Exhibit 10.35
EMPLOYMENT AGREEMENT
AGREEMENT (the "AGREEMENT"), effective as of December 20, 2004, by and
between NOVADEL PHARMA, INC., a [Delaware] corporation with principal executive
offices at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "COMPANY"),
and ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇, residing at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(the "EXECUTIVE").
W I T N E S S E T H :
WHEREAS, the Company desires to employ the Executive as Chief Financial
Officer of the Company, and the Executive desires to serve the Company in those
capacities, upon the terms and subject to the conditions contained in this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. Employment.
The Company agrees to employ the Executive, and the Executive agrees
to be employed by the Company, upon the terms and subject to the conditions of
this Agreement.
2. Term.
The employment of the Executive by the Company as provided in
Section 1 shall be for a period of three (3) years commencing on December 20,
2004, unless sooner terminated in accordance with the provisions of Section 8
below (the "TERM").
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3. Duties; Best Efforts; Place of Performance.
(a) The Executive shall serve as Chief Financial Officer of the
Company and shall perform, subject to the direction of the President & Chief
Executive Officer of the Company, such duties as are customarily performed by
the Chief Financial Officer. The Executive shall also have such other powers and
duties as may be from time to time prescribed by the President & CEO of the
Company, provided that the nature of the Executive's powers and duties so
prescribed shall not be inconsistent with the Executive's position and duties
hereunder.
(b) The Executive shall devote all of his business time, attention
and energies to the business and affairs of the Company, shall use his best
efforts to advance the best interests of the Company and shall not during the
Term be actively engaged in any other business activity, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage, that
will interfere with the performance by the Executive of his duties hereunder or
the Executive's availability to perform such duties or that will adversely
affect, or negatively reflect upon, the Company.
(c) The duties to be performed by the Executive hereunder shall be
performed primarily at the office of the Company in Flemington, New Jersey,
subject to reasonable travel requirements on behalf of the Company.
4. Compensation.
As full compensation for the performance by the Executive of his
duties under this Agreement, the Company shall pay the Executive as follows:
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(a) Base Salary. The Company shall pay the Executive a base salary
(the "BASE SALARY") at a rate of $235,000 per annum, payable in equal bi-weekly
installments during the Term. Base Salary shall be subject to customary periodic
review for increase by the Company.
Bonus. At the completion of each full year of Executive's employment, the
Company shall pay the Executive a cash bonus equal to 30% (thirty percent) of
his base salary, that is, the sum or $70,500, provided, however, that such bonus
shall be payable only upon the successful achievement of certain performance
milestones related to the Executive's role in the Company, which milestones
shall be defined and enumerated by mutual agreement between the Executive and
the President & CEO of the Company within the first two weeks of Executive's
term of employment, and again at the same time in each succeeding year of
Executive's term of employment with the Company.
(b) Withholding. The Company shall withhold all applicable federal,
state and local taxes and social security and such other amounts as may be
required by law from all amounts payable to the Executive under this Section 4.
(c) Stock Options. Promptly after the date hereof, and as additional
compensation for the services to be rendered by the Executive pursuant to this
Agreement, the Company shall grant the Executive [non-qualified] stock options
("STOCK OPTIONS") to purchase 100,000 shares of Common Stock of the Company
pursuant to the Company's [1998 Stock Option Plan]. Such stock options shall
vest ratably over a three-year period ending on the third anniversary of the
initial date of Executive's employment by NovaDel, so that 33,333 shares of the
Company's Common Stock will vest on each of December 20, 2005 and December 20,
2006, and 33,334 shares of the Company's Common Stock will vest on December 20,
2007, subject to the provisions of Section 9 below. The exercise price of said
100,000 shares shall be equal to 110% of the average Fair Market Value (trading
price) on the ten days immediately preceding the signing of this Employment
Agreement by the Executive. In connection with such grant, the Executive shall
enter into the Company's standard stock option agreement which will incorporate
the foregoing vesting schedule and the Stock Option related provisions contained
in Section 9 below. All Options will have a 10 year expiration period, provided
that this is pursuant to the Company's [1998 Stock Option Plan].
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(d) Expenses. The Company shall reimburse the Executive for all
normal, usual and necessary expenses incurred by the Executive in furtherance of
the business and affairs of the Company, including reasonable travel and
entertainment, upon timely receipt by the Company of appropriate vouchers or
other proof of the Executive's expenditures and otherwise in accordance with any
expense reimbursement policy as may from time to time be adopted by the Company.
