EXHIBIT 10.10
EMPLOYMENT AGREEMENT
THIS AGREEMENT by and between Health Fitness Corporation, a Minnesota
corporation, (hereinafter called "HFC"), and Brain Xxxxx (hereinafter called
"Executive") is dated December 8, 2003 to be effective as of the Effective Date
(as defined below).
RECITALS
WHEREAS, Executive is currently employed by Xxxxxxx & Xxxxxxx Health Care
Systems Inc. ("J&J") in J&J's Health & Fitness Services Division (the
"Business");
WHEREAS, HFC and J&J are parties to an Asset Purchase Agreement (the
"Purchase Agreement") dated as of December 8, 2003 pursuant to which J&J has
agreed to sell to HFC substantially all of the assets of the Business;
WHEREAS, in anticipation of the closing (the "Closing") of HFC's purchase
of the Business' assets as contemplated by the Purchase Agreement, Executive and
HFC desire to agree to the terms of Executive's employment with HFC, which
employment will commence, if the Closing occurs, on the date on which the
Closing occurs (the "Effective Date");
WHEREAS, Executive acknowledges and agrees that Executive will, prior to
the Effective Date and in the course of Executive's employment with HFC, have
access to confidential, proprietary and trade secret information of HFC, the
unauthorized use or disclosure of which would cause irreparable harm to HFC; and
WHEREAS, Executive wishes to receive from HFC the compensation, and the
benefit of the other terms of conditions of employment, as set forth in this
Agreement as valuable consideration for the confidentiality, noncompetition,
inventions and other provisions contained in this Agreement;
NOW, THEREFORE, in consideration of Executive's employment under the terms
and conditions of this Agreement, any promotions, increases in compensation,
and/or other benefits hereafter paid or made available to Executive by HFC, and
for other good and valuable consideration the receipt and sufficiency of which
is specifically acknowledged by the parties, 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 Programs & Practices, and Executive hereby accepts
such employment with HFC, commencing as of the Effective Date,
subject to the terms and conditions of this
Agreement. Such employment shall continue indefinitely until
terminated in accordance with Article II of this Agreement.
(b) Notwithstanding anything herein to the contrary, HFC's
employment of Executive as contemplated by this Agreement is subject
to, and Executive's employment with HFC will commence only if and
upon, the Closing. Executive acknowledges that the Closing is
subject to numerous conditions and that the Closing may not occur.
If the Closing does not occur, HFC will have no obligation to employ
Executive or any other obligation hereunder. In addition,
notwithstanding anything herein to the contrary, HFC shall have the
right to terminate this Agreement immediately upon notice to
Executive upon the termination of the Purchase Agreement, and, in
such event, HFC will have no obligation to Executive hereunder,
including any obligation with respect to employment or separation
pay.
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. Executive's duties and responsibilities shall
be subject to determination by HFC's Chief Executive Officer or his
designee.
(b) Executive shall report to, and at all times shall be subject to
the direction of, HFC's Chief Executive Officer or his designee.
(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. $119,500 (effective as of the Effective
Date), 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 each March 1st, 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 commencement of
Executive's employment with HFC hereunder, options to purchase 40,000 shares of
common stock of HFC. Under the ISOA, such options will vest ratably over four
years after, and will expire on the sixth anniversary of, the date of grant, and
the exercise price of each option will be the fair market value of HFC's common
stock on the date of grant.
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 2004 calendar year subject to
the specific terms and conditions of the program developed each
year. Initially for the 2004 calendar year such bonus eligibility
shall be up to a maximum of 20% of Executive's 2004 HFC base salary
based on the Executive's successful achievement of criteria to be
determined by HFC's Chief Executive Officer in his sole discretion.
(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.
1.07 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.
1.08 Relocation Expenses. By separate letter agreement HFC and the
Executive have reached certain agreements about the reimbursement of certain
moving expenses which the employee expects to incur upon commencement of his
employment with HFC.
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 Chief
Executive Officer, or (b) take reasonable direction consistent
with Executive's position from HFC's Chief Executive Officer;
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 against Executive from
serving as a director, officer or executive of any firm the
securities of which trade publicly.
(vi) Failure to relocate residence to the Minneapolis,
Minnesota area by February 1, 2004.
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), (v) or (vi), 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 Chief Executive Officer 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 Chief Executive Officer. If after the completion of the
designated cure period HFC's Chief Executive Officer 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 Chief Executive
Officer, 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 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
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.
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
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.
(a) During Executive's employment with HFC and for a period of
eighteen (18) 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 18-month period, in
connection with any Conflicting Product. Executive also agrees that
during Executive's employment with HFC and for a period of 18 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 eighteen (18) months after Executive's resignation or
termination of employment, whether voluntary or involuntary, Executive shall
not,
(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 eighteen (18) 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 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 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 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 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 the date written above
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.
[Signature page follows]
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
date written above.
HEALTH FITNESS CORPORATION
By /s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx
Its: Chief Executive Officer
EXECUTIVE
/s/ Xxxxx Xxxxx
-----------------------
Brain Xxxxx
