Exhibit
10.1


Transition
Agreement


This Transition
Agreement made as of this 21st day of May 2007
(the “Effective Date”) by and between NitroMed, Inc. (“NitroMed” or “Company”)
and L. Gordon Letts, Ph.D. (“Dr. Letts”).


WHEREAS,
Dr. Letts has served the Company as its Chief Scientific Officer and Senior
Vice President, Research and Development since May 1997, and also served the
Company as its Vice President, Research from December 1993 to May 1997;


WHEREAS,
Dr. Letts seeks to transition from the Company in order to pursue other
opportunities unrelated to the Company’s business and operations; and


WHEREAS,
the Company requires Dr. Letts’ continued services and input for a period of
time to allow for the timely completion of his current assignments, to allow for
an appropriate transition of duties, and for him to assist with certain
corporate initiatives.


NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties agree as follows.


1.     Resignation From Current Positions And Continued
Part-Time Employment.  Dr.
Letts will resign from his current positions and postings with the Company
effective May 21, 2007 (the “Effective Date”). 
Thereafter, he will continue for a period of twelve (12) months as an
at-will, non-executive, part-time employee of the Company in the capacity of
Scientific and Technology Advisor reporting to the Chief Executive Officer of
the Company and he will be assigned certain strategic projects (the “Part-Time
Period”).  As a part-time, non-executive
employee, he will receive an annualized salary of $300,000.  As a part-time employee, Dr. Letts will be
eligible to receive Company fringe benefits in accordance with applicable
Company policies, practices, and plan documents.  As of the Effective Date, Dr. Letts will no
longer be an executive officer of the Company and will no longer serve as a
member of the executive team.  In
addition, Dr. Letts will not be eligible to participate in the Company’s annual
incentive program after the Effective Date nor shall he be eligible to
participate in the Company’s Executive Severance Benefit Plan.  After the Effective Date, Dr. Letts shall be
free to pursue such other opportunities as he desires, provided that such
activities do not (a) compete or interfere with the Company’s business and/or
(b) interfere with Dr. Letts’ obligations pursuant to this Transition Agreement
and/or the other documents referenced herein (including, without limitation,
the Invention and Non-Disclosure Agreement).


2.     Severance
Benefits.  If the
Part-Time Period is terminated by the Company without “Cause” as defined herein
(excluding a termination in connection with a change in control of the Company,
which shall be governed by the Retention Agreement referenced in paragraph 3),
and provided that upon the cessation of the Part-Time Period (whether by early
termination by the Company without cause or in accordance with the terms of the
Agreement in the normal course) Dr. Letts executes and does not revoke the
Release of Claims attached hereto as Exhibit A, Dr. Letts shall be entitled to
receive: (i) in the case of an early termination of the Part-Time Period by the
Company without Cause, (x) that portion of his annual salary 












 


($300,000), less
applicable taxes and withholding, that has not already been paid during the
Part-Time Period, and (y) the salary and COBRA Benefit defined and set forth in
paragraph 2(ii) (provided, however, that in no case shall such COBRA Benefit
continue for a period longer than eighteen (18) months), and (ii) in the case
of the conclusion of the Part-Time Period in the normal course (i.e., twelve
(12) months after the Effective Date), (a) continuation of his then-current
annual base salary ($300,000) for a period of twelve (12) months and (b)
contributions to the cost of COBRA (Consolidated Omnibus Budget Reconciliation
Act) coverage (the “COBRA Benefit”), provided that in the case of both clause
(a) and clause (b) of this paragraph 2(ii), the salary continuation and COBRA
Benefit shall only continue for a period of twelve (12) months from the
conclusion of the Part-Time Period in the normal course.  For purposes of this Agreement, “Cause” shall
be determined by the Company in its sole discretion, and can include, but is
not limited to, (i) any act or omission by Dr. Letts that may have a material
adverse effect on the Company’s business or on his ability to perform services
for the Company, including, without limitation, the commission of any crime
(other than ordinary traffic violations); or (ii) any willful misconduct or
gross neglect of duties by Dr. Letts in connection with the business or affairs
of the Company, including, but not limited to, misappropriation of Company
assets, or failure to perform reasonable assigned duties as Scientific and
Technology Advisor.


