Exhibit 10.2


NITROMED, INC.


AMENDED AND
RESTATED

2003 STOCK INCENTIVE PLAN








 


1.                  
Purpose


The
purpose of this Amended and Restated 2003 Stock Incentive Plan (the “Plan”) of
NitroMed, Inc., a Delaware  corporation
(the “Company”), is to advance the interests of the Company’s stockholders by
enhancing the Company’s ability to attract, retain and motivate persons who
make (or are expected to make) important contributions to the Company by
providing such persons with equity ownership opportunities and performance-based
incentives and thereby better aligning the interests of such persons with those
of the Company’s stockholders.  Except
where the context otherwise requires, the term “Company” shall include any of
the Company’s present or future parent or subsidiary corporations as defined in
Sections 424(e) or (f) of the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder (the “Code”) and any other business
venture (including, without limitation, joint venture or limited liability company)
in which the Company has a controlling interest, as determined by the Board of
Directors of the Company (the “Board”).


2.                  
Eligibility


All
of the Company’s employees, officers, directors, consultants and advisors are
eligible to be granted options, restricted stock awards, or other stock-based
awards (each, an “Award”) under the Plan. 
Each person who has been granted an Award under the Plan shall be deemed
a “Participant”.


3.                  
Administration and
Delegation


(a)               
Administration by Board of
Directors.  The Plan
will be administered by the Board.  The
Board shall have authority to grant Awards and to adopt, amend and repeal such
administrative rules, guidelines and practices relating to the Plan as it shall
deem advisable.  The Board may correct
any defect, supply any omission or reconcile any inconsistency in the Plan or
any Award in the manner and to the extent it shall deem expedient to carry the
Plan into effect and it shall be the sole and final judge of such
expediency.  All decisions by the Board
shall be made in the Board’s sole discretion and shall be final and binding on
all persons having or claiming any interest in the Plan or in any Award.  No director or person acting pursuant to the
authority delegated by the Board shall be liable for any action or determination
relating to or under the Plan made in good faith.


(b)               
Appointment of Committees.  To the extent permitted by applicable law,
the Board may delegate any or all of its powers under the Plan to one or more
committees or subcommittees of the Board (a “Committee”).  All references in the Plan to the “Board”
shall mean the Board or a Committee of the Board or the executive officers
referred to in Section 3(c) to the extent that the Board’s powers or authority
under the Plan have been delegated to such Committee or executive officers.


(c)               
Delegation to Executive
Officers.  To the
extent permitted by applicable law, the Board may delegate to one or more
executive officers of the Company the power to grant Awards to employees 













or officers of the Company
or any of its present or future subsidiary corporations and to exercise such
other powers under the Plan as the Board may determine, provided that the Board
shall fix the terms of the Awards to be granted by such executive officers
(including the exercise price of such Awards, which may include a formula by
which the exercise price will be determined) and the maximum number of shares
subject to Awards that the executive officers may grant; provided further,
however, that no executive officer shall be authorized to grant Awards to any
“executive officer” of the Company (as defined by Rule 3b-7 under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”)) or to any
"officer" of the Company (as defined by Rule 16a-1 under the Exchange
Act).


4.                  
Stock Available for Awards.  


(a)               
Number of Shares.  Subject to adjustment under Section 8, Awards
may be made under the Plan for up to 2,500,000 shares of common stock, $0.01
par value per share, of the Company (the “Common Stock”). If any Award expires
or is terminated, surrendered or canceled without having been fully exercised
or is forfeited in whole or in part (including as the result of shares of
Common Stock subject to such Award being repurchased by the Company at the
original issuance price pursuant to a contractual repurchase right) or results
in any Common Stock not being issued, the unused Common Stock covered by such
Award shall again be available for the grant of Awards under the Plan, subject,
however, in the case of Incentive Stock Options, to any limitations under the
Code.  Shares issued under the Plan may
consist in whole or in part of authorized but unissued shares or treasury
shares.


