Exhibit 10.1


 


Effective
as of February 23, 2009


 


Kenneth
M. Bate


33
Middle Street


Concord,
MA 01742


 


Dear
Ken:


 


Effective immediately prior
to the closing of the Merger (as such term is defined in that certain Agreement
and Plan of Merger, dated as of January 27, 2009, by and among NitroMed, Inc.
(“NitroMed”), NTMD Parent Acquisition Corp., NTMD Acquisition Corp., Deerfield
Private Design Fund, L.P., Deerfield Private Design International, L.P.,
Deerfield Special Situations Fund, L.P. and Deerfield Special Situations Fund
International Limited), unless you are earlier terminated for cause, you will
be terminated without cause as
NitroMed’s President, Chief Executive Officer and Interim Chief Financial
Officer.  This agreement (the “Agreement”) sets forth the terms pursuant to which
you will be terminated without cause immediately prior to closing of such
Merger; the time of such closing is referred to herein as the “Effective Time” and the date of such
closing is referred to herein as the “Effective Date.”


 


1.  Separation Benefits.  Reference is hereby made to that
certain Retention Agreement, dated as of January 23, 2007, between you and
NitroMed, as amended by that certain letter agreement dated as of December 29,
2008, which is attached to this Agreement as Exhibit A and is
incorporated herein (the “Change in Control Agreement”).  In
connection with the termination without cause of your employment immediately
prior to the Effective Time, NitroMed is required to provide you with the
benefits set forth in the Change in Control Agreement, including without
limitation the benefits set forth in Section 4.2 thereof.


 


2.  Other Agreements.  You hereby reaffirm your obligations set
forth in the NitroMed Inventions and Non-Disclosure Agreement previously
executed between NitroMed and you (attached hereto as Exhibit B and
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.


 


3.  Release.  You hereby acknowledge and agree that by
signing this Agreement and accepting the economic benefits set forth in
paragraph 1 above, you are waiving your right to assert, and releasing NitroMed
from, any form of legal claim against NitroMed of any kind whatsoever from the
beginning of time through and including the Effective Date.  Your waiver and release is intended to bar
any form of legal claim, charge, complaint or any other form of action (jointly
referred to as “Claims”) against NitroMed seeking any form of relief including,
without limitation, equitable relief (whether declaratory, injunctive or
otherwise), the recovery of any damages or any other form of monetary recovery


 

















 


whatsoever
(including, without limitation, back pay, front pay, compensatory damages,
emotional distress damages, punitive damages, attorneys’ fees and any other
costs) against NitroMed up through and including the Effective Date.  You understand that there could be unknown or
unanticipated Claims resulting from your employment with NitroMed and the
termination thereof and agree that such Claims are intended to be, and are,
included in this waiver and release.


 


4.  Miscellaneous.  This Agreement does not confer any additional
benefits upon you that you are not otherwise already entitled to receive
pursuant to existing agreements between you and NitroMed, and the benefits set
forth in paragraph 2 of this Agreement reflect all of the severance benefits
that you are entitled to receive upon termination of your employment at the
Effective Time.  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 separation 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
separation of 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.


 


2

















 


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


 


Sincerely,


 


	
  NITROMED,
  INC.

  	
   

  
	
   

  	
   

  
	
  /s/
  Mark Leschly

  	
   

  
	
  Mark
  Leschly

  	
   

  
	
  Chairman,
  Compensation Committee

  	
   

  



 


 


Signed
and Agreed To:


 


	
  /s/
  Kenneth M. Bate

  	
   

  
	
   

  	
   

  
	
  Name:

  	
  Kenneth
  M. Bate

  	
   

  
	
   

  	
   

  
			



 


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Exhibit A


 


For a copy of the
Retention Agreement, dated as of January 23, 2007, between Kenneth M. Bate
and NitroMed, Inc., please see Exhibit 10.2 to NitroMed, Inc.’s
Current Report on Form 8-K filed with the Securities and Exchange
Commission on January 25, 2007.


 


For a copy of the letter
amendment to the Retention Agreement, dated as of December 29, 2008,
between Kenneth M. Bate and NitroMed, Inc., please see Exhibit 10.2
to NitroMed, Inc.’s Current Report on Form 8-K filed with the
Securities and Exchange Commission on December 31, 2008.


