Exhibit 10.30
EMPLOYMENT AGREEMENT
AGREEMENT (the "Agreement"), dated as of May 23, 2003, by
and between NOVADEL PHARMA, INC., a [Delaware] corporation with principal
executive offices at 00 Xxxxx Xxxxxxx 00, Xxxxxxxxxx, Xxx Xxxxxx 00000 (the
"Company"), and XXXXX XXXXX, residing at 00 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Executive").
W I T N E S S E T H :
WHEREAS, the Company desires to employ the Executive as
Vice-President, New Business & New Product Development 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 May 13, 2003
unless sooner terminated in accordance with the provisions of Section 8 below
(the "Term"). The Term shall be extended automatically for additional one year
periods unless one party advises the other in writing at least 90 days before
initial expiration of the Term.
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3. DUTIES; BEST EFFORTS; PLACE OF PERFORMANCE.
(a) The Executive shall serve as Vice-President, New
Business & New Product Development 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 Vice-President, New Business & New
Product Development. The Executive shall also have such other powers and duties
as may be from time to time prescribed by the President & CEO or the Board of
Directors 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 $185,000 per annum, payable in equal
bi-weekly installments during the Term. The President shall review the
Executive's performance on at least an annual basis and may increase the
Executive's base salary as the President deems appropriate based on such review.
(b) BONUS. The Company shall pay the Executive a cash bonus
based upon achievements of the Executive in securing new business for the
Company via Licensing Agreements, such that for each Licensing Agreement closed
(negotiated and signed) by the Executive, he will be paid, as a percentage of
his Base Salary, the greatest of any one of the possibilities enumerated below:
i) Any deal closed by the Executive 5%
ii) If Licensing fees & milestone payments equal or exceed $10 Million or
if royalty stream equals or exceeds 20% of net sales (10% for an OTC product) 10%
iii) If fees & milestones equal or exceed $20 Million or
if royalty stream equals or exceeds 25% of net sales (15% for an OTC product) 15%
iv) If fees & milestones equal or exceed $30 Million or
if royalty stream equals or exceeds 30% or net sales (20% for an OTC product) 20%
v) If the Executive initiates a contact (including a new individual contact at a
company that has already been contacted by the Company) and closes the deal
based upon the efforts of that contact [added by GS], add another 5% of Base
Salary to any one of the above.
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The Bonus earned is to be paid in full in the calendar year in which the
Licensing Agreement is closed.
(c) 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
5.
(d) 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 75,000 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 date of Executive's employment, so that 20,000 options
to purchase shares of the Company's Common Stock will vest on each of May 13,
2004, May 13, 2005 and May 13, 2006, subject to the provisions of Section 9
below. The remaining 15,000 options shall vest in increments of 5,000 options,
each upon the closing of each of the first three Licensing Agreements closed by
the Executive. The exercise price of said 75,000 options shall be equal to 110%
of the Fair Market Value (closing price) on the date of the Executive's
employment. 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.
In addition, the Company shall grant the Executive
[non-qualified] stock options ("Stock Options") to purchase additionally 5,000
shares of Common Stock of the Company pursuant to the Company's 1998 Stock
Option Plan, at the time of the signing of each
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subsequent Licensing Agreement closed by the Executive. The exercise price of
said shares shall be equal to the closing price on the date of the closing of
each Licensing Agreement.
The President of the Company shall annually review the number of stock options
granted to the Executive to determine whether an increase in the number thereof
is warranted.
All Options will have a 10 year expiration period, provided
that this is pursuant to the Company's 1998 Stock Option Plan.
(e) 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.
(f) 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.
The Executive shall receive a car allowance of up to $1,000
per month. Additionally, expenses for local lodging will be reimbursed for up to
the following amounts: 3 nights per week for the first six months of employment,
2 nights per week for months 7 to 12 of employment, and 1 night per week
thereafter. Relocation (moving) costs up to $10,000 will be reimbursed, upon
presentation of valid receipts, if done within 15 months of the Employment
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date of the Executive. Once the Executive relocates, further reimbursement to
local lodging will terminate. The costs associated with equipment and calls for
one cellular phone will be reimbursed upon presentation of proper bills.
(g) 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 and shall
not receive any compensation for unused vacation days.
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
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
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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.
(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.
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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
(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.
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(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 5 and the
Executive agrees that, during the Term and for a period of [three (3)] years
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
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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.
(b) During the Term and for [12 months ] 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.
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(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 6or 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.
(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
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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.
(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.
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(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.
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 Board of Directors of the Company for Cause. Any of the following actions
by the Executive shall constitute "Cause":
(i) The willful failure, 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 a majority of
the Board of Directors 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);
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(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);
(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 Board of Directors of the Company due to the Executive's Disability. For
purposes of this Agreement, a termination for "Disability" shall occur (i) when
the Board of Directors of 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 Board of
Directors of 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
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independent physician retained by the Company and to waive, as to the Company,
any claims of medical confidentiality.
(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 4 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.
(d) The Executive's employment hereunder may be terminated
by the Board of Directors of 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
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Bonus and expense reimbursement amounts through the date of his death (ii)
continue to pay to the Executive's estate his Base Salary for three (3) months
following his death [?GS] and (iii) 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 granted to the Executive that have not vested as of the
date of the Executive's death shall vest upon the effective date of Executive's
death.
(b) If the Executive's employment is terminated by the Board
of Directors of 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
outstanding, but unvested, Stock Options granted to the Executive shall vest
upon the effective date of this termination due to the Executive's Disability.
(c) If the Executive's employment is terminated by the Board
of Directors of 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
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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 six (6) months following such
termination, and (ii) 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 during the six month 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.
(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 9(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 six (6) months
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 during the six month period following the termination of his
employment. 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 provide the Executive continuation coverage under
all major medical and other health,
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accident, life or other disability plans or programs in which the Executive
participated immediately prior to such termination. All outstanding, but
unvested, Stock Options granted to the Executive shall vest upon the date of
this termination.
(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.
(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.
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(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 York City 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 Superior 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.
(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.
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(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.
(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
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.
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(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.
(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.
NOVADEL PHARMA, INC.
By:
--------------------------
Xxxx X. Xxxxxxxx
President & CEO
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