AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 99.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the “Agreement”) is entered into as of
June 17, 2008 between Somanetics Corporation, a Michigan corporation (the “Company”), and
Xxxxxxx X. Xxxxxxxxx (“Employee”).
RECITALS
A. The Company desires to continue to employ Employee, and Employee desires to remain an
employee of the Company on the terms and conditions set forth in this Agreement.
THEREFORE, the Company and Employee agree as follows:
1. Employment. During the term of Employee’s employment under this Agreement (as defined
in Section 2), the Company shall employ Employee, and Employee hereby accepts such employment by
the Company, on a full time basis, in accordance with the terms and conditions set forth in this
Agreement.
1.1. Position and Duties. Employee shall serve as Senior Vice President, U.S. Sales
and Marketing of the Company or in such other position with the Company as the Board of Directors
of the Company shall, from time to time, specify. Employee shall perform all duties, services and
responsibilities and have such authority and powers for, and on behalf of, the Company as are
customary and appropriate for such position and as are established from time to time by, or in
accordance with procedures established by, the Company’s Board of Directors, President or Chief
Executive Officer.
1.2. Performance. Employee shall perform the duties called for under this Agreement
to the best of his ability and shall devote all of his business time, energies, efforts and skill
to such duties during the term of his employment and shall not seek or accept employment with any
other employer or business or engage in any other business of any nature whatsoever, in any
capacity whatsoever, unless approved in writing in advance by the Company’s Board of Directors,
President or Chief Executive Officer. Employee shall be based in the Troy, Michigan area and
perform his duties in the State of Michigan except for travel incidental to the performance of his
duties under this Agreement.
2. Term. The term of Employee’s employment under this Agreement shall begin on the date of
this Agreement and shall continue until terminated pursuant to the following:
2.1. Death. Employee’s employment under this Agreement shall terminate immediately
upon Employee’s death.
2.2. Disability. The Company shall have the right, upon written notice to Employee,
to terminate Employee’s employment under this Agreement upon Employee’s “Disability” (as defined in
Section 2.5.1). Such termination shall be effective immediately when such notice is deemed given
to Employee pursuant to Section 7, or upon such later date, if any, provided in such notice.
Employee shall continue to receive compensation pursuant to Section 3 during the
period before termination of his employment pursuant to this Section 2.2, if Employee’s
employment is not otherwise terminated pursuant to this Agreement, less any disability benefits
Employee receives pursuant to any disability insurance policy or its equivalent provided to
Employee pursuant to Section 3.3 with respect to such period. There shall be no such deduction for
disability benefits received by Employee if Employee pays the premiums on such disability insurance
policy.
2.3. With Cause. The Company shall have the right, upon written notice to Employee,
to terminate Employee’s employment under this Agreement for “Cause” (as defined in Section 2.5.2).
Such termination shall be effective immediately when such notice is deemed given to Employee
pursuant to Section 7, or upon such later date, if any, provided in such notice.
2.4. Without Cause. The Company and Employee shall each have the right, upon written
notice to the other, to terminate Employee’s employment under this Agreement without “Cause” (as
defined in Section 2.5.2). Such termination shall be effective when such notice is deemed given to
Employee pursuant to Section 7, or upon such later date, if any, provided in such notice, with
respect to termination by the Company. Such termination shall be effective 30 days after such
notice is deemed given to the Company pursuant to Section 7, or upon such later date, if any,
provided in such notice, with respect to termination by Employee.
2.5. Definitions.
2.5.1. Disability. For purposes of this Agreement, “Disability” means (A) if
Employee is covered by a Company-, Successor- or affiliate-provided disability insurance
policy, the definition of disability contained in, and entitling Employee to benefits under,
that policy, or (B) if Employee is not covered by such a policy, Employee’s inability,
whether physical or mental, to perform the normal duties of his position for six consecutive
months. If there is any disagreement as to the nature, extent, duration or cause of
Employee’s absence or disability, such matter shall be determined by a doctor chosen by the
Company and a doctor chosen by Employee, and, if necessary, a doctor mutually chosen by such
doctors; provided that Employee shall be deemed subject to a “Disability” if Employee shall
fail or refuse to submit to physical examinations by such doctors.
