UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: July 28, 2014
(Date of earliest event reported)
MusclePharm Corporation
(Exact name of registrant as specified in
its charter)
| NEVADA |
|
000-53166 |
|
77-0664193 |
| (State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
4721 Ironton Street, Building A
Denver, Colorado 80239
(Address of principal executive offices)
(Zip Code)
(303) 396-6100
(Registrant’s telephone number, including
area code)
N/A
(Former name or former address, if changed
since last report)
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
(see General Instruction A.2. below):
¨
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-14(c)).
| Item 1.01. | Entry into a Material Definitive Agreement. |
On July 28, 2014, MusclePharm Corporation,
a Nevada corporation (the “Company”), entered into employment agreements with certain of its executive officers including
Donald Prosser (“Prosser”) and James Greenwell (“Greenwell”), as well as entered into amendments to the
employment contracts of certain of its executive officers including Brad Pyatt (“Pyatt”) and Richard Estalella (“Estalella”).
Pursuant to Prosser’s employment
contract (the “Prosser Agreement”), Prosser shall serve as the Company’s Chief Financial Officer until December
31, 2015 (the “Prosser Term”) during which time Prosser shall report to the Company’s President. In consideration
of Prosser’s performance of his duties during the Prosser Term, Prosser is to receive an initial base salary of $275,000
per year (“Prosser Base Salary”), with any increases to such Prosser Base Salary during the Prosser Term to be determined
at the discretion of the Company and the Compensation Committee (the “Committee”) of the Company’s Board of Directors
(the “Board”). Prosser is also eligible to receive an annual performance bonus based on certain goals and performance
levels established by the Company and the Committee, in an amount not to exceed $225,000 per year. Prosser is also entitled to
receive, at the discretion and review of the Committee, shares of the Company’s common stock in the amounts and pursuant
to the terms as established by the Committee.
Pursuant to Greenwell’s employment
contract (the “Greenwell Agreement”), Greenwell shall serve as the Company’s Chief Operating Officer until December
31, 2016 (the “Greenwell Term”) during which time Greenwell shall report to the Company’s President. In consideration
of Greenwell’s performance of his duties during the Greenwell Term, Greenwell is to receive an initial base salary of $275,000
per year (“Greenwell Base Salary”), with any increases to such Greenwell Base Salary during the Greenwell Term to be
determined at the discretion of the Company and the Committee. Greenwell is also eligible to receive an annual performance bonus
based on certain goals and performance levels established by the Company and the Committee, in an amount not to exceed $300,000
per year. Greenwell is also entitled to receive, at the discretion and review of the Committee, shares of the Company’s common
stock in the amounts and pursuant to the terms as established by the Committee.
Pyatt’s employment contract was
amended to extend the term of such agreement to December 31, 2018.
Estalella’s employment contract
was amended as follows:
| · | Estalella’s title and responsibilities were amended to reflect
his current role as the Company’s President; |
| · | The term of such contract was extended to December 31, 2018; |
| · | Base Salary was increased to $300,000 per year and bonus eligibility
was increased to $325,000 per year; and |
| · | Certain severance and termination provisions were amended. |
The above description of the Prosser
Agreement and the Greenwell Agreement does not purport to be complete and is qualified in its entirety by the full text of such
documents, which are attached hereto as Exhibit 10.1 and 10.2, respectively.
| Item 9.01. | Financial
Statements and Exhibits. |
| (d) | The
following are filed as exhibits to this report on Form 8-K. |
| Exhibit No. |
|
Description |
| 10.1 |
|
Employment Agreement, dated July 28, 2014, between MusclePharm Corporation and Donald Prosser. |
| 10.2 |
|
Employment Agreement, dated July 28, 2014, between MusclePharm Corporation and James Greenwell. |
| 10.3 |
|
Amended Employment Agreement, dated July 28, 2014, between MusclePharm Corporation and Brad Pyatt. |
| 10.4 |
|
Amended Employment Agreement, dated July 28, 2014, between MusclePharm Corporation and Richard Estalella. |
SIGNATURES
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.
| |
MUSCLEPHARM CORPORATION |
| |
|
|
| Dated: August 1, 2014 |
|
|
| |
By: |
/s/ Brad J. Pyatt |
| |
Name: |
Brad J. Pyatt |
| |
Title: |
Chief Executive Officer and President |
Exhibit 10.1
EXECUTIVE
EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of July 28, 2014 (the "Effective
Date"), by and between MusclePharm Corporation, a Nevada Corporation (the "Company"),
and Donald Prosser, an individual
("Executive"). The Company and Executive are sometimes referred to herein as a "party"
or collectively as the "parties."
RECITALS
WHEREAS,
Executive is willing to continue to be employed by the Company and provide services to the Company under the terms and conditions
stated herein, as of April 16, 2014 (the “Start Date”); and
WHEREAS,
the Company and Executive now mutually desire to enter into this Agreement as approved by the Board.
NOW,
THEREFORE, in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1.1 Employment.
The Company hereby agrees to employ Executive as Chief Financial Officer of the Company and Executive hereby accepts such employment
as of the Effective Date pursuant to the terms, covenants and conditions set forth herein. Executive shall report directly to the
President ("President") of the Company.
1.2 Duties.
Executive shall have the overall responsibility as the Chief Financial Officer of the Company and its operations, and shall perform
all duties and responsibilities and have such powers which are commonly incident to the offices and positions held by him, as well
as any additional responsibilities and authority as may be from time to time assigned or delegated to him by the President and
the Board. Executive shall perform the duties assigned to him to the best of his ability and in a manner satisfactory to the Company.
1.3 Time
and Efforts. Executive will devote his full business time, efforts, attention, and energies to the business of the Company
and to the performance of Executive's duties hereunder during the Term (as defined below), and will not engage in any other business,
profession or occupation for compensation or otherwise which would conflict or interfere with the performance of such services,
either directly or indirectly, without the prior written consent of the Company; provided that, nothing herein shall preclude Executive
from (i) continuing to serve on any board of directors or trustees of any "not for
profit" organization, (ii) being involved in charitable activities, or (iii) managing his personal and family passive investments;
provided, further that, in each case, and in the aggregate, such activities shall not materially conflict with or interfere with
the performance of Executive's duties hereunder or conflict with his duty of loyalty and/or fiduciary duties owed to the Company.
Unless
earlier terminated as provided in Section 5, the Company shall employ Executive in the capacity set forth herein for a term commencing
on the Start Date and ending on December 31, 2015 (the “Expiration Date”), which can be extended, in the sole
discretion of the Company’s Chief Executive Officer, in one-year increments, such extension to be provided to the Executive
on a date no less than thirty (30) days prior to the Expiration Date. Such period, as may be terminated earlier or extended, to
be referred to herein as the "Term".
As
compensation for the services to be rendered by Executive for and on behalf of the Company hereunder, Executive shall be entitled
to the following:
3.1 Base
Salary. Executive shall receive an annual base salary of $275,000. Salary payments shall be subject to all applicable federal
and state withholding, payroll, and other taxes, and all
applicable deductions for benefits as may be required by law or Executive's authorization. Executive's Base Salary will be reviewed
at least annually by the Compensation Committee (the "Committee") of the Board and may be increased at the discretion
of the Committee.
3.2 Bonus.
In addition to Base Salary, Executive shall be eligible to receive one or more cash bonuses to be determined by the Committee in
its sole discretion based on performance criteria to be adopted by the Committee, with a potential bonus pool of $225,000 per year,
which may be adjusted at the discretion of the Committee. Any such bonus or bonuses shall be subject to all applicable federal
and state withholding, payroll and other taxes, and all applicable deductions for benefits as may be required by law, and shall
be paid to Executive no later than the 15th day of the third calendar month following the end of the fiscal year (or other performance
period) with respect to which the bonus relates.
3.3 Equity
Compensation. Executive may, as determined by the Committee in its discretion, periodically receive grants of stock options,
restricted stock or other equity-related awards from the Company's various equity compensation plans, subject to the terms and
conditions thereof. If the Company does not extend the Term of this Agreement pursuant to Section 2 during any year throughout
the duration of the Term, any outstanding but unvested stock options, restricted stock or other equity-related awards shall accelerate
and immediately vest in their entirety.
3.4 Compensation
Committee. Any bonus and any equity consideration to be provided to Executive shall be reviewed and determined by the Committee
on an annual basis to set performance criteria for purposes of compliance with the requirements of Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code").
3.5 Expenses.
The Company shall reimburse Executive for all reasonable business expenses incurred by Executive in the performance of his
duties, provided that Executive provides adequate documentation required by law and by the policies and procedures of the
Company, as adopted and amended from time to time, provided that in no event shall Executive submit any required
documentation later than sixty (60) days after the end of the calendar year in which such expense was incurred. Any such
reimbursement shall be made as soon as reasonably practicable but in no event later than the 15th day of the third month
following the calendar year in which the applicable expense was incurred. Executive acknowledges and agrees that all such
expenses will be subject to the oversight of the Audit Committee of the Board. The Company shall also provide
Executive with a laptop computer and cell phone for his business use during the Term.
3.6 Vacation.
Executive shall be entitled to accrue four (4) weeks of paid vacation each year pursuant to the terms and provisions of the Company's
vacation leave policies as in effect from time to time. Although unused vacation may be carried over from year to year, the maximum
cap on accrual shall be equal to one hundred fifty percent (150%) of the annual accrual.
3.7 Benefits. Executive
shall be entitled to participate in and receive all benefits made available by the Company to its executive officers, subject to
and on a consistent basis with the terms, conditions and overall administration of such plans and arrangements, including without
limitation, medical, dental, vision, life and disability insurance plans and coverage, and defined benefit, defined contribution
or other 401 (k) program, including all Company matching provisions.
| 4. | Confidential Information; Non-Compete; Non-Solicitation |
4.1 Confidential
Information. Executive acknowledges that, during the course of his employment, he will have access to and will receive information
which constitutes trade secrets, is of a confidential nature, is of significant value to the Company and/or is a foundation on
which the business of the Company is predicated. With respect to all such Confidential Information (as defined hereafter), Executive
agrees, during the Term and thereafter, not to disclose such Confidential Information to any person other than an employee, counsel,
or advisor of the Company or a person to whom disclosure is reasonably necessary or appropriate in connection with the performance
by Executive of his duties hereunder nor to use such Confidential Information for any purpose other than the performance of his
duties hereunder. For purposes of this Agreement, the term "Confidential Information"
includes all data or material (regardless of form) with respect to the Company or any of
its assets, prospects, business activities, officers, directors, employees, borrowers, or clients which is: (a) a trade secret,
as defined by the Uniform Trade Secrets Act; (b) provided, disclosed, or delivered to Executive by the Company, any officer, director,
employee, agent, attorney, accountant, consultant, or other person or entity employed by the Company in any capacity, any client,
borrower, advisor, or business associate of the Company, or any public authority having jurisdiction over the Company or any business
activity conducted by the Company; or (c) produced, developed, obtained or prepared by or on behalf of Executive or the Company
(whether or not such information was developed in the performance of this Agreement). Notwithstanding the foregoing, the term "Confidential
Information" shall not include any information, data, or material which, at the time of
disclosure or use, was generally available to the public other than by a breach of this Agreement, was available to the party to
whom disclosed on a non-confidential basis by disclosure or access provided by the Company or a third party without breaching any
obligations of the Company or such third party, or was otherwise developed or obtained legally and independently by the person
to whom disclosed without a breach of this Agreement. This Section 4.1 shall not preclude Executive from disclosing Confidential
Information if compelled to do so by law or valid legal process, provided that if Executive believes Executive is so compelled
by law or valid legal process, Executive will notify the Company in writing sufficiently in advance of any such disclosure to allow
the Company the opportunity to defend, limit, or otherwise protect its interests against such disclosure unless such notice is
prohibited by law. The rights and obligations of the parties under this paragraph shall survive the expiration or termination of
this Agreement for any reason.