3.     Retention
Agreement.  During
the Part-Time Period, Dr. Letts will be eligible to receive the change of
control benefits in accordance with the terms of the Agreement executed by him
and the Company dated April 5, 2006 (the “Retention Agreement”).


4.     Termination of Benefits.  Except with respect to the COBRA Benefit, all
benefits, including life insurance and long-term disability, will end upon the
termination of the Part-Time Period.


5.     Options Vesting and
Exercise Periods.  
Simultaneously with the execution of this Transition Agreement, each of
Dr. Letts’ outstanding option agreements, all of which are listed on Exhibit B
hereto (collectively, the “Awards”), will be modified to provide that (a) upon
the conclusion of the Part-Time Period in the normal course (i.e., twelve (12)
months after the Effective Date), the period of exercisability of the vested
portion of such options shall be two years following such cessation of
employment and (b) in the case of an early termination of the Part-Time Period
by the Company without Cause (excluding a termination in connection with a
change in control of the Company, which shall be governed by the Retention
Agreement referenced in paragraph 3), (i) any options covered by the Awards
that would have vested during the Part-Time Period but for the early
termination of the Part-Time Period will vest immediately as of the date of
such early termination and (ii) the period of exercisability of the vested
portion of such options shall equal the sum of (X) two years and (Y) the number
of days remaining in the Part-Time Period following the date of the early
termination of the Part-Time Period.  All
other terms of the Awards shall remain in full force and effect.  While employed, Dr. Letts may be eligible to
receive such future stock options grants as the Board of Directors of the
Company shall from time to time deem appropriate and having such terms and
conditions as are determined solely by the Company’s Board of Directors.


6.     Sale of Property.  If
during the Part-Time Period, the Company enters into a definitive and binding
agreement with a third party approved by the Company’s Board of 



 2
 








 


Directors relating to a transaction negotiated by Dr. Letts exclusively
for the sale, licensing or co-promotion of any intellectual property rights of
the Company (excluding BiDil, BiDil XR, NMI 3377 and any and all combination
products thereof), the Company will pay Dr. Letts an amount equal to 1.5% of
any upfront cash payment(s) (i.e., not including any milestone, royalty,
earn-out payments or any other payments not received upfront) made by such
third party to the Company less applicable taxes and withholdings, upon
execution of a definitive and binding agreement pertaining to such sale,
license or co-promotion arrangement; provided, however, that the terms of this
paragraph shall not apply to (a) any transaction (i) which involves, as part of
the transaction, the sale, licensing or co-promotion of BiDil, BiDil XR, NMI
3377 and any and all combination products thereof and (ii) the discussion and/or
negotiation of which began prior to the Effective Date or (b) a merger of the
Company or the sale of all or substantially all of the Company’s assets.  In the case of clause (a) of this paragraph
6, in the event such transaction occurs during the Part-Time Period, the
Company and Dr. Letts will negotiate in good faith to agree on a reasonable sum
to be paid to Dr. Letts.


7.     Section 409A.  It is intended that all payments under this
Transition Agreement come within exceptions to Section 409A of the Internal
Revenue Code of 1986, as amended (“Section 409A”).  The Transition Agreement and all related
documents shall be interpreted and administered in accordance with that
intention.  However, if any amount
payable under this Transition Agreement is determined to be subject to Section
409A then such payments shall be administered in accordance with Section 409A;
provided that the Company shall not be liable for any failures under this
Section 5 that result in the payment of any taxes or other amounts due under the
terms of Section 409A.  To the extent any
amount subject to Section 409A is to be paid or provided to Dr. Letts in
connection with a separation from service at a time when he is considered a
specified employee within the meaning of Section 409A then such payment shall
not be made until the date that is six months and one day following such
separation from service, or in a lump sum upon his earlier death.


8.     Invention and
Non-Disclosure Obligations.  In consideration of the benefits
provided herein, Dr. Letts will execute the Company’s  Invention and Non-Disclosure Agreement, attached hereto as
Exhibit C, pursuant to which Dr. Letts shall agree, among other things, to keep
confidential and not disclose any and all non-public information concerning the
Company that he acquired during the course of his employment with the Company,
including, but not limited to, any non-public information concerning the
Company’s business affairs, business prospects and financial condition.