2.5.2. Cause. For purposes of this Agreement, “Cause” means (1) Employee’s
continued failure (after notice and at least 30 days to cure such failure) to make a good
faith effort to perform Employee’s employment duties; (2) any breach by Employee of the
provisions of Section 5, or (3) Employee’s conviction of a felony involving dishonesty or
fraud.
2.5.3. Change in Control. For purposes of this Agreement, a “Change in
Control” shall mean:
(a) Acquisition of Shares. the acquisition by any individual, entity
or group (a “Person”), including any “person” within the meaning of Section 13(d)(3)
or 14(d)(2) of the Exchange Act, of beneficial ownership within the meaning of Rule
13d-3 promulgated under the Exchange Act, of 40% or more of
2
either (1) the then outstanding Common Shares of the Company (the “Outstanding
Common Shares”) or (2) the combined voting power of the then outstanding securities
of the Company entitled to vote generally in the election of directors (the
“Outstanding Voting Securities”); excluding, however, the following: (A) any
acquisition directly from the Company (excluding any acquisition resulting from the
exercise of an exercise, conversion or exchange privilege unless the security being
so exercised, converted or exchanged was acquired directly from the Company), (B)
any acquisition by the Company, (C) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation controlled
by the Company, or (D) any acquisition by any corporation pursuant to a transaction
which complies with clauses (1), (2) and (3) of Section 2.5.3(c); provided further,
that for purposes of clause (B), if any Person (other than the Company or any
employee benefit plan (or related trust) sponsored or maintained by the Company or
any corporation controlled by the Company) shall become the beneficial owner of 40%
or more of the Outstanding Common Shares or 40% or more of the Outstanding Voting
Securities by reason of an acquisition by the Company, and such Person shall, after
such acquisition by the Company, become the beneficial owner of any additional
Outstanding Common Shares or any additional Outstanding Voting Securities and such
beneficial ownership is publicly announced, such additional beneficial ownership
shall constitute a Change in Control;
(b) Change in Board Control. individuals who, as of the date hereof,
constitute the Board (the “Incumbent Board”) cease for any reason to constitute at
least a majority of such Board; provided that any individual who becomes a director
of the Company subsequent to the date hereof whose election, or nomination for
election, by the Company’s shareholders was approved by the vote of at least a
majority of the directors then comprising the Incumbent Board shall be deemed a
member of the Incumbent Board;
(c) Reorganization, Merger or Asset Sale. the consummation of a
reorganization, merger or consolidation, or sale or other disposition of all or
substantially all of the assets, of the Company (a “Corporate Transaction”);
excluding, however, a Corporate Transaction pursuant to which (1) all or
substantially all of the individuals or entities who are the beneficial owners,
respectively, of the Outstanding Common Shares and the Outstanding Voting Securities
immediately prior to such Corporate Transaction will beneficially own, directly or
indirectly, more than 60% of, respectively, the outstanding Common Shares, and the
combined voting power of the outstanding securities entitled to vote generally in
the election of directors, as the case may be, of the corporation resulting from
such Corporate Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of the
Company’s assets either directly or indirectly) in substantially the same
proportions relative to each other as their ownership, immediately prior to such
Corporate Transaction, of the Outstanding Common Shares and the Outstanding Voting
Securities, as the case may be, (2) no Person
3
(other than: the Company; any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the Company;
the corporation resulting from such Corporate Transaction; and any Person which
beneficially owned, immediately prior to such Corporate Transaction, directly or
indirectly, 40% or more of the Outstanding Common Shares or the Outstanding Voting
Securities, as the case may be) will beneficially own, directly or indirectly, 40%
or more of, respectively, the outstanding Common Shares of the corporation resulting
from such Corporate Transaction or the combined voting power of the outstanding
securities of such corporation entitled to vote generally in the election of
directors and (3) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction; or
(d) Dissolution or Liquidation. the consummation of a plan of complete
liquidation or dissolution of the Company.
