EXHIBIT 99.1
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement is entered into as of
April 19, 2006 between Somanetics Corporation, a Michigan corporation (the
"Company"), and Xxxxx X. Xxxxxxx ("Employee").
In consideration of the mutual covenants contained in this Agreement,
the Company and Employee agree as follows:
1. Employment
During the term of Employee's employment under this Agreement (as
defined in Sections 2 and 4), 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 President and Chief
Executive Officer of the Company. 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.
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 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. 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 and except as otherwise
approved in writing by Employee and the Company.
2. Term
The term of Employee's employment under this Agreement shall begin on
the date of this Agreement and shall continue until April 30, 2009, unless
earlier terminated pursuant to Section 4.
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 annual salary of $300,000,
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. The Company's Board of Directors shall establish bonus
plans in which Employee shall be eligible to participate for each fiscal year of
the Company during the term of Employee's employment under this Agreement. Such
bonus plan shall provide Employee with a target bonus (i.e., the bonus payable
if targets are 100% met, but not necessarily the actual amount of bonus payable
under the plan) of at least 65% of Employee's salary, which percentage is
subject to increase, but not decrease, in the discretion of the Company's Board
of Directors. Actual payments under such bonus plan will be based on the terms
and conditions of such plan and could be zero.
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.
3.4. Automobile; Cellular Phone; Internet Access. The Company shall
provide Employee with an automobile and shall pay all expenses relating to such
automobile, including, without limitation, lease or loan payments, maintenance
and repair costs, and gasoline and other costs with respect to the automobile;
provided that such payments by the Company shall not exceed $20,000 in any
fiscal year of the Company, subject to increase, but not decrease, in the
discretion of the Company's Board of Directors. The Company shall pay or
reimburse Employee for all costs of a cellular phone and related phone service
and Internet access in his home, both for use primarily in connection with the
Company's Business.
3.5. Indemnification. The Company shall, to the fullest extent
authorized or permitted by the Michigan Business Corporation Act, defend,
indemnify and hold Employee, his heirs, executors, administrators and other
legal representatives, harmless from and against any and all claims, suits,
debts, causes of action, proceedings or other actions, at law or in equity,
which any person or entity may have had, now has or may in the future have with
respect to Employee's service to the Company as an officer, director, employee
or agent thereof.
4. Termination
4.1. Death. Employee's employment under this Agreement shall terminate
immediately upon Employee's death.
4.2. 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 4.5.1). Such termination shall be
effective immediately when such notice is deemed given to Employee pursuant to
Section 11, 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 Employee's employment pursuant to this Section 4.2, if
Employee's employment is not otherwise terminated pursuant to this Agreement,
less any disability benefits
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Employee receives pursuant to any disability insurance policy or its equivalent
provided to Employee by the Company 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.
4.3. 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 4.5.2). Such termination shall be effective immediately
when such notice is deemed given to Employee pursuant to Section 11.1, or upon
such later date, if any, provided in such notice.
4.4. 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 4.5.2). Such termination shall
be effective when such notice is deemed given to Employee pursuant to Section
11.1, 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 11.1, or upon
such later date, if any, provided in such notice, with respect to termination by
Employee.
4.5. Definitions.
4.5.1. Disability. For purposes of this Agreement,
"Disability" means (1) 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 (2) 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.
4.5.2. 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 6, or (3) Employee's conviction of a felony involving
dishonesty or fraud.
4.5.3. 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 Securities Exchange Act of 1934, as amended (the "Exchange
Act"), of beneficial ownership within the meaning of Rule
13d-3 promulgated under the Exchange Act, of 40% or more of
either (1) the then
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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 4.5.3(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 Company's Board of Directors
(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 (other than: the Company; any employee benefit plan (or
related trust) sponsored
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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.
4.5.4. 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 4.5.4, 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.
4.5.5. 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 compensation,
incentives and benefits immediately before such decrease; 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, (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 4.5.1) or "Retirement" (as
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defined in Section 4.5.6), or Employee's resignation other than as
provided in the preceding sentence.
