Exhibit 10.32
Amendment to Xxxxxxxx ABD El Shafy
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement") dated as of the 9th day of
April, 2004, between NOVADEL PHARMA INC., a Delaware corporation (together with
its successors and assigns referred to herein as the "Corporation"), with
principal executive offices located 00 Xxxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 and XXXXXXXX ABD EL-SHAFY, PHD., residing at 000 Xxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxx Xxxxxx, Xxx Xxxx 00000 (the "Executive").
WHEREAS, the Corporation desires to continue to employ Executive and
to have him continue to render services under the terms and conditions hereof
and has authorized and approved the execution of this Agreement; and
WHEREAS, Executive desires to continue to be employed by the
Corporation under the terms and conditions hereinafter provided;
NOW, THEREFORE, in consideration of the mutual covenants and
undertakings herein contained, the parties agree as follows:
1. EMPLOYMENT, DUTIES AND ACCEPTANCE.
1.1 SUPERCESSION OF FORMER AGREEMENT. This Agreement
supercedes, and replaces, in its entirety, a former Employment Agreement between
the parties dated May 15, 2002.
1.2 SERVICES. During employment hereunder, Executive shall
hold the position of Vice President - Pharmaceutical Development of the
Corporation, and shall have the responsibilities and authority as established by
the Board of Directors of the Corporation (the "Board") and shall report to the
President of the Corporation. Executive shall devote Executive's entire business
time, attention, knowledge and skills faithfully, diligently and to the best of
Executive's ability in furtherance of the business and activities of the
Corporation (the "Services"). The principal place of performance by Executive of
services hereunder shall be at the principal offices of the Corporation or such
other place as the President may designate.
1.3 ACCEPTANCE. Executive hereby accepts such employment and
agrees to render the Services.
2. TERM OF EMPLOYMENT.
2.1 TERM. The Executive's employment under this Agreement (the
"Term") shall begin as of the Effective Date (as hereinafter defined) and shall
continue for a term of three (3) years, unless sooner terminated pursuant to
Sections 5 or 9 of this Agreement. Notwithstanding anything to the contrary
contained herein, the provisions of this Agreement governing Protection of
Confidential Information shall continue in effect as specified in Section 10
hereof and survive the expiration or termination hereof. Upon the expiration of
the Term of the Agreement, it shall automatically renew itself for additional
successive one-year periods, unless the Corporation shall give Executive ninety
days notice of non-renewal in advance of the expiration of the initial Term or
any subsequent renewal period.
2.2 EFFECTIVE DATE. The effective date of this Agreement is
January 1, 2004.
3. BASE SALARY AND EXPENSE REIMBURSEMENT.
3.1 BASE SALARY. As of the Effective Date, the Corporation
shall pay Executive a salary (the "Base Salary") at the rate of $200,000 per
year. Within ten (10) days of the date of execution of this Agreement, any
difference between the Base Salary set forth herein and the remuneration
actually paid to Executive between the Effective Date and the date of execution
shall be paid to Executive by the Corporation in a lump sum.
3.2 EXPENSE REIMBURSEMENT. All travel and other expenses
reasonably incurred by Executive incidental to the rendering of Services to the
Corporation hereunder shall be paid by the Corporation or reimbursed to
Executive upon receipt and approval of expense reports on Corporation forms
supported by appropriate documentation. From time to time, Executive shall
submit, and obtain approval for, proposed expense budgets. All unbudgeted
expenses in excess of $1,000.00 (individually, or collectively if in connection
with a single related subject or project within a given month) shall require
advance approval.
3.3 BONUSES. In addition, Executive shall be entitled to
receive an incentive cash bonus of $10,000 for each lingual spray pharmaceutical
compound formulation developed by him (multiple dosage strengths of a given
compound shall be deemed to be a single formulation unless otherwise agreed to
in writing) which proceeds into a company-sponsored clinical pharmacokinetic
study and successfully demonstrates therapeutic blood levels or otherwise
successfully enables the study to meet its stated objective(s). In addition,
Executive may receive bonuses and other compensation in the form of stock, stock
options or other property or rights as may from time to time be awarded by the
Board in connection with Executive's employment.