2.5.4. Period. For purposes of this Agreement, the “Period” will begin on the
date of this Agreement and end on the first to occur of (1) Employee’s death, (2) Employee’s
“Disability” (as defined in Section 2.5.1), (3) 90 days after Employee’s termination of
employment with the Entity (voluntarily or involuntarily and with or without Good Reason or
Cause) if such termination occurs before a Change in Control, and (4) June 17, 2011.
Notwithstanding the foregoing, (1) if Employee becomes entitled to the severance benefit
under Section 4.1.1, the provisions of Sections 2.5 and 4.1 will continue until Employee is
paid the severance benefit pursuant to Section 4.1, and (2) the other provisions of this
Agreement are not limited by the Period and will survive the end of the Period.
2.5.5. Entity. For purposes of this Agreement, the “Entity” shall mean (1) in
connection with a Change in Control that results in an entity other than the Company being a
successor to the Company’s business, such new entity (the “Successor”) beginning on the date
of the Change in Control, but the Successor shall be the Entity only if the Successor is
either bound by the terms of this Agreement as a successor to the Company or offers to
employ Employee beginning on the date of the Change in Control on such terms that would not
constitute “Good Reason” for termination of Employee’s employment if imposed by the Company,
and (2) in all other cases, the Company. For purposes of this Section 2.5.5, Employee shall
not be deemed to have terminated Employee’s employment with the Entity for “Good Reason” and
the “Entity” shall not be deemed to have terminated Employee’s employment without Cause if
(1) a Successor who has purchased all or substantially all of the Company’s assets has
offered to employ Employee on such terms that would not constitute “Good Reason” for
termination of Employee’s employment if imposed by the Company, (2) Employee refuses such
employment, and (3) the Company terminates Employee’s employment for any reason or for no
reason.
2.5.6. Good Reason. For purposes of this Agreement, termination of Employee’s
employment with the Entity for “Good Reason” means Employee’s termination of employment with
the Entity within one year following the initial existence of, one or more of the following
conditions arising without Employee’s consent:
4
(a) A material diminution in Employee’s base compensation;
(b) A material diminution in Employee’s authority, duties or responsibilities;
(c) A material diminution in the authority, duties or responsibilities of the
supervisor to whom Employee is required to report, including a requirement that
Employee report to a corporate officer or employee instead of reporting directly to
the board of directors of a corporation (or similar governing body with respect to
an Entity other than a corporation);
(d) A material diminution in the budget over which Employee retains authority;
(e) A material change in the geographic location at which Employee must perform
the services; or
(f) Any other action or inaction that constitutes a material breach of the
Entity of this Agreement or any other agreement under which Employee provides
services;
provided that Employee must provide notice to the Entity of the existence of the applicable
condition within 90 days of the initial existence of such condition and must provide the
Entity with at least 30 days to remedy the applicable condition. Employee’s death,
Disability or “Retirement” (as defined below), or Employee’s resignation other than as
provided in the preceding sentence shall not constitute a condition under which Employee’s
employment with the Entity may be terminated for Good Reason. Employee’s termination of
employment with the Entity for Good Reason will not exist until Employee provides the Entity
with notice of the applicable condition and the cure period and the cure period passes
without the Entity remedying the applicable condition.
2.5.7. Retirement. For purposes of this Agreement, “Retirement” means
Employee’s termination of employment on account of Employee’s retirement from the Entity.
2.5.8. Termination of Employment. For purposes of this Agreement, “termination
of employment” means a “separation from service” as defined under Treasury Regulations
Section 1.409A-1(h).
