exhibit10-2ecr.htm


    

      
        
           


        

        
           


          
            

          

        

        
           


          
            Confidential
Treatment has been requested for portions of this exhibit. The copy filed
herewith omits the information subject to the confidentiality
request.  Omissions are designated as “***”. A complete version of
this exhibit has been filed separately with the Securities and Exchange
Commission.

             

            


          

        

      


      Exhibit
10.2

       

      


       

      


       

      


       

      


       

      


       

      License
And Distribution Agreement

       

      


       

      


       

      By
And Between

       

      


       

      NovaDel
Pharma Inc.

       

      


       

      And

       

      


       

       ecr
pharmaceuticals company, inc.

       

      


       

      Dated
As Of November 12, 2009

       


      
        
          
             

          

           


        

        
           


          
            

          

        

        
           


        

      


      


       

      
        	 
      	
                TABLE
      OF CONTENTS

              	
                PAGE

              
	 
      	 
      	 
      
	
                ARTICLE
      1

              	
                DEFINITIONS

              	
                1

              
	
                ARTICLE
      2

              	
                LICENSES

              	
                6

              
	
                2.1

              	
                Licenses
      to ECR

              	
                6

              
	
                2.2

              	
                Sublicensing

              	
                6

              
	
                2.3

              	
                No
      Implied Licenses

              	
                7

              
	
                2.4

              	
                Retained
      Rights

              	
                7

              
	
                2.5

              	
                Patent
      Challenge

              	
                7

              
	
                2.6

              	
                Trademarks

              	
                8

              
	
                2.7

              	
                Rights
      in Bankruptcy

              	
                8

              
	
                ARTICLE
      3

              	
                COMMERCIALIZATION
      and DISTRIBUTION

              	
                9

              
	
                3.1

              	
                Overview
      and Diligence

              	
                9

              
	
                3.2

              	
                Commercialization
      Plans and Reports

              	
                9

              
	
                3.3

              	
                Overall
      Commercialization Expenses and Responsibilities

              	
                9

              
	
                3.4

              	
                Restrictions

              	
                9

              
	
                3.5

              	
                ECR’s
      Obligations

              	
                10

              
	
                3.6

              	
                Product
      Changes

              	
                11

              
	
                3.7

              	
                Recalls
      and Withdrawals

              	
                11

              
	
                3.8

              	
                Co-Promotion
      Option

              	
                11

              
	
                3.9

              	
                Manufacturing

              	
                11

              
	
                3.10

              	
                NovaDel
      Obligations

              	
                12

              
	
                ARTICLE
      4

              	
                FINANCIAL
      TERMS

              	
                13

              
	
                4.1

              	
                Upfront
      Payment

              	
                13

              
	
                4.2

              	
                Performance
      Payments

              	
                13

              
	
                4.3

              	
                Generic
      Competition

              	
                13

              
	
                4.4

              	
                Sublicense
      Payments

              	
                14

              
	
                4.5

              	
                Performance
      Milestone

              	
                14

              
	
                4.6

              	
                Payment
      Method

              	
                14

              
	
                4.7

              	
                Payment
      Schedules; Reports

              	
                14

              
	
                4.8

              	
                Records
      Retention; Audit

              	
                14

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	
                 

              	
                -i-

              	 
      


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      
        	 
      	
                TABLE
      OF CONTENTS

                (continued)

              	
                PAGE

              
	 
      	 
      	 
      
	
                ARTICLE
      5

              	
                CONFIDENTIALITY

              	
                15

              
	
                5.1

              	
                Confidential
      Information

              	
                15

              
	
                5.2

              	
                Publicity;
      Filing of this Agreement

              	
                16

              
	
                5.3

              	
                Use
      of Names

              	
                17

              
	
                5.4

              	
                Confidentiality
      of this Agreement

              	
                17

              
	
                5.5

              	
                Survival

              	
                17

              
	
                ARTICLE
      6

              	
                OWNERSHIP
      OF INTELLECTUAL PROPERTY AND PATENT RIGHTS

              	
                17

              
	
                6.1

              	
                Ownership
      of Intellectual Property

              	
                17

              
	
                6.2

              	
                Patent
      Prosecution and Maintenance

              	
                18

              
	
                6.3

              	
                Infringement
      by Third Parties

              	
                18

              
	
                6.4

              	
                Infringement
      of Third Party Rights

              	
                19

              
	
                ARTICLE
      7

              	
                REPRESENTATIONS
      AND WARRANTIES

              	
                19

              
	
                7.1

              	
                Representations,
      Warranties and Covenants

              	
                19

              
	
                7.2

              	
                Limitation
      on Representations or Warranties

              	
                22

              
	
                7.3

              	
                Disclaimer
      of Warranty

              	
                22

              
	
                7.4

              	
                Limitation
      of Liability

              	
                23

              
	
                ARTICLE
      8

              	
                INDEMNIFICATION;
      INSURANCE

              	
                23

              
	
                8.1

              	
                Indemnification

              	
                23

              
	
                8.2

              	
                Notice
      of Claim

              	
                23

              
	
                8.3

              	
                Control
      of Defense

              	
                24

              
	
                8.4

              	
                Right
      to Participate in Defense

              	
                24

              
	
                8.5

              	
                Settlement

              	
                24

              
	
                8.6

              	
                Cooperation

              	
                25

              
	
                8.7

              	
                Insurance

              	
                25

              
	
                ARTICLE
      9

              	
                TERM
      AND TERMINATION

              	
                25

              
	
                9.1

              	
                Term

              	
                25

              
	
                9.2

              	
                Events
      of Default; Termination

              	
                25

              
	
                9.3

              	
                Effects
      of Termination

              	
                26

              
	
                9.4

              	
                Accrued
      Rights

              	
                28

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                ii

              	 
      


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      
        	 
      	
                TABLE
      OF CONTENTS

                (continued)

              	
                PAGE

              
	 
      	 
      	 
      
	
                9.5

              	
                Non-Disturbance

              	
                28

              
	
                9.6

              	
                Survival

              	
                28

              
	
                ARTICLE
      10

              	
                DISPUTE
      RESOLUTION

              	
                29

              
	
                10.1

              	
                Disputes

              	
                29

              
	
                10.2

              	
                Litigation

              	
                29

              
	
                10.3

              	
                Injunctive
      Relief

              	
                29

              
	
                10.4

              	
                Governing
      Law

              	
                29

              
	
                ARTICLE
      11

              	
                MISCELLANEOUS

              	
                29

              
	
                11.1

              	
                Entire
      Agreement; Amendment

              	
                29

              
	
                11.2

              	
                Force
      Majeure

              	
                29

              
	
                11.3

              	
                Notices

              	
                30

              
	
                11.4

              	
                Independent
      Contractors

              	
                30

              
	
                11.5

              	
                Maintenance
      of Records

              	
                31

              
	
                11.6

              	
                No
      Strict Construction

              	
                31

              
	
                11.7

              	
                Assignment

              	
                31

              
	
                11.8

              	
                Costs

              	
                31

              
	
                11.9

              	
                Counterparts

              	
                31

              
	
                11.10

              	
                Further
      Actions

              	
                31

              
	
                11.11

              	
                Severability

              	
                31

              
	
                11.12

              	
                Headings

              	
                31

              
	
                11.13

              	
                No
      Waiver

              	
                32

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                iii

              	 
      


      


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      LICENSE
AND DISTRIBUTION AGREEMENT

       

      THIS LICENSE AND DISTRIBUTION AGREEMENT
(this “Agreement”) is
dated as of November 12, 2009 (the “Effective Date”) by and
between NovaDel Pharma Inc., a Delaware corporation having a principal place of
business at 25 Minneakoning Road, Flemington, New Jersey 08822 (“NovaDel”), and ECR
Pharmaceuticals Company, Inc.(“ECR”), a wholly owned
subsidiary of HiTech Pharmacal Co., Inc.(“HiTech”), having a principal
place of business at 3969 Deep Rock Road, Richmond, Virginia,
23233.  NovaDel and ECR are sometimes referred to herein individually
as a “Party” and
collectively as the “Parties”.

       

      RECITALS

       

      WHEREAS, NovaDel is the owner
of the NovaDel Technology and desires to grant ECR the right to use the NovaDel
Technology to Commercialize and Manufacture Zolpimist®; and

       

      WHEREAS, ECR desires to obtain
from NovaDel the right to use the NovaDel Technology to Commercialize and
Manufacture Zolpimist®.

       

      NOW, THEREFORE, in
consideration of the foregoing premises and the mutual covenants contained
herein, the Parties, intending to be legally bound, agree as
follows:

       

                          
ARTICLE
1                      

      DEFINITIONS

       

      The following terms shall have the
following meanings as used in this Agreement:

       

      1.1 “Affiliate” means a Person that
controls, is controlled by or is under common control with a
Party.  For the purposes of this definition, the word “control”
(including, with correlative meaning, the terms “controlled by” or “under common
control with”) means the actual power, either directly or indirectly through one
or more intermediaries, to direct the management and policies of such Person,
whether by the ownership of more than fifty percent (50%) of the voting stock of
such Person (it being understood that the direct or indirect ownership of a
lesser percentage of such stock shall not necessarily preclude the existence of
control), or by contract or otherwise.

       

      1.2 “Business Day” means any day
other than (a) Saturday or Sunday or (b) any other day on which banks in New
York, New York are required to be closed.

       

      1.3 “Commercialization” and “Commercialize” mean offering
for sale and sales, distribution, marketing, promoting and reimbursement related
activities, including booking sales.  When used as a verb
“Commercialize” means to engage in Commercialization.

       

      1.4 “Commercially Reasonable
Efforts” means, with respect to a Party, exerting such effort and
employing such resources as would normally be exerted or employed for the
regulatory approval, manufacture, shipping and commercialization of a
pharmaceutical or biologic product of similar market potential, profit potential
and strategic value at a similar stage of its product life, taking into account
the competitiveness of the Product, the relevant

       


      
        
          
             

          

           


        

        
           


          
            

          

        

        
           


        

      


      marketplace,
the patent, intellectual property and development positions of Third Parties,
the applicable regulatory situation, the commercial viability of the product and
other relevant development and commercialization factors based upon
then-prevailing conditions.  Commercially Reasonable Efforts shall be
determined on a market-by-market basis for Product and shall consider the
particular circumstances of a Party, including any other product opportunities
of such Party.

       

      1.5 “Control” means, with respect
to any intellectual property right or other tangible or intangible property,
that a Party or one of its Affiliates owns or has a license or sublicense to
such item or right, and has the ability to grant access, license or sublicense
in or to such right without violating the terms of any agreement or other
arrangement with any Third Party.

       

      1.6 “Develop” and “Development” means any and all
activities necessary or desirable to research, develop and obtain Regulatory
Approval excluding Manufacturing of a Product in compliance with the Law,
including research and development activities related to the generation,
characterization, optimization, construction, expression, use and production,
test method development and stability testing, toxicology, clinical studies,
quality assurance/quality control, delivery systems, formulation, statistical
analysis, report writing, product approval and registration activities and all
other activities with the intent and for the purpose of generating data for
submission to regulatory authorities.  When used as a verb, “Develop”
means to engage in Development.

       

      1.7 “Dollars” or “$” shall mean the legal tender
of the United States of America.

       

      1.8 “FDA” means the United States
Food and Drug Administration or any successor federal agency
thereto.

       

      1.9 “First Commercial Sale” means,
with respect to a Product, the first commercial sale after receipt of Regulatory
Approval for such Product by ECR or its Affiliates or sublicensees.

       

      1.10 “Generic Competition” means if
at any time a Generic Product or Generic Products available in the Territory
have obtained sales greater than  *** of the combined sales of Product
together with such Generic Product, as measured by number of units sold, over
***, and which Generic Product sales are evidenced by independent market data
(where available), such as that published by IMS International, or if such data
is not available, such other reliable data source as reasonably determined by
the Parties.

       

      1.11 “Generic Product” means an oral
spray product that contains zolpidem that (a) is being marketed by a Third Party
that is not a licensee or sublicensee of ECR or its Affiliates (or any of their
licensees or sublicensees), (b) is a generic product substitutable for the
Product in the Territory, and (c) has been granted regulatory approval that
relies in whole or in part on safety and efficacy data generated for the prior
Regulatory Approval of the Product.

       

      1.12 “Governmental Authority” means
any court, tribunal, arbitrator, agency, legislative body, commission, official
or other instrumentality of any federal, state, province, county, city or other
political subdivision thereof, including the FDA.

