however, for purposes of this definition, that any individual who becomes amember of the Board subsequent to the Effective Date, whose election, ornomination for election by the Company’s shareholders, was approved by a voteof at least a majority of those individuals who are members of the Board andwho were also members of the Incumbent Board (or deemed to be such pursuantto this proviso) shall be considered as though such individual were a memberof the Incumbent Board; but, provided, further, that any such individualwhose initial assumption of office occurs as a result of an actual orthreatened election contest with respect to the election or removal ofdirectors or other actual or threatened solicitation of proxies or consentsby or on behalf of a person other than the Board shall not be so consideredas a member of the Incumbent Board;  (ii) An acquisition by any individual, entity or group (within themeaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a “Person”), ofbeneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)which, together with other acquisitions by such Person, results in the aggregatebeneficial ownership by such Person of 30% or more of either (x) the thenoutstanding shares of Common Stock of the Company (the “Outstanding CompanyCommon Stock”) or (y) the combined voting power of the then outstanding votingsecurities of the Company entitled to vote generally in the election ofdirectors (the “Outstanding Company Voting Securities”); provided, however, thatthe following acquisitions will not result in a Change of Control (a) an acquisition by any employee benefit plan (orrelated trust) sponsored or maintained by the Company or anycorporation controlled by the Company, or  (b) an acquisition by any entity pursuant to atransaction that complies with the exemption in clause (iii) below; (iii) Consummation of a merger or consolidation of the Company withany other corporation or other entity, a statutory share exchange involving thecapital stock of the Company, or a sale or other disposition (in one transactionor a series of transactions) of all or substantially all of the assets of theCompany (except in connection with the sale-leaseback of the Company’s realestate), other than a merger, consolidation, statutory share exchange, ordisposition of all or substantially all assets that would result in the votingsecurities of the Company outstanding immediately prior thereto continuing torepresent (either by remaining outstanding or by being converted into orexchanged for voting securities of the surviving or acquiring entity or itsdirect or indirect parent entity) beneficial ownership, directly or indirectly,of more than 50% of the combined voting power of the voting securities of theCompany or such surviving or acquiring entity (including, without limitation,such beneficial ownership of an entity that as a result of such transactionbeneficially owns 100% of the outstanding
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   shares of common stock and the combined voting power of the then outstandingvoting securities (or comparable equity securities) or all or substantiallyall of the Company’s assets either directly or indirectly) outstandingimmediately after such merger, consolidation, statutory share exchange ordisposition of all or substantially all assets in substantially the sameproportions (as compared to other holders of the Outstanding Company CommonStock and Outstanding Company Voting Securities prior to the transaction) astheir respective ownership, immediately prior to such transaction; or  (iv) Consummation or, if earlier, shareholder approval, of adefinitive agreement or plan to liquidate or dissolve the Company. c) “Change of Control Date” shall mean the first date on which a Change of Controloccurs.  d) “Change of Control Period” shall mean the period commencing on the Change ofControl Date and ending on the first anniversary of such date.  e) “Cause” shall mean if the Company determines in good faith that Executive has: (i) engaged in willful and deliberate acts of dishonesty, fraud orunlawful behavior against or at the expense of the Company, which adverselyaffects 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 theperformance of Executive’s duties as an employee of Company, where such actsadversely affect the business affairs of the Company in a material way;  (iv) refused to substantially perform all of Executive’s duties andresponsibilities, or persistently neglects Executive’s duties or experienceschronic unapproved absenteeism;  (v) demonstrates an inability to perform Executive’s duties at alevel commensurate with Executive’s position and is unable to meet theconditions of a Company Performance Improvement Plan designed for Executivecreated in connection with this item, within a period of 60 days from creationof such Performance Improvement Plan; or  (vi) breached any material term(s) or material condition(s) of thisAgreement.   Notwithstanding anything to the contrary contained herein, the events described inclauses (iv) and (v) shall not constitute “Cause” for purposes of this Agreementunless the Company gives Executive written notice delineating the claimed event orcircumstance and setting forth the Company’s intention to terminate
