EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of May 4, 2005 by and between Health Fitness
Corporation, a Minnesota corporation, (hereinafter called "HFC"), and Xxxxxxx
Xxxxxxxx (hereinafter called "Executive").
RECITALS
WHEREAS, Executive desires to be employed by HFC and HFC desires to
employ Executive on the terms stated in this Agreement;
WHEREAS, Executive acknowledges that he has been notified and
recognizes that the execution of this Agreement, including specifically the
restrictive covenants contained in Article IV of this Agreement, is an express
condition of his employment with HFC;
NOW, THEREFORE, in consideration of HFC hiring Executive and the
continuation of his employment, any promotions, increases in compensation,
and/or other benefits now or hereafter paid or made available to Executive by
HFC, Executive and HFC agree as follows:
ARTICLE I
EMPLOYMENT, COMPENSATION AND BENEFITS
1.01 Employment With HFC.
(a) HFC hereby agrees to employ Executive initially in the
position of Vice President Marketing, and Executive hereby
accepts such employment with HFC. Such employment shall
continue indefinitely until terminated in accordance with
Article II of this Agreement.
1.02 Duties.
(a) Executive agrees, during Executive's employment, to devote
Executive's full time and best efforts to the business of HFC,
including, without limitation, the performance of those duties
and responsibilities reasonably and customarily associated
with Executive's position such as, but not limited to, those
duties and responsibilities associated with increasing HFC
revenues through marketing and selling HFC's products and
services. Executive's duties and responsibilities shall be
subject to determination by HFC's Chief Executive Officer
("CEO") or his designee.
(b) Executive shall report to, and at all times shall be
subject to the direction of, HFC's CEO or his designee.
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(c) Executive, at all times during Executive's employment
with HFC, shall comply with HFC's reasonable standards,
regulations and policies as determined or set forth by HFC
from time to time and as applicable to employees of HFC.
1.03 Outside Activities. Executive shall not engage in any outside
activities that conflict or appear to conflict with HFC's interests, or that
interfere in any way with Executive's performance of Executive's duties
hereunder. In addition, Executive shall not engage in any activity that might
subject HFC to criticism or adverse publicity, that might interfere with
Executive's normal work schedule, or that might interfere with Executive's job
duties. Moreover, Executive shall not, and hereby agrees not to accept
remuneration of any kind from Executive's participation in any outside activity
without the express written approval of HFC.
1.04 Annual Base Salary. Executive's annual base salary shall be
calculated on the gross amount of U.S. $160,000 per year, less withholding for
income and FICA taxes and any other proper deductions. Executive's annual base
salary will be paid to Executive in accordance with HFC's normal payroll
practices. Executive's performance shall be reviewed annually for base salary
increase beginning March 2006, and such increase, if any, shall be determined by
HFC in its sole discretion.
1.05 Stock Options. Executive and HFC shall enter into a separate
Incentive Stock Option Agreement ("ISOA") pursuant to which HFC will grant to
Executive, upon Executive's first day of employment with HFC hereunder, options
to purchase 60,000 shares of common stock of HFC. Under the ISOA, such options
will vest 25% on each of the first four anniversaries of Executive's date of
employment subject to continued employment, will expire on the sixth anniversary
of the date of grant, and will have an exercise price of fair market value of
HFC's common stock on the date of grant (first day of Executive's employment).
The full terms and conditions of the stock option will be set forth in the ISOA
and such ISOA shall also set forth provisions regarding the termination of such
options following the termination of Executive's employment for any reason.
1.06 Fringe Benefits. HFC shall provide the following fringe
benefits to Executive so long as Executive is employed by HFC:
(a) Executive shall be eligible to participate in an annual
calendar year bonus program effective with the 2005 calendar
year subject to the specific terms and conditions of the
program developed each year. Initially for the 2005 calendar
year such bonus eligibility shall be up to a maximum of 25% of
Executives annual base salary earned in 2005 based on
Executive's successful achievement of criteria to be
determined by the CEO. For future years, the Company in its
sole discretion will determine the bonus program's bonus
potential, criteria and terms.
