HEALTH FITNESS CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
(As amended through May 27, 2009)
The following
constitutes the provisions of the Health Fitness Corporation
Employee Stock Purchase Plan (the “Plan”) sponsored by
Health Fitness Corporation (the “Company”), as amended
from time to time.
1.
Purpose . The purpose of the Plan is to provide
employees of the Company and its Designated Subsidiaries with an
opportunity to purchase Common Stock of the Company through payroll
deductions. It is the intention of the Company that the Plan
qualify as an “employee stock purchase plan” under
Section 423 of the Internal Revenue Code of 1986, as amended
(the “Code”), and the regulations issued thereunder.
The provisions of the Plan shall, accordingly, be construed so as
to extend and limit participation in a manner consistent with the
requirements of that Code Section 423.
2.1
“ Administrator ” means the Board of Directors
or such Committee appointed by the Board of Directors to administer
the Plan. The Board or the Committee may, in its sole discretion,
authorize the officers of the Corporation to carry out the
day-to-day operation of the Plan. In its sole discretion, the Board
may take such actions as may be taken by the Administrator, in
addition to those powers expressly reserved to the Board under this
Plan.
2.2
“ Board ” means the Board of Directors of the
Company.
2.3
“ Common Stock ” means the Common Stock, $.01
par value, of the Company.
2.4
“ Compensation ” means gross pay, including all
other amounts such as amounts attributable to overtime, shift
premium, incentive compensation, bonuses and commissions (except to
the extent that the exclusion of any such item is specifically
directed by the Board or the Committee, in a manner consistent with
the requirements of Code Section 423).
2.5
“ Designated Subsidiaries ” means those
Subsidiaries which have been designated by the Board from time to
time in its sole discretion as eligible to participate in the
Plan.
2.6
“ Employee ” means any person, including an
officer, who is employed by the Company or one of its Designated
Subsidiaries.
2.7
“ Offering Date ” means the first day of each
Offering Period.
2.8
“ Offering Period ” means the period beginning
on the date that the option is granted and ending on the date that
the option is exercised, as set forth in
Paragraph 4.
2.9
“ Subsidiary ” means any corporation, domestic
or foreign, in which the Company owns, directly or indirectly, 50%
or more of the voting shares.
2.10
“ Termination Date ” means the last day of each
Offering Period.
3.1
Any Employee who (i) is regularly scheduled to work at least
20 hours per week, (ii) has been employed by the Company or
one of its Designated Subsidiaries for at least 30 days prior
to the Offering Date, and (iii) is not designated as an
on-call or temporary employee in the Company’s payroll system
shall be eligible to participate in the Plan, subject to the
limitations imposed by Code Section 423(b). Further,
individuals employed as interns or who provide services as
independent contractors shall not be eligible to participate in the
Plan.
3.2
Notwithstanding any provisions of the Plan to the contrary, no
Employee shall be granted an option under the Plan if,
3.2.1
Immediately after the grant, such Employee (or any other person
whose stock ownership would be attributed to such Employee pursuant
to Code Section 424(d)) would own shares and/or hold
outstanding options to purchase shares possessing five percent (5%)
or more of the total combined voting power or value of all classes
of shares of the Company or of any Subsidiary, or
3.2.2
The rate of withholding under such option would permit the
employee’s rights to purchase shares under all employee stock
purchase plans of the Company and its Subsidiaries to accrue (i.e.,
become exercisable) at a rate which exceeds Twenty-Five Thousand
Dollars ($25,000) of fair market value of such shares (determined
at the time such option is granted) for each calendar year in which
such option is outstanding at any time.
3.3
For purposes of Paragraph 3.1, the Administrator shall grant
credit for service with such entities as shall be acquired by or as
shall become affiliated with the Company from time to time as
provided in the applicable asset purchase, merger or similar
agreement or as approved by the Company by resolution of the
Board.
4.
Offerings . The Plan shall be implemented by one or
more offering periods of six months each (hereinafter referred to
as an “Offering Period”). Unless otherwise determined
by the Administrator, in its discretion, each Offering Periods
shall commence on January 1 st and July 1 st of
each year during the term of the Plan, with the first Offering
Period commencing January 1, 1996, and ending June 30,
1996. No two Offering Periods shall run concurrently.
5.1
An eligible Employee may become a participant in the Plan by
completing a subscription agreement authorizing payroll deductions
on the form provided by the Company and filing it with the
Company’s Human Resources Department not less than
15 days prior to the applicable Offering Date, or such other
date determined by the Administrator for all eligible Employees
with respect to the Offering Period.
