**Exhibit 10.20.1**

 

Asof April 1, 2006 (the Effective Date”)

 

Mr. EarnestMathis, Jr.

CEO

VitacubeSystems Holdings, Inc. and XELR8, Inc.

 

**Re:****                            ****Carnell “Cadillac” WilliamsAgreement**

 

DearMr. Mathis

 

Thisendorsement contract (“Agreement”) will set forth the understanding between Carnell“Cadillac” Williams (“Athlete”), with an address c/o SFX Sports Group, Inc.(“SFX Sports”), 222 South Central, Suite 1008, St. Louis, MO 63105 (Attn: MarkHeligman) and Vitacube Systems Holdings, Inc. and its wholly owned subsidiaryXELR8, Inc. (“Company”), with an address of 480 South Holly Street,Denver, CO 80246 (Attn. Earnest Mathis). The terms of the Agreement are asfollows:

 

1.                                       GRANT OF NAME AND LIKENESS RIGHTS. Subject to the terms and conditionshereinafter set forth, Athlete hereby grants to Company the rights, within theContract Territory (as defined in Section 5, below) and during the Term(as defined in Section 2, below), to utilize Athlete’s name, likeness,voice, approved photograph, signature, and biography (the “Athlete Endorsement”)solely in connection with the promotion of Company, including annual reports,registration statements, prospectus and other filings with the Securities ExchangeCommission.. Company shall have the right and license to use the AthleteEndorsement in all forms of advertising solely within the Contract Territory,including, but not limited to television, radio, point-of-purchase displays,consumer print, and free-standing in-store inserts (collectively, the “Materials”),and Independent Distributors websites all as approved by Athlete or hisbusiness representatives, SFX Sports, in accordance with Section 8 belowand solely and directly in connection with the promotion of Company. Inaddition, Contractor grants Company the rights to utilize the AthleteEndorsement on the Internet directly in connection with the promotion of Company(subject to Section 8 below), subject to, although not limited to, thefollowing conditions:  (i) in noevent shall Company be permitted to create an Athlete-based home page; and (ii) Companyshall not be permitted to conduct “chat sessions” utilizing Athlete’s servicesother than the Endorser conference calls that the Company hosts from time totime..

 

2.                                       TERM. The term of this Agreement shall commence as of the Effective Date, andshall continue for a period of three (3) years, unless earlier terminatedpursuant to the terms contained herein (the “Term”). For purposes of thisAgreement, each 12-month period commencing with the Effective Date shall bedeemed a “Contract Year” (i.e. “Contract Year One shall commence April 1,2006 and run through March 31, 2007; “Contract Year Two” shall commence onApril 1, 2007 and conclude on March 31, 2008; etc.)

 

3.                                       RETENTION OF ENDORSEMENT RIGHTS.       Subject to the provisions of Section 1above, Company agrees that Athlete shall retain all rights in and to theAthlete Endorsement during the Term, and Athlete shall not be prevented fromusing, or permitting and/or licensing others 

 

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to use, the Athlete Endorsement in connection withthe advertisement, promotion, or sale of any company, product or service,except in the nutritional supplement, functional food and vitamins category.

 

4.                                       ATHLETE’S SERVICES.

 

A.                                   During each Contract Year, Athlete agrees tobe available for one (1) production session in connection with theproduction of the Materials solely in the promotion of the Company (the “ProductionSession”). The Production Session shall last no longer than four (4) consecutivehours (excluding reasonable rest and lunch breaks), and shall take place at atime, date and location compatible with Athlete’s schedule and which aremutually convenient to Athlete and Company. It is understood that theProduction Sessions will be set at times that does not interfere with the Athlete’sprofessional commitments. If reasonably requested by Athlete, Company shallarrange, pay for and provide Athlete and one (1) companion or businessassociate each with first-class round-trip air and ground transportation,hotel accommodations, meals and other reasonable incidental expenses incurredin connection with the Production Session. A failure by Company to utilize theProduction Session in any Contract Year shall be deemed a waiver of suchProduction Session, which shall not carry over to a subsequent Contract Year.