3. Compensation. As full compensation for Employee’s performance of his duties pursuant to
this Agreement, the Company shall pay Employee during the term of this Agreement, and Employee
shall accept as full payment for such performance, the following amounts and benefits:
3.1. Salary. As salary for Employee’s services to be rendered under this Agreement,
the Company shall pay Employee an initial annual salary of $200,000, subject to increase, but not
decrease, in the discretion of the Company’s Board of Directors. Such salary shall be
5
payable semi-monthly in arrears (or at such other interval, not less frequently than monthly,
as the Company shall designate).
3.2. Bonus. Employee shall be eligible to participate in bonus plans established from
time to time by the Company’s Board of Directors.
3.3. Benefits. Employee shall be eligible to participate in all fringe benefits, if
any, including insurance, vacation, other employee benefit plans and business expense
reimbursement, applicable to other similar employees of the Company, when and if adopted and made
available during the term of this Agreement to employees with similar periods of service, subject
to any eligibility or other requirements for participating in such fringe benefits and to the
actual existence of the respective plans.
4. Effects of Termination.
4.1. Termination In Connection With A Change In Control.
4.1.1. Right to Receive Benefits. Employee shall receive the severance
benefits described in Section 4.1.2 if (1) a “Change in Control” (as defined in
Section 2.5.3) occurs during the “Period” (as defined in Section 2.5.4), and (2) at any time
during the period beginning 90 days before the Change in Control occurs and ending one year
after the Change in Control occurs, Employee terminates Employee’s employment with the
“Entity” (as defined in Section 2.5.5) for “Good Reason” (as defined in Section 2.5.6) or
the Entity terminates Employee’s Employment without “Cause” (as defined in Section 2.5.2).
4.1.2. Severance Benefits. If Employee is entitled to the severance benefits
under Section 4.1.1, the Company shall pay Employee an amount in cash equal to one times
Employee’s annualized base salary at the rate in effect on the date of this Agreement, or,
if higher, Employee’s base salary in effect immediately before the earlier of Employee’s
termination of employment or the date the Change in Control occurs. This severance benefit
shall be paid to Employee in one undiscounted lump sum within 10 business days after the
date all of the conditions to receiving the severance benefit, described in Section 4.1.1,
are met. The Company may withhold from such payment all federal, state, city and other
taxes to the extent such taxes are required to be withheld by applicable law.
4.2. Provisions Applicable to All Terminations. Subject to Section 9, when the term
of Employee’s employment under this Agreement terminates, the Company’s obligations under this
Agreement, including obligations under Section 3, shall end, except for the Company’s obligations
to (1) pay to Employee (or his estate) any salary and bonus compensation, pursuant to Sections 3.1
and 3.2, actually earned, accrued and unpaid through the date of termination, and (2) pay to
Employee (or his estate) for all benefits actually due pursuant to Section 3.3, accrued and unpaid
through the date of termination.
5. Invention, Confidentiality, Non-Competition, and Non-Solicitation. In consideration of
both Employee’s initial and continued employment with the Company, of the consideration paid to
Employee in connection with Employee’s employment with the Company and of the positions
6
that Employee now holds or may in the future hold, which may include having access to, or learning
information concerning, the business activities of the Company and acquiring confidential or
otherwise proprietary facts and information concerning technological and other activities of the
Company, Employee agrees to the provisions of this Section 5.
5.1. Inventions.
5.1.1. Company Ownership. Any and all improvements, discoveries, innovations,
inventions, conceptions and/or reductions to practice, “Confidential Information” (as
defined in Section 5.2.2), problem solutions and, in general, all technological conceptions
and developments, whether patentable or not, (collectively referred to in this Agreement as
“Inventions”) which Employee makes or comes to know of, either alone or with others, during
the term of Employee’s employment or other association with the Company, and relating in any
way to the business interests or business activities of the Company, whether past or present
or future, or relating to its technological or product research and/or development programs,
are understood and agreed to be, and are by this Agreement expressly made to be, the
exclusive property of the Company.