5.2
Payroll deductions for a participant shall commence with the first
paycheck issued immediately after the Offering Date and shall
terminate with the paycheck issued immediately prior to the
Termination Date, unless terminated earlier as provided in
Paragraph 10.
5.3
An eligible Employee who elects to participate in an Offering
Period shall be deemed to have elected to participate in each
subsequent Offering Period unless such participant elects to
withdraw from the Plan as provided in Paragraph 10. In that
event, such participant must complete a new subscription agreement
and file such form with the Company’s Human Resources
Department not less than 15 days prior to the Offering Date
for the Offering Period in which the participant wishes to
participate, or such other date determined by the
Administrator.
6.1
The participant shall designate in his or her subscription
agreement designate a percentage of such participant’s
Compensation to be deducted during the Offering Period. Such
percentage shall be at least one percent (1%) but not more than ten
percent (10%) of the participant’s Compensation to be paid
during the Offering Period, or such other maximum percentage as the
Administrator may establish from time to time; provided, that the
participant’s aggregate payroll deductions during the
Offering Period shall not exceed ten percent (10%), or such other
maximum percentage as may be determined by the Administrator, of
the Compensation which the participant would otherwise have
received during the Offering Period.
6.2
Unless the participant elects to withdraw as provided in
Paragraph 10, the Company shall continue to withhold from the
participant’s Compensation the same percentage specified by
the participant in the most recent enrollment form previously
completed by the participant in all subsequent Offering Periods;
provided, however, that the participant may, if he or she so
chooses, increase, decrease or discontinue payroll deductions for
any or all such subsequent Offering Periods by properly completing
a new subscription agreement prior to the Offering Date for such
subsequent Offering Period and delivering such form to the
Company’s Human Resource Department office by the date
provided in Paragraph 5.1.
6.3
In the event that the participant’s Compensation is, for any
reason, increased or decreased during an Offering Period, so that
the amount actually withheld on behalf of the participant as of the
termination date of the Phase is different from the amount
anticipated to be withheld as determined on the Offering Date, then
the extent to which the participant may exercise his or her option
shall be based on the amounts actually withheld on his or her
behalf, subject to the limitations contained herein. In the event
of a change in the
pay period of
any participant, such as from biweekly to monthly, an appropriate
adjustment shall be made to the deduction in each new pay period so
as to ensure the deduction of the proper amount authorized by the
participant.
6.4
All payroll deductions authorized by a participant shall be
credited to the participant’s account under the Plan. A
participant may not make any additional payments into such
account.
6.5
A participant may discontinue his or her participation in the Plan
as provided in Paragraph 10, but may not decrease or increase
the rate of his or her payroll deductions during the Offering
Period.
7.1
On each Offering Date, each participant shall be granted an option
to purchase (at the option price) that number of whole shares of
the Company’s Common Stock determined by dividing the total
payroll deductions to be accumulated for the participant during
such Offering Period by ninety-five percent (95%) of the fair
market value of a share of the Company’s Common Stock at the
Termination Date, subject to the limitations set forth in
Paragraphs 3.2 and 12 hereof. The fair market value of a share of
the Company’s Common Stock shall be determined as provided in
Paragraph 7.2 herein.
7.2
The option price per share shall be ninety-five percent (95%) of
the price for a share of the Company’s Common Stock at the
close of the regular trading session of the Nasdaq National Market,
Nasdaq SmallCap Market or other established securities exchange as
of the Termination Date.
In
the event that the Termination Date is a Saturday, Sunday or
holiday, the amounts determined under the foregoing subsections
shall be determined using the price at the close of the regular
trading session on the last preceding trading day. If the
Company’s Common Stock is not listed on the Nasdaq National
Market, Nasdaq SmallCap Market or on an established securities
exchange, then the option price shall equal ninety-five percent
(95%) of the fair market value of such stock as of the Termination
Date. Such “fair market value” shall be determined by
the Board, in its sole discretion by applying principles of
valuation and such other factors the Board determines
relevant.
8.
Exercise of Option . Unless a participant withdraws
from the Plan as provided in Paragraph 10, the
participant’s option shall be exercised automatically at the
Termination Date, In no event shall the participant be
al
|