3.4 STOCK OPTIONS. As of the date of execution of this
Agreement, the Corporation grants Executive Options under its 1997 Stock Option
Plan, to purchase 50,000 shares of the Corporations common stock at an exercise
price equal to the closing price of the Corporation's common stock as of the
date of grant. Such Options shall have a term of ten (10) years, and shall vest
in three equal annual installments, beginning on the first anniversary date of
this Agreement.
4. Confidential Information.
4.1 Corporation Information. In connection with Executive's
employment, the Corporation has made and will make available to him that
Confidential Information of the Corporation that will enable him to optimize the
performance of his duties to the Corporation. In exchange, Executive agrees to
use such Confidential Information solely for the Corporation's benefit.
Notwithstanding the preceding sentence, Executive agrees that upon the
termination of his employment for any reason, the Corporation shall have no
obligation to provide or otherwise make available to him any of its Confidential
Information. Executive understands that "Confidential Information" means any
Corporation proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
customer lists and customers (including, but not limited to, customers of the
Corporation on whom Executive called or with whom he became acquainted during
the term of his employment), markets, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, hardware
configuration information, marketing, finances or other business information
disclosed to Executive by the Corporation either directly or indirectly in
writing, orally or by drawings or observation of parts or equipment. Executive
further understand that Confidential Information does not include any of the
foregoing items which has become publicly known and made generally available
through no wrongful act or omission of Executive or of others who were under
confidentiality obligations as to the item or items involved or improvements or
new versions thereof.
Executive agrees at all times during the term of his
employment and thereafter, to hold in strictest confidence, and not to use,
except for the exclusive benefit of the Corporation, or to disclose to any
person, firm or corporation without written authorization of the President of
the Corporation, any Confidential Information of the Corporation.
4.2 FORMER EMPLOYER INFORMATION. Executive agrees that he will
not, during his employment with the Corporation, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent employer or
other person or entity and that he will not bring onto the premises of the
Corporation any unpublished document or proprietary information belonging to any
such employer, person or entity unless consented to in writing by such employer,
person or entity.
4.3 THIRD PARTY INFORMATION. Executive recognizes that the
Corporation has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Corporation's
part to maintain the confidentiality of such information and to use it only for
certain limited purposes. Executive agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in carrying out
his work for the Corporation consistent with the Corporation's agreement with
such third party.
5. VOLUNTARY SEVERANCE.
5.1 TERMINATION BY EXECUTIVE FOR GOOD REASON. If Executive's
employment hereunder shall be terminated by Executive for Good Reason (as
defined in Section 9.4 hereof) at any time prior to the end of the Term,
Executive shall be entitled to receive from the Corporation, in addition to any
Base Salary earned to the date of termination, a severance payment in an amount
equal to one year's Executive's Base Salary, payable to the Executive in
biweekly increments. In the event of such termination, the amounts due hereunder
shall be payable without offset or defense or any obligation of the Executive to
mitigate damages.
5.2 TERMINATION BY EXECUTIVE WITHOUT GOOD REASON. If the
Executive terminates employment without Good Reason (as defined in Section 9.4
hereof) at any time prior to the end of the Term, Executive shall be entitled to
receive from the Corporation payment of any unpaid accrued Base Salary earned
through the date of termination. In the event of such termination, all
obligations of the Corporation hereunder shall terminate on the date of
termination and the Executive's termination without Good Reason shall act as a
waiver of all claims to compensation which would have otherwise accrued after
the date of termination.
6. ADDITIONAL BENEFITS.
During Executive's employment, the Corporation shall cause Executive to
be covered by all the Corporation's employee benefit plans, in effect from time
to time, for which Executive is eligible, including without limitation, any
retirement plan or group insurance.
7. VACATION.
Executive shall be entitled to such holidays as are in effect for all
of the Corporation's employees, and to personal leave in accordance with
Corporation policy as in effect from time to time. In addition, Executive shall
be entitled to four weeks vacation days (twenty business days) per year. The
timing of the taking of vacation is left to the discretion of Executive,
provided the same is not inconsistent with the reasonable business requirements
of the Corporation. Vacation days not used by Executive during a given year may
be accumulated and carried forward only in accord with the policies of the
Corporation.
