Exhibit 10.1
VOTING AGREEMENT
This VOTING AGREEMENT (this “
Agreement ”) is entered into as of November 21,
2008 and effective as of November 17, 2008, by and among
NitroMed, Inc., a Delaware corporation (“ Seller
”), and CC/R Holdings LP, CC/Q Partners LP, Care Capital
Investments II LP and Care Capital Offshore Investments II LP (each
a “ Stockholder ” and collectively, the “
Stockholders ”) and JHP Pharmaceuticals, LLC, a
Delaware limited liability company (“ Buyer
”).
INTRODUCTION
A.
Concurrently with the execution and delivery of this Agreement,
Seller and Buyer are entering into a Purchase and Sale Agreement
(the “ Purchase Agreement ”) pursuant to which,
among other things, Seller shall sell, convey, assign, transfer and
deliver to Buyer, and Buyer shall purchase and acquire from Seller,
all of Seller’s right, title and interest in and to all of
the Acquired Assets, free and clear of any and all Security
Interests, and Buyer shall assume from Seller and be responsible
for the Assumed Liabilities. Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such
terms in the Purchase Agreement.
B.
As of the date hereof, each Stockholder is the record and
beneficial owner of that number of shares of common stock of
Seller, $0.01 par value per share (“ Common Stock
”), or any other shares of capital stock of Seller, or any
other securities exercisable or exchangeable for, or convertible
into, capital stock of Seller, or other right to acquire any
securities of Seller, in each case as set forth opposite such
Stockholder’s name on Schedule I attached
hereto (such shares of Common Stock and such other securities
collectively referred to as the “ Existing Securities,
” and together with all additional securities of Seller,
including all additional shares of capital stock of Seller, or any
other securities exercisable or exchangeable for, or convertible
into, capital stock of Seller, or other right to acquire any
securities of Seller, which such Stockholder acquires beneficial
ownership of after the date hereof, collectively referred to as
“ Seller Securities ”). For purposes hereof, the
term “ beneficial owner, ” “ beneficial
ownership ” or “ beneficially own ”
with respect to Seller Securities has the meaning determined
pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the “ Exchange Act
”).
C.
As a condition to, and in reliance upon, entering into the Purchase
Agreement, Buyer has required each Stockholder to agree, and each
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of
the preliminary statements above and of the mutual agreements,
covenants, representations, and warranties contained herein, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto,
each intending to be legally bound, hereby agree as
follows:
ARTICLE I
VOTING MATTERS
Section 1.1 Agreement
to Vote. Each Stockholder severally with respect to
itself covenants and agrees that, at any meeting of the
stockholders of Seller (including the Seller Stockholders’
Meeting) however called, or any adjournment or postponement
thereof, such Stockholder shall (i) appear, in person or by
proxy, or otherwise cause such Stockholder’s Seller
Securities to be duly counted as present thereat for purposes of
establishing a quorum, and (ii) vote (or cause to be voted),
in person or by proxy, or, in case of stockholders’ action
taken by written consent, deliver (or cause to be delivered) a
written consent covering all of the Seller Securities beneficially
owned by such Stockholder as of the applicable record date
(i) in favor of the Voting Proposal and (ii) against any
Acquisition Proposal. Any such vote shall be cast or written
consent shall be given by such Stockholder in accordance with such
procedures relating thereto.
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Section 1.2
Irrevocable Proxy. Each Stockholder hereby
irrevocably appoints Buyer as its proxy and attorney-in-fact to
vote all Seller Securities solely on the matters described in
Section 1.1 (the “ Proxy ”). Each
Stockholder hereby acknowledges and agrees that the Proxy
(i) is given in connection with the execution of the Purchase
Agreement, (ii) is given to secure the performance of such
Stockholders obligations hereunder, and (iii) is coupled with
an interest (for purposes of the Delaware General Corporation Law
and otherwise) and may under no circumstances be revoked. The Proxy
shall automatically terminate without any further action of the
parties upon the valid termination of this Agreement.
Section 1.3 Further
Assurances. From time to time, at Buyer’s request
and without further consideration, each Stockholder, at such
Stockholder’s own expense, agrees to execute and deliver any
other agreement, form or document and take all such further actions
as may be reasonably necessary to carry out and give effect to the
provisions of this Agreement, including the grant of the
Proxy.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1
Stockholder Representations and Warranties. Each
Stockholder severally with respect to itself hereby represents and
warrants to Buyer as follows:
(a)
Such Stockholder is an entity duly organized, validly existing and
in good standing under the Laws of the jurisdiction under which it
was organized. Such Stockholder has all requisite power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder. The execution, delivery and performance of
this Agreement has been duly and validly authorized by the
governing body, if any, of such Stockholder and no other
proceedings on the part of such Stockholder are necessary to
authorize or consummate this Agreement. This Agreement has been
duly and validly executed and delivered by such Stockholder, and
(assuming the due authorization, execution and delivery hereof by
the other parties) constitutes the legal, valid and binding
obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms, except as may be limited
by bankruptcy, insolvency, moratorium, reorganization or similar
laws affecting the rights of creditors generally and of general
principles of equity.
(b)
The execution, delivery and performance by such Stockholder of this
Agreement does not and will not contravene, require any consent or
approval under, conflict with, constitute a violation or breach of,
constitute (with or without notice or lapse of time or both) a
default under, result in or give to any Person any right of payment
or reimbursement, termination, cancellation, modification or
acceleration, loss of a material benefit under or result in the
creation or imposition of any lien upon any of Seller Securities or
other assets or properties of such Stockholder under, any of the
terms, conditions or provisions of (i) the organizational
documents, if any, of such Stockholder, (ii) any Laws binding
upon or applicable to such Stockholder or by which any of its
assets or properties is bound or (iii) any material contract
to which such Stockholder is a party or by which any of its assets
or properties is bound.
(c)
The execution and delivery of this Agreement by such Stockholder
does not, and the performance of this Agreement by such Stockholder
shall not, require any consent, approval, authorization, or filing
with or notification to, any government entity by such Stockholder,
except as may be required under the Exchange Act.
(d)
Such Stockholder (i) is the record and beneficial owner of
Seller Securities adjacent to such Stockholder’s name
on Schedule I , (ii) has good, valid and
marketable title to such Seller Securities free and clear of any
liens, encumbrances, restrictions or claims of any kind (except as
provided by this Agreement) (iii) has sole voting and
dispositive power over such Seller Securities, and (iv) as of
the date hereof, is not directly or indirectly the record or
beneficial owner of any other
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securities of Seller, including all
additional shares of capital stock of Seller, or any other
securities exercisable or exchangeable for, or
convertible