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   Executive’s employment if such claimed event or circumstance is not duly remediedwithin twenty-one (21) business days following such notice from the Company, andExecutive fails to remedy such event or circumstance within such twenty-one (21) dayperiod. f) “Disability” shall mean the inability of Executive to perform on a full-timebasis the duties and responsibilities of Executive’s employment with the Company byreason of Executive’s illness or other physical or mental impairment or condition, asdetermined by a physician mutually acceptable to Executive and the Company, if suchinability continues for an uninterrupted period of 90 days or more during any 365-dayperiod. A period of inability shall be “uninterrupted” unless and until Executivereturns to full-time work from the above-referenced leave for a continuous period of atleast 180 days, excluding vacation days or sick days taken for reasons unrelated to theillness or other physical or mental impairment or condition necessitating theabove-referenced leave.  g) “Good Reason” shall mean without Executive’s express written consent, any ofthe following conditions shall occur, provided that none of the following conditionsshall constitute Good Reason unless Executive first gives written notice to the Companywithin 90 days of the first occurrence of the condition, delineating the claimed breachand setting forth Executive’s intention to terminate Executive’s employment if suchbreach is not duly remedied within 30 business days, and the Company fails to cure thecondition within such 30-day period: (i) the Company has breached any material term(s) or materialcondition(s) of this Agreement, which breach was not caused by Executive;  (ii) the Company relocates its executive offices outside of aseventy-five (75) mile radius of its current location, and the relocationresults in a material change to the geographic location at which Executiveperforms services;  (iii) the Company has reduced Executive’s Target Salary bytwenty-five percent (25%) or more, or materially reduced Executive’s duties andresponsibilities (including but not limited to reasonable discretion in themanagement of Executive’s department); or  (iv) the Company has assigned duties and responsibilities toExecutive that are materially inconsistent with Executive’s position andexperience, such that there occurs a material reduction in Executive’s duties,responsibilities or authority. h) “Notice of Termination” means a written notice which (i) indicates the specifictermination provision in this Agreement relied upon, (ii) to the extent applicable,sets forth in reasonable detail the facts and circumstances claimed to provide a basisfor termination of the Executive’s employment under the provision so indicated, and(iii) if the Termination Date is other than the date of receipt of such
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   notice, specifies the Termination Date (which date shall be not more than thirtydays after the giving of such notice). The failure by the Executive or the Companyto set forth in the Notice of Termination any fact or circumstance which contributesto a showing of Good Reason or Cause shall not waive any right of the Executive orthe Company, respectively, hereunder or preclude the Executive or the Company,respectively, from asserting such fact or circumstance in enforcing the Executive’sor the Company’s right hereunder.  i) “Target Salary” shall mean the sum of Executive’s Base Salary and the annualtarget payout under any commission or annual cash-base incentive plan that theExecutive is eligible to receive based upon the attainment of pre-establishedperformance targets. For purposes of Sections 3(a) and 3(c) below, in the eventExecutive’s employment is terminated by Executive for Good Reason pursuant to Section1(g)(iii), “Target Salary as of the Termination Date” shall mean Executive’s TargetSalary immediately prior to the reduction in Executive’s Target Salary that gave riseto Good Reason under Section 1(g)(iii).  j) “Termination Date” shall mean (i) if the Executive’s employment is terminatedby the Company for Cause, or by the Executive for Good Reason, the date of receipt ofthe Notice of Termination (as defined in Section 2 below) or any later date specifiedtherein, as the case may be, (ii) if the Executive’s employment is terminated by theCompany other than for Cause or Disability, the Termination Date shall be the date onwhich the Company notifies the Executive of such termination, and (iii) if theExecutive’s employment is terminated by reason of death or Disability, the TerminationDate shall be the date of death of the Executive or the first date Disability isdetermined, as the case may be. For purposes of Sections 3(a) and 3(c) of thisAgreement, with respect to the timing of payments thereunder, Termination Date shallmean the date of Executive’s separation from service with the Company within themeaning of Section 409A(a)(2)(A)(i) of the Code.2. **Notice of Termination.**Any termination of Executive’s employment by the Company for Cause, or by the Executive for GoodReason, shall be communicated by Notice of Termination to the other party hereto.3. **Payments upon Termination of Employment.** a) If Executive’s employment with the Company is terminated by the Company for anyreason other than for Cause, death or Disability, or by Executive for Good Reason suchthat the Termination Date occurs within two years of the first occurrence of thecondition giving rise to Good Reason, and provided that such termination of employmentdoes not occur during the Change of Control Period, then the Company shall provide toExecutive the following, subject to the conditions of Section 3(e) below:
