expense of $5,000, $26,000 and $239,000 for the years ended December 31,
2008, 2007 and 2006, respectively.
In January 2007,
the Company modified the terms of certain vested stock option awards previously
granted to the Companys former interim president and chief executive officer
in order to extend the term of the exerciseability of the vested portion of the
options from three months following the cessation of employment to five years
following the cessation of employment. As a result of this modification in January 2007,
the Company recorded a stock-based compensation charge of $459,000 in the first
quarter of 2007.
In May 2007,
the Company entered into a Transition Agreement with L. Gordon Letts, Ph.D.,
the Companys former Chief Scientific Officer and Senior Vice President of
Research and Development. Pursuant to the terms of the Transition Agreement,
options previously granted by the Company to Dr. Letts will continue to vest
during a one-year transition period, during which time Dr. Letts will
continue to be an employee of the Company. Pursuant to the terms of the
Transition Agreement, the terms of stock option awards granted to Dr. Letts
were modified in order to extend the term of the exerciseability of the options
from three months following the cessation of employment to two years following
the cessation of the one-year transition period. As a result of this
modification, the Company incurred stock-based compensation charges of $168,000
and $25,000 for the years ended December 31, 2007 and 2008, respectively.
59
Table of Contents
6. Stockholders Equity (Continued)
Stock-Based Compensation (Continued)
In March and
April 2007, the Company entered into restricted stock agreements with
certain executive officers and employees of the Company, pursuant to which
these individuals were granted an aggregate of 734,790 shares of the Companys
common stock under the 2003 Plan, which are subject to forfeiture to the
Company prior to vesting under certain circumstances, including voluntary
separation or termination of employment for cause. The forfeiture provision
lapses as follows: 25% of the shares are no longer subject to forfeiture to the
Company, or vest, on the date that is six months after the grant date; 25%
vest on the first anniversary of the grant date; and 50% vest on the second
anniversary of the grant date. Upon a change in control of the Company or upon
termination of the employees employment without cause, all unvested restricted
shares shall immediately vest in full. The Company recognized stock-based
compensation expense of $980,000 and $801,000 related to these restricted stock
awards for the years ended December 31, 2008 and 2007, respectively. On
the accompanying balance sheets, the number of shares of the Companys common
stock outstanding as of December 31, 2008 does not include 33,333 shares
of unvested restricted common stock.
A summary of the Companys restricted stock
award activity as of December 31, 2008 and changes during the year then
ended is presented below:
|
|
Restricted Shares
Outstanding
|
|
Weighted-Average
Grant Date Fair
Value Per Share ($)
|
|
Non-vested shares outstanding at
December 31, 2007
|
|
452
|
|
3.22
|
|
Awards granted
|
|
|
|
|
|
Restrictions lapsed
|
|
(313
|
)
|
3.22
|
|
Awards forfeited
|
|
(106
|
)
|
3.22
|
|
Non-vested shares outstanding at
December 31, 2008
|
|
33
|
|
3.22
|
|
As of December 31,
2008, there was $22,000 of total unrecognized compensation cost related to
unvested restricted shares, which will be recognized over the remaining vesting
term of 0.2 years.
7. Sublease
In May 2008, the
Company entered into an Assignment of Lease and Assumption Agreement (the
Assignment Agreement) with Cubist Pharmaceuticals, Inc. (Cubist),
pursuant to which the Company assigned to Cubist its lease of approximately
19,815 square feet of office space in Lexington, Massachusetts (the Premises). Concurrent with the execution of the
Assignment Agreement, the Company entered into a Sublease (the Sublease) with
Cubist, pursuant to which the Company agreed to sublease approximately 4,000
square feet of the Premises. The initial term of the Sublease (the
Term) was for three months beginning on June 1, 2008. Upon the
expiration of the Term, the Company has elected to extend the Sublease on a
month-to-month basis subsequent to the expiration of the Term. Pursuant to the
terms of the Sublease, the Company is obligated to pay rent to Cubist in the
amount of approximately $9,200 per month in advance.
8. License, Manufacturing and
Commercialization Agreements
The Company
has entered into various research, license and commercialization agreements to
support its research and development and commercialization activities.
Elan.
In February 2007, in connection with the Companys efforts to
develop BiDil XR, the Company entered into a license agreement with Elan Pharma
International Limited (Elan). Pursuant to the agreement, Elan granted to the
Company an exclusive worldwide license, for the term of the agreement, to
certain know-how, patents and technology, and any improvements to any of the
foregoing developed by either party during the term of the agreement. Pursuant
to this license, the Company has the right to import, use, offer for sale and
sell the oral capsule formulation incorporating specified technology referred
to in the agreement and containing, as its sole active combination of ingredients,
the combination of the active drug substances isosorbide dinitrate and
hydralazine hydrochloride, including BiDil XR. In consideration for the grant
of the license, the Company has agreed to pay Elan royalties that are
calculated by reference to annual net sales parameters set forth in the
agreement. In addition, the Company has also agreed to pay Elan specified
amounts upon the achievement of specified development and commercialization
milestone events of up to $2.5 million of which $250,000 was paid in 2007.