(b)               
Per Participant Limit.  Subject to adjustment under Section 8, for
Awards granted after the Common Stock is registered under the Securities
Exchange Act of 1934 (the “Exchange Act”), the maximum number of shares of
Common Stock with respect to which Awards may be granted to any Participant
under the Plan shall be 500,000 per calendar year.  The per Participant limit described in this
Section 4(b) shall be construed and applied consistently with Section 162(m) of
the Code (“Section 162(m)”).  


5.                  
Stock Options


(a)               
General.  The Board may grant options to purchase
Common Stock (each, an “Option”) and determine the number of shares of Common
Stock to be covered by each Option, the exercise price of each Option and the
conditions and limitations applicable to the exercise of each Option, including
conditions relating to applicable federal or state securities laws, as it
considers necessary or advisable.  An
Option which is not intended to be an Incentive Stock Option (as hereinafter
defined) shall be designated a “Nonstatutory Stock Option”.


(b)               
Incentive Stock Options.  An Option that the Board intends to be an
“incentive stock option” as defined in Section 422 of the Code (an “Incentive
Stock Option”) shall only be granted to employees of the Company, and any of
the Company’s present or future parent or subsidiary corporations as defined in
Sections 424(e) or (f) of the Code, and any other entities the employees of
which are eligible to receive Incentive Stock Options under the Code, and shall
be subject to and shall be construed consistently with the requirements of
Section 422 of the Code.  The Company
shall have no liability to a Participant, or any other party, if an Option (or
any part thereof) that is intended to be an Incentive Stock Option is not an
Incentive Stock Option.


(c)               
Exercise Price.  The Board shall establish the exercise price
at the time each Option is granted and specify it in the applicable option
agreement.  



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(d)               
Duration of Options.  Each Option shall be exercisable at such
times and subject to such terms and conditions as the Board may specify in the
applicable option agreement. 


(e)               
Exercise of Option.  Options may be exercised by delivery to the
Company of a written notice of exercise signed by the proper person or by any
other form of notice (including electronic notice) approved by the Board
together with payment in full as specified in Section 5(f) for the number of
shares for which the Option is exercised.


(f)                
Payment Upon Exercise.  Common Stock purchased upon the exercise of
an Option granted under the Plan shall be paid for as follows:


(1)               
in cash or by check, payable
to the order of the Company;


(2)               
except as the Board may, in
its sole discretion, otherwise provide in an option agreement, by (i) delivery
of an irrevocable and unconditional undertaking by a creditworthy broker to
deliver promptly to the Company sufficient funds to pay the exercise price and
any required tax withholding or (ii) delivery by the Participant to the Company
of a copy of irrevocable and unconditional instructions to a creditworthy
broker to deliver promptly to the Company cash or a check sufficient to pay the
exercise price and any required tax withholding;


(3)               
when the Common Stock is
registered under the Exchange Act, by delivery of shares of Common Stock owned
by the Participant valued at their fair market value as determined by (or in a
manner approved by) the Board in good faith (“Fair Market Value”), provided (i)
such method of payment is then permitted under applicable law and (ii) such
Common Stock, if acquired directly from the Company, was owned by the
Participant at least six months prior to such delivery;


(4)               
to the extent permitted by
the Board, in its sole discretion by (i) delivery of a promissory note of the
Participant to the Company on terms determined by the Board, or
(ii) payment of such other lawful consideration as the Board may
determine; or


(5)               
by any combination of the
above permitted forms of payment.


(g)               
Substitute Options.  In connection with a merger or consolidation
of an entity with the Company or the acquisition by the Company of property or
stock of an entity, the Board may grant Options in substitution for any options
or other stock or stock-based awards granted by such entity or an affiliate
thereof.  Substitute Options may be
granted on such terms as the Board deems appropriate in the circumstances,
notwithstanding any limitations on Options contained in the other sections of
this Section 5 or in Section 2.


