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.
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If the foregoing correctly sets
forth our arrangement, please sign, date and return the enclosed
copy of this Agreement to me.
Sincerely,
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NITROMED, INC.
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/s/ Mark Leschly
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Mark Leschly
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Chairman, Compensation Committee
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Signed and Agreed To:
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/s/ Kenneth M. Bate
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Name:
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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