60
Table of Contents
8. License,
Manufacturing and Commercialization Agreements (Continued)
The term of
the agreement runs in the United States from the effective date of the
agreement until the later of (a) the 20th anniversary of the date of
the first sale of the product by us or a permitted sublicensee to an
unaffiliated third party, which is referred to in the agreement as the first in
market sale, or (b) the expiration of the last-to-expire patent for the
product listed in the FDAs Orange Book. Elsewhere in the world, the term
will run on a country by country basis from the effective date of the agreement
until the later of (a) the 20th anniversary of the date of the first
in market sale of the product in the country concerned or (b) the
expiration of the life of the last to expire patent included in the Elan
intellectual property in that country. Following the expiration of the initial
term, the agreement shall continue automatically for rolling 3 year
periods thereafter, unless the agreement has been terminated by either of the
parties by serving 1 years written notice on the other party prior to the
end of the initial term or any such additional 3 year period. Either Elan
or the Company may terminate the agreement in the event of a material, uncured
breach by the other party, or if the other party goes into liquidation or
becomes bankrupt or insolvent. In addition, the Company may terminate the
agreement in the event of a technical failure, which is defined as the
inability to achieve a pharmacokinetic profile for the product consistent with
that of BiDil administered three times daily (at 6 hour intervals). Elan may
terminate the agreement with respect to a particular country in the territory
in the event that the Company does not meet certain obligations set forth in
the agreement with respect to such country, provided that Elan must first
consult with the Company and, if applicable, provide the Company with an
opportunity to meet such obligations prior to exercising Elans termination
rights.
Dr. Jay N. Cohn.
In January 1999, as amended in August 2000,
January 2001, March 2002 and September 2008, the Company entered
into a collaboration and license agreement with Dr. Jay N. Cohn (the
Collaboration Agreement). Under the Collaboration Agreement, Dr. Cohn
licensed to the Company exclusive worldwide royalty-bearing rights to
technology and inventions owned or controlled by Dr. Cohn and that relate
to BiDil for the treatment of cardiovascular disease. The Company has made
milestone payments and is currently making royalty payments to Dr. Cohn
upon sales of BiDil. During the years ended December 31, 2008, 2007 and
2006, the Company incurred royalties to Dr. Cohn in the approximate
amounts of $448,000, $450,000, and $364,000, respectively. The Collaboration
Agreement imposes upon the Company an obligation to use reasonable best efforts
to develop and, upon receipt of regulatory approval, manufacture, market and
commercialize products based upon the licensed rights. If the Company fails to
meet this obligation, Dr. Cohn has the right to terminate the
Collaboration Agreement and the license granted to the Company thereunder. Dr. Cohn
also has the right to terminate the Collaboration Agreement if the Company
materially breaches the Collaboration Agreement and fails to remedy the breach
within 30 days. The Company has the right to terminate the Collaboration
Agreement at any time upon 30 days prior written notice. Unless earlier
terminated, the Collaboration Agreement continues in perpetuity. Pursuant to
the Collaboration Agreement, Dr. Cohn was appointed to the Companys
then-current scientific advisory board, entered into a consulting agreement
with the Company and was granted an option to purchase 10,000 shares of the
Companys common stock.
In September 2008,
the Company entered into a letter agreement with Dr. Cohn (the Letter
Agreement), pursuant to which the Company and Dr. Cohn clarified their
understandings with respect to royalty payments pursuant to the Collaboration
Agreement and the related amendments. The Letter Agreement resolves certain
disputes with regard to the amount of planned costs and excess costs, as those terms
are defined and referred to in the amendments to the Collaboration Agreement
dated January 29, 2001 and March 15, 2002. In addition, the Letter
Agreement clarifies that the Company will pay Dr. Cohn a specified reduced
royalty on net sales of collaboration products (as defined in the Collaboration
Agreement) until such time as the aggregate dollar amount retained by the
Company and not required to be paid to Dr. Cohn as a result of such
reduced royalty rate equals a specified aggregate dollar amount (the Maximum
Amount). Once the Maximum Amount has been achieved, the Company will
resume making royalty payments to Dr. Cohn at the rate specified in the
Collaboration Agreement. Additionally, the Letter Agreement clarifies
that should the Company sublicense its rights under the Collaboration Agreement
to a third party, Dr. Cohn will receive a specified percentage of any
royalty payments the Company receives from the sublicense, and any such
payments made to Dr. Cohn by the Company will also be subject to offset up
to the Maximum Amount. Pursuant to the terms of the Letter Agreement, the
parties agreed to terminate the amendments to the Collaboration Agreement dated
January 29, 2001 and March 15, 2002. In consideration for agreeing to
the terms of the Letter Agreement, the Company made a one time cash payment to Dr. Cohn
in the amount of $800,000. This payment has been included as a component of
cost of product sales in the Companys statement of operations for the year
ended December 31, 2008.