5.1.2. Disclosure to the Company. Employee shall disclose promptly and fully
to the Company and to its attorneys all Inventions, and Employee shall, when requested to do
so either before or after the termination of Employee’s employment with the Company,
formally assign and convey to the Company Employee’s entire right, title and interest in and
to all Inventions; Employee shall assist the Company and its agents in preparing patent
applications, both United States and foreign, covering any Invention; Employee shall
promptly review, execute and deliver all said applications and assignments of the same to
the Company, and shall, as promptly as reasonably possible, generally give all information
and testimony, sign all papers and do all things which may be needed or requested by the
Company, to the end that the Company may obtain, extend, reissue, maintain and enforce
United States and foreign patents covering said Inventions.
5.1.3. Company Expenses. It is and shall be the sole responsibility of the
Company to bear all expenses incurred in obtaining, extending, reissuing, maintaining and
enforcing the aforementioned patents and in vesting and perfecting title thereto in the
Company and also to pay all reasonable expenses which Employee incurs at the Company’s
request.
5.2. Confidentiality.
5.2.1. Obligation to Keep Confidential. Except as authorized in writing by the
Company, Employee shall not at any time, either prior to, during or after Employee’s
association with the Company, disseminate, disclose or otherwise appropriate, directly or
indirectly, any Confidential Information of the Company of which Employee gains knowledge
prior to, during or after termination of such employment, and Employee shall retain all such
information in trust in a fiduciary capacity for the sole use and benefit of the Company.
Employee acknowledges that the Confidential Information of the Company is valuable, special
and unique to its business, that on such Confidential
7
Information the Company’s business depends, that such Confidential Information is
proprietary to the Company, and that the Company wishes to protect such Confidential
Information by keeping it secret and confidential for the sole use and benefit of the
Company. Employee shall take all steps necessary, and all steps reasonably requested by the
Company, to ensure that all such Confidential information is kept secret and confidential
for the sole use and benefit of the Company.
5.2.2. “Confidential Information”. Confidential Information of the Company
means information known or apprehended by the Company and/or developed by or for the
Company, by any person, including Employee, which is not otherwise explicitly, consciously,
properly, legally and generally known in any industry in which the Company is or may become
engaged. Confidential Information includes, but is not limited to, such information,
whether now possessed or hereafter obtained, concerning plans, marketing and sales methods,
materials, processes, procedures or devices utilized or considered by the Company, or by
consultants, technicians, employees, or medical clinics or other medical organizations with
which the Company deals (or organizations or other entities or persons associated with such
medical clinics or other medical organizations), or by contractors, representatives and
customers of the Company, plans for development of new products, services and expansion into
new areas or markets, internal operations, trade secrets, Inventions, patent applications,
trade names, trademarks, service marks, copyrights, proprietary information and other
confidential information of any type, together with all written, graphic, and other
materials relating to all or any part of the same (collectively, “Confidential
Information”).
5.2.3. Property of the Company. All records and other materials pertaining to
the Confidential Information, whether developed by Employee or not, shall be and remain the
exclusive property of the Company. Upon termination of Employee’s association with the
Company or at any other time the Company may in writing so request, Employee shall promptly
deliver to the Company all materials concerning any Invention or Confidential Information,
copies thereof and any other materials of the Company which are in Employee’s possession or
under Employee’s control, and Employee shall not make or retain any copy or extract thereof.
5.3. Non-Compete. During the term of Employee’s employment with the Company and for a
period of one year following the termination of Employee’s employment with the Company (voluntarily
or involuntarily and with or without Good Reason or Cause), Employee shall not, directly or
indirectly, himself, or through or for any individual, person or entity wherever located:
5.3.1. Competing Activities. Engage in any activities or perform any services
in connection with, or sell, any products that are patches for ventricular restoration,
cerebral and/or somatic oximeters, related sensors, or other products sold by the Company
during the term of Employee’s employment with the Company; or
5.3.2. Employee or Owner of Competitor. Be employed by, consult with, own any
capital stock of, or have any financial interest of any kind in, any individual, person or
entity, wherever located, that manufactures, assembles or sells patches for ventricular
8
restoration, cerebral and/or somatic oximeters, related sensors, or other products sold
by the Company during the term of Employee’s employment with the Company; provided that
Employee may own, for investment purposes only, up to 3% of the stock of any publicly traded
business whose stock is either listed on a national stock exchange or on The Nasdaq Global
Market or The Nasdaq Global Select Market, if Employee is not otherwise affiliated with such
business; or
5.3.3. Solicit Customers. Solicit any entity that, to Employee’s knowledge,
was a customer of the Company within the year before that date Employee’s employment with
the Company terminates to supply patches for ventricular restoration, cerebral and/or
somatic oximeters, related sensors, or other products sold by the Company during the term of
Employee’s employment with the Company to such customer.
