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EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: Health Fitness Corporation You are currently viewing:
This Employee Retention Agreement involves

Health Fitness Corporation

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Title: EMPLOYMENT AGREEMENT
Governing Law: Minnesota     Date: 3/25/2009
Industry: Healthcare Facilities     Sector: Healthcare

EMPLOYMENT AGREEMENT, Parties: health fitness corporation
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Exhibit 10.44

EMPLOYMENT AGREEMENT

     THIS AGREEMENT is made effective as of December 8th, 2008 (the “Effective Date”), by and between Health Fitness Corporation, a Minnesota corporation (hereinafter called “HFC” or the “Company”), and J. Mark McConnell (hereinafter called “Executive”).

RECITALS

     WHEREAS, Executive desires to be employed by HFC and HFC desires to employ Executive on the terms stated in this Agreement;

     WHEREAS, Executive acknowledges that Executive has been notified and recognizes that the execution of this Agreement, including specifically the restrictive covenants contained in Article IV of this Agreement, is an express condition of his employment with HFC;

     NOW, THEREFORE, in consideration of HFC hiring Executive and the continuation of his employment, any promotions, increases in compensation, and/or other benefits now or hereafter paid or made available to Executive by HFC, Executive and HFC agree as follows:

ARTICLE I

EMPLOYMENT, COMPENSATION AND BENEFITS

     1.01 Employment With HFC .

(a) HFC hereby agrees to employ Executive initially in the position of Senior Vice President Business Development, and Executive hereby accepts such employment with HFC. Such employment shall continue indefinitely until terminated in accordance with Article II of this Agreement.

     1.02 Duties .

(a) Executive agrees, during Executive’s employment, to devote Executive’s full time and best efforts to the business of HFC, including, without limitation, the performance of those duties and responsibilities reasonably and customarily associated with Executive’s position, which duties and responsibilities may change from time to time. 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.

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(c) Executive, at all times during Executive’s employment with HFC, shall comply with HFC’s reasonable standards, regulations and policies as determined or set forth by HFC from time to time and as applicable to employees of HFC.

(d) HFC has agreed to allow Executive to work out of a home office at his Tennessee residence. Executive will cover all costs and expenses regarding the furnishing and all other costs and expenses incurred in regard to the home office, including but not limited to any rent, and he will not be reimbursed by HFC for such costs or expenses, except as set forth below in this subsection 1.02(d). Executive agrees to provide ergonomic furnishings for the home office suitable for a standard office environment. HFC will supply, or reimburse Executive for, certain equipment and supplies the Company deems necessary for Executive to do business from the home office, including a computer, printer, fax capability, installation costs for initial office and cell telephone set-up and monthly service and call charges, office supplies, and other miscellaneous items.

Executive agrees to set up the home office in such a way as to ensure that he can effectively conduct HFC business in a confidential manner and to ensure that information, communications, documents and materials relating to HFC, its business and its customers are treated in a confidential manner and are not accessible to non-HFC personnel. Executive will comply with HFC instructions as the Company may provide from time to time regarding the handling of such information, communications, documents and materials at his home office or which are accessible on computer or other electronic equipment at his home office during his employment and upon his resignation or termination of employment. Executive understands and agrees that all telephone numbers used in connection with his conduct of HFC business are the property of HFC and Executive will comply with any instructions related to the discontinuance or transfer of such numbers during his employment and upon his resignation or termination of employment. HFC may in the future and in its discretion determine that the home office arrangement does not meet HFC’s business needs and direct Executive to work on a regular basis out of one of HFC’s locations.

(e) Executive will be required to spend an appropriate amount of time each month working out of the HFC home office in Minnesota, as directed from time to time by the Chief Executive Officer or his designees. Executive shall also be required to frequently travel to other locations as needed for business purposes.

     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.

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     1.04 Annual Base Salary . Executive shall be paid a bi-weekly gross salary of $8,846.15 (which is U.S. $230,000 on an annual basis), less withholding for income and FICA taxes and any other proper deductions. Executive’s 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 beginning in 2010, and such increase, if any, shall be determined by HFC in its sole discretion.

     1.05 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 subject to the specific terms and conditions of the program developed each year.

(c) 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.

(d) Executive shall be eligible to accrue up to 23 days of paid time off per anniversary year in accordance with HFC’s standard Paid Time Off practices and policies. In addition, Executive may be eligible for additional paid time off in accordance with HFC’s standard holiday practices and policies.

     1.06 Expenses . During the term of this Agreement, Executive shall be entitled to prompt reimbursement by HFC for all reasonable, ordinary and necessary travel, entertainment and other business related expenses incurred by Executive (in accordance with the policies and procedures established by HFC for employees from time to time) in the performance of Executive’s duties and responsibilities under this Agreement; provided, however, that Executive shall properly account for such expenses in accordance with federal, state and local tax requirements and HFC’s policies and procedures.