61
Table of Contents
9. Income Taxes
A reconciliation of federal statutory income tax provision to the
Companys actual provision is as follows:
|
|
Year Ended December 31,
|
|
|
|
2008
|
|
2007
|
|
2006
|
|
Benefit at federal statutory tax rate
|
|
$
|
(1,946
|
)
|
$
|
(10,735
|
)
|
$
|
(24,255
|
)
|
State taxes, net of federal benefit
|
|
(201
|
)
|
(1,980
|
)
|
(4,473
|
)
|
Non-deductible expenses
|
|
17
|
|
37
|
|
910
|
|
Unbenefited operating losses
|
|
2,130
|
|
12,678
|
|
27,818
|
|
Income tax provision
|
|
$
|
|
|
$
|
|
|
$
|
|
|
The significant components of the Companys deferred tax assets are as
follows:
|
|
December 31,
|
|
|
|
2008
|
|
2007
|
|
Deferred tax assets:
|
|
|
|
|
|
Net operating loss carryforwards
|
|
$
|
89,887
|
|
$
|
93,535
|
|
Capitalized research costs, net of
amortization
|
|
22,400
|
|
27,049
|
|
Tax credit carryforwards
|
|
7,753
|
|
7,509
|
|
Deferred revenue
|
|
|
|
|
|
Depreciation
|
|
1
|
|
(30
|
)
|
Accrued expenses
|
|
112
|
|
410
|
|
Other
|
|
5,034
|
|
5,571
|
|
|
|
125,187
|
|
134,044
|
|
Valuation allowance
|
|
(125,187
|
)
|
(134,044
|
)
|
Net deferred tax assets
|
|
$
|
|
|
$
|
|
|
The Company has decreased its valuation allowance by approximately
$8.9 million in 2008 as a result of the expiration of certain net
operating loss carryforwards in 2008. At December 31, 2008, the Company
had unused net operating loss carryforwards of approximately $250 million
available to reduce federal taxable income expiring in 2010 through 2025 and
approximately $240 million available to reduce state taxable income
expiring in 2008 through 2010. The Company also has federal and state research
tax credits of approximately $9.0 million available to offset federal and
state income taxes; these credits expire beginning in 2010. No income tax
payments were made in 2008, 2007 or 2006.
Utilization of the net operating losses, (NOLs) and research and
development credit carryforwards may be subject to a substantial annual
limitation under Section 382 of the Internal Revenue Code of 1986 due to
ownership change limitations that have occurred previously or that could occur
in the future. These ownership changes may limit the amount of NOLs and
research and development credit carryforwards that can be utilized annually to
offset future taxable income and tax, respectively. The Company has not
currently completed a study to assess whether an ownership change has occurred,
or whether there have been multiple ownership changes since its formation, due
to the significant complexity and related cost associated with such study.
There also could be additional ownership changes in the future which may result
in additional limitations in the utilization of the carryforward NOLs and
credits.
In June 2006, FASB issued Interpretation No. 48,
Accounting for Uncertainty in Income Taxes, an
interpretation of FAS 109
(FIN 48). This statement
clarifies the criteria that an individual tax position must satisfy for some or
all of the benefits of that position to be recognized in a companys financial
statements. The Company adopted FIN 48 on January 1, 2007. The
implementation of FIN 48 did not have a material impact on the Companys
consolidated financial statements, results of operations or cash flows. At the
adoption date of January 1, 2007, and also at December 31, 2007 and December 31,
2008, the Company had no unrecognized tax benefits. The Company has not, as
yet, conducted a study of its research and development credit carryforwards.
This study may result in an increase or decrease to the Companys research and
development credit carryforwards. However, until a study is completed and any
adjustment is known, no amounts are being presented as an uncertain tax
position under FIN 48. A full valuation allowance has been provided
against the Companys research and development credits and, if an adjustment is
required, this adjustment would be offset by an adjustment to the valuation
allowance. As a result, there would be no impact to the consolidated balance
sheet, statement of operations or cash flows if an adjustment were required.
62
Table of Contents
10. Commitments and Contingencies
In connection with the Companys efforts to obtain the approval of
BiDil from the FDA, the Company contracted with the law firm of
FoxKiser LLC (FoxKiser) for services related to the regulatory approval
process for BiDil. The agreement provided for payment of legal consulting fees
upon receipt of written FDA approval of BiDil. In addition, the agreement
requires the Company to pay royalties to FoxKiser on commercial sales of BiDil.
The royalty term ends six months after the date of market introduction of an
FDA-approved generic version of BiDil. During the years ended December 31,
2008, 2007 and 2006, the Company recorded charges of $-0-, $-0-, and
$0.9 million, respectively, pertaining to the legal consulting fees, and
$448,000, $450,000, and $364,000, respectively, pertaining to royalty expenses
related to this agreement.
