EXHIBIT 10.32
EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is
entered into on May___, 2004 (the "Effective Date"), by and between LIFE TIME
FITNESS, Inc. (the "Company"), and _______________ ("Executive").
The Company is a recognized leader in the health and fitness
industry, including the design and operation of health and fitness centers, the
creation, promotion and sale of nutritional products, the production of athletic
events and the publication of a healthy way of life magazine. The Company has
enjoyed considerable growth and success in the industry because of its
innovative, confidential and proprietary management and marketing methods and
plans. The Company believes that it is necessary to enter into this Agreement to
assure protection of its goodwill and confidential and proprietary information,
management and marketing plans.
The Company also desires to assure Executive's continuing
services to the Company including, but not limited to, under circumstances in
which there is a possible threatened or actual Change of Control of the Company.
The Company believes it is imperative to diminish the inevitable distraction of
the Executive by virtue of the personal uncertainties and risks created by a
potential severance of employment and to encourage the Executive's full
attention and dedication to the Company currently and in the event of any
threatened or impending Change of Control, and to provide the Executive with
compensation and benefits arrangements upon a severance of employment which
ensure that the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other corporations.
In consideration of the foregoing, and in order to accomplish
the above objectives, the Company and Executive agree as follows:
1. Definitions
a) "Base Salary" shall mean the Executive's regular annual salary before
payment of any bonuses or incentive pay, commonly referred to as the
"Guaranteed" component of an executive's salary, including any salary
that has been earned but deferred.
b) "Change of Control" shall mean the earliest of the following dates:
(1) A change in the composition of the Board such that the
individuals who, as of the Effective Date, constitute the
Board (such Board shall be hereinafter referred to as the
"Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, for
purposes of this definition, that any individual who becomes
a member of the Board subsequent to the Effective Date,
whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority
of those individuals who are members of the Board and who
were also members of the Incumbent
Board (or deemed to be such pursuant to this proviso) shall
be considered as though such individual were a member of the
Incumbent Board; but, provided, further, that any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board shall not be
so considered as a member of the Incumbent Board; or
(2) Consummation of a merger, tender offer or consolidation of
the Company with any other corporation, other than a merger
or consolidation that would result in the voting securities
of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving
entity) at least 45% of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation;
or
(3) Consummation of a sale of all or substantially all of the
assets of the Company, other than in connection with the
sale-leaseback of the Company's real estate.
c) "Change of Control Date" shall mean the first date on which a Change
of Control occurs. Anything in this Agreement to the contrary
notwithstanding, if a Change of Control occurs and if the Executive's
employment with the Company is terminated or Executive's status as an
officer of the Company is eliminated within six months prior to the
date on which the Change of Control occurs or Executive's position has
been reduced one level or more, and if it is reasonably demonstrated
by the Executive that such termination of employment or cessation of
status as an officer: (i) was at the request of a third party who has
taken steps reasonably calculated to effect the Change of Control; or
(ii) otherwise arose because of an anticipated Change of Control, then
for all purposes of this Agreement the "Change of Control Date" shall
mean the date immediately prior to the date of such termination of
employment or cessation of status as an officer.
d) "Change of Control Period" shall mean the period commencing on the
Change of Control Date and ending on the first anniversary of such
date.
e) "Cause" shall mean if the Company determines in good faith that
Executive has:
(i) engaged in willful and deliberate acts of dishonesty,
fraud or unlawful behavior against or at the expense
of the Company, which adversely affects the business
affairs of the Company;
(ii) been convicted of, or pleaded nolo contendere, to any
felony;
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(iii) engaged in gross negligence or willful misconduct in
the performance of Executive's duties as an employee
of Company, where such acts adversely affect the
business affairs of the Company in a material way;
(iv) refused to substantially perform all of Executive's
duties and responsibilities, or persistently neglects
Executive's duties or experiences chronic unapproved
absenteeism;
(v) demonstrates an inability to perform Executive's
duties at a level commensurate with Executive's
position and is unable to meet the conditions of a
Company Performance Improvement Plan designed for
Executive created in connection with this item,
within a period of 60 days from creation of such
Performance Improvement Plan; or
(vi) breached any material term(s) or material
condition(s) of this Agreement.
