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Exhibit
10.21
EXECUTIVE EMPLOYMENT
AGREEMENT
(Shintaro Asako)
This EXECUTIVE EMPLOYMENT
AGREEMENT (this “ Agreement ”) is made as of
July 18, 2005 (the “ Effective Date ”) by and
between MEDICINOVA, INC, a Delaware corporation (“
MediciNova ”), and Shintaro Asako (“
Executive ”), with reference to the following
facts:
A. The Board of Directors of
MediciNova (the “ Board ”) has determined that
it would be in the best interests of MediciNova to enter into this
Employment Agreement on the terms herein set forth.
B. Executive is willing to
serve as an employee of MediciNova upon the terms and conditions
herein set forth. In respect of such employment, Executive has also
executed that certain Proprietary Information and Inventions
Agreement of even date herewith (the “ Proprietary
Information and Inventions Agreement ”), which is
attached hereto as Exhibit A and incorporated herein by
reference as though fully set forth herein.
NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants
herein contained, the parties agree as follows:
1. Definitions . For
purposes of this Agreement, the following terms shall have their
respective meanings:
1.1 “ Cause
” shall mean (as shall reasonably be determined by the Board
of Directors of the MediciNova - the “ Board ”):
(i) any intentional failure to perform the Executive’s
obligations, services or duties under this Agreement or any other
agreement or arrangement between the Executive and the MediciNova
regarding employment or consulting services to be rendered by the
Executive to the MediciNova, other than an immaterial violation
which is remedied upon reasonable notice; (ii) failure to achieve
performance levels for the MediciNova consistent with the
MediciNova’s goals, as determined by the Board in good faith
and following appropriate inquiry; (iii) any violation of
MediciNova policy, other than an immaterial violation which is
remedied upon reasonable notice; (iv) any willful neglect of the
Executive’s duties to the MediciNova or gross misconduct; (v)
any failure to protect the MediciNova’s trade secrets; or
(vi) any commission of any crime or criminal offense involving
moral turpitude.
1.2 “ Total and
Permanent Disability ” shall have the meaning ascribed to
such term in Section 22 of the Internal Revenue Code of 1986, as
amended.
2. Duties . Subject to
the terms and provisions of this Agreement, Executive is employed
by MediciNova as an executive employee of MediciNova.
Executive’s specific position shall be as the Vice President,
Accounting and Financial Reporting of MediciNova; provided ,
however , that the Executive may be reassigned by the Board
to another executive position with MediciNova (or another position
of similar responsibility) at such time as the Board (excluding
Executive) reasonably agrees upon another Vice President,
Accounting and Financial Reporting. Executive covenants to perform
Executive’s employment duties in good
MediciNova, Inc.
faith. Executive shall at all times
during the performance of this Agreement strictly adhere to and
obey any and all rules and regulations now in effect or as
subsequently adopted and/or modified governing the conduct of
MediciNova employees and/or executives (the “ Employment
Policies ”). In the event of any conflict between the
provisions of this Agreement and any of the Employment Policies,
the provisions of this Agreement shall control. A default under any
the Employment Policies, except to the extent necessary or
appropriate to comply with the provisions of this Agreement, shall
be a default under this Agreement.
3. Exclusive Services
. Executive’s entire business time, attention, energies,
skills, learning and best efforts shall be devoted to the business
of MediciNova; provided , however , that this Section
3 shall not be construed as preventing Executive from participating
in social, civic or professional associations or engaging in
passive outside investment activities which may require a limited
portion of time and effort to manage, consistent with any
Employment Policies and so long as such
activities do not interfere with the performance of
Executive’s duties nor compete, in any way, with the products
or services offered by or through MediciNova.
4. Term of Employment
. The term of this Agreement shall continue until such time as the
employment of Executive is terminated pursuant to Section 7 below;
provided , however , that this Agreement shall
automatically terminate upon the death or Total and Permanent
Disability of Executive.
