EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into on
March 4th, 2002, by and between LIFE TIME FITNESS, Inc. (the "Company"), and
Xxxxxxx Xxxxxxxx ("Executive").
A. The Company is engaged in the business of managing
health and fitness clubs and providing health and fitness club services
throughout the United States. The Company has enjoyed considerable growth and
success in the industry because of its innovative, confidential and proprietary
management and marketing methods and plans.
B. The Company desires to hire Executive as its
employee, and Executive desires to be employed by the Company, subject to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and
the respective agreements of the Company and Executive set forth below, the
Company and Executive, intending to be legally bound, agree as follows:
1. Employment. Subject to all terms and conditions set
forth in this Agreement, effective March 11th, 2002 (the "Commencement Date"),
the Company shall employ Executive, and Executive shall perform services for the
Company, until Executive's employment terminates pursuant to Section 8 below.
2. Position and Duties.
(a) Position with the Company. Executive shall serve as
Executive Vice President and Chief Financial Officer of the Company. In that
position, Executive shall perform certain duties and responsibilities as
assigned to him by the Company consistent with his position. Executive shall
report to the Chief Executive Officer ("CEO") of the Company; provided, however,
that in the event the Company restructures its organizational format such that
an executive other than the CEO is responsible for the day-to-day operation of
the Company, the Company may elect to require Executive, along with
substantially all of the other key senior executives, to report to such
executive, on the condition that Executive continues to be an active participant
in the senior executive management team of the Company.
(b) Performance of Duties and Responsibilities. Executive
shall serve the Company faithfully and to the best of his ability and shall
devote his full working time, attention and efforts to the business of the
Company during his employment with the Company. Executive hereby represents and
confirms that he is under no contractual or legal commitments that would prevent
him from fulfilling his duties and responsibilities as set forth in this
Agreement. During his employment hereunder, Executive shall not accept other
employment or engage in other material business activity, except as approved in
writing by the Board of Directors of the Company (the "Board").
3. Compensation.
(a) Salary. The Company shall pay to Executive an annual
salary, less deductions and withholdings, which salary shall be paid in
accordance with the Company's normal payroll policies and procedures, but no
less frequently than twice monthly. This salary shall be composed of a
guaranteed component (the "Guaranteed Component") and a performance component
(the "Performance Component"), which such Performance Component shall be
dependent upon the Company's achievement of certain financial goals (the
"Guaranteed Component" and the "Performance Component" together shall be
referred to as "Target Salary"). For the year 2002, Executive's Target Salary,
on an annual basis, shall amount to $260,000, with the Guaranteed Component
amounting to $228,000, on an annual basis. That is, for 2002, Executive shall be
guaranteed a salary of no less than forty-two fifty-seconds of $228,000,
provided that Executive remains employed by the Company throughout all of 2002.
Each year thereafter, the CEO and/or the Board shall establish Executive's
Target Salary in an amount not less than the Target Salary in effect for the
prior year, unless Executive's Target Salary is reduced as part of a general,
across-the-board reduction in the salaries for all executive officers of the
Company, and, in such event, by no percentage amount greater than is applied to
any other executive officer.
(b) Stock Options. Within three weeks of the Commencement
Date, and subject to the approval of the Board, Executive will be granted an
incentive stock option (ISO) to purchase 100,000 shares of the Company's common
stock, with 20% of such shares vesting on each anniversary date of Executive's
date of hire for the next five years, provided that Executive remains an
employee of the Company. The full terms and conditions of these options,
including a provision for the accelerated vesting of all non-vested shares upon
the occurrence of certain defined events arising after a change in control of
the Company and a provision for a pro rata vesting for a particular year if
Executive is terminated without Cause or quits for Good Reason during the course
of that year, will be as set forth in a "Stock Option Agreement" to be entered
between Executive and the Company. The terms of that Stock Option Agreement will
control over this paragraph 3(b) (attached).
(c) Certain Allowances. During Executive's employment
with the Company, Executive shall be provided with the following allowances,
each of which shall be paid to Executive on a monthly basis, less deductions and
withholdings: (i) a car allowance in the amount of $750 per month; and (ii) a
cellular phone allowance in the amount of $100 per month.
(d) Employee Benefits. During Executive's employment with
the Company, Executive shall be entitled to participate in the Company's 401(k)
plan and other employee benefit plans of the Company available to senior
management (including the Company's disability plan and the Company's medical
plan, which would provide full family
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coverage at no cost to Executive) of the Company to the extent that Executive
meets the eligibility requirements for each individual plan or program.