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 (i) Target Salary Continuation. The Company will pay toExecutive an amount equal to one half of Executive’s Target Salary as of theTermination Date, but not to exceed a maximum amount of two times the lesserof: (x) the Code § 401(a)(17) compensation limit for the year in which theTermination Date occurs; or (y) the sum of Executive’s annualized compensationbased upon the annual rate of pay for services provided to the Company for thecalendar year prior to the calendar year in which the Termination Date occurs(adjusted for any increase during that year that was expected to continueindefinitely) (the “Target Salary Continuation Amount”). Such Target SalaryContinuation Amount shall be paid to Executive in equal installments inaccordance with the Company’s regular payroll schedule, commencing on the firstregular payroll date of the Company that occurs following the Termination Dateand continuing for six months. The Company and Executive intend the paymentsunder this Section 3(a)(i) to constitute a “separation pay plan due toinvoluntary separation from service” pursuant to Treas. Reg.§ 1.409A-1(b)(9)(iii). [Notwithstanding anything in this Section 3(a)(i) tothe contrary, if the Termination Date occurs on or before December 31,[**insert calendar year in which Executive’s employment commences], then themaximum limitations of (x) and (y) above shall not apply, and any amounts thatremain payable to Executive as of March 15, [**insert calendar yearafter the calendar year in which Executive’s employment commences],shall be payable in a lump sum on March 15, [**insert calendar yearafter the calendar year in which Executive’s employment commences],with the intention that the payments under this Section 3(a)(i) shall in suchinstance constitute a short-term deferral under Treas. Reg. § 1.409A-1(b)(4).]  (ii) Supplemental Target Salary Continuation. The Companywill pay to Executive an additional amount equal to Executive’s Target Salaryas of the Termination Date (the “Supplemental Target Salary ContinuationAmount”). Such Supplemental Target Salary Continuation Amount shall be paid toExecutive in equal installments in accordance with the Company’s regularpayroll schedule, commencing on the first regular payroll date of the Companythat occurs following completion of all payments under Section 3(a)(i) (and inany event commencing no earlier than the first day of the seventh month afterthe Termination Date) and continuing for 12 months. The Company and Executiveintend the payments under this Section 3(a)(ii) to be deferred compensationpayable in compliance with the requirements of Section 409A of the Code.  (iii) Outplacement Costs. The Company will reimburseExecutive for reasonable outplacement costs associated with Executive’s searchfor new employment during the 12-month period following the Termination Date,such costs not to exceed $10,000 in the aggregate. To be eligible forreimbursement, such costs must be actually incurred by Executive and
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   directly related to the termination of Executive’s employment with theCompany. Executive shall submit verification of expenses to the Companywithin 60 days of the date the expense was incurred, and the Company shallreimburse eligible expenses promptly thereafter, and in any event no laterthan the last day of the second calendar year after the calendar year inwhich the Termination Date occurs. The Company and Executive intend thereimbursement of such costs to be excluded from deferred compensationpursuant to Treas. Reg. § 1.409A-1(b)(9)(v)(A).  (iv) Insurance Coverage Continuation. The Company willprovide continuation of medical plan coverage and life insurance coverage atthe same level and in the same manner as that provided to Executive as of theTermination Date, beginning on the Termination Date and continuing for 18months, provided that any benefit continuation under this section 3(a)(iv)shall be concurrent with any coverage under the Company’s plans pursuant toCOBRA or similar laws, and continuation of medical plan coverage under thissection 3(a)(iv) shall end when Executive is no longer entitled to COBRAcontinuation coverage for any reason. Any dependent medical plan coverage ineffect for the Executive on the Termination Date will also be continued forsuch period on the same terms. Any costs Executive was paying for suchcoverages, if any, as of the Termination Date shall continue to be paid byExecutive. If the terms of any benefit plan referred to in this section do notpermit continued participation by Executive, then the Company will arrange forother insured coverage providing substantially similar benefits at the samecontribution level, if any, of Executive, and Executive will cooperate with theCompany to obtain the most favorable rate for comparable coverage to Executive.The Company and Executive intend the continuation of coverage under thisSection 3(a)(iv) to be excluded from deferred compensation under Treas. Reg.§ 1.409A-1(a)(5) and/or Treas. Reg. § 1.409A-1(b(9)(v)(B), as applicable. b) If Executive’s employment with the Company is terminated by reason of: (i) Executive’s abandonment of Executive’s employment orExecutive’s resignation for any reason other than Good Reason;  (ii) termination of Executive’s employment by the Company for Cause; or  (iii) Executive’s Disability or death,   then the Company shall pay to Executive or Executive’s beneficiary or Executive’sestate, as the case may be, Executive’s Base Salary through the Termination Date.