5. Compensation . For
all services rendered by Executive to MediciNova, MediciNova shall
pay/provide to Executive the following:
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base compensation in the amount of $ 150,000 per annum
(the “ Base Compensation ”); |
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periodic bonuses determined within the sole discretion of the
Board (or any committee of the Board which is appointed to consider
matters relating to executive compensation) but with reference to
amounts paid to other executives and/or employees of
MediciNova; |
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grants of equity-based compensation within the sole discretion
of the Board (or any committee of the Board which is appointed to
consider matters relative to equity-based
compensation); |
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such group medical and life insurance and participation in
other benefit plans as shall be made available for executives of
MediciNova (with amounts and levels of participation therein
determined with reference to other executives and/or employees of
MediciNova); and |
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an annual amount of vacation days consistent with amounts
available for other executives of MediciNova (but, in any event, no
fewer than 10 days)(collectively, the “ Compensation
Package ”). |
6. Adjustments . The
amount of Base Compensation may be adjusted as of each anniversary
of the Effective Date (beginning on the first anniversary) by an
amount upon which the Board and Executive shall mutually and
reasonably agree at or about that time.
MediciNova, Inc.
Compensation under the Compensation
Package shall be paid to Executive less required deductions for
Social Security, withholding taxes and other authorized deductions
and at times when executives of MediciNova normally receive their
compensation.
7. Termination . The
employment of Executive may be terminated at any time
by:
7.1 Mutual agreement of
MediciNova and Executive evidenced in writing;
7.2 Action of the Board
without prior notice to Executive if the Board reasonably shall
establish that (i) Executive is in material default in the
performance of Executive’s obligations, services or duties
hereunder, or has materially breached any provision of this
Agreement, or (ii) MediciNova otherwise has Cause to terminate
Executive’s employment (although the right of termination of
Executive’s employment under this Section 7.2 shall not be in
limitation of any other right or remedy MediciNova may have under
this Agreement or otherwise);
7.3 Upon the death or Total
and Permanent Disability of Executive; or
7.4 Upon three months’
written notice by either party to the other indicating the desire
of the notifying party, in its sole discretion, to terminate the
employment of Executive hereunder.
8. Compensation Upon
Termination . In the event that the employment of Executive is
terminated pursuant to Section 7 above, Executive shall be
terminated without compensation other than for accrued salary and
other accrued amounts; provided , however , that if
such employment is terminated at MediciNova’s option pursuant
to Section 7.4 above, then Executive shall be entitled to such
severance payment(s) as shall be provided for (if any) by the
Employment Policies in effect at that time; and provided ,
further , that in lieu of the three months’ notice
provided by Section 7.4 above, MediciNova may provide Executive
with an amount equal to one-half (1/2) of Executive’s annual
Base Compensation which shall be applicable at the time of
Executive’s termination of employment with MediciNova. Except
as provided in the immediately preceding sentence (if applicable),
Executive is entitled to no other compensation upon
termination.
9. Option to Hire
Executive as Consultant . Upon any termination of
Executive’s employment under this Agreement, either pursuant
to Section 7 above or otherwise, MediciNova shall have the option
(in MediciNova’s discretion) to engage Executive as a
consultant on a quarterly basis commencing on the effective date of
termination of Executive’s employment (the “
Termination Date ”) and continuing for a period of up
to one ( 1 ) year following the Termination Date (or,
if longer, the period terminating on the date which is three
( 3 ) years after the Effective Date). MediciNova’s
rights under this Section 9 shall lapse if MediciNova has not
provided Executive with written notice of MediciNova’s intent
to exercise its rights hereunder prior to the later of (i) the
Termination Date (e.g., in the event of a voluntary termination
under Section 7.4 above) and (ii) 30 days following notice of such
termination (e.g., in the event of an involuntary termination under
Section 7.2 above). As a consultant, Executive’s duties shall
include devoting attention to those matters reasonably requested by
the Board but which will not interfere (as to time required) with
the opportunity to maintain other employment consistent
with
MediciNova, Inc.
this Section 9. During any period for
which Executive is engaged to perform consulting services for
MediciNova under this Section 9, Executive agrees that Executive
shall not:
9.1 Carry on directly or
indirectly, whether or not for compensation (as proprietor,
partner, stockholder (except that a less than one percent (1%)
ownership in a public corporation shall be permitted), officer,
director, agent, employee, consultant, trustee, affiliate or
otherwise), any business which is, or as a result of
Executive’s engagement or participation would become,
competitive with or adverse to the business of MediciNova as it
exists as of the Termination Date;
9.2 Permit Executive’s
name to be used by any business competitive in any respect with the
business of MediciNova as it exists as of the Termination
Date;
9.3 Solicit or divert, or
attempt to call on, solicit or divert, any customer of MediciNova
with whom Executive became acquainted during Executive’s
employment or affiliation with MediciNova, either for Executive or
for any other person, firm or corporation; or
9.4 Induce or attempt to
induce any person who is an employee, agent or consultant of
MediciNova to leave the employ of MediciNova.