 

B.                                     During each Contract Year, Athlete shall beavailable to participate in up to two (2) conference calls with Company(the “Conference Calls”), each not to exceed five minutes (00:05:00) in length.The Conference Calls shall take place at a time and date which compatible withAthlete’s schedule and which is mutually convenient to Athlete and Company.The Conference Calls shall be subject to Athlete’s professional commitments. Companyagrees that Athlete shall bear no costs in connection with the Conference Callsand, in this regard, Company shall provide Athlete with a toll-free call inphone number in order to participate in the Conference Calls. A failure byCompany to utilize any of the Conference Calls in any Contract Year shall bedeemed a waiver of such Conference Call, which shall not carry over to asubsequent Contract Year.

 

C.                                     During each Contract Year, Athlete agrees tobe available for one (1) Company-sponsored event (the “Event”), lasting nomore than three (3) days, during which time Athlete shall be expected toparticipate in no more than three (3) separate commitments over the three (3) dayperiod (each, a “Commitment”). Each Commitment shall last no longer than two (2) consecutivehours in length, during which time Athlete shall provide services as mutuallyagreed (i.e. “meet and greet”, pose for photographs, etc.). The Event shalltake place at a time, date and location compatible with Athlete’s schedule andwhich is mutually convenient to Athlete and Company. The Event shall be subjectto Athlete’s professional commitments. Company shall arrange, pay for andprovide Athlete and one (1) companion or business associate each withfirst-class round-trip air and ground transportation, hotelaccommodations, meals and other reasonable incidental expenses incurred inconnection with the Event. A failure by Company to hold the Event in anyContract 

 

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Year shall be deemed a waiver of Athlete’sresponsibilities in connection therewith, and such shall not carry over to asubsequent Contract Year.

 

D.                                    During each Contract Year, Athlete shallpersonally autograph up to twenty-five (25) items of memorabilia (the “Memorabilia”).It is agreed that all Memorabilia shall be provided by Company, at Company’ssole cost and expense. Athlete and SFX Sports shall have the absolute right offinal approval of all Memorabilia to be signed, which shall not be unreasonablywithheld. Company agrees that all Memorabilia shall be used solely as internalemployee or independent distributors incentives and shall NOT be sold,auctioned, bartered, or offered for retail sale to third parties. Athlete shallautograph each Memorabilia item with a pen provided by Company, with eachautograph having as little variance as possible. A failure by Company toprovide Athlete with the Memorabilia in any Contract Year shall be deemed awaiver of Company’s rights in connection therewith for that respective ContractYear, and such Memorabilia shall not carry over to a subsequent Contract Year.

 

E.                                      During each Contract Year, Athlete agrees toprovide Company with up to two (2) tickets to each of two (2) TampaBay Buccaneers (the “Bucs”) regular season home games during the respectiveContract Year (the “Tickets”). The location of said tickets shall be at Athlete’ssole discretion. Company agrees to provide SFX Sports with at least four (4) weeks’notice in its request for any Tickets, and all Tickets shall be subject toavailability at the time of Company’s request.

 

F.                                      Consistent with Athlete’s agreement toendorse Company hereunder, Company will provide Athlete with assorted clothingand gear bearing the Company’s names and/or logos, which Athlete shall usereasonable efforts to wear from time to time in public in the Territory,subject to the restrictions of any third party apparel endorsement agreementAthlete may now or hereinafter have during the Term. In this regard,Company agrees to consult with Athlete in order that Athlete may selectclothing and gear to his liking.