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 c) If Executive’s employment with the Company (or successor) is terminated by theCompany during the Change of Control Period for any reason other than Cause, death orDisability, or by Executive during the Change of Control Period for Good Reason suchthat the Termination Date occurs within two years of the first occurrence of thecondition giving rise to Good Reason, then Executive will receive, subject to theconditions of Section 3(e) below: (i) the same benefits as set forth in Section 3(a) above, payablein the same manner, at the same time and subject to the same conditions as ifsuch payments were being made pursuant to Section 3(a); and  (ii) an additional amount equal to one-fourth of Executive’s TargetSalary. Such additional amount shall be paid to Executive in equalinstallments in accordance with the Company’s regular payroll schedule,commencing on the first regular payroll date of the Company that occursfollowing completion of all the payments that are being made as if underSection 3(a)(ii), and continuing for 3 months thereafter. The Company andExecutive intend the payments under this Section 3(c)(ii) to be deferredcompensation payable in compliance with the requirements of Section 409A of theCode. d) In the event of termination of Executive’s employment, the sole obligation ofthe Company hereunder shall be its obligation to make the payments called for bySections 3(a), 3(b) or 3(c) hereof, as the case may be, and the Company shall have noother obligation to Executive or to Executive’s beneficiary or Executive’s estate,except as otherwise provided by law, under the terms of any subsequent writtenagreement between Executive and the Company, and under the terms of any employeebenefit plans or programs then maintained by the Company in which Executiveparticipates.  e) Notwithstanding the foregoing provisions of this Section 3, the Company shallnot be obligated to make any payments to Executive under Sections 3(a) or 3(c) aboveunless: (i) upon termination of employment Executive signs a global release of claimsagainst the Company and its affiliates, divisions, directors, officers, employees,agents and assigns (other than rights Executive may have to indemnification from theCompany arising out of the performance of his or her duties as an employee or officer),such release to be prepared by the Company in its sole discretion; (ii) all applicablerescission periods provided by law for releases of claims have expired and Executivehas not rescinded the release of claims; and (iii) Executive is in strict compliancewith the terms of Section 4 hereof, as of the date of such payments. In no event shallExecutive be entitled to payments under both Sections 3(a) and 3(c).4. **Covenants.**[In consideration of this Agreement and such other consideration as is set forth inthe Prior Agreement, Executive affirms that the terms and conditions of Section 4 of the PriorAgreement shall remain in full force and effect as restated and clarified below:]
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 a) Introduction. The parties acknowledge that the provisions and covenantscontained in this Section 4 are material to this Agreement and that the limitationscontained in this Agreement are reasonable in geographic and temporal scope and do notimpose a greater restriction or restraint than is necessary to protect the goodwill andother legitimate business interests of the Company. The parties also acknowledge andagree that the provisions of this Section 4 do not adversely affect Executive’s abilityto earn a living in any capacity that does not violate the covenants contained herein.Executive acknowledges that the Company’s grant of any and all “Performance Awards”under the 2004 Long-Term Incentive Plan were made in reliance on and in exchange for,Executive’s obligations under these provisions.  