5.4. Non-Solicitation. During the term of Employee’s employment with the Company and
for a period of five years following the termination of Employee’s employment with the Company
(voluntarily or involuntarily and with or without good reason or cause), Employee shall not,
directly or indirectly, himself, or through or for any individual, person or entity wherever
located (1) solicit or attempt to hire any person who is then employed by, or is a consultant to,
the Company or who, to Employee’s knowledge, was employed by, or was a consultant to, the Company
at any time during the year before the termination of Employee’s employment with the Company, or
(2) encourage any such person to terminate his or her employment or consultation with the Company.
5.5. Equitable Remedies. Sections 5.1, 5.2, 5.3, and 5.4 are intended, among other
things, to protect the Confidential Information described in Section 5.2.2 and the Company’s
technology, proprietary information and personnel, and Employee acknowledges and agrees that the
covenants and undertakings contained in this Section 5 relate to matters which are of a special,
unique and extraordinary character, and a violation or any of their terms will cause irreparable
injury to the Company, the amount of which will be extremely difficult, if not impossible, to
estimate or determine and which cannot be adequately compensated by monetary damages alone.
Therefore, Employee agrees that if Employee breaches or threatens to breach any of those sections,
in addition to any other rights and remedies which may be available to the Company under this
Agreement, under the applicable law or at law or equity, the Company shall be entitled, as a matter
of course, to obtain an injunction, restraining order, or other equitable relief from any court of
competent jurisdiction, restraining any violation or threatened violation of any such terms by
Employee and/or by such other persons and entities as the court shall order.
5.6. Company’s Right to Adapt and Develop. It is understood and agreed that the
Company shall have the royalty-free, worldwide, assignable right to use, or to adapt and to develop
in any way, all Inventions conceived or made by Employee, whether or not patentable, including, but
not limited to, processes, methods, formulae, and techniques, as well as improvements thereof or
know-how related thereto, or not to use them at all should the Company so choose.
6. Representation. Employee represents and warrants that (1) Employee’s performance of
this Agreement does not and will not breach any agreement or duty that Employee has to anyone else
to keep in confidence confidential information belonging to others, and (2) Employee is not
9
now a party to or bound in any way by any agreement, commitment, obligation or company policy
(written or otherwise), including any with Employee’s former employer, that in any way restricts
Employee’s ability to enter into, or perform Employee’s obligations under, this Agreement or under
which a breach or default occurs, or with notice, lapse of time or both will occur, as a result of
Employee’s entry into, or performance of Employee’s obligations under, this Agreement.
7. Assignment. The Company shall not be required to make any payment under this Agreement
to any assignee or creditor of Employee, other than to Employee’s legal representative on death.
Employee’s obligations under this Agreement are personal and may not be assigned, delegated or
transferred in any manner and any attempt to do so shall be void. Employee, or his legal
representative, shall have no rights by way of anticipation or otherwise to assign or otherwise
dispose of any right of Employee under this Agreement. The Company may assign this Agreement
without Employee’s consent to any successor to the Company’s business.