The Company shall also reimburse the Executive for all reasonable professional
fees, including but not limited to, the annual licensing fees for a certified
public accountant.
(e) Other Benefits. The Executive shall be entitled to all rights
and benefits for which he shall be eligible under any benefit or other plans
(including, without limitation, dental, medical, medical reimbursement and
hospital plans, pension plans, employee stock purchase plans, profit sharing
plans, bonus plans and other so-called "fringe" benefits) as the Company shall
make available to its senior executives from time to time.
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(f) Vacation. The Executive shall, during the Term, be entitled to a
vacation of four (4) weeks per annum. The Executive shall not be entitled to
carry any vacation forward to the next year of employment, as defined in the
terms of this Agreement, and shall not receive any compensation for unused
vacation days. In addition, the Executive shall be entitled to participate in
such Company Holidays and in the number of Sick/Personal/Bereavement days as may
be allotted to its employees from time to time.
(g) Moving/relocation Expenses. The Company will provide the
Executive with a sum not to exceed twenty-five thousand dollars ($25,000),
either as one lump sum to be used at his discretion, or alternatively reimbursed
(upon presentation of valid receipts), to cover various relocation expenses for
Executive and his family from their current domicile to a location in closer
proximity to the Company. The Company will also pay for up to ninety (90) days
of storage of household goods, if necessary. Until Executive is prepared to
relocate his family, the Company will reimburse Executive for his rent on his
current apartment in Princeton, NJ for a period of six (6) months, as well as
for commutation expenses from Connecticut (tolls & mileage) for six (6) months.
All amounts provided for under the aegis of Moving/relocation Expenses as
heretofore written are subject to full restitution by Executive to the Company
in the event that Executive leaves the Company before the completion of one (1)
year of service.
5. Confidential Information and Inventions
(a) The Executive recognizes and acknowledges that in the course of
his duties he is likely to receive confidential or proprietary information owned
by the Company, its affiliates or third parties with whom the Company or any
such affiliates has an obligation of confidentiality. Accordingly, during and
after the Term, the Executive agrees to keep
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confidential and not disclose or make accessible to any other person or use for
any other purpose other than in connection with the fulfillment of his duties
under this Agreement, any Confidential and Proprietary Information (as defined
below) owned by, or received by or on behalf of, the Company or any of its
affiliates. "Confidential and Proprietary Information" shall include, but shall
not be limited to, confidential or proprietary scientific or technical
information, data, formulas and related concepts, business plans (both current
and under development), client lists, promotion and marketing programs, trade
secrets, or any other confidential or proprietary business information relating
to development programs, costs, revenues, marketing, investments, sales
activities, promotions, credit and financial data, manufacturing processes,
financing methods, plans or the business and affairs of the Company or of any
affiliate or client of the Company. The Executive expressly acknowledges the
trade secret status of the Confidential and Proprietary Information and that the
Confidential and Proprietary Information constitutes a protectable business
interest of the Company. The Executive agrees: (i) not to use any such
Confidential and Proprietary Information for himself or others; and (ii) not to
take any Company material or reproductions (including but not limited to
writings, correspondence, notes, drafts, records, invoices, technical and
business policies, computer programs or disks) thereof from the Company's
offices at any time during his employment by the Company, except as required in
the execution of the Executive's duties to the Company. The Executive agrees to
return immediately all Company material and reproductions (including but not
limited, to writings, correspondence, notes, drafts, records, invoices,
technical and business policies, computer programs or disks) thereof in his
possession to the Company upon request and in any event immediately upon
termination of employment.
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(b) Except with prior written authorization by the Company, the
Executive agrees not to disclose or publish any of the Confidential and
Proprietary Information, or any confidential, scientific, technical or business
information of any other party to whom the Company or any of its affiliates owes
an obligation of confidence, at any time during or after his employment with the
Company.
(c) The Executive agrees that all inventions, discoveries,
improvements and patentable or copyrightable works ("INVENTIONS") initiated,
conceived or made by him, either alone or in conjunction with others, during the
Term shall be the sole property of the Company to the maximum extent permitted
by applicable law and, to the extent permitted by law, shall be "works made for
hire" as that term is defined in the United States Copyright Act (17 U.S.C.A.,
Section 101). The Company shall be the sole owner of all patents, copyrights,
trade secret rights, and other intellectual property or other rights in
connection therewith. The Executive hereby assigns to the Company all right,
title and interest he may have or acquire in all such Inventions. The Executive
further agrees to assist the Company in every proper way (but at the Company's
expense) to obtain and from time to time enforce patents, copyrights or other
rights on such Inventions in any and all countries, and to that end the
Executive will execute all documents necessary:
(i) to apply for, obtain and vest in the name of the Company
alone (unless the Company otherwise directs) letters patent, copyrights or other
analogous protection in any country throughout the world and when so obtained or
vested to renew and restore the same; and
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(ii) to defend any opposition proceedings in respect of such
applications and any opposition proceedings or petitions or applications for
revocation of such letters patent, copyright or other analogous protection.
