Form 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported): September 1, 2011
MEDICINOVA, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE (State or other jurisdiction of incorporation) |
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001-33185 (Commission File Number) |
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33-0927979 (I.R.S. Employer Identification No.) |
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4350 LA JOLLA VILLAGE DRIVE,
SUITE 950, SAN DIEGO, CA (Address of principal executive offices) |
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92122 (Zip Code) |
Registrants telephone number, including area
code: (858) 373-1500
Not applicable.
(Former name or former address, if changed since last report.)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 |
Entry into a Material Definitive Agreement. |
On September 1, 2011, our Board of Directors retained Michael J. Gennaro, a partner at FLG Partners, LLC (FLG Partners), a leading Silicon Valley chief financial officer services and
board advisory consultancy firm, to serve as our Chief Financial Officer. Mr. Gennaro will serve as our Chief Financial Officer and principal financial and accounting officer. Michael Coffee, our current Chief Business Officer, resigned as our
Interim Chief Financial Officer effective upon the appointment of Mr. Gennaro to such position and Mr. Coffee ceased serving as our principal financial and accounting officer at that time.
Mr. Gennaro, age 60, has over 30 years of financial, operational and international experience, and has been a
partner at FLG Partners since December 2006. While at FLG Partners, Mr. Gennaro has provided financial consulting services to several companies, including Nordic Windpower USA, Inc., Blue Coat Systems, Inc. (Nasdaq: BCSI), SMART Modular
Technologies (WWH) Inc. and MIPS Technologies, Inc. From March 2000 to January 2006, he held the position of Vice President - Finance and CFO, at Sylantro Systems, Inc., a provider of telecommunications software. From 1998 to 2000, Mr. Gennaro
served as Vice President - Finance and CFO at Inverse Network Technology, Inc., a provider of software that measures the quality of internet service. He served as Vice President - Finance of Novell, Inc. (Nasdaq: NOVL), a provider of server
operating systems and internet software from 1994 to 1998. He also previously served as Vice President - Finance and Chief Financial Officer of Piiceon, Inc. and Verticom, Inc., and held several other finance-related positions at high-tech
companies. He is a former Audit Manager with Arthur Young & Company, now Ernst & Young, and was a Certified Public Accountant in California and New Jersey. Mr. Gennaro holds an M.B.A. in Accounting from Rutgers Graduate School
of Business and a B.S. in Mathematics from Rutgers University.
In connection with retaining Mr. Gennaro
as our Chief Financial Officer, we entered into a Confidential Consulting Agreement with FLG Partners, effective September 1, 2011, for the provision of Mr. Gennaros services (the Consulting Agreement), and will pay FLG
Partners at a rate of $300 per hour for Mr. Gennaros services under the Consulting Agreement. The Consulting Agreement requires that the Company indemnify Mr. Gennaro and FLG Partners in connection with his performance of services.
It has an indefinite term, subject to termination in accordance with its terms.
The foregoing description of
Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the Consulting Agreement, a copy of which is filed herewith as Exhibit 10.1 and incorporated herein by reference.
On September 1, 2011, our Board of Directors appointed Kazuko Matsuda, M.D., Ph.D, MPH as our Chief Medical Officer.
Dr. Matsuda, age 45, has served as our Vice President of Clinical Development since April 2010 with responsibility for all of our clinical development. From August 2008 to November 2009, Dr. Matsuda served as an assistant professor with
the University of Southern California, Keck School of Medicine. From August 2005 to July 2008, Dr. Matsuda served as Clinical Fellow with the Childrens Hospital Los Angeles. Dr. Matsuda commenced her residency in internal
medicine/pediatrics at Michigan State University and completed a pediatric residency at Loma Linda University. Dr. Matsuda is a board certified pediatrician in both the United States and Japan. Dr. Matsuda holds an M.D. and Ph.D. from
Sapporo Medical University School of Medicine and an MPH from Harvard University, School of Public Health.