       


      
        
           


        

        
          2

          
            

          

        

        
           


        

      


      


       

      1.13 “Know-How” means any non-public
information, results and data of any type whatsoever, in any tangible or
intangible form whatsoever, including databases, ideas, discoveries, inventions,
trade secrets, practices, methods, protocols, tests, assays, techniques,
specifications, processes, formulations, formulae, knowledge, know-how, skill,
experience, materials, including pharmaceutical, chemical and biological
materials, products and compositions, scientific, technical or test data
(including pharmacological, biological, chemical, biochemical, toxicological and
clinical test data), analytical and quality control data, stability data,
studies and procedures, market studies, drawings, plans, designs, diagrams,
sketches, technology, documentation, and patent-related and other legal
information or descriptions.

       

      1.14 “Law” or “Laws” means all laws,
statutes, rules, codes, regulations, orders, judgments and/or ordinances of any
Governmental Authority having jurisdiction in the Territory.

       

      1.15 “Losses” means any and all
amounts paid or payable to Third Parties with respect to a Third Party Claim,
including damages (including all incidental and consequential damages),
deficiencies, defaults, awards, settlement amounts, assessments, fines, dues,
penalties, costs, liabilities, obligations, taxes, liens, losses, lost profits,
fees and expenses (including, court costs, interest and reasonable fees of
attorneys, accountants and other experts).

       

      1.16 “Manufacture” means all
activities, excluding Development, related to the manufacturing and production
of a Product, including but not limited to manufacturing supplies for
Commercialization, packaging, in-process and finished product testing, release
of product or any component or ingredient thereof, quality assurance and quality
control activities related to manufacturing and release of product, ongoing
stability tests, storage, shipment, and regulatory activities related to any of
the foregoing.

       

      1.17 “NDA” shall mean NDA No. 22-196
granted to NovaDel by the FDA on December 19, 2008 for zolpidem tartrate oral
spray in the United States.

       

      1.18 “Net Sales” means the gross
amounts invoiced by ECR or its Affiliates or licensees or sublicensees for sales
of Product in the Territory, less the following reasonable deductions to the
extent included in the gross invoiced sales price for Product or otherwise
directly paid, allowed, accrued, or incurred by ECR or its Affiliates or
licensees or sublicensees with respect to the sale of Product (if not previously
deducted from the amount invoiced): (i) *** actually given; (ii) *** upon
*** (except where any such ***); (iii) *** on *** of Product; (iv) ***
pursuant to ***; (v) ***; (vi) *** *** (if *** or *** without ***); and (vii)
*** (other than ***) directly related to ***.

       

      For purposes of determining Net Sales,
Product shall be *** and ***.  Net Sales shall be accounted for in
accordance with United States generally accepted accounting principles (“GAAP”) consistently applied in
the jurisdiction in which the sales occur.  In the case of any sale of
Product ***, Net Sales shall be calculated as above ***.  Any of the
items set forth above that would otherwise *** but which are *** shall not be
deducted from the invoice price in the calculation of Net Sales.  In
the case of any sale of Product or part thereof ***, such as ***, Net Sales
shall be determined ***.

       


      
        
           


        

        
          3

          
            

          

        

        
           


        

      


      


       

      1.19 “NovaDel Know-How” means all
Know-How Controlled by NovaDel or an Affiliate of NovaDel as of the Effective
Date or, from time to time, during the Term that is necessary to Commercialize
the Product in the Territory or to use the NovaDel Process to Commercialize
Product in the Territory, but excluding any Know-How to the extent claimed by
any NovaDel Patents.

       

      1.20 “NovaDel Patents” means the
Patents that NovaDel or any of its Affiliates Controls on the Effective Date or
during the Term that claim the Product in the Territory.  The NovaDel
Patents as of the Effective Date are set forth on Schedule 1.20.

       

      1.21 “NovaDel Process” means
NovaDel’s proprietary oral spray technology for the delivery of pharmaceutical
compounds through the mucosal membrane of the mouth in humans using an aerosol
or pump spray device.

       

      1.22 “NovaDel Technology” means the
NovaDel Patents and NovaDel Know-How.

       

      1.23 “NovaDel Trademarks” means the
United States trademark ZolpiMist®, Registration #77/176,611 ZOLPIMIST (Class
5).

       

      1.24 “Patent” means (i) patents,
re-examinations, reissues, renewals, extensions, supplementary protection
certificates and term restorations, any confirmation patent or registration
patent or patent of addition based on any such patent, (ii) pending applications
for patents, including continuations, continuations-in-part, re-examinations,
reissues, renewals, extensions, supplementary protection certificates and term
restorations divisional, provisional and substitute applications, and inventors’
certificates, and (iii) all priority applications of any of the
foregoing.

       

      1.25 “Person” means any natural
person, corporation, firm, business trust, joint venture, association,
organization, company, partnership or other business entity, or any government,
or any agency or political subdivisions thereof.

       

      1.26 “Product” means the zolpidem
tartrate oral spray as defined and further described in the NDA, and all
improvements, enhancements and combinations (with active or inactive
ingredients) in all dosage forms including a 2.5 ml dose and any strengths
associated therewith.

       

      1.27 “Regulatory Approval” means all
approvals, product licenses, registrations or authorizations of FDA or any
equivalent Canadian Governmental Authority, necessary for the Development,
Manufacture, use or Commercialization of Product in the Territory.

       

      1.28 “Secured Creditor” means
collectively, ProQuest Investments II, L.P., ProQuest Investments II Advisors
Fund, L.P., and ProQuest Investments III, L.P.

       

      1.29 “Security Agreement” means the
Security Pledge Agreement, dated as of May 6, 2008, by NovaDel for the benefit
of ProQuest Investments II, L.P., ProQuest Investments II Advisors Fund, L.P.
and ProQuest Investments III, L.P.

       

      1.30 “Sublicense Income” means all
consideration, upfront payments, license fees, and milestone payments received
by ECR or its Affiliates for the grant by ECR or its Affiliates

       


      
        
           


        

        
          4

          
            

          

        

        
           


        

      


       of
a sublicense to a Third Party net of out-of-pocket expenses
of ECR incurred in connection with such sublicense; provided, however, that
Sublicense Income shall not include *** by ECR *** in respect of: (a) *** and
*** of ECR; provided that *** shall be ***; and (b) *** under other provision
contained in this Agreement.

       

      1.31 “Territory” means the United
States of America and its territories and possessions and Canada.

       

      1.32 “Third Party” means any entity
other than NovaDel or ECR or their respective Affiliates.

       

      Interpretation.  Unless
the context of this Agreement otherwise requires, (a) words of one gender
include the other gender; (b) words using the singular or plural number also
include the plural or singular number, respectively; (c) the terms “hereof,”
“herein,” “hereby,” and other similar words refer to this entire Agreement; (d)
the words “include”, “includes”, and “including” when used in this Agreement
shall be deemed to be followed by the words "without limitation", unless
otherwise specified and (e) the terms “Article” and “Section” refer to the
specified Article and Section of this Agreement and (f) the phrase “unreasonably
withheld”, when used in connection with the right of a Party to consent or
approve an action, shall mean that such consent or approval shall not be
unreasonably withheld, conditioned or delayed.  Whenever this
Agreement refers to a number of days, unless otherwise specified, such number
shall refer to calendar days.

       

      Additional
Definitions.  Each of the following definitions is set forth in
the Section of this Agreement indicated below:

       

      
        	
                Definition

              	
                Section

              
	
                Agreement

              	
                Preamble

              
	
                Breaching
      Party

              	
                9.2.1

              
	
                Change
      of Control

              	
                9.2.3

              
	
                Commercialization
      Plan

              	
                3.2.1

              
	
                Competitive
      Products

              	
                3.4

              
	
                Confidential
      Information

              	
                5.1.1

              
	
                Disclosing
      Party

              	
                5.1.1

              
	
                ECR

              	
                Preamble

              
	
                ECR
      Indemnitees

              	
                8.1.2

              
	
                ECR
      Marks

              	
                2.6

              
	
                Effective
      Date

              	
                Preamble

              
	
                Force
      Majeure Event

              	
                11.2

              
	
                GAAP

              	
                1.17

              
	
                Indemnification
      Claim Notice

              	
                8.2

              
	
                Indemnified
      Party

              	
                8.2

              
	
                Indemnifying
      Party

              	
                8.2

              
	
                Indemnitee

              	
                8.2

              
	
                Indemnitees

              	
                8.2

              
	
                NovaDel

              	
                Preamble

              


      


      
        
           


        

        
          5

          
            

          

        

        
           


        

      


      


      
        	
                Definition

              	
                Section

              
	
                NovaDel
      Indemnitees

              	
                8.1.1

              
	
                NovaDel
      Third Party License Agreements

              	
                2.1

              
	
                Parties

              	
                Preamble

              
	
                Party

              	
                Preamble

              
	
                Patent
      Challenge

              	
                2.5

              
	
                Receiving
      Party

              	
                5.1.1

              
	
                Representatives

              	
                10.1

              
	
                Term

              	
                9.1

              
	
                Third
      Party Claim

              	
                8.1.1

              


      

      


       

                          
ARTICLE
2                      

      LICENSES

       

      2.1 Licenses to
ECR.  Subject to the terms and conditions of this Agreement,
NovaDel hereby grants to ECR an exclusive license, with the right to sublicense
(subject to Section 2.2) under and to the NDA and the remainder of the NovaDel
Technology to Manufacture and Commercialize Product in the
Territory.

       

      2.2 Sublicensing.  ECR
shall have the right to grant sublicenses under the grant in Section 2.1 to
Affiliates and/or Third Parties pursuant to a separate written agreement,
subject to the following requirements and conditions:

       

      2.2.1 ECR must
obtain NovaDel’s prior written consent in respect of each such sublicense to an
Affiliate or Third Party, which consent shall not be unreasonably withheld,
delayed or conditioned.  If NovaDel does not respond to ECR’s request
to consent to a sublicense within ten (10) Business Days after receiving a
written request, consent to such request shall be deemed to have been
given.

       

      2.2.2 Except to
the extent the Parties otherwise agree pursuant to the terms of a particular
sublicense granted under this Section 2.2, except
for financial terms, any sublicense agreement must be fully consistent with the
terms and conditions of this Agreement, and provide that the sublicensee will
indemnify NovaDel and its Affiliates to the extent provided in Section 8.1.1.

       

      2.2.3 Within
five (5) Business Days after execution or receipt thereof, as applicable, ECR
shall provide NovaDel with a full and complete copy of each sublicense agreement
granted hereunder and shall deliver copies of all reports relating to the
Product (including relating to royalties and other payments) received by ECR
from such sublicensees.

       

      2.2.4 Termination
of this Agreement by NovaDel with respect to ECR shall not terminate any
sublicense granted by ECR pursuant to this Section 2.2 with respect to a sublicensee, provided that (i)
such sublicensee is not in breach of any material provision of this Agreement or
the applicable sublicense agreement, (ii) such sublicensee shall perform all
obligations of ECR under this Agreement, (iii) NovaDel shall have all rights
with respect to any and all sublicensees as it had hereunder with respect to ECR
prior to termination of this

       


      
        
           


        

        
          6

          
            

          

        

        
           


        

      


       Agreement
with respect to ECR, and (iv) ECR shall include in any sublicense a provision in
which said sublicensee acknowledges its obligations to NovaDel hereunder and the
rights of NovaDel to terminate such sublicense agreement for a material breach
of such sublicense agreement by such sublicensee.  The failure of ECR
to include in a sublicense the provisions referenced in clause (iv) shall render
the affected sublicense void.

       

      2.2.5 ECR shall
remain responsible for complying with all terms and conditions of this Agreement
regardless of whether a sublicensee performs any part of this Agreement,
including royalty payments for Net Sales by ECR’s permitted
sublicensees.  In addition, ECR shall ensure that each of its
sublicensees accepts, and shall use Commercially Reasonable Efforts to ensure
that each of its sublicensees complies with, all of the terms and conditions of
this Agreement as if such sublicensees were a party to this
Agreement.

       

      2.3 No Implied
Licenses.  Except as expressly provided in this Agreement,
neither Party grants to the other Party any right or license in any intellectual
property, whether by implication, estoppel or otherwise.  No implied
licenses are granted under this Agreement.  Each Party hereby
covenants and agrees not to use or sublicense any of its rights under the
licenses set forth in this ARTICLE 2 except as
expressly permitted in this Agreement.

       

      2.4 Retained
Rights.  Except for the express rights granted to ECR in this
Agreement, ECR shall not enjoy or exercise any proprietary or property right or
otherwise have any other right, title or interest in, to or under the NovaDel
Technology and ECR shall not represent to any Third Party that it has any such
proprietary or property right, or any other right, title or
interest.  Furthermore, any rights of NovaDel not expressly granted to
ECR under the provisions of this Agreement shall be retained by
NovaDel.

