**Exhibit 10.2**

 

CONSULTING AGREEMENT

 

THISCONSULTING 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 principalplace of business at 45 Hayden Avenue, Suite 3000, Lexington,Massachusetts 02421 (the “Company”), and Jane A. Kramer, having an address of 30Baskin Road, Lexington, Massachusetts 02421 (“Consultant”), for the purpose ofsetting forth the exclusive terms and conditions by which Company desires toacquire Consultant’s services on a temporary basis.

 

INTRODUCTION

 

WHEREAS, Consultant represents that shepossesses valuable knowledge and experience in providing consulting services ofthe kind required by the Company; and

 

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

 

NOW, THEREFORE, in consideration of thepromises and mutual covenants contained herein, Company and Consultant hereby agreeas follows:

 

# 1.                                       Services.

#  

# 1.1                                 Description ofServices.  Consultantagrees to perform for Company certain services assigned to Consultant byCompany, in Company’s sole discretion, including, but not limited to, consulting,advisory and other services related to the Company’s investor relations andcorporate communications functions (the “Services”).  These Services are to be performed byConsultant only at the specific request of Company and are subject to thelimits 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 aconflict of interest with Company, including any competitive employment,business, or other activity, and Consultant shall not assist any other personor organization that competes, or intends to compete, with Company.

#  

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

#  

# 3.                                       Compensation.

#  

3.1                                 Fees.  In exchange for the full, prompt, andsatisfactory performance of all Services to be rendered to Company hereunder,Company shall pay Consultant, as full and complete consideration for Consultant’sperformance 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 thecompensation set forth herein represents the fair market value of the Servicesto be provided by Consultant, negotiated in an arms-length transaction, and hasnot been determined in a manner which takes into account the volume or value ofreferrals or business, if any, that may otherwise be generated between Companyand Consultant.

 

----

 

## 3.2                                 Reimbursementof Expenses.  Companyshall reimburse Consultant for all reasonable and necessary expenses incurredor paid by Consultant in connection with, or related to, the performance of theServices under this Agreement. Consultant shall submit to Company itemized statements, in a formsatisfactory to Company, of such expenses incurred.  Company shall pay to Consultant amounts shownon each such statement within thirty (30) days after receipt thereof.

##  

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

##  

# 4.                                       Termination.  Either party may, without prejudice to anyright or remedy it may have due to any failure of the other party to performits obligations under this Agreement, terminate the Term upon ten (10) businessdays’ 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 orto a party designated by Company. Further, in the event of such termination, Consultant shall be entitledto payment for Services performed and expenses paid or incurred prior to theeffective date of termination, subject to the limitation on reimbursement ofexpenses set forth in Section 3.2. Such payments shall constitute full settlement of any and all claims ofConsultant of every description against Company.  Notwithstanding the foregoing, Company mayterminate the Term, effective immediately upon receipt of written notice, ifConsultant breaches or threatens to breach any provision of Section 6.  The provisions of Sections 4, 6, 7 and 12hereunder shall survive the termination of this Agreement.

#  

# 5.                                       Cooperation.  Consultant shall use its best efforts in theperformance of its obligations under this Agreement.  Company shall provide such access to itsinformation and property as may be reasonably required in order to permitConsultant to perform its obligations hereunder.  Consultant shall cooperate with Company’spersonnel, shall not interfere with the conduct of Company’s business and shallobserve all rules, regulations and security requirements of Company and of anyrelevant state and federal authorities.