6.                  
Restricted Stock


(a)               
Grants.  The Board may grant Awards entitling
recipients to acquire shares of Common Stock, subject to the right of the
Company to repurchase all or part of such shares at their issue price or other
stated or formula price (or to require forfeiture of such shares if issued at
no cost) from the recipient in the event that conditions specified by the Board
in the applicable Award are not satisfied prior to the end of the applicable
restriction period or periods established by the Board for such Award (each, a
“Restricted Stock Award”).



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(b)               
Terms and Conditions.  The Board shall determine the terms and
conditions of any such Restricted Stock Award, including the conditions for
repurchase (or forfeiture) and the issue price, if any. 


(c)               
Stock Certificates.  Any stock certificates issued in respect of a
Restricted Stock Award shall be registered in the name of the Participant and,
unless otherwise determined by the Board, deposited by the Participant,
together with a stock power endorsed in blank, with the Company (or its
designee).  At the expiration of the
applicable restriction periods, the Company (or such designee) shall deliver
the certificates no longer subject to such restrictions to the Participant or
if the Participant has died, to the beneficiary designated, in a manner
determined by the Board, by a Participant to receive amounts due or exercise
rights of the Participant in the event of the Participant’s death (the
“Designated Beneficiary”).  In the
absence of an effective designation by a Participant, Designated Beneficiary
shall mean the Participant’s estate.


7.                  
Other Stock-Based Awards


The
Board shall have the right to grant other Awards based upon the Common Stock
having such terms and conditions as the Board may determine, including the
grant of shares based upon certain conditions, the grant of securities
convertible into Common Stock and the grant of stock appreciation rights.


8.                  
Adjustments for Changes in
Common Stock and Certain Other Events


(a)               
Changes in Capitalization.  In the event of any stock split, reverse
stock split, stock dividend, recapitalization, combination of shares,
reclassification of shares, spin-off or other similar change in capitalization
or event, or any distribution to holders of Common Stock other than a normal
cash dividend, (i) the number and class of securities available under this
Plan, (ii) the per Participant limit set forth in Section 4(b), (iii) the
number and class of securities and exercise price per share subject to each
outstanding Option, (iv) the repurchase price per share subject to each
outstanding Restricted Stock Award, and (v) the terms of each other outstanding
Award shall be appropriately adjusted by the Company (or substituted Awards may
be made, if applicable) to the extent the Board shall determine, in good faith,
that such an adjustment (or substitution) is necessary and appropriate.  If this Section 8(a) applies and Section 8(b)
also applies to any event, Section 8(b) shall be applicable to such event, and
this Section 8(a) shall not be applicable.


(b)               
Reorganization Events


(1)               
Definition.  A “Reorganization Event” shall mean:  (a) any merger or consolidation of the
Company with or into another entity as a result of which all of the Common
Stock of the Company is converted into or exchanged for the right to receive
cash, securities or other property, (b) any exchange of all of the Common Stock
of the Company for cash, securities or other property pursuant to a share
exchange transaction, or (c) a liquidation or dissolution of the Company.


(2)               
Consequences of a
Reorganization Event on Options.  Upon the occurrence of a Reorganization
Event, or the execution by the Company of any agreement with respect to a
Reorganization Event, except to the extent specifically provided for in any
agreement evidencing an Option hereunder, the Board shall in its discretion,
take any one or more of the following actions with respect to outstanding
Options:



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(a)               
provide that all outstanding
Options shall be assumed, or equivalent options shall be substituted, by the
acquiring or succeeding corporation (or an affiliate thereof).  For purposes hereof, an Option shall be
considered to be assumed if, following consummation of the Reorganization
Event, the Option confers the right to purchase, for each share of Common Stock
subject to the Option immediately prior to the consummation of the
Reorganization Event, the consideration (whether cash, securities or other
property) received as a result of the Reorganization Event by holders of Common
Stock for each share of Common Stock held immediately prior to the consummation
of the Reorganization Event (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding shares of Common Stock); provided, however, that if the consideration
received as a result of the Reorganization Event is not solely common stock of
the acquiring or succeeding corporation (or an affiliate thereof), the Company
may, with the consent of the acquiring or succeeding corporation, provide for
the consideration to be received upon the exercise of Options to consist solely
of common stock of the acquiring or succeeding corporation (or an affiliate
thereof) equivalent in fair market value to the per share consideration
received by holders of outstanding shares of Common Stock as a result of the
Reorganization Event;


