Exhibit 10.2


 


CONSULTING AGREEMENT


 


THIS
CONSULTING AGREEMENT (the “Agreement”), made this 31st day of October 2008
(and effective as of April 15, 2008 for purposes of Section 6 hereof),
is entered into by NitroMed, Inc., a Delaware corporation with its principal
place of business at 45 Hayden Avenue, Suite 3000, Lexington,
Massachusetts 02421 (the “Company”), and Jane A. Kramer, having an address of 30
Baskin Road, Lexington, Massachusetts 02421 (“Consultant”), for the purpose of
setting forth the exclusive terms and conditions by which Company desires to
acquire Consultant’s services on a temporary basis.


 


INTRODUCTION


 


WHEREAS, Consultant represents that she
possesses valuable knowledge and experience in providing consulting services of
the kind required by the Company; and


 


WHEREAS, Company desires to obtain Consultant’s
agreement to provide such consulting services for the Company on the
terms and conditions hereinafter set forth.


 


NOW, THEREFORE, in consideration of the
promises and mutual covenants contained herein, Company and Consultant hereby agree
as follows:


 


1.                                       Services.


 


1.1                                 Description of
Services.  Consultant
agrees to perform for Company certain services assigned to Consultant by
Company, in Company’s sole discretion, including, but not limited to, consulting,
advisory and other services related to the Company’s investor relations and
corporate communications functions (the “Services”).  These Services are to be performed by
Consultant only at the specific request of Company and are subject to the
limits specified herein, including without limitation Section 1.2 hereof.


 


1.2.                              Non-competition. During the Term
(as defined below), Consultant shall not engage in any activity that has a
conflict of interest with Company, including any competitive employment,
business, or other activity, and Consultant shall not assist any other person
or organization that competes, or intends to compete, with Company.


 


2.                                       Term.  The term of consultancy shall continue in
force through April 30, 2009 (the “Term”), provided, however, that the
Term may be extended for additional periods of up to three months each with the
written consent of Consultant and Company and, provided further, that the Term
may be sooner terminated pursuant to Section 4.


 


3.                                       Compensation.


 


3.1                                 Fees.  In exchange for the full, prompt, and
satisfactory performance of all Services to be rendered to Company hereunder,
Company shall pay Consultant, as full and complete consideration for Consultant’s
performance of the Services, at a rate of one hundred seventy-five dollars ($175.00)
per hour, payable within thirty (30) days after receipt of Consultant’s invoice,
which shall be sent to: NitroMed, Inc., Attn: Kevin G. Sarney, Controller,
45 Hayden Avenue, Suite 3000, Lexington, MA 02421.  The parties acknowledge and agree that the
compensation set forth herein represents the fair market value of the Services
to be provided by Consultant, negotiated in an arms-length transaction, and has
not been determined in a manner which takes into account the volume or value of
referrals or business, if any, that may otherwise be generated between Company
and Consultant.


 

















 


3.2                                 Reimbursement
of Expenses.  Company
shall reimburse Consultant for all reasonable and necessary expenses incurred
or paid by Consultant in connection with, or related to, the performance of the
Services under this Agreement. 
Consultant shall submit to Company itemized statements, in a form
satisfactory to Company, of such expenses incurred.  Company shall pay to Consultant amounts shown
on each such statement within thirty (30) days after receipt thereof.


 


3.3                                 Benefits.  Consultant shall not be entitled to receive
any other compensation or any benefits, coverages or privileges, including,
without limitation, social security, medical or pension payments, made
available to employees of Company. 
Except as otherwise required by law, Company shall not withhold any sums
or payments made to Consultant for social security or other federal, state or
local tax liabilities or contributions, and all withholdings, liabilities, and
contributions shall be solely Consultant’s responsibility.  Company shall issue a Form 1099 to
Consultant at the appropriate time. 
Further, Consultant understands and agrees that the Services are not
covered under the unemployment compensation laws and are not intended to be
covered by workers’ compensation laws.