(b) Executive shall be eligible to participate in employee
benefit plans and programs offered by HFC from time to time,
including, but not limited to, any medical, dental, short-term
disability, long-term disability and life insurance coverage,
or retirement plans, in accordance with the terms and
conditions of those benefit plans and programs.
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(c) Executive shall be eligible to accrue up to 15 days of
paid vacation time per anniversary year in accordance with
HFC's standard vacation practices and policies. In addition,
Executive may be eligible for additional paid time off in
accordance with HFC's standard paid time off practices and
policies.
1.06 Expenses. During the term of this Agreement, Executive shall
be entitled to prompt reimbursement by HFC for all reasonable, ordinary and
necessary travel, entertainment and other business related expenses incurred by
Executive (in accordance with the policies and procedures established by HFC for
employees from time to time) in the performance of Executive's duties and
responsibilities under this Agreement; provided, however, that Executive shall
properly account for such expenses in accordance with federal, state and local
tax requirements and HFC's policies and procedures.
ARTICLE II
TERMINATION
2.01 Events of Termination. Executive's employment with HFC:
(a) May be terminated by mutual written agreement of HFC
and Executive.
(b) Shall terminate immediately upon the death of
Executive.
(c) May be terminated upon written notice from HFC to
Executive for Cause, which shall mean the following:
(i) Failure of Executive to (a)
satisfactorily, faithfully, diligently or competently
perform the duties, requirements and responsibilities
of Executive's employment as contemplated by this
Agreement or as assigned by HFC's CEO, or (b) take
reasonable direction consistent with Executive's
position from HFC's CEO; or
(ii) Failure of Executive to comply with
the reasonable policies, regulations and directives
of HFC as in effect from time to time; or
(iii) Any act or omission on the part of
Executive which constitutes a failure to comply with
the provisions of this Agreement; or
(iv) Any act or omission on the part of
Executive which is harmful to the reputation or
business of HFC, including, but not limited to,
personal conduct of Executive which is inconsistent
with federal and state laws respecting harassment of,
or discrimination against, one or more of HFC's
employees; or
(v) Conviction of Executive of, or a
guilty or nolo contendere plea by Executive with
respect to, any crime punishable as a felony; or
any bar
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against Executive from serving as a director, officer
or executive of any firm the securities of which
trade publicly.
Executive's termination for Cause shall be determined
in good faith by and in the sole discretion of HFC's Chief
Executive Officer and/or his designee.
In the event of termination pursuant to subparagraph
2.01(c)(iii), (iv) or (v), Executive's termination shall be
immediate upon the giving of written notice to Executive.
However, in the event of termination pursuant to subparagraph
2.01(c)(i) or (ii), HFC's CEO will provide Executive written
notice (the "Cause Notice") of proposed termination which
provides (1) reasonable detail as to the cause or causes
asserted by HFC and upon which the Cause Notice is based, and
(2) notification of a certain period of time from receipt of
such Cause Notice within which Executive shall have the
opportunity to cure the performance or conduct upon which the
Cause Notice is based, to the satisfaction of HFC's CEO. If
after the completion of the designated cure period HFC's CEO
determines, in his sole discretion, that Executive has failed
to cure the performance or conduct, Executive will be given
written notice of Executive's termination and Executive's
employment will terminate immediately upon the giving of such
notice to Executive.
(d) May be terminated upon Executive's inability to perform
the essential functions of Executive's position due to
physical or mental disability, with or without reasonable
accommodation, as determined in the good faith judgment of
HFC's CEO, or as may otherwise be required by applicable law.
(e) Shall terminate at the end of the month during which
Executive reaches the normal retirement date established by
HFC for management employees of HFC, but in no event earlier
than the compulsory retirement age permitted under applicable
federal or state law for management employees.
(f) May be terminated by Executive for any reason on thirty
(30) days' written notice to HFC.
(g) May be terminated by HFC at any time, for any reason,
upon written notice to Executive.