4.5.6. Retirement. For purposes of this Agreement,
"Retirement" means Employee's retirement from the Entity in accordance
with the Entity's normal policies.
5. Effects of Termination
5.1. Provisions Applicable to All Terminations. Subject to Section 5.2,
if 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 obligation to: (1) reimburse Employee (or his
estate) for all out-of-pocket expenses incurred and all benefits actually due
pursuant to Section 3.3, accrued and unpaid through the date of termination,
other than any accrued vacation, which shall be deemed cancelled, terminated and
not accrued upon such termination; and (2) 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.
5.2. Termination By Employee For Good Reason, By the Company Without
Cause or By Expiration of Agreement. If (1) Employee terminates Employee's
employment with the "Entity" (as defined in Section 4.5.4) for "Good Reason" (as
defined in Section 4.5.5) pursuant to Section 4.4, or (2) the Entity terminates
Employee's employment without "Cause" (as defined in Section 4.5.2) pursuant to
Section 4.4, or (3) Employee's employment under this Agreement terminates other
than pursuant to Section 4 of this Agreement, in addition to its obligations
under Section 5.1, the Company shall (1) for a period of 12 months beginning
immediately after the effective date of such termination, subject to earlier
termination upon the occurrence of any of the events described in Sections 4.1,
4.2 or 4.3, provide Employee, at the Company's expense, with the benefits set
forth in Section 3.3, other than vacation and business expense reimbursement,
and (2) within 10 business days after the effective date of such termination,
pay Employee in one undiscounted lump sum an amount in cash equal to (a) 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, if any, plus (b) an amount equal to (i) (A) one plus
the fraction of the year in which the termination occurs before the effective
date of such termination, times (B) the target bonus payable to Employee with
respect to the fiscal year in which the effective date of such termination
occurs, minus (ii) the amount of bonuses actually paid to Employee with respect
to the fiscal year in which the effective date of such termination occurs, plus
(c) an amount equal to (i) 12 times the amount the Company was required to pay
or reimburse Employee for the costs of a cellular phone and related phone
service and Internet access in his home pursuant to Section 3.4 for the last
full calendar month immediately preceding the effective date of such
termination, plus (ii) the amount of expenses relating to the automobile the
Company was required to pay pursuant to Section 3.4 for the last 12 full
calendar months immediately preceding the effective date of such termination.
Notwithstanding the foregoing provisions of this Section 5.2, the Company shall
have no obligations under this Section 5.2 if Employee's employment under this
Agreement terminates other than pursuant to Section 4 of this Agreement, and at
the expiration of the original term of this Agreement pursuant to Section 2, the
Company offers to extend the term of Employee's employment for at least an
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additional year on the same terms and conditions set forth in this Agreement and
Employee does not accept such offer. 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.
5.3. General Effects of Termination. Termination of Employee's
employment under this Agreement shall not affect either party's rights and
obligations under Sections 3 (subject to the limitations set forth in this
Section 5), 5 and 6 through 17, such rights and obligations shall continue and
survive the termination of Employee's employment and this Agreement, for any
reason, notwithstanding any breach of this Agreement by Employee or by the
Company.
6. 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 6.
6.1. Inventions.
6.1.1. Company Ownership. Any and all improvements,
discoveries, innovations, inventions, conceptions and/or reductions to
practice, "Confidential Information" (as defined in Section 6.2.2),
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.
6.1.2. 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.
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6.1.3. 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.
6.2. Confidentiality.
6.2.1. 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.
6.2.2. "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").
6.2.3. 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
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Company which are in Employee's possession or under Employee's control,
and Employee shall not make or retain any copy or extract thereof.
6.3. 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 under this Agreement (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:
6.3.1. 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
6.3.2. 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 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, if Employee is not otherwise affiliated with such business;
or
6.3.3. 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.
6.4. 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, except for (a) persons
whose employment or consultation with the Company has been terminated by the
Company, and (b) persons whose employment or consultation with the Company has
been terminated for at least six months (persons within these two exceptions
shall not be covered by this Section 6.4), or (2) encourage any such person to
terminate his or her employment or consultation with the Company.