8. Notice. Any notice to be given under this Agreement shall be deemed to be given (1)
when delivered to the party in person, (2) on the date delivery is guaranteed if sent by courier
that guarantees delivery, or (3) three business days after mailed, if mailed by certified or
registered mail, postage prepaid, and return receipt requested, to:
| 8.1. | To Employee |
||
| Xxxxxxx X. Xxxxxxxxx 0000 Xxxxxxxxxxxx Xxxxx Xxxx, Xxxxxxxx 00000 |
|||
| 8.2. | To the Company. |
||
| Somanetics Corporation 0000 Xxxx Xxxxx Xxxx Xxxx, Xxxxxxxx 00000-0000 Attention: Chief Executive Officer |
|||
| With a copy to: | |||
| Xxxxxx X. Xxxxxxx, Xx. Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP 2290 First National Building 000 Xxxxxxxx Xxx. Xxxxxxx, Xxxxxxxx 00000-0000 |
or at such other address as the party shall have advised the other parties in writing by notice
pursuant to this Section 8
9. Survival. Notwithstanding anything in this Agreement to the contrary, the provisions of
Sections 3 (subject to the limitations set forth in Section 4), 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, and 15 of this Agreement shall survive the termination of Employee’s employment or other
10
association with the Company, shall be fully effective thereafter, and shall be binding upon
Employee and upon Employee’s heirs, executors, administrators and other legal representatives.
10. Modification; Replacement Agreement. This Agreement and any Invention and
Confidentiality Agreement between Employee and the Company are the complete agreement between the
parties with respect to their subject matter and may be modified only by a written instrument
executed by Employee and the Company. This Agreement replaces and supersedes the Amended and
Restated Employment Agreement dated as of June 13, 2005 between the Company and Employee, which
Amended and Restated Employment Agreement, Employee and the Company agree is terminated as of the
date of this Agreement and is no longer in effect.
11. Governing Law; Choice of Forum. The laws of the State of Michigan shall govern this
Agreement, its construction, and the determination of any rights, duties or remedies of the parties
arising out of or relating to this Agreement. The parties acknowledge that the United States
District Court for the Eastern District of Michigan or the Michigan Circuit Court for the County of
Oakland shall have exclusive jurisdiction over any case or controversy arising out of or relating
to this Agreement and that all litigation arising out of or relating to this Agreement shall be
commenced in the United States District Court for the Eastern District of Michigan or in the
Oakland County (Michigan) Circuit Court.
12. Severability. The provisions of this Agreement will be deemed severable, and if one or
more of the provisions contained in the Agreement shall, for any reason, be held invalid, illegal
or unenforceable in any respect, (1) such invalidity, illegality or unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be construed as if such
invalid, illegal or unenforceable provision has never been contained in this Agreement, and (2)
such provisions may be changed to the extent reasonably necessary to make the provision, as so
changed, legal, valid and binding. If, moreover, any one or more of the provisions contained in
this Agreement shall for any reason be held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed by limiting and reducing it so as to
be enforceable to the extent compatible with the applicable law as it shall then appear.
13. No Waiver. No waiver of any breach of any agreement or provision contained in this
Agreement shall be deemed a waiver of any preceding or succeeding breach of such agreement or
provision or of any other agreement or provision contained in this Agreement. No extension of time
for performance of any obligation or acts shall be deemed an extension of time for the performance
of any other obligation or act.
14. Successor Obligations. This Agreement will be binding upon and inure to the benefit of
the Company and its successors and assigns. This Agreement will be binding upon Employee and will
inure to Employee’s benefit, but Employee may not assign this Agreement or delegate any of his
rights or obligations under this Agreement.
15. Consultation With Counsel. Employee acknowledges that he has been given the
opportunity to consult with his personal legal counsel concerning all aspects of this Agreement and
the Company has urged Employee to so consult with such counsel.
11
IN WITNESS WHEREOF, the Company and Employee have signed this Agreement as of the date set
forth in the introductory paragraph of this Agreement.
| SOMANETICS CORPORATION |
||||
| By: | ||||
| Xxxxx X. Xxxxxxx | ||||
| Its: President and Chief Executive Officer | ||||
| Xxxxxxx X. Xxxxxxxxx | ||||
12