Notwithstanding anything to the contrary contained herein, none of the
foregoing events (other than clauses (i) or (ii)), shall constitute
"Cause" for purposes of this Agreement unless the Company gives
Executive written notice delineating the claimed event or circumstance
and setting forth the Company's intention to terminate Executive's
employment if such claimed event or circumstance is not duly remedied
within twenty-one (21) business days following such notice from the
Company, and Executive fails to remedy such event or circumstance
within such twenty-one (21) day period.
f) "Disability" shall mean the inability of Executive to perform on a
full-time basis the duties and responsibilities of Executive's
employment with the Company by reason of Executive's illness or other
physical or mental impairment or condition, as determined by a
physician mutually acceptable to Executive and the Company, if such
inability continues for an uninterrupted period of 90 days or more
during any 365-day period. A period of inability shall be
"uninterrupted" unless and until Executive returns to full-time work
from the above-referenced leave for a continuous period of at least
180 days, excluding vacation days or sick days taken for reasons
unrelated to the illness or other physical or mental impairment or
condition necessitating the above-referenced leave.
g) "Good Reason" shall mean without Executive's express written consent,
any of the following shall occur:
(i) the Company has breached any material term(s) or
material condition(s) of this Agreement, which breach
was not caused by Executive and has not been cured by
the Company within twenty-one (21) business days
after receiving written notice from Executive
delineating the claimed breach and setting forth
Executive's intention to terminate Executive's
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employment if such breach is not duly remedied within
twenty-one (21) business days;
(ii) the Company has relocated its executive offices
outside of a seventy-five (75) mile radius of its
current location;
(iii) the Company has reduced Executive's Target Salary by
twenty-five percent (25%) or more, or materially
reduced Executive's duties and responsibilities
(including but not limited to reasonable discretion
in the management of Executive's department), which
reductions have not been cured by the Company within
twenty-one (21) business days after receiving written
notice from Executive delineating the claimed
reductions and setting forth Executive's intention to
terminate Executive's employment if such reduction is
not duly remedied within twenty-one (21) business
days; or
(iv) the Company has assigned duties and responsibilities
to Executive that are materially inconsistent with
Executive's position and experience, which assignment
has not been cured by the Company within twenty-one
(21) days after receiving written notice from
Executive delineating the claimed assignment and
setting forth Executive's intention to terminate
Executive's employment if such assignment is not duly
remedied within twenty-one (21) business days.
h) "Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) to
the extent applicable, sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, and (iii) if
the Termination Date is other than the date of receipt of such notice,
specifies the Termination Date (which date shall be not more than
thirty days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or
Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing
the Executive's or the Company's right hereunder.
i) "Target Salary" shall mean the sum of Executive's Base Salary and the
target payout under any commission or annual cash-base incentive plan
that the Executive is eligible to receive based upon the attainment of
pre-established performance targets.
j) "Termination Date" shall mean (i) if the Executive's employment is
terminated by the Company for Cause, or by the Executive for Good
Reason, the date of receipt of the Notice of Termination (as defined
in Section 2 below) or any later date specified therein, as the case
may be, (ii) if the Executive's employment is terminated by the
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Company other than for Cause or Disability, the Termination Date shall
be the date on which the Company notifies the Executive of such
termination, and (iii) if the Executive's employment is terminated by
reason of death or Disability, the Termination Date shall be the date
of death of the Executive or the first date Disability is determined,
as the case may be.
2. Notice of Termination.
Any termination of Executive's employment by the Company for Cause, or by the
Executive for Good Reason, shall be communicated by Notice of Termination to the
other party hereto.