(d) The Executive acknowledges that while performing the services
under this Agreement the Executive may locate, identify and/or evaluate patented
or patentable inventions having commercial potential in the fields of pharmacy,
pharmaceutical, biotechnology, healthcare, technology and other fields which may
be of potential interest to the Company or one of its affiliates (the "THIRD
PARTY INVENTIONS"). The Executive understands, acknowledges and agrees that all
rights to, interests in or opportunities regarding, all Third-Party Inventions
identified by the Company, any of its affiliates or either of the foregoing
persons' officers, directors, employees (including the Executive), agents or
consultants during the Employment Term shall be and remain the sole and
exclusive property of the Company or such affiliate and the Executive shall have
no rights whatsoever to such Third-Party Inventions and will not pursue for
himself or for others any transaction relating to the Third-Party Inventions
which is not on behalf of the Company.
(e) The provisions of this Section 5 shall survive any termination
of this Agreement.
6. Non-Competition, Non-Solicitation and Non-Disparagement
(a) The Executive understands and recognizes that his services to
the Company are special and unique and that in the course of performing such
services the Executive will have access to and knowledge of Confidential and
Proprietary Information (as defined in Section 6) and the Executive agrees that,
during the Term and for a period of [two (2)] years
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thereafter, he shall not in any manner, directly or indirectly, on behalf of
himself or any person, firm, partnership, joint venture, corporation or other
business entity ("PERSON"), enter into or engage in any business which is
engaged in any business competitive with the business of the Company, either as
an individual for his own account, or as a partner, joint venturer, owner,
executive, employee, independent contractor, principal, agent, consultant,
salesperson, officer, director or shareholder of a Person in a business
competitive with the Company within the geographic area of the Company's
business, which is deemed by the parties hereto to be worldwide. The Executive
acknowledges that, due to the unique nature of the Company's business, the loss
of any of its clients or business flow or the improper use of its Confidential
and Proprietary Information could create significant instability and cause
substantial damage to the Company and its affiliates and therefore the Company
has a strong legitimate business interest in protecting the continuity of its
business interests and the restriction herein agreed to by the Executive
narrowly and fairly serves such an important and critical business interest of
the Company. For purposes of this Agreement, the Company shall be deemed to be
actively engaged on the date hereof in the development of novel application drug
delivery systems for presently marketed prescription and over-the-counter drugs
and providing consulting services in connection therewith, and in the future in
any other business in which it actually devotes substantive resources to study,
develop or pursue. Notwithstanding the foregoing, nothing contained in this
Section 6(a) shall be deemed to prohibit the Executive from acquiring or
holding, solely for investment, publicly traded securities of any corporation,
some or all of the activities of which are competitive with the business of the
Company so long as such securities do not, in the aggregate, constitute more
than five percent (5%) of any class or series of outstanding securities of such
corporation.
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(b) During the Term and for two (2) years thereafter, the Executive
shall not, directly or indirectly, without the prior written consent of the
Company:
(i) solicit or induce any employee of the Company or any of
its affiliates to leave the employ of the Company or any such affiliate; or hire
for any purpose any employee of the Company or any affiliate or any employee who
has left the employment of the Company or any affiliate within one year of the
termination of such employee's employment with the Company or any such affiliate
or at any time in violation of such employee's non-competition agreement with
the Company or any such affiliate; or
(ii) solicit or accept employment or be retained by any Person
who, at any time during the term of this Agreement, was an agent, client or
customer of the Company or any of its affiliates where his position will be
related to the business of the Company or any such affiliate; or
(iii) solicit or accept the business of any agent, client or
customer of the Company or any of its affiliates with respect to products,
services or investments similar to those provided or supplied by the Company or
any of its affiliates.
(c) The Executive agrees that both during the Term and at all times
thereafter, he shall not directly or indirectly disparage, whether or not true,
the name or reputation of the Company or any of its affiliates, including but
not limited to, any officer, director, employee or shareholder of the Company or
any of its affiliates.
