UNITED
STATES
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SECURITIES AND EXCHANGE COMMISSION
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Washington, D.C. 20549
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SCHEDULE 14A
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(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
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SCHEDULE 14A
INFORMATION
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Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Filed by the Registrant
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Filed by a Party other than the
Registrant
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Check the appropriate box:
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o
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Preliminary Proxy Statement
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o
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Confidential, for
Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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x
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Definitive Additional Materials
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Soliciting Material Pursuant to
§240.14a-12
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NitroMed,
Inc.
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(Name
of Registrant as Specified In Its Charter)
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(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the
appropriate box):
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x
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No fee required.
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Fee computed on table below per
Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to
which transaction applies:
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(2)
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Aggregate number of securities to which
transaction applies:
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(3)
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Per unit price or other underlying
value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth
the amount on which the filing fee is calculated and state how it was
determined):
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(4)
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Proposed maximum aggregate value of
transaction:
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(5)
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Total fee paid:
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o
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Fee paid previously with preliminary
materials.
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Check box if any part of the fee is
offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing
for which the offsetting fee was paid previously. Identify the previous
filing by registration statement number, or the Form or Schedule and the date
of its filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration
Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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NITROMED,
INC.
45
Hayden Avenue, Suite 3000
Lexington,
Massachusetts 02421
On or about March 13, 2009, NitroMed, Inc.
mailed a proxy statement relating to a special meeting of stockholders of
NitroMed to be held at the offices of Wilmer Cutler Pickering Hale and Dorr
LLP, 60 State Street, Boston, Massachusetts 02109, on April 22, 2009,
beginning at 10:00 a.m., local time.
At the special meeting, NitroMed stockholders will be asked to consider
and vote upon a proposal to adopt an Agreement and Plan of Merger, dated as of January 27,
2009, by and among 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.,
NTMD Acquisition Corp. and NitroMed, as it may be amended from time to
time. If the merger agreement is adopted
and the merger described in the merger agreement is completed, NitroMed will
become a wholly owned subsidiary of NTMD Parent Acquisition Corp., and NitroMed
stockholders will be entitled to receive $0.80 in cash, without interest and
subject to adjustment based on, among other things, NitroMeds net cash balance
at closing, for each share of NitroMed common stock that they own.
As disclosed in the definitive proxy statement, on February 12,
2009 a purported class action lawsuit relating to the merger was filed against
NitroMed, each of its directors, its executive officer and Deerfield Management
Company, L.P. and certain of its 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-2, as amended, alleges, among other things,
that the merger consideration to be paid to NitroMed stockholders in the merger
is unfair and undervalues NitroMed. In
addition, the complaint alleges that NitroMeds directors and its executive
officer violated their fiduciary duties by, among other things, failing to
maximize stockholder value, failing to engage in a fair sale process and
failing to provide NitroMed stockholders with a proxy statement adequate to
enable them to cast an informed vote on the proposed merger. NitroMed, its directors and its executive
officer denied the allegations in the complaint.
NitroMed, the other defendants and the plaintiffs
entered into a memorandum of understanding dated as of March 31, 2009
regarding the settlement of the lawsuit.
In connection with the settlement, the parties agreed that NitroMed
would make certain additional disclosures to its stockholders, which are set
forth below. Following the completion of
certain confirmatory discovery by counsel to the plaintiffs, the parties
entered into a stipulation of settlement.
The stipulation of settlement is subject to customary conditions,
including court approval. If the court
approves the settlement, the settlement will resolve all of the claims that
were or could have been brought in the action being settled, including all
claims relating to the merger, the merger agreement and any disclosure made in
connection therewith. In addition, in
connection with the settlement, the parties contemplate that plaintiffs
counsel will petition the court for an award of attorneys fees and expenses not
to exceed $250,000.
The settlement costs, comprised of the attorneys fees
awarded to the plaintiffs counsel and the costs incurred by NitroMed to defend
the lawsuit, will be paid by NitroMed.
We and Deerfield Management have agreed that our net cash balance at
closing will be reduced by $125,000 to account for the settlement costs and
hence reduce the amount received by NitroMed stockholders in the merger. The settlement will not change any of the
other terms of the merger or the merger agreement.
