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(b) This Agreement may also be terminated by MusclePharm, upon five day’s prior written notice, if death, disability, physical injury, or other incapacity causes Endorser to be unable to perform a material amount of the personal or consulting services described in this Agreement. Upon termination by MusclePharm because of death, disability, physical injury, or other incapacity, the rights to use Endorser’s Name and Appearance will immediately be revoked with no “use-up period” unless agreed to in a separate written agreement executed by MusclePharm and either the Endorser or the Endorser’s heirs. If Endorser has performed all services required by this Agreement, MusclePharm will be obligated to compensate Endorser or Endorser’s heirs with the full compensation amount of this Agreement.
(c) Upon any termination of this Agreement, for any reason, MusclePharm shall not be liable to pay any compensation for services performed after the termination and Endorser shall not be obligated to perform any services after the date of a termination notice. If Endorser has performed all services required by this Agreement, then upon termination, MusclePharm shall pay the full compensation amount of this Agreement.
9. Expenses: MusclePharm shall pay first-class travel and lodging expenses for Endorser and one (1) guest. Endorser shall be reimbursed for additional expenses that are necessarily incurred in connection with services requested by MusclePharm. MusclePharm’s obligation to reimburse Endorser pursuant to this paragraph shall be subject to the presentation of an itemized account of such expenditures, together with supporting receipts or invoices, for any expenditure in excess of $50.00. In order to obtain reimbursement for any expense in excess of $500.00, Endorser shall obtain MusclePharm’s prior written approval before incurring the expense, notwithstanding any other provision in this paragraph.
10. Independent Contractor: It is expressly agreed that Endorser is acting as an independent contractor in performing his services hereunder. MusclePharm shall carry no worker's compensation insurance or any health, accident or disability insurance to cover Endorser. MusclePharm shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, nor provide any other contributions or benefits that might be expected in an employer-employee relationship. Endorser shall be solely responsible and liable for reporting and paying all federal and state income or other taxes applicable to the Endorser’s compensation under this Agreement, and MusclePharm will provide Endorser with an IRS Form 1099 at the end of each calendar year in which compensation is paid to Endorser. It is further understood and expressly agreed by Endorser that he has no right or authority to incur expenses, obligations or liabilities in the name of or binding on MusclePharm, and he shall not represent to third parties that he has any relationship (e.g., employer-employee or principal-agent) with MusclePharm other than the independent contractor arrangement set forth in this Agreement.
11. Indemnification: Each party agrees to indemnify and hold the other harmless from and against any and all demands, claims or actions for loss, damage, or liability, including but not limited to loss of use of property, personal injury, illness or death, suffered by any person where such loss, damage, liability, injury, illness or death is proximately caused by negligence of one party or the other, or by a material breach or default under this Agreement. In the event the parties’ acts or omissions jointly cause loss, damage or liability, the parties shall be comparatively responsible for any such loss, damage or liability in proportion to their comparative liability for the claimant’s loss or injury. Furthermore, MusclePharm agrees to indemnify Mike Vick against any and all claims made by consumers and users of its products.
12. Non-Competition: During the term of this Agreement, or any extensions of this Agreement, the Endorser shall not use, advertise, promote or endorse the supplements or products of any company other than MusclePharm, either directly or indirectly:
(a) Endorser shall not advise, assist, perform services for, consult with or participate, as an endorser, agent, representative, director, officer, employee, member, or partner with any person or entity engaged in a business that competes directly or indirectly with the business of MusclePharm unless required or incidental to Endorser’s employment in the NFL.
(b) Endorser shall not use or provide endorsements or testimonials for products that compete with MusclePharm Products.
Any failure of Endorser to disclose such conflicting interests, or any breach of this paragraph, shall be deemed a material breach of the Agreement. Endorser’s duty not to compete with the business of MusclePharm shall continue for a period of six months following the expiration or termination of this Agreement. Endorser’s non-competition obligation shall not be required in the event of a material breach of this Agreement by MusclePharm.
