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Exhibit 10.11
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of February 9, 2001, by and between
Health Fitness Corporation, a Minnesota corporation, (hereinafter called "HFC"),
and Xxxxxx Xxxxxxxxx (hereinafter called "Executive"):
RECITALS
1. Executive desires to be employed by HFC and HFC desires to employ
Executive on the terms stated in this Agreement.
2. Executive acknowledges that he has been notified and recognizes
that 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. HFC hereby hires Executive in the position
of Chief Financial Officer 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 his employment, to devote his 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 his position such as,
but not limited to, those duties and responsibilities associated
with increasing HFC's profitability, revenue growth and stock
price; provided, however, that Executive's duties and
responsibilities shall be subject to determination by HFC's Chief
Executive Officer.
(b) Executive shall report to, and at all times shall be subject
to the direction of, HFC's Chief Executive Officer.
(c) Executive, at all times during his 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 senior executive employees of HFC.
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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 his duties hereunder. In
addition, Executive shall not engage in any activity that might subject HFC to
criticism or adverse publicity, that might interfere with his normal work
schedule, or that might interfere with his job duties.
1.04 Annual Base Salary. Executive's initial annual base salary shall
be calculated on the gross amount of U.S. $120,000 per year, less withholding
for income and FICA taxes and any other proper deductions. Executive's annual
base salary will be paid to him in accordance with HFC's normal payroll
practices. Executive's performance shall be reviewed for annual base salary
increase of up to $2,500 per year after six (6) months of employment with such
increase, if any, determined by the Chief Executive Officer in his sole
discretion. Future increases to annual base salary, if any, shall thereafter be
reviewed annually each year beginning one year from Executive's date of
employment by the Chief Executive Officer and determined by the Chief Executive
Officer, in his sole discretion.
1.05 Stock Options. Executive and HFC shall enter into a separate
Incentive Stock Option Agreement ("ISOA").
1.06 Fringe Benefits. HFC shall provide the following fringe benefits
to Executive so long as he is employed by HFC or as otherwise required by law:
(a) Annual Bonus Compensation.
(i) Calendar Year 2001. Executive shall be eligible to
receive bonus compensation of up to twenty eight percent (28%) of
Executive's annual base salary based on HFC's achievement of
certain pre-determined audited annual earnings before interest,
taxes, depreciation, and amortization ("EBITDA"). EBITDA goals
for 2001 shall be based on the full calendar year 2001 (January
1, 2001 - December 31, 2001). Annual base salary for purposes of
bonus compensation shall be based on Executive's prorated annual
base salary earned in 2001. For calendar year 2001, HFC's Board
of Directors has approved the following bonus compensation
criteria:
AUDITED EBITDA AMOUNT OF BONUS COMPENSATION
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$2,700,000 -- $2,799,999 Five percent (5%) of annual base salary
$2,800,000 -- $2,899,999 Ten percent (10%) of annual base salary
$2,900,000 -- $3,099,999 Eighteen percent (18%) of annual base salary
$3,100,000 -- $3,299,999 Twenty-three percent (23%) of annual base salary
$3,300,000 and over Twenty-eight percent (28%) of annual base salary
(ii) Subsequent calendar years. Executive shall be eligible
to receive annual bonus compensation for each full calendar year
of Executive's employment following calendar year 2001 in
accordance with the terms and conditions of this subparagraph
1.06(a). However, the EBITDA goals for calendar year 2001
outlined above shall be inapplicable in subsequent calendar
years. Rather, for each subsequent calendar year, HFC's Chief
Executive Officer shall determine, in his sole
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discretion, either to adopt new EBITDA goals and bonus
compensation criteria or to change the nature of the bonus
compensation criteria from the current EBITDA based system to a
system based on other factors. Executive will be notified of the
next calendar year's bonus structure and criteria prior to the
commencement of that next calendar year.
(iii) Payment of Bonus Compensation. Executive's bonus
compensation, if any, will be paid to him in a lump sum within
sixty (30) days following the completion of the audit of the most
recently concluded calendar year; provided, however, that
Executive must remain employed by HFC on the date such bonus is
paid to Executive to receive such bonus. If Executive is no
longer employed by HFC on the date HFC pays Executive's bonus
compensation for the most recently concluded calendar year,
Executive shall not receive any bonus compensation for the most
recently concluded calendar year, regardless of when Executive's
employment terminated. Executive's bonus compensation, if any,
shall be subject to withholding for income and FICA taxes and any
other proper deductions.
(b) Executive is eligible to accrue up to fifteen (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.
(c) Executive shall be eligible to participate in all other
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
senior executive employees from time to time) in the performance of his 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.
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(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 his employment as contemplated by
this Agreement or as assigned by HFC's Chief Executive
Officer, or (b) take reasonable direction consistent with his
position from the 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.