b) Confidential Information. Except as permitted by the Company, duringthe term of Executive’s employment with the Company and at all times thereafter,Executive shall not divulge, furnish or make accessible to anyone or use in any wayother than in the ordinary course of the business of the Company, any confidential,proprietary or secret knowledge or information of the Company, whether developed byExecutive or others, including but not limited to (i) Company trade secrets, (ii)confidential and proprietary plans, developments, research, processes, designs, methodsor material (whether or not patented or patentable), (iii) customer and supplier lists,(iv) strategic or other business, marketing or sales plans, and (v) financial data andplans. Executive acknowledges that the above-described knowledge and informationconstitutes a unique and valuable asset of the Company and represents a substantialinvestment of time and expense by the Company, and that any disclosure or other use ofsuch knowledge or information other than for the sole benefit of the Company would bewrongful and would cause irreparable harm to the Company. During the term ofExecutive’s employment with the Company, Executive shall refrain from any intentionalacts or omissions that would reduce the value of such knowledge or information to theCompany. The foregoing obligations of confidentiality shall not apply to any knowledgeor information that (i) is now or subsequently becomes generally publicly known forreasons other than Executive’s violation of this Agreement, (ii) is independently madeavailable to Executive in good faith by a third party who has not violated aconfidential relationship with the Company, or (iii) is required to be disclosed bylegal process, other than as a direct or indirect result of the breach of thisAgreement by Executive.  c) Ventures. If, during Executive’s employment with the Company, Executiveis engaged in or associated with the planning or implementing of any project, programor venture involving the Company, all rights in such project, program or venture shallbelong to the Company. Except as approved in writing by the Board and as otherwise setforth in this Agreement, Executive shall not be entitled to any interest in any suchproject, program or venture or to any commission, finder’s fee or other compensation inconnection therewith. Executive shall have no interest, direct or indirect, in anycustomer or supplier that conducts business with the
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   Company, provided that a passive investment of less than 2.5% of the outstandingshares of capital stock of any customer or supplier listed on a national securitiesexchange or publicly traded in the over-the-counter market shall not constitute abreach of this sentence.  d) Agreement Not to Compete. During Executive’s employment with theCompany and for a period of eighteen (18) consecutive months from the Termination Date,regardless of the reason for such termination and regardless of whether the terminationis initiated by the Company or Executive, 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 ofthis section 4(d), “Company Business” means (i) the design, development, management ormarketing of health and fitness clubs, and/or health and fitness club memberships andservices, and/or nutritional supplements, (ii) the publication of any health andfitness publications and/or (iii) the sale, design or promotion of and any otherproduct or service that grows into a core or primary business for the Company (or isunder development and is projected to grow into a core or primary business for theCompany) as of the Termination Date. “Territory” means any of the United States or inany other country in which the Company is then doing Company Business as of theTermination Date. Ownership by Executive, as a passive investment, of less than 2.5% ofthe outstanding shares of capital stock of any corporation listed on a nationalsecurities exchange or publicly traded in the over-the-counter market shall notconstitute a breach of this Section 4(d). Notwithstanding the foregoing, if Executive’stermination is in connection with a Change of Control, Executive agrees, for a periodof time of twenty-four (24) months from the Termination Date, not, directly orindirectly, to engage in any manner or capacity (including without limitation as aproprietor, principal, agent, partner, officer, director, employee, member of anyassociation, consultant or otherwise) in any “Company Business” in the “Territory.”  e) Agreement Not to Hire. During Executive’s employment with the Companyand for a period of twelve (12) consecutive months from the Termination Date,regardless of the reason for such termination and regardless of whether the terminationis initiated by the Company or Executive, Executive shall not, directly or indirectly,hire, engage or solicit any person who is then an employee of the Company or who was anemployee of the Company as of the Termination Date, 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.  f) Agreement Not to Solicit. During Executive’s employment with theCompany and for a period of twelve (12) consecutive months from the Termination Date,regardless of the reason for such termination and regardless of whether the terminationis initiated by the Company or Executive, Executive shall not, directly