       

      2.5 Patent
Challenge.  NovaDel will be permitted to terminate this
Agreement by written notice effective upon receipt by ECR if ECR or its
Affiliates directly, or indirectly through assistance granted to a Third Party,
commence any interference or opposition proceeding, challenge the validity or
enforceability of, or oppose any extension of or the grant of a supplementary
protection certificate with respect to, any NovaDel Patent related to Product
(each such action, a “Patent
Challenge”).  ECR will include provisions in all agreements
granting sublicenses of ECR’s rights hereunder providing that if the sublicensee
or its affiliates undertake a Patent Challenge, ECR will be permitted to
terminate such sublicense agreement.  If a sublicensee of ECR (or an
affiliate of such sublicensee) undertakes a Patent Challenge, then ECR upon
receipt of written notice from NovaDel of such Patent Challenge will terminate
the applicable sublicense agreement.  If ECR fails to so terminate
such sublicense agreement, NovaDel may terminate ECR’s right to sublicense
covered by such sublicense agreement and any sublicenses previously granted
shall automatically terminate.  In connection with such sublicense
termination, ECR shall cooperate with NovaDel’s reasonable requests to cause
such a terminated sublicensee to discontinue activities with respect to the
Product.

       

      2.6 Trademarks.  Subject
to Section 9.3.1(b), ECR shall select, register and own the trademarks, trade
dress, logos, slogans and internet domain names including any of the foregoing
for the Product for use in the Territory (the “ECR Marks”).  For
purposes of clarity, the term ECR Marks shall not include the corporate names
and logos of NovaDel or its Affiliates other than the NovaDel
Trademark.  Subject to Section 9.3.1(b), for the avoidance of doubt,
NovaDel

       


      
        
           


        

        
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       shall
have no right, title or interest in the ECR Marks.  In conjunction
with the transactions contemplated herein, NovaDel shall convey the NovaDel
Trademark to ECR, provided that such conveyance shall be subject to Section
9.3.1(b) and provided further that ECR shall grant NovaDel an exclusive,
irrevocable, perpetual license with the right to sublicense under and to the
NovaDel Trademark for use outside of the Territory.  The conveyance of
the NovaDel Trademark shall take place as soon as practicable after the
Effective Date, but in no event sooner than the date on which the Secured
Creditor has taken all necessary actions to remove any liens and/or encumbrances
from the NovaDel Trademark and except the NovaDel Trademark from the Security
Agreement.  Upon the completion of all such necessary actions by the
Secured Creditor, NovaDel and ECR shall enter into the Trademark Assignment
Agreement attached hereto as Schedule 2.6 to effectuate the
conveyance of the NovaDel Trademark to ECR.

       

      2.7 Rights in
Bankruptcy.  All rights and licenses granted under or pursuant
to any article or section of this Agreement are, and shall otherwise be deemed
to be, for purposes of Section 365(n) of II U.S.C. Section 101-1 532 of the U.S.
Bankruptcy Code (as amended, the “U.S. Bankruptcy Code”), licenses of rights
to  “intellectual property” as defined under Section 101 of the U.S.
Bankruptcy Code.  The Parties agree that ECR, as a licensee of such
rights under this Agreement, shall retain and may fully exercise all of its
rights and elections under the Bankruptcy Code, including the right to market
the Product.  The Parties further agree that if a case is commenced
during the Term by or against NovaDel under the U.S. Bankruptcy Code, then,
unless and until this Agreement is rejected as provided in the U.S. Bankruptcy
Code, NovaDel (in any capacity, including debtor-in-possession) and its
successors and assigns (including, without limitation, a trustee) shall perform
all of the obligations provided in this Agreement to be performed by such
party.  If the U.S. Bankruptcy Code case is commenced during the Term
by or against NovaDel, and this Agreement is rejected as provided in the U.S.
Bankruptcy Code, ECR shall have the right to elect to retain its rights
hereunder as provided in the U.S. Bankruptcy Code.

       

      ARTICLE
3                      

      COMMERCIALIZATION
AND DISTRIBUTION

       

      3.1 Overview and
Diligence.  Except as otherwise set forth in this Agreement,
ECR shall be responsible for Commercializing the Product in the
Territory.  ECR shall use Commercially Reasonable Efforts to
Commercialize the Product in the Territory.

       

      3.2 Commercialization Plans and
Reports. 

       

      3.2.1 Commercialization Plans. ECR shall prepare a
written commercialization plan that describes the significant Commercialization
activities to be undertaken by ECR with respect to the Product in the Territory
in the next calendar year (“Commercialization
Plan”).  By no later than November 1 of each calendar year, ECR
shall prepare and deliver to NovaDel an updated Commercialization Plan for the
subsequent calendar year (i.e., Nov 2010 for calendar year 2011); provided,
however, for the initial Commercialization Plan ECR shall have 180 days after
the Effective Date to prepare and deliver such initial Commercialization Plan to
NovaDel.  The Commercialization Plan for such Product shall also
include a good faith forecast of Net Sales of Product in the Territory for such
calendar year.

       


      
        
           


        

        
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      3.2.2 Reports.  By no
later than March 1 for each calendar year during the Term, ECR shall prepare and
deliver to NovaDel a written report summarizing ECR’s significant
Commercialization activities (as applicable) with respect to the Product in the
Territory performed by ECR during the prior calendar year.

       

      3.3 Overall Commercialization Expenses
and Responsibilities.  ECR shall bear all costs and expenses
associated with the Commercialization of Product in the
Territory.  ECR shall have the responsibility to distribute, sell,
record sales and collect payments for Product in the Territory.  ECR
shall have responsibility for establishing and modifying the terms and
conditions with respect to the sale of Product in the Territory, including the
price or prices at which the Product in the Territory will be sold, any discount
applicable to payments or receivables, and similar matters.  NovaDel
will be responsible for all fees and expenses in obtaining and maintaining the
NDA and for the fees and expenses it has incurred with respect to the Product,
whether not yet due and payable, prior to the Effective Date. ECR will be
responsible for those expenses which it incurs following the Effective
Date.

       

      3.4 Restrictions.  During
the Term, ECR shall not, without first seeking the prior written consent of
NovaDel, directly or indirectly, with or through a Third Party:  (a)
import into the Territory any products in an oral spray dosage form that has the
same indication as the Product (“Competitive Products”); (b) be
engaged or involved in any way within the Territory in the sales, promotion,
manufacture or distribution of any Competitive Products; (c) export, or enter
into any agreement which would result in the export of, the Product outside the
Territory; or (d) directly or indirectly promote, distribute, advertise or deal
with the sale of the Product outside the Territory.

       

      3.5 ECR’s
Obligations.  During the Term, ECR shall:

       

      3.5.1 promote,
sell, advertise and generally create a demand for, the Product within the
Territory, including by (a) distributing the Product to meet all reasonable
demands for the Product and (b) providing and maintaining adequate sales,
services and warehouse facilities;

       

      3.5.2 comply
with all applicable Laws existing in the Territory from time to time in relation
to the Product and the performance of its obligations under this Agreement;
obtain and maintain all necessary licenses, registrations, certifications,
exemptions and permits required under such Laws; prepare and submit any required
reports, applications, supplements, or other filings to the relevant
Governmental Authorities as may be required under the applicable Laws for any
activities performed by ECR hereunder; and advise NovaDel in writing, within
thirty (30) days (or such shorter period of time as may be required by Law for
NovaDel to fulfill any of its obligations), of any changes to applicable Law
affecting the Product in the Territory or otherwise affecting either of the
Parties’ obligations hereunder;

       

      3.5.3 maintain
current detailed customer lists and records relating to the Product sold in the
Territory in such format as NovaDel may request from time to
time.  ECR shall make such customer lists and records available to
NovaDel and its third party representatives, on a quarterly basis or as
otherwise reasonably required by NovaDel from time to time;

       


      
        
           


        

        
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      3.5.4 not make
any promises, representations, warranties, promises or guarantees to customers
or Third Parties or to the trade with respect to the Product (including the
specifications, features or capabilities thereof) except in compliance with the
applicable FDA Regulatory Approvals and FDA laws and regulation or as included
in the Product packaging insert and it shall represent the Product accurately
and fairly and shall refrain from misleading or unethical business practices,
conduct its business in a manner that reflects favorably on the Product and the
good name, goodwill and reputation of NovaDel, and avoid deceptive or unethical
practices, including disparagement of the Product;

       

      3.5.5 promptly
inform NovaDel of any complaint or after-sales enquiry concerning the Product
which is received by ECR;

       

      3.5.6 shall
comply with applicable pharmacovigilance and drug safety requirements imposed by
FDA and other governmental authorities. Within sixty (60) days after the
Effective Date, the Parties will enter into a mutually agreeable
pharmacovigilance agreement setting forth the Parties’ respective obligations in
detail with respect to pharmacovigilance and the exchange of drug safety data.
(the “Pharmacovigilance Agreement”), which will include provisions to ensure
full coordination between ECR and NovaDel with regard to the Product and safety
reporting, including ECR in-Territory collection and transmission of safety
reports to NovaDel, in accordance with global regulations and timelines, each
Party to be responsible for its own expenses.  Within the Territory,
ECR shall collect, investigate and report all Product complaints, where there is
an associated adverse event or adverse drug reaction, and shall provide copies
of such Product complaints to NovaDel within the timelines set forth in the
Pharmacovigilance Agreement; and

       

      3.5.7 Pursuant
to Section 3.10.1, ECR shall retain sole and exclusive rights and
responsibilities to communicate with FDA regarding the Product including with
respect to the NDA, and shall be solely responsible for ensuring the activities
performed hereunder are in compliance with the NDA and for filing any required
NDA reports or supplements, but shall provide NovaDel with copies of any such
communications.  ECR shall submit to NovaDel copies of all
communications which it receives from or sends to FDA relating to the Product
including all reports and regulatory letters relating to the
Product.

       

      3.6 Product
Changes.  Except as required pursuant to Section 3.5.7 hereof,
neither Party shall make any additions, modifications or alterations to any
Product without the other Party’s prior written consent.  Such changes
and associated costs will be the sole responsibility of ECR.  A Party
will provide the other Party with notice of such changes in a timely manner and
any potential impact they may have on the current marketing platform of the
Product.

       

      3.7 Recalls and
Withdrawals.  In the event that any Governmental Authority
threatens or initiates any action to remove the Product from the market (in
whole or in part), the Party receiving notice thereof shall notify the other
Party of such communication immediately, but in no event later than two (2)
Business Days, after receipt thereof.  ECR shall determine, in good
faith consultation with NovaDel, whether to initiate any recall or withdrawal of
Product in the Territory, including the scope of such recall or withdrawal
(e.g., a full or partial recall, or a temporary or permanent recall); provided,
however that before ECR initiates a recall or withdrawal the Parties shall
promptly meet and discuss in good faith the reasons therefor and

       


      
        
           


        

        
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       ECR
shall consider in good faith any comments NovaDel may have with respect to such
recall (except for a recall or withdrawal mandated by a Governmental Authority
or a situation that in ECR’s sole discretion warrants immediate action, in which
case ECR  may act without such advance notice and consultation, but
shall notify NovaDel immediately thereafter).  In the event of any
recall or withdrawal of the Product in the Territory, ECR shall implement any
action it deems necessary to conduct such recall or
withdrawal.  Notwithstanding the foregoing, in the event NovaDel
believes that ECR’s decision with respect to a recall or withdrawal represents a
violation of applicable law which could result in a revocation of the NDA, or
could seriously damage NovaDel’s credibility or relationship with the
Governmental Authority, NovaDel may initiate a recall or withdrawal of the
Product.  In the case of any recall or withdrawal, the Party
responsible for the event requiring such action shall bear the
costs.

       

      3.8 Co-Promotion
Option.  NovaDel from time to time may bring opportunities to
co-promote the Product in the Territory with ECR. ECR shall duly consider such
opportunities on a case by case basis, but shall have the right to accept or
reject such opportunities in its sole discretion.  Upon the exercise
of such co-promotion opportunity, the Parties shall negotiate in good faith a
separate agreement setting forth the terms and conditions pursuant to which the
Parties will co-promote the Product in the Territory. In such event, NovaDel
will be directly responsible for all costs associated with their co-promotion
efforts including any and all reimbursement to ECR for use of marketing
materials (i.e., extra printing, training etc.).

       

      3.9 Manufacturing.  ECR
shall be responsible for Manufacturing the Product for Commercialization in the
Territory, and costs and expenses in connection therewith.

       

      3.9.1 Manufacturing.  The
Parties acknowledge that as of the Effective Date, NovaDel is in the process of
negotiating the commercial manufacturing of the Product with the FDA approved
Third Party contract manufacturer.  NovaDel shall be responsible for
any costs and expenses incurred by NovaDel in connection with this activity
prior to the Effective Date and shall indemnify and hold ECR harmless for any
such costs and expenses.