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
3.01(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 he 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 his
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 his position due to physical or mental
disability, with or without
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reasonable accommodation, as determined in the good faith
judgment of the 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 senior management employees of HFC, but in no event earlier
than the compulsory retirement age permitted under federal or
similar law for senior management employees.
(f) May be terminated by Executive for any reason on ninety (90)
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 his 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 three (3) months of his 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 his 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, or (ii) owed to HFC by Executive
for any amounts advanced, loaned or misappropriated in accordance
with applicable law.
(d) The effect of Executive's termination of employment on his
stock options shall be governed by the terms and conditions of
the ISOA.
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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 lists, prospective customer
lists, price lists, fee schedules, business strategies and plans, information
pertaining to the benefits HFC provides to its customers, pending patentable
materials and/or designs, design documentation, documentation of meetings, tests
and/or test standards, employee compensation, or manuals whether 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 irrespective 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 his 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, communicate to or use for his own or
another's benefit or (directly or indirectly) disclose, assign, transfer,
convey, communicate to or use by him, a competitor of HFC or any other person or
entity, including, but not limited to, the press, other professionals,
corporations, partnerships or the public, at any time during his employment with
HFC or at any time after his termination of employment with HFC, regardless of
the reason for the Executive's termination, whether voluntary or involuntary.
Executive further promises and agrees that he 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 termination of the
employer-employee relationship, whether voluntary or involuntary, Executive will
return to HFC any and all written or otherwise recorded form of all Confidential
Information (and any copies thereof) in his possession,
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custody or control, including, but not limited to, notebooks, memoranda,
specifications, customer lists, prospective or potential customer lists, or
price 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 his employment or to which he had access, possession, custody or
control, except with HFC express, written permission. Upon termination of
employment, whether voluntary or involuntary, Executive will deliver to HFC all
Confidential Information in recorded form in his possession, custody or control.
Moreover, in the event of termination of Executive's employment 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 shall be returned to HFC at its principal
business offices on the date of termination of Executive's 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 HFC's express, written permission.
3.04 Irreparable Harm. The parties acknowledge that HFC will suffer
irreparable harm if the Executive breaches Paragraphs 3.02 or 3.03, either
during or after his employment. Accordingly, HFC shall be entitled, in addition
to any other right and remedy they may have, at law or equity, to a temporary
restraining order and/or injunction, without the posting of a bond or other
security, enjoining or restraining the Executive from any violation of
Paragraphs 3.02 or 3.03, and the 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 7.07.
ARTICLE IV
NON-SOLICITATION
4.01 Non-Solicitation Agreement. During Executive's employment with
HFC and for a period of two (2) years after his employment with HFC ends for
whatever reason (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 his
employment with HFC, for the purpose of soliciting HFC's current
or former customers or potential or prospective customers on his
behalf or the behalf of any other business, person or entity for
purpose of selling, offering, providing or otherwise making
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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.
4.02 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.
4.03 Irreparable Harm. The parties acknowledge that HFC will suffer
irreparable harm if Executive breaches Paragraph 4.01 or 4.02. Accordingly, HFC
shall be entitled, in addition to any other right and remedy they may have, at
law or equity, to a temporary restraining order and/or injunction, without the
posting of a bond or other security, enjoining or restraining Executive from any
violation of Paragraph 4.01 or 4.02 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 or 4.02 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 7.07.
4.04 Limit to Extent Enforceable. In the event that a court of
competent jurisdiction determines that any of the provisions of Paragraph 4.01
or 4.02 are unreasonable, it may limit such provision to the extent it deems
reasonable, without declaring the provision of Paragraph 4.01 or 4.02 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 his
employment.
4.05 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 his
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employment, 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 7.07.
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.
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This arbitration provision shall continue in full force and effect after
Executive's 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 his 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 his ability to perform his duties hereunder. Moreover, Executive agrees
that he will not enter into any confidentiality agreements and/or restrictive
covenants during his employment with HFC that may or will restrict his ability
to perform his 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 his 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.
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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 his home address as it then appears on the
records of HFC, it being the duty of the Executive to keep HFC
informed of his 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 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 determines to challenge 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."
7.08 Term. This Agreement shall be effective from February __, 2001
(Executive's first day of employment) and shall continue until terminated in
accordance with the provisions set forth in this Agreement.
7.09 Modification. This Agreement supersedes any and all prior oral
and written understandings, if any, between the parties relating to the subject
matter of this Agreement. 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, that there are no other written
or oral agreements in regard to the subject matter of this Agreement other than
those agreements, plans, programs and policies expressly referred to herein.
This Agreement shall not be changed or modified except by a written document
signed by the parties hereto.
7.10 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.
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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/ Xxxxxx Xxxxxxxxx
----------------------------------------------------
Xxxxxx Xxxxxxxxx
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