2.02 Compensation Upon Termination of Executive's Employment. In
the event that Executive's employment with HFC terminates the following
provisions shall govern as applicable:
(a) If termination occurs pursuant to subparagraph 2.01(a),
(b), (c), (d), (e), or (f), Executive's receipt of annual base
salary and fringe benefits shall terminate as of the date of
termination or as required by law, unless the parties agree in
writing otherwise. If termination occurs pursuant to
subparagraph 2.01(d), Executive acknowledges and agrees that
Executive's receipt of salary compensation between the date of
disability and date of termination shall be governed by HFC's
employee benefit programs, as
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may be amended from time to time, to the extent Executive is
eligible to participate in such programs.
(b) If termination occurs pursuant to subparagraph 2.01(g),
Executive's receipt of annual base salary and fringe benefits
shall terminate as of the date of termination or as required
by law. However, Executive shall receive as separation pay the
equivalent of three (3) months of Executive's then current
annual base salary. Any separation pay due to Executive under
this subparagraph 2.02(b) shall be payable to Executive, at
the sole discretion of HFC, either in a lump sum or in
installments in accordance with HFC's standard payroll
practices. Executive shall be required to execute a general
release of any and all claims in favor of HFC in exchange for
Executive's receipt of separation pay under this subparagraph
2.02(b).
(c) All payments made to Executive under this Paragraph 2.02
shall be reduced by amounts (i) required to be withheld in
accordance with federal, state and local laws and regulations
in effect at the time of payment, and (ii) owed to HFC by
Executive for any amounts advanced, loaned or misappropriated
in accordance with applicable law.
ARTICLE III
PROTECTION OF TRADE SECRETS AND
CONFIDENTIAL BUSINESS DATA
3.01. Confidential Information. For the purposes of this Agreement,
"Confidential Information" means any information not generally known to the
public and proprietary to HFC and includes, without limitation, trade secrets,
inventions, and information pertaining to research, development, purchasing,
marketing, selling, accounting, licensing, business systems, business
techniques, site processes and manuals, customer information and lists,
prospective customer information and lists, pricing information and lists, fee
schedules, business strategies and plans, information pertaining to the benefits
HFC provides to its customers and employees, pending patentable materials and/or
designs, design documentation, discoveries, improvements, ideas, documentation
of meetings, tests and/or test standards, employee compensation, or manuals
whether or not in document, electronic, computer or other form. For example,
Confidential Information may be contained in HFC's customer lists, prospective
customer lists, the particular needs and requirements of customers, the
particular needs and requirements of prospective customers, and the identity of
customers or prospective customers. Information shall be treated as Confidential
Information regardless of its source, and any information which is labeled or
marked as being "confidential" or "trade secret" shall be presumed to be
Confidential Information. The definition of "Confidential Information" is not
intended to be complete; from time to time during the term of Executive's
employment, Executive may gain access to other information not generally known
to the public and proprietary to HFC concerning HFC's business that is of
commercial value to HFC, which information shall be included in the definition
of "Confidential Information" above, even though not specifically listed in that
definition. The definition of Confidential Information and the provisions of
this Article III apply to any form in which the subject information, trade
secrets, or data may appear, whether written, oral, or any other form of
recording or storage.
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3.02 Maintain in Confidence. Executive shall hold the Confidential
Information, including trade secrets and/or data, in the strictest confidence
and will never, without prior written consent of HFC, (directly or indirectly)
disclose, assign, transfer, convey or communicate to any person or entity
(including without limitation a competitor of HFC, the press, other
professionals, corporations, partnerships or the public), or use for Executive's
own or another's benefit, at any time prior to or during Executive's employment
with HFC or at any time after Executive's termination of employment with HFC,
regardless of the reason for Executive's resignation or termination of
employment, whether voluntary or involuntary. Executive further promises and
agrees that Executive will faithfully abide by any rules, policies, practices or
procedures existing or which may be established by HFC for insuring the
confidentiality of the Confidential Information, including, but not limited to,
rules, policies, practices or procedures: (a) limiting access to authorized
personnel; (b) limiting copying of any writing, data or recording; (c) requiring
storage of property, documents or data in secure facilities provided by HFC and
limiting safe or vault lock combinations or keys to authorized personnel; and/or
(d) checkout and return or other procedures promulgated by HFC from time to
time.