3. Payments upon Termination of Employment.
a) If Executive's employment with the Company is terminated by the
Company for any reason other than for Cause, death or Disability, or
by Executive for Good Reason, and provided that Executive signs upon
termination a global release of claims against the Company (including
its affiliates, divisions, directors, officers, employees, agents and
assigns), such release to be prepared by the Company in its sole
discretion, then the Company shall provide to Executive the following:
(i) semi-monthly payments of Executive's pro-rata Target
Salary for a period of _______ (_______) months, at
an amount which represents a Executive's Target
Salary, on such a pro-rata basis, as of the
Termination Date, paid to Executive over the period
beginning with the Termination Date and ending on the
___ month anniversary of the Termination Date;
(ii) outplacement costs associated with Executive's search
for new employment, such costs not to exceed $10,000
in the aggregate;
(iii) continuation of medical plan coverage and life
insurance coverage at the same level and in the same
manner as that provided to Executive as of the
Termination Date beginning on the Termination Date
and continuing for the number of months consistent
with the number of months Executive is to be paid
severance under this Agreement. Benefit continuation
under this section 3(a)(iii) shall be concurrent with
any coverage under the Company's plans pursuant to
COBRA or similar laws. Any benefit coverages in
effect for the Executive on the Termination Date in
addition to the above two benefits, including
dependent coverage, will also be continued for such
period on the same terms. Any costs Executive was
paying for such coverages, if any, as of the
Termination Date shall continue to be paid by
Executive. If the terms of any benefit plan referred
to in this section do not permit
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continued participation by Executive, then the
Company will arrange for other coverage providing
substantially similar benefits at the same
contribution level, if any, of Executive, and
Executive will cooperate with the Company to obtain
the most favorable rate for comparable coverage to
Executive.
b) If Executive's employment with the Company is terminated by reason of:
(i) Executive's abandonment of Executive's employment or
Executive's resignation for any reason other than
Good Reason;
(ii) termination of Executive's employment by the Company
for Cause; or
(iii) Executive's Disability or death,
then the Company shall pay to Executive or Executive's beneficiary or
Executive's estate, as the case may be, Executive's Base Salary
through the Termination Date.
c) If Executive's employment with the Company (or successor) is
terminated by the Company during the Change of Control Period for any
reason other than Cause, death or Disability, or by Executive during
the Change of Control Period for Good Reason, then Executive will
receive, upon execution of a global release of claims against the
Company (including its affiliates, divisions, directors, officers,
employees, agents and assigns), such release to be prepared by the
Company in its sole discretion, the same benefits as set forth in
Section 3(a) above, except that Executive's semi-monthly payments
shall be made over a period of ______ months, ending on the ______
month anniversary of the Termination Date.
d) In the event of termination of Executive's employment, the sole
obligation of the Company hereunder shall be its obligation to make
the payments called for by Sections 3(a), 3(b) or 3(c) hereof, as the
case may be, and the Company shall have no other obligation to
Executive or to Executive's beneficiary or Executive's estate, except
as otherwise provided by law, under the terms of any subsequent
written agreement between Executive and the Company, and under the
terms of any employee benefit plans or programs then maintained by the
Company in which Executive participates.
e) Notwithstanding the foregoing provisions of this Section 3, the
Company shall not be obligated to make any payments to Executive under
Sections 3(a)(i) or (iii) above if the Company clearly establishes
that Executive is not in strict compliance with the terms of Section 4
hereof, as of the date of such payment
4. Covenants.
a) Introduction. The parties acknowledge that the provisions and
covenants contained in this Section 4 are material to this Agreement
and that the limitations contained in this
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Agreement are reasonable in geographic and temporal scope and do not
impose a greater restriction or restraint than is necessary to protect
the goodwill and other legitimate business interests of the Company.
The parties also acknowledge and agree that the provisions of this
Section 4 do not adversely affect Executive's ability to earn a living
in any capacity that does not violate the covenants contained herein.