On February 16, 2005, the Company engaged Schwarz Pharma
Manufacturing, Inc. (Schwarz Pharma) under a five-year exclusive
manufacturing and supply agreement solely for the three times daily immediate
release dosage formulation of BiDil. Schwarz Pharma is now a division of
UCB S.A. Under the supply agreement, the Company has the right to engage
a
backup manufacturer. At December 31,
2008, the Company has outstanding binding purchase orders of $0.1 million
for production of BiDil finished goods.
11. Retirement Plan
The Company sponsors a 401(k) plan covering substantially all
employees. The plan provides for salary deferral contributions by participants
of up to 75% of eligible wages not to exceed Federal requirements. Those
employees over 50 years old are permitted to contribute an additional
amount per Federal limits ($5,000 per year for 2008). In October 2005, the
Board of Directors approved an employee match in the form of shares of the
Companys common stock equal to 50% of employee contributions, limited to the
first 6% of salary contributed to the 401(k) plan. For the years ended December 31,
2008, 2007, and 2006, the Company recorded expenses of $26,000, $189,000 and
$411,000, respectively, related to the plan.
12. Subsequent Events
Proposed Merger with Deerfield Management
On January 27,
2009, the Company entered into an agreement and plan of merger (the Merger
Agreement) with Deerfield Private Design Fund, L.P., Deerfield Private
Design International, L.P., Deerfield Special Situations Fund, L.P.,
Deerfield Special Situations Fund International Limited, NTMD Parent
Acquisition Corp. and NTMD Acquisition Corp. (collectively, Deerfield
Management). As of the date of the Merger Agreement, Deerfield Management
owned approximately 11% of the Companys outstanding common stock. At the
effective time of the merger with Deerfield Management, each outstanding share
of the Companys common stock will be converted into the right to receive $0.80
per share in cash, subject to adjustment if the Companys net cash balance at
the closing of the merger is greater than or less than $12.3 million, as
calculated pursuant to the terms of the Merger Agreement. In addition, all
outstanding options to purchase the Companys common stock will become
accelerated in full immediately prior to the effective time of the merger. Any
option not exercised prior to the effective time of the merger will be
converted automatically into the right to receive cash in an amount equal to
the excess, if any, of the merger consideration per share of common stock over
the exercise price of the option, multiplied by the number of shares of common
stock underlying the option. The Merger Agreement includes a go-shop
provision that allowed the Company to solicit, negotiate and evaluate competing
acquisition proposals during a post-signing period that ended on February 26,
2009. The Company solicited, but did not receive any alternative acquisition
proposals prior to the termination of the go-shop period. The Company currently
expects to complete the merger with Deerfield Management in the second quarter
of 2009 following the satisfaction or waiver of all conditions to the merger,
including the adoption of the Merger Agreement by the Companys stockholders at
a special meeting of stockholders, which is currently scheduled for April 22,
2009.
The Merger
Agreement contains customary representations, warranties and covenants
including, among others, covenants relating to using commercially reasonable
efforts to obtain the requisite stockholder approval of the merger and related
transactions, as well as the Companys conduct of business during the period
between the date of signing the Merger Agreement and the closing of the merger.
The Companys and Deerfield Managements obligations to consummate the merger
are subject to the satisfaction or waiver of customary conditions, including (1) requisite
approval of the merger by the Companys stockholders, (2) the absence of
any order or injunction preventing the consummation of the merger or any legal
requirement that makes the consummation of the merger illegal, (3) obtaining
any required governmental authorizations or consents and (4) determination
of the Companys final net cash in accordance with the Merger Agreement. Each
partys obligation to consummate the merger is also subject to other specified
customary conditions, including the accuracy of the representations and
warranties of the other party, subject to an overall material adverse effect
qualification, and material compliance by the other party with its covenants.
The Merger Agreement also provides the Company and Deerfield Management with
specified termination rights. If the Merger Agreement is terminated under
specified circumstances, the Company will be required to reimburse Deerfield
Management for its documented fees and expenses associated with the Merger
Agreement and the transactions contemplated thereby, up to a maximum of
$750,000.
63
Table of Contents
12. Subsequent Events (Continued)
Termination
of Proposed JHP and Archemix Transactions
Prior to
entering into the Merger Agreement, the Company terminated its previously
announced Purchase and Sale Agreement (the JHP Agreement) with JHP
Pharmaceuticals, LLC (JHP) and its previously announced Agreement and Plan of
Merger (the Archemix Agreement) with Archemix Corp. (Archemix) in
accordance with the terms of each of those agreements, including the payment of
termination fees. In connection with the termination of the JHP Agreement, the
Company paid a fee of approximately $900,000 to JHP. In connection with the
termination of the Archemix Agreement, the Company paid a fee of $1,500,000 to
Archemix.
Litigation
The Company is aware of a
purported class action lawsuit related to the merger with Deerfield Management
that has been filed against the Company, each of its directors, its president
and chief executive officer and certain of Deerfield Managements affiliates in
Suffolk County Superior Court in Massachusetts. The lawsuit,
Mieczyslaw Stachnik et al. v. Kenneth Bate et al.