8. INDEMNIFICATION.
The Corporation shall indemnify Executive and hold Executive harmless
against any and all expenses reasonably incurred by him in connection with or
arising out of (a) the defense of any action, suit or proceeding to which
Executive is a named party, or (b) any claim asserted or threatened against
Executive, provided, in either case, the matter has arisen because of or in
connection with Executive's being or having been an employee, officer or
director of the Corporation, whether or not he continues to be such at the time
the expenses indemnified against are incurred, except insofar as (a) such
indemnification may be prohibited by law, (b) the expenses were incurred in
connection with a matter where the Corporation is or was in an adversarial
position to Executive and the Corporation prevailed against Executive in such
matter, or (c) the expenses were incurred in connection with a matter arising
out a material breach by Executive of this Agreement or of Executive's
obligations to the Corporation. Expenses indemnified against include, without
limitation, reasonable attorneys fees, money judgments and money settlements,
provided the Corporation's advance approval has been sought and obtained. This
Section 8 is independent of any similar indemnification obligation which may be
contained in the Corporation's Certificate of Incorporation or By-laws, and
applies as well to matters attributable to Executive's employment by the
Corporation before the Effective Date of this Agreement, if applicable.
9. TERMINATION.
9.1 DEATH. If Executive dies during the Term of this
Agreement, Executive's employment hereunder shall terminate upon his death and
all obligations of the Corporation hereunder shall terminate on such date,
except that Executive's estate or his designated beneficiary shall be entitled
to payment of any unpaid accrued Base Salary through the date of his death.
9.2 DISABILITY. If Executive shall be unable to perform a
significant part of his duties and responsibilities in connection with the
conduct of the business and affairs of the Corporation and such inability lasts
for a period of at least 180 consecutive days by reason of Executive's physical
or mental disability, whether by reason of injury, illness or similar cause,
Executive shall be deemed disabled, and the Corporation any time thereafter may
terminate Executive's employment hereunder by reason of the disability. During
such 180 day period, the Base Salary and other benefits payable to Executive
hereunder shall not be suspended or diminished, except to the extent equivalent
to the extent of any Corporation-provided disability insurance in effect. Upon
delivery to Executive of notice to terminate, all obligations of the Corporation
hereunder shall terminate, except that Executive shall be entitled to payment of
any unpaid accrued Base Salary through the date of termination. The obligations
of Executive under Section 10 hereof shall continue notwithstanding termination
of Executive's employment pursuant to this Section 9.2.
9.3 TERMINATION FOR CAUSE. The Corporation may at any time
during the Term, with 30 days prior written notice, terminate this Agreement and
discharge Executive for Cause, whereupon the Corporation's obligation to pay
compensation or other amounts payable hereunder to or for the benefit of
Executive shall terminate on the date of such discharge. As used herein the term
"Cause" shall be deemed to mean and include: (i) a material breach by Executive
of this Agreement including without limitation a breach by Executive of the
obligations set forth in Section 10 hereof; (ii) excessive absenteeism,
alcoholism or drug abuse; (iii) substantial neglect or inattention by Executive
of or to his duties hereunder; (iv) willful violation of specific and lawful
written or oral direction from the Board of Directors or the President of the
Corporation provided such direction is not inconsistent with the Executive's
duties and responsibilities as Vice President - Pharmaceutical Development of
the Corporation; or (v) fraud, criminal conduct or embezzlement. The following
shall be deemed a material breach for the purposes of Subsection (i) hereof: (a)
the Executive's conviction for, or a plea of nolo contendere to, a felony or a
crime involving moral turpitude (which, through lapse of time or otherwise, is
not subject to appeal); (b) willful misconduct as an employee of the
Corporation; or (c) willful or reckless disregard of his responsibilities under
this Agreement. The obligations of the Executive under Section 10 shall continue
notwithstanding termination of the Executive's employment pursuant to this
Section 9.3.