Executive acknowledges that the Company's grant of any and all
"Performance Awards" under the 2004 Long-Term Incentive Plan were made
in reliance on and in exchange for, Executive's obligations under
these provisions.
b) Confidential Information. Except as permitted by the Company, during
the term of Executive's employment with the Company and at the all
times thereafter, Executive shall not divulge, furnish or make
accessible to anyone or use in any way other than in the ordinary
course of the business of the Company, any confidential, proprietary
or secret knowledge or information of the Company, whether developed
by Executive or others, including but not limited to (i) Company trade
secrets, (ii) confidential and proprietary plans, developments,
research, processes, designs, methods or material (whether or not
patented or patentable), (iii) customer and supplier lists, (iv)
strategic or other business, marketing or sales plans, and (v)
financial data and plans. Executive acknowledges that the
above-described knowledge and information constitutes a unique and
valuable asset of the Company and represents a substantial investment
of time and expense by the Company, and that any disclosure or other
use of such knowledge or information other than for the sole benefit
of the Company would be wrongful and would cause irreparable harm to
the Company. During the term of Executive's employment with the
Company, Executive shall refrain from any intentional acts or
omissions that would reduce the value of such knowledge or information
to the Company. The foregoing obligations of confidentiality shall not
apply to any knowledge or information that (i) is now or subsequently
becomes generally publicly known for reasons other than Executive's
violation of this Agreement, (ii) is independently made available to
Executive in good faith by a third party who has not violated a
confidential relationship with the Company, or (iii) is required to be
disclosed by legal process, other than as a direct or indirect result
of the breach of this Agreement by Executive.
c) Ventures. If, during Executive's employment with the Company,
Executive is engaged in or associated with the planning or
implementing of any project, program or venture involving the Company,
all rights in such project, program or venture shall belong to the
Company. Except as approved in writing by the Board and as otherwise
set forth in this Agreement, Executive shall not be entitled to any
interest in any such project, program or venture or to any commission,
finder's fee or other compensation in connection therewith. Executive
shall have no interest, direct or indirect, in any customer or
supplier that conducts business with the Company, provided that a
passive investment of less than 2.5% of the outstanding shares of
capital stock of any customer or supplier listed on a national
securities exchange or publicly traded in the over-the-counter market
shall not constitute a breach of this sentence.
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d) Agreement Not to Compete. During Executive's employment with the
Company and for a period of eighteen (18) consecutive months from the
Termination Date, regardless of the reason for such termination and
regardless of whether the termination is initiated by the Company or
Executive, Executive shall not, directly or indirectly, engage in any
manner or capacity (including without limitation as a proprietor,
principal, agent, partner, officer, director, employee, member of any
association, consultant or otherwise) in any "Company Business" in the
"Territory." For purposes of this section 4(d), "Company Business"
means the design, development, management, or marketing of health and
fitness clubs, and health and fitness club memberships and services,
and nutritional supplements, the publication of any health and fitness
publications or the sale, design or promotion of and any other product
or service that grows into a core or primary business for the Company
(or is under development and is projected to grow into a core or
primary business for the Company) as of the Termination Date.
"Territory" means any of the United States or in any other country in
which the Company is then doing Company Business as of the Termination
Date. Ownership by Executive, as a passive investment, of less than
2.5% of the outstanding shares of capital stock of any corporation
listed on a national securities exchange or publicly traded in the
over-the-counter market shall not constitute a breach of this Section
5(d). Notwithstanding the foregoing, if Executive's termination is in
connection with a Change of Control, Executive agrees, for a period of
time of twenty-four (24) months from the Termination Date, not,
directly or indirectly, to engage in any manner or capacity (including
without limitation as a proprietor, principal, agent, partner,
officer, director, employee, member of any association, consultant or
otherwise) in any "Company Business" in the "Territory."
e) Agreement Not to Hire. During Executive's employment with the Company
and for a period of twelve (12) consecutive months from the
Termination Date, regardless of the reason for such termination and
regardless of whether the termination is initiated by the Company or
Executive, Executive shall not, directly or indirectly, hire, engage
or solicit any person who is then an employee of the Company or who
was an employee of the Company as of the Termination Date, in any
manner or capacity, including without limitation as a proprietor,
principal, agent, partner, officer, director, stockholder, employee,
member of any association, consultant or otherwise.