, Civil
Action No. 09-0622-BLS, was filed on February 12, 2009 and alleges,
among other things, that the merger consideration to be paid to the Companys
stockholders in the merger is unfair and undervalues the Company. In addition,
the complaint alleges that the Companys directors and its president and chief
executive officer violated their fiduciary duties by, among other things,
failing to maximize stockholder value and failing to engage in a fair sale
process. The complaint seeks, among other relief, an injunction preventing
completion of the merger or, if the merger is consummated, rescissory damages.
The Company believes that this lawsuit is without merit and plans to defend it
vigorously.
13. Quarterly Results of Operations
(Unaudited)
The following table presents unaudited quarterly financial data of the
Company:
|
|
Year Ended December 31, 2008
|
|
|
|
First Quarter
|
|
Second
Quarter
|
|
Third Quarter
|
|
Fourth
Quarter
|
|
Net revenues
|
|
$
|
3,933
|
|
$
|
3,831
|
|
$
|
4,003
|
|
$
|
3,153
|
|
Gross profit
|
|
2,954
|
|
3,295
|
|
$
|
2,574
|
|
$
|
2,646
|
|
Net (loss) income
|
|
(5,184
|
)
|
982
|
|
(390
|
)
|
(1,325
|
)
|
Basic and diluted net loss per share
|
|
$
|
(0.11
|
)
|
$
|
0.02
|
|
$
|
(0.01
|
)
|
$
|
(0.03
|
)
|
Weighted average common shares used to
compute net loss per share:
|
|
|
|
|
|
|
|
|
|
Basic
|
|
45,792
|
|
46,029
|
|
46,042
|
|
46,042
|
|
Diluted
|
|
45,792
|
|
46,033
|
|
46,042
|
|
46,042
|
|
|
|
Year Ended December 31, 2007
|
|
|
|
First Quarter
|
|
Second
Quarter
|
|
Third Quarter
|
|
Fourth
Quarter
|
|
Net revenues
|
|
$
|
3,568
|
|
$
|
3,715
|
|
$
|
3,759
|
|
$
|
4,977
|
|
Gross profit
|
|
2,614
|
|
3,078
|
|
3,199
|
|
2,892
|
|
Net loss
|
|
(10,114
|
)
|
(6,236
|
)
|
(8,354
|
)
|
(6,870
|
)
|
Basic and diluted net loss per share
|
|
$
|
(0.27
|
)
|
$
|
(0.16
|
)
|
$
|
(0.18
|
)
|
$
|
(0.15
|
)
|
Weighted average common shares used to
compute net loss per share
|
|
37,263
|
|
40,100
|
|
45,180
|
|
45,322
|
|
64
Table of Contents
ITEM 9.
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
ITEM 9A.
CONTROLS AND PROCEDURES
(a)
Evaluation of Disclosure Controls and Procedures.
Our chief executive officer and interim chief
financial officer evaluated the effectiveness of our disclosure controls and procedures
as of December 31, 2008. The term disclosure controls and procedures, as
defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act,
means controls and other procedures of a company that are designed to ensure
that information required to be disclosed by a company in the reports that it
files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the SECs 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 Exchange Act is
accumulated and communicated to the companys management, including its
principal executive and principal financial officers, as appropriate to allow
timely decisions regarding required disclosure. Management recognizes that any
controls and procedures, no matter how well designed and operated, can provide
only reasonable assurance of achieving their objectives and management
necessarily applies its judgment in evaluating the cost-benefit relationship of
possible controls and procedures. Based on the evaluation of our disclosure
controls and procedures as of December 31, 2008, our chief executive
officer and interim chief financial officer concluded that, as of such date,
our disclosure controls and procedures were effective at the reasonable
assurance level.
(b)
Managements Report on Internal Control Over
Financial Reporting.
Managements Report on Internal Control Over
Financial Reporting
Our management 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 Exchange Act as a process designed by, or under the supervision of,
the companys principal executive officer and principal financial officer and
effected by the companys 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;
·
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 companys 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.
Our management assessed the effectiveness of our internal control over
financial reporting as of December 31, 2008. In making this assessment,
the companys management used the criteria set forth by the Committee of
Sponsoring Organizations of the Treadway Commission (COSO) in Internal
Control-Integrated Framework.
Based on this assessment, our management concluded that, as of December 31,
2008, our internal control over financial reporting is effective based on those
criteria.
This report does not include an attestation report of our independent
registered public accounting firm regarding internal control over financial
reporting. Managements report was not subject to attestation by our
independent registered public accounting firm pursuant to temporary rules of
the Securities and Exchange Commission that permit us to provide only
managements report in this annual report.
65
Table of Contents
(c) Changes in Internal Controls.
No change in our internal control over financial reporting occurred
during the fiscal year ending December 31, 2008 that has materially
affected, or is reasonably likely to materially affect, our internal control
over financial reporting.
ITEM 9B.
OTHER INFORMATION
None.