NitroMed and the other defendants vigorously deny all
liability with respect to the facts and claims alleged in the lawsuit and
specifically deny that any further supplemental disclosure was required under
any applicable rule, statute, regulation or law or that the directors failed to
maximize stockholder value by entering into the merger agreement with Deerfield
Management. The settlement is not, and
should not be construed as, an admission of wrongdoing or liability by any
defendant. However, to avoid the risk of
delaying or otherwise imperiling the merger, and to provide additional
information to our stockholders at a time and in a manner that would not cause
any delay of the merger, NitroMed and its directors agreed to the settlement
described above. The parties considered
it desirable that the action be settled to avoid the substantial burden,
expense, risk, inconvenience and distraction of continued litigation and to
fully and finally resolve the settled claims.
ADDITIONAL
DISCLOSURES REQUIRED BY THE SETTLEMENT
Background of the Merger
In addition to the information disclosed on pages 21
through 35 of the proxy statement, NitroMed notes that the strategic
opportunities discussed by the board of directors during their December 4
and 19, 2007 and January 2, 2008 meetings included the possibility of
NitroMed remaining an independent, standalone company, potential strategic
business combinations and the sale of the entire company or all of
substantially all of its assets.
NitroMed also notes that the January 14, 2008
decision of NitroMeds board of directors to engage Cowen and Company, LLC as
NitroMeds financial advisor was the result of a careful review and the
consideration by the board of several national, well-respected investment
banking firms. The board engaged Cowen
because of, among other reasons, its expertise, reputation and familiarity with
NitroMed and the pharmaceutical and biotechnology industry generally and
because its investment banking professionals have substantial experience in
transactions involving a merger, the transfer of control of, or a majority
interest in, a company or a sale of all of substantially all of a companys
assets.
In late January and in February 2008, at the
direction of the board of directors, Cowen had contact with over 80 parties
concerning possible interest in potential strategic transactions with NitroMed,
including potential strategic buyers and merger partners and potential
financial buyers. These parties, the
majority of which were potential strategic buyers or merger partners, were
identified by NitroMed, in consultation with Cowen, as parties likely to
possess the interest, means and resources to complete a strategic transaction
with NitroMed, including large pharmaceutical companies, small and mid-cap
biotechnology and pharmaceutical companies, healthcare investment organizations
and private equity firms.
NitroMed also notes that on several occasions during
its negotiations with JHP regarding the proposed sale of the BiDil and BiDil XR
drug business, including during initial discussions on April 18, 2008,
during the due diligence process in April and May 2008 and during
negotiations in September and October 2008, NitroMed requested that
the proposed transaction be structured as an acquisition of the entire company
through a merger or similar combination.
In each instance, JHP informed NitroMed that it would only proceed with
a transaction to purchase substantially all of the assets of NitroMeds BiDil
and BiDil XR drug business. Furthermore,
JHP specifically excluded from the terms of its purchase and sale agreement
relating to the BiDil and BiDil XR drug business, among other things, any
assumption by JHP of contingent liabilities that may be related to the
commercial sale of BiDil before the closing date of the asset sale. JHP also excluded NitroMeds nitric oxide
research technology platform and related patents from the assets that it would
agree to purchase from NitroMed.
NitroMeds discussions, negotiations and indications
of interests with respect to Strategic Company A, Strategic Company B,
Strategic Company C, Strategic Company D, Strategic Company E, JHP, Archemix
and Deerfield Management disclosed in the proxy statement are the material
discussions, negotiations and indications of interest from November 2007
to April 2, 2009 relating to NitroMeds strategic alternatives, including
the sale of the entire company or the sale of all or substantially all of
NitroMeds assets.
Finally, NitroMed notes that at the direction of the
board of directors and pursuant to the terms of the Deerfield Management merger
agreement, which specifically allowed NitroMed to solicit, negotiate and
evaluate competing acquisition proposals during a go-shop period that ended on February 26,
2009, representatives of Cowen contacted over nine parties identified by
NitroMed, in consultation with Cowen, that had previously expressed an interest
in a strategic transaction with NitroMed, including Strategic Company A,
Strategic Company C, Strategic Company E, JHP and Archemix, to determine
whether there would be any new or renewed interest in acquiring NitroMed. These contacted parties were identified by
NitroMed, in consultation with Cowen, based on their interest, means and
resources to complete a strategic transaction with NitroMed. In addition, NitroMed included in both its January 27,
2009 press release announcing the execution of the Deerfield merger agreement
and its Current Report on Form 8-K filed with the SEC on January 28,
2009 the specific terms of the go-shop provision in the Deerfield merger
agreement so that potentially interested parties were notified that NitroMed
was free to enter discussions during the go-shop period. NitroMed did not receive any alternative
acquisition proposals prior to the termination of the go-shop period on February 26,
2009.