4.2 Non-Competition.
As part of the consideration for the compensation and benefits to be paid to Executive hereunder, and in order to protect the Confidential
Information, business goodwill, and business opportunities of the Company, Executive agrees that, during the Term and for a period
of six (6) months after the termination of Executive's employment and this Agreement, he will not, directly or indirectly, engage
in or become interested financially in, as a principal, employee, partner, contractor, shareholder, agent, manager, owner, advisor,
lender, guarantor, officer, or director, any business (other than the Company) that is engaged in the nutritional supplement industry
and/or related products; provided, however, that Executive shall be entitled to continue to invest in stocks, bonds, or other securities
in any such business (without otherwise participating in such business) if: (a) such stocks, bonds, or other securities are listed
on any United States securities exchange or are publicly traded in an over the counter market; and such investment does not exceed,
in the case of any capital stock of any one issuer, five percent of the issued and outstanding capital stock, or in the case of
bonds or other securities, five percent of the aggregate principal amount thereof issued and outstanding; or (b) such investment
is completely passive and no control or influence over the management or policies of such business is exercised.
4.3 Non-Solicitation. Executive
agrees that he will not, at any time during the Term, or at any time within twelve (12) months after the termination of his employment,
for his own account or benefit or for the account or benefit of any other person, firm or entity, directly or indirectly, solicit
for employment any employee of the Company (or any person who was an employee of the Company in the 90-day period before such solicitation)
or induce any employee of the Company (or any person who was an employee of the Company in the 90-day period before such inducement)
to terminate his employment with the Company. Notwithstanding the above, the restrictions relating to persons employed in the 90-day
period referenced in the parentheticals in the immediately preceding sentence shall not apply to a person who was a party to an
employment agreement with the Company and who terminates his employment for Good Reason or is terminated by the Company without
Cause. The rights and obligations of the parties under this Section 4.3 shall survive the expiration or termination of this Agreement
for any reason.
4.4 Proprietary
Matters. Executive expressly agrees that any and all improvements, inventions, discoveries, processes, or know-how that are
generated or conceived by Executive during the Term, whether conceived during Executive's regular working hours or otherwise, will
be the sole and exclusive property of the Company. Whenever requested by the Company (either during the Term or thereafter), Executive
will assign or execute any and all applications, assignments and/or other documents, and do all things which the Company reasonably
deems necessary or appropriate, in order to permit the Company to: (a) assign and convey, or otherwise make available to the Company,
the sole and exclusive right, title, and interest in and to said improvements, inventions, discoveries, processes or know-how;
or (b) apply for, obtain, maintain, enforce and defend patents, copyrights, trade names, or trademarks of the United States or
of foreign countries for said improvements, inventions, discoveries, processes, or know-how. However, the improvements, inventions,
discoveries, processes, or know-how generated or conceived by Executive and referred to in this Section 4.4 (except those which
may be included in the patents, copyrights, or registered trade names or trademarks of the Company) will not be exclusive property
of the Company at any time after having been disclosed or revealed or have otherwise become available to the public or to a third
party on a non-confidential basis other than by a breach of this Agreement, or after they have been independently developed or
discussed without a breach of this Agreement by a third party who has no obligation to the Company. The rights and
obligations of the parties under this Section 4.4 shall survive the expiration or termination of this Agreement for any reason.
4.5 Injunctive
Relief. Executive acknowledges and agrees that any violation of Sections 4.1, 4.2, 4.3 or 4.4 of this Agreement would result
in irreparable harm to the Company and, therefore, agrees that, in the event of an actual, suspected, or threatened breach of Sections
4.1, 4.2, 4.3 or 4.4 of this Agreement, the Company shall be entitled to an injunction restraining Executive from committing or
continuing such actual, suspected or threatened breach. The parties acknowledge and agree that the right to such injunctive relief
shall be cumulative and shall not be in lieu of, or be construed as a waiver of the Company's right to pursue, any other remedies
to which it may be entitled in law or in equity. The parties agree that for purposes of Sections 4.1, 4.2, 4.3 and 4.4 of this
Agreement, the term "Company" shall include the
Company and its affiliates.
Executive's
employment by the Company and this Agreement may be terminated before the expiration of the Term, without breach of this Agreement,
in accordance with the provisions set forth below:
5.1 Termination
by the Company for Cause. The Company may terminate Executive's employment and this Agreement for Cause (as defined below),
but only after: (i) giving Executive written notice of the failure or conduct which the Company believes to constitute Cause; and
(ii) with respect to elements (a) through (e) below, providing Executive a reasonable opportunity, and in no event more than twenty
(20) days, to cure such failure or conduct, unless the Board determines in its good faith judgment that such failure or conduct
is not reasonably capable of being cured. In the event Executive does not cure the alleged failure or conduct within the time frame
provided for such cure by the Company, the Company shall send him written notice specifying the effective date of termination.
The failure by the Company to set forth in the notice referenced in this Section 5.1 any fact or circumstance which contributes
to a showing of Cause shall not waive any right of the Company to assert, or preclude the Company from asserting, such fact or
circumstance in enforcing its rights hereunder. For purposes of this Agreement, the term "Cause"
means:
(a) conviction
of a felony or a crime involving fraud or moral turpitude; or
(b) theft,
material act of dishonesty or fraud, intentional falsification of any employment or Corporation records, or commission of any criminal
act which impairs participant’s ability to perform appropriate employment duties for the Corporation; or
(c) intentional
or reckless conduct or gross negligence materially harmful to the Corporation or the successor to the Corporation after a Change
in Control , including violation of a non-competition or confidentiality agreement; or
(d) willful
failure to follow lawful instructions of the person or body to which participant reports; or
(e) gross
negligence or willful misconduct in the performance of participant’s assigned duties. Cause shall not include
mere unsatisfactory performance in the achievement of participant’s job objectives.
If
the Company terminates Executive's employment for Cause, then Executive shall be entitled to receive the payments and benefits
set forth in Section 6.1 below.
The Company
may suspend Executive with pay pending an investigation authorized by the Company or a governmental authority or a determination
whether Executive has engaged in acts or omissions constituting Cause, and such paid suspension shall not constitute Good Reason
or a termination of Executive’s employment.
| 5.2 | Termination by the Company Without Cause. |
(a) The
Company may terminate the employment of Executive and this Agreement at any time during the Term of this Agreement without
Cause by giving Executive written notice of such termination, to be effective thirty (30) days following the giving of such
written notice, in which case Executive shall receive the compensation, severance, and benefit continuation required by
Section 6.3 below; provided, however, that if Company terminates Executive's employment without Cause during the
Protection Period (as defined below), then Executive shall be entitled to receive the payments and benefits set forth in
Section 6.4 below.
(b) For
purposes of this Agreement, the term "Protection Period"
means the period of time commencing on the date of the first occurrence of a Change in
Control (as defined below in Section 5.2(c)) and continuing until the earlier of the (i) the second anniversary of the first occurrence
of the Change in Control and (ii) the Term of this Agreement; and the six (6) month period prior to such Change in Control date
if the Executive is terminated without Cause or terminates for Good Reason and in either case such termination (x) was requested
by the third party that effectuates the Change in Control, or (y) occurs in connection with or in anticipation of a Change in Control,
it being agreed that any such action taken following stockholder approval of a transaction which if consummated would constitute
a Change in Control shall be deemed to be in anticipation of a Change in Control provided such transaction is actually consummated.
(c) For
purposes of this Agreement, the term "Change in Control" means the happening of any of the following events:
i. a tender offer (or series of
related offers) shall be made and consummated for the ownership of 50% or more of the outstanding voting securities of the Company,
unless as a result of such tender offer more than 50% of the outstanding voting securities of the surviving or resulting corporation
shall be owned in the aggregate by the stockholders of the Company (as of the time immediately prior to the commencement of such
offer), any employee benefit plan of the Company or its subsidiaries, and their affiliates;
ii. the Company shall be merged or consolidated with
another corporation, unless as a result of such merger or consolidation more than 50% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the stockholders of the Company (as of the time immediately
prior to such transaction), any employee benefit plan of the Company or its subsidiaries, and their affiliates;
(iii) the Company shall sell substantially all of its
assets to another corporation that is not wholly owned by the Company, unless as a result of such sale more than 50% of such assets
shall be owned in the aggregate by the stockholders of the Company (as of the time immediately prior to such transaction), any
employee benefit plan of the Company or its subsidiaries and their affiliates; or
(iv) a person (as defined below) shall acquire 50% or
more of the outstanding voting securities of the Company (whether directly, indirectly, beneficially or of record), unless as a
result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be
owned in the aggregate by the stockholders of the Company (as of the time immediately prior to the first acquisition of such securities
by such person), any employee benefit plan of the Corporation or its subsidiaries, and their affiliates.
5.3 Termination
by the Company Due to Inability to Perform or Death. Executive's employment and this Agreement may be terminated by the Company
as follows:
(a) To
the extent permitted by law, upon thirty (30) days' notice to Executive in the event of Executive's Inability to Perform. For this
purpose, the term "Inability to Perform" means and shall be deemed to have occurred if Executive has been determined
under the Company's long term disability plan to be eligible for long-term disability benefits or, in the event the Company does
not maintain such a plan or in the absence of Executive's participation in or application for benefits under such a plan, such
term shall mean the inability of Executive, despite any reasonable accommodation required by law, due to bodily injury or disease
or any other physical or mental incapacity, to perform the services required hereunder for a period of ninety (90) consecutive
days; or
| (b) | Immediately upon the death of Executive. |
5.4 Termination
by Executive for Good Reason. Executive may terminate his employment and this Agreement at .any
time for Good Reason (as defined below). A termination of employment and this Agreement by Executive for Good Reason shall entitle
Executive to payments and other benefits as specified in Section 6.3, unless such termination occurs during the Protection Period
in which case the payments and benefits in Section 6.4 shall apply. For purposes of this Agreement, the term "Good Reason"
means, subject to the notice and cure provisions herein, any of the following actions if taken without Executive's prior written
consent: (a) the assignment to the Executive of any duties inconsistent with the position in the Corporation that Executive held
immediately prior to the assignment; (b) a Change of Control resulting in a significant adverse alteration in the status or conditions
of Executive’s participation with the Corporation or other nature of Executive’s responsibilities from those in effect
prior to such Change of Control, including any significant alteration in Holder’s responsibilities immediately prior to such
Change in Control; (c) the failure by the Company to continue to provide the Executive with benefits substantially similar to those
enjoyed by the Executive prior to such failure; or (d) any other action or inaction that constitutes a material breach by the Company
of this Agreement. To exercise the option to terminate employment for Good Reason, Executive must provide written notice to the
Company of Executive's belief that Good Reason exists within sixty (60) days of the initial existence of the Good Reason condition,
and that notice shall describe in reasonable detail the condition(s) believed to constitute Good Reason. The Company then shall
have thirty (30) days to remedy the Good Reason condition(s). If not
remedied within that 30-day period or if the Company notifies Executive that it does not intend to cure such condition(s) before
the end of that 30-day period, Executive may submit a notice of termination to the Company; provided, however, that the notice
of termination invoking Executive's option to terminate employment for Good Reason must be given no later than one hundred (100)
days after the date the Good Reason condition first arose; otherwise, Executive shall be deemed to have accepted the condition(s),
or the Company's correction of such condition(s), that may have given rise to the existence of Good Reason.