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connection with appointing Dr. Matsuda as our Chief Medical Officer, our Board of Directors approved (i) an increase in her annual base salary from $240,000 to $285,000 with the base salary increase effective as of September 1, 2011;
(ii) a grant of a stock option to purchase 60,000 shares of our
common stock at the fair market value on September 1, 2011, and subject to monthly year
vesting for the 48 months from the date of grant; and (iii) a target bonus eligibility increase from 15% of her base salary to 30% of her base salary, pro-rated for 2011.
Item 9.01 |
Financial Statements and Exhibits. |
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Number |
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Description |
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10.1 |
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Confidential Consulting Agreement, dated September 1, 2011, by and between MediciNova, Inc. and FLG Partners, LLC. |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
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MEDICINOVA, INC. |
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By: |
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/s/ Michael Coffee |
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Michael Coffee |
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Chief Business Officer |
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Date: September 8, 2011 |
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EXHIBIT INDEX
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Number |
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Description |
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10.1 |
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Confidential Consulting Agreement, dated September 1, 2011, by and between MediciNova, Inc. and FLG Partners, LLC. |
Confidential Consulting Agreement
Exhibit 10.1
CONFIDENTIAL CONSULTING AGREEMENT
This Consulting Agreement (the Agreement) is executed as of the date shown
on the signature page (the Effective Date), by and between FLG Partners, LLC, a California limited liability company (FLG), and the entity identified on the signature page (Client).
RECITALS
WHEREAS,
FLG is in the business of providing certain financial services;
WHEREAS, Client wishes to retain FLG to provide and FLG
wishes to provide such services to Client on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, the parties hereto agree as follows:
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A. |
Commencing on the Effective Date, FLG will perform those services (the Services) described in one or more exhibits attached hereto. Such
services shall be performed by the member or members of FLG identified in Exhibit A (collectively, the FLG Member). |
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B. |
Client acknowledges and agrees that FLGs success in performing the Services hereunder will depend upon the participation, cooperation and
support of Clients most senior management. |
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C. |
Except as otherwise provided in this Agreement, neither FLG nor any of its members shall serve as an employee, an appointed officer, or an elected
director of Client. Consistent with the immediately prior sentence: (i) Client shall not appoint FLG Member as a corporate officer in Clients corporate minutes; (ii) Client shall not elect FLG Member to its board of directors or
equivalent governing body; and (iii) the FLG Member shall have no authority to sign any documents on behalf of Client, including, but not limited to, federal or state securities filings, tax filings, or representations and warranties on behalf
of Client except as pursuant to a specific resolution(s) of Clients board of directors or equivalent governing body granting such authority to FLG Member as a non-employee consultant to Client. |
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D. |
The Services provided by FLG and FLG Member hereunder shall not constitute an audit, attestation, review, compilation, or any other type of
financial statement reporting engagement (historical or prospective) that is subject to the rules of the California Board of Accountancy, the AICPA, or other similar state or national licensing or professional bodies. Client agrees that any such
services, if required, will be performed separately by its independent public accountants or other qualified consultants. |
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E. |
During the term of this Agreement, Client shall not hire or retain the FLG Member as an employee, consultant or independent contractor except
pursuant to this Agreement. |
2. |
Compensation; Payment; Deposit; Expenses. |
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A. |
As compensation for Services rendered by FLG hereunder, Client shall pay FLG the amounts set forth in Exhibit A for Services performed by FLG
hereunder (the Fees). The Fees shall be net of any and all taxes, withholdings, duties, customs, social contributions or other reductions imposed by any and all authorities which are required to be withheld or collected by Client or FLG,
including ad valorem, sales, gross receipts or similar taxes, but excluding US income taxes based upon FLGs or FLG Members net taxable income. |
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B. |
As additional compensation to FLG, Client will pay FLG the incentive bonus or warrants or options, if any, set forth in Exhibit A.