(b)              
upon written notice to the
Participants, provide that all then unexercised Options will become exercisable
in full as of a specified time prior to the Reorganization Event and will
terminate immediately prior to the consummation of such Reorganization Event,
except to the extent exercised by the Participants before the consummation of
such Reorganization Event; or


(c)               
in the event of a
Reorganization Event under the terms of which holders of Common Stock will
receive upon consummation thereof a cash payment for each share of Common Stock
surrendered pursuant to such Reorganization Event (the “Acquisition Price”),
then the Board may provide that all outstanding Options shall terminate upon
consummation of such Reorganization Event and that each Participant shall
receive, in exchange therefor, a cash payment equal to the amount (if any) by
which (A) the Acquisition Price multiplied by the number of shares of Common
Stock subject to such outstanding Options (to the extent then exercisable),
exceeds (B) the aggregate exercise price of such Options.


(3)               
Consequences of a
Reorganization Event on Restricted Stock Awards.  Upon the occurrence of a Reorganization
Event, except to the extent specifically provided for in any agreement
evidencing a Restricted Stock Award hereunder, the repurchase and other rights
of the Company under each outstanding Restricted Stock Award shall inure to the
benefit of the Company’s successor and shall apply to the cash, securities or other
property which the Common Stock was converted into or exchanged 



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for pursuant to such
Reorganization Event in the same manner and to the same extent as they applied
to the Common Stock subject to such Restricted Stock Award.


(4)               
Consequences of a Reorganization
Event on Other Awards.  The
Board shall specify the effect of a Reorganization Event on any other Award
granted under the Plan at the time of the grant of such Award.


9.                  
Repricing of Options.  The Board shall have the authority, at any
time and from time to time, with the consent of the affected option holders, to
amend any or all outstanding options granted under the Plan to provide an
option exercise price per share which may be lower or higher than the original
option exercise price, and/or cancel any such options and grant in substitution
therefor new options covering the same or different numbers of shares of Common
Stock having an option exercise price per share which may be lower or higher
than the exercise price of the canceled options.


10.              
General Provisions
Applicable to Awards


(a)               
Transferability of Awards.  Except as the Board may otherwise determine
or provide in an Award, Awards shall not be sold, assigned, transferred,
pledged or otherwise encumbered by the person to whom they are granted, either
voluntarily or by operation of law, except by will or the laws of descent and
distribution, and, during the life of the Participant, shall be exercisable
only by the Participant.  References to a
Participant, to the extent relevant in the context, shall include references to
authorized transferees.  


(b)               
Documentation.  Each Award shall be evidenced in such form
(written, electronic or otherwise) as the Board shall determine.  Each Award may contain terms and conditions
in addition to those set forth in the Plan.


(c)               
Board Discretion.  Except as otherwise provided by the Plan,
each Award may be made alone or in addition or in relation to any other
Award.  The terms of each Award need not
be identical, and the Board need not treat Participants uniformly.


(d)               
Termination of Status.  The Board shall determine the effect on an
Award of the disability, death, retirement, authorized leave of absence or
other  change in the employment or other
status of a Participant and the extent to which, and the period during which,
the Participant, the Participant’s legal representative, conservator, guardian
or Designated Beneficiary may exercise rights under the Award.