9.     Return of Company Property.  Upon the termination of the Part-Time Period,
Dr. Letts will return to the Company all keys, files, records (and copies
thereof), equipment (including, but not limited to, software and printers,
wireless handheld devices, cellular phones, pagers, etc.), Company
identification, and any other Company-owned property in his possession or
control, and that he will leave intact all electronic Company documents,
including, but not limited to, those which he developed or helped develop
during his employment.  Dr. Letts agrees
that in the event that he discovers any other Company or proprietary materials
in his possession after the separation from employment, he will immediately
return such materials to the Company’s Human Resources Department.  Dr. Letts further confirms that he will have
cancelled all accounts for his benefit, if any, in the



 3
 








 


Company’s name,
including, but not limited to, credit cards, telephone charge cards, cellular
phone and/or pager accounts and computer accounts.


10.   Release
of  Claims.  In consideration of the benefits provided for
in this Transition Agreement, which Dr. Letts acknowledges he would not
otherwise be entitled to receive, Dr. Letts hereby fully, forever, irrevocably
and unconditionally releases, remises and discharges the Company, its officers,
directors, stockholders, corporate affiliates, subsidiaries, parent companies,
agents and employees (each in their individual and corporate capacities)
(hereinafter, the “Released Parties”) from any and all claims, charges,
complaints, demands, actions, causes of action, suits, rights, debts, sums of
money, costs, accounts, reckonings, covenants, contracts, agreements, promises,
doings, omissions, damages, executions, obligations, liabilities, and expenses
(including attorneys’ fees and costs), of every kind and nature which he ever
had or now has against the Released Parties, including, but not limited to, any
claims arising out of his employment with and/or separation from the Company,
including, but not limited to, all employment discrimination claims under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et  seq., the Age Discrimination
in Employment Act, 29 U.S.C. § 621 et  seq., the Americans With
Disabilities Act of 1990, 42 U.S.C. §12101 et  seq., the Family
and Medical Leave Act, 29 U.S.C. § 2601 et  seq., the Worker
Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. § 2101 et
seq., Section 806 of the Corporate Fraud Accountability Act of 2002, 18
U.S.C. § 1514(A), the Rehabilitation Act of 1973, 29 U.S.C. § 701 et  seq.,
Executive Order 11216, Executive Order 11141, all as amended; all claims
arising out of the Fair Credit Reporting Act, 15 U.S.C. §1681 et  seq.,
the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001 et  seq.,
the Massachusetts Fair Employment Practices Act., M.G.L. c. 151B, § 1 et  seq.,
the Massachusetts Civil Rights Act, M.G.L. c. 12, §§ 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c. 93, § 102 and M.G.L. c. 214, § 1C,
the Massachusetts Labor and Industries Act, M.G.L. c. 149, § 1 et  seq.,
the Massachusetts Privacy Act, M.G.L. c. 214, § 1B, and the Massachusetts
Maternity Leave Act , M.G.L. c. 149, § 105(d), all as amended; all common law
claims including, but not limited to, actions in tort, defamation and breach of
contract; all claims to any non-vested
ownership interest in the Company, contractual or otherwise, including, but not
limited to, claims to stock or stock options; and any claim or damage
arising out of his employment with or separation from the Company (including
any claim for retaliation) under any common law theory or any federal, state or
local statute or ordinance not expressly referenced above; provided, however,
that nothing in this Transition Agreement prevents him from filing, cooperating
with, or participating in any proceeding before the EEOC or a state Fair
Employment Practices Agency (except that he acknowledges that he may not be
able to recover any monetary benefits in connection with any such claim, charge
or proceeding).