 

G.                                     The Athlete will use his best efforts tonotify Company 72 hours in advance if Athletes is unable to appear at, orparticipate in, any Production Session, Conference Call or the Event, then insuch event, Company may request the appearance of Athlete at a mutuallyagreeable date to Athlete, SFX Sports, and Company within two (2) monthsof the original Production Session, Conference Call or the Event date in orderto provide comparable****services. Athlete’sfailure to attend the mutually agreed upon rescheduled Production Session,Conference Call or the Event shall be deemed to be a breach of this Agreement. Additionally,in circumstances where Athlete’s failure to attend the Production Session,Conference Call or the Event was not caused by any gross, willful misconduct onthe part of Athlete, Athlete shall bear no costs whatsoever (including byway of example only, incidental or consequential damages, whether foreseeableor not, and/or reliance costs) expended by, or charged to, Company as a resultof Athlete’s inability to attend the Production Session, Conference Call or theEvent. This shall include, but is not limited to, circumstances wherein anyprofessional commitments arise after Athlete had originally agreed on the time,date, and/or location of the Production Session, Conference Call or the Event.

 

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H.                                    In order for the Company and Athlete tocomply with Federal Trade Commission guidelines, which require, among otherthings, that endorsements be based on the Athlete’s personal use, knowledge, orexperience with the products at or about the time the endorsement is made,XERL8 will provide the Athlete with complementary product for personal use.Athlete will sign the attached affidavit confirming that the Athlete hascomplied with the FTC guidelines.

 

5.                                       TERRITORY. For the purposes of this Agreement, “Contract Territory” shall meanthe United States of America and territories..

 

# **6.**                                       COMPENSATION. During the term of thisAgreement, Athlete shall receive the following compensation (the “Compensation”):

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A.                                   *Execution of Agreement.* Upon the execution of this Agreement,Company shall provide Athlete:

 

(i)                                     options (“Original Options”) to purchase20,000 shares of the Company’s common stock at fair market value as of the dateof the grant (i.e. the date of full-execution of this Agreement by both parties)exercisable for a period of five (5) years, and

 

(ii)                                  the number of restricted shares of theCompany’s common stock (“Original Shares”) that equal a value of Sixty ThousandDollars ($60,000) based on the previous day’s closing price of the Company’scommon stock (the “Trading Price”). For illustration purposes only, if theTrading Price is $1.25 per share, Athlete shall receive 48,000 shares whichequals $60,000 divided by $1.25, or if the Trading Price is $1.50 per share,Athlete shall receive 40,000 shares which is $60,000 divided by $1.50.

 

B.                                     *End of Contract Year One.* At the end of Contract Year One, Companyshall provide Athlete:

 

(i)                                     options (“First Year Options”) to purchase20,000 shares of the Company’s common stock at fair market value as of the dateof the grant (the final day of Contract Year One) exercisable for a period offive (5) years; and

 

(ii)                                  if the value of the Original Shares and theOriginal Options on such date do not equal $110,000, then Company shall provideAthlete shares of common stock and/or options (“First Year AdditionalSecurities”) to purchase shares of the Company’s common stock exercisable for aperiod of five (5) years from the date of grant that will equal thedifference between $110,000 and the value at such time of the Original Sharesand the Original Options. If all or part of the Original Shares were soldsuch Original Shares shall be valued at the higher of the price that the shareswere sold or the closing price of the Company’s common stock on the dayimmediately prior to the first anniversary date of this Agreement (the “TradingPrice”). If the Original Options were exercised in whole or in part, theOriginal Options shall be valued at the higher of the gross profit realizedfrom the exercise of the Original Options or the difference between theexercise price and the Trading Price. For illustration purposes only, (i) ifthe value of the Original Shares received by the Athlete 

 

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together with (ii) thevalue of the 20,000 options equals $80,000 on the first anniversary date ofthis Agreement, then the Company shall issue additional shares of common stockand/or grant additional options to equal such difference of $30,000; and

 

(iii)                               Notwithstanding the foregoing, if the valueof the Original Shares and the Original Options on the first anniversary dateof this Agreement do not equal $110,000 as set forth in 2b above, then Company,at its option, may elect to terminate this Agreement upon written noticeto the Athlete within five (5) business days after the first anniversarydate of this Agreement. Upon such written notice, no further Compensation shallbe due to Athlete and the Compensation paid to Athlete in accordance with Section 6.Aabove shall be the only obligation for payment by Company to Athlete pursuantto this Agreement, Athlete shall have no further obligations to Company, andAthlete shall immediately have the right to enter into an agreement with any ofCompany’s competitors.

