Exhibit
10.23


 


SETTLEMENT
AGREEMENT AND MUTUAL RELEASE


 


This
Settlement Agreement and Mutual General Release (the “Agreement”) is entered into as of December 11, 2020 (the “Effective
Date”) by and between Plaintiff Excelsior Nutrition, Inc. (“Plaintiff” or “4Excelsior”) and Defendant
MusclePharm Corporation (“Defendant” or “MusclePharm”). Excelsior and MusclePharm are referred to individually
as a “Party” and collectively as the “Parties.”


 


RECITALS


 


WHEREAS,
4Excelsior has asserted claims against MusclePharm in a complaint filed in the Superior Court of California, Los Angeles County
(the “Court”), captioned Excelsior Nutrition, Inc. v. MusclePharm Corporation, Case No. 19BBCV00230 (the “Action”);


 


WHEREAS,
MusclePharm has asserted counterclaims against 4Excelsior in the Action;


 


WHEREAS,
4Excelsior and MusclePharm disclaim any liability to the other party, deny all claims asserted by the other party, and deny that
the other party is entitled to any relief, monetary, equitable or otherwise; and


 


WHEREAS,
the Parties now wish to resolve all issues amongst themselves and forever discharge each other from and against all claims asserted
in or arising from the Action.


 


NOW,
THEREFORE, in consideration of the mutual promises and other good and valuable consideration provided in this Settlement Agreement,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:


 


AGREEMENT


 


1.
Settlement Payments. MusclePharm agrees to and shall pay the total sum of Four Million Seven Hundred and Fifty Thousand
Dollars ($4,750,000.00) (the “Settlement Amount”) as follows:


 


	 	■	Seventy
    Thousand Dollars ($70,000.00) payable on or before January 5, 2021;
	 	■	Seventy
    Thousand Dollars ($70,000.00) payable on or before February 5, 2021;
	 	■	Seventy
    Thousand Dollars ($70,000.00) payable on or before March 5, 2021;
	 	■	Seventy
    Thousand Dollars ($70,000.00) payable on or before April 5, 2021;
	 	■	One
    Hundred Thousand Dollars ($100,000.00) per month, payable on or before the fifth (5th) day of each month until the Settlement
    Amount is fully paid, starting with $100,000.00 due on or before May 5, 2021 (each, a “Settlement Payment”).


 


MusclePharm
may prepay all or any portion of the Settlement Amount at any time without penalty or premium.


 


Excelsior
Nutrition, Inc. v. MusclePharm Corporation


Los
Angeles County Superior Court Case No. 19BBCV00230





 




    	 	 	 



    	 



    




 


2.
Wire Transfers and Insufficient Funds. Each Settlement Payment shall be made in the form of wire transfer. The Settlement
Payments shall be made payable to:


 


Excelsior
Nutrition, Inc. DBA 4Excelsior


1206
N. Miller Street, Suite D


Anaheim,
CA 92806


 


Wire
Transfer Payment Instructions:


 [***] 


 


4Excelsior
may, at any time, designate an alternative address for payment upon prior written notice to MusclePharm. Written notice must be
provided at least ten (10) days prior to the next payment date. A check drawn on insufficient funds does not constitute a Settlement
Payment, and as such shall constitute a Default (as defined in Section 4), unless corrected within the Notice Period (as defined
in Section 3). 4Excelsior’s acceptance or depositing of a Settlement Payment, which is less than the amount due, shall not
be deemed a waiver of 4Excelsior’s rights to the balance of such payment, regardless of 4Excelsior’s endorsement of
any check or other form of payment so stating.


 


3.
Payment Default and Cure Period. In the event MusclePharm fails to make any Settlement Payment on the day it becomes
due and payable, 4Excelsior shall provide written notice of said failure to MusclePharm (in accordance with the notice provisions
hereof) and MusclePharm shall be afforded a ten (10) calendar day period from the date of the notice within which to cure the
non-payment (the “Notice Period”). The non-payment shall be considered cured if payment is made within the Notice
Period.