11.   Acknowledgment.  Dr. Letts acknowledges that he has been given
at least twenty-one (21) days to consider this Transition Agreement and the
Release of Claims at Exhibit A, and that the Company advises him to consult
with an attorney of his own choosing prior to signing this Transition Agreement
and Exhibit A.  Dr. Letts is advised that
he may revoke his agreement for a period of seven (7) days after he signs it,
and the release provided above shall not be effective or enforceable until the
expiration of such seven (7) day revocation period.  Dr. Letts
is advised and he understands and agrees that by entering into this agreement
and signing it and the Releases of Claims he is waiving any
and all rights or claims he might have under The Age Discrimination in
Employment Act, as amended by



 4
 








 


The Older
Workers Benefit Protection Act, and that he has received consideration beyond
that to which he was previously entitled.


12.   Amendment.  This Transition Agreement shall be binding
upon the parties and may not be modified in any manner, except by an instrument in writing of concurrent or
subsequent date signed by duly authorized representatives of the parties
hereto.  This Transition Agreement is
binding upon and shall inure to the benefit of the parties and their respective
agents, assigns, heirs, executors, successors and administrators.


13.   No
Waiver.   No delay or
omission by either party in exercising any right under this Transition
Agreement shall operate as a waiver of that or any other right.  A waiver or consent given by a party 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.


14.   Validity.  Should any provision of this Transition
Agreement be declared or be determined by any court of competent jurisdiction
to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and said illegal and/or invalid part,
term or provision shall be deemed not to be a part of this Transition
Agreement.


15.   Cooperation.  Dr. Letts agrees to cooperate with the
Company in the investigation, defense or prosecution of any claims or actions
now in existence or which may be brought in the future against or on behalf of
the Company.  His cooperation in
connection with such claims or actions shall include, but not be limited to,
being available to meet with the Company’s counsel to prepare for discovery or
any mediation, arbitration, trial, administrative hearing or other proceeding
or to act as a witness when reasonably requested by the Company at mutually
agreeable times and at locations mutually convenient to you and the Company.


16.   Voluntary
Assent.  Dr. Letts affirms
that no other promises or agreements of any kind have been made to or with him
by any person or entity whatsoever to cause him to sign this Transition
Agreement, and that he fully understand the meaning and intent of this
agreement.  Dr. Letts states and
represents that he has had an opportunity to fully discuss and review the terms
of this Transition Agreement and Exhibit A with an attorney.  Dr. Letts further states and represents that
he has carefully read this Transition Agreement, including Exhibit A hereto,
understand the contents therein, freely and voluntarily assent to all of the
terms and conditions hereof, and signs his name of his own free act.


17.   Applicable Law.  This Transition Agreement shall be
interpreted and construed by the laws of the Commonwealth of Massachusetts,
without regard to conflict of laws provisions. 
The parties hereby irrevocably submit to and acknowledge and recognize
the jurisdiction of the courts of the Commonwealth of Massachusetts, or if
appropriate, a federal court located in Massachusetts (which courts, for
purposes of this Transition Agreement, are the only courts of competent
jurisdiction), over any suit, action or other proceeding arising out of, under  or in
connection with this Transition Agreement or the subject matter hereof.


18.   Entire
Agreement.  This
Transition Agreement, together with Exhibit A, contains and constitutes the
entire understanding and agreement between the parties hereto and cancels all
previous oral and written negotiations, agreements, commitments and writings in




 5
 








 


connection
therewith.  Nothing in this paragraph,
however, shall modify, cancel or supersede Dr. Letts’s obligations set forth in
paragraphs 10 and 11 above.


	
  NITROMED, INC.

  	
   

  	
  L. GORDON LETTS, Ph.D.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  /s/ Kenneth M.
  Bate

  	
   

  	
   

  	
  /s/ L. Gordon Letts, Ph.D.

  	
   

  
	
  Name: Kenneth M.
  Bate

  	
   

  	
   

  
	
  Title: President
  and CEO

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: 

  	
  5/21/07

  	
   

  	
   

  	
  Date: 

  	
  5/21/2007

  	
   

  
										



 



 6















EXHIBIT A


RELEASE OF CLAIMS


This
Release of Claims forms a part of that certain Transition Agreement (the “Transition
Agreement”) dated as of                           
by and among L. Gordon Letts (“Dr. Letts”), and NitroMed, Inc. (collectively,
the “Company”).