3.03 Return of Information/Property. Upon Executive's resignation
or termination of employment, whether voluntary or involuntary, or prior to or
during Executive's employment upon request by HFC for any reason, Executive will
return to HFC any and all written or otherwise recorded form of all Confidential
Information (and any copies thereof) in Executive's possession, custody or
control, including, but not limited to, notebooks, memoranda, specifications,
customer information and lists, prospective or potential customer information
and lists, and pricing information and lists, and will take with him, upon
leaving HFC's place of business or employment with HFC, no such documents, data,
writings, recordings, or reproduction in any form which may have been entrusted
or obtained by him during the course of Executive's employment or to which he
had access, possession, custody or control, except with the express, written
permission of HFC's Board of Directors. Moreover, in the event of Executive's
resignation or termination of employment, whether voluntary or involuntary, all
corporate documents, records, files, credit cards, computer disks and tapes,
computer access cards, codes and keys, file access codes and keys, building and
office access cards, codes and keys, materials, equipment and other property of
HFC which is in Executive's possession, custody or control shall be returned to
HFC at its principal business offices on the date of Executive's resignation or
termination of employment, or within five business days thereafter if
termination occurs without notice. Executive may copy, at Executive's expense,
documents, records, materials and information of HFC only with the express,
written permission of HFC's Board of Directors.
3.04 Irreparable Harm. The parties acknowledge that HFC will suffer
irreparable harm if Executive breaches Paragraphs 3.02 or 3.03, either during or
after Executive's employment with HFC. Accordingly, HFC shall be entitled, in
addition to any other right and remedy it may have, at law or equity, to a
temporary restraining order and/or injunction, without the posting of a bond or
other security, or with the posting of a minimal bond or security where required
by applicable law, enjoining or restraining Executive from any violation of
Paragraphs 3.02 or 3.03, and Executive hereby consents to HFC's right to seek
the issuance of such injunction. If HFC institutes any such action against
Executive, alone or in conjunction with any third party or parties to enforce
any terms or provisions of Paragraphs 3.02 or 3.03, then the party that prevails
in such action shall be entitled to receive from the opposing party (or parties)
in the action the prevailing party's reasonable attorneys' fees incurred in such
action and all costs and expenses incurred in connection therewith in accordance
with Paragraph 7.08
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3.05 Survival of Provisions. The parties agree that the provisions
in this Article III shall survive the termination of this Agreement and
termination of Executive's employment for any reason.
ARTICLE IV
NON-COMPETE; NON-SOLICITATION; NON-DISPARAGEMENT
4.01 Non-Compete Agreement.
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(a) During Executive's employment with HFC and for
a period of twelve (12) months after Executive's resignation
or termination of employment, whether voluntary or
involuntary, Executive shall not render services, directly or
indirectly, to any Conflicting Organization (as defined below)
in the United States, or in any foreign country or territory
in which the services Executive may provide could enhance the
use or marketability of a Conflicting Product (as defined
below) by application of Confidential Information that
Executive shall have had access to during Executive's
employment, except that Executive may accept employment with a
Conflicting Organization whose business is diversified and
which is, as to that part of its business in which Executive
accepts employment, not a Conflicting Organization, provided
that HFC, prior to Executive's accepting such employment,
shall receive separate written assurances satisfactory to HFC
from such Conflicting Organization and from Executive, that
Executive will not render services directly or indirectly, for
an 12-month period, in connection with any Conflicting
Product. Executive also agrees that during Executive's
employment with HFC and for a period of 12 months thereafter,
Executive will not render services to any other organization
or person in a position in which Executive could use
Confidential Information to the detriment of HFC.
(b) "Conflicting Organization" means any person or
organization that is engaged in (or about to become engaged
in) research on, consulting regarding, or development,
production, marketing or selling of a Conflicting Product.