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C. |
Client shall pay FLG all amounts owed to FLG under this Agreement upon Clients receipt of invoice, with no purchase order required. Any
invoices more than thirty (30) days overdue will accrue a late payment fee at the rate of one and 50/100 percent (1.5%) per month. FLG shall be entitled to recover all costs and expenses (including, without limitation, attorneys
fees) incurred by it in collecting any amounts overdue under this Agreement. |
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Client hereby agrees to pay FLG a deposit as set forth on Exhibit A (the Deposit) to be held in its entirety as security for
Clients future payment obligations to FLG under this Agreement. Upon termination of this Agreement, all amounts then owing to FLG under this Agreement shall be charged against the Deposit and the balance thereof, if any, shall be refunded to
Client within ten (10) days of such termination. |
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Within ten (10) days of Clients receipt of an expense report from FLGs personnel performing Services hereunder, Client shall immediately
reimburse FLG personnel directly for reasonable travel and out-of-pocket business expenses detailed in such expense report. Any required air travel, overnight accommodation and resulting per diem expenses shall be consistent with Clients
travel & expense policies for Clients employed executive staff. |
3. |
Relationship of the Parties. |
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FLGs relationship with Client will be that of an independent contractor and nothing in this Agreement shall be construed to create a
partnership, joint venture, or employer-employee relationship. FLG is not the agent of Client and is not authorized to make any presentation, contract, or commitment on behalf of Client unless specifically requested or authorized to do so by Client
in writing. FLG agrees that all taxes payable as a result of compensation payable to FLG hereunder shall be FLGs sole liability. FLG shall defend, indemnify and hold harmless Client, Clients officers, directors, employees and agents, and
the administrators of Clients benefit plans from and against any claims, liabilities or expenses relating to such taxes or compensation. |
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The term of this Agreement shall be for the period set forth in Exhibit A. |
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B. |
Either party may terminate this Agreement upon thirty (30) days advance written notice to the other party. |
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Either party may terminate this Agreement immediately upon a material breach of this Agreement by the other party and a failure by the other party
to cure such breach within ten (10) days of written notice thereof by the non-breaching party to the breaching party. |
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FLG shall have the right to terminate this Agreement immediately without advance written notice (i) if Client is
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Initial Client FLG
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CONFIDENTIAL CONSULTING AGREEMENT
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engaged in, or requests that FLG or the FLG Member undertake or ignore any illegal or unethical activity, or (ii) upon the death or disability of the FLG Member.
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E. |
This Agreement shall be deemed terminated if during any six month period no billable hours occur, with the termination date effective on the date of
the last billable hour therein. |
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F. |
If at any time during the one (1) year period following termination of this Agreement Client shall hire or retain the FLG Member as an
employee, consultant or independent contractor, AND in doing so induce, compel or cause FLG Member to leave FLG as a precondition to commencing or continuing employment or consultancy with Client, Client shall immediately pay to FLG in
readily available funds a recruiting fee equal to the annualized amount of Fees payable hereunder, which shall equal either (i) 260 multiplied by the daily rate, if this Agreement provides for Fees payable by daily rate, or (ii) 2,100
multiplied by the hourly rate, if this Agreement provides for Fees payable by hourly rate, multiplied by thirty percent (30%). |
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IRS Circular 230. To ensure compliance with requirements imposed by the IRS effective June 20, 2005, FLG hereby informs Client that any tax
advice offered during the course of providing, or arising out of, the Services rendered pursuant to this Agreement, unless expressly stated otherwise, is not intended or written to be used, and cannot be used, for the purpose of: (i) avoiding
tax-related penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any tax-related matter(s) said tax advice address(es). |
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Attorney-Client Privilege. Privileged communication disclosed to FLG or FLG Member may waive the privilege through no fault of FLG. FLG strongly
recommends that Client consult with legal counsel before disclosing privileged information to FLG or FLG Member. Pursuant to paragraph 6, neither FLG nor FLG Member will be responsible for damages caused through Clients waiver of privilege,
whether deliberate or inadvertent, by disclosing such information to FLG or FLG Member. |
6. |
DISCLAIMERS AND LIMITATION OF LIABILITY. |
EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL SERVICES TO BE PROVIDED BY FLG AND FLG MEMBER (FOR PURPOSES OF THIS
PARAGRAPH 6, COLLECTIVELY FLG) HEREUNDER ARE PROVIDED AS IS WITHOUT ANY WARRANTY WHATSOEVER. CLIENT RECOGNIZES THAT THE AS IS CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT
WHICH FLG WOULD NOT HAVE AGREED TO ENTER INTO THIS AGREEMENT. FLG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, TERMS OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PROFESSIONAL SERVICES, INCLUDING ANY, WARRANTIES OF
MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, REGARDING THE SERVICES PROVIDED HEREUNDER SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF FLG
WHATSOEVER.