1.   Dr. Letts’s
Release of Claims — In consideration of the payment of the
benefits set forth in paragraph 2 of the Transition Agreement, which Dr. Letts
acknowledges he would not otherwise be entitled to receive, he hereby fully,
forever, irrevocably and unconditionally releases, remises and discharges the
Company, its officers, directors, stockholders, corporate affiliates,
subsidiaries, parent companies, agents and employees (each in their individual
and corporate capacities) (hereinafter, the “Released Parties”) from any and
all claims, charges, complaints, demands, actions, causes of action, suits,
rights, debts, sums of money, costs, accounts, reckonings, covenants,
contracts, agreements, promises, doings, omissions, damages, executions, obligations,
liabilities, and expenses (including attorneys’ fees and costs), of every kind
and nature which he ever had or now has against the Released Parties,
including, but not limited to, any claims arising out of his employment with
and/or separation from the Company, including, but not limited to, all
employment discrimination claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §2000e et  seq., the Age Discrimination in Employment
Act, 29 U.S.C. § 621 et  seq., the Americans With Disabilities Act
of 1990, 42 U.S.C. §12101 et  seq., the Family and Medical Leave
Act, 29 U.S.C. § 2601 et  seq., the Worker Adjustment and
Retraining Notification Act (“WARN”), 29 U.S.C. § 2101 et  seq.,
Section 806 of the Corporate Fraud Accountability Act of 2002, 18 U.S.C. §
1514(A), the Rehabilitation Act of 1973, 29 U.S.C. § 701 et  seq.,
Executive Order 11216, Executive Order 11141, all as amended; all claims
arising out of the Fair Credit Reporting Act, 15 U.S.C. §1681 et  seq.,
the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §1001 et  seq.,
the Massachusetts Fair Employment Practices Act., M.G.L. c. 151B, § 1 et  seq.,
the Massachusetts Civil Rights Act, M.G.L. c. 12, §§ 11H and 11I, the
Massachusetts Equal Rights Act, M.G.L. c. 93, § 102 and M.G.L. c. 214, § 1C,
the Massachusetts Labor and Industries Act, M.G.L. c. 149, § 1 et  seq.,
the Massachusetts Privacy Act, M.G.L. c. 214, § 1B, and the Massachusetts
Maternity Leave Act , M.G.L. c. 149, § 105(d), all as amended; all common law
claims including, but not limited to, actions in tort, defamation and breach of
contract; all claims to any non-vested ownership interest in the Company,
contractual or otherwise, including, but not limited to, claims to stock or
stock options; and any claim or damage arising out of his employment with or
separation from the Company (including any claim for retaliation) under any
common law theory or any federal, state or local statute or ordinance not
expressly referenced above; provided, however, that nothing in this Release of
Claims prevents him from filing, cooperating with, or participating in any
proceeding before the EEOC or a state Fair Employment Practices Agency (except
that he acknowledges that he may not be able to recover any monetary benefits
in connection with any such claim, charge or proceeding).


2.  Company
Release  — The Company hereby fully, forever, irrevocably, and
unconditionally releases, remises, and discharges Dr. Letts from any and all
claims, charges, complaints, demands, actions, causes of action, suits, rights,
debts, contracts, agreements, promises, damages, liabilities, and expenses of
any kind or nature, known or unknown, which the



 7
 









 


Company ever had or has
against him arising out of his employment with or separation from the
Company.  Nothing herein shall be deemed
to waive or release claims by the Company for any acts of dishonesty, moral
turpitude, fraud, misappropriation, embezzlement or any knowing or willful
violation of any applicable law, rule or regulation.


3.  Acknowledgement
— Dr. Letts hereby acknowledges that he has been given at least twenty-one (21)
days to consider the Transition Agreement, as well as this Exhibit A, and that
the Company advises him to consult with any attorney of his own choosing prior
to signing the Transition Agreement and this Exhibit A.  Dr. Letts is advised that he may revoke his
acceptance of this Exhibit A during the period of seven (7) days after the
execution of it, and this Exhibit A shall not become effective or enforceable,
and no severance payments will be made pursuant to Paragraph 2 of the
Transition Agreement, until this seven (7) day period has expired.  Dr. Letts
is advised and he understands and agrees that by entering into this agreement
and signing it and the Release of Claims he is waiving any and all rights or
claims he might have under The Age Discrimination in Employment Act, as amended
by The Older Workers Benefit Protection Act, and that he has received
consideration beyond that to which he was previously entitled.