 


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Exhibit B


 


INVENTION AND NON-DISCLOSURE AGREEMENT


 


This
Agreement is made between NitroMed, Inc., a Delaware corporation
(hereinafter referred to collectively with its subsidiaries as the “Company”),
and Kenneth M. Bate (“Employee”).


 


In
consideration of the employment of the continued employment of the Employee by
the Company, the Company and the Employee agree as follows:


 


1.               Proprietary Information.


 


(a)  The Employee agrees that all information, whether or not
in writing, of a private, Secret or confidential nature concerning the Company’s
business, business relationships or financial affairs (collectively, “Proprietary
Information”) is and shall be the exclusive property of the Company.  By way of illustration, but not limitation,
Proprietary Information may include inventions, products, presses, methods,
techniques, formulas, compositions compounds, projects, developments, plans,
research data, clinical data, financial data, personnel data, computer
programs, customer and supplier lists, and contacts at or knowledge of
customers or prospective customers of the Company.  The Employee will not disclose any
Proprietary Information to any person or entity other than employees of the
Company or use the same for any purposes (other than in the performance of
his/her duties as an employee of the Company) without written approval by an
officer of the company, either during or after his/her employment with the
Company, unless and until such Proprietary Information has become public
knowledge without fault by the Employee.


 


(b)  The Employee
agrees that all files, letters, memoranda, reports, records, data, sketches,
drawings, laboratory notebooks, program listings, or other written,
photographic, or other tangible material containing Proprietary Information,
whether created by the Employee or others, which shall come into his/her
custody or possession, shall be and are the exclusive property of the company
to be used by the Employee only in the performance of his/her duties for the
company.  All such materials or copies
thereof and all tangible property of the company in the custody or possession
of the Employee shall be delivered to the Company, upon the earlier of (I) a
request by the Company, or (ii) termination of his/her employment.  After such delivery, the Employee shall not
retain any such materials or copies thereof or any such tangible property.


 


(c)  The Employee agrees that his/her obligation
not to disclose or to use information and materials of the types set forth in
paragraphs (a) and (b) above, and his/her obligation to return
materials and tangible property, set forth in paragraph (b) above, also
extends to such types of information, materials and tangible property of
customers of the Company or suppliers to the Company or other third parties who
may  have disclosed or entrusted the same
to the company or to the Employee.


 


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2.               Developments.


 


(a)  Inventions, improvements,
discoveries, methods, developments, software, and works of authorship, whether
patentable or not, which are created, made, conceived or reduced to practice by
him/her or under his/her direction or jointly with others during his/her
employment by the Company, whether or not during normal working hours or on the
premises of the Company (all of which are collectively referred to in this
Agreement as “Developments”.


 


(b)  The Employee agrees to assign
and does hereby assign to the Company (or) any person or entity designated by
the Company) all his/her right, title and interest in and to all Developments and
all related patents, patent applications, copyrights and copyright
applications.  However, this paragraph 2(b) shall
not apply to Developments which do  not
relate to the present or planned business or research and development of the
company and which are made and conceived by the Employee not during normal
working hours, not on the Company’s premises and not using the Company’s tools,
devices, equipment or Proprietary Information. 
The Employee understands that, to the extent this Agreement shall be construed
in accordance with the laws of any state which precludes a requirement in an
employee agreement to assign certain classes of inventions made by an employee,
this paragraph 2(b) shall be interpreted not to apply to any invention
which a court rules and/or the Company agrees falls within such
classes.  The Employee also hereby waives
all claims to moral rights in any Developments.


 


(c)  The Employee agrees to
cooperate fully with the Company, both during and after his/her employment with
the Company, with respect to the procurement, maintenance and enforcement of
copyrights, patents and other intellectual property rights (both in the United
States and foreign countries) relating to Developments.  The Employee shall sign all papers,
including, without limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of priority rights, and
powers of attorney, which the Company may deem necessary or desirable in order
to protect its rights and interest in any development.  The Employee further agrees that if the
Company is unable, after reasonable effort, to secure the signature of the
Employee on any such papers, any executive officer of the Company shall be
entitled to execute any such papers as the agent and the attorney-in-fact of
the Employee, and the Employee hereby irrevocably designates and appoints each
executive officer of the Company as his/her agent and attorney-in-fact to
execute any such papers on his/her behalf, and to take any and all actions as the
Company may deem necessary or desirable in order to protect its rights and
interests in any Development, under the conditions described in this sentence.