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f) Agreement Not to Solicit. During Executive's employment with the
Company and for a period of twelve (12) consecutive months from the
Termination Date, regardless of the reason for such termination and
regardless of whether the termination is initiated by the Company or
Executive, Executive shall not, directly or indirectly, solicit,
request, advise or induce any current or potential customer, supplier
or other business contact of the Company to cancel, curtail or
otherwise change its relationship with the Company, in any manner or
capacity, including without limitation as a proprietor, principal,
agent, partner, officer, director, stockholder, employee, member of
any association, consultant or otherwise.
g) Blue Pencil Doctrine. If the duration of, the scope of or any business
activity covered by any provision of this Section 4 is in excess of
what is valid and enforceable under applicable law, such provision
shall be construed to cover only that duration, scope or activity that
is valid and enforceable. Executive hereby acknowledges that this
Section 4 shall be given the construction that renders its provisions
valid and enforceable to the maximum extent, not exceeding its express
terms, possible under applicable law.
5. Copyrights and Related Matters.
a) Copyrightable Material. All right, title and interest in all
copyrightable material that Executive shall conceive or originate
individually or jointly or commonly with others, and that arise during
the term of Executive's employment with the Company and out of the
performance of Executive's duties and responsibilities under this
Agreement, shall be the property of the Company and are hereby
assigned by Executive to the Company, along with ownership of any and
all copyrights in the copyrightable material. Upon request and without
further compensation therefor, but at no expense to Executive,
Executive shall execute any and all papers and perform all other acts
necessary to assist the Company to obtain and register copyrights on
such materials in any and all countries. Where applicable, works of
authorship created by Executive for the Company in performing
Executive's duties and responsibilities hereunder shall be considered
"works made for hire," as defined in the U.S. Copyright Act.
b) Trade Secrets. All trade secret information conceived or originated by
Executive that arises during the term of Executive's employment with
the Company and out of the performance of Executive's duties and
responsibilities hereunder or any related material or information
shall be the property of the Company, and all rights therein are
hereby assigned by Executive to the Company.
6. Return of Records and Property. On or within fifteen days of the
Termination Date, Executive shall promptly deliver to the Company any and
all Company records and any and all Company property in Executive's
possession or under Executive's control, and all copies thereof, including
without limitation manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, printouts, computer disks, computer
tapes, source codes, data, tables or calculations, keys, access cards,
access codes, passwords,
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credit cards, personal computers, telephones and other electronic equipment
belonging to the Company.
7. Remedies. Executive acknowledges that the provisions of Sections 4 are
reasonable and necessary to protect the legitimate interests of the
Company, and that any violation of those provisions by Executive would
cause substantial and irreparable harm to the Company to such an extent
that monetary damages alone would be an inadequate remedy therefore.
Therefore, in the event of any actual or threatened breach of any such
provisions, the Company shall, in addition to any other remedies it may
have, be entitled to seek injunctive and other equitable relief to enforce
such provisions and to restrain Executive from violating or continuing to
violate such provisions, and such relief may be granted without the
necessity of proving actual monetary damages. The preceding sentence shall
not be construed to prevent Executive from disputing the factual basis of
any remedies or defenses asserted by the Company.
8. Indemnification. The Company agrees to defend and indemnify Executive to
the fullest extent permitted by applicable law, for all civil damages,
penalties, or fines claimed or levied against Executive in connection with
any third-party claim, action, suit or proceeding that arises from
Executive's acts, errors, or omissions (other than Executive's intentional
misconduct, willful neglect of duties, or bad faith) in the performance of
Executive's duties as an officer or executive of the Company or any
affiliate or subsidiary thereof.