(c) "Conflicting Product" means any product, process,
technology, machine, invention or service of any person or
organization other than HFC in existence or under development
which resembles or competes with a product, process,
technology, machine, invention or service upon which Executive
shall have worked or about which Executive becomes
knowledgeable as a result of employment with HFC and whose use
or marketability could be enhanced by application to it of
Confidential Information which Executive shall have had access
to during Executive's employment.
4.02 Non-Solicitation Agreement. During Executive's employment
with HFC and for a period of twelve (12) months after Executive's resignation or
termination of employment, whether voluntary or involuntary, Executive shall
not,
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(a) solicit HFC's current or former customers or
potential or prospective customers on behalf of himself or any
other business, person or entity for the purpose of selling,
offering, providing or otherwise making available products or
services that are the same as or similar to those products and
services that were offered by HFC at any time during
Executive's employment with HFC;
(b) exploit or use contacts, developed or made
during Executive's employment with HFC, for the purpose of
soliciting HFC's current or former customers or potential or
prospective customers on Executive's behalf or the behalf of
any other business, person or entity for purpose of selling,
offering, providing or otherwise making available products or
services that are the same as or similar to those products and
services that were offered by HFC at any time during
Executive's employment with HFC; or
(c) directly or indirectly, induce or attempt to
induce, any of HFC's then current employees or independent
contractors to terminate their employment, contractual or
other relationship with HFC, or otherwise interfere or attempt
to interfere with that existing employment or other
relationship with HFC.
4.03 Non-Disparagement. During Executive's employment with HFC and
at all times thereafter, Executive shall not disparage or defame, or allow or
cause others to disparage or defame, HFC, its Board of Directors, directors,
officers, employees, customers, or vendors.
4.04 Irreparable Harm. The parties acknowledge that HFC will suffer
irreparable harm if Executive breaches Paragraph 4.01, 4.02 or 4.03.
Accordingly, HFC shall be entitled, in addition to any other right and remedy it
may have, at law or equity, to a temporary restraining order and/or injunction,
without the posting of a bond or other security, or with the posting of a
minimal bond or security where required by applicable law, enjoining or
restraining Executive from any violation of Paragraph 4.01, 4.02 or 4.03 and
Executive hereby consents to HFC's right to seek the issuance of such
injunction. If HFC institutes any such action against Executive, alone or in
conjunction with any third party or parties to enforce any terms or provisions
of Paragraph 4.01, 4.02 or 4.03 then the party that prevails in such action
shall be entitled to receive from the opposing party (or parties) in the action
the prevailing party's reasonable attorneys' fees incurred in such action and
all costs and expenses incurred in connection therewith in accordance with
Paragraph 7.08.
4.05 Limit to Extent Enforceable. In the event that a court of
competent jurisdiction determines that any of the provisions of Paragraph 4.01,
4.02 or 4.03 are unreasonable, it may limit such provision to the extent it
deems reasonable, without declaring the provision of Paragraph 4.01, 4.02 or
4.03 invalid in its entirety. This provision shall not be construed as an
admission by HFC, but is only included to provide HFC with the maximum possible
protection for its business, Confidential Information, trade secrets and data,
consistent with the right of Executive to earn a livelihood subsequent to the
termination of Executive's employment.
4.06 Compliance. To enable HFC to monitor Executive's compliance
with the obligations imposed by this Agreement, including Sections 4.01, 4.02
and 4.03, Executive shall, during the twelve
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(12) months following Executive's termination or resignation, inform HFC of the
identity of any new employer of Executive and of Executive's job title and
responsibilities with any such employer.
4.07 Survival of Provisions. The parties agree that the provisions'
in this Article IV shall survive termination of this Agreement and termination
of Executive's employment for any reason.
ARTICLE V
INVENTIONS
5.01 Invention. For purposes of this Agreement, the term "Invention"
means ideas, discoveries, and improvements whether or not shown or described in
writing or reduced to practice and whether patentable or not, relating to any of
HFC's present or future sales, research, or other business activities, or
reasonably foreseeable business interests of HFC.