IN NO EVENT SHALL FLG BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO: LOST PROFITS; REVENUE OR SAVINGS; WAIVER BY CLIENT, WHETHER INADVERTENT OR INTENTIONAL, OF CLIENTS ATTORNEY-CLIENT PRIVILEGE THROUGH
CLIENTS DISCLOSURE OF LEGALLY PRIVILEGED INFORMATION TO FLG; OR THE LOSS, THEFT, TRANSMISSION OR USE, AUTHORIZED OR OTHERWISE, OF ANY DATA, EVEN IF CLIENT OR FLG HAVE BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, FLGS AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO TWO
(2) MONTHS OF FEES PAYABLE BY CLIENT UNDER PARAGRAPH 2(A) OF THIS AGREEMENT. CLIENT ACKNOWLEDGES THAT THE COMPENSATION PAID BY IT UNDER THIS AGREEMENT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT FLG WOULD NOT ENTER INTO
THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THIS PARAGRAPH SHALL NOT APPLY TO EITHER PARTY WITH RESPECT TO A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS.
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As a condition for recovery of any amount by Client against FLG, Client shall give FLG written notice of the alleged basis for liability within
ninety (90) days of discovering the circumstances giving rise thereto, in order that FLG will have the opportunity to investigate in a timely manner and, where possible, correct or rectify the alleged basis for liability; provided that the
failure of Client to give such notice will only affect the rights of Client to the extent that FLG is actually prejudiced by such failure. Notwithstanding anything herein to the contrary, Client must assert any claim against FLG by the sooner of:
(i) ninety (90) days after discovery; (ii) ninety (90) days after the termination of this Agreement; (iii) ninety (90) days after the last date on which the Services were performed; or, (iv) sixty (60) days
after completion of a financial or accounting audit for the period(s) to which a claim pertains. |
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FLG and FLG Member acting in relation to any of the affairs of Client shall, to the fullest extent permitted by law, as now or hereafter in effect,
be indemnified and held harmless, and such right to indemnification shall continue to apply to FLG and FLG Member following the term of this Agreement out of the assets and profits of the Client from and against all actions, costs, charges, losses,
damages, liabilities and expenses which FLG or FLG Member, or FLGs or FLG Members heirs, executors or administrators, shall or may incur or sustain by or by reason for any act done, concurred in or omitted in or about the execution of
FLGs or FLG Members duty or services performed on behalf of Client; and Client shall advance the reasonable attorneys fees, costs and expenses incurred by FLG or FLGs Member in connection with litigation related to the
foregoing on the same basis as such advancement would be available to the Clients officers and directors, PROVIDED THAT Client shall not be obligated to make payments to or on behalf of any person (i) in connection with services provided
by such person outside the scope of Services contemplated by this Agreement, and not authorized or consented to by Clients
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Initial Client
FLG |
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CONFIDENTIAL CONSULTING AGREEMENT
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CEO or Board of Directors, or (ii) in respect of any (a) gross negligence or willful misconduct of such person, or (b) negligence of such person, but only to the extent that
FLGs errors and omissions liability insurance would cover such person for such negligence without regard to Clients obligation to indemnify FLG hereunder. |
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B. |
FLG and FLG Member shall have no liability to Client relating to the performance of its duties under this agreement except in the event of
FLGs or FLG Members gross negligence or willful misconduct. |
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C. |
FLG and FLG Member agree to waive any claim or right of action FLG or FLG Member might have whether individually or by or in the right of Client,
against any director, secretary and other officers of Client and the liquidator or trustees (if any) acting in relation to any of the affairs of Client and every one of them on account of any action taken by such director, officer, liquidator or
trustee or the failure of such director, officer, liquidator or trustee to take any action in the performance of his duties with or for Client; PROVIDED THAT such waiver shall not extend to any matter in respect of any gross negligence or willful
misconduct which may attach to any such persons. |
8. |
Representations and Warranties. |
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Each party represents and warrants to the other that it is authorized to enter into this Agreement and can fulfill all of its obligations hereunder.