(d) In the event that the Executive breaches any provisions of
Section 5 or this Section 6 or there is a threatened breach, then, in addition
to any other rights which the Company may have, the Company shall (i) be
entitled, without the posting of a bond or other security, to injunctive relief
to enforce the restrictions contained in such Sections and (ii) have the right
to require the Executive to account for and pay over to the Company all
compensation, profits, monies, accruals, increments and other benefits
(collectively "BENEFITS") derived or received by the Executive as a result of
any transaction constituting a breach of any of the provisions of Sections 5 or
6 and the Executive hereby agrees to account for and pay over such Benefits to
the Company.
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(e) Each of the rights and remedies enumerated in Section 6(d) shall
be independent of the others and shall be in addition to and not in lieu of any
other rights and remedies available to the Company at law or in equity. If any
of the covenants contained in this Section 6, or any part of any of them, is
hereafter construed or adjudicated to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants or rights or
remedies which shall be given full effect without regard to the invalid
portions. If any of the covenants contained in this Section 6 is held to be
invalid or unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and in
its reduced form such provision shall then be enforceable. No such holding of
invalidity or unenforceability in one jurisdiction shall bar or in any way
affect the Company's right to the relief provided in this Section 6 or otherwise
in the courts of any other state or jurisdiction within the geographical scope
of such covenants as to breaches of such covenants in such other respective
states or jurisdictions, such covenants being, for this purpose, severable into
diverse and independent covenants.
(f) In the event that an actual proceeding is brought in equity to
enforce the provisions of Section 5 or this Section 6, the Executive shall not
urge as a defense that there is an adequate remedy at law nor shall the Company
be prevented from seeking any other remedies which may be available. The
Executive agrees that he shall not raise in any proceeding brought to enforce
the provisions of Section 5 or this Section 6 that the covenants contained in
such Sections limit his ability to earn a living.
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(g) The provisions of this Section 6 shall survive any termination
of this Agreement.
7. Representations and Warranties by the Executive
The Executive hereby represents and warrants to the Company as follows:
(i) Neither the execution or delivery of this Agreement nor
the performance by the Executive of his duties and other obligations hereunder
violate or will violate any statute, law, determination or award, or conflict
with or constitute a default or breach of any covenant or obligation under
(whether immediately, upon the giving of notice or lapse of time or both) any
prior employment agreement, contract, or other instrument to which the Executive
is a party or by which he is bound.
(ii) The Executive has the full right, power and legal
capacity to enter and deliver this Agreement and to perform his duties and other
obligations hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Executive enforceable against him in accordance with its
terms. No approvals or consents of any persons or entities are required for the
Executive to execute and deliver this Agreement or perform his duties and other
obligations hereunder.
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8. Termination. The Executive's employment hereunder shall be terminated
upon the Executive's death and may be terminated as follows:
(a) The Executive's employment hereunder may be terminated by the
Company for Cause. Any of the following actions by the Executive shall
constitute "CAUSE":
(i) The willful failure, neglect or refusal by the Executive
to perform his duties hereunder;
(ii) Any willful, intentional or grossly negligent act by the
Executive having the effect of injuring, in a material way (whether financial or
otherwise and as determined in good-faith by the President of the Company), the
business or reputation of the Company or any of its affiliates, including but
not limited to, any officer, director, executive or shareholder of the Company
or any of its affiliates;
(iii) Willful misconduct by the Executive, including
insubordination, in respect of the duties or obligations of the Executive under
this Agreement;
(iv) The Executive's indictment of any felony or a misdemeanor
involving moral turpitude (including entry of a nolo contendere plea);
(v) The determination by the Company, after a reasonable and
good-faith investigation by the Company following a written allegation by
another employee of the Company, that the Executive engaged in some form of
harassment protected by law (including, without limitation, age, sex or race
discrimination);
(vi) Any misappropriation or embezzlement of the property of
the Company or its affiliates (whether or not a misdemeanor or felony);
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(vii) Breach by the Executive of any of the provisions of
Section 5 or Section 6 of this Agreement; and
(viii) Breach by the Executive of any provision of this
Agreement other than those contained in Section 5 or Section 6 which is not
cured by the Executive within thirty (30) days after notice thereof is given to
the Executive by the Company.
