Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (this “ Agreement ”) is entered into by
and between Michael E. Kalafer, M.D., (“ Kalafer
”) and MediciNova, Inc. a Delaware corporation (the “
Company ”), with regard to the following:
A. Whereas, Kalafer served in
various capacities as an officer and employee of the Company, most
recently as Chief Medical Officer of the Company, until
June 12, 2009 (the “ Separation Date ”);
and
B. Whereas, Kalafer and the Company
are parties to that certain Executive Employment Agreement, dated
as of July 3, 2008 (the “ Employment Agreement
”), providing for certain rights and responsibilities on the
part of Kalafer and the Company.
NOW, THEREFORE, the parties hereto
agree as follows:
1. Severance Payments . In
consideration of the covenants and promises contained in this
Agreement and as full and final satisfaction of all obligations the
Company owes to Kalafer under the Employment Agreement or
otherwise, the Company shall pay to Kalafer, or on Kalafer’s
behalf, as severance payments the following amounts, less
appropriate deductions and withholdings:
(a) Provided Kalafer executes this
Agreement and after the Effective Date (as defined below),
compensation representing the amount Kalafer would have received as
salary for June 12, 2009 through December 12, 2009 under
the Employment Agreement in the aggregate gross amount of $133,900,
less income and employment taxes required in the judgment of the
Company to be deducted or withheld, to be paid on the date of the
Company’s first regularly scheduled payroll date following
the Effective Date; and
(b) Provided Kalafer timely elects
continuation coverage pursuant to the provisions relating to the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“
COBRA ”) of the Company’s group health plan, and
provided that Kalafer executes this Agreement, after the Effective
Date, the Company will pay the applicable COBRA premium to continue
medical benefits for Kalafer and his dependents in the same manner
that such benefits are in effect as of the Separation Date for the
six (6) month period of June 12, 2009 through
December 12, 2009 (thereafter Kalafer shall, to the extent he
remains eligible for such benefits, be responsible for paying the
applicable COBRA premium), with the exception that the
Company’s payment of premiums pursuant to this Section and
such benefits will be discontinued if and when Kalafer obtains
medical benefits pursuant to a group health plan of another
employer.
2. Release . In consideration
of the above described payments and benefits to which Kalafer would
not otherwise be entitled, Kalafer does hereby unconditionally,
irrevocably and absolutely release and discharge the Company, and
all related subsidiary entities, and their affiliates, directors,
officers, employees, agents, attorneys, stockholders, insurers,
successors and/or assigns, from any and all liability, claims,
demands, causes of action, or suits of any type, whether in law
and/or in equity, known or unknown, related directly or indirectly
or in any way connected with any transaction, affairs or
occurrences between them to date, including, but not limited to,
Kalafer’s employment with the Company and the termination of
said employment. This release shall include, but not
be limited to, a release of claims arising under
any state or federal statute or common law regulating or affecting
employment, including Title VII of the Civil Rights Act of 1964,
the Age Discrimination in Employment Act of 1967, the Americans
with Disabilities Act of 1990, the Equal Pay Act of 1963, the Fair
Labor Standards Act of 1938, the California Labor Code, the
California Fair Employment and Housing Act and any other statutory
or common law provision relating to or affecting Kalafer’s
employment by the Company, each as amended through the date hereof,
including any federal or state statutory provision covering any age
discrimination in any form by the Company against Kalafer, except
any claim for worker’s compensation. Nothing in this
Agreement is to be construed to release any unknown claims for
industrial injuries arising under the Workers’ Compensation
Act. Kalafer represents that he is not aware of any such injuries
or potential claims and that he has no present intention to file a
claim for benefits under the Workers’ Compensation Act.
However, neither does he, by this Agreement, knowingly intend to
release any claim for injuries which have not yet manifested
themselves or which he has no reason to otherwise suspect he has
suffered.
3. Claims . In further
consideration of the above described payments and benefits, Kalafer
irrevocably and absolutely agrees that he will not prosecute nor
allow to be prosecuted on his behalf in any administrative agency,
whether federal or state, or in any court, whether federal or
state, any claim or demand of any type related to the matter
release above. It is the intention of the parties that, with the
execution of this Agreement, the Company and all related entities,
and their affiliates, officers, directors, employees, agents,
attorneys, stockholders, insurers, successors and/or assigns will
be absolutely, unconditionally and forever discharged of and from
all obligations to or on behalf of Kalafer related in any way to
the matter discharged herein. Kalafer represents that he has not
filed any complaint, charges or lawsuits against the Company and
all related subsidiary entities (including their affiliates,
officers, directors, and employees) with any governmental agency or
any court.
4. Unknown Claims . Kalafer
understands and agrees that this release extends to all claims of
every nature, known or unknown, suspected or unsuspected, past or
present, and that any and all rights granted to Kalafer under
section 1542 of the California Civil Code or any analogous federal
law or regulation are hereby expressly waived. Said section 1542 of
the California Civil Code reads as follows:
“A general release does not
extend to claims which the creditor does not know of or suspect to
exist in his or her favor at the time of executing the release,
which if known by him or her must have materially affected his or
her settlement with the debtor.”
Notwithstanding any provisions of
this Agreement to the contrary, Kalafer does not waive any right or
release any claim against the Company which claim or right arises
from the Company failing to perform its undertakings as set forth
in this Agreement and/or may arise after the date Kalafer executes
this release including Kalafer’s rights, if any, pursuant to
COBRA.
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5. Effect on Previous or Existing
Agreements . This Agreement is intended to resolve any and all
issues between the Company and Kalafer, including any and all
claims for wages, severance pay, compensation, benefits or other
aspects of the employment relationship between the Company and
Kalafer. Except as set