5.5 Termination
by Executive Without Good Reason. Executive may also terminate his employment and this Agreement without Good Reason by
providing at least ninety (90) days' written notice of such termination to the Company. In the event of a termination
pursuant to this Section 5.5, Executive shall be entitled to payments and other benefits as specified in Section 6.1 below.
At the Company's option, the Company may accelerate the date of Executive's termination of employment by paying to Executive
the Base Salary and value of the benefits that Executive would have received during the period by which the date of
termination is so accelerated and such acceleration shall not change the characterization of the termination by Executive as
a termination without Good Reason .
5.6 Return
of Confidential Information and Company Property. Upon termination of Executive's employment for any reason, Executive shall
immediately return all Confidential Information and other Company property to the Company.
6.1 Termination
by the Company for Cause or Termination by Executive Without Good Reason. In the event Executive's employment and this Agreement
are terminated pursuant to Sections 5.1 or 5.5 above:
(a) The
Company shall pay to Executive, or his representatives, on the date of termination of employment only that portion of the Base
Salary provided in Section 3.1 that has been accrued through the date of termination, any accrued but unpaid vacation pay provided
in Section 3.6, any accrued benefits provided in Section 3.7, and any expense reimbursements due and owing to Executive as of the
date of termination; and
(b) Executive
shall not be entitled to: (i) any other salary or compensation; (ii) any bonus pursuant to Section 3.2; (iii) any equity consideration
pursuant to Section 3.3; nor (iv) any additional benefits pursuant to Section 3.7; and
(c) Executive
shall return the laptop computer and cellular telephone within five (5) business days of the date of termination.
6.2 Termination
by the Company Due to Executive’s Inability to Perform or Death. In the event Executive's employment and this
Agreement are terminated pursuant to Section 5.3 above, the Company shall pay to Executive, or his representatives, all of
the following:
(a) The
payments, if any, referred to in Section 6.1(a) above as of the date of termination; and
(b) Subject
to compliance with Section 409A of the Code, an amount equal to the greater of (i) one hundred percent (100%) of Executive's target
bonus for the year in which the date of termination occurs or (ii) a bonus for such year as may be determined by the Committee
in its sole discretion. This amount shall be paid in the form of a lump sum, less applicable statutory deductions and withholdings,
as soon as practicable after the date of termination, but no later than March 15 of the year immediately following the year in
which the date of termination occurs; and
(c) For
a termination due to Inability to Perform only, and provided that Executive or his representative signs a Release (as defined in
Section 17), then the Company shall pay Executive a severance equal to six (6) months of Executive's Base Salary at the time of
termination. This severance amount shall be paid to Executive in equal regular installments
over the six (6) month period pursuant to the Company's regular payroll periods, less applicable statutory deductions and tax withholdings.
The first installment shall be paid to Executive on the first payroll period after the date of termination and after the effective
date of the Release; and
(d) Should
Executive or his representatives timely elect to continue coverage under a group health insurance plan sponsored by the Company
or one of its affiliates and timely make the premium payments, reimburse Executive on a monthly basis for the cost of continued
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA")
or other applicable law for Executive and any eligible dependents until the earlier of (i) the date Executive is no
longer entitled to continuation coverage under COBRA or (ii) for twelve (12) months after the date of termination.
6.3 Termination
by the Company Without Cause and Without a Change in Control or by Executive for Good Reason Without a Change in Control. In
the event Executive's employment is terminated pursuant to Sections 5.2 or 5.4 above at any time in which there has not been a
qualifying Change in Control termination, the Company shall pay Executive on the date of termination the payments referred to in
Section 6.1(a) above, and provided that Executive signs a Release (as defined in Section 17), Executive shall also receive all
of the following:
(a) A
severance package equal to the lesser of (i) nine (9) months of Executive's Base Salary at the time of termination and (ii) the
Base Salary remaining under the Term of this Agreement. This severance amount shall be paid to Executive in equal regular installments
over the three (3) month period pursuant to the Company's regular payroll periods, less applicable statutory deductions and tax
withholdings. The first installment shall be paid to Executive on the first payroll period after the date of termination and after
the effective date of the Release; and
(b) Subject
to compliance with Section 409A of the Code, an amount equal to the greater of (i) (A) if the date of termination occurs between
January 1 and June 30, then twenty-five percent (25%) of Executive's target bonus for the year in which the date of termination
occurs or (B) if the date of termination occurs between July 1 and December 31, then fifty percent (50%) of Executive's target
bonus for the year in which the date of termination occurs; and (ii) a bonus for such year as may be determined by the Committee
in its sole discretion. This amount shall be paid in the form of a lump sum, less applicable statutory deductions and withholdings,
as soon as practicable after the date of termination, but no later than March 15 of the year immediately following the year in
which the date of termination occurs;
(c) Should
Executive or his representatives timely elect to continue coverage under a group health insurance plan sponsored by the Company
or one of its affiliates and timely make the premium payments, reimburse Executive on a monthly basis for the cost of continued
coverage under the COBRA for Executive and any eligible dependents until the earlier of (i) the date Executive is no longer entitled
to continuation coverage under COBRA or (ii) for twelve (12) months after the date of termination; and
(d) Unless
otherwise provided in the equity award agreement, all stock options and other stock incentive awards held by Executive will become
fully vested and immediately exercisable and all restrictions on any restricted stock held by Executive will be removed; provided,
however, Executive shall not be released from the black-out periods for the next financial reporting quarter following
the date of termination or Securities Exchange Act of 1934, as amended (the "Exchange Act"),
trading obligations typically required for an executive in this position.
6.4 Termination
by the Company Without Cause After a Change in Control or by Executive for Good Reason After a Change in Control. In the event
Executive's employment is terminated pursuant to Sections 5.2 or 5.4 above during the Protection Period, the Company shall pay
Executive on the date of termination the payments referred to in Section 6.l (a) above, and provided that Executive signs a Release
(as defined in Section 17), Executive shall also receive all of the following:
(a) Subject
to compliance with Section 409A of the Code, a severance package equal to one year of Executive's Base Salary immediately prior
to the Change in Control. This severance amount shall be paid to Executive in equal regular installments over a 12-month period
pursuant to the Company's regular payroll periods, less applicable statutory deductions and tax withholdings. The first installment
shall be paid to Executive on the first payroll period after the date of termination and after the effective date of the Release
; and
(b) Subject
to compliance with Section 409A of the Code, an amount equal to the greater of (i) one hundred percent (100%) of Executive's target
bonus for the year in which the date of termination occurs or (ii) a bonus for such year as may be determined by the Committee
in its sole discretion. This amount shall be paid in the form of a lump sum, less applicable statutory deductions and withholdings,
as soon as practicable after the date of termination, but no later than March 15 of the year immediately following the year in
which the date of termination occurs; and
(c) A
one-time cash payment of five hundred thousand dollars ($500,000.00), less applicable statutory deductions and tax withholdings,
to be paid within thirty (30) days of the date of termination; and
(d) Should
Executive or his representatives timely elect to continue coverage under a group health insurance plan sponsored by the Company
or one of its affiliates and timely make the premium payments , reimburse
Executive on a monthly basis for the cost of continued coverage under the COBRA for Executive and any eligible dependents until
the earlier of (i) the date Executive is no longer entitled to continuation coverage under COBRA or (ii) for twelve (12) months
after the date of termination; and
(e) All
stock options and other incentive awards held by Executive will become fully vested and immediately exercisable and all restrictions
on any restricted stock held by Executive will be removed; provided, however, Executive
shall not be released from the black-out periods for the next financial quarter following the date of termination or Exchange Act,
trading obligations typically required for an executive in this position.
This
Agreement is personal in nature, and neither this Agreement
nor any part of any obligation herein shall be assignable by Executive. The Company shall be entitled to assign this Agreement
to any affiliate of the Company or any person or entity that assumes the ownership and control of the business of the Company.
This Agreement shall inure to the benefit of and shall be binding upon the parties and their successors and assigns.
Should
any term, provision, covenant or condition of this Agreement be held to be void or invalid, the same shall not affect any other
term, provision, covenant or condition of this Agreement, but such remainder shall continue in full force and effect as though
each such voided term, provision, covenant, or condition is not contained herein.
| 9. | Governing Law and Venue |
This
Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, excluding its choice-of-law
principles. Subject to Sections 4.5 and 10, and without in any way limiting the applicability of binding arbitration, each of the
parties submits to the exclusive jurisdiction of any state or federal court sitting in Denver, Colorado in any action or proceeding
arising out of or relating to this Agreement and further agrees that all claims in respect of the action or proceeding may be heard
and determined in any such court to the extent that any court proceeding is necessary in connection with Sections 4.5 and 10, and
further agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each of the
parties agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on
the judgment or in any other manner so provided by law.
Except
as provided in Section 4.5, any and all disputes which involve or relate in any way to this Agreement and/or to Executive’s
employment, Executive's termination of employment with the Company or termination of this Agreement, whether initiated by Executive
or by the Company and whether based on contract, tort, statute, or common law, shall be submitted to and resolved by final and
binding arbitration as the exclusive method for resolving all such disputes. The arbitration shall be private and confidential
and conducted in Denver, Colorado pursuant to the Federal Arbitration Act and applicable Colorado law, and pursuant to the applicable
rules of the American Arbitration Association ("AAA") relating to employment disputes, unless the parties otherwise mutually
agree to modify the AAA Rules.
The
party demanding arbitration shall submit a written claim to the other party, setting out the basis of the claim or claims, within
the time period of any applicable statute of limitations relating to such claim(s). If the parties cannot mutually agree upon an
arbitrator, then the parties shall select a neutral arbitrator through the procedures established by the AAA. The arbitrator shall
have the powers provided under the Colorado Code of Civil Procedure relating to the arbitration of disputes, except as expressly
limited or otherwise provided in this Agreement. The parties shall have the right to reasonable discovery as mutually agreed or
as determined by the arbitrator, including at least one deposition each, it being the goal of the parties to resolve any disputes
as expeditiously and economically as reasonably practicable. The parties agree to share equally in the payment of the administration
costs of the AAA arbitration, including payment of the fees for the arbitrator, and any other costs directly related to the administration
of the arbitration. The parties shall otherwise be responsible for their own respective costs and attorneys' fees relating to the
dispute, such as deposition costs, expert witnesses and similar expenses, except as otherwise provided in this Agreement to the
prevailing party.
The
arbitrator may award, if properly proven, any damages or remedy that a party could recover in a civil litigation, and shall award
costs and reasonable attorneys' fees to the prevailing party. The award of the arbitrator shall be issued in writing, setting forth
the basis for the decision, and shall be binding on the parties to the fullest extent permitted by law, subject to any limited
statutory right to appeal as provided by law. Judgment upon the award of the arbitrator may be entered in any court having proper
jurisdiction and enforced as provided by law.
This
agreement to arbitrate is freely negotiated between Executive and the Company and is mutually entered into between the parties.
Each party understands and agrees that it is giving up certain rights otherwise afforded to it by civil court actions, including
but not limited to the right to a jury trial; provided, however, that either party may seek provisional remedies in a court of
competent jurisdiction as provided pursuant to applicable law.