(b) The Executive's employment hereunder may be terminated by the
Company due to the Executive's Disability. For purposes of this Agreement, a
termination for "DISABILITY" shall occur (i) when the Company has provided a
written termination notice to the Executive supported by a written statement
from a reputable independent physician to the effect that the Executive shall
have become so physically or mentally incapacitated as to be unable to resume,
within the ensuing twelve (12) months, his employment hereunder by reason of
physical or mental illness or injury, or (ii) upon rendering of a written
termination notice by the Company after the Executive has been unable to
substantially perform his duties hereunder for 90 or more consecutive days, or
more than 120 days in any consecutive twelve month period, by reason of any
physical or mental illness or injury. For purposes of this Section 8(b), the
Executive agrees to make himself available and to cooperate in any reasonable
examination by a reputable independent physician retained by the Company.
(c) The Executive's employment hereunder may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "GOOD REASON" means a
breach by the Company of its material obligations under Section 3 of this
Agreement which is not cured by the Company within thirty (30) days after notice
thereof is given by the Executive to the Company.
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(d)The Executive's employment hereunder may be terminated by the
Company (or its successor) upon the occurrence of a Change of Control. For
purposes of this Agreement, "CHANGE OF CONTROL" means (i) the acquisition,
directly or indirectly, following the date hereof by any person (as such term is
defined in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as
amended), in one transaction or a series of related transactions, of securities
of the Company representing in excess of fifty percent (50%) or more of the
combined voting power of the Company's then outstanding securities if such
person or his or its affiliate(s) do not own in excess of 50% of such voting
power on the date of this Agreement, or (ii) the future disposition by the
Company (whether direct or indirect, by sale of assets or stock, merger,
consolidation or otherwise) of all or substantially all of its business and/or
assets in one transaction or series of related transactions (other than a merger
effected exclusively for the purpose of changing the domicile of the Company).
9. Compensation upon Termination.
(a) If the Executive's employment is terminated as a result of his
death, the Company shall (i) pay to the Executive's estate his Base Salary and
any accrued and unpaid Bonus and expense reimbursement amounts through the date
of his death and (ii) for the shorter of six (6) months following his death or
the balance of the Term (as if such termination had not occurred) provide
continuation coverage to the members of the Executive's family under all major
medical and other health, accident, life or other disability plans and programs
in which such family members participated immediately prior to his death. Any
Stock Options that have not vested as of the date of the Executive's death shall
be deemed to have expired as of such date.
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(b) If the Executive's employment is terminated by the Company due
to Disability, the Company shall pay to the Executive his Base Salary and any
accrued Bonus and expense reimbursement amounts through the date of his
termination. In addition, for the shorter of six (6) months following any such
termination or the balance of the Term (as if such termination had not
occurred), the Company shall (i) continue to pay the Executive the Base Salary
in effect at the time of such termination less the amount, if any, then payable
to the Executive under any disability benefits of the Company and (ii) provide
the Executive continuation coverage under all major medical and other health,
accident, life or other disability plans and programs in which the Executive
participated immediately prior to such termination. All Stock Options that have
not vested as of the date of termination due to the Executive's Disability shall
be deemed to have expired as of such date.
(c) If the Executive's employment is terminated by the Company for
Cause or by the Executive other than for Good Reason, the Company shall pay to
the Executive his Base Salary through the date of his termination and the
Executive shall have no further entitlement to any other compensation or
benefits from the Company. All Stock Options that have not vested as of the date
of any such termination shall be deemed to have expired as of such date and, in
addition, the Executive's right to exercise any vested Stock Options shall
terminate as of such date.
(d) If the Executive's employment is terminated by the Company (or
its successor) upon the occurrence of a Change of Control, the Company (or its
successor, as applicable) shall (i) continue to pay to the Executive his Base
Salary for a period of one (1) year following such termination, and (ii) pay the
Executive any prorated accrued and unpaid Bonus and expense reimbursement
amounts through the date of termination. The Company's obligation under clause
(i) in the preceding sentence shall be reduced, however, by amounts otherwise
actually earned by the Executive resulting solely from his employment, and/or in
exchange for services rendered, during the one year period following the
termination of his employment. All Stock Options that have not vested as of the
date of such termination shall be accelerated and deemed to have vested as of
such date.
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(e) If (i) the Executive's employment is terminated by the Company
other than as a result of the Executive's death and other than for reasons
specified in Sections 10(b), (c) or (d), or (ii) the Executive's employment is
terminated by the Executive for Good Reason, the Company shall continue to pay
to the Executive his Base Salary for a period of one (1) year following such
termination and the Company shall pay the Executive any accrued and unpaid Bonus
and expense reimbursement amounts through the date of termination. The Company's
obligation under clause (i) in the preceding sentence shall be reduced, however,
by any amounts otherwise actually earned by the Executive resulting solely from
his employment, and/or in exchange for services rendered, during the one year
period following the termination of his employment. In addition, for the shorter
of twelve (12) months following any such termination or the balance of the Term
(as if such termination had not occurred), the Company shall provide the
Executive continuation coverage under all major medical and other health,
accident, life or other disability plans or programs in which the Executive
participated immediately prior to such termination. All Stock Options that have
not vested as of the date of termination shall be deemed to have expired as of
such date.
