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 into, capital stock of Seller,
or other right to acquire any securities of Seller, other than Seller
Securities adjacent to such Stockholder’s name on Schedule I.


 


(e)           None of the Seller Securities adjacent
to such Stockholder’s name on Schedule I is subject to any
voting trust or other Contract with respect to the voting thereof, and no
proxy, power-of-attorney or other authorization has been granted with respect
to such Seller Securities (except as provided by this Agreement).


 


(f)            Such Stockholder understands and
acknowledges that Buyer is entering into the Purchase Agreement in reliance
upon such Stockholder’s execution, delivery and performance of this Agreement.


 


ARTICLE III

OTHER AGREEMENTS


 


Section 3.1  Limitation
on Transfer; Stop Transfer Order. 
Each Stockholder severally with respect to itself agrees, either
directly or indirectly, (i) not to sell, assign, pledge, encumber,
transfer or otherwise dispose of any Seller Securities or any interest therein,
(ii) not to subject any Seller Securities to any voting trust or other
Contract with respect to the voting thereof, or grant any proxy, power-of-attorney
or other authorization with respect to any Seller Securities or not to enter
into any voting or similar agreement or arrangement with respect to any Seller
Securities (except as provided by this Agreement), and (iii) not to
otherwise knowingly take, or knowingly permit to occur, any other action with
respect to any Seller Securities that would in any way restrict, limit or
interfere with the performance of such Stockholder’s obligations hereunder or
the transactions contemplated hereby.


 


Section 3.2  Additional
Shares.  Each Stockholder severally
with respect to itself agrees (i) to promptly notify Buyer of the number
of any additional Seller Securities acquired by such Stockholder, if any, after
the date hereof and (ii) that any such additional Seller Securities shall
be subject to the terms of this Agreement as though beneficially owned by the
Stockholder on the date hereof.


 


Section 3.3  Stock
Dividends, etc.  In the event of a
stock split, stock dividend or distribution, or any change in the Common Stock
or any other securities of Seller by reason of any split-up, reverse stock
split, recapitalization, combination, reclassification, exchange or the like,
the term “Seller Securities” shall be deemed to refer to and include such
shares as well as any and all securities into which or for which any or all of
such shares may be changed or exchanged or which are issued or received in such
transaction.


 


Section 3.4  Acquisition
Proposals.  Except as otherwise
provided in Section 4.4 of the Purchase Agreement, each Stockholder,
severally, with respect to itself, agrees not to, and such Stockholder shall cause
its Representatives not to: (i) solicit, initiate or knowingly facilitate
or encourage any inquiries or the making of any proposal or offer that
constitutes, or could reasonably be expected to lead to, any Acquisition
Proposal; (ii) enter into, continue or otherwise participate in any
discussions or negotiations regarding, or furnish to any Person any non public
information for the purpose of encouraging or facilitating, any Acquisition
Proposal, or (iii) enter into any agreement or agreement in principle with
any Person that has made an Acquisition Proposal or such a proposal, inquiry or
request or with any of such Person’s Affiliates or subsidiaries or any of its
or their Representatives.


 


Section 3.5  No
Other Relationships.  Each
Stockholder hereby represents to Buyer that, other than the beneficial
ownership of Seller Securities, such Stockholder has no other arrangement or
agreement, whether written or otherwise, with Seller which would prohibit,
restrict or otherwise impair, or is reasonably expected to prohibit, restrict
or otherwise impair, the ability of Seller or any stockholder of Seller,
including such Stockholder, to perform the obligations of such person hereunder
or the Seller under the Purchase Agreement.


 


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Section 3.6  Fiduciary
Duties.  Each Stockholder is signing
this Agreement solely in such Stockholder’s capacity as a beneficial owner of
the Stockholder’s Seller Securities, and, to the extent that such Stockholder
(or an officer or director of such Stockholder) is a director or officer of
Seller, nothing herein shall prohibit, prevent or preclude such officer or
director of Stockholder from taking or not taking any action in his or her
capacity as an officer or director of Seller, to the extent permitted by the
Purchase Agreement.


 


ARTICLE IV

GENERAL


 


Section 4.1  Termination.  This Agreement shall terminate automatically
upon the earliest of (i) the Closing, (ii) the valid termination of
the Purchase Agreement and payment and satisfaction by Seller of all
obligations to Buyer, if any, under Article VIII of the Purchase Agreement
or (iii) February 16, 2009. The termination of this Agreement shall
not affect or limit the liability of each Stockholder for any breach or default
prior to the termination of this Agreement.


 


Section 4.2  Third
Party Beneficiaries.  The terms and
provisions of this Agreement are intended solely for the benefit of Buyer and
its successors and permitted assigns, and no provision of this Agreement is
intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder.


 


Section 4.3  Notices.  All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given,


 




	
  If to Buyer:

  	
   

  	
  Copy to:

  
	
   

  	
   

  	
   

  
	
  JHP Pharmaceuticals, LLC

  	
   

  	
  Blank Rome LLP

  
	
  19 Fox Hedge Road

  	
   

  	
  One Logan Square

  
	
  Saddle River, NJ 07458

  	
   

  	
  Philadelphia, PA 19103

  
	
  Telecopy: 973-658-3580

  	
   

  	
  Telecopy: 215-832-5404

  
	
  Attention: Peter Jenkins, CEO

  	
   

  	
  Attention: James R. Staiger, Esq.

