NOT PROVIDE
FOR THE PAYMENT OF BENEFITS TO THE EMPLOYEE IN THE EVENT OF TERMINATION OTHER
THAN IN CONNECTION WITH A CHANGE OF CONTROL IN ACCORDANCE WITH THE TERMS OF THIS
AGREEMENT.
ACCORDINGLY, IN NO EVENT WILL THE EMPLOYEE BE ENTITLED TO PAYMENTS
PURSUANT TO BOTH SECTION 4.2 OF THIS AGREEMENT AND ANY OTHER SEVERANCE
AGREEMENTS, PROMISES, COVENANTS, ARRANGEMENTS, COMMUNICATIONS, REPRESENTATIONS
OR WARRANTIES, WHETHER ORAL OR WRITTEN, MADE BY ANY OFFICER, EMPLOYEE OR
REPRESENTATIVE OF THE COMPANY, INCLUDING WITHOUT LIMITATION EITHER (X) IN THAT
CERTAIN SEVERANCE AGREEMENT BETWEEN THE COMPANY AND EMPLOYEE DATED EVEN HEREWITH
OR (Y) IN THAT CERTAIN EXECUTIVE SEVERANCE BENEFIT PLAN DATED MARCH 20, 2006
(THE "SEVERANCE PLAN"), AS SUCH SEVERANCE PLAN MAY BE SUPERCEDED, MODIFIED OR
AMENDED BY THE COMPANY.
7.9
AMENDMENTS.
THIS AGREEMENT MAY BE AMENDED OR MODIFIED ONLY BY A
WRITTEN INSTRUMENT EXECUTED BY BOTH THE COMPANY AND THE EMPLOYEE.
7.10
EMPLOYEE'S ACKNOWLEDGEMENTS.
THE EMPLOYEE ACKNOWLEDGES THAT HE:
(A) HAS READ THIS AGREEMENT; (B) HAS BEEN REPRESENTED IN THE PREPARATION,
NEGOTIATION, AND EXECUTION OF THIS AGREEMENT BY LEGAL COUNSEL OF THE EMPLOYEE'S
OWN CHOICE OR HAS VOLUNTARILY
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DECLINED TO SEEK SUCH COUNSEL; (C) UNDERSTANDS THE TERMS AND CONSEQUENCES OF
THIS AGREEMENT; AND (D) UNDERSTANDS THAT THE LAW FIRM OF WILMER CUTLER PICKERING
HALE AND DORR LLP IS ACTING AS COUNSEL TO THE COMPANY IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AND IS NOT ACTING AS COUNSEL FOR
THE EMPLOYEE.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year set forth below.
NITROMED, INC.
By: /s/ James G. Ham, III
Title: VP Finance & CFO
James G. Ham, III
KENNETH M. BATE
/s/ Kenneth M. Bate
Signature
Address:
33 Middle Street
Concord, MA 01742
___________________________________
Date:
January 23, 2007
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