 


4.
Default. At the election of 4Excelsior, the entire outstanding balance of the Settlement Amount shall become immediately
due and payable upon the occurrence of any of the following events (each, a “Default”): (i) MusclePharm’s failure
to make a Settlement Payment, in readily available funds on the day it becomes due and payable, which failure is not then cured
in accordance with Section 3; (ii) the filing by MusclePharm of a petition in bankruptcy or an assignment for the benefit of creditors;
(iii) the appointment of a receiver, trustee, liquidator, or similar officer for MusclePharm, which appointment is not subject
to active appeal; or (iv) a breach of any material term, provision, or covenant contained in this Agreement, including an inaccurate
material representation or warranty, by MusclePharm that is not susceptible to cure, or if susceptible to cure is not cured within
thirty (30) calendar days after 4Excelsior provides MusclePharm with notice of such breach (in accordance with the notice provisions
hereof). For the avoidance of doubt, the thirty (30) calendar day cure period does not apply to the ten (10) day cure period applied
to MusclePharm’s obligation to make Settlement Payments. In the event of a Default by MusclePharm, 4Excelsior shall be entitled
to immediately have judgment entered in favor of 4Excelsior and against MusclePharm on that portion of the Settlement Amount then
not yet paid, plus accrued interest thereafter at the rate of eighteen percent (18%) per annum on such amount, commencing from
the date of Default, upon ex parte application without notice pursuant to California Code of Civil Procedure Section 664.6,
for the amount set forth in the Stipulation referred to below. In the event of a Default, MusclePharm shall waive its right to
an appeal and agrees to pay any reasonable expenses incurred thereafter to reduce the remaining Settlement Amount to a judgment.





 


Excelsior
Nutrition, Inc. v. MusclePharm Corporation


Los
Angeles County Superior Court Case No. 19BBCV00230


 




    	 	 	 



    	 



    

 


5.
Stipulation of Judgment. Concurrently with the execution of this Agreement, the Parties shall execute, and shall
authorize and direct their respective legal counsel to execute, a Stipulation for Entry of Judgment and Proposed Order Thereon
(the “Stipulation”) in form attached hereto and incorporated herein as Exhibit “A.” The Stipulation will
be held in trust by 4Excelsior’s counsel, and will not be filed with the Court unless and until such time as there is a
Default. Pursuant to the Stipulation, the Parties will stipulate that judgment shall be entered in favor of 4Excelsior and against
MusclePharm in the amount of Four Million Seven Hundred and Fifty Thousand Dollars ($4,750,000.00), less the sum of any Settlement
Payments, or portion thereof, then previously made by MusclePharm pursuant to this Agreement. The Parties further stipulate that
4Excelsior shall be entitled to recover from MusclePharm all reasonable costs incurred by 4Excelsior in construing and enforcing
the terms of this Agreement and the Stipulation (but excluding any attorneys’ fees expended in connection with the Action),
and in pursuing the recovery of all sums owed to 4Excelsior with respect to any judgment entered thereon by the Court.


 


6.
Time is of the Essence. Time is of the essence with respect to MusclePharm’s payment obligations as set forth
in this Agreement.


 


7.
Mutual Release. In consideration of the terms and provisions of this Agreement, the Parties hereto and their heirs,
beneficiaries, known or unknown, whether vested or contingent, executors, administrators, assigns, agents, servants, officers
directors, stockholders, general partners, limited partners, employees, insurers, reinsurers, representatives, attorneys and successors
in interest, and any and all other persons or entities acting by, under, through or in concert with them or any of them, do hereby,
completely, finally and forever settle, remise, covenant not to sue, release, relinquish and discharge one another, and their
heirs, beneficiaries, known or unknown, whether vested or contingent, executors, administrators, assigns, agents, servants, officers,
directors, stockholders, general partners, limited partners, employees, insurers, representatives, attorneys and successors in
interest, and any and all other persons or entities acting by, under, through or in concert with them or any of them of and from
any and all claims, known or unknown, arising out of or relating to the Action. For the avoidance of doubt, nothing herein shall
serve as a release of any claims for personal/bodily injury, the subject of which have not been pled or alleged in the Action


 


8.
California Civil Code 1542. To effect a full and complete general release as described above, the Parties expressly
waive and relinquish all rights and benefits of Section 1542 of the California Civil Code, and the Parties do so understanding
and acknowledging the significance and consequence of specifically waiving section 1542. Section 1542 of the California Civil
Code states as follows:





 


Excelsior
Nutrition, Inc. v. MusclePharm Corporation


Los
Angeles County Superior Court Case No. 19BBCV00230


 




    	 	 	 



    	 



    




 


A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.