66
Table of Contents
PART III
ITEM 10.
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
Directors and Executive Officers
Information regarding our directors and executive officers may be found
under the captions Election of Directors, Executive Officers and Corporate
Governance in the Proxy Statement for our 2009 Annual Meeting of Stockholders.
Such information is incorporated herein by reference.
Audit Committee
We have a separately-designated standing Audit Committee established in
accordance with Section 3(a)(58)(A) of the Exchange Act. Additional
information regarding the Audit Committee may be found under the captions
Board of Directors Meetings, Committees and Attendance and Report of the
Audit Committee in the Proxy Statement for our 2009 Annual Meeting of
Stockholders. Such information is incorporated herein by reference.
Audit Committee Financial Expert
The Board of Directors has determined that it has at least one Audit
Committee Financial Expert (as defined by Item 407(d)(5) of
Regulation S-K of the Exchange Act) on the Audit Committee of the Board of
Directors, Davey S. Scoon. The Board of Directors has further determined that Mr. Scoon
is independent from management within the meaning of Item 7(d)(3)(iv) of
Schedule 14A under the Exchange Act.
Section 16(a) Beneficial Ownership
Reporting Compliance
Information regarding Section 16(a) Beneficial Ownership
Reporting Compliance may be found under the caption Section 16(a) Beneficial
Ownership Reporting Compliance in the Proxy Statement for our 2009 Annual
Meeting of Stockholders. Such information is incorporated herein by reference.
Code of Business Conduct and Ethics
We have adopted a code of business conduct and ethics, which applies to
all of our officers, directors and employees, including our principal executive
officer, principal financial officer, principal accounting officer or
controller, or persons performing similar functions. Our code of business
conduct and ethics was filed with the SEC as an exhibit to our annual report on
Form 10-K for the fiscal year ended December 31, 2003. In addition,
we intend to post on our website, which is located at www.nitromed.com, all
disclosures that are required by law or NASDAQ Stock Market listing standards
concerning any amendments to, or waivers from, any provision of our code of
business conduct and ethics.
ITEM 11.
EXECUTIVE COMPENSATION
Information with respect to this item may be found under the caption
Compensation of Executive Officers and Directors, including but not limited
to the sub-captions Compensation Discussion and Analysis, Compensation of
Directors, and Compensation Committee Interlocks and Insider Participation,
in the Proxy Statement for our 2009 Annual Meeting of Stockholders. Such
information is incorporated herein by reference.
ITEM 12.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND
RELATED STOCKHOLDER MATTERS
Information with respect to this item may be found under the caption
Stock Ownership of Certain Beneficial Owners and Management in the Proxy
Statement for our 2009 Annual Meeting of Stockholders. Such information is
incorporated herein by reference.
ITEM 13.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
Information with respect to this item may be found under the captions
Transactions with Related Persons, Policies and Procedures for Related
Person Transactions, and Board Determination of Independence in the Proxy
Statement for our 2009 Annual Meeting of Stockholders. Such information is
incorporated herein by reference.
67
Table of Contents
ITEM 14.
|
|
PRINCIPAL ACCOUNTING FEES AND SERVICES
|
Information with respect to this item may be found under the caption
Audit Fees in the Proxy Statement for our 2009 Annual Meeting of
Stockholders. Such information is incorporated herein by reference.
PART IV
ITEM 15.
|
|
EXHIBITS, FINANCIAL STATEMENT SCHEDULES
|
|
|
|
(a)(1)
|
|
Financial
Statements.
|
|
|
For a list of the financial information included herein, see Index
to Financial Statements on page 50.
|
(a)(2)
|
|
Financial
Statement Schedules.
|
|
|
All schedules are omitted because they are not applicable or the
required information is shown in the Financial Statements or Notes thereto.
|
(a)(3)
|
|
Exhibits.
The list of Exhibits filed as a part of this Annual Report on Form 10-K
are set forth on the Exhibit Index immediately preceding such Exhibits,
and is incorporated herein by this reference.
|
68
Table of Contents
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused this report to
be signed on its behalf by the undersigned.
|
NITROMED, INC.
|
Date:
March 19, 2009
|
By:
|
/s/ KENNETH
M. BATE
|
|
|
Kenneth M.
Bate
President, Chief Executive Officer and Interim Chief Financial Officer
|
Pursuant to the requirements of the Securities Act of 1933, this report
has been signed by the following persons in the capacities and on the dates
indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ KENNETH
M. BATE
|
|
President,
Chief Executive Officer, Interim Chief Financial Officer
|
|
March 19, 2009
|
Kenneth M.
Bate
|
|
and Director
(Principal Executive Officer and Principal Financial Officer)
|
|
|
|
|
|
|
|
/s/ ROBERT
S. COHEN
|
|
Director
|
|
March 19, 2009
|
Robert S.
Cohen
|
|
|
|
|
|
|
|
|
|
/s/ FRANK L.
DOUGLAS, M.D., PH.D.
|
|
Director
|
|
March 19, 2009
|
Frank L.