#  

# 6.                                       Inventions andProprietary 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 notcopyrightable) (“Inventions”) arising out of information gained or servicesperformed under this Agreement, which are made, conceived, reduced to practice,created, written, designed or developed by Consultant, solely or jointly withothers, and whether during normal business hours or otherwise, during the Termor thereafter, shall be the sole property of Company.  Consultant hereby assigns to Company allInventions and any and all related patents, copyrights, trademarks, tradenames, and other industrial and intellectual property rights and applications therefore,in the United States and elsewhere, and appoints any officer of Company as itsduly authorized attorney to execute, file, prosecute and protect the samebefore any government agency, court or authority.  Consultant also hereby waives all claims tomoral rights in any Inventions.  Upon therequest of Company and at Company’s expense, Consultant shall execute suchfurther assignments, documents and other instruments as may be necessary ordesirable to fully and completely assign all Inventions to Company and toassist Company in applying for, obtaining and enforcing patents or copyrightsor other rights in the United States and in any foreign country with respect toany Invention.  The assignments willsurvive the termination of the Term. Consultant agrees to assist Company without charge and for as long asmay be 

 

----

 

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

###  

### (b)                                 The Consultantshall promptly disclose to Company all Inventions and will maintain adequateand current written records (in the form of notes, sketches, drawings and asmay be specified by Company) to document the conception and/or first actualreduction to practice of any Invention. Such written records shall be available to and remain the sole propertyof Company at all times.

###  

## 6.2                                 ProprietaryInformation.

##  

(a)                                  Consultantacknowledges that its relationship with Company is one of high trust andconfidence and that in the course of Consultant’s engagement with Company, itmay receive, produce or otherwise be exposed to Company’s ProprietaryInformation (as defined herein).  Forpurposes of this Agreement, Proprietary Information shall mean Company’sproprietary or confidential information, including, by way of illustration andnot limitation, all information (whether or not patentable and whether or notcopyrightable) 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 financialstatement, budget, license, price, cost and employee or consultant list that iscommunicated to, learned of, developed or otherwise acquired by Consultant inthe course of its Service during the Term, regardless of whether suchinformation is specifically designated as confidential and regardless ofwhether such information is in written, oral, electronic or other form and allderivatives, improvements and enhancements to any of the above (including thosederivatives, improvements and enhancements that were created or developed byConsultant under this Agreement) in addition to all information Companyreceives from others under an obligation of confidentiality.** **ProprietaryInformation shall also include all other information considered to beconfidential by Company and all information which has not been made public.

 

(b)                                 Consultantacknowledges that the Proprietary Information is the sole, exclusive andextremely valuable property of Company. Accordingly, Consultant agrees, during the Term and thereafter, (i) tohold the Proprietary Information in strict confidence and to protect suchProprietary Information from disclosure using a reasonable degree of care, (ii) tosegregate all Proprietary Information from information of other companies, (iii) notto reproduce any Proprietary Information without Company’s prior writtenconsent, (iv) not to use the Proprietary Information except in theperformance of this Agreement, (v) not to use the Proprietary Informationfor 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 inany form to any third party.

 

(c)                                  Consultant’sobligations under this Section 6.2 shall not apply to any information that(i) is or becomes known to the general public under circumstancesinvolving no breach by Consultant or others of the terms of this Section 6.2,(ii) is generally disclosed to third parties by Company withoutrestriction on such third parties, or (iii) is approved for release bywritten authorization of the Board of Directors of Company.

 

(d)                                 Upontermination or expiration of this Agreement for any reason, or at any time uponrequest by Company, Consultant agrees to cease using and to promptly return toCompany all whole and partial copies and derivatives of the ProprietaryInformation and any other information relating to the business of Company,whether in Consultant’s possession or under Consultant’s direct or indirectcontrol.

 

(e)                                  Consultantshall not disclose or otherwise make available to Company in any manner anyconfidential and proprietary information or any trade secrets received byConsultant from 

 

----

 

thirdparties. Consultant warrants and represents that its performance of all theterms of this Agreement does not and will not breach any agreement entered intoby Consultant with any other party, and Consultant agrees not to enter into anyagreement, oral or written, in conflict herewith.  In addition, Consultant recognizes that Companyhas received and in the future will receive from third parties theirconfidential or proprietary information subject to a duty on Company’s part tomaintain the confidentiality of such information and to use such informationonly for certain limited purposes. Consultant agrees that it owes Company andsuch third parties, during the Term and thereafter, regardless of the reasonfor the termination of the relationship, a duty to hold all such confidentialor proprietary information in the strictest of confidence and not to disclosesuch information to any person, firm or corporation (except as necessary incarrying out its work for Company consistent with Company’s agreement with suchthird party) or to use such information for the benefit of anyone other thanfor Company or such third party (consistent with Company’s agreement with suchthird party).