 


9.
Dismissal of Litigation. Within ten (10) business days of the Effective Date, the Parties shall jointly file a Stipulation
and Proposed Order of Dismissal in the Action, dismissing with prejudice all claims and counterclaims asserted in the Action.
The Stipulation and Proposed Order of Dismissal shall provide that the Court shall retain jurisdiction pursuant to California
Code of Civil Procedure Section 664.6 and any other applicable laws to enforce the terms of this Agreement. Each Party shall bear
its own attorney’s fees and expenses incurred in connection with the Action and/or in connection with the drafting of this
Agreement.


 


10.
Integration, No Oral Modification. This Agreement memorializes and constitutes the final expression and understanding
between the Parties, and supersedes and replaces all prior negotiations and agreements, whether written or oral. This Agreement
may only be amended or modified by a writing signed by the Parties hereto, wherein specific reference is made to this Agreement.


 


11.
Attorneys’ Fees for Enforcement. In any action or proceeding to interpret or enforce the terms and provisions
of this Agreement, the prevailing party shall be awarded its reasonable attorneys’ fees and costs including costs of all
legal or administrative proceedings.


 


12.
Representations. The Parties represent and warrant that no person or entity other than the Parties have had any
interest in the claims, demands, obligations, or causes of action referred to in this Agreement, and that they have not sold,
assigned, transferred, conveyed, or otherwise disposed of any of the claims, demands, obligations, or causes of action referred
to in this Agreement.


 


13.
No Admission of Liability. It is understood and agreed by the Parties that this Agreement is not be construed as
an admission of liability on the part of the Parties and that each of the Parties expressly denies any liability for any negligence,
warranty, or other damage of any kind of nature.


 


14.
Confidentiality. The Parties and their counsel agree to keep the terms of this Agreement confidential, except for:
(1) disclosures required in any proceeding necessary for approval of this settlement; (2) when compelled to disclose them in response
to a valid order or other decree from a court of competent jurisdiction; (3) disclosures to financial professionals as necessary
for the receipt of accounting services; or (4) a brief high-level summary of the terms in MusclePharm’s securities filings,
as reasonably required by the opinion of MusclePharm’s securities counsel. To the extent that the terms of this Agreement
are disclosed in any legal proceedings, the Parties will assent to the sealing of said proceedings or the terms of the settlement.
MusclePharm shall also be permitted to file with or furnish to the Securities and Exchange Commission (the “SEC”)
any specific disclosure of this Agreement or the terms or substance thereof or include this Agreement as an exhibit to any report,
statement or other document filed with or furnished to the SEC if (i) MusclePharm receives a written or oral comment from the
SEC requiring MusclePharm to make any such disclosure; or (ii) MusclePharm believes in good faith, including upon the advice of
counsel or its auditors, that MusclePharm is required to make any such disclosure of this Settlement Agreement or the terms or
substance thereof in any such report, statement or other document, including pursuant to Regulation S-K, Regulation S-X or other
applicable accounting standards or interpretations or to prevent a material misstatement in or omission of a material fact from
any filing or other disclosure made by it; provided, that, to the extent that MusclePharm believes that it can do so in good faith,
in connection with any public filing of this Agreement as an Exhibit with the SEC, MusclePharm shall seek confidential treatment
of those portions of this Agreement for which it in good faith believes confidential treatment is appropriate under the SEC’s
standards for granting confidential treatment.


 


Excelsior
Nutrition, Inc. v. MusclePharm Corporation


Los
Angeles County Superior Court Case No. 19BBCV00230





 




    	 	 	 



    	 



    




 


15.
Governing Law. This Agreement shall be governed and conformed in accordance with the laws of the State of California
without regard to its conflict of laws provision. In the event of a breach of any provision of this Agreement, either party may
institute an action specifically to enforce any term or terms of this Agreement and/or seek any damages for breach.


 


16.
Jurisdiction. The Parties hereby acknowledge, agree and stipulate that each has the right to enforce any provision
of this Agreement by filing any appropriate action, proceeding or motion in the appropriate law and motion department of the Los
Angeles Superior Court. The Parties further acknowledge, agree and stipulate that the Los Angeles Superior Court shall retain
jurisdiction over the Parties to enforce any provision of this Agreement.