9.4 TERMINATION BY EXECUTIVE. The Executive shall have the
right to terminate this Agreement for Good Reason, as hereinafter defined. Good
Reason shall mean any of the following: (i) any reduction by the Corporation of
the Executive's compensation or benefits payable hereunder (it being understood
that a reduction of benefits applicable to all employees of the Corporation,
including the Executive, shall not be deemed a reduction of the Executive's
compensation package for purposes of this definition); or (ii) requiring the
Executive to be based without his consent at a location not within reasonable
commuting distance of Flemington, New Jersey.
10. INTELLECTUAL PROPERTY; NON-COMPETITION.
10.1 INVENTIONS RETAINED AND LICENSED. Executive has attached
hereto, as Exhibit A, a list describing all inventions, original works of
authorship, developments, improvements, and trade secrets which were made by
Executive prior to his employment with the Company (collectively referred to as
"Prior Inventions"), which belong to him, which relate to the Company's proposed
business, products or research and development, and which are not assigned to
the Company hereunder; or, if no such list is attached, Executive represents
that there are no such Prior Inventions. Executive agrees that he will not
incorporate, or permit to be incorporated, any Prior Invention owned by him or
in which he has an interest into a Company product, process or machine without
the Company's prior written consent. Notwithstanding the foregoing sentence, if,
in the course of Executive's employment with the Company, he incorporates into a
Company product, process or machine a Prior Invention owned by him or in which
he has an interest, the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license to make, have made,
modify, use and sell such Prior Invention as part of or in connection with such
product, process or machine.
10.2 ASSIGNMENT OF INVENTIONS. Executive agrees that he will
promptly make full written disclosure to the Company, will hold in trust for the
sole right and benefit of the Company, and hereby assign to the Company, or its
designee, all his right, title, and interest in and to any and all inventions,
original works of authorship, developments, concepts, improvements, designs,
discoveries, ideas, trademarks or trade secrets, whether or not patentable or
registrable under copyright or similar laws, which he may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, during the period of time he is in the employ of the
Company (collectively referred to as "Inventions"), except as provided in
Section 10.6 below. Executive further acknowledges that all original works of
authorship which are made by him (solely or jointly with others) within the
scope of and during the period of Executive's employment with the Company and
which are protectible by copyright are "works made for hire," as that term is
defined in the United States Copyright Act. Executive understands and agrees
that the decision whether or not to commercialize or market any invention
developed by him solely or jointly with others is within the Company's sole
discretion and for the Company's sole benefit and that no royalty will be due to
Executive as a result of the Company's efforts to commercialize or market any
such Invention.
10.3 INVENTIONS ASSIGNED TO THE UNITED STATES. Executive
agrees to assign to the United States government all his right, title, and
interest in and to any and all Inventions whenever such full title is required
to be in the United States by a contract between the Company and the United
States or any of its agencies.
10.4 MAINTENANCE OF RECORDS. Executive agrees to keep and
maintain adequate and current written records of all Inventions made by him
(solely or jointly with others) during the term of his employment with the
Company. The records will be in the form of notes, sketches, drawings, and any
other format that may be specified by the Company. The records will be available
to and remain the sole property of the Company at all times.
10.5 PATENT AND COPYRIGHT REGISTRATIONS. Executive agrees to
assist the Company, or its designee, at the Company's expense, in every proper
way to secure the Company's rights in the Inventions and any copyrights,
patents, mask work rights or other intellectual property rights relating thereto
in any and all countries, including, but not limited to, the disclosure to the
Company of all pertinent information and data with respect thereto, the
execution of all applications, specifications, oaths, assignments and all other
instruments which the Company shall deem necessary in order to apply for and
obtain such rights and in order to assign and convey to the Company, its
successors, assigns, and nominees the sole and exclusive rights, title and
interest in and to such Inventions, and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto. Executive further
agrees that his obligation to execute or cause to be executed, when it is in his
power to do so, any such instrument or papers shall continue after the
termination of this Agreement. If the Company is unable because of Executive's
mental or physical incapacity or for any other reason to secure his signature to
apply for or to pursue any application for any United States or foreign patents
or copyright registrations covering Inventions or original works of authorship
assigned to the Company as above, then Executive hereby irrevocably designates
and appoints the Company and its duly authorized officers and agents as his
agent and attorney in fact, to act for and in his behalf and stead to execute
and file any such applications and to do all other lawfully permitted acts to
further the prosecution and issuance of letters patent or copyright
registrations thereon with the same legal force and effect as if executed by
Executive.