Executive will be eligible to participate in the Company's medical plan on April
1, 2002. The Company provides no assurance as to the adoption or continuance of
any particular employee benefit plan or program, and Executive's participation
in any such plan or program shall be subject to the provisions, rules and
regulations applicable thereto.
(e) Business Expenses. While Executive is employed by the
Company hereunder, the Company shall reimburse Executive for all reasonable and
necessary out-of-pocket business, travel and entertainment expenses incurred by
him in the performance of his duties and responsibilities hereunder, subject to
the Company's normal policies and procedures for expense verification and
documentation.
(f) Vacation. While the Company currently does not have a
formal policy with respect to vacation, Executive shall be entitled to take
vacation, provided that Executive uses his discretion with respect to the timing
of such vacations, for an aggregate number of days not exceed twenty (20),
during any one year period.
4. Confidential Information. Except as permitted by the
Company's Board, during the term of Executive's employment with the Company and
at the all times thereafter, Executive shall not divulge, furnish or make
accessible to anyone or use in any way other than in the ordinary course of the
business of the Company, any confidential, proprietary or secret knowledge or
information of the Company that Executive acquires during his employment with
the Company, whether developed by himself or by others, concerning (i) any
Company trade secrets, (ii) any confidential, proprietary or secret plans,
developments, research, processes, designs, methods or material (whether or not
patented or patentable) of the Company, (iii) any customer or supplier lists of
the Company, (iv) any strategic or other business, marketing or sales plans of
the Company, (v) any financial data or plans respecting the Company, or (vi) any
other confidential or proprietary information or secret aspects of the business
of the Company. Executive acknowledges that the above-described knowledge and
information constitutes a unique and valuable asset of the Company and
represents a substantial investment of time and expense by the Company, and that
any disclosure or other use of such knowledge or information other than for the
sole benefit of the Company would be wrongful and would cause irreparable harm
to the Company. During the term of Executive's employment with the Company,
Executive shall refrain from any intentional acts or omissions that would reduce
the value of such knowledge or information to the Company. The foregoing
obligations of confidentiality shall not apply to any knowledge or information
that (i) is now or subsequently becomes generally publicly known for reasons
other than Executive's violation of this Agreement, (ii) is independently made
available to Executive in good faith by a third party who has not violated a
confidential relationship with the Company, or (iii) is required to be disclosed
by legal process, other than as a direct or indirect result of the breach of
this Agreement by Executive.
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5. Ventures. If, during Executive's employment with the
Company, Executive is engaged in or associated with the planning or implementing
of any project, program or venture involving the Company, all rights in such
project, program or venture shall belong to the Company. Except as approved in
writing by the Board and as otherwise set forth in this Agreement, Executive
shall not be entitled to any interest in any such project, program or venture or
to any commission, finder's fee or other compensation in connection therewith.
Executive shall have no interest, direct or indirect, in any customer or
supplier that conducts business with the Company, provided that a passive
investment of less than 2.5% of the outstanding shares of capital stock of any
customer or supplier listed on a national securities exchange or publicly traded
in the over-the-counter market shall not constitute a breach of this sentence.
6. Noncompetition Covenant.
In exchange for the Company's hiring of him, and the terms and
conditions of that employment as set forth herein, including but not limited to
the severance pay arrangement set forth in section 9 below, Executive and the
Company agree as follows:
(a) Agreement Not to Compete. During Executive's
employment with the Company and for a period of twenty-four (24) consecutive
months from and after the effective date of the termination of Executive's
employment with the Company, whether such termination is with or without Cause,
or whether such termination is at the instance of Executive or the Company,
Executive shall not, directly or indirectly, engage in any manner or capacity
(including without limitation as a proprietor, principal, agent, partner,
officer, director, employee, member of any association, consultant or otherwise)
in any "Company Business" in the "Territory." For purposes of this section 6(a),
"Company Business" means the design, development, management, or marketing of
health and fitness clubs, and health and fitness club memberships and services,
and nutritional supplements, and any other product or service that grows into a
core or primary business for the Company (or is under development and is
projected to grow into a core or primary business for the Company) at the time
of Executive's termination of employment. "Territory" means any of the United
States or in any other country in which the Company is then doing Company
Business as of the effective date of Executive's termination of employment with
the Company. Ownership by Executive, as a passive investment, of less than 2.5%
of the outstanding shares of capital stock of any corporation listed on a
national securities exchange or publicly traded in the over-the-counter market
shall not constitute a breach of this Section 6(a).
