THIS AGREEMENT OR OF ANY FAILURE TO PERFORM OR BREACH BY THE
OTHER PARTY HERETO SHALL NOT BE DEEMED A WAIVER OF ANY OTHER RIGHT UNDER THIS
AGREEMENT OR OF ANY OTHER FAILURE OR BREACH BY THE OTHER PARTY HERETO, WHETHER
OF THE SAME OR A SIMILAR NATURE OR OTHERWISE.
NO WAIVER SHALL BE DEEMED TO HAVE
OCCURRED UNLESS SET FORTH IN WRITING EXECUTED BY OR ON BEHALF OF THE WAIVING
PARTY.
NO SUCH WRITTEN WAIVER SHALL BE DEEMED A CONTINUING WAIVER UNLESS
SPECIFICALLY STATED THEREIN, AND EACH SUCH WAIVER SHALL OPERATE ONLY AS TO THE
SPECIFIC TERM OR CONDITION WAIVED AND SHALL NOT CONSTITUTE A WAIVER OF SUCH TERM
OR CONDITION FOR THE FUTURE OR AS TO ANY ACT OTHER THAN THAT SPECIFICALLY
WAIVED.
(E)
SEVERABILITY.
THE INVALIDITY OR
UNENFORCEABILITY OF ANY PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE
VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS AGREEMENT, WHICH SHALL
OTHERWISE REMAIN IN FULL FORCE AND EFFECT.
MOREOVER, IF ANY ONE OR MORE OF THE
PROVISIONS CONTAINED IN THIS AGREEMENT IS HELD TO BE EXCESSIVELY BROAD AS TO
DURATION, SCOPE OR ACTIVITY, SUCH PROVISIONS SHALL BE CONSTRUED BY LIMITING AND
REDUCING THEM SO AS TO BE ENFORCEABLE TO THE MAXIMUM EXTENT COMPATIBLE WITH
APPLICABLE LAW.
(F)
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN SEVERAL COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT
ALL OF WHICH SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
(G)
ENTIRE AGREEMENT.
THIS AGREEMENT SETS FORTH
THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES IN RESPECT OF THE SUBJECT
MATTER CONTAINED HEREIN, AND SUPERSEDES ALL PRIOR AGREEMENTS, PROMISES,
COVENANTS, ARRANGEMENTS, COMMUNICATIONS, REPRESENTATIONS OR WARRANTIES, WHETHER
ORAL OR WRITTEN, BY ANY OFFICER, EMPLOYEE OR REPRESENTATIVE OF EITHER PARTY IN
RESPECT OF SAID SUBJECT MATTER.
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(H)
MODIFICATIONS.
THIS AGREEMENT MAY ONLY BE
MODIFIED IN A WRITING SIGNED BY BOTH THE COMPANY AND THE EXECUTIVE.
(I)
HEADINGS DESCRIPTIVE.
THE HEADINGS OF
THE SEVERAL PARAGRAPHS OF THIS AGREEMENT ARE INSERTED FOR CONVENIENCE ONLY AND
SHALL NOT IN ANY WAY AFFECT THE MEANING OR CONSTRUCTION OF ANY OF THIS
AGREEMENT.
(J)
CAPACITY.
THE EXECUTIVE REPRESENTS AND
WARRANTS THAT HE IS NOT A PARTY TO ANY AGREEMENT THAT WOULD PROHIBIT HIM FROM
ENTERING INTO THIS AGREEMENT OR PERFORMING FULLY HIS OBLIGATIONS UNDER THIS
AGREEMENT.
(K)
SURVIVAL.
THE OBLIGATIONS AND RIGHTS SET
FORTH IN PARAGRAPHS 6, 7 AND 8 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT
FOR ANY REASON.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company and the Executive have executed this Agreement
as of the date first written above.
The Company:
MACROCHEM CORPORATION
By:
/s/ Jeffrey B. Davis
Name:
Jeffrey B. Davis
Title:
Chairman, Compensation Committee
Executive:
/s/ David P. Luci, Esq.
David P. Luci, Esq.
APPENDIX A
(1)
"AFFILIATE" OF A PERSON SHALL MEAN ANY PERSON THAT DIRECTLY OR
INDIRECTLY CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH, SUCH
PERSON.
(2)
"AGREEMENT" SHALL MEAN THIS EMPLOYMENT AGREEMENT, WHICH INCLUDES
FOR ALL PURPOSES ITS EXHIBITS.
(3)
"BASE SALARY" SHALL HAVE