10.6 EXCEPTION TO ASSIGNMENTS. Executive understands that the
provisions of this Agreement requiring assignment of Inventions to the Company
shall not apply to any invention that he has developed entirely on his own time
without using the Company's equipment, supplies, facilities, trade secret
information or Confidential Information except for those inventions that either
(i) relate at the time of conception or reduction to practice of the invention
to the Company's business, or actual or demonstrably anticipated research or
development of the Company or (ii) result from any work that Executive performed
for the Company. Executive will advise the Company promptly in writing of any
inventions that he believes meet the foregoing criteria and not otherwise
disclosed on Exhibit A.
10.7 NON-COMPETITION. Executive agrees that, for a period
beginning with the Effective Date of this Agreement and ending twelve months
after the date of termination of employment by the Company, Executive will not,
either individually or in conjunction with any person, firm, association,
syndicate, company or corporation, directly or indirectly (as principal, agent,
employee, director, officer, shareholder, partner, independent contractor,
individual proprietor, or as an investor who has made advances, loans or
contributions to capital, or in any other manner whatsoever) compete with
company in the business then conducted by Company. Executive also agrees that,
during such period, Executive will not solicit or encourage any persons who,
during such period, were employees of Company to (i) terminate such persons'
employment with Company; or (ii) become affiliated with any person, firm,
association, syndicate, company or corporation which is in a business similar to
that of the Company and in which Executive, either directly or indirectly, has
an interest. If Company directs Executive to cease and desist a proposed
post-termination course of conduct, on the grounds that he is proposing to
compete with the Company's business, during this one-year post-termination
period, Company shall compensate Executive by paying him his base Salary during
the period he is prevented from pursuing such activity.
10.8 ANTI-RAIDING. Executive agrees that during the term of
his employment hereunder, and, thereafter for a period of one (1) year,
Executive will not, as principal, agent, employee, employer, consultant,
director or partner of any person, firm, corporation or business entity other
that the Corporation, or in any individual or representative capacity
whatsoever, directly or indirectly, without the prior express written consent of
the Corporation approach, counsel or attempt to induce any person who is then in
the employ of the Corporation to leave the employ of the Corporation or employ
or attempt to employ any such person or persons who at any time during the
preceding six months was in the employ of the Corporation.
10.9 INJUNCTION. Executive acknowledges and agrees that,
because of the unique and extraordinary nature of his services, any breach or
threatened breach of any of the above provisions of this Section 10 hereof will
cause the Corporation irreparable injury and incalculable harm and, therefore,
the Corporation will have "no adequate remedies at law". Executive, therefore,
agrees in advance that Corporation shall be entitled to injunctive and other
equitable relief for such breach or threatened breach and that resort by the
Corporation to such injunctive or other equitable relief shall not be deemed to
waive or to limit in any respect any right or remedy which the Corporation may
have with respect to such breach or threatened breach. The Executive agrees that
in such action, if the Corporation makes a prima facie showing that Executive
has violated or apparently intends to violate any of the provisions of this
Section 10, the Corporation need not prove either damage or irreparable injury
in order to obtain injunctive relief. The Corporation and Executive agree that
any such action for injunctive or equitable relief shall be heard in a state or
federal court situated in New Jersey and each of the parties hereto agrees to
accept service of process by registered mail and to otherwise consent to the
jurisdiction of such courts.
10.10 NO INDEMNIFICATION. The provisions of Section 8, above,
do not apply to any expenses incurred by Executive in defending against any
claim made pursuant to this Section 10.
10.11 SEVERABILITY. If any provision contained within this
Section 10 is found to be unenforceable by reason of the extent, duration or
scope thereof, or otherwise, then such restriction shall be enforced to the
maximum extent permitted by law, and Executive agrees that such extent, duration
or scope may be modified in any proceeding brought to enforce such restriction.