Douglas, M.D., Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/ ZOLA
HOROVITZ, PH.D.
|
|
Director
|
|
March 19, 2009
|
Zola
Horovitz, Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/ ARGERIS KARABELAS, PH.D.
|
|
Director
|
|
March 19, 2009
|
Argeris Karabelas, Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/ MARK
LESCHLY
|
|
Director
|
|
March 19, 2009
|
Mark Leschly
|
|
|
|
|
|
|
|
|
|
/s/ JOHN W.
LITTLECHILD
|
|
Director
|
|
March 19, 2009
|
John W.
Littlechild
|
|
|
|
|
|
|
|
|
|
/s/ JOSEPH
LOSCALZO, M.D., PH.D.
|
|
Director
|
|
March 19, 2009
|
Joseph
Loscalzo, M.D., Ph.D.
|
|
|
|
|
|
|
|
|
|
/s/ DAVEY S.
SCOON
|
|
Director
|
|
March 19, 2009
|
Davey S.
Scoon
|
|
|
|
|
|
|
|
|
|
/s/
CHRISTOPHER J. SOBECKI
|
|
Director
|
|
March 19, 2009
|
Christopher
J. Sobecki
|
|
|
|
|
69
Table of Contents
EXHIBIT INDEX
Exhibit No.
|
|
Description
|
2.1
|
|
Agreement and Plan of
Merger, dated as of January 27, 2009, by and among NitroMed, Inc.,
Deerfield Private Design Fund, L.P., Deerfield Private Design
International, L.P., Deerfield Special Situations Fund, L.P.,
Deerfield Special Situations Fund International Limited, NTMD Parent
Acquisition Corp. and NTMD Acquisition Corp. (Incorporated by reference to
the exhibits to NitroMed, Inc.s Current Report on Form 8-K filed
on January 28, 2009 (File No. 000-50439))
|
3.1
|
|
Restated Certificate of
Incorporation of NitroMed, Inc. (Incorporated by reference to the
exhibits to NitroMed, Inc.s Registration Statement on Form S-1
(File No. 333-108104))
|
3.2
|
|
Amended and Restated
Bylaws of NitroMed, Inc. (Incorporated by reference to the exhibits to
NitroMed, Inc.s Registration Statement on Form S-1 (File
No. 333-108104))
|
*10.1
|
|
Amended and Restated 1993
Equity Incentive Plan (Incorporated by reference to the exhibits to
NitroMed, Inc.s Registration Statement on Form S-1 (File
No. 333-108104))
|
*10.2
|
|
Amended and Restated 2003
Stock Incentive Plan, as amended (Incorporated by reference to the exhibits
to NitroMed, Inc.s Annual Report on Form 10-K for the year ended
December 31, 2006 (File No. 000-50439))
|
*10.3
|
|
Form of Incentive
Stock Option Agreement Granted Under Amended and Restated 2003 Stock
Incentive Plan (Incorporated by reference to the exhibits to
NitroMed, Inc.s Annual Report on Form 10-K for the year ended
December 31, 2004 (File No. 000-50439))
|
*10.4
|
|
Form of Nonstatutory
Stock Option Agreement Granted Under Amended and Restated 2003 Stock
Incentive Plan (Incorporated by reference to the exhibits to
NitroMed, Inc.s Annual Report on Form 10-K for the year ended
December 31, 2004 (File No. 000-50439))
|
*10.5
|
|
Form of Restricted
Stock Agreement Granted Under Amended and Restated 2003 Stock Incentive Plan
entered into between NitroMed, Inc. and certain of NitroMed, Inc.s
executive officers, together with a schedule of such officers (Incorporated
by reference to the exhibits to NitroMed, Inc.s Current Report on
Form 8-K filed on March 22, 2007 (File No. 000-50439))
|
*10.6
|
|
2003 Employee Stock
Purchase Plan, as amended (Incorporated by reference to the exhibits to
NitroMed, Inc.s Annual Report on Form 10-K for the year ended
December 31, 2006 (File No. 000-50439))
|
10.7
|
|
Collaboration and License
Agreement between NitroMed, Inc. and Professor Jay N. Cohn dated
January 22, 1999, as amended January 29, 2001 and March 15,
2002 (Incorporated by reference to the exhibits to NitroMed, Inc.s
Registration Statement on Form S-1 (File No. 333-108104))
|
10.8
|
|
Amendment No. 1 to
Collaboration and License Agreement between NitroMed, Inc. and Professor
Jay N. Cohn dated August 10, 2000 (Incorporated by reference to the
exhibits to NitroMed, Inc.s Annual Report on Form 10-K for the
year ended December 31, 2004 (File No. 000-50439))
|
10.9
|
|
Letter Agreement
between NitroMed, Inc. and Jay N. Cohn, M.D., dated as of
September 5, 2008 (Incorporated by reference to the exhibits to NitroMed, Inc.s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2008 (File No. 000-50439))
|
10.10
|
|
Agreement between
NitroMed, Inc. and FoxKiser dated April 26, 2001 (Incorporated by
reference to the exhibits to NitroMed, Inc.s Registration Statement on
Form S-1 (File No. 333-108104))
|