 


4.                                       Termination.  Either party may, without prejudice to any
right or remedy it may have due to any failure of the other party to perform
its obligations under this Agreement, terminate the Term upon ten (10) business
days’ prior written notice to the other party. 
In the event of such termination, Consultant shall, upon request,
perform such work as may be requested to transfer work in process to Company or
to a party designated by Company. 
Further, in the event of such termination, Consultant shall be entitled
to payment for Services performed and expenses paid or incurred prior to the
effective date of termination, subject to the limitation on reimbursement of
expenses set forth in Section 3.2. 
Such payments shall constitute full settlement of any and all claims of
Consultant of every description against Company.  Notwithstanding the foregoing, Company may
terminate the Term, effective immediately upon receipt of written notice, if
Consultant breaches or threatens to breach any provision of Section 6.  The provisions of Sections 4, 6, 7 and 12
hereunder shall survive the termination of this Agreement.


 


5.                                       Cooperation.  Consultant shall use its best efforts in the
performance of its obligations under this Agreement.  Company shall provide such access to its
information and property as may be reasonably required in order to permit
Consultant to perform its obligations hereunder.  Consultant shall cooperate with Company’s
personnel, shall not interfere with the conduct of Company’s business and shall
observe all rules, regulations and security requirements of Company and of any
relevant state and federal authorities.


 


6.                                       Inventions and
Proprietary Information.


 


6.1                                 Inventions.


 


(a)                                  All inventions,
discoveries, ideas, computer programs, data, technology, designs, works,
innovations and improvements (whether or not patentable and whether or not
copyrightable) (“Inventions”) arising out of information gained or services
performed under this Agreement, which are made, conceived, reduced to practice,
created, written, designed or developed by Consultant, solely or jointly with
others, and whether during normal business hours or otherwise, during the Term
or thereafter, shall be the sole property of Company.  Consultant hereby assigns to Company all
Inventions and any and all related patents, copyrights, trademarks, trade
names, and other industrial and intellectual property rights and applications therefore,
in the United States and elsewhere, and appoints any officer of Company as its
duly authorized attorney to execute, file, prosecute and protect the same
before any government agency, court or authority.  Consultant also hereby waives all claims to
moral rights in any Inventions.  Upon the
request of Company and at Company’s expense, Consultant shall execute such
further assignments, documents and other instruments as may be necessary or
desirable to fully and completely assign all Inventions to Company and to
assist Company in applying for, obtaining and enforcing patents or copyrights
or other rights in the United States and in any foreign country with respect to
any Invention.  The assignments will
survive the termination of the Term. 
Consultant agrees to assist Company without charge and for as long as
may be 


 

















 


necessary (but at Company’s expense):  (1) to obtain for Company’s benefit,
patents, mask works, trademarks, copyrights and other protection for such
Inventions in all countries, and (2) in any controversy or legal proceeding
relating to Inventions.


 


(b)                                 The Consultant
shall promptly disclose to Company all Inventions and will maintain adequate
and current written records (in the form of notes, sketches, drawings and as
may be specified by Company) to document the conception and/or first actual
reduction to practice of any Invention. 
Such written records shall be available to and remain the sole property
of Company at all times.


 


6.2                                 Proprietary
Information.


 


(a)                                  Consultant
acknowledges that its relationship with Company is one of high trust and
confidence and that in the course of Consultant’s engagement with Company, it
may receive, produce or otherwise be exposed to Company’s Proprietary
Information (as defined herein).  For
purposes of this Agreement, Proprietary Information shall mean Company’s
proprietary or confidential information, including, by way of illustration and
not limitation, all information (whether or not patentable and whether or not
copyrightable) owned, possessed or used by Company, including without limitation,
any Invention, formula, vendor information, customer information, apparatus,
equipment, trade secret, process, research, report, technical data, know-how,
computer program, software, software documentation, hardware design,
technology, marketing or business plan, forecast, unpublished financial
statement, budget, license, price, cost and employee or consultant list that is
communicated to, learned of, developed or otherwise acquired by Consultant in
the course of its Service during the Term, regardless of whether such
information is specifically designated as confidential and regardless of
whether such information is in written, oral, electronic or other form and all
derivatives, improvements and enhancements to any of the above (including those
derivatives, improvements and enhancements that were created or developed by
Consultant under this Agreement) in addition to all information Company
receives from others under an obligation of confidentiality.  Proprietary
Information shall also include all other information considered to be
confidential by Company and all information which has not been made public.


