Exhibit 10.1


 


January 15,
2008


 


Kenneth
M. Bate


33
Middle Street


Concord,
MA 01742


 


Dear
Ken:


 


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/ Argeris Karabelas

  	
   

  
	
  Argeris Karabelas

  
	
  By Its: Chairman of the Board

  
	
   

  
	
  Dated:

  	
  January 15, 2008

  	
   

  
	
   

  
	
  Signed and Agreed To:

  
	
   

  
	
   

  
	
  /s/ Kenneth M. Bate

  	
   

  
	
   

  
	
  Dated:

  	
  January 15, 2008

  	
   

  
							



 


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