13. Conduct: This Agreement is for Endorser's personal services and at all times Endorser shall conduct himself with due respect for social conventions and decency, and Endorser shall not engage willfully in any act or conduct or willfully become involved in situations or occurrences which in MusclePharm’s sole judgment reflect unfavorably upon Endorser, or MusclePharm, its business or its Products, or which result in Endorser being convicted of a crime or otherwise coming into public disrepute. Endorser shall exercise self-conduct in such a manner so as to enhance the image and reputation of MusclePharm and its Products. MusclePharm shall have the right to terminate this Agreement immediately if Endorser engages in any act or conduct described in this paragraph.
14. Assignment: This Agreement is for the personal services of the Endorser and is entered into in reliance upon and in consideration of the reputation and celebrity of Endorser. Endorser shall therefore not voluntarily or by operation of law assign or otherwise transfer the obligations incurred on his part pursuant to the terms of this Agreement without the prior written consent of MusclePharm. Any attempted assignment or transfer by Endorser of his obligations without such consent shall be void.
15. Modification of Agreement: The parties may modify this Agreement hereto only by a written supplemental agreement executed by both parties.
16. Notice: Any notice required or permitted to be given hereunder shall be sufficient if given in writing, and sent by registered or certified mail, postage prepaid, or by courier such as FedEx, addressed as follows:
If to MusclePharm:
If to the Endorser:
MusclePharm
Attn: Brad Pyatt; CEO
4721 Ironton Street
Denver, CO 80237
With a copy to:
MusclePharm
Attn: Mark Campanini
General Counsel
401 N. Tryon St.; 10th Floor
Charlotte, NC 28202
Michael Vick
c/o Damien Butler
G³ Sports Marketing & Representation, LLC
1717 Dowling Drive
Irving, TX 75038
or to such other address as the parties hereto may specify, in writing, from time to time. Written notice given as provided in this paragraph shall be deemed received by the other party two business days after the date the mail is stamped registered or certified and deposited in the mail, or deposited with courier.
17. Governing Law: This Agreement has been executed and delivered in Denver County in the State of Colorado, and its interpretation, validity and performance shall be construed and enforced in accordance with the laws of the State of Colorado. Venue for any proceeding to interpret, construe or enforce this Agreement shall be Denver County, Colorado, whether such proceeding is in a court of competent jurisdiction or pursuant to mediation or arbitration proceedings.
18. Dispute Resolution: Any controversy, dispute or question arising under this Agreement shall be determined, if possible, by good faith mediation, arbitration or comparable alternative dispute resolution proceedings agreed to by the parties. In the event the parties cannot agree upon alternative dispute resolution procedures to resolve their disagreements, then either party may resort to litigation in a court of competent jurisdiction in Denver County, Colorado. In connection with any alternative dispute resolution proceedings, including mediation or arbitration, the parties shall share equally the cost and expense of the alternative dispute resolution proceeding, and each party shall be responsible for its own attorneys’ fees. In the event either party resorts to litigation, the provisions of Colorado law will govern the award of attorneys’ fees as a remedy.
19. Binding Effect: This Agreement when signed by the parties shall be binding upon the parties, and their respective heirs, successors or legal representatives.
20. Payments: All cash payments shall be made via wire transfer to the endorser to an account provided by endorser or his representative.
21. Trademarks: Nothing contained in this agreement shall be construed to convey to MusclePharm any right to use the trademarks, logos, team identifications, uniforms, or uniform numbers (“Marks”) of any professional, collegiate, or amateur football association and/or league (including any member clubs or teams of such association and/or league) including, but not limited to the NFL, any NFL Team, the NCAA, or any NCAA Team in conjunction with the services provided in this agreement. MusclePharm must acquire all rights to the use of such Marks from the appropriate rights holder.
22. Insurance: MusclePharm shall be responsible to provide for any appearance satisfactory evidence of self insurance or a certificate of insurance evidencing Commercial General Liability insurance in either case with coverage limits not less than $1,000,000 each occurrence. Such insurance shall be endorsed to name Endorser as Additional Insured with respect to claims arising out of Appearances.
23. Entire Agreement: This Agreement contains the entire contract of the parties with respect to the subject matter hereof and supersedes all agreements and understandings between the parties concerning the subject matter hereof. The language in all parts of this Agreement shall in every case be construed simply according to its fair meaning.