 


(b)                                 Consultant
acknowledges that the Proprietary Information is the sole, exclusive and
extremely valuable property of Company. 
Accordingly, Consultant agrees, during the Term and thereafter, (i) to
hold the Proprietary Information in strict confidence and to protect such
Proprietary Information from disclosure using a reasonable degree of care, (ii) to
segregate all Proprietary Information from information of other companies, (iii) not
to reproduce any Proprietary Information without Company’s prior written
consent, (iv) not to use the Proprietary Information except in the
performance of this Agreement, (v) not to use the Proprietary Information
for its own benefit or the benefit of any person or entity other than Company,
and (vi) not to divulge all or any part of the Proprietary Information in
any form to any third party.


 


(c)                                  Consultant’s
obligations under this Section 6.2 shall not apply to any information that
(i) is or becomes known to the general public under circumstances
involving no breach by Consultant or others of the terms of this Section 6.2,
(ii) is generally disclosed to third parties by Company without
restriction on such third parties, or (iii) is approved for release by
written authorization of the Board of Directors of Company.


 


(d)                                 Upon
termination or expiration of this Agreement for any reason, or at any time upon
request by Company, Consultant agrees to cease using and to promptly return to
Company all whole and partial copies and derivatives of the Proprietary
Information and any other information relating to the business of Company,
whether in Consultant’s possession or under Consultant’s direct or indirect
control.


 


(e)                                  Consultant
shall not disclose or otherwise make available to Company in any manner any
confidential and proprietary information or any trade secrets received by
Consultant from 


 

















 


third
parties. Consultant warrants and represents that its performance of all the
terms of this Agreement does not and will not breach any agreement entered into
by Consultant with any other party, and Consultant agrees not to enter into any
agreement, oral or written, in conflict herewith.  In addition, Consultant recognizes that Company
has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on Company’s part to
maintain the confidentiality of such information and to use such information
only for certain limited purposes. Consultant agrees that it owes Company and
such third parties, during the Term and thereafter, regardless of the reason
for the termination of the relationship, a duty to hold all such confidential
or proprietary information in the strictest of confidence and not to disclose
such information to any person, firm or corporation (except as necessary in
carrying out its work for Company consistent with Company’s agreement with such
third party) or to use such information for the benefit of anyone other than
for Company or such third party (consistent with Company’s agreement with such
third party).


 


(f)                                    Consultant
acknowledges that Company from time to time may have agreements with other
persons or with the United States Government, or agencies thereof, that impose
obligations or restrictions on Company regarding inventions made during the
course of work under such agreements or regarding the confidential nature of
such work.  Consultant agrees to be bound
by all such obligations and restrictions that are known to it and to take all
action necessary to discharge the obligations of Company under such agreements.


 


6.3                                 Remedies.  Consultant acknowledges that any breach of
the provisions of this Section 6 shall result in serious and irreparable
injury to Company for which Company cannot be adequately compensated by
monetary damages alone.  Consultant
agrees, therefore, that, in addition to any other remedy it may have, Company
shall be entitled to enforce the specific performance of this Agreement by
Consultant and to seek both temporary and permanent injunctive relief (to the
extent permitted by law) without the necessity of proving actual damages.


 


7.                                       Independent
Contractor Status.


 


7.1                                 Company and Consultant
expressly agree and understand that Consultant is an independent contractor and
nothing in this Agreement nor the Services rendered hereunder is meant, or
shall be construed in any way or manner, to create between them a relationship
of employer and employee, principal and agent, partners or any other relationship
other than that of independent parties contracting with each other solely for
the purpose of carrying out the provisions of the Agreement.  Accordingly, Consultant acknowledges and
agrees that Consultant shall not be entitled to any benefits provided by
Company to its employees.  In addition,
Consultant shall have sole and exclusive responsibility for the payment of all
federal, state and local income taxes, for all employment and disability
insurance and for social security and other similar taxes with respect to any
compensation provided by Company hereunder.  Consultant further agrees that if
Company pays or becomes liable for such taxes or related civil penalties or
interest as a result of Consultant’s failure to pay taxes or report same, or due
to Company’s failure to withhold taxes, Consultant shall indemnify and hold
Company harmless for any such liability.  Consultant shall assume and accept
all responsibilities which are imposed on consultants or independent
contractors by any statute, regulation, rule of law, or otherwise.  Consultant is not the agent of Company and is
not authorized and shall not have the power or authority to bind Company or
assume or create any liability or obligation, express or implied, on behalf of,
or in the name of, Company or act on behalf of Company.  At no time shall Consultant represent that it
is an agent of Company, or that any of the views, advice, statements and/or
information that may be provided while performing the Services are those of
Company.