This section should be read in
conjunction with the information disclosed on pages 21 through 35 of the
proxy statement.
2
Reasons for the Merger;
Recommendation of NitroMeds Board of Directors
In addition to the information disclosed on pages 35
through 38 of the proxy statement, NitroMed notes that one of the factors
considered by NitroMeds board of directors in the course of reaching its
determination to approve the merger agreement is NitroMeds ability under the
terms of the merger agreement with Deerfield Management to continue to pursue
the potential sale of NitroMeds nitric oxide research technology platform,
including related patents. This ability to
pursue the potential sale is similar to how the nitric oxide research
technology platform was treated in the subsequently terminated purchase and
sale agreement with JHP, where the nitric oxide research technology platform
was specifically excluded from the assets that JHP agreed to purchase, and in
the subsequently terminated Archemix merger agreement, where the divestiture of
the nitric oxide research technology platform was specifically permitted under
the terms of the merger agreement. Under
the terms of the merger agreement with Deerfield Management, if NitroMed
completes the sale of its nitric oxide technology platform before the closing
of the merger, the aggregate amount of the merger consideration that NitroMed
stockholders will be entitled to receive upon completion of the merger will be
increased by the amount of the proceeds from such sale received by NitroMed
before the closing of the merger with Deerfield Management, not to exceed 2
million. While NitroMed is actively
pursuing the potential sale of its nitric oxide research technology platform
prior to the closing the merger with Deerfield, there can be no assurance that
NitroMed will be able to consummate such a sale prior to the closing of the
merger, if at all.
This section should be read in
conjunction with the information disclosed on pages 35 through 38 of the
proxy statement.
Projections
In addition to the information disclosed on pages 38
through 45 of the proxy statement, NitroMed notes that the internal,
confidential financial analyses and projections prepared by NitroMeds
management and provided solely to Cowen in connection with the preparation and
delivery by Cowen of its fairness opinion were based on numerous uncertainties
that are beyond the control of management including, without limitation,
uncertainties relating to the continued acceptance of BiDil in the marketplace,
especially in light of the absence of any sales and marketing efforts being
undertaken by NitroMed, continued regulatory approvals of BiDil, the
competitive landscape and general economic conditions. NitroMed believes that the financial
projections may not reflect current economic conditions or may not be a
reliable measure of its future performance.
Accordingly, NitroMed believes that disclosure of the financial
projections would not be helpful to stockholders.
This section should be read in
conjunction with the information disclosed on pages 38 through 45 of the
proxy statement.
Opinion of Cowen and Company, LLC
In addition to the information disclosed on pages 38
through 45 of the proxy statement, NitroMed notes the following disclosures.
Summary of Selected
Publicly Traded Company Analyses
Set forth below are the high, mean, median and low of
selected revenue and EBIT multiples of the selected companies that were used in
the analysis of selected publicly traded companies.
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Net Revenue
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EBIT
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2008A
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2009E
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2010E
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2009E
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High
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4.34
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x
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3.74
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x
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2.91
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x
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7.3
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x
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Mean
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2.05
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1.65
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1.26
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5.8
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Median
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1.61
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1.16
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0.96
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6.3
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Low
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0.52
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0.40
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0.40
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3.9
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3
Summary of Selected Precedent Product Transaction
Analyses
Set forth
below are the high, mean, median and low of selected revenue multiples of the
selected precedent product transactions that were used in the analysis of
selected precedent product transactions.
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Net Revenue
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TY-1
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TY
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High
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10.00
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x
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4.87
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x
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Mean
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2.09
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1.81
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Median
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1.36
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1.91
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Low
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0.45
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0.45
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Summary
of Selected Precedent Company Transaction Analyses
Set forth below are the high, mean, median and low of selected revenue multiples
of the selected precedent company transactions that were used in the analysis
of the selected precedent company transactions.
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LTM Revenue
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High
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15.29
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x
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Mean
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4.28
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Median
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4.95
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Low
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0.98
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Cowen provided an opinion to
the board of directors of NitroMed in connection with NitroMeds proposed sale
of assets pursuant to the JHP purchase and sale agreement and acted as
exclusive financial advisor and provided an opinion to the board of directors
of NitroMed in connection with NitroMeds proposed merger pursuant to the
Archemix merger agreement. Pursuant to
the engagement letter with Cowen, Cowen received aggregate fees of $950,000
from NitroMed with respect to financial advisory services, including rendering
fairness opinions and a retainer fee, in connection with the proposed sale of
assets to JHP and the proposed merger with Archemix.
