EXECUTIVE
EMPLOYMENT AGREEMENT


 


THIS
EXECUT IVE EMPLOYMENT
AGREEMENT ("Agreement") is made and entered
into as of July 15,
2015 (the "Effective Date"), by
and between MusclePharm Corporation,
a Nevada Corporation
(the "Company"), and Brian Casutto, 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 July 15, 2015
(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.	Employment and Duties



 


1.1             
Employment.
The Company hereby
agrees to employ
Executive
as Executive
Vice President -
Sales & Operations 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 a person to be
determined by the
Chairman
of the Board
of Directors of the Company.
In accordance with
Section 5.2 (Termination
by the
Company
Without Cause),
and subject
to the severance
provisions set forth
in Section 6.3, to
the extent applicable, the
Executive
shall
be an employee
at will of
the Company.


 


1.2              
Duties. Executive
shall
have the overall
responsibility as the Executive
Vice President -
Sales & Operations 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 here
under
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.




     


     


    


		2.	Term



 


Un
less 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, 2017
(the
·'Expiration Date").
Such period,
as may be terminated earlier or extended, to be referred to herein as the "Term".


 


		3.	Compensation



 


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 $300,000. 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 up to $300,000 per
year
(to be adjust
prorated for calendar
year 2015),
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 shall
be entitled to receive
50,000 shares
of the
company’s common
stock within thirty
(30) days of the
Effective
Date. The restricted
stock agreement pertaining
to such grant of
restricted shares
shall contain a
three
(3) year vesting schedule
and other customary terms
and conditions
in accordance
with
the Company's
prior practices.
In addition
to the grant
provided in this
Section 3.3,
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 l62(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,
if Executive
provides
adequate documentation
required by
law and
by the policies
and procedures
of the Company,
as adopted and amended
from time to time,
if 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. Executive
shall be entitled to a taxable
monthly vehicle allowance
of $1,000,
and a miscellaneous
expense allowance of
up to $5,000.


 


 


		4.	Confidential Information; Non-Compete;
Non-Solicitation



 


4.1               
Confidential
Information.Executive
acknowledges that, during 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
about 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 twelve
(12)  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. The Executive here by agrees that in addition
to any other remedies available to the Company at law or in equity, in the event of a breach of this Section 4.2 by the executive,
the Company shall no longer be obligated to make any severance payments to the Executive.


 


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 inequity.
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.


 


		5.	Termination



 


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 the extent
permitted by law, to be
immediately
effective 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 la
w, upon 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 determine
d 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 prope11y
to the Company.


 


		6.	Effect of Termination



 


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 ret
urn 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
l 985 ("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) twelve
(12) 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 twelve (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)
(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 COB
RA 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
6.1 (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
CO BRA 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
typic
ally
required for an executive
in this
position.


 


		7.	Successors and Assigns



 


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
bene
fit of and shall
be binding
upon
the parties and their
successors
and assig
ns.




     


     


    


		8.	Severability



 


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 la w.


 


l0.Binding
Arbitration


 


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 Executive's,
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.


 


		11.	Section Headings



 


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 win 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.


 


		13.	Entire Agreement



 


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.


 


		14.	Notice



 


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 Unite
d 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


4721
Ironton Street, Building A


Denver,
Colorado 80239


Facsimile
(800) 490-7165




 


 


If
to Executive:




 


Brian
Casutto


 


 


 





 


 


 


		15.	Attorneys' Fees



 


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 occur ring
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.


 


		17.	Release of Claims



 


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.




     


     


    


		19.	Counterparts



 


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 WHICH COULD ARISE FROM THE
AGREEMENT.


 


(Signature
Page Follows)




     


     


    


 


 


 


 


 


 


 


 


 


 


IN WTINESS WHEREOF, this Agreement is
executed as of the day and year first above written.


 


 


MusclePharm
Corporation


 


 


By: /s/ Richard Estalella


Name: Richard Estalella


Title: President


 


Executive


 


By: /s/ Brian Casutto


Name: Brian Casutto