 


7.2                                 While Company
is entitled to provide Consultant with general guidance to assist Consultant in
completing the scope of work to Company’s satisfaction, Consultant is
ultimately responsible for directing and controlling the performance of the
task and the scope of work, in accordance with the terms 


 

















 


and conditions of this Agreement.  Consultant shall use its best efforts, energy
and skill in its own name and in such manner as it sees fit.


 


8.                                       Notices.  All notices required or permitted under this
Agreement shall be in writing and shall be deemed effective when served by
personal delivery, express overnight courier service, or by registered or
certified mail, return receipt requested, addressed to the other party at the
address shown above, or at such other address or addresses as either party
shall designate to the other in accordance with this Section 8.


 


9.                                       Pronouns.  Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular forms of nouns and pronouns shall
include the plural, and vice versa.


 


10.                                 Entire
Agreement.  This
Agreement contains the entire agreement between the parties hereto with respect
to the transactions contemplated herein. 
All other negotiations and agreements (written or oral) between the
parties are superseded by this Agreement and there are no representations,
warranties, understandings or agreements other than those expressly set forth
herein.  Provided, however,
that nothing in this Agreement shall amend, diminish, supplement or otherwise
affect any previous agreements, if any, between the parties with respect to the
disclosure or use of information covered by such agreement, which shall remain
in full force and effect in accordance with its terms.


 


11.                                 Amendment.  This Agreement may be amended or modified
only by a written instrument executed by both Company and Consultant. This
Agreement does not create an obligation on Company to continue to retain
Consultant beyond the Term.


 


12.                                 Governing Law.  This Agreement shall be construed,
interpreted and enforced in accordance with the laws of the Commonwealth of
Massachusetts without regard to its conflict of laws provisions.


 


13.                                 Successors and
Assigns.  Company shall have the right
to assign this Agreement to its successors and assigns and this Agreement shall
inure to the benefit of and be enforceable by said successors or assigns.  Consultant may not assign this Agreement or
any rights or obligations hereunder without the prior written consent of Company
and this Agreement shall be binding upon Consultant’s heirs, executors,
administrators and legal representatives.


 


14.                                 Debarment.  Consultant represents and warrants that
Consultant is not under investigation by the Food and Drug Administration (FDA),
or equivalent authority outside the United States, for debarment action or is
presently debarred pursuant to the Generic Drug Enforcement Act of 1992, or any
equivalent law or regulation applicable outside the United States, or has been
convicted or indicted for a crime or otherwise engaged in conduct for which a
person can be debarred, and Consultant agrees to notify Company immediately
upon any inquiry concerning, or the commencement of any such proceeding
concerning, Consultant.


 


15.                                 Government
Approval.  If
Consultant is an employee of a federal or state government agency, Consultant
represents and warrants that such federal or state government agency has
authorized Consultant to provide the Services and to be compensated for the
provision of such Services.


 


16.                                 Miscellaneous.


 


16.1                           No delay or
omission by Company in exercising any right under this Agreement shall operate
as a waiver of that or any other right. 
A waiver or consent given by Company on any one occasion shall be
effective only in that instance and shall not be construed as a bar or waiver
of any right on any other occasion.


 

















 


16.2                           The captions of
the sections of this Agreement are for convenience of reference only and in no
way define, limit or affect the scope or substance of any section of this
Agreement.


 


16.3                           Consultant
hereby agrees that each provision herein shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way
impair the enforceability of any of the other clauses herein.  Moreover, if one or more of the provisions
contained in this Agreement shall for any reason be held to be excessively
broad as to scope, activity, subject or otherwise so as to be unenforceable at
law, such provision or provisions shall be construed by the appropriate
judicial body by limiting or reducing it or them, so as to be enforceable to
the maximum extent compatible with the applicable law as it shall then appear.


 

















 


IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the day and year set forth above.


 


	
  NITROMED, INC.

  
	
   

  
	
  By:

  	
  /s/ Kenneth M. Bate

  
	
   

  
	
  Name:

  	
  Kenneth M. Bate

  
	
   

  
	
  Title:

  	
  President and Chief Executive Officer

  
	
   

  
	
   

  
	
  CONSULTANT

  
	
   

  
	
  By: 

  	
  /s/ Jane A. Kramer

  
	
   

  
	
  Name:

  	
  Jane A. Kramer