(e)               
Withholding.  Each Participant shall pay to the Company, or
make provision satisfactory to the Board for payment of, any taxes required by
law to be withheld in connection with Awards to such Participant no later than
the date of the event creating the tax liability.  Except as the Board may otherwise provide in
an Award, when the Common Stock is registered under the Exchange Act,
Participants may satisfy such tax obligations in whole or in part by delivery
of shares of Common Stock, including shares retained from the Award creating
the tax obligation, valued at their Fair Market Value; provided, however, that
the total tax withholding where stock is being used to satisfy such tax
obligations cannot exceed the Company’s minimum statutory withholding
obligations (based on minimum statutory withholding rates for federal and state
tax purposes, including payroll taxes, that are applicable to such supplemental
taxable income).  The Company may, to the
extent permitted by law, deduct any such tax obligations from any payment of
any kind otherwise due to a Participant.



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(f)                
Amendment of Award.  The Board may amend, modify or terminate any outstanding
Award, including but not limited to, substituting therefor another Award of the
same or a different type, changing the date of exercise or realization, and
converting an Incentive Stock Option to a Nonstatutory Stock Option, provided
that the Participant’s consent to such action shall be required unless the
Board determines that the action, taking into account any related action, would
not materially and adversely affect the Participant.


(g)               
Conditions on Delivery of
Stock.  The Company will not be obligated
to deliver any shares of Common Stock pursuant to the Plan or to remove
restrictions from shares previously delivered under the Plan until (i) all
conditions of the Award have been met or removed to the satisfaction of the
Company, (ii) in the opinion of the Company’s counsel, all other legal
matters in connection with the issuance and delivery of such shares have been
satisfied, including any applicable securities laws and any applicable stock
exchange or stock market rules and regulations, and (iii) the Participant has
executed and delivered to the Company such representations or agreements as the
Company may consider appropriate to satisfy the requirements of any applicable
laws, rules or regulations.


(h)               
Acceleration.  The Board may at any time provide that any
Award shall become immediately exercisable in full or in part, free of some or
all restrictions or conditions, or otherwise realizable in full or in part, as
the case may be.


(i)                 
Deferred Delivery of Shares Issuable Pursuant to an
Award.  The Board may, at the time any Award is
granted, provide that, at the time Common Stock would otherwise be delivered
pursuant to the Award, the Participant shall instead receive an instrument
evidencing the right to future delivery of Common Stock at such time or times,
and on such conditions, as the Board shall specify.  The Board may at any time accelerate the time
at which delivery of all or any part of the Common Stock shall take place.


11.              
Miscellaneous


(a)               
No Right To Employment or
Other Status.  No person
shall have any claim or right to be granted an Award, and the grant of an Award
shall not be construed as giving a Participant the right to continued
employment or any other relationship with the Company.  The Company expressly reserves the right at
any time to dismiss or otherwise terminate its relationship with a Participant
free from any liability or claim under the Plan, except as expressly provided
in the applicable Award.


(b)               
No Rights As Stockholder.  Subject to the provisions of the applicable
Award, no Participant or Designated Beneficiary shall have any rights as a
stockholder with respect to any shares of Common Stock to be distributed with
respect to an Award until becoming the record holder of such shares.  Notwithstanding the foregoing, in the event
the Company effects a split of the Common Stock by means of a stock dividend
and the exercise price of and the number of shares subject to such Option are
adjusted as of the date of the distribution of the dividend (rather than as of
the record date for such dividend), then an optionee who exercises an Option
between the record date and the distribution date for such stock dividend shall
be entitled to receive, on the distribution date, the stock dividend with
respect to the shares of Common Stock acquired upon such Option exercise,
notwithstanding the fact that such shares were not outstanding as of the close
of business on the record date for such stock dividend.


(c)               
Effective Date and Term of
Plan.  The Plan shall become
effective on the date on which it is adopted by the Board.  No Awards shall be granted under the Plan
after the completion of ten years 



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from the earlier of (i) the
date on which the Plan was adopted by the Board or (ii) the date the Plan was
approved by the Company’s stockholders, but Awards previously granted may
extend beyond that date.