11. ARBITRATION.
Except with respect to any proceeding brought under Section 10 hereof,
any controversy, claim, or dispute between the parties, directly or indirectly,
concerning this Employment Agreement or the breach hereof, or the subject matter
hereof, including questions concerning the scope and applicability of this
arbitration clause, shall be finally settled by arbitration in the State of New
Jersey pursuant to the rules then applying of the American Arbitration
Association. The arbitrators shall consist of one representative selected by the
Corporation, one representative selected by the Executive and one representative
selected by the first two arbitrators. The parties agree to expedite the
arbitration proceeding in every way, so that the arbitration proceeding shall be
commenced within thirty (30) days after request therefore is made, and shall
continue thereafter, without interruption, and that the decision of the
arbitrators shall be handed down within thirty (30) days after the hearings in
the arbitration proceedings are closed. The arbitrators shall have the right and
authority to assess the cost of the arbitration proceedings and to determine how
their decision or determination as to each issue or matter in dispute may be
implemented or enforced. The decision in writing of any two of the arbitrators
shall be binding and conclusive on all of the parties to this Agreement. Should
either the Corporation or the Executive fail to appoint an arbitrator as
required by this Section 11 within thirty (30) days after receiving written
notice from the other party to do so, the arbitrator appointed by the other
party shall act for all of the parties and his decision in writing shall be
binding and conclusive on all of the parties to this Employment Agreement. Any
decision or award of the arbitrators shall be final and conclusive on the
parties to this Agreement; judgment upon such decision or award may be entered
in any competent Federal or state court located in the United States of America;
and the application may be made to such court for confirmation of such decision
or award for any order of enforcement and for any other legal remedies that may
be necessary to effectuate such decision or award.
12. NOTICES.
All notices, requests, consents and other communications required or
permitted to be given hereunder, shall be in writing and shall be deemed to have
been duly given if delivered personally or sent by facsimile or mailed
first-class, postage prepaid, by registered or certified mail (notices sent by
mail shall be deemed to have been given on the date sent), to the parties at
their respective addresses hereinabove set forth or to such other address as
either party shall designate by notice in writing to the other in accordance
herewith. Copies of all notices shall be sent to Xxxxxx X. Xxxxxx, Esq. Esq. at
00 Xxxxx Xxxx, Xxxxxxx, Xxx Xxxxxx 00000.
13. GENERAL.
13.1 GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the local laws of the State of New
Jersey applicable to agreements made and to be performed entirely in New Jersey.
13.2 CAPTIONS. The section headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
13.3 ENTIRE AGREEMENT. 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.
13.4 SEVERABILITY. If any of the provisions of this Agreement
shall be unlawful, void, or for any reason, unenforceable, such provision shall
be deemed severable from, and shall in no way affect the validity or
enforceability of, the remaining portions of this Agreement.
13.5 WAIVER. The waiver by any party hereto of a breach of any
provision of this Agreement by any other party shall not operate or be construed
as a waiver of any subsequent breach of the same provision or any other
provision hereof.
13.6 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same Agreement.
13.7 ASSIGNABILITY. This Agreement, and Executive's rights and
obligations hereunder, may not be assigned by Executive. The Corporation 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; in any event the rights and obligations of the Corporation
hereunder shall be binding on its successors or assigns, whether by merger,
consolidation or acquisition of all or substantially all of its business or
assets.
13.8 AMENDMENT. This Agreement may be amended, modified,
superseded, canceled, renewed or extended and the terms or covenants hereof may
be waived, only by a written instrument executed by both of the parties hereto,
or in the case of a waiver, by the party waiving compliance. No superseding
instrument, amendment, modification, cancellation, renewal or extension hereof
shall require the consent or approval of any person other than the parties
hereto. The failure of either party at any time or times to require performance
of any provision hereof shall in no matter affect the right at a later time to
enforce the same. No waiver by either party of the breach of any term or
covenant contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such breach, or a waiver of the breach of any other
term or covenant contained in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
ATTEST: NOVADEL PHARMA INC
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------------------- -------------------------------
Xxxxxx X. Xxxxxx, Secretary Xxxx X. Xxxxxxxx, M.D.
WITNESS:
/s/ Xxxxx Xxxxx /s/ Xxxxxxxx Abd El-Shafy
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Xxxxxxxx Abd El-Shafy