       

      3.9.2 Agreement with Third Party
Manufacturer.  ECR shall be responsible for entering into an
agreement between ECR and any Third Party Manufacturer that is necessary to
Manufacture and supply Product for the Territory.

       

      3.9.3 Documentation, Scale-Up, Other Costs
and Process Improvements.  ECR, at it sole cost and expense,
shall bear all scale-up, manufacturing, Chemistry Manufacturing and Controls
related activities, documentation, and other costs incurred by ECR or its Third
Party contract manufacturer in connection with securing and scaling up future
supply of the Product.  ECR shall be committed to (or committed to
working with the Third Party contract manufacturer) in developing and
implementing continuous cost, quality and improvement programs by seeking
productivity improvements, by minimizing waste and improving yields, by
purchasing quality materials at lower cost, by improving Manufacturing
processes, by streamlining organizational processes, by reducing cycle times and
lead times and the like.

       

      3.9.4 Packaging,
Labeling, Marketing and Promotion.  ECR shall be responsible
for the preparation, submission, distribution and maintenance of all
packaging,

       


      
        
           


        

        
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       labeling
and marketing materials for the Product and filing any required reports to and
obtaining prior approval from the relevant Governmental Authorities, and the
related costs thereof.  NovaDel shall furnish ECR without any expense
to ECR copies of all of its current marketing studies, materials and other data
and information that may be useful in commercializing or marketing the
Product.

       

      3.10 NovaDel
Obligations.  During the Term:

       

      3.10.1 NovaDel
shall at its own cost and expense and no later than thirty (30) days after the
Effective Date, designate ECR as its authorized agent for all communications
with FDA on all matters  relative to the NDA and the Product and take
all steps that may be necessary to effectuate such designation;

       

      3.10.2 NovaDel
shall provide ECR with complete copies of the NDA for the Product and all other
applications and correspondence to FDA and other Governmental Authorities in the
Territory related to the Product;

       

      3.10.3 NovaDel
shall not directly or indirectly: (i) seek FDA approval with respect to any
Competitive Product  (ii) manufacture or have manufactured any
Competitive Product in the Territory, (iii) market or have marketed any
Competitive Product in the Territory or (iv) license any Third Party to do any
of the foregoing; (v) import, or enter into any agreement which would result in
the reimportation of the Product into the Territory; or (vi)  promote,
distribute, advertise or deal with the reimportation of the Product into the
Territory;

       

      3.10.4 NovaDel
shall be solely responsible for and pay any royalties or other amounts due to
Third Parties under agreements in existence as of the Effective Date related to
the Product and shall indemnify and hold ECR harmless from any claims arising
from or related thereto; and

       

      3.10.5 NovaDel,
at its sole cost and expense, shall use Commercially Reasonable Efforts to
develop a 2.5ml presentation for the Product, which such presentation shall be
covered under the terms and conditions of this Agreement.   Such
efforts shall be initiated within sixty (60) days of the execution date of this
Agreement.

       

                      
ARTICLE
4                      

      FINANCIAL
TERMS

       

      4.1 Upfront Payment.  As
partial payment for the rights and licenses granted by NovaDel pursuant to this
Agreement, ECR shall pay to NovaDel, upon execution of this Agreement, an amount
equal to Three Million Dollars ($3,000,000).  Such amount shall be
non-creditable and non-refundable. 

       

      4.2 Performance
Payments.  As further consideration for NovaDel’s grant of the
rights and licenses to ECR hereunder, ECR will pay to NovaDel an amount equal to
*** percent (***%) of Net Sales of Product (other than sales of Products that
are Authorized Generics which shall be subject to Section 4.3 below); provided,
however, if NovaDel *** *** in *** the Product, ECR will pay to NovaDel an
amount equal to fifteen percent (15%) of Net Sales so long as *** the Product;
provided, further, however, that (a) for the *** following the *** the
***,

       


      
        
           


        

        
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       and
*** for this ***, the obligation to pay the performance payments *** and *** are
*** than *** (***), and (b) the performance payment *** shall *** percent (***%)
until *** the following *** have *** (i) the *** is *** the ***,
and  (ii) the *** of *** of ***.

       

      4.3 Generic
Competition.  The Parties acknowledge that ECR may manufacture,
sell and license the Product as an authorized generic (“Authorized Generic”); ***, that such
Commercialization shall *** (***) *** the *** of ***.  If ECR
Commercializes an Authorized Generic, ECR will pay to NovaDel an amount on Net
Sales of Authorized Generic Product as follows:

       

      
        	
                Unit
      Sales of Authorized Generic in the Territory as a Percent of Unit Sales of
      all Generic Products (including the Authorized Generic) in the
      Territory

              	
                Percentage
      Performance Payment

              
	
                0%-
      ***%

              	
                ***%

              
	
                ***%-
      ***%

              	
                ***%

              
	
                Over
      ***%

              	
                ***%

              


      

      


      For
example, if sales of the Authorized Generic constitute ***% of the total unit
sales of all the generic sales of the Product, the performance payment
percentage of Net Sales of the Authorized Generic due to NovaDel shall be
***%.  For the avoidance of doubt, performance payments on Net Sales
of the Product other than sales of an Authorized Generic shall remain as set
forth in Section 4.2.

       

      4.4 Sublicense
Payments.  ECR shall pay to NovaDel *** percent (***%) of all
Sublicense Income within *** after receipt of the Sublicense Income by ECR or
its Affiliates. For
the purpose of clarity, any sales by a sublicensee shall be included in the
calculation of Net Sales for purposes of determining the performance payments
due from ECR to NovaDel pursuant to Sections 4.2, 4.3 and 4.5 and in the event
that ECR has negotiated to receive a royalty from such sublicensee for such
sales, any royalty amounts received by ECR from such sublicensee for such sales
shall not be included in the calculation of Sublicense Income.

       

      4.5 Performance
Milestone.  In addition to the amounts to be paid by ECR to
NovaDel pursuant to Sections 4.2, 4.3 and 4.4, in the event that Net Sales in
any *** equal or exceed $***, ECR shall make a one-time milestone payment to
NovaDel in the amount of $***.  Such amount shall be payable within
*** after the date on which such Net Sales threshold is reached.  For
the avoidance of doubt, the milestone payment pursuant to this Section 4.5 shall
be payable only once upon the first achievement of such Net Sales threshold
regardless of the number of *** in which such Net Sales threshold may be
reached.

       

      4.6 Payment Method.  All
amounts due to NovaDel hereunder will be paid in Dollars by check or by wire
transfer in immediately available funds to an account designated by
NovaDel.  Any undisputed payments or portions thereof due hereunder
that are not paid by the date such payments are due under this Agreement will
bear simple interest at the lower of a rate per annum equal to (a) *** percent
(***%) per month, or (b) the maximum rate permitted by applicable Law,
calculated on the number of days such payment is delinquent.

       


      
        
           


        

        
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      4.7 Payment Schedules;
Reports.  Performance payments due pursuant to Section 4.2 are due and payable within forty-five (45) days
after the end of each calendar quarter in which there were Net
Sales.  ECR will accompany each payment under this Agreement with a
report setting forth the amount of gross sales of each Product, a calculation of
Net Sales and a calculation of the amount of payment due on such Net Sales
(including any adjustment for Generic Competition).

       

      4.8 Records
Retention; Audit.

       

      4.8.1 Record
Retention.  ECR will maintain complete and accurate books,
records and accounts relevant for the calculation of Net Sales and Sublicense
Income, in sufficient detail to confirm the accuracy of any payments required
under this Agreement, which books, records and accounts will be retained by ECR
for three (3) years after the end of the period to which such books, records and
accounts pertain, or longer as is required by applicable Law.

       

      4.8.2 Audit.  NovaDel will
have the right to have an independent certified public accounting firm of
internationally recognized standing, reasonably acceptable to ECR, to have
access during normal business hours, upon fourteen (14) days prior written
notice and not more than once in each calendar year during the Term and for
three (3) years thereafter, or longer as is required by applicable Law, to such
of the records of ECR and its Affiliates and sublicensees as may be reasonably
necessary to verify the accuracy of the calculation of Net Sales and/or
Sublicense Income for any calendar year ending not more than three (3) years, or
longer as is required by applicable Law, prior to the date of such
request.  Results of such inspections shall be made available to both
NovaDel and ECR; provided that the accounting firm
shall report to NovaDel only the final audited payment amounts to be paid by
ECR, its Affiliates and sublicensees.  ***, unless ***, in *** of the
***.

       

      4.8.3 Payment of Additional
Amounts.  If, based on the results of any audit, additional
payments are owed to NovaDel under this Agreement, then ECR will make such
additional payments within thirty (30) days after the accounting firm’s written
report is delivered to the Parties.  The provisions of Section 4.6
shall apply to such payment as of the date such additional payments were
originally due.

       

      4.8.4 Confidentiality.  In
connection with its audit rights in this Section 4.8, NovaDel will treat all information that is shared
with it in connection with NovaDel’s audit rights under this Section 4.8 in accordance with the provisions of ARTICLE 5.

       

                        
ARTICLE
5                      

      CONFIDENTIALITY

       

      5.1 Confidential
Information.

       

      5.1.1 Confidential
Information.  As used in this Agreement, the term “Confidential Information” means all
secret, confidential or proprietary information or data, whether provided
in written, oral, graphic, video, computer, electronic or other form, generated
pursuant to this Agreement or provided pursuant to this Agreement by one Party
(the “Disclosing Party”)
to the other Party (the “Receiving Party”), including
information relating to the

       


      
        
           


        

        
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      Disclosing
Party’s existing or proposed research, development efforts, patent applications,
business or products, and any other materials that have not been made available
by the Disclosing Party to the general public.  Notwithstanding the
foregoing sentence, Confidential Information shall not include any information
or materials that:

       

      (a) were
already known to the Receiving Party (other than under an obligation of
confidentiality), at the time of disclosure by the Disclosing Party, to the
extent such Receiving Party has documentary evidence to that
effect;

       

      (b) were
generally available to the public or otherwise part of the public domain at the
time of disclosure thereof to the Receiving Party;

       

      (c) became
generally available to the public or otherwise part of the public domain after
disclosure or development thereof, as the case may be, and other than through
any act or omission of a Party in breach of such Party’s confidentiality
obligations under this Agreement; or

       

      (d) were
disclosed to a Party, other than under an obligation of confidentiality, by a
Third Party who had no obligation to the Disclosing Party not to disclose such
information to others.

       

      5.1.2 Confidentiality
Obligations.  Each of NovaDel and ECR shall not disclose, and
shall keep all Confidential Information of the other Party confidential with the
same degree of care it employs to maintain the confidentiality of its own
Confidential Information, but in no event less than a reasonable degree of
care.  Neither Party shall use such Confidential Information for any
purpose other than in performance of, or in exercise of its rights under, this
Agreement or disclose the same to any other Person other than to such of its and
its Affiliates’ directors, managers, employees, independent contractors, agents
or consultants who have a need to know such Confidential Information to
implement the terms of this Agreement or enforce its rights under this
Agreement; provided, however, that a Receiving Party shall advise any of its and
its Affiliates’ directors, managers, employees, independent contractors, agents
or consultants who receives such Confidential Information of the confidential
nature thereof and of the obligations contained in this Agreement relating
thereto, and the Receiving Party shall ensure (including, in the case of a Third
Party, by means of a written agreement with such Third Party having terms at
least as protective as those contained in this ARTICLE
5) that all such directors, managers, employees, independent contractors,
agents or consultants comply with such obligations as if they had been a Party
hereto.  Upon termination of this Agreement, the Receiving Party shall
return or destroy all documents, tapes or other media containing Confidential
Information of the Disclosing Party that remain in the possession of the
Receiving Party or its directors, managers, employees, independent contractors,
agents or consultants, except that the Receiving Party may keep one copy of the
Confidential Information in the legal department files of the Receiving Party,
solely for archival purposes.  Such archival copy shall be deemed to
be the property of the Disclosing Party, and shall continue to be subject to the
provisions of this ARTICLE 5.  It is
understood that receipt of Confidential Information under this Agreement will
not limit the Receiving Party from assigning its employees to any particular job
or task in any way it may choose, subject to the terms and conditions of this
Agreement.

       


      
        
           


        

        
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      5.1.3 Governmental
Requirements.  Confidential Information that is disclosed by
judicial or administrative process shall remain otherwise subject to the
confidentiality and non-use provisions of this Section 5.1, and the Party disclosing Confidential Information
pursuant to law or court order shall take all steps reasonably practical,
including without limitation seeking an order of confidentiality, to ensure the
continued confidential treatment of such Confidential Information.