10.11
|
|
Supply Agreement between
NitroMed, Inc. and Schwarz Pharma Manufacturing, Inc. dated as of
February 16, 2005 (Incorporated by reference to the exhibits to
NitroMed, Inc.s Annual Report on Form 10-K for the year ended
December 31, 2004 (File No. 000-50439))
|
*10.12
|
|
Amended and Restated
Executive Severance Benefit Plan (Incorporated by reference to the exhibits
to NitroMed, Inc.s Current Report on Form 8-K filed on
December 31, 2008 (File No. 000-50439))
|
*10.13
|
|
Employment Offer Letter
between NitroMed, Inc. and Kenneth M. Bate, dated as of January 19,
2007 (Incorporated by reference to the exhibits to NitroMed, Inc.s
Current Report on Form 8-K filed on January 25, 2007 (File
No. 000-50439))
|
*10.14
|
|
Retention Agreement
between NitroMed, Inc. and Kenneth M. Bate, dated as of January 23,
2007 (Incorporated by reference to the exhibits to NitroMed, Inc.s
Current Report on Form 8-K filed on January 25, 2007 (File
No. 000-50439))
|
*10.15
|
|
Severance Agreement
between NitroMed, Inc. and Kenneth M. Bate, dated as of January 23,
2007 (Incorporated by reference to the exhibits to NitroMed, Inc.s
Current Report on Form 8-K filed on January 25, 2007 (File
No. 000-50439))
|
*10.16
|
|
Retention Agreement
between NitroMed, Inc. and Kenneth M. Bate, dated as of January 15,
2008 (Incorporated by reference to the exhibits to NitroMed, Inc.s
Current Report on Form 8-K filed on January 17, 2008 (File
No. 000-50439))
|
*10.17
|
|
Letter Agreement between
NitroMed, Inc. and Kenneth M. Bate, dated as of December 29, 2008
(Incorporated by reference to the exhibits to NitroMed, Inc.s Current
Report on Form 8-K filed on December 31, 2008 (File
No. 000-50439))
|
*10.18
|
|
Letter Agreement between
NitroMed, Inc. and Kenneth M. Bate, dated as of February 23, 2009
(Incorporated by reference to the exhibits to NitroMed, Inc.s Current
Report on Form 8-K filed on February 26, 2009 (File
No. 000-50439))
|
Table of Contents
*10.19
|
|
Consulting Agreement
between NitroMed, Inc. and Jane A. Kramer, dated as of October 31,
2008 (Incorporated by reference to the exhibits to NitroMed, Inc.s
Quarterly Report on Form 10-Q for the quarter ended September 30,
2008 (File No. 000-50439))
|
10.20
|
|
License Agreement between
NitroMed, Inc. and Elan Pharma International Limited, dated as of
February 9, 2007 (Incorporated by reference to the exhibits to
NitroMed, Inc.s Annual Report on Form 10-K for the year ended
December 31, 2006 (File No. 000-50439))
|
10.21
|
|
Assignment of Lease and
Assumption Agreement between NitroMed, Inc. and Cubist
Pharmaceuticals, Inc., dated as of May 29, 2008 (Incorporated by
reference to the exhibits to NitroMed, Inc.s Current Report on
Form 8-K filed on June 3, 2008 (File No. 000-50439))
|
10.22
|
|
Sublease between
NitroMed, Inc. and Cubist Pharmaceuticals, Inc., dated as of
May 29, 2008 (Incorporated by reference to the exhibits to
NitroMed, Inc.s Current Report on Form 8-K filed on June 3,
2008 (File No. 000-50439))
|
10.23
|
|
Form of
Stockholder Agreement and a schedule of signatories thereto (Incorporated by
reference to the exhibits to NitroMed, Inc.s Current Report on
Form 8-K filed on January 28, 2009 (File No. 000-50439))
|
14.1
|
|
Code of Business Conduct
and Ethics (Incorporated by reference to the exhibits to
NitroMed, Inc.s Annual Report on Form 10-K for the year ended
December 31, 2003 (File No. 000-50439))
|
21.1
|
|
Subsidiaries of
NitroMed, Inc.
|
23.1
|
|
Consent of
Ernst & Young LLP, Independent Registered Public Accounting
Firm
|
31.1
|
|
Certification of the Chief
Executive Officer and Interim Chief Financial Officer pursuant to
Rule 13a-14(a) and 15d-14 of the Securities Exchange Act of 1934,
as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
32.1
|
|
Certification of the Chief
Executive Officer and Interim Chief Financial Officer pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
|
*
Management
contract or compensation plan or arrangement required to be filed as an exhibit
pursuant to Item 15(c) of Form 10-K
Confidential
treatment requested as to certain portions, which portions have been filed
separately with the Securities and Exchange Commission
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