(d)               
Amendment of Plan.  The Board may amend, suspend or terminate the
Plan or any portion thereof at any time, provided that to the extent required
by Section 162(m), no Award granted to a Participant that is intended to comply
with Section 162(m) after the date of such amendment shall become exercisable,
realizable or vested, as applicable to such Award, unless and until such
amendment shall have been approved by the Company’s stockholders as required by
Section 162(m) (including the vote required under Section 162(m)).  


(e)               
Authorization of Sub-Plans.  The Board may from time to time establish one
or more sub-plans under the Plan for purposes of satisfying applicable blue
sky, securities or tax laws of various jurisdictions.  The Board shall establish such sub-plans by
adopting supplements to this Plan containing (i) such limitations on the
Board’s discretion under the Plan as the Board deems necessary or desirable or
(ii) such additional terms and conditions not otherwise inconsistent with the
Plan as the Board shall deem necessary or desirable.  All supplements adopted by the Board shall be
deemed to be part of the Plan, but each supplement shall apply only to
Participants within the affected jurisdiction and the Company shall not be
required to provide copies of any supplement to Participants in any
jurisdiction which is not the subject of such supplement.


(f)                
Governing Law.  The provisions of the Plan and all Awards
made hereunder shall be governed by and interpreted in accordance with the laws
of the State of Delaware, without regard to any applicable conflicts of law.


 


*     *    
*


 


Approved
by the Board of Directors


     August 18, 2003


 


 


Approved
by the Stockholders on


     October 6, 2003


 



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NITROMED, INC.


 


AMENDMENT NO. 1 TO 


AMENDED AND RESTATED 2003 STOCK INCENTIVE PLAN


 


            Pursuant to Section 11(d) of the
Amended and Restated 2003 Stock Incentive Plan (the “Plan”) of NitroMed, Inc.,
a Delaware corporation (the “Company”), the Plan be, and hereby is, amended as
set forth below.  Capitalized terms used
and not defined herein shall have the meanings ascribed to them in the Plan.


            1.         Section 4 of the Plan is hereby deleted
in its entirety and the following is substituted in its place:


 


“4.        Stock Available for Awards.  


 


(a)        Number of Shares.  Subject to adjustment under Section 8, Awards
may be made under the Plan for up to the number of shares of common stock,
$0.01 par value per share, of the Company (the “Common Stock”) that is equal to
the sum of:


 


(1)        3,600,000 shares of Common Stock; plus


 


(2)        an annual increase to be added on the
first day of each of the Company’s fiscal years during the period beginning in
fiscal year 2006 and ending on the second day of fiscal year 2013 equal to the
lesser of (i) 1,400,000 shares of Common Stock, (ii) 4% of the outstanding
shares on such date or (iii) an amount determined by the Board.


 


If
any Award expires or is terminated, surrendered or canceled without having been
fully exercised or is forfeited in whole or in part (including as the result of
shares of Common Stock subject to such Award being repurchased by the Company
at the original issuance price pursuant to a contractual repurchase right) or
results in any Common Stock not being issued, the unused Common Stock covered
by such Award shall again be available for the grant of Awards under the Plan,
subject, however, in the case of Incentive Stock Options, to any limitations
under the Code.  Shares issued under the
Plan may consist in whole or in part of authorized but unissued shares or
treasury shares.


 


(b)        Per Participant Limit.  Subject to adjustment under Section 8, for
Awards granted after the Common Stock is registered under the Securities
Exchange Act of 1934 (the “Exchange Act”), the maximum number of shares of
Common Stock with respect to which Awards may be granted to any Participant
under the Plan shall be 500,000 per calendar year.  The per Participant limit described in this
Section 4(b) shall be construed and applied consistently with Section 162(m) of
the Code (“Section 162(m)”).”


 


            2.         This amendment shall be effective as of
the date approved by the stockholders of the Company.


 


Adopted by the Board of Directors on March 9, 2005


 


Approved by Stockholders on May 16, 2005



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