UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934
Date of Report (Date of earliest event reported):
April 9, 2009
NITROMED,
INC.
(Exact Name of Registrant as Specified in Charter)
Delaware
|
|
000-50439
|
|
22-3159793
|
(State or Other
Jurisdiction of
|
|
(Commission File
Number)
|
|
(IRS Employer
Identification No.)
|
Incorporation)
|
|
|
|
|
|
|
|
|
|
45
Hayden Avenue, Suite 3000
|
|
|
Lexington,
Massachusetts
|
|
02421
|
(Address of Principal
Executive Offices)
|
|
(Zip Code)
|
Registrants telephone number, including area
code:
(781)
266-4000
(Former Name or Former Address, if Changed Since Last
Report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (
see
General
Instruction A.2. below):
¨
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b))
¨
Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item 8.01. Other
Events.
On or about March 13, 2009, NitroMed, Inc.
(NitroMed) 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. NitroMed and Deerfield Management have agreed
that NitroMeds 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 NitroMeds 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.
2
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
3
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.
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.
4
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.
|
|
Net Revenue
|
|
EBIT
|
|
|
|
2008A
|
|
2009E
|
|
2010E
|
|
2009E
|
|
High
|
|
4.34
|
x
|
3.74
|
x
|
2.91
|
x
|
7.3
|
x
|
Mean
|
|
2.05
|
|
1.65
|
|
1.26
|
|
5.8
|
|
Median
|
|
1.61
|
|
1.16
|
|
0.96
|
|
6.3
|
|
Low
|
|
0.52
|
|
0.40
|
|
0.40
|
|
3.9
|
|
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.
|
|
Net Revenue
|
|
|
|
TY-1
|
|
TY
|
|
High
|
|
10.00
|
x
|
4.87
|
x
|
Mean
|
|
2.09
|
|
1.81
|
|
Median
|
|
1.36
|
|
1.91
|
|
Low
|
|
0.45
|
|
0.45
|
|
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.
|
|
LTM Revenue
|
|
High
|
|
15.29
|
x
|
Mean
|
|
4.28
|
|
Median
|
|
4.95
|
|
Low
|
|
0.98
|
|
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
5
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.
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
6
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.
7
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
|
NITROMED, INC.
|
|
|
|
Date: April 9, 2009
|
By:
|
/s/ Kenneth M. Bate
|
|
|
|
|
|
Kenneth M. Bate
President, Chief Executive
Officer and Interim Chief Financial Officer
|
8
Nitromed (MM) (NASDAQ:NTMD)
과거 데이터 주식 차트
부터 5월(5) 2024 으로 6월(6) 2024
Nitromed (MM) (NASDAQ:NTMD)
과거 데이터 주식 차트
부터 6월(6) 2023 으로 6월(6) 2024