Exhibit 10.2


 


January 15,
2008


 


James
Ham


304
Flagg Hill Road


Boxborough,
MA 01719


 


Dear
Jim:


 


The
purpose of this Retention Agreement (“Agreement”) is to confirm the terms of
your continued employment and retention by NitroMed, Inc. (“NitroMed”).  The economic benefits to be provided to you
under this Agreement are contingent on your agreement to and compliance with
the provisions of this Agreement.  This
Agreement shall have an Effective Date as of January 15, 2008 (the “Effective
Date”).


 


1.             Existing Agreements.  The parties acknowledge that: (i) you
are a participant in the NitroMed, Inc. Executive Severance Benefit Plan, as amended, (the “Executive Severance Plan”) the terms of
which are set out in related Summary Plan Description, and (ii) that you
are party to a Change of Control Agreement (the “Change of Control Agreement”),
the terms of both agreements being incorporated herein by reference.


 


2.             Retention
Benefits.  In addition to the
economic benefits that you are eligible to receive under either the Executive
Severance Benefit Plan or the Change of Control Agreement, as applicable, and as
an incentive for you to remain employed by NitroMed until the earlier of (i) July 15,
2008, (ii) termination of your employment in the sole discretion of
NitroMed (the actual date of separation being deemed the “Separation Date”) or (iii) termination
under the Change of Control Agreement (including, without limitation, a “Good
Reason” termination pursuant to Section 1.4 thereof), NitroMed is also
offering to provide you with the following Retention Benefits:


 


A.            A payment equal to
fifty percent (50%) of your annualized base salary for a six month period.


 


B.            Eligibility to receive up to one hundred (100%) of your target 2008
bonus, pro-rated for six (6) months, which such bonus would be paid to you
solely at the discretion of NitroMed’s Board of Directors.(1)


 


Such
sums shall be paid in a lump-sum (less applicable state and federal taxes)
within ten (10) days of the earlier of any of the events identified
above.  In order to receive the Retention
Benefits set forth in this Section, you must remain employed by NitroMed as set
forth in this Section, and you further must at


 






(1)           By way of example, if your annualized
salary is $200,000.00, your retention payment would be $50,000.00, and if your
annualized bonus target is $80,000.00, the pro-rated bonus for which you would
be eligible is $40,000.00, all less applicable state and federal taxes.


 

















 


that
time execute an agreement which will contain, among other provisions, a
complete release of all claims against NitroMed.


 


3.             Other Agreements
By You.


 


(i)            You hereby reaffirm your obligations
set forth in the NitroMed, Inc. Inventions and Non-Disclosure Agreement
previously executed between NitroMed and you (a copy of such agreement is being
provided to you concurrently with this Agreement), which agreement is
incorporated herein by reference.  You
further agree to abide by any and all common law and/or statutory obligations
relating to the protection and non-disclosure of NitroMed’s trade secrets
and/or confidential and proprietary documents and information.


 


(ii)           You agree that during your continuing
employment with NitroMed, and from and after any Separation Date, you will make
yourself available to NitroMed, upon reasonable notice, either by telephone or,
if NitroMed believes necessary, in person to assist NitroMed in any matter
relating to the services performed by you during your employment with NitroMed
including, but not limited to, transitioning your duties.  You further agree that you will cooperate
fully with NitroMed in the defense or prosecution of any claims or actions now
in existence or which may be brought or threatened in the future against or on
behalf of NitroMed, including any claim or action against its directors,
officers and employees.  Your cooperation
in connection with such claims or actions shall include, without limitation,
your being available to meet with NitroMed to prepare for any proceeding, to
provide truthful affidavits, to assist with any audit, inspection, proceeding
or other inquiry, and to act as a witness in connection with any litigation or
other legal proceeding affecting NitroMed. 
NitroMed will reimburse you for all reasonable, documented, out-of-pocket
expenses incurred by you in cooperating with NitroMed pursuant to this Section 3.
You further agree that should an individual representing a party adverse to the
business interests of NitroMed (including, without limitation, anyone
threatening any form of legal action against NitroMed) contact you (directly or
indirectly), you will promptly (within 48 hours) inform Matthew Ebert, Deputy
General Counsel of NitroMed, of that fact.


 


Your breach of any obligation contained in this Section 3 will
constitute a material breach of this Agreement and, in addition to any other
legal or equitable remedy available to NitroMed, will entitle NitroMed to
recover any monies paid to you under Section 2 of this Agreement.


 


4.             Miscellaneous.  Except as expressly provided for herein, this
Agreement supersedes any and all prior oral and/or written agreements, and sets
forth the entire agreement between NitroMed and you in respect of your
retention by NitroMed.  No variations or
modifications hereof shall be deemed valid unless reduced to writing and signed
by NitroMed and you.  This Agreement
shall be deemed to have been made in the Commonwealth of Massachusetts and
shall take effect as an instrument under seal within the Commonwealth of
Massachusetts.  The validity,
interpretation and performance of this Agreement, and any and all other matters
relating to your employment and retention of employment from NitroMed, shall be
governed by, and construed in accordance with, the internal laws of the
Commonwealth of Massachusetts, without giving effect to conflict of law
principles.  Both parties agree that any
action, demand, claim or counterclaim relating to (i) your employment and
any retention of 


 


2

















 


your
employment, and (ii) the terms and provisions of this Agreement or to its
breach, shall be commenced in the Commonwealth of Massachusetts in a court of
competent jurisdiction.  Both parties
further agree that any such action, demand, claim or counterclaim shall be
tried by a judge alone, and both parties hereby waive and forever renounce the
right to a trial before a civil jury. 
The provisions of this Agreement are severable, and if for any reason
any part hereof shall be found to be unenforceable, the remaining provisions
shall be enforced in full.


 


It is NitroMed’s desire and intent to make certain that you fully
understand the provisions and effects of this Agreement.  To that end, you have been encouraged and
given an opportunity to consult with legal counsel. By executing this
Agreement, you are acknowledging that you have been afforded sufficient time to
understand the provisions and effects of this Agreement and to consult with
legal counsel, that your agreements and obligations under this Agreement are
made voluntarily, knowingly and without duress and that neither NitroMed nor
its agents or representatives have made any representations inconsistent with
the provisions of this Agreement.


 


If the foregoing correctly
sets forth our arrangement, please sign, date and return the enclosed copy of
this Agreement to me.


 


NitroMed, Inc.


 


Sincerely,


 


 


	
  /s/ Kenneth M. Bate

  	
   

  
	
  Kenneth M. Bate

  
	
  By Its: President and Chief Executive Officer

  
	
   

  
	
  Dated: 

  	
  January 15, 2008

  	
   

  
	
   

  
	
  Signed and Agreed To:

  
	
   

  
	
   

  
	
  /s/ James G. Ham, III

  	
   

  
	
   

  
	
  Dated: 

  	
  January 15, 2008

  	
   

  
							



 


3