 

C.                                     *End of Contract Year Two.* At the end of Contract Year Two, Companyshall provide Athlete:

 

(i)                                     options to purchase 20,000 shares of Company’scommon stock at fair market value as of the date of the grant (the final day ofContract Year Two) exercisable for a period of five (5) years; and

 

(ii)                                  if the value of the Original Shares, theOriginal Options and the First Year Additional Securities on such date do notequal $160,000, then Athlete shall receive shares of common stock and/oroptions to purchase shares of Company’s common stock exercisable for a periodof five (5) years from the date of grant that will equal the differencebetween $160,000 and the value at such time of the Original Shares and theOriginal Options. All valuations shall be as set forth in Section 6.B.(ii) above.

 

(iii)                               Notwithstanding the foregoing, if the valueof the Original Shares, the Original Options and the First Year AdditionalSecurities on the second anniversary date of this Agreement do not equal$160,000 as set forth in Section 6.C.(ii) above, then Company, at itsoption, may elect to terminate this Agreement upon written notice toAthlete within five (5) business days after the second anniversary date ofthis Agreement. Upon such written notice, no further Compensation shall be dueto Athlete and the Compensation paid to Athlete in accordance with Sections6.A.and 6.B. above shall be the only obligation for payment by Company toAthlete pursuant to this Agreement, Athlete shall have no further obligationsto Company, and Athlete shall immediately have the right to enter into anagreement with any of Company’s competitors

 

7.                                       WEBSITE LINKS. Each party shall provide the other with anopportunity to link their respective websites to the other’s official website.

 

8.                                       APPROVAL. Company agrees to submit to Athlete and SFX Sports (Attention: MarkHeligman), for their approval and review, a copy of all materials utilizing theAthlete Endorsement (or any portion thereof, including scripts) at least seven (7) daysprior to any release whatsoever; and Company further agrees that the same shallnot be released without prior written approval of SFX Sports.

 

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Approval should not be unreasonably withheld, andthe Athlete and SFX Sports agree to provide written approval or disapprovalwithin seven (7) days of receipt of the request for approval.

 

Company’s breach or threatened breach of anyprovision(s) of this section will cause irreparable harm to Athlete. Accordingly,Company’s breach or threatened breach of any provision(s) of this section shallgive Athlete the immediate right to equitable relief (including but not limitedto a permanent injunction) in order to stop or prevent Company from breachingthis section. Such relief shall be in addition to, and not in limitation of,any and all other remedies available to Athlete in law or equity. Any breach of this section by Companyshall be deemed a material breach of this Agreement. In addition, failureto adhere to the terms of Section 8 shall give Athlete the right toimmediately terminate this Agreement upon written notice to Company. Suchliability shall be in addition to, and not in limitation of, any and all otherremedies available to Athlete in law or equity.

 

9.                                       NO GRANT OF TRADEMARK RIGHTS. Athlete and SFX Sports do not grant nor dothey purport to grant to Company the right to use any name, logo, trademark,uniform or servicemark owned by the National Football League (“NFL”), PlayersInc., The Quarterback Club, and/or any NFL member team, including anyphotographs of Athlete in an NFL uniform or any reference to the NFL. Companyagrees and acknowledges that it must obtain approval from the appropriate thirdparty for the use of any such marks or insignias, and in the absence of suchwritten approval, shall not make any use whatsoever thereof.