The
section headings herein are inserted only as a matter of convenience and reference and in no way define, limit or describe the
scope of this Agreement or the intent of any provisions hereof.
| 12. | Compliance with Section 409A of the Code |
Notwithstanding
anything herein to the contrary, (a) if at the time of Executive's termination of employment with the Company Executive is a
"specified employee" as such term is defined in Section 409A of the Code and the regulations thereunder, and the
deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of
employment is necessary in order to prevent any accelerated or additional tax under Section 409A of the Code, then the
Company will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such
payments or benefits ultimately paid or provided to Executive) until the date that is six (6) months following Executive's
termination of employment with the Company (or the earliest date as is permitted under Section 409A of the Code) and (b) if
any other payments of money or other benefits due to Executive hereunder could cause the application of an accelerated or
additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such
payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be
restructured, to the extent possible, in a manner, determined by the Board, that does not cause such an accelerated or
additional tax. In the event that payments under this Agreement are deferred pursuant to this Section 12 in order to prevent
any accelerated tax or additional tax under Section 409A of the Code, then such payments shall be paid at the time specified
under this Section 12 without any interest thereon. The Company shall consult with Executive in good faith regarding the
implementation of this Section 12; provided that neither the Company nor any of its employees or representatives shall
have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, a termination of
employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of
amounts or benefits upon or following a termination of employment unless such termination is also a "Separation from
Service" as such term is defined in Section 409A of the Code and the regulations and guidance promulgated thereunder
and, for purposes of any such provision of this Agreement, references to a "resignation," "termination,"
"termination of employment," or like terms shall mean Separation from Service. For purposes of Section 409A of the
Code, each payment made under this Agreement shall be designated as a "separate payment" within the meaning of the
Section 409A of the Code. Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or
in-kind benefit provided pursuant to this Agreement does not constitute a "deferral of compensation" within the
meaning of Section 409A of the Code: (x) the amount of expenses eligible for reimbursement or in-kind benefits provided to
Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits
provided to Executive in any other calendar year, (y) the reimbursements for expenses for which Executive is entitled to be
reimbursed shall be made on or before the last day of the calendar year following the calendar year in which the
applicable expense is incurred, and (z) the right to payment or reimbursement or in-kind benefits hereunder may not be
liquidated or exchanged for any other benefit.
This
Agreement contains the entire agreement of the parties relating to the subject matter hereof, and this Agreement supersedes and
replaces in all respects the Original Agreement. Further, the parties hereto have made no agreements, representations, or warranties
relating to the subject matter of this Agreement that are not set forth otherwise herein. In this regard, each of the parties represents
and warrants to the other party that such party is not relying on any promises or representations that do not appear in writing
herein. Each of the parties further agrees and understands that this Agreement
can be amended or modified only by a written agreement signed by all parties.
All
notices required or permitted under this Agreement shall be in writing and shall be deemed effective: (a) upon delivery, if delivered
in person; (b) upon delivery to Federal Express or other similar courier service, marked for next day delivery,
addressed as set forth below; (c) upon deposit in United States Mail if sent by registered
or certified mail, return receipt requested, addressed as set forth below; or (d) upon being sent by facsimile transmission, provided
an original is mailed the same day by registered or certified mail, return receipt requested:
| If to the Company: |
MusclePharm Corporation |
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Attn: Chief Executive Officer |
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4721 Ironton Street, Building A |
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Denver, Colorado 80239 |
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Facsimile: (800) 490-7165 |
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| If to Executive: |
Donald Prosser |
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In
the event that any party shall bring an action or proceeding in connection with the performance, breach or interpretation of this
Agreement, then the prevailing party in any such action or proceeding, as determined by the arbitrator, court, or other body having
jurisdiction, shall be entitled to recover from the losing party all reasonable costs and expenses of such action or proceeding,
including reasonable attorneys'
fees, court costs, costs of investigation, expert witness fees, and other costs reasonably related to such action or proceeding.
| 16. | Assistance with Claims |
Executive
agrees that, for the period beginning on the Start Date, and continuing for a reasonable period after the termination or expiration
of this Agreement for any reason, Executive will assist the Company in the defense of any claims that may be made against the Company
and will assist the Company in the prosecution of any claims that may be made by the Company, to the extent such claims may relate
to services performed by Executive for the Company. Executive agrees to promptly inform the Company if Executive becomes aware
of any lawsuits or potential claims that may be filed against the Company. For all assistance occurring after termination of Executive's
employment by the Company, the Company agrees to provide reasonable compensation to Executive for such assistance. Executive also
agrees to promptly inform the Company if asked to assist in any investigation of the Company (or its actions) that may relate to
services performed by Executive for the Company, regardless of whether a lawsuit has been filed against the Company with respect
to such investigation.
Executive
shall not be entitled to receive the severance pay and benefits under Sections 6.2, 6.3, and 6.4, as applicable, unless (a) Executive
executes and returns to the Company a Release (as defined below) on or before the 50th day following the date of termination or
such shorter time as may be prescribed in the Release, (b) such Release shall not have been timely revoked
by Executive, and (c) the date of termination constitutes a Separation from Service, and provided
further, however, that if Executive violates his continuing obligations under Sections 4.1 , 4.2, 4.3, or 4.4, Executive shall
not be entitled to receive such severance pay or benefits and Executive shall immediately repay to the Company upon written demand
any severance pay or benefits that already have been paid to Executive. For purposes of this Agreement, the term "Release"
means a waiver and release of claims by Executive in the form prescribed by the Company, which form may include, without limitation,
an agreement by Executive not to disparage the Company, its affiliates, and other related persons or entities, but which form shall
not include a release and waiver of claims for (i) indemnification or for coverage under officer and director liability policies,
if applicable, (ii) claims with respect to the reimbursement of business expenses or with respect to benefits which are in each
case to continue in effect after termination or expiration of this Agreement in accordance with the terms of this Agreement, (iii)
claims he may have as a holder of options to acquire equity securities of the Company (which shall be governed by the documents
by which Executive was granted such options) and (iv) claims he may have as a stockholder of the Company.
| 18. | Dodd-Frank Act and Other Applicable Legal Requirements |
Executive
agrees (i) to abide by any compensation recovery, recoupment, anti-hedging, or other policy applicable to executives of the Company
and its affiliates, as may be in effect from time to time, as approved by the Board or a duly authorized committee thereof or as
required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the "Dodd-Frank Act") or other
applicable law, and (ii) that the terms and conditions of this Agreement shall be deemed automatically amended as may be necessary
from time to time to ensure compliance by Executive and this Agreement with such policies, the Dodd-Frank Act, or other applicable
law.
This Agreement
may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute but one and the same instrument.
EXECUTIVE
HAS BEEN ADVISED THAT HE SHOULD SEEK INDEPENDENT REVIEW AND ADVICE FROM LEGAL COUNSEL AND TAX ADVISORS AS TO THE SCOPE AND POTENTIAL
TAXES WH ICH COULD ARISE FROM THE AGREEMENT.
(Signature Page
Follows)
IN WITNESS WHEREOF, this Agreement is executed
as of the day and year first above written.
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MusclePharm Corporation |
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By: |
/s/Richard Estalella |
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Name: Richard Estalella |
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Title: President |
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Executive |
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By: |
/s/ Donald Prosser |
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Name: Donald Prosser |
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Title: Chief Financial Officer |
Exhibit 10.2
EXECUTIVE
EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of July 28, 2014 (the "Effective
Date"), by and between MusclePharm Corporation, a Nevada Corporation (the "Company"),
and James Greenwell, an individual
("Executive"). The Company and Executive are sometimes referred to herein as a "party"
or collectively as the "parties."
RECITALS
WHEREAS,
Executive is willing to continue to be employed by the Company and provide services to the Company under the terms and conditions
stated herein, as of May 1, 2014 (the “Start Date”); and
WHEREAS,
the Company and Executive now mutually desire to enter into this Agreement as approved by the Board.
NOW, THEREFORE,
in consideration of the foregoing, of the mutual covenants and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:
1.1 Employment.
The Company hereby agrees to employ Executive as Chief Operating Officer of the Company and Executive hereby accepts such employment
as of the Effective Date pursuant to the terms, covenants and conditions set forth herein. Executive shall report directly to the
President ("President") of the Company.
1.2 Duties.
Executive shall have the overall responsibility as the Chief Operating Officer of the Company and its operations, and shall perform
all duties and responsibilities and have such powers which are commonly incident to the offices and positions held by him, as well
as any additional responsibilities and authority as may be from time to time assigned or delegated to him by the Chief Executive
Officer of the Company or the President and the Board. Executive shall perform the duties assigned to him to the best of his ability
and in a manner satisfactory to the Company.
1.3 Time
and Efforts. Executive will devote his full business time, efforts, attention, and energies to the business of the Company
and to the performance of Executive's duties hereunder during the Term (as defined below), and will not engage in any other business,
profession or occupation for compensation or otherwise which would conflict or interfere with the performance of such services,
either directly or indirectly, without the prior written consent of the Company; provided that, nothing herein shall preclude Executive
from (i) continuing to serve on any board of directors or trustees of any "not for
profit" organization, (ii) being involved in charitable activities, or (iii) managing his personal and family passive investments;
provided, further that, in each case, and in the aggregate, such activities shall not materially conflict with or interfere with
the performance of Executive's duties hereunder or conflict with his duty of loyalty and/or fiduciary duties owed to the Company.
Unless
earlier terminated as provided in Section 5, the Company shall employ Executive in the capacity set forth herein for a term commencing
on the Start Date and ending on December 31, 2016 (the “Expiration Date”). Such period, as may be terminated
earlier or extended, to be referred to herein as the "Term".
As compensation
for the services to be rendered by Executive for and on behalf of the Company hereunder, Executive shall be entitled to the following:
3.1 Base
Salary. Executive shall receive an annual base salary of $275,000. Salary payments shall be subject to all applicable federal
and state withholding, payroll, and other taxes, and all
applicable deductions for benefits as may be required by law or Executive's authorization. Executive's Base Salary will be reviewed
at least annually by the Compensation Committee (the "Committee") of the Board and may be increased at the discretion
of the Committee.
3.2 Bonus.
In addition to Base Salary, Executive shall be eligible to receive one or more cash bonuses to be determined by the Committee in
its sole discretion based on performance criteria to be adopted by the Committee, with a potential bonus pool of $300,000 per year,
which may be adjusted at the discretion of the Committee. Any such bonus or bonuses shall be subject to all applicable federal
and state withholding, payroll and other taxes, and all applicable deductions for benefits as may be required by law, and shall
be paid to Executive no later than the 15th day of the third calendar month following the end of the fiscal year (or other performance
period) with respect to which the bonus relates.
3.3 Equity
Compensation. Executive may, as determined by the Committee in its discretion, periodically receive grants of stock options,
restricted stock or other equity-related awards from the Company's various equity compensation plans, subject to the terms and
conditions thereof.
3.4 Compensation
Committee. Any bonus and any equity consideration to be provided to Executive shall be reviewed and determined by the Committee
on an annual basis to set performance criteria for purposes of compliance with the requirements of Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code").
3.5 Expenses.
The Company shall reimburse Executive for all reasonable business expenses incurred by Executive in the performance of his duties,
provided that Executive provides adequate documentation required by law and by the policies and procedures of the Company, as adopted
and amended from time to time, provided that in no event shall Executive submit any required documentation later than sixty (60)
days after the end of the calendar year in which such expense was incurred. Any such reimbursement shall be made as soon as reasonably
practicable but in no event later than the 15th day of the third month following the calendar year in which the applicable expense
was incurred. Executive acknowledges and agrees that all such expenses will be subject to the oversight of the Audit
Committee of the Board. The Company shall also provide Executive with a laptop computer and cell phone for his business use during
the Term.
