EXHIBIT 99.2
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the "Agreement") is
entered into as of June __, 2005 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 Vice President, 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 long-term
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
long-term disability benefits received by Employee if Employee pays the premiums
on such long-term 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
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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
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(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 the termination of Employee's employment (voluntarily or involuntarily and
with or without good reason or cause) if such termination occurs before a Change
in Control, and (4) three years after the date of this Agreement.
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. Termination of Employee's employment for "Good Reason"
means Employee's termination of employment with the Entity before or after a
Change in Control as a result of (1) any decrease by the Entity (without
Employee's consent) in Employee's compensation, incentives and benefits from
Employee's
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compensation, incentives and benefits immediately before such Change in
Control; provided that Employee's bonus shall not be deemed to have
decreased if Employee has a substantially similar opportunity to earn a
bonus as Employee did in the last full fiscal year before the Change in
Control, (2) a substantial change by the Entity (without Employee's
consent) in Employee's duties or responsibilities from Employees duties
and responsibilities immediately before such Change in Control, (3) any
requirement by the Entity (to which Employee does not consent) that
Employee change Employee's primary place of business to be outside the
metropolitan Detroit area, or (4) if the Change in Control results in a
new entity being a successor to the Company's business, the failure of the
new entity to assume the Company's obligations under this Agreement. "Good
Reason" will not include Employee's death, "Disability" (as defined in
Section 2.5.1) or "Retirement" (as defined in Section 2.5.7), or
Employee's resignation other than as provided in the preceding sentence.
2.5.7. Retirement. For purposes of this Agreement, "Retirement"
means Employee's retirement from the Entity in accordance with the
Entity's normal policies.
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 $135,252,
subject to increase, but not decrease, in the discretion of the Company's Board
of Directors. Such salary shall be 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
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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 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
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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 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
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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 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 restoration, cerebral
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 National 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 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.
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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 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:
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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 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. 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 Employment Agreement dated as of August 1, 2002 between the
Company and Employee, which 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.
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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.
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
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