 

10.                                 INDEMNITY. Company agrees to protect, indemnify, save, and hold harmlessAthlete, SFX Sports, and each of their assigns, agents, heirs, representatives,affiliates, subsidiaries, parent entities, officers, directors, shareholders,and employees (collectively, the “Indemnified Parties”) from and against anyand all expenses, damages, claims, suits, actions, judgments, costs andexpenses whatsoever (including reasonable attorneys’ fees) (collectively, “Claims”)arising out of, or in any way connected with (i) any injury, death orother harm or claim connected with any product or service provided,manufactured, produced, marketed, promoted, sold, and/or distributed by Company(including any party affiliated with Company); (ii) any act, whether ofomission or commission, that may be committed or suffered by Company(including any of their affiliates, servants, agents or employees); and/or (iii) theperformance of Company’s duties and obligations hereunder, including withoutlimitation, the performance by any of Company’s agents, employees, affiliates,fiduciaries, subcontractors and/or licensees hereunder, or any breach of any ofCompany’s obligations, agreements, representations or warranties hereunder.

 

Athlete agrees to protect, indemnify, save, and holdharmless Company and its assigns, agents, heirs, representatives, affiliates,subsidiaries, parent entities, officers, directors, shareholders, and employeesfrom and against any and all expenses, damages, claims, suits, actions,judgments, costs and expenses whatsoever (including reasonable attorneys’ fees)(collectively, “Claims”) arising out of, or in any way connected with amaterial breach of any of Athlete’s obligations hereunder this Agreement. Suchidentification shall be limited to actual and direct damages.

 

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11.                                 SPECIAL RIGHT OF TERMINATION BY COMPANY.

 

A.                                   In addition to Company’s right to terminatethis Agreement pursuant to Section 6 herein, Athlete agrees that Companyshall have the right to terminate this Agreement upon thirty (30) days priorwritten notice to Athlete:

 

(1)                                  In the event of Athlete’s death prior to hiscompletion of the Services set forth in Section 4; or

 

(2)                                  In the event Athlete materially breaches thisAgreement and fails to cure such a breach within thirty (30) days after receiptof written notice of such a breach; or

 

(3)                                  In the event that the Athlete engages in anyconduct that could bring Athlete or Company into public disrepute, contempt,scandal or ridicule, as determined by Company in its reasonable discretion.

 

B.                                     If Company terminates this Agreement underthis Section 11 (or pursuant to any other term contained herein), thefollowing conditions shall apply:

 

(1)                                  Neither Company nor Athlete shall have anyfurther rights, duties, or obligations under this Agreement, except thoselisted in Section 11.B.

 

(2)                                  Company shall immediately pay to Athlete apro-rated portion of the Compensation, if such Compensation remains unpaid.

 

(3)                                  Notwithstanding 11.B.(1) above, Companyshall continue to have the right and license to utilize the Athlete Endorsementpursuant to the terms and conditions of this Agreement for the thirty (30) dayperiod immediately following the date of Company’s termination of thisAgreement (the “Grace Period”).

 

(4)                                  At the conclusion of the Grace Period,Company shall no longer have any rights in and to the Athlete Endorsement, andall such rights shall immediately and irrevocably revert back to Athlete.

 

12.                                 SPECIAL RIGHT OF TERMINATION BY ATHLETE.

 

A.                                   In addition to Athlete’s right to terminatethis Agreement pursuant to Section 8 herein, Company agrees that Athleteshall have the right to terminate this Agreement upon thirty (30) days priorwritten notice to Company:

 

(1)                                  In the event Company is adjudged, declares,or files for bankruptcy; or

 

(2)                                  Company materially breaches this Agreement,or a material term thereof; or

 

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(3)                                  In the event that Company (including any ofCompany’s employees, officers, directors, or executives) engages in any conductthat could bring Company or Athlete into public disrepute, contempt, scandal orridicule, as determined by Athlete in his reasonable discretion.

 

B.                                     If Athlete terminates this Agreement underthis Section 12 (or pursuant to any other term contained herein), thefollowing conditions shall apply:

 

(1)                                  Neither Company nor Athlete shall have anyfurther rights, duties, or obligations under this Agreement, except thoselisted in this Section 12.B., and those that expressly survive thetermination of this Agreement, and any and all rights granted to Company byAthlete shall automatically and irrevocably revert back to Athlete.

 

(2)                                  Company shall no longer have any rights inand to the Athlete Endorsement.

 

(3)                                  Company shall remain liable to Athlete forall remaining sums of the Compensation as set forth above as liquidateddamages.