3.6 Vacation.
Executive shall be entitled to accrue four (4) weeks of paid vacation each year pursuant to the terms and provisions of the Company's
vacation leave policies as in effect from time to time. Although unused vacation may be carried over from year to year, the maximum
cap on accrual shall be equal to one hundred fifty percent (150%) of the annual accrual.
3.7 Benefits.
Executive shall be entitled to participate in and receive all benefits made available by the Company to its executive
officers, subject to and on a consistent basis with the terms, conditions and overall administration of such plans and
arrangements, including without limitation, medical, dental, vision, life and disability insurance plans and coverage, and
defined benefit, defined contribution or other 401 (k) program, including all Company matching provisions.
| 4. | Confidential Information; Non-Compete; Non-Solicitation |
4.1 Confidential
Information. Executive acknowledges that, during the course of his employment, he will have access to and
will receive information which constitutes trade secrets, is of a confidential nature, is of significant value to the Company
and/or is a foundation on which the business of the Company is predicated. With respect to all such Confidential Information
(as defined hereafter), Executive agrees, during the Term and thereafter, not to disclose such Confidential Information to
any person other than an employee, counsel, or advisor of the Company or a person to whom disclosure is reasonably necessary
or appropriate in connection with the performance by Executive of his duties hereunder nor to use such Confidential
Information for any purpose other than the performance of his duties hereunder. For purposes of this Agreement, the term "Confidential Information" includes
all data or material (regardless of form) with respect to the Company or any of its assets, prospects, business activities,
officers, directors, employees, borrowers, or clients which is: (a) a trade secret, as defined by the Uniform Trade Secrets
Act; (b) provided, disclosed, or delivered to Executive by the Company, any officer, director, employee, agent, attorney,
accountant, consultant, or other person or entity employed by the Company in any capacity, any client, borrower, advisor, or
business associate of the Company, or any public authority having jurisdiction over the Company or any business activity
conducted by the Company; or (c) produced, developed, obtained or prepared by or on behalf of Executive or the
Company (whether or not such information was developed in the performance of this Agreement). Notwithstanding the foregoing,
the term "Confidential Information" shall
not include any information, data, or material which, at the time of disclosure or use, was generally available to the public
other than by a breach of this Agreement, was available to the party to whom disclosed on a non-confidential basis by
disclosure or access provided by the Company or a third party without breaching any obligations of the Company or such third
party, or was otherwise developed or obtained legally and independently by the person to whom disclosed without a breach of
this Agreement. This Section 4.1 shall not preclude Executive from disclosing Confidential Information if compelled to do so
by law or valid legal process, provided that if Executive believes Executive is so compelled by law or valid legal process,
Executive will notify the Company in writing sufficiently in advance of any such disclosure to allow the Company the
opportunity to defend, limit, or otherwise protect its interests against such disclosure unless such notice is prohibited by
law. The rights and obligations of the parties under this paragraph shall survive the expiration or termination of this
Agreement for any reason.
4.2 Non-Competition.
As part of the consideration for the compensation and benefits to be paid to Executive hereunder, and in order to protect the Confidential
Information, business goodwill, and business opportunities of the Company, Executive agrees that, during the Term and for a period
of six (6) months after the termination of Executive's employment and this Agreement, he will not, directly or indirectly, engage
in or become interested financially in, as a principal, employee, partner, contractor, shareholder, agent, manager, owner, advisor,
lender, guarantor, officer, or director, any business (other than the Company) that is engaged in the nutritional supplement industry
and/or related products; provided, however, that Executive shall be entitled to continue to invest in stocks, bonds, or other securities
in any such business (without otherwise participating in such business) if: (a) such stocks, bonds, or other securities are listed
on any United States securities exchange or are publicly traded in an over the counter market; and such investment does not exceed,
in the case of any capital stock of any one issuer, five percent of the issued and outstanding capital stock, or in the case of
bonds or other securities, five percent of the aggregate principal amount thereof issued and outstanding; or (b) such investment
is completely passive and no control or influence over the management or policies of such business is exercised.
4.3 Non-Solicitation.
Executive agrees that he will not, at any time during the Term, or at any time within twelve (12) months after the
termination of his employment, for his own account or benefit or for the account or benefit of any other person, firm or
entity, directly or indirectly, solicit for employment any employee of the Company (or any person who was an employee of the
Company in the 90-day period before such solicitation) or induce any employee of the Company (or any person who was an
employee of the Company in the 90-day period before such inducement) to terminate his employment with the Company.
Notwithstanding the above, the restrictions relating to persons employed in the 90-day period referenced in the
parentheticals in the immediately preceding sentence shall not apply to a person who was a party to an employment agreement
with the Company and who terminates his employment for Good Reason or is terminated by the Company without Cause. The rights
and obligations of the parties under this Section 4.3 shall survive the expiration or termination of this Agreement for any
reason.
4.4 Proprietary
Matters. Executive expressly agrees that any and all improvements, inventions, discoveries, processes, or know-how that are
generated or conceived by Executive during the Term, whether conceived during Executive's regular working hours or otherwise, will
be the sole and exclusive property of the Company. Whenever requested by the Company (either during the Term or thereafter), Executive
will assign or execute any and all applications, assignments and/or other documents, and do all things which the Company reasonably
deems necessary or appropriate, in order to permit the Company to: (a) assign and convey, or otherwise make available to the Company,
the sole and exclusive right, title, and interest in and to said improvements, inventions, discoveries, processes or know-how;
or (b) apply for, obtain, maintain, enforce and defend patents, copyrights, trade names, or trademarks of the United States or
of foreign countries for said improvements, inventions, discoveries, processes, or know-how. However, the improvements, inventions,
discoveries, processes, or know-how generated or conceived by Executive and referred to in this Section 4.4 (except those which
may be included in the patents, copyrights, or registered trade names or trademarks of the Company) will not be exclusive property
of the Company at any time after having been disclosed or revealed or have otherwise become available to the public or to a third
party on a non-confidential basis other than by a breach of this Agreement, or after they have been independently developed or
discussed without a breach of this Agreement by a third party who has no obligation to the Company. The rights and obligations of the
parties under this Section 4.4 shall survive the expiration or termination of this Agreement for any reason.
4.5 Injunctive
Relief. Executive acknowledges and agrees that any violation of Sections 4.1, 4.2, 4.3 or 4.4 of this Agreement would result
in irreparable harm to the Company and, therefore, agrees that, in the event of an actual, suspected, or threatened breach of Sections
4.1, 4.2, 4.3 or 4.4 of this Agreement, the Company shall be entitled to an injunction restraining Executive from committing or
continuing such actual, suspected or threatened breach. The parties acknowledge and agree that the right to such injunctive relief
shall be cumulative and shall not be in lieu of, or be construed as a waiver of the Company's right to pursue, any other remedies
to which it may be entitled in law or in equity. The parties agree that for purposes of Sections 4.1, 4.2, 4.3 and 4.4 of this
Agreement, the term "Company" shall include the
Company and its affiliates.
Executive's
employment by the Company and this Agreement may be terminated before the expiration of the Term, without breach of this Agreement,
in accordance with the provisions set forth below:
5.1 Termination
by the Company for Cause. The Company may terminate Executive's employment and this Agreement for Cause (as defined below),
but only after: (i) giving Executive written notice of the failure or conduct which the Company believes to constitute Cause; and
(ii) with respect to elements (a) through (e) below, providing Executive a reasonable opportunity, and in no event more than twenty
(20) days, to cure such failure or conduct, unless the Board determines in its good faith judgment that such failure or conduct
is not reasonably capable of being cured. In the event Executive does not cure the alleged failure or conduct within the time frame
provided for such cure by the Company, the Company shall send him written notice specifying the effective date of termination.
The failure by the Company to set forth in the notice referenced in this Section 5.1 any fact or circumstance which contributes
to a showing of Cause shall not waive any right of the Company to assert, or preclude the Company from asserting, such fact or
circumstance in enforcing its rights hereunder. For purposes of this Agreement, the term "Cause"
means:
(a) conviction
of a felony or a crime involving fraud or moral turpitude; or
(b) theft,
material act of dishonesty or fraud, intentional falsification of any employment or Corporation records, or commission of any criminal
act which impairs participant’s ability to perform appropriate employment duties for the Corporation; or
(c) intentional
or reckless conduct or gross negligence materially harmful to the Corporation or the successor to the Corporation after a Change
in Control , including violation of a non-competition or confidentiality agreement; or
(d) willful
failure to follow lawful instructions of the person or body to which participant reports; or
(e) gross
negligence or willful misconduct in the performance of participant’s assigned duties. Cause shall not include
mere unsatisfactory performance in the achievement of participant’s job objectives.
If the Company
terminates Executive's employment for Cause, then Executive shall be entitled to receive the payments and benefits set forth in
Section 6.1 below.
The Company may suspend Executive
with pay pending an investigation authorized by the Company or a governmental authority or a determination whether Executive has
engaged in acts or omissions constituting Cause, and such paid suspension shall not constitute Good Reason or a termination of
Executive’s employment.
| 5.2 | Termination by the Company Without Cause. |
(a) The
Company may terminate the employment of Executive and this Agreement at any time during the Term of this Agreement without Cause
by giving Executive written notice of such termination, to be effective thirty (30) days following the giving of such written notice,
in which case Executive shall receive the compensation, severance, and benefit continuation required by Section
6.3 below;
provided, however, that if Company terminates Executive's employment without Cause during the Protection Period (as defined below),
then Executive shall be entitled to receive the payments and benefits set forth in Section 6.4 below.
(b) For
purposes of this Agreement, the term "Protection Period"
means the period of time commencing on the date of the first occurrence of a Change in
Control (as defined below in Section 5.2(c)) and continuing until the earlier of the (i) the second anniversary of the first occurrence
of the Change in Control and (ii) the Term of this Agreement; and the six (6) month period prior to such Change in Control date
if the Executive is terminated without Cause or terminates for Good Reason and in either case such termination (x) was requested
by the third party that effectuates the Change in Control, or (y) occurs in connection with or in anticipation of a Change in Control,
it being agreed that any such action taken following stockholder approval of a transaction which if consummated would constitute
a Change in Control shall be deemed to be in anticipation of a Change in Control provided such transaction is actually consummated.
(c) For
purposes of this Agreement, the term "Change in Control" means the happening of any of the following events:
i. a tender offer (or series of related offers) shall
be made and consummated for the ownership of 50% or more of the outstanding voting securities of the Company, unless as a result
of such tender offer more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be owned
in the aggregate by the stockholders of the Company (as of the time immediately prior to the commencement of such offer), any employee
benefit plan of the Company or its subsidiaries, and their affiliates;
ii. the Company shall be merged or consolidated with
another corporation, unless as a result of such merger or consolidation more than 50% of the outstanding voting securities of the
surviving or resulting corporation shall be owned in the aggregate by the stockholders of the Company (as of the time immediately
prior to such transaction), any employee benefit plan of the Company or its subsidiaries, and their affiliates;
(iii) the Company shall sell substantially all of its
assets to another corporation that is not wholly owned by the Company, unless as a result of such sale more than 50% of such assets
shall be owned in the aggregate by the stockholders of the Company (as of the time immediately prior to such transaction), any
employee benefit plan of the Company or its subsidiaries and their affiliates; or
(iv) a person (as defined below) shall acquire 50% or
more of the outstanding voting securities of the Company (whether directly, indirectly, beneficially or of record), unless as a
result of such acquisition more than 50% of the outstanding voting securities of the surviving or resulting corporation shall be
owned in the aggregate by the stockholders of the Company (as of the time immediately prior to the first acquisition of such securities
by such person), any employee benefit plan of the Corporation or its subsidiaries, and their affiliates.