9. Miscellaneous.
a) Governing Law. All matters relating to the interpretation,
construction, application, validity and enforcement of this Agreement
shall be governed by the laws of the State of Minnesota without giving
effect to any choice or conflict of law provision or rule, whether of
the State of Minnesota or any other jurisdiction, that would cause the
application of laws of any jurisdiction other than the State of
Minnesota.
b) Jurisdiction and Venue. Executive and the Company consent to
jurisdiction of the courts of the State of Minnesota and/or the United
States District Court, District of Minnesota, for the purpose of
resolving all issues of law, equity, or fact, arising out of or in
connection with this Agreement. Any action involving claims of a
breach of this Agreement shall be brought in such courts. Each party
consents to personal jurisdiction over such party in the
aforementioned courts and hereby waives any defense of lack of
personal jurisdiction. Venue, for the purpose of all such suits, shall
be in Hennepin County, State of Minnesota.
c) Entire Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter of this Agreement and
supersedes all prior agreements and understandings with respect to the
subject matter hereof. The parties have made no agreements,
representations or warranties relating to the subject matter of this
Agreement that are not set forth herein.
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d) No Violation of Other Agreements. Executive hereby represents and
affirms that neither Executive's entering into and undertaking of
obligations under this Agreement nor Executive's employment with the
Company violate any other agreement (oral, written or other) to which
Executive is a party or by which Executive is bound.
e) Amendments. No amendment or modification of this Agreement shall be
deemed effective unless made in writing and signed by the parties
hereto.
f) No Waiver. No term or condition of this Agreement shall be deemed to
have been waived, except by a statement in writing signed by the party
against whom enforcement of the waiver is sought. Any written waiver
shall not be deemed a continuing waiver unless specifically stated,
shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future
or as to any act other than that specifically waived.
g) Assignment. This Agreement shall not be assignable, in whole or in
party, by either party without the written consent of the other party,
except that the Company may, without the consent of Executive, assign
all, but not less than all, of its rights and obligations under this
Agreement to any corporation or other business entity (i) with which
the Company may merge or consolidate, (ii) to which the Company may
sell or transfer all or substantially all of its assets or capital
stock, or (iii) of which 50% or more of the capital stock or the
voting control is owned, directly or indirectly, by the Company. After
any such assignment by the Company, the Company shall be discharged
from all further liability hereunder and such assignee shall
thereafter be deemed to be the "Company" for purposes of all terms and
conditions of this Agreement, including this Section 9.
h) Counterparts. This Agreement may be executed in any number of
counterparts and by facsimile, such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
i) Severability. Subject to Section 4(g) hereof, to the extent that any
portion of any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted herefrom and the
remainder of such provision and of this Agreement shall be unaffected
and shall continue in full force and effect.
j) Captions and Headings. The captions and paragraph headings used in
this Agreement are for convenience or reference only and shall not
affect the construction or interpretation of this Agreement or any of
the provisions hereof.
k) Legal Expenses. The prevailing party shall be entitled to recover all
legal fees and expenses which such party may reasonably incur as a
result of any legal proceeding relating to the validity,
enforceability, or breach of, or liability under, any provision of
this Agreement or any guarantee of performance (including as a result
of any contest
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by Executive about the amount of any payment pursuant to Section 4 of
this Agreement).
l) Notices. Any notice hereunder shall be in writing and shall be deemed
to have been duly given if delivered by hand, sent by reliable
next-day courier, or sent by registered or certified mail, return
receipt requested, postage prepaid, to the party to receive such
notice addressed as follows:
If to the Company:
Life Time Fitness, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Senior Vice President of Human Resources
If to Executive:
[insert name and address]
or addressed to such other address as may have been furnished to the
sender by notice hereunder. Except as otherwise provided herein, all
notices shall be deemed given on the date on which delivered if
delivered by hand, or on the date sent if sent by overnight courier or
certified mail, except that notice of change of address will be
effective only upon receipt by the other party.
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IN WITNESS WHEREOF, Executive and the Company have executed this
Agreement as of the date set forth in the first paragraph.
LIFE TIME FITNESS, Inc.
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By
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Its
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