Delaware | 0-27478 | 36-3228107 |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
8700 West Bryn Mawr Avenue, Chicago, Illinois | 60631 |
(Address of principal executive offices) | (Zip Code) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 | Entry into a Material Definitive Agreement. |
On November 24, 2004, Bally Total Fitness Holding Corporation (Bally) entered into an Employment Agreement with Marc D. Bassewitz (the Executive) to provide for the Executives employment as Ballys Senior Vice President and General Counsel (the Agreement). The Agreement provides for employment with Bally until December 31, 2007 (the Termination Date) unless the agreement is earlier terminated in accordance with its terms. The term of the Agreement will be automatically extended each year for an additional 12 months on the anniversary date of the Termination Date unless either party provides notice of intent not to renew at least 90 days prior to the then-current termination date. |
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The Agreement sets forth the terms of the Executives employment with Bally while he remains in his current position, including the following: |
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The Executive will receive an annual base salary of $350,000 and an annual incentive payment of up to 50% of the Executives base salary based on performance criteria established by Ballys Board of Directors. The Executive will also be eligible to participate in Ballys employee benefit plans, any other equity-based compensation plan offered by Bally, and certain other executive perquisites programs. Upon the Executives termination of employment for any reason, the Executive will be prohibited from (i) engaging in any activity that is competitive with or adverse to Bally for a period of 12 months, (ii) soliciting any of Ballys clients or employees or disparaging Bally for a period of 24 months, and (iii) disclosing any of Ballys confidential information. |
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Upon the Executives termination by Bally without cause, the Executive will generally be entitled to receive a lump sum payment equal to (i) the greater of (A) all amounts of base salary that would otherwise be payable for the remainder of the then-current term of employment and that remain unpaid, or (B) 1.5 times the Executives then-current annual base salary, plus (ii) if such termination occurs prior to the payment of the Executives annual bonus payable with respect to the immediately preceding calendar year, the full amount of the Executives annual bonus for such year, plus (iii) 1.5 times the Executives target annual bonus for the then-current calendar year, plus (iv) compensation for any unused, earned vacation days. Upon such termination, the Executive would also be entitled to immediate vesting of all awards previously granted to him pursuant to Ballys long-term incentive plan, subject to the conditions set forth in the plan, and the Executives medical benefits would extend for an 18-month period. |
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If Bally terminates the Executives employment without cause within two years of a change in control of Bally or the Executive terminates his employment with Bally for good reason, the Executive will generally be entitled to receive a lump sum payment equal to (i) 200% of the sum of (A) the Executives highest annual base salary rate then in effect, and (B) the Executives target annual bonus for the year, plus (ii) if such termination occurs prior to the payment of the Executives annual bonus payable with respect to the immediately preceding calendar year, the full amount of the Executives annual bonus for such year, plus (iii) compensation for any unused, earned vacation days. Upon such termination, the Executive would also be entitled to the same vesting of awards and extension of medical benefits described in the immediately preceding paragraph. |
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If the Executives employment with Bally terminates on the expiration date of the Agreement, other than for cause, the Executive will be entitled to receive an immediate lump sum payment equal to (i) one times the Executives then-current annual base salary, plus (ii) if such termination occurs prior to the payment of the Executives annual bonus payable with respect to the calendar year in which such expiration date occurs, the full amount of the Executives annual bonus for such year, plus (iii) one times the Executives target annual bonus for such calendar year, plus (iv) compensation for any unused, earned vacation days. Upon such termination, the Executives medical benefits would extend for the 18-month period described above. |
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The Executive would also be entitled to certain benefits upon death or long-term disability. |
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If the Executives employment is terminated by the Company for cause or if the Executive terminates voluntarily without good reason, the Executive would not be entitled to any of the above-described benefits upon termination. |
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The Executive is entitled to certain tax adjustment payments in the event he is subject to any excise taxes under Internal Revenue Code Sections 280G or 4999 following a change in control of Bally. |
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The preceding description of the terms of the Agreement is qualified in its entirety by reference to the text of the Agreement, which is attached hereto as Exhibit 99.1. |
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On November 24, 2004, Bally entered into an amendment to the Employment Agreement dated as of January 1, 2003 with Cary A. Gaan, Senior Vice President and General Counsel (the Amendment). The Amendment provides that Mr. Gaan will resign his position as Senior Vice President and General Counsel effective as of January 1, 2005, and assume the responsibilities and title of Special Counsel to the President at a reduced salary. The Amendment also provides that Mr. Gaan receive a payment in the amount he would have received had his Employment Agreement been terminated under Section 5(c) thereof. |
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Item 9.01 | Financial Statements and Exhibits |
c. Exhibits | |
99.1 | Employment Agreement, dated as of January 1, 2005, between Marc D. Bassewitz and Bally Total Fitness Holding Corporation. |
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.
BALLY TOTAL FITNESS HOLDING CORPORATION | ||
Registrant | ||
Dated: December 1, 2004 | /s/ Harold Morgan | |
Harold Morgan | ||
Senior Vice President, Chief Administrative Officer |