5.3 Termination
by the Company Due to Inability to Perform or Death. Executive's employment and this Agreement may be terminated by the Company
as follows:
(a) To the
extent permitted by law, upon thirty (30) days' notice to Executive in the event of Executive's Inability to Perform. For this
purpose, the term "Inability to Perform" means and shall be deemed to have occurred if Executive has been determined
under the Company's long term disability plan to be eligible for long-term disability benefits or, in the event the Company does
not maintain such a plan or in the absence of Executive's participation in or application for benefits under such a plan, such
term shall mean the inability of Executive, despite any reasonable accommodation required by law, due to bodily injury or disease
or any other physical or mental incapacity, to perform the services required hereunder for a period of ninety (90) consecutive
days; or
| (b) | Immediately upon the death of Executive. |
5.4 Termination
by Executive for Good Reason. Executive may terminate his employment and this Agreement at .any
time for Good Reason (as defined below). A termination of employment and this Agreement by Executive for Good Reason shall entitle
Executive to payments and other benefits as specified in Section 6.3, unless such termination occurs during the Protection Period
in which case the payments and benefits in Section 6.4 shall apply. For purposes of this Agreement, the term "Good Reason"
means, subject to the notice and cure provisions herein, any of the following actions if taken without Executive's prior written
consent: (a) the assignment to the Executive of any duties inconsistent with the position in the Corporation that Executive held
immediately prior to the assignment; (b) a Change of Control resulting in a significant adverse alteration in the status or conditions
of Executive’s participation with the Corporation or other nature of Executive’s responsibilities from those in effect
prior to such Change of Control, including any significant alteration in Holder’s responsibilities immediately prior to such
Change in Control; (c) the failure by the Company to continue to provide the Executive with benefits substantially similar to those
enjoyed by the Executive prior to such failure; or (d) any other action or inaction that constitutes a material breach by the Company
of this Agreement. To exercise the option to terminate employment for Good Reason, Executive must provide written notice to the
Company of Executive's belief that Good Reason exists within sixty (60) days of the initial existence of the Good Reason condition,
and that notice shall describe in reasonable detail the condition(s) believed to constitute Good Reason. The Company then shall
have thirty (30) days to remedy the Good Reason condition(s). If not
remedied within that 30-day period or if the Company notifies Executive that it does not intend to cure such condition(s) before
the end of that 30-day period, Executive may submit a notice of termination to the Company; provided, however, that the notice
of termination invoking Executive's option to terminate employment for Good Reason must be given no later than one hundred (100)
days after the date the Good Reason condition first arose; otherwise, Executive shall be deemed to have accepted the condition(s),
or the Company's correction of such condition(s), that may have given rise to the existence of Good Reason.
5.5 Termination
by Executive Without Good Reason. Executive may also terminate his employment and this Agreement without Good Reason by
providing at least ninety (90) days' written notice of such termination to the Company. In the event of a termination
pursuant to this Section 5.5, Executive shall be entitled to payments and other benefits as specified in Section 6.1 below.
At the Company's option, the Company may accelerate the date of Executive's termination of employment by paying to Executive
the Base Salary and value of the benefits that Executive would have received during the period by which the date of
termination is so accelerated and such acceleration shall not change the characterization of the termination by Executive as
a termination without Good Reason .
5.6 Return
of Confidential Information and Company Property. Upon termination of Executive's employment for any reason, Executive shall
immediately return all Confidential Information and other Company property to the Company.
6.1 Termination
by the Company for Cause or Termination by Executive Without Good Reason. In the event Executive's employment and this Agreement
are terminated pursuant to Sections 5.1 or 5.5 above:
(a) The
Company shall pay to Executive, or his representatives, on the date of termination of employment only that portion of the Base
Salary provided in Section 3.1 that has been accrued through the date of termination, any accrued but unpaid vacation pay provided
in Section 3.6, any accrued benefits provided in Section 3.7, and any expense reimbursements due and owing to Executive as of the
date of termination; and
(b) Executive
shall not be entitled to: (i) any other salary or compensation; (ii) any bonus pursuant to Section 3.2; (iii) any equity consideration
pursuant to Section 3.3; nor (iv) any additional benefits pursuant to Section 3.7; and
(c) Executive
shall return the laptop computer and cellular telephone within five (5) business days of the date of termination.
6.2 Termination
by the Company Due to Executive’s Inability to Perform or Death. In the event Executive's employment and this
Agreement are terminated pursuant to Section 5.3 above, the Company shall pay to Executive, or his representatives, all of
the following:
(a) The
payments, if any, referred to in Section 6.1(a) above as of the date of termination; and
(b) Subject
to compliance with Section 409A of the Code, an amount equal to the greater of (i) one hundred percent (100%) of Executive's target
bonus for the year in which the date of termination occurs or (ii) a bonus for such year as may be determined by the Committee
in its sole discretion. This amount shall be paid in the form of a lump sum, less applicable statutory deductions and withholdings,
as soon as practicable after the date of termination, but no later than March 15 of the year immediately following the year in
which the date of termination occurs; and
(c) For
a termination due to Inability to Perform only, and provided that Executive or his representative signs a Release (as defined in
Section 17), then the Company shall pay Executive a severance equal to six (6) months of Executive's Base Salary at the time of
termination. This severance amount shall be paid to Executive in equal regular installments
over the six (6) month period pursuant to the Company's regular payroll periods, less applicable statutory deductions and tax withholdings.
The first installment shall be paid to Executive on the first payroll period after the date of termination and after the effective
date of the Release; and
(d) Should
Executive or his representatives timely elect to continue coverage under a group health insurance plan sponsored by the Company
or one of its affiliates and timely make the premium payments, reimburse Executive on a monthly basis for the cost of continued
coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA")
or other applicable law for Executive and any eligible dependents until the earlier of (i) the date Executive is no
longer entitled to continuation coverage under COBRA or (ii) for twelve (12) months after the date of termination.
6.3 Termination
by the Company Without Cause and Without a Change in Control or by Executive for Good Reason Without a Change in Control. In
the event Executive's employment is terminated pursuant to Sections 5.2 or 5.4 above at any time in which there has not been a
qualifying Change in Control termination, the Company shall pay Executive on the date of termination the payments referred to in
Section 6.1(a) above, and provided that Executive signs a Release (as defined in Section 17), Executive shall also receive all
of the following:
(a) A
severance package equal to the lesser of (i) nine (9) months of Executive's Base Salary at the time of termination and (ii) the
Base Salary remaining under the Term of this Agreement. This severance amount shall be paid to Executive in equal regular installments
over the three (3) month period pursuant to the Company's regular payroll periods, less applicable statutory deductions and tax
withholdings. The first installment shall be paid to Executive on the first payroll period after the date of termination and after
the effective date of the Release; and
(b) Subject
to compliance with Section 409A of the Code, an amount equal to the greater of (i) (A) if the date of termination occurs between
January 1 and June 30, then twenty-five percent (25%) of Executive's target bonus for the year in which the date of termination
occurs or (B) if the date of termination occurs between July 1 and December 31, then fifty percent (50%) of Executive's target
bonus for the year in which the date of termination occurs; and (ii) a bonus for such year as may be determined by the Committee
in its sole discretion. This amount shall be paid in the form of a lump sum, less applicable statutory deductions and withholdings,
as soon as practicable after the date of termination, but no later than March 15 of the year immediately following the year in
which the date of termination occurs;
(c) Should
Executive or his representatives timely elect to continue coverage under a group health insurance plan sponsored by the Company
or one of its affiliates and timely make the premium payments, reimburse Executive on a monthly basis for the cost of continued
coverage under the COBRA for Executive and any eligible dependents until the earlier of (i) the date Executive is no longer entitled
to continuation coverage under COBRA or (ii) for twelve (12) months after the date of termination; and
(d) Unless
otherwise provided in the equity award agreement, all stock options and other stock incentive awards held by Executive will become
fully vested and immediately exercisable and all restrictions on any restricted stock held by Executive will be removed; provided,
however, Executive shall not be released from the black-out periods for the next financial reporting quarter following
the date of termination or Securities Exchange Act of 1934, as amended (the "Exchange Act"),
trading obligations typically required for an executive in this position.
6.4 Termination
by the Company Without Cause After a Change in Control or by Executive for Good Reason After a Change in Control. In the
event Executive's employment is terminated pursuant to Sections 5.2 or 5.4 above during the Protection Period, the Company shall
pay Executive on the date of termination the payments referred to in Section 6.l (a) above, and provided that Executive signs a
Release (as defined in Section 17), Executive shall also receive all of the following:
(a) Subject
to compliance with Section 409A of the Code, a severance package equal to one year of Executive's Base Salary immediately prior
to the Change in Control. This severance amount shall be paid to Executive in equal regular installments over a 12-month period
pursuant to the Company's regular payroll periods, less applicable statutory deductions and tax withholdings. The first installment
shall be paid to Executive on the first payroll period after the date of termination and after the effective date of the Release
; and
(b) Subject
to compliance with Section 409A of the Code, an amount equal to the greater of (i) one hundred percent (100%) of Executive's target
bonus for the year in which the date of termination occurs or (ii) a bonus for such year as may be determined by the Committee
in its sole discretion. This amount shall be paid in the form of a lump sum, less applicable statutory deductions and withholdings,
as soon as practicable after the date of termination, but no later than March 15 of the year immediately following the year in
which the date of termination occurs; and
(c) A
one-time cash payment of five hundred thousand dollars ($500,000.00),
less applicable statutory deductions and tax withholdings, to be paid within thirty (30) days of the date of termination; and
(d) Should
Executive or his representatives timely elect to continue coverage under a group health insurance plan sponsored by the Company
or one of its affiliates and timely make the premium payments , reimburse
Executive on a monthly basis for the cost of continued coverage under the COBRA for Executive and any eligible dependents until
the earlier of (i) the date Executive is no longer entitled to continuation coverage under COBRA or (ii) for twelve (12) months
after the date of termination; and
(e) All
stock options and other incentive awards held by Executive will become fully vested and immediately exercisable and all restrictions
on any restricted stock held by Executive will be removed; provided, however, Executive
shall not be released from the black-out periods for the next financial quarter following the date of termination or Exchange Act,
trading obligations typically required for an executive in this position.
This
Agreement is personal in nature, and neither this Agreement
nor any part of any obligation herein shall be assignable by Executive. The Company shall be entitled to assign this Agreement
to any affiliate of the Company or any person or entity that assumes the ownership and control of the business of the Company.
This Agreement shall inure to the benefit of and shall be binding upon the parties and their successors and assigns.
Should any
term, provision, covenant or condition of this Agreement be held to be void or invalid, the same shall not affect any other term,
provision, covenant or condition of this Agreement, but such remainder shall continue in full force and effect as though each such
voided term, provision, covenant, or condition is not contained herein.
| 9. | Governing Law and Venue |
This
Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, excluding its choice-of-law
principles. Subject to Sections 4.5 and 10, and without in any way limiting the applicability of binding arbitration, each of the
parties submits to the exclusive jurisdiction of any state or federal court sitting in Denver, Colorado in any action or proceeding
arising out of or relating to this Agreement and further agrees that all claims in respect of the action or proceeding may be heard
and determined in any such court to the extent that any court proceeding is necessary in connection with Sections 4.5 and 10, and
further agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each of the
parties agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on
the judgment or in any other manner so provided by law.