       

      5.1.4 Notification.  The
Receiving Party shall notify the Disclosing Party promptly upon discovery of any
unauthorized use or disclosure of the Disclosing Party’s Confidential
Information, and will cooperate with the Disclosing Party in any reasonably
requested fashion to assist the Disclosing Party to regain possession of such
Confidential Information and to prevent its further unauthorized use or
disclosure.

       

      5.2 Publicity; Filing of this
Agreement.  Any publication, news release or other public
announcement relating to this Agreement or to the performance hereunder, shall
first be reviewed and approved by both Parties; provided, however, that a Party
may (a) once a press release or other public announcement is approved in writing
by both Parties, make subsequent public disclosure of the information contained
in such press release or other public announcement without the further approval
of the other Party, and (b) any disclosure which is required by applicable Law
as advised by the disclosing Party’s counsel may be made without the prior
consent of the other Party.  To the extent practicable, the
non-disclosing Party shall be given at least seven (7) Business Days advance
notice of any such legally required disclosure, and shall provide any comments
on the proposed disclosure during such period.  To the extent that
either Party determines that it or the other Party is required to file or
register this Agreement or a notification thereof to comply with the
requirements of an applicable stock exchange or NASDAQ regulation or any
Governmental Authority, including the U.S. Securities and Exchange Commission,
the Competition Directorate of the Commission of the European Communities or the
U.S. Federal Trade Commission, such Party shall promptly inform the other Party
thereof.  Prior to making any such filing, registration or
notification, the Parties shall agree on the provisions of this Agreement for
which the Parties shall seek confidential treatment, it being understood that if
one Party determines to seek confidential treatment for a provision for which
the other Party does not, then the Parties will use reasonable efforts in
connection with such filing to seek the confidential treatment of any such
provision.  The Parties shall cooperate, each at its own expense, in
such filing, registration or notification, including such confidential treatment
request, and shall execute all documents reasonably required in connection
therewith.

       

      5.3 Use of
Names.  Neither Party shall use the name of the other Party in
relation to this transaction in any public announcement, press release or other
public document without the  prior written consent of such other
Party, which consent shall not be unreasonably withheld; provided, however, that
either Party may use the name of the other Party in any document filed with any
regulatory agency or authority, including the FDA and the Securities and
Exchange Commission.

       

      5.4 Confidentiality of this
Agreement.  The terms and existence of this Agreement shall be
Confidential Information of each Party and, as such, shall be subject to the
provisions of this ARTICLE 5.

       


      
        
           


        

        
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      5.5 Survival.  The
obligations and prohibitions contained in this ARTICLE
5 shall survive the expiration or termination of this Agreement for a period
of ***.

       

      ARTICLE
6                      

      OWNERSHIP
OF INTELLECTUAL PROPERTY AND PATENT RIGHTS

       

      6.1 Ownership of Intellectual
Property.  Subject to the license grants in Section 2.1, NovaDel shall own and retain all right, title,
and interest in and to any and all: (a) NovaDel Technology existing at the
Effective Date; and (b) Know-How and improvements that are conceived,
discovered, developed or otherwise made by or on behalf of either Party (or its
Affiliates or sublicensees), whether or not patentable, and any and all Patent
and other intellectual property rights thereto.  ECR shall promptly
disclose to NovaDel in writing, the conception or reduction to practice, or the
discovery, development or making of any and all information and improvements,
and shall, and does hereby, assign, and shall cause its respective Affiliates
and sublicensees to assign, to NovaDel, without any additional compensation, all
of their respective right, title and interest in and to any intellectual
property rights related to the Know-How or Improvements.  To the
extent necessary to assign any such intellectual property rights, ECR and its
Affiliates and sublicensees shall enter into and execute all reasonable and
appropriate assignments, transfers and other agreements, and enter into all
agreements with its employees, consultants, Affiliates, and sublicensees that
are necessary or appropriate to ensure the assignment of such intellectual
property rights to NovaDel.

       

      6.2 Patent Prosecution and
Maintenance.

       

      6.2.1 NovaDel
Patents.  NovaDel shall be responsible for the preparation,
filing, prosecution, maintenance and defense of the NovaDel
Patents.  The cost of such preparation, filing, prosecution and
maintenance of the NovaDel Patents shall be borne by NovaDel.  NovaDel
shall keep ECR informed of progress with regard to the preparation, filing,
prosecution and maintenance of NovaDel Patents in the Territory.  If
(i) NovaDel elects not to pursue the filing, prosecution or maintenance of a
NovaDel Patent in the Territory or to take any other action with respect to a
NovaDel Patent in the Territory that is necessary or useful to establish or
preserve rights with respect to the Product, and (ii) such NovaDel Patent does
not claim or cover the NovaDel Process, then NovaDel shall so notify ECR
promptly in writing and in good time to enable ECR to meet any deadlines by
which an action must be taken to establish or preserve any such rights in such
NovaDel Patent in the Territory.  Upon receipt of any such notice by
NovaDel or if, at any time, NovaDel fails to initiate any such action within
thirty (30) days after a request by ECR that it do so (and thereafter diligently
pursue such action), ECR shall have the right, but not the obligation, to pursue
the filing or registration, or support the continued prosecution or maintenance,
of such NovaDel Patent at its expense in the Territory.  If ECR elects
to pursue such filing or registration, as the case may be, or continue such
support, then ECR shall notify NovaDel of such election and NovaDel shall, and
shall cause its Affiliates to, reasonably cooperate with ECR in this
regard.   Any costs incurred by ECR in this regard shall be
offset against royalty payments otherwise owed to NovaDel.

       

      6.2.2 Cooperation of the
Parties.  Each Party agrees to cooperate fully in the
preparation, filing, prosecution and maintenance of any NovaDel Patents under
this Agreement and in the obtaining and maintenance of any patent extensions,
supplementary protection

       


      
        
           


        

        
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       certificates
and the like with respect to any NovaDel Patent claiming the composition or
method of manufacture or use of the Product.

       

      6.3 Infringement by Third
Parties.  The Parties shall promptly notify the other in
writing of any alleged or threatened infringement of any NovaDel Patent of which
they become aware.

       

      6.3.1 NovaDel
Patents.  With respect to infringement of any NovaDel Patent
that is likely to have an effect or impact on the sales or commercial potential
of the Product in the Territory, NovaDel shall have the first right, but not the
obligation, to bring and control any action or proceeding with respect to such
infringement of any NovaDel Patent at its own expense and using counsel of its
own choice.  If NovaDel fails to bring an action or proceeding within
ninety (90) days (thirty (30) days in the event of a Paragraph IV filing)
following the notice of alleged infringement or earlier notifies ECR in writing
of its intent not, to bring an action or proceeding, ECR shall have the right to
bring and control any such action at its own expense and using counsel of its
own choice, and NovaDel shall have the right, at its own expense, to participate
in any such action with counsel of its own choice, subject to ECR’s control;
provided, however, that if NovaDel enters into negotiations with an alleged
infringer within such ninety (90) day period (or such thirty (30) day period),
then NovaDel shall have an additional ninety (90) days (but no additional days
in the event of a Paragraph IV filer) to conclude such negotiations before ECR
may bring suit for such infringement; and provided further that if ECR brings
such action and prevails that it shall have the right to offset the expenses
incurred by it in bringing the action from any royalties owed to NovaDel under
this Agreement.  Neither NovaDel nor ECR shall not enter into any
settlement or compromise with respect to any NovaDel Patent without the
other’s  prior consent, which consent shall not be unreasonably
withheld.

       

      6.3.2 Cooperation.  In the
event a Party brings an infringement action in accordance with this Section 6.3, the other Party shall cooperate fully, including,
if required to bring such action, the furnishing of a power of attorney or being
named as a party.  Except as otherwise agreed to by the Parties as
part of a cost sharing arrangement, any recovery realized as a result of such
litigation, after reimbursement of any litigation expenses of ECR and NovaDel,
shall be retained by the Party that brought and controlled such litigation for
purposes of this Agreement; provided, however, that to the extent that any award
is attributable to the loss of sales of the Product, such amount shall be paid
to ECR and shall be treated as Net Sales on which royalties shall be due
pursuant to Section 4.2.

       

      6.4 Infringement of Third Party
Rights.  Each Party shall promptly notify the other in writing
of any allegation by a Third Party that the activity of either of the Parties
pursuant to this Agreement infringes or may infringe the intellectual property
rights of such Third Party.  NovaDel shall have the right to control
any defense of any such claim involving alleged infringement of Third Party
rights by either Party’s activities under this Agreement at NovaDel’s expense by
counsel of NovaDel’s choice; provided, however, that ECR shall bear all costs
and expenses associated with the defense of any such claim to the extent that it
relates to the Commercialization or Manufacture of the Product in the Territory,
and shall be entitled to settle or compromise such action.

       


      
        
           


        

        
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      ARTICLE
7                      

      REPRESENTATIONS
AND WARRANTIES

       

      7.1 Representations,
Warranties and Covenants.

       

      7.1.1 Mutual
Representations.  Each of the Parties hereby represents and
warrants to the other Party that, as of the Effective Date:

       

      (a) Such
Party has full corporate right, power and authority to enter into this Agreement
and to perform its respective obligations under this Agreement and that it has
the right to grant the licenses and sublicenses granted pursuant to this
Agreement;

       

      (b) This
Agreement is a legal and valid obligation binding upon such Party and
enforceable in accordance with its terms.  The execution, delivery and
performance of the Agreement by such Party does not conflict with any agreement,
instrument or understanding, oral or written, to which it is a Party or by which
it is bound, nor, to its knowledge, violate any Law of any Governmental
Authority having jurisdiction over it;

       

      (c) Such
Party has not granted any right to any Third Party that would conflict with the
rights granted to the other Party hereunder; and

       

      (d) There is
no action or proceeding pending or, to such Party’s knowledge, threatened, that
questions the validity of this Agreement or any action taken by such Party in
connection with the execution of this Agreement.

       

      7.1.2 Additional Representations of
NovaDel.  NovaDel hereby represents and warrants to ECR that,
as of the Effective Date:

       

      (a) With
respect to the Product, NovaDel owns all right, title and interest in and to, or
has a worldwide, royalty-free, perpetual, sublicenseable license, sublicense or
other permission to use, all NovaDel Technology, and Trademarks (collectively
the “NovaDel Intellectual Property”).  Schedule 7.1.2(a)
sets forth a complete and correct list of all agreements governing the NovaDel
Intellectual Property. All necessary registration, maintenance and renewal fees
due in connection with such NovaDel Intellectual Property with respect to the
Product have been paid and all necessary documents and certificates in
connection with such NovaDel Intellectual Property have been filed with the
relevant Copyright, Trademark, other Governmental Authorities or domain name
registrar for the purposes of registering and maintaining such NovaDel
Intellectual Property.  Except as set forth in Schedule 7.1.2(a),
(i) none of the NovaDel Intellectual Property has been cancelled or abandoned;
and (ii) and to the Knowledge of NovaDel, there is no basis for any
infringement, misappropriation, dilution, violation or unauthorized use of the
NovaDel Intellectual Property;

       

      (b) All
patent applications within the NovaDel Patents are still pending and all issued
patents within the NovaDel Patents are in good standing and have not been
abandoned, and any issued Patents for the Product have been listed in the Orange
Book;

       

      (c) There is
no action, proceeding, or investigation pending or, to NovaDel’s knowledge,
threatened, or any basis therefor known to NovaDel, that questions
the

       


      
        
           


        

        
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       validity
of this Agreement or the right of NovaDel to enter into this Agreement or to
consummate the transactions contemplated hereby or that would result, either
individually or in the aggregate, in any material adverse event;

       

      (d) The
financial statements included in NovaDel’s public filings fairly and accurately
present NovaDel’s financial position as of those dates and the results of
operations and changes in its financial position for such periods then
ended.

