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”).
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:
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.
(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.
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.
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