Except
as provided in Section 4.5, any and all disputes which involve or relate in any way to this Agreement and/or to Executive’s
employment, Executive's termination of employment with the Company or termination of this Agreement, whether initiated by Executive
or by the Company and whether based on contract, tort, statute, or common law, shall be submitted to and resolved by final and
binding arbitration as the exclusive method for resolving all such disputes. The arbitration shall be private and confidential
and conducted in Denver, Colorado pursuant to the Federal Arbitration Act and applicable Colorado law, and pursuant to the applicable
rules of the American Arbitration Association ("AAA") relating to employment disputes, unless the parties otherwise mutually
agree to modify the AAA Rules.
The
party demanding arbitration shall submit a written claim to the other party, setting out the basis of the claim or claims, within
the time period of any applicable statute of limitations relating to such claim(s). If the parties cannot mutually agree upon an
arbitrator, then the parties shall select a neutral arbitrator through the procedures established by the AAA. The arbitrator shall
have the powers provided under the Colorado Code of Civil Procedure relating to the arbitration of disputes, except as expressly
limited or otherwise provided in this Agreement. The parties shall have the right to reasonable discovery as mutually agreed or
as determined by the arbitrator, including at least one deposition each, it being the goal of the parties to resolve any disputes
as expeditiously and economically as reasonably practicable. The parties agree to share equally in the payment of the administration
costs of the AAA arbitration, including payment of the fees for the arbitrator, and any other costs directly related to the administration
of the arbitration. The parties shall otherwise be responsible for their own respective costs and attorneys' fees relating to the
dispute, such as deposition costs, expert witnesses and similar expenses, except as otherwise provided in this Agreement to the
prevailing party.
The
arbitrator may award, if properly proven, any damages or remedy that a party could recover in a civil litigation, and shall award
costs and reasonable attorneys' fees to the prevailing party. The award of the arbitrator shall be issued in writing, setting forth
the basis for the decision, and shall be binding on the parties to the fullest extent permitted by law, subject to any limited
statutory right to appeal as provided by law. Judgment upon the award of the arbitrator may be entered in any court having proper
jurisdiction and enforced as provided by law.
This
agreement to arbitrate is freely negotiated between Executive and the Company and is mutually entered into between the parties.
Each party understands and agrees that it is giving up certain rights otherwise afforded to it by civil court actions, including
but not limited to the right to a jury trial; provided, however, that either party may seek provisional remedies in a court of
competent jurisdiction as provided pursuant to applicable law.
The
section headings herein are inserted only as a matter of convenience and reference and in no way define, limit or describe the
scope of this Agreement or the intent of any provisions hereof.
| 12. | Compliance with Section 409A of the Code |
Notwithstanding
anything herein to the contrary, (a) if at the time of Executive's termination of employment with the Company Executive is a "specified
employee" as such term is defined in Section 409A of the Code and the regulations thereunder, and the deferral of the commencement
of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to
prevent any accelerated or additional tax under Section 409A of the Code, then the Company will defer the commencement of the
payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided
to Executive) until the date that is six (6) months following Executive's termination of employment with the Company (or the earliest
date as is permitted under Section 409A of the Code) and (b) if any other payments of money or other benefits due to Executive
hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other
benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise
such payment or other benefits shall be restructured, to the extent possible, in a manner, determined by the Board, that does
not cause such an accelerated or additional tax. In the event that payments under this Agreement are deferred pursuant to this
Section 12 in order to prevent any accelerated tax or additional tax under Section 409A of the Code, then such payments shall
be paid at the time specified under this Section 12 without any interest thereon. The Company shall consult with Executive in
good faith regarding the implementation of this Section 12; provided that neither the Company nor any of its employees or representatives
shall have any liability to Executive with respect thereto. Notwithstanding anything to the contrary herein, a termination of
employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of amounts
or benefits upon or following a termination of employment unless such termination is also a "Separation from Service"
as such term is defined in Section 409A of the Code and the regulations and guidance promulgated thereunder and, for purposes
of any such provision of this Agreement, references to a "resignation," "termination," "termination of
employment," or like terms shall mean Separation from Service. For purposes of Section 409A of the Code, each payment made
under this Agreement shall be designated as a "separate payment" within the meaning of the Section 409A of the Code.
Notwithstanding anything to the contrary herein, except to the extent any expense, reimbursement or in-kind benefit provided pursuant
to this Agreement does not constitute a "deferral of compensation"
within the meaning of Section 409A of the Code: (x) the amount of expenses eligible for reimbursement or in-kind benefits provided
to Executive during any calendar year will not affect the amount of expenses eligible for reimbursement or in-kind benefits provided
to Executive in any other calendar year, (y) the reimbursements for expenses for which Executive is entitled to be reimbursed
shall be made on or before the last day of the calendar year following the calendar year in which the applicable expense is incurred,
and (z) the right to payment or reimbursement or in-kind benefits hereunder may not be liquidated or exchanged for any other benefit.
This
Agreement contains the entire agreement of the parties relating to the subject matter hereof, and this Agreement supersedes and
replaces in all respects the Original Agreement. Further, the parties hereto have made no agreements, representations, or warranties
relating to the subject matter of this Agreement that are not set forth otherwise herein. In this regard, each of the parties represents
and warrants to the other party that such party is not relying on any promises or representations that do not appear in writing
herein. Each of the parties further agrees and understands that this Agreement
can be amended or modified only by a written agreement signed by all parties.
All
notices required or permitted under this Agreement shall be in writing and shall be deemed effective: (a) upon delivery, if delivered
in person; (b) upon delivery to Federal Express or other similar courier service, marked for next day delivery,
addressed as set forth below; (c) upon deposit in United States Mail if sent by registered
or certified mail, return receipt requested, addressed as set forth below; or (d) upon being sent by facsimile transmission, provided
an original is mailed the same day by registered or certified mail, return receipt requested:
| If to the Company: |
MusclePharm
Corporation |
| |
Attn: Chief Executive
Officer |
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4721 Ironton Street,
Building A |
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Denver, Colorado 80239 |
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Facsimile: (800) 490-7165 |
| If to Executive: |
James Greenwell |
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In
the event that any party shall bring an action or proceeding in connection with the performance, breach or interpretation of this
Agreement, then the prevailing party in any such action or proceeding, as determined by the arbitrator, court, or other body having
jurisdiction, shall be entitled to recover from the losing party all reasonable costs and expenses of such action or proceeding,
including reasonable attorneys'
fees, court costs, costs of investigation, expert witness fees, and other costs reasonably related to such action or proceeding.
| 16. | Assistance with Claims |
Executive
agrees that, for the period beginning on the Start Date, and continuing for a reasonable period after the termination or expiration
of this Agreement for any reason, Executive will assist the Company in the defense of any claims that may be made against the Company
and will assist the Company in the prosecution of any claims that may be made by the Company, to the extent such claims may relate
to services performed by Executive for the Company. Executive agrees to promptly inform the Company if Executive becomes aware
of any lawsuits or potential claims that may be filed against the Company. For all assistance occurring after termination of Executive's
employment by the Company, the Company agrees to provide reasonable compensation to Executive for such assistance. Executive also
agrees to promptly inform the Company if asked to assist in any investigation of the Company (or its actions) that may relate to
services performed by Executive for the Company, regardless of whether a lawsuit has been filed against the Company with respect
to such investigation.
Executive
shall not be entitled to receive the severance pay and benefits under Sections 6.2, 6.3, and 6.4, as applicable, unless (a) Executive
executes and returns to the Company a Release (as defined below) on or before the 50th day following the date of termination or
such shorter time as may be prescribed in the Release, (b) such Release shall not have been timely revoked
by Executive, and (c) the date of termination constitutes a Separation from Service, and provided
further, however, that if Executive violates his continuing obligations under Sections 4.1 , 4.2, 4.3, or 4.4, Executive shall
not be entitled to receive such severance pay or benefits and Executive shall immediately repay to the Company upon written demand
any severance pay or benefits that already have been paid to Executive. For purposes of this Agreement, the term "Release"
means a waiver and release of claims by Executive in the form prescribed by the Company, which form may include, without limitation,
an agreement by Executive not to disparage the Company, its affiliates, and other related persons or entities, but which form shall
not include a release and waiver of claims for (i) indemnification or for coverage under officer and director liability policies,
if applicable, (ii) claims with respect to the reimbursement of business expenses or with respect to benefits which are in each
case to continue in effect after termination or expiration of this Agreement in accordance with the terms of this Agreement, (iii)
claims he may have as a holder of options to acquire equity securities of the Company (which shall be governed by the documents
by which Executive was granted such options) and (iv) claims he may have as a stockholder of the Company.
| 18. | Dodd-Frank Act and Other Applicable Legal Requirements |
Executive
agrees (i) to abide by any compensation recovery, recoupment, anti-hedging, or other policy applicable to executives of the Company
and its affiliates, as may be in effect from time to time, as approved by the Board or a duly authorized committee thereof or as
required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the "Dodd-Frank Act") or other
applicable law, and (ii) that the terms and conditions of this Agreement shall be deemed automatically amended as may be necessary
from time to time to ensure compliance by Executive and this Agreement with such policies, the Dodd-Frank Act, or other applicable
law.
This Agreement
may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall
constitute but one and the same instrument.
EXECUTIVE
HAS BEEN ADVISED THAT HE SHOULD SEEK INDEPENDENT REVIEW AND ADVICE FROM LEGAL COUNSEL AND TAX ADVISORS AS TO THE SCOPE AND POTENTIAL
TAXES WH ICH COULD ARISE FROM THE AGREEMENT.
(Signature Page
Follows)
IN WITNESS WHEREOF, this Agreement is executed
as of the day and year first above written.
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MusclePharm Corporation |
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By: |
/s/Richard Estalella |
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Name: Richard Estalella |
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Title: President |
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Executive |
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By: |
/s/James Greenwell |
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Name: James Greenwell |
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Exhibit 10.3
SECOND AMENDMENT TO THE AMENDED AND RESTATE
EXECUTIVE EMPLOYMENT AGREEMENT
This Second Amendment
to the Amended and Restated Executive Employment Agreement (this “Amendment”) is made as of July 28, 2014 and
effective as of May 12, 2014, by and between MusclePharm Corporation, a Nevada corporation (the “Company”),
and Bradley J. Pyatt (the “Executive”).
WHEREAS, the Company
and the Executive desire to amend the term provisions set forth in the Amended and Restated Executive Employment Agreement dated
October 18, 2012, between the Company and the Executive as amended by the First Amendment to the Amended and Restated Executive
Employment Agreement dated December 30, 2013 between the Company and the Executive (together, the “Original Agreement”)
and as amended by this Amendment (the “Amended Agreement”);
NOW, THEREFORE, in
consideration of the foregoing promises and the mutual covenants herein contained, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions.
Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Original Agreement.
2. Amendment
to SECTIon 2 of the ORiginal Agreement. Section 2 of the Original Agreement shall be restated in its entirety and read
as follows:
“ Unless earlier
terminated as provided in Section 5, the Company shall employ Executive in the capacity set forth herein for a term commencing
on the Effective Date and ending on December 31, 2018 (such period as may be terminated earlier or extended to be referred to herein
as the “Term”).”
3. REMAINING TERMS. All other
terms and conditions contained in the Original Agreement remain in full force and effect.
4. GOVERNING
LAW. This Amendment shall be governed by, construed in accordance with and enforced under the internal laws of the State of
Colorado. The venue for any legal proceedings in connection with this Amendment shall be in the federal or state courts located
in the City of Denver, State of Colorado.