(b) Agreement Not to Hire. During Executive's employment
with the Company and for a period of twenty-four (24) consecutive months from
and after the termination of Executive's employment with the Company, whether
such termination is with or without cause, or whether such termination is at the
instance of Executive or the Company, Executive shall not, directly or
indirectly, hire, engage or solicit any person who is then an employee of the
Company or who was an employee of the Company at the time of Executive's
termination of employment, in any manner or capacity, including without
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limitation as a proprietor, principal, agent, partner, officer, director,
stockholder, employee, member of any association, consultant or otherwise.
(c) Agreement Not to Solicit. During Executive's
employment with the Company and for a period of twenty-four (24) consecutive
months from and after the termination of Executive's employment with the
Company, whether such termination is with or without cause, or whether such
termination is at the instance of Executive or the Company, Executive shall not,
directly or indirectly, solicit, request, advise or induce any current or
potential customer, supplier or other business contact of the Company to cancel,
curtail or otherwise change its relationship with the Company, in any manner or
capacity, including without limitation as a proprietor, principal, agent,
partner, officer, director, stockholder, employee, member of any association,
consultant or otherwise.
(d) Blue Pencil Doctrine. If the duration of, the scope
of or any business activity covered by any provision of this Section 6 is in
excess of what is valid and enforceable under applicable law, such provision
shall be construed to cover only that duration, scope or activity that is valid
and enforceable. Executive hereby acknowledges that this Section 6 shall be
given the construction that renders its provisions valid and enforceable to the
maximum extent, not exceeding its express terms, possible under applicable law.
7. Patents, Copyrights and Related Matters.
(a) Disclosure and Assignment. Executive shall
immediately disclose to the Company any and all improvements and inventions that
Executive may conceive and/or reduce to practice individually or jointly or
commonly with others while he is employed with the Company with respect to (i)
any methods, processes or apparatus concerned with the development, use or
production of any type of products, goods or services sold or used by the
Company, and (ii) any type of products, goods or services sold or used by the
Company. Executive also shall immediately assign, transfer and set over to the
Company his entire right, title and interest in and to any and all of such
inventions as are specified in this Section 7(a), and in and to any and all
applications for letters patent that may be filed on such inventions, and in and
to any and all letters patent that may issue, or be issued, upon such
applications. In connection therewith and for no additional compensation
therefor, but at no expense to Executive, Executive shall sign any and all
instruments deemed necessary by the Company for:
(i) the filing and prosecution of any
applications for letters patent of the
United States or of any foreign country that
the Company may desire to file upon such
inventions as are specified in this Section
7(a);
(ii) the filing and prosecution of any
divisional, continuation,
continuation-in-part or reissue applications
that the Company may desire to file upon
such applications
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for letters patent; and
(iii) the reviving, re-examining or renewing of
any of such applications for letters patent.
This Section 7(a) shall not apply to any invention for which no equipment,
supplies, facilities, confidential, proprietary or secret knowledge or
information, or other trade secret information of the Company was used and that
was developed entirely on Executive's own time, and (i) that does not relate (A)
directly to the business of the Company, or (B) to the Company's actual or
demonstrably anticipated research or development, or (ii) that does not result
from any work performed by Executive for the Company.
(b) Copyrightable Material. All right, title and interest
in all copyrightable material that Executive shall conceive or originate
individually or jointly or commonly with others, and that arise during the term
of his employment with the Company and out of the performance of his duties and
responsibilities under this Agreement, shall be the property of the Company and
are hereby assigned by Executive to the Company, along with ownership of any and
all copyrights in the copyrightable material. Upon request and without further
compensation therefor, but at no expense to Executive, Executive shall execute
any and all papers and perform all other acts necessary to assist the Company to
obtain and register copyrights on such materials in any and all countries. Where
applicable, works of authorship created by Executive for the Company in
performing his duties and responsibilities hereunder shall be considered "works
made for hire," as defined in the U.S. Copyright Act.
(c) Trade Secrets. All trade secret information conceived
or originated by Executive that arises during the term of his employment with
the Company and out of the performance of his duties and responsibilities
hereunder or any related material or information shall be the property of the
Company, and all rights therein are hereby assigned by Executive to the Company.
