contact cont.
(e) During the term of this Agreement, Endorser shall participate in three (3) personal appearances (“Appearances”) or photo/video sessions (“Production Days”) per Contract Year. Appearances may be up to four (4) hours in length not including travel time to and from the appearance, as scheduled by MusclePharm, for the purpose or promoting MusclePharm and it’s Products. Production Days shall be for the purpose of MusclePharm obtaining a sufficient number of acceptable photographs and/or video footage of Endorser for the editorial and commercial uses intended by MusclePharm pursuant to this Agreement. Production days may be up to eight (8) hours in duration.
(f) Endorser may make additional personal appearances, at the request of MusclePharm, but the parties agree that Endorser shall have no specific duty or obligation to make more appearances, and that doing so will be a gesture of goodwill on the part of Endorser with compensation, if any, to be determined prior to Endorser making the additional appearances. None of Endorser’s appearances for MusclePharm, pursuant to this Agreement, shall be at events promoted as autograph or sports card shows.
(g) Endorser expressly represents and warrants that he is not subject to any restriction or limitation by way of employment or contractual obligation that may impair or limit his performance of the advertising and promotional activities described above, and that Endorser has the express approval of his present employer to make the promises and commitments set forth herein, and will advise any future employer of his obligations hereunder.
5. Scheduling: The Production Days, the interview of Endorser by MusclePharm, personal appearances, and all advertising and promotional activities requested by MusclePharm shall be scheduled by mutual agreement and with due consideration for Endorser’s other business activities and commitments occurring during the term of this Agreement. To the greatest extent practicable, Endorser’s commitments pursuant to this Agreement shall be scheduled during the off-season for professional football. Endorser agrees that he will in good faith make every reasonable effort, given his other commitments, to give priority to the fulfillment of his obligations pursuant to this Agreement. The parties shall confer periodically for the purpose of coordinating and scheduling Endorser’s advertising and promotional activities and services.
6. Right of Publicity: As provided below, Endorser expressly, exclusively and irrevocably grants to MusclePharm the right to use Endorser’s name, photograph, picture, appearance, or likeness, including video and other recordings of Endorser’s appearance, along with the right to use Endorser’s voice, including audio or other recordings of Endorser’s voice, Endorser’s signature, personal or professional background and experience, reputation, quotations and endorsements, or paraphrases of Endorser’s quotations and endorsements, or any other personal identification or identifying characteristics, however obtained, including touch-ups, simulations or compositions of any of the above whether generated by computer or by any other means, for the period of time and for the purposes set forth in this Agreement. Collectively, Endorser’s personal identifying characteristics, set forth in this paragraph, will be referred to as Endorser’s “Name and Appearance” and the rights Endorser grants to MusclePharm to use Endorser’s Name and Appearance will be referred to as the “Right of Publicity” or the “Rights to Publicize.”
(a) During the term of this Agreement, Endorser grants to MusclePharm and consents to MusclePharm’s unlimited commercial use of Endorser’s Name and Appearance, and the Rights to Publicize Endorser’s Name and Appearance, in MusclePharm’s sole discretion, to advertise, promote, endorse and publicize Products, and MusclePharm’s business, worldwide in any media selected by MusclePharm, including but not limited to print, radio, television, electronic, telephone, wireless or internet.
(b) Endorser also irrevocably grants to MusclePharm and consents to MusclePharm‘s unlimited editorial use of Endorser’s Name and Appearance in Company published materials. For purposes of this Agreement, MusclePharm’s editorial use of Endorser’s Name and Appearance shall mean a use that does not directly promote, advertise or endorse MusclePharm’s business or its Products.
(c) MusclePharm may in its sole discretion exercise some or all of the rights granted by Endorser in this Agreement, but MusclePharm shall have no obligation to exercise or use the rights Endorser has granted. If MusclePharm elects to not exercise or use all the rights granted by Endorser, MusclePharm’ election shall not be interpreted or construed as a waiver or release of such rights. MusclePharm shall have the rights to use Endorser’s Name and Appearance and the Right to Publicize Endorser’s Name and Appearance, as provided in this Agreement, unless Endorser and MusclePharm enter into a separate written agreement in which MusclePharm waives or releases some or all of the rights Endorser has granted in this Agreement.
(d) Endorser expressly represents and warrants that he is not subject to any restriction or limitation by way of employment or contractual obligation that may impair or limit the right of publicity granted herein by Endorser, and that Endorser has the express approval of his employer to make the promises and commitments set forth herein.
7. Compensation: As compensation for the endorsements and testimonials given by Endorser, and for his advertising and promotional activities, and for the right to publicize Endorser’s Name and Appearance, MusclePharm shall compensate Endorser as follows:
(a) Cash: During the term of this Agreement, MusclePharm shall pay Endorser $200,000 per Contract Year (for a total of $400,000 during the two year term). Payments shall be made in installments as follows:
$50,000 payable on each of the following dates:
First photo shoot (currently scheduled on or about July 20, 2011)
September 15, 2011
January 1, 2012
April 1, 2012
July 1, 2012
September 15, 2012
January 1, 2013
April 1, 2013
(b) Stock: During each Contract Year of this Agreement, MusclePharm shall issue Endorser $100,000 in MusclePharm restricted stock (“Stock”), for services performed. Stock will be valued based on the average closing price for the twenty (20) trading days prior to the date of issuance. Stock shall be issued in compliance with all SEC rules and regulations.
(c) Bonus Compensation: Endorser shall be paid performance bonus compensation as follows:
§
Endorser is selected for and plays in the Pro Bowl: $25,000 cash and $50,000 in Stock.
§
Endorser’s NFL team makes the playoffs: $25,000 cash and $50,000 in Stock.
§
Endorser wins the NFL Most Valuable Player Award: $50,000 cash
§
Endorser’s NFL team plays in the Super Bowl: $50,000 cash
(d) MusclePharm also shall provide a reasonable supply of Products and apparel for Endorser’s personal use and endorsement as contemplated by this Agreement.
8. Termination: This Agreement may be terminated by either party at any time upon mutual agreement in writing; or upon a material breach or default of this Agreement; or upon the death, disability or incapacity of Endorser:
(a) In the event either party desires to terminate this Agreement because of a material breach or default by the other party, the party seeking to terminate shall give written notice of intent to terminate to the other party, and in such notice shall set forth in reasonable detail the facts, circumstances or events causing the alleged breach or default (“Events of Default”). The party in default shall have thirty (30) days notice in which to cure the Events of Default to the reasonable and objective satisfaction of the terminating party. If the party in default fails, refuses or is unable for any reason to cure the Events of Default to the reasonable and objective satisfaction of the terminating party, then the terminating party may terminate this Agreement by giving a written termination notice which shall be effective on third calendar day after the date of the termination notice.