       

      (e) NovaDel
is not a party to an interference relating to the subject matter of the NovaDel
Patents identified on Schedule 1.20 and is unaware of any other assertion or
claim challenging the validity or ownership of the NovaDel Patents;

       

      (f) NovaDel
does not currently have an agreement with any Third Party granting a license
under or to any of the NovaDel Technology to Manufacture or Commercialize the
Product in the Territory;

       

      (g) NovaDel
is not aware of any generic filing or 505b filing against the
Product;

       

      (h) To
NovaDel’s knowledge, the Manufacture or Commercialization of the Product or use
of the NovaDel Technology  does not, infringe any valid rights of any
Third Party including inter alia intellectual property rights;

       

      (i) Complete
and correct copies of each submission of NovaDel to the FDA with respect to the
Product, and all amendments and supplements thereto, including all related
pre-clinical and clinical data, have heretofore been provided to ECR by
NovaDel.  Complete and correct copies of all correspondence received
by NovaDel from the FDA with respect to the Product and NovaDel’s responses
thereto have heretofore been provided to ECR by NovaDel.  Complete and
correct copies of all complaint information, adverse event information and
safety information relating to the Product and the Regulatory Approvals have
heretofore been provided to ECR;

       

      (j)  NovaDel
has not received any formal or informal notice or other communication from the
FDA or any other Governmental or Regulatory Authority, including a warning or
untitled letter, (i) contesting the Regulatory Approvals, approved labeling, or
promotion (including advertising, promotional labeling and sampling) of, the
Product or (ii) otherwise alleging any violation or appearance of any
violation of any Law by NovaDel relating to the Product;

       

      (k) NovaDel
has been and is in substantial compliance with 21 U.S.C. Sec. 355 and applicable
FDA implementing regulations, including 21 C.F.R. Parts 312 or 314, and similar
Laws and all terms and conditions of the applicable new drug application and
investigational new drug exemption submission under Section 505(i) of the
FDCA.  NovaDel and its officers, employees or agents have included in
the application for the Product, where required, the certification described in
21 U.S.C. Sec. 335a(k)(1) or any similar Law, and such certification and such
list was in each case true and accurate when made and remained true and accurate
in all material respects thereafter;

       


      
        
           


        

        
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      (l) Neither
NovaDel nor any of its officers, employees or agents has with respect to the
Product made an untrue statement of a material fact or fraudulent statement to
the FDA or other Governmental Authority in the Territory, failed to disclose a
material fact required to be disclosed to the FDA or any other Governmental
Authority in the Territory, or committed an act, made a statement, or failed to
make a statement that, at the time such disclosure was made, could reasonably be
expected to provide a basis for the FDA or any other Governmental Authority in
the Territory to invoke its policy respecting “Fraud, Untrue Statements of
Material Facts, Bribery, and Illegal Gratuities” set forth in 56 Fed. Reg. 46191
(September 10, 1991) or any similar policy and, to the Knowledge of NovaDel,
neither NovaDel nor any of its officers, employees or agents is the subject,
officially or otherwise, of any pending or threatened investigation by any
Governmental Authority in the Territory under such policy or under the Federal
Anti-Kickback Statute or the Civil False Claims Act or any regulations
promulgated thereunder.  Neither NovaDel nor any of its officers,
employees or agents has been convicted of any crime or engaged in any conduct
with respect to the Product for which debarment is mandated by 21 U.S.C. Sec.
335a(a) or any similar Law or authorized by 21 U.S.C. Sec. 335a(b) or any
similar Law;

       

      (m) To the
Knowledge of NovaDel, all pre-clinical and clinical investigations conducted or
sponsored by it with respect to the Product have been and are being conducted in
compliance with all applicable Laws, including those with respect to good
laboratory practices, investigational new drug requirements, good clinical
practice requirements (including informed consent and institutional review
boards designed to ensure the protection of the rights and welfare of human
subjects), and federal and state laws restricting the use and disclosure of
individually identifiable health information;

       

      (n) To the
Knowledge of NovaDel, no Governmental Authority in the Territory is considering
issuing any “talk paper” or other public statement, pursuant to 21 U.S.C. sec.
375 or otherwise, questioning the safety, effectiveness or risk-benefit ratio of
the Product, and no Governmental Authority in the Territory is considering
requesting or directing that the approved labeling for the Product be revised to
include additional or strengthened warning or other risk
information;

       

      (o) NovaDel
has obtained all authorizations of all Persons required to be obtained by it as
of the Effective Date in connection with the execution, delivery and performance
of this Agreement; and

       

      (p) Except
for amounts owing to the Secured Creditor, to the extent any amounts are due and
owing prior to the Effective Date to a vendor, supplier or other Third Party
regarding or pertaining to the Product, NovaDel shall pay all such amounts
within sixty (60) days following the Effective Date.  NovaDel
represents that it has paid the fees described in Schedule 7.1(p).

       

      7.2 Limitation on Representations or
Warranties.  Notwithstanding anything to the contrary herein,
neither Party will be in breach of any representation or warranty made pursuant
to this ARTICLE 7 to the extent that the Party
alleged to have so breached can demonstrate that the Party alleging such breach
had, on or prior to the Effective Date, actual knowledge of such breach of such
representation or warranty.

       


      
        
           


        

        
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      7.3 Disclaimer of
Warranty.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN
SECTION 7.1, NEITHER PARTY MAKES ANY
REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR
BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND NOVADEL AND ECR EACH
SPECIFICALLY DISCLAIMS ANY OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN
OR ORAL, EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY,
MERCHANTABILITY OR  FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY
WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. EACH PARTY HEREBY DISCLAIMS ANY
REPRESENTATION OR WARRANTY THAT THE DEVELOPMENT, MANUFACTURE AND
COMMERCIALIZATION OF THE PRODUCTS PURSUANT TO THIS AGREEMENT WILL BE SUCCESSFUL
OR THAT ANY PARTICULAR SALES LEVEL WITH RESPECT TO THE PRODUCTS WILL BE
ACHIEVED.

       

      7.4 Limitation of
Liability.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOST
PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY AND WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING UNDER ANY
CAUSE OF ACTION AND ARISING IN ANY WAY OUT OF THIS AGREEMENT, EXCEPT AS A RESULT
OF A PARTY’S WILLFUL MISCONDUCT, GROSS NEGLIGENCE, RECKLESS CONDUCT OR A BREACH
OF THE CONFIDENTIALITY AND NON-USE OBLIGATIONS IN ARTICLE 5.  MOREOVER, THE FOREGOING
LIMITATIONS WILL NOT LIMIT EITHER PARTY’S OBLIGATIONS TO THE OTHER PARTY UNDER
ARTICLE 8.

       

      ARTICLE
8                      

      INDEMNIFICATION;
INSURANCE

       

      8.1 Indemnification.

       

      8.1.1 Indemnification by
ECR.  ECR hereby agrees to save, defend and hold NovaDel, its
Affiliates, and their respective directors, members, agents and employees
(collectively, “NovaDel
Indemnitees”) harmless from and against any and all Losses arising in
connection with any and all charges, complaints, actions, suits, proceedings,
hearings, investigations, claims, demands, judgments, orders, decrees,
stipulations or injunctions by a Third Party (each a “Third Party Claim”) resulting
from (a) any breach by ECR of any of its representations, warranties, covenants
or obligations pursuant to this Agreement, (b) any alleged violation of any Laws
by an ECR Indemnitee relating to the reimbursement, pricing, promotion or
advertising of Product, (c) the death of or any injury to any person or any
damage to or loss of property as a result of Product Commercialized or otherwise
distributed by ECR, its Affiliates or sublicensees, except to the extent that
such Losses are subject to indemnification by NovaDel pursuant to Section 8.1.2, or (d) any negligent act, omission or willful
misconduct of an ECR Indemnitee in the use, Commercialization or distribution of
Product.

       

      8.1.2 Indemnification by
NovaDel.  NovaDel hereby agrees to save, defend and hold ECR,
its Affiliates, and their respective directors, members, agents and
employees

       


      
        
           


        

        
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       (collectively,
“ECR
Indemnitees”)  harmless from and against any and all Losses
arising in connection with any and all Third Party Claims resulting from (a) any
breach by NovaDel of any of its representations, warranties, covenants or
obligations pursuant to this Agreement or (b) any negligent act, omission or
willful misconduct by NovaDel or its Affiliates or their respective officers,
directors, employees, agents or consultants in performing any obligations under
this Agreement or in the Development and Manufacturing of Product or in the
Commercialization of Product prior to the Effective Date.

       

      8.2 Notice of
Claim.  All indemnification claims in respect of any indemnitee
seeking indemnity under Section 8.1 (collectively,
the “Indemnitees” and
each an “Indemnitee”)
will be made solely by the corresponding Party (the “Indemnified
Party”).  The Indemnified Party will give the indemnifying
Party (the “Indemnifying
Party”) prompt written notice (an “Indemnification Claim Notice”)
of any Losses or the discovery of any fact upon which such Indemnified Party
intends to base a request for indemnification under Section 8.1, but in no event will the Indemnifying Party be
liable for any Losses that result from any delay in providing such notice which
materially prejudices the defense of such Third Party Claim.  Each
Indemnification Claim Notice must contain a description of the claim and the
nature and amount of such Loss (to the extent that the nature and amount of such
Loss are known at such time).  Together with the Indemnification Claim
Notice, the Indemnified Party will furnish promptly to the Indemnifying Party
copies of all notices and documents (including court papers) received by any
Indemnitee in connection with the Third Party Claim.

       

      8.3 Control of
Defense.  At its option, the Indemnifying Party may assume the
defense of any Third Party Claim subject to indemnification as provided for in
Sections 8.1.1 and 8.1.2 by giving written notice to the Indemnified
Party within thirty (30) days after the Indemnifying Party’s receipt of an
Indemnification Claim Notice.  Upon assuming the defense of a Third
Party Claim, the Indemnifying Party may appoint as lead counsel in the defense
of the Third Party Claim any legal counsel it selects.  Should the
Indemnifying Party assume the defense of a Third Party Claim, the Indemnifying
Party will not be liable to the Indemnified Party or any other Indemnitee for
any legal expenses subsequently incurred by such Indemnified Party or other
Indemnitee in connection with the analysis, defense or settlement of the Third
Party Claim.

       

      8.4 Right to Participate in
Defense.  Without limiting Section 8.3, any Indemnitee will be
entitled to participate in, but not control, the defense of a Third Party Claim
for which it has sought indemnification hereunder and to employ counsel of its
choice for such purpose; provided, however, that such employment will be at the
Indemnitee’s own expense unless (a) the employment thereof has been specifically
authorized by the Indemnifying Party in writing, or (b) the Indemnifying Party
has failed to assume the defense and employ counsel in accordance with Section
8.3 (in which case the Indemnified Party will
control the defense).

       

      8.5 Settlement.  With
respect to any Losses relating solely to the payment of money damages in
connection with a Third Party Claim and that will not result in the Indemnitee’s
becoming subject to injunctive or other relief or otherwise adversely affect the
business of the Indemnitee in any manner, and as to which the Indemnifying Party
will have acknowledged in writing the obligation to indemnify the Indemnitee
hereunder, the Indemnifying Party will have the sole right to consent to the
entry of any judgment, enter into any settlement or otherwise

       


      
        
           


        

        
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       dispose
of such Loss, on such terms as the Indemnifying Party, in its reasonable
discretion, will deem appropriate (provided, however that such terms shall
include a complete and unconditional release of the Indemnified Party from all
liability with respect thereto), and will transfer to the Indemnified Party all
amounts which said Indemnified Party will be liable to pay prior to the time of
the entry of judgment.  With respect to all other Losses in connection
with Third Party Claims, where the Indemnifying Party has assumed the defense of
the Third Party Claim in accordance with Section 8.3, the Indemnifying Party will have authority to
consent to the entry of any judgment, enter into any settlement or otherwise
dispose of such Loss provided it obtains the prior written consent of the
Indemnified Party (which consent will be at the Indemnified Party’s reasonable
discretion).  The Indemnifying Party that has assumed the defense of
the Third Party Claim in accordance with Section 8.3 will not be liable for any settlement or other
disposition of a Loss by an Indemnitee that is reached without the written
consent of such Indemnifying Party.  Regardless of whether the
Indemnifying Party chooses to defend or prosecute any Third Party Claim, no
Indemnitee will admit any liability with respect to, or settle, compromise or
discharge, any Third Party Claim without first offering to the Indemnifying
Party the opportunity to assume the defense of the Third Party Claim in
accordance with Section 8.3.

       

      8.6 Cooperation.  If the
Indemnifying Party chooses to defend or prosecute any Third Party Claim, the
Indemnified Party will, and will cause each other Indemnitee to, cooperate in
the defense or prosecution thereof and will furnish such records, information
and testimony, provide such witnesses and attend such conferences, discovery
proceedings, hearings, trials and appeals as may be reasonably requested in
connection with such Third Party Claim.  Such cooperation will include
access during normal business hours afforded to the Indemnifying Party to, and
reasonable retention by the Indemnified Party of, records and information that
are reasonably relevant to such Third Party Claim, and making Indemnitees and
other employees and agents available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder, and
the Indemnifying Party will reimburse the Indemnified Party for all its
reasonable out-of-pocket expenses incurred in connection with such
cooperation.

       

      8.7 Insurance.  Each
Party shall obtain and, throughout the term of this Agreement and for a period
of *** after termination of this Agreement, maintain in force General Liability
and Products Liability with limits at a minimum of *** Dollars ($***) Such
insurance shall name the other Party as an additional insured.  It is
understood that such insurance will not be construed to limit such Party’s
liability with respect to its indemnification obligations under this ARTICLE 8.  Each Party will provide to the
other upon request a certificate evidencing the insurance it is required to
obtain and keep in force under this ARTICLE
8.  Such certificate will provide that such insurance will not
expire or be cancelled or modified without at least thirty (30) days’ prior
notice to the other Party.

