Exhibit 10.1



CONFIDENTIAL


 


 




 


 


BINDING TERM SHEET


FOR ACQUISITION OF CERTAIN NITROMISTTM
ASSETS


OF NOVADEL PHARMA, INC.


BY APRICUS BIOSCIENCES, INC


(“TERM SHEET”)


February 2, 2012


 


	1.  Parties	
        (a)
        Apricus Biosciences, Inc., a Nevada corporation  with its principal
        address at 11975 El Camino Real, Suite 300 San Diego, CA 92130(“Buyer”);
        and

         

        (b)  NovaDel Pharma, Inc., a Delaware
        corporation with its principal address at 1200 Route 22 East, Suite 2000, Bridgewater, NJ  08807 (“Seller”).

         

	
        2. Acquisition of Certain Assets

         
	
        (a) Seller currently owns or controls (i) the
        Intellectual Property Rights and Commercialization Rights to the Product in the Territory, (ii) the
        Patents, Patent Applications, Trademarks and Trademark Applications (the “Assets”) and (iii) the Non-Territory
        Regulatory Filings. All defined terms shall have the meaning as defined below.

         

        (b) Seller hereby agrees to sell and Buyer
        hereby agrees to purchase the Assets free and clear of all liens and encumbrances of any kind whatsoever,
        and Seller hereby agrees to grant Buyer a royalty-free, exclusive, perpetual license to the Intellectual Property Rights and Commercialization
        Rights to the Product in the Territory, for the Purchase Price as described below (the “Transaction”).

         

        Buyer
          shall agree to not distribute the Product outside the Territory and
          will require that any subdistibutors of the Product in the Territory
          not distribute the Product outside of the Territory. If Buyer discovers
          any Product sold by any subdistributor outside of the Territory, Buyer
          will require that subdistributor to promptly cease such sales.

         

        (c) The following definitions shall be used
        in this Term Sheet:

         

        (i) The “Product”
        shall mean nitroglycerin sublingual spray (NitroMistTM).

         

        (ii) “Intellectual
        Property Rights” shall mean all intellectual property rights (other than the Patents, Patent Applications, Trademarks
        and Trademark Applications) owned or controlled by Seller including trade secrets, know-how, copyrights and domain names relating
        to the Product in the Territory and necessary for Buyer to sell the Product in the Territory.

         

         

        


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      (iii) “Patents”
        and “Patent Applications” shall mean those patent
        and patent applications owned or controlled by Seller relating to the
        Product in the Territory as listed in Appendix A attached hereto.

       

      (iv) “Trademark”
        and “Trademark Applications” shall mean those trademark
        and trademark applications owned or controlled by Seller relating to
        the Product in the Territory as listed in Appendix B attached hereto.

       

      (v) “Commercialization
          Rights” shall mean all rights (other than the Intellectual
          Property Rights, Patents, Patent Applications, Trademarks and Trademark
          Applications) owned or controlled by the Seller (including the right
          to manufacture, have manufactured, use, offer to sell, sell, import
          and export including all regulatory filings, inventory, marketing materials,
          contracts, manufacturing agreements and all other rights) to commercialize
          the Product in the Territory.

       

      (vi) “Territory”
        shall mean all countries, territories and
        possessions of the world outside of the United States and its possessions,
        territories and commonwealths, Canada and Mexico. 

       

	3.
          Access to Regulatory Filings

         
	Seller
        shall provide Buyer promptly after the Closing as defined below with
        (i) a copy of the Product’s US New Drug Application NDA #21-780
        (“NDA”), (ii) a letter of current pricing in the US
        and, (iii) any other regulatory filings in countries outside of the Territory
        that are in Seller’s possession on or prior to Closing, if any
        ((i) and (iii) together, shall be referred to as the “Non-Territory
        Regulatory Filings”).

         

	4.
          Product Manufacturing

         
	Akrimax
        currently uses the following manufacturer to manufacture the Product
        outside of the Territory: DPT Laboratories Inc., 5303 Distribution Drive,
        San Antonio, TX  78218.

         

      Seller
        shall use commercially reasonable efforts to assist Buyer to obtain a
        manufacturing and supply agreement with DPT for the manufacture of the
        Product for sale in the Territory.

       

	5.
          Product Marketing Materials

         
	Seller
        shall provide Buyer with copies of all current marketing materials in
        Seller’s possession on or prior to Closing that are used for the
        Product in each country in the world where it is currently sold as requested
        by Buyer. Certain of Seller’s officers and employees shall also
        be made available to Buyer on a reasonable basis at no cost for a period
        of at least 4 weeks after Closing to discuss the marketing efforts of
        Seller for the Product in the Territory and to facilitate the transfer
        of the Assets.