5. ENTIRE AGREEMENT.
This Amendment contains the entire agreement of the parties hereto in regard to the subject matter hereof and may only be changed
by written documentation signed by the party against whom enforcement of the waiver, change, modification, extension or discharge
is sought. This Amendment supersedes all prior written or oral agreements by and among the Company or any of its subsidiaries or
affiliates and Consultant or any of its affiliates.
6. SECTION HEADINGS.
Headings contained herein are for convenient reference only. They are not a part of this Amendment and are not to affect in any
way the substance or interpretation of this Amendment.
7. SURVIVAL OF
PROVISIONS. In case any one or more of the provisions or any portion of any provision set forth in this Amendment should be
found to be invalid, illegal or unenforceable in any respect, such provision(s) or portion(s) thereof shall be modified or deleted
in such manner as to afford the parties the fullest protection commensurate with making this Amendment, as modified, legal and
enforceable under applicable laws. The validity, legality and enforceability of any such provisions shall not in any way be affected
or impaired thereby and such remaining provisions in this Amendment shall be construed as severable and independent thereof.
8. BINDING EFFECT.
This Amendment is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns, subject
to the restriction on assignment contained in Section 10 of the Original Agreement.
9. ATTORNEYS’
FEES. The prevailing party in any legal proceeding arising out of or resulting from this Amendment shall be entitled to recover
its costs and fees, including, but not limited to, reasonable attorneys' fees and post judgment costs, from the other party.
10. AUTHORIZATION.
The persons executing this Amendment on behalf of the Company and Consultant hereby represent and warrant to each other that they
are the duly authorized representatives of their respective entities and that each has taken all necessary corporate or partnership
action to ratify and approve the execution of this Amendment in accordance with its terms.
11. COUNTERPARTS.
This Amendment may be executed in counterparts, each of which is deemed an original, but all of which constitutes one and the same
agreement. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall be effective as delivery
of an original executed counterpart of this Amendment.
[Signature Page on Follows]
IN WITNESS WHEREOF,
the parties hereto have executed this Amendment on the date first written above.
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Company: |
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MusclePharm Corporation |
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By: |
/s/Richard Estalella |
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Name: |
Richard Estalella |
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Title: |
President |
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Executive: |
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/S/ Brad J. Pyatt |
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Name: Brad Pyatt
Title: Chief Executive Officer |
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Exhibit 10.4
SECOND AMENDMENT TO THE AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
This Second Amendment
to the Amended and Restated Executive Employment Agreement (this “Amendment”) is made as of July 28, 2014, by
and between MusclePharm Corporation, a Nevada corporation (the “Company”), and Richard Estalella (the “Executive”).
WHEREAS, the Company
and the Executive desire to amend the compensation and term provisions set forth in the Amended and Restated Executive Employment
Agreement dated September 30, 2013, as amended by the First Amendment to the Amended and Restated Executive Employment Agreement
dated December 30, 2013 between the Company and the Executive (together, the “Original Agreement”) and as amended
by this Amendment (the “Amended Agreement”);
NOW, THEREFORE, in
consideration of the foregoing promises and the mutual covenants herein contained, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions.
Capitalized terms used and not defined in this Amendment have the respective meanings assigned to them in the Original Agreement.
2. Amendment
to SECTIon 1.1 of the ORiginal Agreement. Section 1.1 of the Original Agreement shall be restated in its entirety and
read as follows:
“1.1 Employment.
The Company hereby agrees to employ Executive as President of the Company and Executive hereby accepts such employment as of the
Start Date pursuant to the terms, covenants and conditions set forth herein. Executive shall report directly to the Chief Executive
Officer ("CEO") of the Company.”
3. AMENDMENT
TO SECTION 1.2 OF THE ORIGINAL AGREEMENT. Section 1.2 of the Original Agreement shall be restated in its entirety and
read as follows:
“1.2 Duties. Executive
shall have the overall responsibility as the President of the Company and its operations, and shall perform all duties and responsibilities
and have such powers which are commonly incident to the offices and positions held by him, as well as any additional responsibilities
and authority as may be from time to time assigned or delegated to him by the CEO and the Board. Executive shall perform the duties
assigned to him to the best of his ability and in a manner satisfactory to the Company.”
4. AMENDMENT
TO SECTION 2 OF THE ORIGINAL AGREEMENT. Section 2 of the Original Agreement shall be restated in its entirety and read
as follows:
“Unless earlier terminated
as provided in Section 5, the Company shall employ Executive in the capacity set forth herein for a term commencing on April 7,
2014 and ending on December 31, 2018 (such period as may be terminated earlier or extended to be referred to herein as the “Term”).”
5. AMENDMENT TO SECTION 3.1 OF THE
ORIGINAL AGREEMENT. Section 3.1 of the Original Agreement shall be restated in its entirety and read as follows:
“3.1 Base Salary. Executive shall be paid
an annual base salary of three hundred dollars ($300,000) (and further adjusted in accordance with the provisions of this Agreement,
the “Adjusted Base Salary”) beginning on April 16, 2014 and payable at such intervals as may be established by the
Company for payment of its employees under its normal payroll practices. Salary payments shall be subject to all applicable federal
and state withholding, payroll, and other taxes, and all applicable deductions for benefits as may be required by law or Executive’s
authorization. Executive’s Base Salary will be reviewed at least annually by the Compensation Committee (the “Committee”)
of the Board and may be increased at the discretion of the Committee.”
6. AMENDMENT TO SECTION 3.2 OF THE
ORIGINAL AGREEMENT. Section 3.2 of the Original Agreement shall be restated in its entirety and read as follows:
“3.2 Bonus. In addition to Base Salary,
Executive shall be eligible to receive one or more cash bonuses to be determined by the Committee in its sole discretion based
on performance criteria to be adopted by the Committee, with a potential bonus pool of $325,000 per year, which may be adjusted
at the discretion of the Committee.. Any such bonus or bonuses shall be subject to all applicable federal and state withholding,
payroll and other taxes, and all applicable deductions for benefits as may be required by law, and shall be paid to Executive no
later than the 15th day of the third calendar month following the end of the fiscal year (or other performance period) with respect
to which the bonus relates.”
7. AMENDMENT TO SECTION 6.2(b) OF
THE ORIGINAL AGREEMENT. Section 6.2(b) of the Original Agreement shall be restated in its entirety and read as follows:
“(b) Subject to compliance with Section
409A of the Code, an amount equal to the greater of (i) one hundred percent (100%) of Executive’s target bonus for the year
in which the date of termination occurs in the event a target bonus for the year in which the date of termination occurs has been
established or if not, one hundred percent (100%) of Executive’s most recent annual bonus; and (ii) a bonus for such year
as may be determined by the Committee in its sole discretion. This amount shall be paid in the form of a lump sum within 30 days
of the termination, but no later than March 15 of the year immediately following the year in which the termination occurred;”
8. AMENDMENT TO SECTION 6.3(a) OF
THE ORIGINAL AGREEMENT. Section 6.3(a) of the Original Agreement shall be restated in its entirety and read as follows:
“(a) A severance package equal to one and
a half (1.5x) times the Executive’s Base Salary at the time of termination. This severance amount shall be paid to Executive
in equal regular installments over the three (3) month period pursuant to the Company’s regular payroll periods, less applicable
statutory deductions and tax withholdings. The first installment shall be paid to Executive on the first payroll period after the
date of termination and after the effective date of the Release;”
9. AMENDMENT TO SECTION 6.3(b) OF
THE ORIGINAL AGREEMENT. Section 6.3(b) of the Original Agreement shall be restated in its entirety and read as follows:
“(b) Subject to compliance with Section
409A of the Code, (i) an amount equal to one a half (1.5x) times Executive’s target bonus for the year in which the date
of termination occurs in the event a target bonus for the year in which the date of termination occurs has been established or
if not, one a half (1.5x) the Executive’s most recent annual bonus; and (ii) a bonus for such year as may be determined by
the Committee in its sole discretion. This amount shall be paid in the form of a lump sum, less applicable statutory deductions
and withholdings, as soon as practicable after the date of termination, but no later than March 15 of the year immediately following
the year in which the date of termination occurs;”
10. AMENDMENT TO SECTION 6.4(a) OF
THE ORIGINAL AGREEMENT. Section 6.4(a) of the Original Agreement shall be restated in its entirety and read as follows:
“(a) Subject to compliance with Section
409A of the Code, a severance package equal to two years of the Executive’s Base Salary immediately prior to the Change in
Control. This severance amount shall be paid to Executive in equal regular installments over a 12-month period pursuant to the
Company’s regular payroll periods, less applicable statutory deductions and tax withholdings. The first installment shall
be paid to Executive on the first payroll period after the date of termination and after the effective date of the Release; and”
11. AMENDMENT TO SECTION 6.4(c) OF
THE ORIGINAL AGREEMENT. Section 6.4(c) of the Original Agreement shall be restated in its entirety and read as follows:
“(c) A one-time cash payment of one and
a half million dollars ($1,500,000.00), less applicable statutory deductions and tax withholdings, to be paid within thirty (30)
days of the date of termination, and”
12. REMAINING TERMS. All other
terms and conditions contained in the Original Agreement remain in full force and effect.
13. GOVERNING
LAW. This Amendment shall be governed by, construed in accordance with and enforced under the internal laws of the State of
Colorado. The venue for any legal proceedings in connection with this Amendment shall be in the federal or state courts located
in the City of Denver, State of Colorado.
14. ENTIRE AGREEMENT.
This Amendment contains the entire agreement of the parties hereto in regard to the subject matter hereof and may only be changed
by written documentation signed by the party against whom enforcement of the waiver, change, modification, extension or discharge
is sought. This Amendment supersedes all prior written or oral agreements by and among the Company or any of its subsidiaries or
affiliates and Consultant or any of its affiliates.
15. SECTION HEADINGS.
Headings contained herein are for convenient reference only. They are not a part of this Amendment and are not to affect in any
way the substance or interpretation of this Amendment.
16. SURVIVAL
OF PROVISIONS. In case any one or more of the provisions or any portion of any provision set forth in this Amendment should
be found to be invalid, illegal or unenforceable in any respect, such provision(s) or portion(s) thereof shall be modified or deleted
in such manner as to afford the parties the fullest protection commensurate with making this Amendment, as modified, legal and
enforceable under applicable laws. The validity, legality and enforceability of any such provisions shall not in any way be affected
or impaired thereby and such remaining provisions in this Amendment shall be construed as severable and independent thereof.
17. BINDING EFFECT.
This Amendment is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns, subject
to the restriction on assignment contained in Section 10 of the Original Agreement.
18. ATTORNEYS’
FEES. The prevailing party in any legal proceeding arising out of or resulting from this Amendment shall be entitled to recover
its costs and fees, including, but not limited to, reasonable attorneys' fees and post judgment costs, from the other party.
19. AUTHORIZATION.
The persons executing this Amendment on behalf of the Company and Consultant hereby represent and warrant to each other that they
are the duly authorized representatives of their respective entities and that each has taken all necessary corporate or partnership
action to ratify and approve the execution of this Amendment in accordance with its terms.
20. COUNTERPARTS.
This Amendment may be executed in counterparts, each of which is deemed an original, but all of which constitutes one and the same
agreement. Delivery of an executed counterpart of this Amendment electronically or by facsimile shall be effective as delivery
of an original executed counterpart of this Amendment.
[Signature Page on Follows]
IN WITNESS WHEREOF,
the parties hereto have executed this Amendment on the date first written above.
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Company: |
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MusclePharm Corporation |
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By: |
/S/ Brad Pyatt |
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Name: |
Brad Pyatt |
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Title: |
Chief Executive Officer and President |
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Executive: |
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/S/ Richard Estalella |
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Name: Richard Estalella |
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