  
	
   

  	
   

  	
   

  
	
  If to Seller:

  	
   

  	
  Copy to

  
	
   

  	
   

  	
   

  
	
  NitroMed, Inc.

  	
   

  	
  WilmerHale

  
	
  45 Hayden Avenue, Suite 300

  	
   

  	
  60 State Street

  
	
  Lexington, MA 02421

  	
   

  	
  Boston, MA 02109

  
	
  Telecopy: 781-274-8080

  	
   

  	
  Telecopy: 617-526-5000

  
	
  Attention: Ken Bate, CEO

  	
   

  	
  Attention: Steven D. Singer, Esq.

  






 


if to the Stockholders, to such address as is
set forth on Schedule I, or such other address or facsimile
number as a party may hereafter specify for the purpose by notice to the other
parties hereto. Each notice, request or other communication shall be effective
only if delivered personally, telecopied (upon telephonic confirmation of
receipt), on the first business day following the date of dispatch if delivered
by a recognized next day courier service or on the third business day following
the date of mailing if delivered by registered or certified mail, return
receipt requested, postage prepaid.


 


Section 4.4  Fees
and Expenses.  Except as otherwise
specifically provided herein and subject to the Purchase Agreement, all fees
and expenses incurred in connection herewith and the transactions contemplated
hereby shall be paid by the party incurring such expenses.


 


Section 4.5  Amendments.  This Agreement may not be amended or modified
other than by an instrument in writing signed by Seller, each Stockholder, and
Buyer.


 


Section 4.6  Successors
and Assigns.  The provisions of this
Agreement shall be binding upon the parties hereto, inure to the benefit of the
parties hereto and their respective successors and assigns. No 


 


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party may assign, delegate or otherwise
transfer any of its rights or obligations under this Agreement without the
consent of the other parties hereto. Any purported assignment in violation
hereof shall be null and void.


 


Section 4.7  Counterparts.  This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.


 


Section 4.8  Governing
Law.  This Agreement shall be
construed in accordance with and governed by the internal Laws of the State of
Delaware applicable to contracts executed and fully performed within the State
of Delaware, notwithstanding any conflict of laws provisions to the contrary.


 


Section 4.9  Enforcement
of Agreement.  The parties
acknowledge and agree that each other party could be damaged irreparably if any
of the provisions of this Agreement are not performed in accordance with their
specific terms. Accordingly, each of the parties agrees that, (i) it will
waive, in any action for specific performance, the defense of adequacy of a
remedy at Law, and (ii) in addition to any other right or remedy to which
the parties may be entitled, at Law or in equity, the parties will be entitled
to seek to enforce any provision of this Agreement by a decree of specific
performance and to temporary, preliminary and permanent injunctive relief to
prevent breaches or threatened breaches of any of the provisions of this
Agreement, without posting any bond or other undertaking.


 


Section 4.10  Jurisdiction.  Except as otherwise expressly provided in
this Agreement, the parties hereto agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or
in connection with, this Agreement or the transactions contemplated hereby
shall be brought exclusively in the Court of Chancery of the State of Delaware
or, if such court does not have jurisdiction over the subject matter of such
proceeding or if such jurisdiction is not available, in the United States
District Court for the District of Delaware, and each of the parties hereby
consents to the exclusive jurisdiction of those courts (and of the appropriate
appellate courts therefrom) in any suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by Law, any objection that it may now
or hereafter have to the laying of the venue of any suit, action or proceeding
in any of those courts or that any suit, action or proceeding that is brought
in any of those courts has been brought in an inconvenient forum. Process in
any suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any of the named courts.
Without limiting the foregoing, each party agrees that service of process on it
by notice as provided in Section 4.3 shall be deemed effective
service of process.


 


Section 4.11  Entire
Agreement.  This Agreement, together
with Schedule I attached hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof.


 


Section 4.12  Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon a determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent possible.


 


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Section 4.13  Headings;
Construction.  The section and
article headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation of this
Agreement. In this Agreement the word “including” shall mean “including without
limitation,” whether or not expressed and any reference herein to a section or
schedule refers to a section or schedule to this Agreement, unless otherwise
stated.


 


* * * * *


 


[The remainder of this page is intentionally left blank.]


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the day and
year first above written.


 


	
  SELLER:

  	
  NITROMED, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kenneth M. Bate

  
	
   

  	
  Name: Kenneth M. Bate

  
	
   

  	
  Title: President, Chief Executive Officer and Interim Chief Financial
  Officer

  
	
   

  	
   

  
	
  STOCKHOLDERS:

  	
   

  
	
   

  	
   

  
	
   

  	
  CC/R HOLDINGS LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David R. Ramsay

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CC/Q PARTNERS LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David R. Ramsay

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CARE CAPITAL INVESTMENTS II LP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David R. Ramsay

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CARE CAPITAL OFFSHORE INVESTMENTS II LP

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David R. Ramsay

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  BUYER

  	
  JHP PHARMACEUTICALS., LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Peter Jenkins

  
	
   

  	
  Name: Peter Jenkins 

  
	
   

  	
  Title: CEO

  
				



 


SIGNATURE PAGE TO VOTING
AGREEMENT


 


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