         



 


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	6.  Purchase
      Price	Buyer
      shall pay $200,000 in cash (the “Purchase Price”) for
      the Assets at the Closing.
	7.  No
      Impairment of Assets	After
        the date of this Term Sheet, and until the earlier of (i) this Term Sheet
        either terminates or is replaced by a definitive asset purchase and license
        agreement (the “Definitive Agreement”) or (ii) February
        10, 2012, the Seller shall continue to maintain the Assets in the ordinary
        course according to its past customary commercial practices and shall
        not encumber, sell, license or otherwise dispose of any of the Assets
        in any manner whatsoever.

         

	8.
          Tax Treatment

         
	It
        is expected that the Transaction will constitute an asset sale for U.S.
        Federal income tax purposes.

         

	9.
          Board Approval of Seller

         
	The
        Transaction shall be approved by the Board of Directors of Seller. Seller
        shall not be required to obtain approval from its stockholders for the
        Transaction.

         

	10.  Representations,
      Warranties, Indemnities and Other Provisions	In
        the Definitive Agreement, Seller will make customary representations
        and warranties (which would survive the Closing for a customary period
        of time) and will provide customary indemnities relating to the Product
        in the Territory. The Definitive Agreement will also contain customary
        covenants, indemnifications, closing conditions and other provisions.

         

	11.  Due
      Diligence/Access	Buyer
        shall use reasonable commercial efforts to conduct due diligence in a
        timely manner.

         

      Seller
        shall afford Buyer full and free access to the books and records of Seller
        relating to the Assets and the Non-Territory Regulatory Filings.

       

	12.  Consents	The
        parties agree to cooperate with each other and proceed, as promptly as
        is reasonably practicable, to prepare and file, if necessary, any notifications
        required by any governmental or private entity and to seek to obtain
        all necessary consents and approvals from lenders, landlords, government
        entities and any other thirty party whose consent to the Transaction
        might be required, and to endeavor to comply with all other legal or
        contractual requirements for, or preconditions to, the execution and
        consummation of the Definitive Agreement and the Closing.

         

	13.  Confidentiality	The
        parties have entered into a Confidential Disclosure Agreement, dated
        March 29, 2011 (“CDA”). In addition to the terms of
        the CDA, the parties agree to keep confidential the existence, status
        and terms of their negotiations and agreements regarding the Transaction
        except

         



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	 	as otherwise required by law.  Upon the signing of the Definitive Agreement, the parties would make a joint public announcement concerning the Transaction.
	14.  Simultaneous Signing and Closing	
        The parties shall use their reasonable commercial
        efforts, subject to the terms and conditions contained herein to execute the Definitive Agreement and close the Transaction by
        February 9, 2012 (the “Closing”).

         

        If a Definitive Agreement is not signed and
        concluded by February 9, 2012, then the terms and conditions of this binding Term Sheet shall govern the acquisition of the Assets
        by Buyer and this Transaction shall close pursuant to the terms of this Term Sheet as of February 10, 2012 or by another date mutually
        agreed upon by the parties hereto.

         

	15.  Governing Law/Venue	
        This Term Sheet shall be governed by the law
        of the State of California, except for its conflicts of law provisions. All disputes hereunder shall be adjudicated by the applicable
        state and federal courts in San Diego County, California.

         

	16.  Binding Term Sheet	
        This Term Sheet represents a binding obligation
        of both parties hereto.

         

	
        17. Transaction Expenses

         
	
        Each party will be responsible for their own
        business, legal and regulatory counsels and other expenses in consummating the Transaction.

         

	18.  Definitive Agreement	The Definitive Agreement shall contain additional customary terms and conditions for asset purchase and license agreements as agreed by the parties. Upon execution, the Definitive Agreement shall supersede this Term Sheet and the parties shall thereafter have no further rights or obligations hereunder. 


 

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Unless signed, this Term
Sheet will expire on February 2, 2012. If the terms and conditions described above are acceptable to Seller and Buyer, please so
indicate by your signatures below.


 


APRICUS BIOSCIENCES, INC


 


 


By:  /s/ Bassam Damaj_____________________________


      Name: Bassam Damaj, Ph.D.


      Title: President and Chief Executive Officer


      Date: February 2, 2012


 


 


Agreed and Accepted:


 


NOVADEL PHARMA, INC.


 


 


By: /s/ Steven B. Ratoff_____________________________


      Name: Steven B. Ratoff


      Title: Chief Executive Officer


      Date: February 2, 2012


 


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