8. Termination of Employment.
(a) Executive's employment with the Company shall
terminate immediately upon:
(i) Executive's receipt of written notice from
the Company of the termination of his
employment, effective as of the date
indicated in such notice;
(ii) the Company's receipt of Executive's written
resignation from the Company, effective as
of the date indicated in such resignation;
(iii) Executive's Disability (as defined below);
or
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(iv) Executive's death.
(b) The date upon which Executive's termination of
employment with the Company occurs shall be the "Termination Date."
9. Payments upon Termination of Employment.
(a) If Executive's employment with the Company is
terminated by the Company for any reason other than for "Cause" (as defined
below), death or "Disability" (as defined below), or by Executive for "Good
Reason" (as defined below; collectively, termination of employment by the
Company for any reason other than for to Cause, death or Disability or by
Executive for Good Reason shall be referred to as a "Severance Event"), the
Company shall pay to Executive as severance pay the following amounts:
(i) a lump sum payment within thirty (30) days
of Executive's termination of employment,
less required withholdings, according to the
following schedule:
(A) if the Severance Event
occurs within the first
ninety (90) days of
Executive's employment with
the Company, an amount
equal to one-twelfth (1/12)
of Executive's Guaranteed
Component; or
(B) if the Severance Event
occurs after the first
ninety (90) days of
Executive's employment with
the Company, but during the
first nine (9) months of
Executive's employment with
the Company, an amount
equal to three-twelfths
(3/12) of Executive's
Guaranteed Component; or
(C) if the Severance Event
occurs at any time after
the first nine (9) months
of Executive's employment
with the Company, an amount
equal to six-twelfths
(6/12) of Executive's
Guaranteed Component.
In the event that either (B) or (C) above
apply, Company shall also directly pay any
outplacement firm for outplacement costs
associated with Executive's search for new
employment, up to $2500 in the aggregate.
Executive's car allowance together with any
health care (including medical and dental)
and life insurance benefits coverage
provided to Executive at the date of his
termination shall be continued at the same
level and in the same
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manner as if his employment had not
terminated beginning on the date of such
termination and will continue for the number
of months consistent with the number of
months Executive is to be paid in severance,
followed by COBRA election rights. Any
additional coverages Executive had at
termination, including dependent coverage,
will also be continued for such period on
the same terms. Any costs Executive was
paying for such coverages, if any, at the
time of termination shall continue to be
paid by Executive. If the terms of any
benefit plan referred to in this section do
not permit continued participation by
Executive, then the Company will arrange for
other coverage providing substantially
similar benefits at the same contribution
level, if any, of Executive; and,
(ii) provided Executive's noncompetition
obligations remain in full force and effect
as set forth in Section 6 above, and
commencing on the first day of the first
month following the Termination Event and
continuing on the first day of each
subsequent month until the second
anniversary of the Termination Event, $100
subject to all required withholdings.
The Company shall be entitled to deduct from the payments set forth in item
(a)(ii) above any amount(s) earned by Executive or attributed to Executive as
income during the applicable payment period as a result of employment or
self-employment with any other employer (including employment as a consultant or
contractor). For purposes of mitigation and reduction of the Company's financial
obligations to Executive with respect to item (a)(ii) above, Executive shall
promptly and fully disclose to the Company in writing: (i) the nature and amount
of any earned income from self-employment or employment with any other employer
(including employment as a consultant or contractor), (ii) any variations in
income by pay period, and (iii) the period for which the income is attributable.
Executive shall be liable to repay any amounts to the Company that should have
been so mitigated or reduced but for Executive's failure or unwillingness to
make such disclosures. In the event that the Company implements a general plan
of severance for key members of senior executive management on terms more
favorable to such executives than those offered to Executive herein, the more
favorable terms of such general plan of severance shall be included in this
Agreement, subject to the approval of Executive.
(b) If Executive's employment with the Company is
terminated by reason of:
(i) Executive's abandonment of his employment or
Executive's resignation, in each instance
for any reason other than Good Reason;
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(ii) termination of Executive's employment by the
Company for Cause (as defined below); or
(iii) Executive's Disability or death,
then the Company shall pay to Executive or his beneficiary or his estate, as the
case may be, Executive's Guaranteed Component through the Termination Date.