       

      ARTICLE
9                      

      TERM
AND TERMINATION

       

      9.1 Term.  This
Agreement shall commence as of the Effective Date and, unless sooner terminated
as provided herein, shall continue in effect for so long as ECR has an
obligation to pay monies to NovaDel pursuant to the terms of this Agreement (the
“Term”).

       


      
        
           


        

        
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      9.2 Events of Default;
Termination.

       

      9.2.1 Breach.  Either
Party may, without prejudice and in addition to any other remedies available to
it at Law or in equity, terminate this Agreement in the event that the other
Party (the “Breaching
Party”) shall have materially breached or defaulted in the performance of
any of its obligations.  The Breaching Party shall have sixty (60)
days (twenty (20) days in the event of non-payment) after written notice thereof
was provided to the Breaching Party by the non-breaching Party to remedy such
default.  Any such termination shall become effective at the end of
such 60-day period (20-day period for non-payment) unless the Breaching Party
has cured any such breach or default prior to the expiration of such 60-day
period (20-day period for non-payment).   In the event of a
breach of this Agreement by NovaDel that remains uncured within the periods
provided herein, ECR may offset its damages from performance payments or other
amounts otherwise owing to NovaDel pursuant to this Agreement.

       

      9.2.2 Bankruptcy.  Subject
to Section 2.7 of this Agreement, the Section 365(n) of the U.S. Bankruptcy
Code, either Party may terminate this Agreement upon written notice to other
Party at any time, to the extent permitted by Law, if the other Party shall make
or seek to make or arrange an assignment for the benefit of creditors, or if
proceedings in voluntary or involuntary bankruptcy shall be initiated by, on
behalf of or against such other Party (and, in the case of any such involuntary
proceeding, not dismissed within ninety (90) days), or if a receiver or trustee
of such Party’s property shall be appointed and not discharged within ninety
(90) days.

       

      9.2.3 Change of
Control.  NovaDel may terminate this Agreement by prior written
notice to ECR effective upon the occurrence of a Change of Control of
ECR.  For the purposes of this Section 9.2.3, “Change of Control” means the
announcement of any agreement or the consummation of any transaction of the
following events: (a) any Specified Person (or group of Specified Persons acting
in concert) becomes the beneficial owner, directly or indirectly, of more than
fifty percent (50%) of the total voting power of the stock then outstanding of
ECR normally entitled to vote in elections of directors; (b) ECR consolidates
with or merges into a Specified Person, or any Specified Person consolidates
with or merges into ECR, in either event pursuant to a transaction in which more
than fifty percent (50%) of the total voting power of the stock outstanding of
the surviving entity normally entitled to vote in elections of directors is not
held by the parties holding at least fifty percent (50%) of the outstanding
shares of ECR preceding such consolidation or merger;  (c) ECR
conveys, transfers or leases all or substantially all of its assets to a
Specified Person, or (d) any other arrangement whereby a Specified Person
controls or has the right to control the board of directors or equivalent
governing body that has the ability to cause the direction of the management or
policies of ECR.  For purposes of this Section, “Specified Person”
means any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the U.S. Securities Exchange Act of 1934, as amended), that, as of
the consummation of the Change of Control, is marketing,  promoting,
detailing, distributing, offering to sell or selling a Competitive Product in
the Territory and such Competitive Product represents greater than 50% of the
revenues of such Specified Person or has filed an application for regulatory
approval in the Territory with respect to such a Competitive
Product.

       

      9.2.4 Termination For
Convenience.  ECR may terminate this Agreement upon one hundred
eighty(180) days prior written notice if ECR determines in its sole
discretion

       


      
        
           


        

        
          25

          
            

          

        

        
           


        

      


       that
continued Commercialization of the Product by ECR is not Commercially
Reasonable; provided that such notice may not be given prior to the second
anniversary of the First Commercial Sale.

       

      9.3 Effects of
Termination.  Upon termination of this Agreement under Section
9.2 (but not by reason of rejection in bankruptcy):

       

      9.3.1 Assignments.  ECR
will promptly (and in each case within sixty (60) days after receipt of
NovaDel’s request):

       

      (a) upon
NovaDel’s request, assign to NovaDel all of ECR’s right, title and interest in
and to any agreements between ECR and Third Parties that are freely assignable
by ECR and that relate solely to the Commercialization of Product;

       

      (b) assign to
NovaDel all of ECR’s right, title and interest in and to the NovaDel Trademark
and any ECR Marks (including any goodwill associated therewith), any
registrations and design patents  for any of the foregoing and any
Internet domain name registrations for such trademarks and slogans, all to the
extent related to Product;

       

      (c) to the
extent that any agreement or other asset described in this Section 9.3.1 is not assignable by ECR, then such agreement or
other asset will not be assigned, and upon the request of NovaDel, ECR will take
such steps as may be necessary to allow NovaDel to obtain and to enjoy the
benefits of such agreement or other asset, in the form of a license or other
right to the extent ECR has the right and ability to do so; and

       

      (d) provide
copies of any other books, records, documents and instruments to the extent
related to the Product and to the extent not previously provided, any
correspondence with the FDA..

       

      9.3.2 License Grant.  ECR
agrees to grant and hereby grants to NovaDel, effective upon such termination of
this Agreement in whole or in part, an exclusive (even as to ECR), irrevocable,
royalty-free right and license, with the right to sublicense and authorize the
grant of further sublicenses, under any ECR intellectual property relating to
the Product, to Commercialize the Product.  ECR agrees to grant and
hereby grants to NovaDel, effective upon such termination of this Agreement, an
exclusive (even as to ECR), royalty-free right and license, with the right to
grant sublicenses, under any patent, copyright, other intellectual property or
ECR Confidential Information embodied in or relating to any package inserts, or
other promotional materials relating to the Product.

       

      9.3.3 Disclosure and
Delivery.  ECR will transfer and assign to NovaDel any ECR
intellectual property, to the extent then used in connection with the
Commercialization of the Product.  With respect to Know-How, such
transfer shall be effected by the delivery of documents, to the extent such
Know-How is embodied in documents, and to the extent that such Know-How is not
fully embodied in documents, ECR shall make its employees and agents who have
knowledge of such Know-How in addition to that embodied in documents available
to NovaDel for interviews, demonstrations and training to effect such transfer
in a manner sufficient to enable NovaDel to practice such Know-How as
theretofore practiced by ECR.

       


      
        
           


        

        
          26

          
            

          

        

        
           


        

      


      


       

      9.3.4 Sublicensees.  NovaDel
shall have the option at its discretion to assume the rights and obligations of
ECR in each sublicense agreement with respect to any Product to which the
licenses granted herein have been terminated.

       

      9.3.5 Disposition of
Inventory.  NovaDel shall have the option, exercisable within
thirty (30) days following the effective date of such termination, to purchase
any inventory of Product at the price paid for the Product by
ECR.  NovaDel may exercise such option by written notice to ECR during
such thirty (30)-day period.  Upon such exercise, the Parties will
establish mutually agreeable and commercially reasonable payment and delivery
terms for the sale of such inventory.  If NovaDel does not exercise
such option during such thirty (30)-day period, or if NovaDel provides ECR with
written notice of its intention not to exercise such option, then ECR and its
Affiliates and sublicensees will be entitled, during the period ending on the
last day of the sixth (6th) full month following the effective date of such
termination, to sell any inventory of Product that remain on hand as of the
effective date of the termination, so long as ECR pays to NovaDel the
performance payments applicable to said subsequent sales in accordance with the
terms and conditions set forth in this Agreement.

       

      9.3.6 Manufacturing.  Upon
NovaDel’s notice to ECR, given by NovaDel within thirty (30) days of the
termination notice given by the Party which triggered the termination, NovaDel
may request that ECR supply NovaDel with quantities of Product for the shorter
of (i) the period until NovaDel or its designee has established and validated a
manufacturing process for Product and is approved to Manufacture supplies of
Product or (ii) eighteen (18) months from the effective date of such
termination; provided, however, that NovaDel shall reimburse ECR for ECR’s cost
of goods with respect to Product.  ECR shall transfer the completed
Manufacturing process for Product to NovaDel or its designee, upon NovaDel’s
request and at ECR’s cost and expense, and ECR shall cooperate with NovaDel to
effect the transition of such Manufacturing responsibilities.

       

      9.3.7 FDA
Communications.  Upon termination of this Agreement, ECR shall
take such steps as necessary to rescind its designation as NovaDel’s authorized
agent for communications with FDA related to the Product.

       

      9.4 Accrued
Rights.  Termination of this Agreement for any reason will be
without prejudice to any rights that will have accrued to the benefit of a Party
prior to the effective date of such termination.  Such termination
will not relieve a Party from obligations that are expressly indicated to
survive the termination of this Agreement.

       

      9.5 Non-Disturbance.  If
(a) this Agreement shall be rejected pursuant to Section 365 of the U.S.
Bankruptcy Code, whether by NovaDel, or any bankruptcy trustee, or otherwise, or
(b) Secured Creditor may otherwise exercise its right pursuant to the Security
Agreement, then   provided ECR at such time is not in default
under the terms of this Agreement beyond any applicable notice and cure periods
provided for herein, Secured Creditor agrees that for as long as ECR performs
its obligations hereunder, this Agreement shall continue in full force and
effect and that ECR shall retain all of the rights as set forth herein; and
provided further that in the event Secured Creditor transfers, assigns or
otherwise conveys the NDA or any other rights of NovaDel or Secured Creditor
under this Agreement or the Security Agreement, it shall require that the
transferee or assignee to agree to be bound by the terms of the Agreement. The
foregoing

       


      
        
           


        

        
          27

          
            

          

        

        
           


        

      


       provisions
shall be effective and self-operative without the need for any further
instruments, provided that, upon the written request of either Party, Secured
Creditor and ECR shall execute and deliver to each other such instruments and
certificates as such party may reasonably request to evidence and confirm such
nondisturbance.

       

      9.6 Survival.  The
following Articles and Sections, together with any definitions used or exhibits
referenced therein, will survive any termination or expiration of this
Agreement: Sections 2.7, 4.8, 6.1, 7.3, 7.4, 9.2.2, 9.3, 9.4, 9.5 and 9.6, and
Articles 5, 8, 10 and 11.

       

                                
ARTICLE
10                                

      DISPUTE
RESOLUTION

       

      10.1 Disputes.  For all
matters under this Agreement, the Parties hereby agree that disputes shall be
referred to the designated Senior Executive of NovaDel and ECR (the “Representatives”).  If
any such matter has not been resolved within fifteen (15) Business Days of such
referral to the Representatives either Party may invoke the provisions of
Section 10.2 for such dispute.  No
dispute resolution procedure set forth in this Agreement shall be construed as
an agreement to arbitrate under any federal or state arbitration law, including
but not limited to the Federal Arbitration Act, and shall not deprive a court of
competent jurisdiction from resolving any dispute arising under, or related to,
this Agreement.

       

      10.2 Litigation.  In the
event that any dispute is not resolved as provided in the preceding Section 10.1, whether before or after termination of this
Agreement, either Party may avail itself of any remedy available to such Party
in the state and Federal courts of New York.

       

      10.3 Injunctive
Relief.  Notwithstanding anything to the contrary in this
Agreement, either Party will have the right to seek temporary injunctive relief
in any court of competent jurisdiction as may be available to such Party under
the laws and rules applicable in such jurisdiction with respect to any matters
arising out of the other Party’s performance of its obligations under this
Agreement.

       

      10.4 Governing
Law.  Resolution of all disputes arising out of or related to
this Agreement or the performance, enforcement, breach or termination of this
Agreement and any remedies relating thereto, shall be governed by and construed
under the substantive laws of the State of Delaware, without regard to conflicts
of law rules that would provide for application of the law of a jurisdiction
outside the State of New Jersey.

       

                                      
ARTICLE
11                                

      MISCELLANEOUS

       

      11.1 Entire Agreement;
Amendment.  This Agreement, including the Schedules and
Exhibits attached hereto (each of which is hereby incorporated herein by
reference), sets forth the complete, final and exclusive agreement and all the
covenants, promises, agreements, warranties, representations, conditions and
understandings between the Parties hereto and supersedes and terminates all
prior agreements and understandings between the Parties which will continue to
govern the obligations of the Parties with respect to information disclosed
thereunder with respect to periods prior to the Effective Date.  There
are no covenants, promises, agreements, warranties, representations, conditions
or understandings, either oral or written,

       


      
        
           


        

        
          28

          
            

          

        

        
           


        

      


       between
the Parties other than as are set forth herein.  No subsequent
alteration, amendment, change or addition to this Agreement shall be binding
upon the Parties unless reduced to writing and signed by an authorized officer
of each Party.

