LAW OR IN EQUITY.
(B)
THE EMPLOYEE ACKNOWLEDGES AND AGREES THAT
THE COVENANTS CONTAINED IN THIS AGREEMENT ARE FAIR AND REASONABLE IN LIGHT OF
THE CONSIDERATION PAID HEREUNDER, AND THE INVALIDITY OR UNENFORCEABILITY OF ANY
PARTICULAR PROVISION, OR PART OF ANY PROVISION, OF THIS AGREEMENT WILL NOT
AFFECT THE OTHER PROVISIONS OR PARTS HEREOF.
IF ANY PROVISION HEREOF IS
9
DETERMINED TO BE INVALID OR UNENFORCEABLE AND IF ANY SUCH PROVISION WILL BE SO
DETERMINED TO BE INVALID OR UNENFORCEABLE BY REASON OF THE DURATION OR
GEOGRAPHICAL SCOPE OF THE COVENANTS CONTAINED THEREIN, SUCH DURATION OR
GEOGRAPHICAL SCOPE, OR BOTH, WILL BE REDUCED TO A DURATION OR GEOGRAPHICAL SCOPE
SOLELY TO THE EXTENT NECESSARY TO CURE SUCH INVALIDITY.
10.
MISCELLANEOUS.
(A)
SUCCESSORS; BINDING AGREEMENT.
THIS
AGREEMENT AND THE OBLIGATIONS OF THE COMPANY UNDER THIS AGREEMENT AND ALL RIGHTS
OF THE EXECUTIVE UNDER THIS AGREEMENT SHALL INURE TO THE BENEFIT OF THE PARTIES
HERETO AND THEIR RESPECTIVE HEIRS, PERSONAL REPRESENTATIVES, SUCCESSORS AND
ASSIGNS; PROVIDED, HOWEVER, THAT THE DUTIES OF THE EXECUTIVE UNDER THIS
AGREEMENT ARE PERSONAL TO THE EXECUTIVE AND MAY NOT BE DELEGATED OR ASSIGNED BY
HIM.
(B)
NOTICE.
ALL NOTICES OF TERMINATION AND
OTHER COMMUNICATIONS PROVIDED FOR IN THIS AGREEMENT SHALL BE IN WRITING AND
SHALL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN DELIVERED BY HAND OR MAILED BY
UNITED STATES REGISTERED MAIL, RETURN RECEIPT REQUESTED, ADDRESSED AS FOLLOWS:
If to the Company:
MacroChem Corporation
80 Broad Street, 22nd Floor
New York, NY 10004
Attn:
General Counsel
Tel: (212) 514-8094
Fax: (212) 514-8613
with a copy to:
Luke P. Iovine, III, Esq.
Paul, Hastings, Janofsky & Walker LLP
75 East 55th Street
New York, NY 10022
Tel: (212) 318-6000
Fax: (212) 319-4090
If to Executive:
David P. Luci, Esq.
270 Benedict Road
Staten Island, NY 10304
10
With a copy to:
William J. McSherry, Jr.
Crowell & Moring LLP
153 East 53rd Street, 31st Floor
New York, New York 10022
Tel: (212) 895-4200
Fax: (212) 895-4201
or to such other address as either party may designate by notice to the other,
which notice shall be deemed to have been given upon receipt.
(C)
CHOICE OF LAW; DISPUTES.
THE VALIDITY,
INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
REGARDLESS OF WHICH PARTY HERETO
INITIATES ANY DISPUTE WHICH MAY ARISE UNDER THIS AGREEMENT, THE NON-PREVAILING
PARTY IN ANY DISPUTE HEREUNDER SHALL PROMPTLY PAY AND/OR REIMBURSE THE
PREVAILING PARTY FOR ANY AND ALL REASONABLE COSTS AND EXPENSES INCURRED IN
BRINGING OR DEFENDING SUCH DISPUTE, AS APPLICABLE, UPON RECEIPT OF AN ORDER
PROVIDED BY A COURT OF COMPETENT JURISDICTION WHETHER OR NOT SUCH ORDER IS
SUBJECT TO FURTHER APPEAL. ANY ACCRUED BUT UNPAID AMOUNTS UNDER THIS SECTION
SHALL ACCRUE INTEREST AT THE RATE OF 12% PER ANNUM UNTIL SUCH AMOUNTS ARE FULLY
PAID.
(D)
WAIVERS.
THE WAIVER OF EITHER PARTY HERETO
OF ANY RIGHT UNDER