(c) "Cause" shall mean if the Company determines in good
faith that Executive has:
(i) engaged in willful and deliberate acts of
dishonesty, fraud or unlawful behavior
against or at the expense of the Company,
which adversely affects the business affairs
of the Company;
(ii) been convicted of, or pleaded nolo
contendere, to any felony;
(iii) engaged in gross negligence or willful
misconduct in the performance of Executive's
duties as an employee of Company, where such
acts adversely affect the business affairs
of the Company in a material way;
(iv) refused to substantially perform all of his
duties and responsibilities, or persistently
neglects his duties or experiences chronic
unapproved absenteeism, which remains
uncured after twenty-one (21) days written
notice to Executive of such alleged Cause by
the Board; or
(v) breached any material term(s) or material
condition(s) of this Agreement.
Notwithstanding anything to the contrary contained herein,
none of the foregoing events (other than clauses (i) or (ii)), shall constitute
"Cause" for purposes of this Agreement unless the Company gives Executive
written notice delineating the claimed event or circumstance and setting forth
the Company's intention to terminate Executive's employment if such claimed
event or circumstance is not duly remedied within twenty-one (21) business days
following such notice from the Board, and Executive fails to remedy such event
or circumstance within such twenty-one (21) day period.
(d) "Good Reason" shall mean if Executive determines in
good faith that:
(i) the Company has breached any material
term(s) or material condition(s) of this
Agreement, which breach was not caused by
Executive and has not been cured by the
Company within
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twenty-one (21) business days after
receiving written notice from Executive
delineating the claimed breach and setting
forth his intention to terminate his
employment if such breach is not duly
remedied within twenty-one (21) business
days;
(ii) the Company has relocated its executive
offices outside of a fifty (50) mile radius
of its current location;
(iii) the Company has materially reduced
Executive's duties and responsibilities or
title (including but not limited to
reasonable discretion in the management of
his department), which reduction has not
been cured by the Company within twenty-one
(21) business days after receiving written
notice from Executive delineating the
claimed reduction and setting forth his
intention to terminate his employment if
such breach is not duly remedied within
twenty-one (21) business days; or
(iv) the Company has assigned duties and
responsibilities to Executive that are
inconsistent with Executive's position.
(e) "Disability" shall mean the inability of Executive to
perform on a full-time basis the duties and responsibilities of his employment
with the Company by reason of his illness or other physical or mental impairment
or condition, if such inability continues for an uninterrupted period of 90 days
or more during any 360-day period. A period of inability shall be
"uninterrupted" unless and until Executive returns to full-time work from the
above-referenced leave for a continuous period of at least 15 days, excluding
vacation days or sick days taken for reasons unrelated to the illness or other
physical or mental impairment or condition necessitating the above-referenced
leave.
(f) In the event of termination of Executive's
employment, the sole obligation of the Company hereunder shall be its obligation
to make the payments called for by Sections 9(a) or 9(b) hereof, as the case may
be, and the Company shall have no other obligation to Executive or to his
beneficiary or his estate, except as otherwise provided by law, under the terms
of any subsequent written agreement between Executive and the Company or under
the terms of any employee benefit plans or programs then maintained by the
Company in which Executive participates.
(g) Notwithstanding the foregoing provisions of this
Section 9, the Company shall not be obligated to make any payments to Executive
under Section 9(a) hereof unless the Company clearly establishes that Executive
is not in strict compliance with the terms of Sections 4, 6 and 7 hereof as of
the dates of such payments.
10. Return of Records and Property. Upon termination of
his employment with the Company, Executive shall promptly deliver to the Company
any and all Company
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records and any and all Company property in his possession or under his control,
including without limitation manuals, books, blank forms, documents, letters,
memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes,
source codes, data, tables or calculations and all copies thereof, documents
that in whole or in part contain any trade secrets or confidential, proprietary
or other secret information of the Company and all copies thereof, and keys,
access cards, access codes, passwords, credit cards, personal computers,
telephones and other electronic equipment belonging to the Company.
11. Remedies. Executive acknowledges that the provisions
of Sections 4, 6 and 7 are reasonable and necessary to protect the legitimate
interests of the Company, and that any violation of those provisions by
Executive would cause substantial and irreparable harm to the Company to such an
extent that monetary damages alone would be an inadequate remedy therefore.
Therefore, in the event of any actual or threatened breach of any such
provisions, the Company shall, in addition to any other remedies it may have, be
entitled to seek injunctive and other equitable relief to enforce such
provisions and to restrain Executive from violating or continuing to violate
such provisions, and such relief may be granted without the necessity of proving
actual monetary damages. The preceding sentence shall not be construed to
prevent Executive from disputing the factual basis of any remedies or defenses
asserted by the Company.