     1.07 Stock Options . Subject to approval by the Board of Directors for this grant of stock options to the Executive, Executive and HFC shall enter into a separate Incentive Stock Option Agreement (“ISOA”) under the Company’s Amended and Restated 2005 Stock Option Plan (the “Option Plan”), pursuant to which HFC will grant to Executive, effective on the Effective Date (the “date of grant”), options to purchase 25,000 shares of common stock of HFC. Under the ISOA, such options will vest 25% on each of the first four anniversaries of the date of grant (subject to Executive’s continued employment), will expire on the sixth anniversary of the date of grant, and will have an exercise price equal to the fair market value of HFC’s common stock on the date of grant. The full terms and conditions of such stock option will be set forth in the ISOA and shall be subject to the Option Plan, and such ISOA shall also set forth provisions regarding the termination of such options following the termination of Executive’s employment for any reason. Additional annual grants of stock options shall be as determined by the Board of Directors in accordance with and subject to the Option Plan and the terms of the stock option agreement for each such grant.

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     1.08 Restricted Stock Grant . Subject to approval by the Board of Directors, Executive and HFC shall enter into a separate Restricted Stock Agreement pursuant to which HFC will grant to Executive, effective on the Effective Date (the “date of grant”), an equity award of 10,000 shares of restricted Common Stock (the “Restricted Stock”), in accordance with HFC’s 2007 Equity Incentive Plan, which shall vest in three (3) equal installments on the first, second and third anniversaries of the date of grant, provided that Executive is continuously employed with HFC through each such vesting date for such restricted shares to vest. The full terms and conditions of this award shall be as further set forth in and subject to the 2007 Equity Incentive Plan and the Restricted Stock Agreement.

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 his designee, or (b) take reasonable direction consistent with Executive’s position from HFC’s Chief Executive Officer or his designee; 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.

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     Executive’s termination for Cause shall be determined in good faith by and in the sole discretion of HFC’s Chief Executive Officer and/or his designee.

     In the event of termination pursuant to subparagraph 2.01(c)(iii), (iv) or (v), Executive’s termination shall be immediate upon the giving of written notice to Executive. However, in the event of termination pursuant to subparagraph 2.01(c)(i) or (ii), HFC’s Chief Executive Officer or his designee 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 or his designee. If after the completion of the designated cure period HFC’s Chief Executive Officer or his designee 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 his designee, 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, immediately upon written notice to Executive.

(h) May be terminated by HFC immediately upon written notice to Executive at any time within (6) months after a Change of Control as defined in Section 2.03 below.

     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 base salary and fringe benefits shall terminate as of the date of termination (except Executive shall have the right to continue certain benefits at Executive’s expense under COBRA), unless the parties agree in writing otherwise. If termination occurs pursuant to subparagraph 2.01(d), Executive acknowledges and

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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 base salary and fringe benefits shall terminate as of the date of termination (except Executive shall have the right to continue certain benefits at Executive’s expense under COBRA). However, Executive shall receive as separation pay the equivalent of six (6) months of Executive’s then current base salary. Executive shall be required to execute a release agreement prepared by HFC to include 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). Any separation pay due to Executive under this subparagraph 2.02(b) shall be payable to Executive in a lump sum thirty (30) days after receipt by the Company of the signed release agreement and the expiration of any rescission periods in such agreement without rescission by Executive. Notwithstanding the foregoing, if any of the payments described in this Section 2.02 are subject to the requirements of Section 409A of the Code, and the Company determines that Executive is a “specified employee” as defined in Section 409A of the Code, such payments shall not be made earlier than the date that is six (6) months after Executive’s termination, but shall be paid during the calendar year following the year in which such termination occurs and within thirty (30) days of the earliest possible date permitted under Section 409A of the Code.

(c) All payments made to Executive under this Section 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.

     2.03 Termination in the Event of a Change of Control .

(a) Change of Control Payments . If termination occurs pursuant to subparagraph 2.01(h), Executive’s receipt of base salary and fringe benefits shall terminate as of the date of termination (except Executive shall have the right to continue certain benefits at Executive’s expense under COBRA). However, Executive shall receive as separation pay the equivalent of six (6) months of Executive’s then current base salary. Executive shall be required to execute a release agreement prepared by HFC to include a general release of any and all claims in favor of HFC in exchange for Executive’s receipt of separation pay under this subparagraph 2.03(a). Any separation pay due to Executive under this subparagraph 2.03(a) shall be payable to Executive in a lump sum thirty (30) days after receipt by the Company of the signed release agreement and the expiration of any rescission periods in such agreement without rescission by Executive. Notwithstanding the foregoing, if any of the payments described in this Section 2.03 are subject to the requirements of Section 409A of the Code, and the Company determines that Executive is a “specified employee” as defined in Section 409A of the Code, such payments shall not be made earlier than

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the date that is six (6) months after Executive’s termination, but shall be paid during the calendar year following the year in which such termination occurs and within thirty (30) days of the earliest possible date permitted under Section 409A of the Code.

(b) Limitation on Chang


 
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