5.02 Disclosure. Executive shall promptly and fully disclose to HFC
and will hold in trust for HFC sole right and benefit any Invention which
Executive, during the period of Executive's employment (including during
non-working hours), makes, conceives, or reduces to practice or causes to be
made, conceived, or reduced to practice either alone or in conjunction with
others that: (a) relates to any subject matter pertaining to Executive's
employment; (b) relates to or is directly or indirectly connected with the
business, products, projects, or Confidential Information of HFC; or (c)
involves the use of any time, material, or facility of HFC.
5.03 Assignment of Ownership. Executive hereby assigns to HFC all of
Executive's right, title, and interest in and to all such inventions as
described in Paragraph 5.02 and, upon HFC's request, Executive shall execute,
verify, and deliver to HFC such documents including, without limitation,
assignments and applications for Letters Patent, and shall perform such other
acts, including, without limitation, appearing as a witness in any action
brought in connection with this Agreement that is necessary to enable HFC to
obtain the sole right, title, and benefit to all such inventions.
5.04 Excluded Inventions. It is further agreed, and Executive is
hereby so notified, that the above agreement to assign inventions to HFC does
not apply to any invention for which no equipment, supplies, facility, or
Confidential Information of HFC was used, which was developed entirely on
Executive's own time, and (a) which does not relate (i) directly to the business
of HFC or (ii) to HFC's actual or demonstrably anticipated research or
development, or (b) which does not result from any work performed by Executive
for HFC.
5.05 Prior Inventions. Attached to this Agreement and initialed by
both parties is a list of all of the inventions, by description, if any, in
which Executive possesses any right, title, or interest prior to this employment
and the execution of this Agreement, which are not subject to the terms of this
Agreement.
5.06 Specific Performance; Attorney Fees. Executive expressly
acknowledges and agrees that any violation of any terms of Paragraphs 5.02 or
5.03 may result in the issuance of a temporary restraining order and/or
injunction against Executive to effect specific performance of the terms of
Paragraphs 5.02 or 5.03. If HFC institutes any action against Executive, alone
or in conjunction with
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any third party or parties, to enforce any term or provision of Paragraphs 5.02
or 5.03, then the party that prevails in such action shall be entitled to
receive from the opposing party (or parties) in the action the prevailing
party's reasonable attorneys' fees incurred in such action and all costs and
expenses incurred in connection therewith in accordance with Paragraph 7.08.
5.07 Survival of Provisions. The parties agree that the provisions
in this Article V shall survive termination of this Agreement and termination of
Executive's employment for any reason.
ARTICLE VI
ARBITRATION
6.01 Agreement to Arbitrate. With the exception of HFC's right to
seek injunctive relief in connection with breaches by Executive of Paragraphs
3.02, 3.03, 4.01, 4.02, 4.03 and/or 5.02 or 5.03 of this Agreement, all disputes
or claims arising out of or in any way relating to this Agreement, including the
making of this Agreement, shall be submitted to and determined by final and
binding arbitration before the American Arbitration Association ("AAA") under
the AAA's National Rules for the Resolution of Employment Disputes. The award of
the arbitrator(s), or a majority of them, shall be final and judgment upon such
award may be entered in any court of competent jurisdiction. This arbitration
provision shall continue in full force and effect after Executive's resignation
or termination of employment under this Agreement.
6.02 Discovery. In addition to any other procedures provided for
under the rules of the AAA, upon written request, each party shall, at least 14
days prior to the date of any hearing, provide to the opposite party a copy of
all documents relevant to the issues raised by any claim or counterclaim and a
list of all witnesses to be called by that party at the hearing and each party
shall be permitted to take at least one deposition at least 14 days prior to any
hearing.
6.03 Costs. The costs of proceedings under Article VI shall be paid
in accordance with the provisions of Article VII below.
ARTICLE VII
MISCELLANEOUS
7.01 Governing Law. This Agreement shall be governed according to
the laws of the State of Minnesota.