12. Indemnification. The Company agrees to defend and
indemnify Executive to the fullest extent permitted by applicable law, for all
civil damages, penalties, or fines claimed or levied against Executive in
connection with any third-party claim, action, suit or proceeding that arises
from Executive's acts, errors, or omissions (other than Executive's intentional
misconduct, willful neglect of duties, or bad faith) in the performance of his
duties as an officer and/or employee of the Company or any affiliate or
subsidiary thereof. This Section 12 shall survive any termination of this
Agreement.
13. Miscellaneous.
(a) Governing Law. All matters relating to the
interpretation, construction, application, validity and enforcement of this
Agreement shall be governed by the laws of the State of Minnesota without giving
effect to any choice or conflict of law provision or rule, whether of the State
of Minnesota or any other jurisdiction, that would cause the application of laws
of any jurisdiction other than the State of Minnesota.
(b) Jurisdiction and Venue. Executive and the Company
consent to jurisdiction of the courts of the State of Minnesota and/or the
federal district courts, District of Minnesota, for the purpose of resolving all
issues of law, equity, or fact, arising out of or in connection with this
Agreement. Any action involving claims of a breach of this Agreement shall be
brought in such courts. Each party consents to personal jurisdiction over such
party in the state and/or federal courts of Minnesota and hereby waives any
defense of lack of personal jurisdiction. Venue, for the purpose of all such
suits, shall be in Hennepin County, State of Minnesota.
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(c) Entire Agreement. Except for the Stock Option
Agreement referred to in Section 3(b) hereof, this Agreement contains the entire
agreement of the parties relating to the subject matter of this Agreement and
supersedes all prior agreements and understandings with respect to such subject
matter, and the parties hereto have made no agreements, representations or
warranties relating to the subject matter of this Agreement that are not set
forth herein.
(d) No Violation of Other Agreements. Executive hereby
represents and agrees that neither (i) Executive's entering into this Agreement
nor (ii) Executive's carrying out the provisions of this Agreement, will violate
any other agreement (oral, written or other) to which Executive is a party or by
which Executive is bound.
(e) Amendments. No amendment or modification of this
Agreement shall be deemed effective unless made in writing and signed by the
parties hereto.
(f) No Waiver. No term or condition of this Agreement
shall be deemed to have been waived, except by a statement in writing signed by
the party against whom enforcement of the waiver is sought. Any written waiver
shall not be deemed a continuing waiver unless specifically stated, shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act
other than that specifically waived.
(g) Assignment. This Agreement shall not be assignable,
in whole or in party, by either party without the written consent of the other
party, except that the Company may, without the consent of Executive, assign
all, but not less than all, of its rights and obligations under this Agreement
to any corporation or other business entity (i) with which the Company may merge
or consolidate, (ii) to which the Company may sell or transfer all or
substantially all of its assets or capital stock, or (iii) of which 50% or more
of the capital stock or the voting control is owned, directly or indirectly, by
the Company. After any such assignment by the Company, the Company shall be
discharged from all further liability hereunder and such assignee shall
thereafter be deemed to be the "Company" for purposes of all terms and
conditions of this Agreement, including this Section 13.
(h) Counterparts. This Agreement may be executed in any
number of counterparts and by facsimile, such counterparts executed and
delivered, each as an original, shall constitute but one and the same
instrument.
(i) Severability. Subject to Section 6(d) hereof, to the
extent that any portion of any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted herefrom and the remainder of such
provision and of this Agreement shall be unaffected and shall continue in full
force and effect.
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(j) Captions and Headings. The captions and paragraph
headings used in this Agreement are for convenience or reference only and shall
not affect the construction or interpretation of this Agreement or any of the
provisions hereof.
(k) Legal Expenses. The prevailing party shall be
entitled to recover all legal fees and expenses which such party may reasonably
incur as a result of any legal proceeding relating to the validity,
enforceability, or breach of, or liability under, any provision of this
Agreement or any guarantee of performance (including as a result of any contest
by Executive about the amount of any payment pursuant to paragraph 9 of this
Agreement).
IN WITNESS WHEREOF, Executive and the Company have executed
this Agreement as of the date set forth in the first paragraph.
LIFE TIME FITNESS, Inc.
_________________________
By ______________________
Its ______________________
________________________________
XXXXXXX XXXXXXXX
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