       

      11.2 Force
Majeure.  Neither Party shall be liable to the other for any
failure or delay in the fulfillment of its obligations under this Agreement
(other than the payment of monies due and owing to a Party under this
Agreement), when any such failure or delay is caused by fire, flood,
earthquakes, explosions, sabotage, strikes, lockouts, lack of adequate raw
materials, insurrections, civil commotions, riots, invasions, wars, acts of war
(whether war be declared or not), peril of the sea, acts, restraints,
requisitions, regulations or directions of, or omissions or delays in acting by,
Governmental Authorities, acts of God, or any similar cause beyond the
reasonable control of the performing Party (each, a “Force Majeure
Event”).  In the event that either Party is prevented from
discharging its obligations under this Agreement on account of a Force Majeure
Event, the performing Party will notify the other Party forthwith, and will
nevertheless make every endeavor, in the utmost good faith, to discharge its
obligations, even if in a partial or compromised manner.

       

      11.3 Notices.  All
notices or other communications that are required or permitted under this
Agreement will be in writing and delivered personally, sent by facsimile (and
promptly confirmed by personal delivery or overnight courier as provided in this
Agreement), or sent by internationally-recognized overnight courier to the
addresses below.  Any such communication will be deemed to have been
given (a) when delivered, if personally delivered or sent by facsimile on a
Business Day (so long as promptly confirmed by personal delivery or overnight
courier as provided in this Agreement), and (b) on the second Business Day after
dispatch, if sent by internationally-recognized overnight
courier.  Unless otherwise specified in writing, the mailing addresses
of the Parties shall be as described below.

       

      
        	
                For
      ECR:

              	
                ECR
      Pharmaceuticals Company, Inc.

              
	 
      	
                3969
      Deep Rock Road

              
	 
      	
                Richmond,
      Virginia, 23233

              
	 
      	
                Fax:  (804)
      527-1959

              
	 
      	
                Attention:  David
      Seltzer

              
	 
      	 
      
	
                with
      a copy to:

              	
                LeClair
      Ryan, PC

              
	 
      	
                Riverfront
      Plaza, East Tower

              
	 
      	
                951
      East Byrd Street, Eighth Floor

              
	 
      	
                Richmond,
      VA  23219

              
	 
      	
                Fax:
      (804) 916-7261

              
	 
      	
                Attention:
      Grant S. Grayson

              
	 
      	 
      
	
                For
      NovaDel:

              	
                NovaDel
      Pharma Inc.

              
	 
      	
                25
      Minneakoning Road

              
	 
      	
                Flemington,
      New Jersey 08822

              
	 
      	
                Fax:
      (908) 782-2445

              
	 
      	
                Attention:
      Chief Executive Officer

              
	 
      	 
      
	
                with
      a copy to:

              	
                Morgan,
      Lewis & Bockius LLP

              


      


      
        
           


        

        
          29

          
            

          

        

        
           


        

      


      


      
        	 
      	
                502
      Carnegie Center

              
	 
      	
                Princeton,
      New Jersey 08540

              
	 
      	
                Fax:
      (609) 919-6701

              
	 
      	
                Attention:  David
      Glazer

              


      

      


      11.4 Independent
Contractors.  In making and performing this Agreement, ECR and
NovaDel shall act at all times as independent contractors and nothing contained
in this Agreement shall be construed or implied for any purpose to create an
agency, partnership, limited partnership, joint venture or employer and employee
relationship between ECR and NovaDel and this Agreement shall not be construed
to suggest otherwise.  At no time shall one Party make commitments or
incur any charges or expenses for or in the name of the other
Party.  Except as otherwise provided in this Agreement, each Party
shall be solely responsible for its own costs and expenses associated with this
Agreement.

       

      11.5 Maintenance of
Records.  Each Party shall keep and maintain all records
required by Law with respect to Product and shall make copies of such records
available to the other Party during normal business hours, upon reasonable prior
written notice and solely to the extent access to such records is necessary for
a Party to exercise its rights under this Agreement.

       

      11.6 No Strict
Construction.  This Agreement has been prepared jointly and
shall not be strictly construed against either Party.  Ambiguities, if
any, in this Agreement shall not be construed against any Party, irrespective of
which Party may be deemed to have authored the ambiguous provision.

       

      11.7 Assignment.  Subject
to Section 9.2.3, ECR may sell, transfer or assign this Agreement provided that
such buyer, transferee or assignee shall agree in writing to be bound by the
terms of this Agreement.

       

      11.8 Costs.  Each Party
shall be solely responsible for its costs and expenses in connection with the
execution of this agreement.

       

      11.9 Counterparts.  This
Agreement may be executed in two counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.  Signatures provided by facsimile transmission shall be
deemed to be original signatures.

       

      11.10 Further
Actions.  Each Party agrees to execute, acknowledge and deliver
such further instruments, and to do all such other acts, as may be necessary or
appropriate in order to carry out the purposes and intent of this
Agreement.

       

      11.11 Severability.  If
any one or more of the provisions of this Agreement is held to be invalid or
unenforceable by any court of competent jurisdiction from which no appeal can be
or is taken, the provision shall be considered severed from this Agreement and
shall not serve to invalidate any remaining provisions hereof.  The
Parties shall make a good faith effort to replace any invalid or unenforceable
provision with a valid and enforceable one such that the objectives contemplated
by the Parties when entering this Agreement may be realized.

       


      
        
           


        

        
          30

          
            

          

        

        
           


        

      


      


       

      11.12 Headings.  The
headings for each article and section in this Agreement have been inserted for
convenience of reference only and are not intended to limit or expand on the
meaning of the language contained in the particular article or
section.

       

      11.13 No Waiver.  Any
delay in enforcing a Party’s rights under this Agreement or any waiver as to a
particular default or other matter shall not constitute a waiver of such Party’s
rights to the future enforcement of its rights under this Agreement, excepting
only as to an express written and signed waiver as to a particular matter for a
particular period of time.

       

      [Signature
Page Follows]

       


      
        
           


        

        
          31

          
            

          

        

        
           


        

      


      IN WITNESS WHEREOF, the Parties have
executed this License and Distribution Agreement in duplicate originals by their
proper officers as of the Effective Date.

       

      
        	
                ECR
      PHARMACEUTICALS COMPANY, INC.

              	 
      	
                NOVADEL
      PHARMA INC.

              
	 
      	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	 
      
	
                By:

              	
                /s/
      David Seltzen

              	 
      	
                By:

              	
                /s/
      Steven B. Ratoff

              
	
                Name:

              	
                David
      Seltzen

              	 
      	
                Name:

              	
                Steven
      B. Ratoff

              
	
                Title:

              	
                President

              	 
      	
                Title:

              	
                Interim
      Chief Executive Officer

              


      

      


       

      
        	
                SECURED
      CREDITOR (for purposes of

                Section
      9.5 only)

              
	 
      
	
                PROQUEST
      INVESTMENTS II, L.P.

              
	 
      
	
                By:

              	
                ProQuest
      Associates II, LLC,

                its
      general partner

              
	 
      
	
                By:

              	
                /s/
      Pasquale DeAngelis

              
	
                Name:  Pasquale
      DeAngelis

              
	
                Title:
      Managing Member

              
	 
      
	
                PROQUEST
      INVESTMENTS II ADVISORS FUND, L.P.

              
	 
      
	
                By:

              	
                ProQuest
      Associates II, LLC,

                its
      general partner

              
	 
      
	
                By:

              	
                /s/
      Pasquale DeAngelis

              
	
                Name:  Pasquale
      DeAngelis

              
	
                Title:  Managing
      Member

              
	 
      
	
                PROQUEST
      INVESTMENTS III, L.P.

              
	 
      
	
                By:

              	
                ProQuest
      Associates III, LLC,

                its
      general partner

              
	 
      
	
                By:

              	
                /s/
      Pasquale DeAngelis

              
	
                Name:  Pasquale
      DeAngelis

              
	
                Title:  Managing
      Member

              


      

      


       


      
        
          
            DB1/64018417.1

          

           


        

        
           


          
            

          

        

        
           


        

      


      SCHEDULE
1.20

      


      NovaDel
Patents

      


      


       ***

      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      SCHEDULE
2.6

      


      Form of Trademark Assignment
Agreement

      


      TRADEMARK
ASSIGNMENT AGREEMENT

       

      WHEREAS,
NovaDel Pharma, Inc., a Delaware corporation, (the “Assignor”), is the owner of
all right, title and interest in and to the trademark and the registrations
and/or applications for registration listed in the attached Schedule A
(collectively, the “Trademark”) and all common law
rights in the same, together with the goodwill of the business symbolized by the
Trademark;

       

      WHEREAS,
ECR Pharmacal Co, Inc., a Delaware corporation, ( the “Assignee”), is desirous of
acquiring all of Assignor’s rights, title and interest in and to said
Trademark;

       

      NOW,
THEREFORE, in consideration of good and valuable consideration referred to in
the License and Distribution Agreement dated November 10, 2009 (the “License Agreement”), the
receipt of each of which is hereby acknowledged, the parties hereto agree as
follows:

       

      1. Assignor
hereby sells, assigns, transfers to the Assignee the entire right, title,
interest in and to the Trademark and the goodwill of the business symbolized by
the Trademark in the United States to be held and enjoyed by Assignee, its
successors, assignees and any other legal representatives.

       

      2. This
assignment includes the right to sue and recover damages for past and future
infringements of Assignor’s rights in the Trademark and to bring any proceeding
in the national trademark offices or any equivalent agency in any country for
cancellation or opposition or other proceeding in connection with said
Trademark.  The right, title and interest is to be held and enjoyed by
Assignee and Assignee’s successors and assigns as fully and exclusively as it
would have been held and enjoyed by Assignor had this assignment not been
made.

       

      3. Assignee
will record the assignment of the Trademark at the national trademark offices
where the Trademark is registered and any expenses incurred in connection with
the recordation of this assignment shall be born by the Assignee.  The
Assignee is responsible for obtaining any individual country assignment
documents that may be necessary for the recordation of the assignment of the
Trademark and the Assignor hereby undertakes to give its reasonable assistance
to the Assignee as to such recordation of the assignment of the
Trademark.

       

      4. This
Agreement is linked to the License Agreement so that if for any reason the
License Agreement was to be declared void or null, the present Agreement would
be automatically declared void or null.

       

      5. Assignee
shall pay, or reimburse Assignor for, all registrar transfer
fees.  Assignee will also reimburse Assignor for any trademark renewal
fees paid by Assignor after the date of this Agreement pending transfer of the
Trademark.  Upon Assignee’s request, Assignor will provide Assignee
with copies of applicable registrar invoices therefor or comparable proof of
payment thereof.

       


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


       

      6. The
representations, warranties and covenants relating to the Trademark contained in
the License Agreement are incorporated herein by reference.

       

      7. Each
party, upon the written request and at the expense of the other party, shall
provide such reasonable cooperation, shall perform such further reasonable acts,
and shall execute and deliver such reasonable documents and affidavits that may
be necessary to effect the assignment and transfer of the Trademark in
accordance with the intent of the License Agreement and this Agreement,
including execution and delivery of such documents with respect to the
Trademark.

       

      8. This
Agreement may be executed in two or more counterparts, each of which shall for
all purposes be deemed an original and all of which shall constitute one and the
same agreement.

       

      [No
Further Text On This Page]


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      


      IN TESTIMONY WHEREOF, the Assignor and
Assignee have executed this Agreement on this [__] day of November,
2009.

      


      
        	
                ECR
      PHARMACEUTICALS CO, INC.

              
	 
      
	 
      
	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              
	 
      
	
                NOVADEL
      PHARMA INC.

              
	 
      
	 
      
	 
      
	
                By:

              	 
      
	 
      	
                Name:

              
	 
      	
                Title:

              


      

      


      


      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      Schedule
A

       

      Trademark

       

      


       

      United
States trademark ZolpiMist®, Registration #77/176,611 ZOLPIMIST (Class
5)

      



      
        
           


        

        
           


          
            

          

        

        
           


        

      


      SCHEDULE
7.1.2(a)

      


      Agreements Governing NovaDel
Intellectual Property

      


      The
Security Agreement and agreements related thereto.


      
        
           


        

        
           


          
            

          

        

        
           


        

      


      SCHEDULE
7.1.2(p)

      


      Fees Paid by
NovaDel

      


      All fee
obligations owed by NovaDel with respect to the Product on or prior to the
Effective Date under the Prescription Drug User Fee Amendments of 2002 have been
paid by NovaDel.