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B. |
FLG and FLG Member warrant that they shall perform the Services diligently, with due care, and in accordance with prevailing industry standards for
comparable engagements and the requirements of this Agreement. FLG and FLG Member warrant that FLG Member has sufficient professional experience to perform the Services in a timely and competent manner. |
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Each party represents and warrants that it has and will maintain a policy or policies of insurance with reputable insurance companies providing the
members, officers and directors, as the case may be, of itself with coverage for losses from wrongful acts. FLG covenants that it has an error and omissions insurance policy in place in the form provided to Client prior to or contemporaneously with
the date of execution of this Agreement and will continue to maintain such policy or equivalent policy provided that such policy or equivalent policy shall be available at commercially reasonable rates. |
9. |
Work Product License. The parties do not anticipate that FLG or FLG Member will create any intellectual property for Client in performing the
Services pursuant to this Agreement. However, FLG and FLG Member grant to Client a world-wide, perpetual, exclusive, royalty-free license to use and create derivative works from all tangible and electronic documents, spreadsheets, and financial
models (collectively, Work Product) produced or authored by FLG Member in the course of performing the Services pursuant to this Agreement. Any patent rights arising out of the Services will be assigned to and owned by Client and not FLG
or FLG Member. All other rights, including (but not limited to) residual memory of methods, discoveries and analytical tools, to Work Product are reserved by FLG and FLG Member. |
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A. |
Any notice required or permitted to be given by either party hereto under this Agreement shall be in writing and shall be personally delivered or
sent by a reputable courier mail service (e.g., Federal
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Express) or by facsimile confirmed by reputable courier mail service, to the other party as set forth in this Paragraph 10(A). Notices will be deemed effective two (2) days after deposit
with a reputable courier service or upon confirmation of receipt by the recipient from such courier service or the same day if sent by facsimile and confirmed as set forth above. |
Jeffrey S. Kuhn
Managing Partner
FLG Partners, LLC
P.O. Box 556
7 East Road
Ross, CA 94957-0556
Tel: 415-454-5506
Fax: 415-456-1191
E-mail: jeff@flgpartners.com
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If to Client: the address, telephone numbers and email address shown below Clients signature on the signature page.
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B. |
This Agreement will be governed by and construed in accordance with the laws of California without giving effect to any choice of law principles
that would require the application of the laws of a different jurisdiction. |
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C. |
Any claim, dispute, or controversy of whatever nature arising out of or relating to this Agreement (including any other agreement(s) contemplated
hereunder), including, without limitation, any action or claim based on tort, contract, or statute (including any claims of breach or violation of statutory or common law protections from discrimination, harassment and hostile working environment),
or concerning the interpretation, effect, termination, validity, performance and/or breach of this Agreement (Claim), shall be resolved by final and binding arbitration before a single arbitrator (Arbitrator) selected from
and administered by the San Francisco office of JAMS (the Administrator) in accordance with its then existing commercial arbitration rules and procedures. The arbitration shall be held in the San Diego County, California. The Arbitrator
shall, within fifteen (15) calendar days after the conclusion of the Arbitration hearing, issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation
of any damages awarded. The Arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief he or she deems just and equitable and within the scope of this Agreement, including, without limitation, an
injunction or order for specific performance. Each party shall bear its own attorneys fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Administrator and the Arbitrator;
provided, however, the Arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys fees, costs and disbursements, and/or the fees
and costs of the Administrator and the Arbitrator. The Arbitrators award may be enforced in any court of competent jurisdiction. Notwithstanding the foregoing, nothing in this Paragraph 10(C) will restrict either party from applying to any
court of competent jurisdiction for injunctive relief. |
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Neither party may assign its rights or delegate its obligations hereunder, either in whole or in part, whether by operation of law or otherwise,
without the prior written consent of the other party; provided, however, that FLG may assign its rights and
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Initial
FLG
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CONFIDENTIAL CONSULTING AGREEMENT
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delegate its obligations hereunder to any affiliate of FLG (so long as such assignment does not result in a change in the person serving as the FLG Member). The rights and liabilities of the
parties under this Agreement will bind and inure to the benefit of the parties respective successors and permitted assigns. |
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E. |
If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be invalid or unenforceable, the remainder of
this Agreement and application of such provision to other persons or circumstances shall be interpreted so as best to reasonably effect the intent of the parties. The parties further agree to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision which will achieve, to the extent possible, the economic, business and other purposes of the void or unenforceable provision. |
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F. |
This Agreement, the Exhibits, and any executed Non-Disclosure Agreements specified herein and thus incorporated by reference constitute the entire
understanding and agreement of the parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements or understandings, express or implied, written or oral, between the parties with respect hereto.