Without limiting the other provisions of
this Agreement, (i) Executive acknowledges and agrees that it is
impossible to measure in money the damages which will befall the
MediciNova by reason of Executive’s failure to perform any of
the obligations set forth in this Section 9, (ii) Executive
acknowledges that MediciNova shall be entitled to enforce
Executive’s obligations under this Section 9 by court
injunction (without the posting of a bond or other security),
specific performance or other appropriate equitable relief, (iii)
Executive agrees (to the maximum extent permitted by law) to have
the provisions of this Section 9 specifically enforced against
Executive by any court of equity and (iv) Executive consents to the
entry of injunctive relief against Executive enjoining or
restraining any violation or threatened violation of the provisions
of this Section 9.
10. Compensation for
Consulting Services . For each quarter (i.e., three-month
period) that Executive provides consulting services to MediciNova
pursuant to the option of MediciNova contained in Section 9 above,
MediciNova shall pay Executive a sum equal to fifteen
percent ( 15% ) of Executive’s annual Base
Compensation which shall be applicable at the time of
Executive’s termination of employment with MediciNova
(prorated for any period of less than a quarter). The parties
expressly agree that when Executive is performing consulting
services for MediciNova, Executive is acting as an independent
contractor. Therefore, Executive shall be solely liable for Social
Security and income taxes that result from Executive’s
compensation as a consultant. In addition, Executive shall not be
entitled to any other benefits including, without limitation, such
group medical, life and disability insurance and other benefits as
may be provided to employees and/or executives of
MediciNova.
11. Dispute Resolution
Procedure . Any dispute arising out of or related to the
employment relationship created hereby, including the termination
of that relationship and any allegations of unfair or
discriminatory treatment arising under state or federal law or
otherwise, to the maximum extent permitted by law, shall be
resolved by final and binding arbitration, except where the law
specifically forbids the use of arbitration as a final and binding
remedy, or
MediciNova, Inc.
where section (d) below specifically
allows a different remedy. The following dispute resolution
procedure shall apply:
11.1 The party claiming to be
aggrieved shall furnish to the other party a written statement of
the grievance identifying any witnesses or documents that support
the grievance and the relief requested or proposed.
11.2 The responding party
shall furnish a statement of the relief, if any, that it is willing
to provide, and the witnesses or documents that support its
position as to the appropriate action. The parties can mutually
agree to waive this step. If the matter is not resolved at this
step, the parties shall submit the dispute to non-binding mediation
before a mediator to be jointly selected by the parties. MediciNova
will pay the cost of the mediation.
11.3 If the mediation does
not produce a resolution of the dispute, the parties agree that the
dispute shall be resolved by final and binding arbitration. The
parties shall attempt to agree to the identity of an arbitrator,
and, if they are unable to do so, they will obtain a list of
arbitrators from the Federal Mediation and Conciliation Service and
select an arbitrator by striking names from that list. The
arbitrator shall have the authority to determine whether the
conduct complained of in subsection (a) of this section violates
the rights of the complaining party and, if so, to grant any relief
authorized by law, subject to the exclusions of subsection (d)
below. The arbitrator shall not have the authority to modify,
change or refuse to enforce the terms of any employment agreement
between the parties. In addition, the arbitrator shall not have the
authority to require MediciNova to change any lawful policy or
benefit plan. The hearing shall be transcribed. MediciNova shall
bear the costs of the arbitration if Executive prevails. If
MediciNova prevails, Executive will pay half the cost of the
arbitration or $500, whichever is less. Each party shall be
responsible for paying its own attorneys fees.
Arbitration shall be the exclusive
final remedy for any dispute between
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