 


3.               Other Agreements.


 


The Employee hereby
represents that, except as the Employee has disclosed in writing to the
Company, the Employee is not bound by the terms of any agreement with any
previous employer or other party to refrain from using or disclosing any trade
secret or confidential or proprietary information in the course of his/her
employment with the Company or refrain from competing, directly or indirectly,
with the business of such previous employer or any other party.  The Employee further represents that his/her
performance of all the terms of this Agreement wand as an employee of the
Company does not and will not breach any other agreement to which the Employee
is a party including but not limited to any agreement to keep in confidence
proprietary information, knowledge or data acquired by the Employee in
confidence or in trust prior to his/her employment with the Company, and the
Employee will not disclose to the company or induce the Company to use any
confidential or proprietary information or material belonging to any previous
employer or others.


 


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4.               United States Government Obligations.


 


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


 


5.               No Employment Contract.


 


The Employee understands that this Agreement does
not constitute a contract of employment and does not imply that his/her
employment will continue for any period of time.


 


6.               Miscellaneous.


 


(a)  The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any provision of this Agreement.


 


(b)  This Agreement
supersedes all prior agreements, written or oral, between the Employee and the
Company relating to the subject matter of this Agreement.  This Agreement may not be modified, changed
or discharged in whole or in part, except by an agreement in writing signed by
the Employee and the Company.  The
Employee agrees that any change or changes in his/her duties, salary or
compensation after the signing of this Agreement shall not affect the validity
or scope of this Agreement.


 


(c)  This Agreement
will be binding upon the Employee’s heirs, executors and administrators and
will inure to the benefit of the Company and its successors and assigns.


 


(d)  No delay or
omission by the Company in exercising any right under this Agreement will
operate as a waiver of that or any right. 
A waiver or consent given by the Company on any one occasion is
effective only in that instance and will not be construed as a bar to or waiver
of any right on any other occasion.


 


(e)  The Employee
expressly consents to be bound by the provisions of this Agreement for the
benefit of the Company or any subsidiary or affiliate thereof to whose employ
the Employee may be transferred without the necessity that this Agreement be
resigned at the time of such transfer.


 


(f)    The restrictions contained in this Agreement are necessary for the
protection of the business and goodwill of the company and are considered by
the Employee to be reasonable for such purpose. 
The Employee agrees that any breach of this Agreement is likely to cause
the Company substantial and irrevocable damage and therefore, in the event of
any such breach, the Employee agrees that the Company, in addition to such
other remedies which may be available, shall be entitled to specific
performance and other injunctive relief, and employee waives the claim or
defense that the Company has an adequate remedy at law.  Employee shall not, in any action or
proceeding to enforce any of the provisions of this Agreement, assert the claim
or defense that such an adequate remedy at law exists.


 


(g)   This Agreement is governed by and will be construed as a sealed
instrument under and in accordance with the laws of the Commonwealth of
Massachusetts.  Any action, suit, or
other legal proceeding which is commenced to resolve any matter arising under
or relating to any provisions of this


 


7

















 


Agreement shall be commenced
only in a court of the Commonwealth of Massachusetts (or, if appropriate, a
federal court located within Massachusetts), and the Company and the Employee
each consents to the jurisdiction of such a court.


 


(h)   Employee shall disclose the existence of the terms of this Agreement to
any employer or other person that Employee may work for or be engaged by after
the termination of his or her employment or engagement at the Company.  Employee agrees that the Company may, after
notification to Employee, provide a copy of this Agreement to any business or
enterprise (I) which Employee may directly or indirectly own, manage,
operate, finance, join, control or participate in the ownership, management,
operation, financing, or control of, or (ii) with which the Employee may
be connected with as an officer, director, employee, partner, principal, agent,
representative, consultant or other wise, or in connection with which Employee
may use or permit Employee’s name to be used. 
Employee to provide the names and addresses of any such persons or
entities as the company may from time to time request.


 


8

















 


INVENTION
AND NON-DISCLOSURE AGREEMENT


 


 


THE EMPLOYEE ACKNOWLEDGES THAT HE/SHE HAS
CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS AND AGREES TO ALL OF THE
PROVISIONS IN THIS AGREEMENT.


 


 


	
   

  	
  Signed By:

  	
  /s/ Kenneth M. Bate

  
	
   

  	
   

  	
   

  
	
   

  	
  Printed Name:

  	
  Kenneth M. Bate

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  3/23/06

  



 


 






*Please return signature page only
to Human Resources.


 


9