The express terms hereof control and supersede any course of performance or usage of the trade inconsistent with any of the terms hereof. |
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G. |
Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by
the parties. The waiver by a party of any breach hereof for default in payment of any amount due hereunder or default in the performance hereof shall not be deemed to constitute a waiver of any other default or succeeding breach or default.
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H. |
Upon completion of the engagement hereunder, FLG may place customary tombstone advertisements using Clients logo and name in
publications of FLGs choice at its own expense, and/or cite the
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engagement in similar fashion on FLGs website subject to prior written consent by Client, which consent shall not to be unreasonably withheld. |
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I. |
If and to the extent that a partys performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed by fire,
flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of such party (each, a Force Majeure Event), and
such non-performance, hindrance or delay could not have been prevented by reasonable precautions of the non-performing party, then the non-performing, hindered or delayed party shall be excused for such non-performance, hindrance or delay, as
applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues and such party continues to use its best efforts to recommence performance whenever and to whatever extent possible without delay,
including through the use of alternate sources, workaround plans or other means. |
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J. |
This Agreement may be executed in any number of counterparts and by the parties on separate counterparts, each of which when executed and delivered
shall constitute an original, but all the counterparts together constitute one and the same instrument. |
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K. |
This Agreement may be executed by facsimile signatures (including electronic versions of this document in Adobe Acrobat Portable Document Format
form which contain scanned or secure, digitally signed signatures) by any party hereto and such signatures shall be deemed binding for all purposes hereof, without delivery of an original signature being thereafter required.
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L. |
Survivability. The following paragraphs shall survive the termination of this Agreement: 6 (Disclaimers and Limitation of
Liability); 7 (Indemnification); 8 (Representations and Warranties); 9 (Work Product License); and 10 (Miscellaneous).
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IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.
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CLIENT: |
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FLG: |
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MediciNova, Inc., |
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FLG Partners, LLC, |
a Delaware corporation.
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a California limited liability company. |
By: |
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Michael D. Coffee |
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By: |
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Jeffrey S. Kuhn |
Signed: |
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Signed: |
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Title: |
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Chief Business Officer |
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Title: |
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Managing Partner |
Address:
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4350 La Jolla Village Dr., Ste. 950 |
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Effective Date: September 1, 2011 |
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San Diego, CA 92122
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Tel: |
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858-373-1500 |
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Fax: |
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858-373-7000 |
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Email: |
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Initial
Client FLG
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CONFIDENTIAL CONSULTING AGREEMENT
EXHIBIT A
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1. |
Description of Services: CFO services typical of those for a publicly-held corporation. |
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2. |
FLG Member: Michael J. Gennaro. |
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3. |
Fees: $300 per hour; travel time between FLG Members residence and Clients offices shall be billed at $150
per hour subject to a maximum of two hours in each direction. |
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4. |
Additional Compensation: None. |
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Term: Indefinite, and terminable pursuant to Paragraph 4 of the Agreement. |
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7. |
Non-Disclosure Agreement: FLG-Client Mutual Non-Disclosure Agreement dated September 1, 2011.
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Initial Client FLG
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Page 5 of 5 |
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FLG MediciNova Confidential Consulting Agreement 110901.doc |