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  or indirectly, solicit, request, advise or induce any current or potential customer,supplier or other business contact of the Company to cancel, curtail or otherwisechange its relationship with the Company, in any manner or capacity, includingwithout limitation as a proprietor, principal, agent, partner, officer, director,stockholder, employee, member of any association, consultant or otherwise.  g) Blue Pencil Doctrine. If the duration of, the scope of or any businessactivity covered by any provision of this Section 4 is in excess of what is valid andenforceable under applicable law, such provision shall be construed to cover only thatduration, scope or activity that is valid and enforceable. Executive herebyacknowledges that this Section 4 shall be given the construction that renders itsprovisions valid and enforceable to the maximum extent, not exceeding its expressterms, possible under applicable law.5. **Copyrights and Related Matters.** a) Copyrightable Material. All right, title and interest in allcopyrightable material that Executive shall conceive or originate individually orjointly or commonly with others, and that arise during the term of Executive’semployment with the Company and out of the performance of Executive’s duties andresponsibilities under this Agreement, shall be the property of the Company and arehereby assigned by Executive to the Company, along with ownership of any and allcopyrights in the copyrightable material. Upon request and without further compensationtherefore, but at no expense to Executive, Executive shall execute any and all papersand perform all other acts necessary to assist the Company to obtain and registercopyrights on such materials in any and all countries. Where applicable, works ofauthorship created by Executive for the Company in performing Executive’s duties andresponsibilities hereunder shall be considered “works made for hire,” as defined in theU.S. Copyright Act.  b) Trade Secrets. All trade secret information conceived or originated byExecutive that arises during the term of Executive’s employment with the Company andout of the performance of Executive’s duties and responsibilities hereunder or anyrelated material or information shall be the property of the Company, and all rightstherein are hereby assigned by Executive to the Company.6. **Return of Records and Property.**On or within fifteen days of the Termination Date, Executiveshall promptly deliver to the Company any and all Company records and any and all Companyproperty in Executive’s possession or under Executive’s control, and all copies thereof,including without limitation manuals, books, blank forms, documents, letters, memoranda,notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data,tables or calculations, keys, access cards, access codes, passwords, credit cards, personalcomputers, telephones and other electronic equipment belonging to the Company.
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7. **Remedies.**Executive acknowledges that the provisions of Sections 4 are reasonable andnecessary to protect the legitimate interests of the Company, and that any violation of thoseprovisions by Executive would cause substantial and irreparable harm to the Company to such anextent that monetary damages alone would be an inadequate remedy therefore. Therefore, in theevent of any actual or threatened breach of any such provisions, the Company shall, inaddition to any other remedies it may have, be entitled to seek injunctive and other equitablerelief to enforce such provisions and to restrain Executive from violating or continuing toviolate such provisions, and such relief may be granted without the necessity of provingactual monetary damages. The preceding sentence shall not be construed to prevent Executivefrom disputing the factual basis of any remedies or defenses asserted by the Company.8. **Indemnification.**The Company agrees to defend and indemnify Executive to the fullest extentpermitted by applicable law, for all civil damages, penalties, or fines claimed or leviedagainst Executive in connection with any third-party claim, action, suit or proceeding thatarises from Executive’s acts, errors, or omissions (other than Executive’s intentionalmisconduct, willful neglect of duties, or bad faith) in the performance of Executive’s dutiesas an officer or executive of the Company or any affiliate or subsidiary thereof.9. **Non-Disparagement.**Executive will not malign, defame or disparage the reputation,character, image, products or services of the Company, or the reputation or character of theCompany’s directors, officers, employees or agents, provided that nothing in this Section 9shall be construed to limit or restrict Executive from taking any action that Executive ingood faith reasonably believes is necessary to fulfill Executive’s fiduciary obligations tothe Company, or from providing truthful information in connection with any legal proceeding,government investigation or other legal matter.10. **Miscellaneous.** a) Governing Law. All matters relating to the interpretation,construction, application, validity and enforcement of this Agreement shall be governedby the laws of the State of Minnesota without giving effect to any choice or conflictof 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 ofMinnesota.  b) Jurisdiction and Venue. Executive and the Company consent tojurisdiction of the courts of the State of Minnesota and/or the United States DistrictCourt, 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 involvingclaims of a breach of this Agreement shall be brought in such courts. Each partyconsents to personal jurisdiction over such party in the aforementioned courts andhereby waives any defense of lack of personal jurisdiction. Venue, for the purpose ofall such suits, shall be in Hennepin County, State of Minnesota.