6.5. Equitable Remedies. Sections 6.1, 6.2, 6.3, and 6.4 are intended,
among other things, to protect the Confidential Information described in Section
6.2.2 and the Company's technology, proprietary information and personnel, and
Employee acknowledges and agrees that the covenants and undertakings contained
in this Section 6 relate to matters which are of a special, unique and
extraordinary character, and a violation or any of their terms will cause
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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.
6.6. Company 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.
7. Employee's Remedies
Employee's remedy against the Company for breach of this Agreement
and/or wrongful termination of his employment is the collection of any
compensation due him as provided in Sections 3 and 5 and such other remedies
available to Employee under law or in equity.
8. 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.
9. 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. This Agreement shall be binding upon, and shall inure to the benefit
of, the Company, Employee and their permitted successors and assigns.
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10. Company's Obligations Unfunded
Except for any benefits under any benefit plan of the Company that are
required by law or by express agreement to be funded, it is understood that the
Company's obligations under this Agreement are not funded, and it is agreed that
the Company shall not be required to set aside or escrow any monies in advance
of the due date of the payment of such monies to Employee.
11. Notices
11.1. To Employee. Any notice to be given under this Agreement by the
Company to Employee shall be deemed to be given (1) when delivered to Employee
in person, (2) on the date delivery is guaranteed if sent by courier that
guarantees delivery, or (3) three business days after mailed to him by certified
or registered mail, postage prepaid, return receipt requested, to:
Xxxxx X. Xxxxxxx
___________________
___________________
or at such other address as Employee shall have advised the Company by notice in
writing.
11.2. To the Company. Any notice to be given by Employee to the Company
shall be deemed to be given (1) on the date delivery is guaranteed if sent by
courier that guarantees delivery, or (2) three business days after mailed by
certified or registered mail, postage prepaid, return receipt requested, to:
Somanetics Corporation
0000 Xxxx Xxxxx Xxxx
Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxx Xxxxxx, Vice President and Chief
Administrative Officer and Secretary
With a copy to:
Xxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx LLP
2290 First National Building
000 Xxxxxxxx Xxx.
Xxxxxxx, Xxxxxxxx 00000-0000
or at such other address as the Company shall have advised Employee by notice in
writing.
12. Amendments
This Agreement shall not be amended, in whole or in part, except by an
agreement in writing signed by the Company and Employee.
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13. Entire Agreement
This Agreement together with any Invention and Confidentiality
Agreement between Employee and the Company constitute the entire agreement
between the parties with respect to their subject matter and all prior
agreements or understandings, oral or written, are merged in this Agreement or
any such Invention and Confidentiality Agreement and are of no further force or
effect. This Agreement replaces and supersedes the Employment Agreement dated as
of May 13, 1994, as amended, between the Company and Employee, which Employment
Agreement, Employee and the Company agree is terminated as of the date of this
Agreement. The parties acknowledge that they are not relying on any
representations, express or implied, oral or written, (relating to any aspect of
Employee's current or future employment or otherwise), except for those stated
in this Agreement or any Invention and Confidentiality Agreement. Employee
further acknowledges that his sole rights and remedies with respect to any
aspect of his employment or termination of his employment are provided for in
this Agreement.
14. Captions
The captions of this Agreement are included for convenience only and
shall not affect the construction of any provision of this Agreement.
15. Governing Law and 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, except for any provisions
of Michigan law which direct the application of other states' laws, and except
that if any provision of this Agreement would be illegal, void, invalid or
unenforceable under such Michigan laws, then the laws of such other jurisdiction
which would render such provisions valid and enforceable shall govern so far as
is necessary to sustain the validity and enforceability of the terms of 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. Each party consents to be subject to personal jurisdiction of the
courts of or in Michigan.
16. 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,
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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.
17. 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.
18. 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 duly executed this
Agreement as of the date and year first above written.
SOMANETICS CORPORATION
By: /s/ XXXX XXX XXXXXX
------------------------------------------
Xxxx Xxx Xxxxxx
Its: Vice President and Chief
Administrative Officer and Secretary
/s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