 


17.
Counterparts. This Agreement may be executed in one or more counterparts with the same effect as if all Parties
hereto had signed the same agreement, but all of which taken together shall constitute one and the same agreement. A facsimile
or email transmission of a scanned, executed counterpart of this Agreement shall be sufficient to bind a party to the same extent
as an original.


 


18.
Severability. In the event that any one or more of the provisions of this Agreement will be found to be invalid,
illegal or unenforceable in any respect, such term will be severed from the Agreement and the remaining terms and provisions hereof
will be unimpaired and remain in full force and effect.





 


Excelsior
Nutrition, Inc. v. MusclePharm Corporation


Los
Angeles County Superior Court Case No. 19BBCV00230





 




    	 	 	 



    	 



    




 


19.
Notices. Any notice or other material required or desired to be served, given or delivered hereunder must be sent
by certified mail (return receipt requested), and, in all cases, with a separate copy sent by email to all email addresses set
forth below. To the extent the individuals who are to receive notice change, notice should be provided to the other Party within
fourteen (14) days. Each notice shall be addressed as follows:


 


If
to Excelsior Nutrition, Inc.:


 


	Excelsior Nutrition, Inc. d/b/a 4Excelsior
	Attn:
    	____________________
	1206 N. Miller Street, Suite D
	Anaheim, California 92806
	Tel.:
    	____________________
	Email:	____________________


 


-
with a copy to -


 


	MILSTEIN JACKSON FAIRCHILD & WADE, LLP
	Attn: Sahar S. Pugh, Esq.
	620 Newport Center Drive, Suite #1100
	Newport Beach, California 92660
	Tel.:	(949)
    719-2480
	Fax:
    	(949)
    719-2481
	Email:	spugh@mjfwlaw.com;
    hkang@mjfwlaw.com


 


If
to MusclePharm Corporation:


 


MUSCLEPHARM
CORPORATION


Attn:
Allen Sciarillo, Chief Financial Officer


4500
Park Granada Blvd, Suite 202


Calabasas,
California 91302


Tel.:
(805) 300-1372


 


-
with a copy to -


 


	KASOWITZ BENSON TORRES LLP
	Attn: Robert W. Bosslet
	2029 Century Park East, Suite 2000
	Los Angeles, California 90067
	Tel.:	(424)
    288-7900
	Fax:	(424)
    288-7901
	Email:	rbosslet@kasowitz.com


 


-
and-


 


	KASOWITZ BENSON TORRES LLP
	Attn: Gavin D. Schryver
	1633 Broadway
	New York, New York 10019
	Tel.:	(212)
    506-1891
	Fax:	(212)
    835-5291
	Email:	gschryver@kasowitz.com


 


[Signature
Pages Follow]


 


Excelsior
Nutrition, Inc. v. MusclePharm Corporation


Los
Angeles County Superior Court Case No. 19BBCV00230



 




    	 	 	 



    	 



    

 


In
witness whereof, this Agreement is entered into by, and each and every term herein is agreed to by the undersigned.


 


	Dated:
    December 15, 2020	/s/
    Lin Yisheng
	 	EXCELSIOR
    NUTRITION, INC.
	 
	Dated:
    December 16, 2020	/s/
    Allen Sciarillo
	 	MUSCLEPHARM
    CORPORATION
	 
	APPROVED
    AS TO FORM AND CONTENT:
	 
	 	MILSTEIN
    JACKSON
	 	FAIRCHILD
    & WADE, LLP
	 	 
	Dated:
    December 18, 2020	By:	/s/
    Sahar Pugh
	 	 	Sahar
    Pugh, Esq.
	 	 	Attorneys
    for Plaintiff,
	 	 	Excelsior
    Nutrition, Inc.
	 	 
	 	KASOWITZ
    BENSON TORRES, LLP
	 	 
	Dated:
    December 16, 2020	By:	/s/
    Robert Bosslet
	 	 	Robert
    Bosslet, Esq.
	 	 	Attorneys
    for Defendant,
	 	 	MusclePharm
    Corporation


 


Excelsior
Nutrition, Inc. v. MusclePharm Corporation


Los
Angeles County Superior Court Case No. 19BBCV00230