 

(f)                                    Consultantacknowledges that Company from time to time may have agreements with otherpersons or with the United States Government, or agencies thereof, that imposeobligations or restrictions on Company regarding inventions made during thecourse of work under such agreements or regarding the confidential nature ofsuch work.  Consultant agrees to be boundby all such obligations and restrictions that are known to it and to take allaction necessary to discharge the obligations of Company under such agreements.

 

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

##  

# 7.                                       IndependentContractor Status.

#  

7.1                                 Company and Consultantexpressly agree and understand that Consultant is an independent contractor andnothing in this Agreement nor the Services rendered hereunder is meant, orshall be construed in any way or manner, to create between them a relationshipof employer and employee, principal and agent, partners or any other relationshipother than that of independent parties contracting with each other solely forthe purpose of carrying out the provisions of the Agreement.  Accordingly, Consultant acknowledges andagrees that Consultant shall not be entitled to any benefits provided byCompany to its employees.  In addition,Consultant shall have sole and exclusive responsibility for the payment of allfederal, state and local income taxes, for all employment and disabilityinsurance and for social security and other similar taxes with respect to anycompensation provided by Company hereunder. ** **Consultant further agrees that ifCompany pays or becomes liable for such taxes or related civil penalties orinterest as a result of Consultant’s failure to pay taxes or report same, or dueto Company’s failure to withhold taxes, Consultant shall indemnify and holdCompany harmless for any such liability.** **Consultant shall assume and acceptall responsibilities which are imposed on consultants or independentcontractors by any statute, regulation, rule of law, or otherwise.  Consultant is not the agent of Company and isnot authorized and shall not have the power or authority to bind Company orassume 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 itis an agent of Company, or that any of the views, advice, statements and/orinformation that may be provided while performing the Services are those ofCompany.

 

# 7.2                                 While Companyis entitled to provide Consultant with general guidance to assist Consultant incompleting the scope of work to Company’s satisfaction, Consultant isultimately responsible for directing and controlling the performance of thetask and the scope of work, in accordance with the terms 

 

----

 

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

#  

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

#  

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

#  

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

#  

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

#  

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

#  

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

#  

14.                                 Debarment.  Consultant represents and warrants thatConsultant is not under investigation by the Food and Drug Administration (FDA),or equivalent authority outside the United States, for debarment action or ispresently debarred pursuant to the Generic Drug Enforcement Act of 1992, or anyequivalent law or regulation applicable outside the United States, or has beenconvicted or indicted for a crime or otherwise engaged in conduct for which aperson can be debarred, and Consultant agrees to notify Company immediatelyupon any inquiry concerning, or the commencement of any such proceedingconcerning, Consultant.

 

15.                                 GovernmentApproval.  IfConsultant is an employee of a federal or state government agency, Consultantrepresents and warrants that such federal or state government agency hasauthorized Consultant to provide the Services and to be compensated for theprovision of such Services.

 

# 16.                                 Miscellaneous.

#  

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

 

----

 

## 16.2                           The captions ofthe sections of this Agreement are for convenience of reference only and in noway define, limit or affect the scope or substance of any section of thisAgreement.

##  

## 16.3                           Consultanthereby agrees that each provision herein shall be treated as a separate andindependent clause, and the unenforceability of any one clause shall in no wayimpair the enforceability of any of the other clauses herein.  Moreover, if one or more of the provisionscontained in this Agreement shall for any reason be held to be excessivelybroad as to scope, activity, subject or otherwise so as to be unenforceable atlaw, such provision or provisions shall be construed by the appropriatejudicial body by limiting or reducing it or them, so as to be enforceable tothe maximum extent compatible with the applicable law as it shall then appear.

 

----

 

IN WITNESS WHEREOF, the parties hereto haveexecuted 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 |
|                    |  |  |  |  |

 

----