Pursuant to the engagement
letter with Cowen, Cowen was retained as the exclusive financial advisor to the
NitroMed board of directors in connection with the merger with Deerfield
Management and, if the merger is consummated, Cowen will be entitled to receive
a net transaction fee of up to approximately $1,300,000 from NitroMed. NitroMed also paid a fee to Cowen of $375,000
for rendering its opinion to the board of directors in connection with the
proposed merger with Deerfield Management, which fee will be credited against
any transaction fee paid. Additionally,
NitroMed has agreed to reimburse Cowen for its out-of-pocket expenses,
including attorneys fees, and has agreed to indemnify Cowen against certain
liabilities, including liabilities under the federal securities laws. The terms of the fee arrangement with Cowen,
which are customary in transactions of this nature, were negotiated at arms
length between NitroMed and Cowen, and the NitroMed board was aware of the
arrangement, including the fact that a significant portion of the fee payable
to Cowen is contingent upon the completion of the merger.
This
section should be read in conjunction with the information disclosed on pages 38
through 45 of the proxy statement.
IMPORTANT ADDITIONAL INFORMATION FILED WITH THE SEC
NitroMed has filed with the
Securities and Exchange Commission and mailed to its stockholders a definitive
proxy statement in connection with the proposed merger with Deerfield
Management. The proxy statement contains
important information about NitroMed, the proposed merger and related
matters.
Investors
and security holders of NitroMed are urged to read the proxy statement
carefully.
Investors and security holders
are able to obtain free copies of the proxy statement for the proposed merger
and other documents filed with the SEC by NitroMed through the website
maintained by the SEC at www.sec.gov. In
addition, investors and security holders will be able to obtain free copies of
the proxy statement for the proposed merger by contacting NitroMed, Inc.,
Attn: Secretary, 45 Hayden Avenue, Suite 3000, Lexington, MA 02421.
4
NitroMed and its directors and
executive officer may be deemed to be participants in the solicitation of
proxies in respect of the transaction contemplated by the merger agreement with
Deerfield Management. Information
regarding NitroMeds directors and executive officers is contained in NitroMeds
Annual Report on Form 10-K for the fiscal year ended December 31,
2008 and its proxy statement dated April 16, 2008, which are filed with
the SEC, and in NitroMeds definitive proxy statement relating to the proposed
merger with Deerfield Management, which was filed with the SEC on March 13,
2009. As of February 28, 2009,
NitroMeds directors and executive officers, and funds affiliated with such
individuals, owned approximately 33% of NitroMeds common stock. A more complete
description of the interests of NitroMeds directors and officers is available
in the definitive proxy statement relating to the proposed merger with
Deerfield Management.
CAUTIONARY
STATEMENT CONCERNING FORWARD-LOOKING INFORMATION
The information contained in
this document contains forward-looking statement about NitroMeds plans,
objectives, expectations and intentions.
Forward-looking statements include information concerning possible or
assumed future results of operations of NitroMed, the expected settlement of
litigation relating to the merger, the expected completion and timing of the
merger, the anticipated amount of the merger consideration per share of
NitroMed common stock to be received by NitroMeds stockholders pursuant to the
merger, other information relating to the merger, information relating to
NitroMeds consideration of strategic alternatives should the merger not be
completed in a timely manner or at all, and any other statements about NitroMed
managements future expectations, beliefs, goals, plans or prospects. You can identify these statements by words
such as expect, anticipate, intend, plan, believe, seek, estimate,
forecast, potential, contemplate, could, would, may, will and can
or similar words. You should read
statements that contain these words carefully.
They discuss NitroMeds future expectations or state other
forward-looking information, and may involve known and unknown risks over which
NitroMed has no control.
If one or more of these factors
materialize, or if any underlying assumptions prove incorrect, actual results,
performance or achievements may vary materially from any future results,
performance or achievements expressed or implied by these forward-looking
statements. In addition, any forward-looking statements in this proxy statement
represent NitroMeds views only as of the date of this proxy statement and
should not be relied upon as representing NitroMeds views as of any subsequent
date. NitroMed anticipates that subsequent events and developments will cause
its views to change. However, while
NitroMed may elect to update these forward-looking statements publicly at some
point in the future, NitroMed specifically disclaims any obligation to do so,
expect as may be required by law, either as a result of new information, future
events or otherwise.
Additional discussion of
factors that could cause actual results to differ materially from managements
projections, forecasts, estimates and expectations is contained in the proxy statement
under the heading Cautionary Statement Concerning Forward-Looking Information
and in NitroMeds SEC filings.
5
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