(f) The continuation coverage under any major medical and other
health, accident, life or other disability plans and programs for the periods
provided in Section [9(a), 9(b) and 9(e)] shall be provided (i) at the expense
of the Company and (ii) in satisfaction of the Company's obligation under
Section 4980B of the Internal Revenue Code of 1986 (and any similar state law)
with respect to the period of time such benefits are continued hereunder.
Notwithstanding anything to the contrary contained herein, the Company's
obligation to provide such continuation coverage under such Sections shall cease
immediately upon the date any covered individual becomes eligible for similar
benefits under the plans or policies of another employer.
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(g) This Section 9 sets forth the only obligations of the Company
with respect to the termination of the Executive's employment with the Company,
and the Executive acknowledges that, upon the termination of his employment, he
shall not be entitled to any payments or benefits which are not explicitly
provided in Section 9.
(h) The provisions of this Section 9 shall survive any termination
of this Agreement.
10. Miscellaneous.
(a) This Agreement shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New Jersey, without
giving effect to its principles of conflicts of laws.
(b) Any dispute arising out of, or relating to, this Agreement or
the breach thereof (other than Sections 5 or 6 hereof), or regarding the
interpretation thereof, shall be finally settled by arbitration conducted in New
Jersey in accordance with the rules of the American Arbitration Association then
in effect before a single arbitrator appointed in accordance with such rules.
Judgment upon any award rendered therein may be entered and enforcement obtained
thereon in any court having jurisdiction. The arbitrator shall have authority to
grant any form of appropriate relief, whether legal or equitable in nature,
including specific performance. For the purpose of any judicial proceeding to
enforce such award or incidental to such arbitration or to compel arbitration
and for purposes of Sections 5 and 6 hereof, the parties hereby submit to the
non-exclusive jurisdiction of the Supreme Court of the State of New Jersey,
Hunterdon County, or the United States District Court for the District of New
Jersey, and agree that service of process in such arbitration or court
proceedings shall be satisfactorily made upon it if sent by registered mail
addressed to it at the address referred to in paragraph (g) below.
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(c) This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective heirs, legal representatives,
successors and assigns.
(d) This Agreement, and the Executive's rights and obligations
hereunder, may not be assigned by the Executive. The Company may assign its
rights, together with its obligations, hereunder in connection with any sale,
transfer or other disposition of all or substantially all of its business or
assets.
(e) This Agreement cannot be amended orally, or by any course of
conduct or dealing, but only by a written agreement signed by the parties
hereto.
(f) The failure of either party to insist upon the strict
performance of any of the terms, conditions and provisions of this Agreement
shall not be construed as a waiver or relinquishment of future compliance
therewith, and such terms, conditions and provisions shall remain in full force
and effect. No waiver of any term or condition of this Agreement on the part of
either party shall be effective for any purpose whatsoever unless such waiver is
in writing and signed by such party.
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(g) All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
delivered personally or by an overnight courier service or sent by registered or
certified mail, postage prepaid, return receipt requested, to the parties at the
addresses set forth on the first page of this Agreement, and shall be deemed
given when so delivered personally or by overnight courier, or, if mailed, five
days after the date of deposit in the United States mails. Either party may
designate another address, for receipt of notices hereunder by giving notice to
the other party in accordance with this paragraph (g).
(h) This Agreement sets forth the entire agreement and understanding
of the parties relating to the subject matter hereof, and supersedes all prior
agreements, arrangements and understandings, written or oral, relating to the
subject matter hereof. No representation, promise or inducement has been made by
either party that is not embodied in this Agreement, and neither party shall be
bound by or liable for any alleged representation, promise or inducement not so
set forth.
(i) As used in this Agreement, "affiliate" of a specified Person
shall mean and include any Person controlling, controlled by or under common
control with the specified Person.
(j) The section headings contained herein are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
21
(k) This Agreement may be executed in any number of counterparts,
each of which shall constitute an original, but all of which together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, M.D.
President & CEO
NovaDel Pharma Inc.
Date: 12-22-04
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By: /s/ ▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇
Date:
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