4.  Non-Disparagement  —
Dr. Letts understands and agrees that as a condition for payment to him of the
consideration herein described, he shall not make any false, disparaging or
derogatory statements to any media outlet, industry group, financial
institution or current or former employee, consultant, client or customer of
the Company regarding the Company or any of its directors, officers, employees,
agents or representatives or about the Company’s business affairs and financial
condition.


5.  Applicable
Law — This Release of Claims shall be interpreted and construed
by the laws of the Commonwealth of Massachusetts, without regard to conflict of
laws provisions.  Dr. Letts hereby
irrevocably submits to and acknowledges and recognizes the jurisdiction of the
courts of the Commonwealth of Massachusetts, or if appropriate, a federal court
located in Massachusetts (which courts, for purposes of this Transition Agreement,
are the only courts of competent jurisdiction), over any suit, action or other
proceeding arising out of, under or in connection with this Release of Claims
or the subject matter hereof.


	
  NitroMed, Inc.

  	
   

  	
  L. Gordon Letts, Ph.D.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
							



 



 8















EXHIBIT B


The following table sets forth
certain information concerning all outstanding equity awards held by Dr. Letts
as of May 21, 2007.


	
  Option Grant

  Date

  	
   

  	
  Number of

  Securities

  Underlying

  Option

  (Execrcisable)

  	
   

  	
  Number of

  Securities

  Underlying

  Option

  (Unexecrcisable)

  	
   

  	
  Option

  Exercise Price

  ($)

  	
   

  	
  Option

  Expiration Date

  	
   

  
	
  06/16/1999

  	
   

  	
  3,465

  	
   

  	
  0

  	
   

  	
  1.30

  	
   

  	
  06/16/2009

  	
   

  
	
  01/30/2001

  	
   

  	
  24,660

  	
   

  	
  0

  	
   

  	
  2.00

  	
   

  	
  01/30/2011

  	
   

  
	
  03/12/2002

  	
   

  	
  65,000

  	
   

  	
  0

  	
   

  	
  2.00

  	
   

  	
  03/12/2012

  	
   

  
	
  06/17/2003

  	
   

  	
  41,250

  	
   

  	
  13,750

  	
   

  	
  2.00

  	
   

  	
  06/17/2013

  	
   

  
	
  12/01/2003

  	
   

  	
  56,250

  	
   

  	
  18,750

  	
   

  	
  7.98

  	
   

  	
  12/01/2013

  	
   

  
	
  05/18/2004

  	
   

  	
  18,750

  	
   

  	
  6,250

  	
   

  	
  7.55

  	
   

  	
  05/18/2014

  	
   

  
	
  07/19/2004

  	
   

  	
  31,250

  	
   

  	
  31,250

  	
   

  	
  10.21

  	
   

  	
  07/19/2014

  	
   

  
	
  05/16/2005

  	
   

  	
  42,500

  	
   

  	
  42,500

  	
   

  	
  14.99

  	
   

  	
  05/16/2015

  	
   

  
	
  01/19/2006

  	
   

  	
  8,600

  	
   

  	
  25,800

  	
   

  	
  12.02

  	
   

  	
  01/19/2016

  	
   

  
	
  03/30/2006

  	
   

  	
  43,000

  	
   

  	
  0

  	
   

  	
  8.06

  	
   

  	
  03/30/2016

  	
   

  
	
  08/16/2006

  	
   

  	
  0

  	
   

  	
  40,000

  	
   

  	
  2.84

  	
   

  	
  08/16/2016

  	
   

  
	
  10/12/2006

  	
   

  	
  0

  	
   

  	
  35,000

  	
   

  	
  2.17

  	
   

  	
  10/12/2016

  	
   

  



 



 9















EXHIBIT C


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 (“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, 



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or other legal proceeding
which is commenced to resolve any matter arising under or relating to any
provisions of this 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.


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:             ___________________________


Printed Name:       ___________________________


Date:                       ___________________________


 



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