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 c) Entire Agreement. This Agreement contains the entire agreement of theparties relating to the subject matter of this Agreement and supersedes all prioragreements and understandings with respect to the subject matter hereof[, includingwithout limitation the Prior Agreement, except that Section 4 of the Prior Agreementremains in full force and effect as restated and clarified herein]. The parties havemade no agreements, representations or warranties relating to the subject matter ofthis Agreement that are not set forth herein.  d) No Violation of Other Agreements. Executive hereby represents andaffirms that neither Executive’s entering into and undertaking of obligations underthis Agreement nor Executive’s employment with the Company 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 bedeemed effective unless made in writing and signed by the parties hereto.  f) No Waiver. No term or condition of this Agreement shall be deemed tohave been waived, except by a statement in writing signed by the party against whomenforcement of the waiver is sought. Any written waiver shall not be deemed acontinuing waiver unless specifically stated, shall operate only as to the specificterm or condition waived and shall not constitute a waiver of such term or conditionfor the future or as to any act other than that specifically waived.  g) Assignment. This Agreement shall not be assignable, in whole or inparty, by either party without the written consent of the other party, except that theCompany may, without the consent of Executive, assign all, but not less than all, ofits rights and obligations under this Agreement to any corporation or other businessentity (i) with which the Company may merge or consolidate, (ii) to which the Companymay 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 orindirectly, by the Company. After any such assignment by the Company, the Company shallbe discharged from all further liability hereunder and such assignee shall thereafterbe deemed to be the “Company” for purposes of all terms and conditions of thisAgreement, including this Section 10.  h) Counterparts. This Agreement may be executed in any number ofcounterparts and by facsimile, such counterparts executed and delivered, each as anoriginal, shall constitute but one and the same instrument.  i) Severability. Subject to Section 4(g) hereof, to the extent that anyportion of any provision of this Agreement shall be invalid or unenforceable, it shallbe considered deleted herefrom and the remainder of such provision and of thisAgreement 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 thisAgreement are for convenience or reference only and shall not affect the constructionor interpretation of this Agreement or any of the provisions hereof.  k) Legal Expenses. The prevailing party shall be entitled to recover alllegal fees and expenses which such party may reasonably incur as a result of any legalproceeding relating to the validity, enforceability, or breach of, or liability under,any provision of this Agreement or any guarantee of performance (including as a resultof any contest by Executive about the amount of any payment pursuant to Section 3 ofthis Agreement). Any recovery of fees and expenses by Executive pursuant to thisSection 10(k) shall be paid no later than the date that is 21/2 months after the end ofthe calendar year in which there occurs a final determination that Executive is theprevailing party.  l) Notices. Any notice hereunder shall be in writing and shall be deemedto have been duly given if delivered by hand, sent by reliable next-day courier, orsent by registered or certified mail, return receipt requested, postage prepaid, to theparty to receive such notice addressed as follows:    If to the Company:Life Time Fitness, Inc.