7.02 Captions. The captions set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement or as in
any way limiting or amplifying the terms and conditions hereof.
7.03 No Conflicting Obligations. Executive represents and warrants
to HFC that he is not under, or bound to be under in the future, any obligation
to any person, firm, or corporation that is or would be inconsistent or in
conflict with this Agreement or would prevent, limit, or impair in any way the
performance by him of Executive's obligations hereunder. Specifically, but
without limiting the
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generality of the foregoing, Executive warrants and represents to HFC that he is
not currently bound and will not be bound in the future by any confidentiality
agreements and/or restrictive covenants that may and/or will restrict
Executive's ability to perform Executive's duties hereunder. Moreover, Executive
agrees that he will not enter into any confidentiality agreements and/or
restrictive covenants during Executive's employment with HFC that may or will
restrict Executive's ability to perform Executive's duties hereunder, with the
exception of any confidentially agreements and/or restrictive covenants entered
into by and between Executive and HFC.
7.04 Successors. This Agreement is personal to Executive and
Executive may not assign or transfer any part of Executive's rights or duties
hereunder, or any compensation due to him hereunder, to any other person. This
Agreement may be assigned by HFC. This Agreement is binding on any successors or
assigns of HFC.
7.05 Waiver. The waiver by any party of the breach or
nonperformance of any provision of this Agreement by any other party will not
operate or be construed as a waiver of any future breach or nonperformance under
any provision of this Agreement or any similar agreement with any other
employee.
7.06 Notices. Any and all notices referred to herein shall be
deemed properly given only if in writing and delivered personally or sent
postage prepaid, by certified mail, return receipt requested, as follows:
(a) To HFC by notice to the Chief Executive Officer
(b) To Executive at Executive's home address as it then
appears on the records of HFC, it being the duty of Executive
to keep HFC informed of Executive's current home address at
all times.
The date on which notice to HFC or Executive shall be deemed to have been given
if mailed as provided above shall be the date on the certified mail return
receipt. Personal delivery to Executive shall be deemed to have occurred on the
date notice was delivered to Executive personally or deposited in a mail box or
slot or left with security or administrative personnel, at Executive's residence
by a representative of HFC or any messenger or delivery service.
7.07 Survival of Provisions. The parties agree that the provisions
in Articles III, IV, V, VI, and VII shall survive termination of this Agreement
and Executive's resignation or termination from employment for any reason.
7.08 Payment of Fees and Expenses. If any party initiates or
becomes a party to a formal proceeding in law or equity, or under Article VI,
involving this Agreement, and if either party obtains a substantial portion of
the relief requested by that party (the "prevailing party"), then the
non-prevailing party shall pay all of its and the prevailing party's reasonable
costs and expenses, including reasonable attorneys' fees and expenses, incurred
with respect to such proceeding. If neither party obtains a substantial portion
of the relief requested each shall bear its/his own expenses. In the event
Executive is terminated pursuant to Paragraph 2.01(c) and challenges HFC's
determination of Cause, HFC and
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Executive shall each bear its/his own expenses in connection with any proceeding
initiated by Executive with respect to the determination as to "Cause."
7.09 Term. This Agreement shall be effective from May 31, 2005
(Executive's first day of employment) and shall continue until terminated in
accordance with the provisions set forth in this Agreement.
7.10 Modification. This Agreement supersedes any and all prior oral
and written understandings and agreements, if any, between the parties relating
to the subject matter hereof. This Agreement sets forth the entire
understandings and agreements between and among the parties and is the complete
and exclusive statement of the terms and conditions thereof. No modification,
termination, discharge or attempted waiver of any provision of this Agreement
will be valid unless it is made in writing and signed by the party against whom
the same is sought to be enforced, and is specifically identified as a
modification, termination, release, waiver or discharge of this Agreement.
7.11 Counterparts. More than one counterpart of this Agreement may
be executed by the parties hereto, and each fully executed counterpart shall be
deemed an original.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
date written above.
HEALTH FITNESS CORPORATION
By /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
Its: Chief Executive Officer
EXECUTIVE
/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
-12-