 

(4)                                  Athlete’s termination of this Agreement shallnot preclude his recovery of any other damages to which Athlete is entitledunder law or equity.

 

13.                                 NOTICES. All notices and/or submissions hereunder shall be sent via areputable air courier service or personal service, to the parties at thefollowing addresses, or such other addresses as may be designated inwriting from time to time:

 
|   | To Company:                     | To Athlete:                    |
|--------|---------------------------------|--------------------------------|
|   | XELR8, Inc                      | SFX Sports                     |
|   | 480 South Holly Street          | 222 South Central Avenue       |
|   | Denver, CO 80246                | Suite 1008                |
|   | (Attn: Mr. Earnest Mathis) | St. Louis, MO 63105            |
|   |                            | (Attn: Mark Heligman)          |
|   |                            |                           |
|   |                            | Copy:                          |
|   |                            | SFX Sports                     |
|   |                            | 220 West 42nd Street           |
|   |                            | 12th Floor                     |
|   |                            | New York, NY 10036             |
|   |                            | Attn: Lee D. Galkin, Esq. |

 

14.                                 ARBITRATION; GOVERNING LAW.                                         Any dispute, controversy or claim arising outof or relating to this Agreement, or the breach, termination or validity of it,shall at the option of SFX Sports, be finally settled by arbitration inaccordance with the rules of the American Arbitration Association applyingthe substantive law of the state of Missouri without regard to any conflict oflaws provisions. The arbitration will be governed by the United States 

 

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Arbitration Act. 9 U.S.C. Sec. 1 et seq., andjudgment upon the award rendered by the arbitrator(s) may be entered byany court with jurisdiction. The arbitrator(s) shall not be empowered to awarddamages in excess of compensatory damages and each Party waives any damages inexcess of compensatory damages that are proven; however, the arbitrator(s)shall be empowered to award to the prevailing party all costs and expensesdirectly related to arbitration, including but not limited to reasonableattorneys fees. The arbitration will be held in St. Louis, MO. Notwithstandingthe provisions of this Section, either Party may bring a claim forinjunctive relief before a court with jurisdiction without first submitting theclaim to arbitration.

 

Furthermore,and notwithstanding the foregoing, any collection matters shall be governedsolely by the laws of the State of Missouri and the state and federal courtssituated in St. Louis, MO shall have exclusive jurisdiction over any litigationarising hereunder. In the event of any such litigation, the prevailing partyshall be entitled to recover its legal fees in addition to any damages or otherlegal relief awarded.

 

15.                                 CONFIDENTIALITY. Neither party shall disclose (or permit anythird party to disclose) the financial or other material terms of thisAgreement, with the exception only of either party’s agents, attorneys,accountants, representatives or employees, except as may be required bylaw.

 

16.                                 NO PARTNERSHIP / TAX WITHHOLDING. Nothing contained in this Agreement shall beconstrued to create an employer/employee, joint venture, partnership, orprincipal-agent relationship between the parties. Athlete’s performance ofservices for Company hereunder is as an independent contractor. Athlete shallbe solely responsible for the payment of all taxes on compensation receivedunder this Agreement. Accordingly, Company shall make no deductions for taxpurposes from any compensation paid to Athlete.

 

17.                                 INSURANCE. Company warrants that it has or will obtain, at its own cost andexpense, a comprehensive general liability “umbrella” insurance policy in theamount of no less than Two Million U.S. Dollars ($2,000,000) including coveragefor Athlete (the “Policy”). The Policy shall be issued by a major insurancecarrier authorized to do business in the Contract Territory, and shall bemaintained until Company’s performance in connection with this Agreement hasbeen completed or this agreement has been terminated and shall name Athlete asan additional insured. Company shall furnish SFX Sports (Attn: Mark Heligman),with a certificate no later than thirty (30) days following execution of thisAgreement, evidencing such insurance coverage, which shall state in substantialpart:

 

“Thirty(30) days advance notice shall be given Carnell Williams in writing ofcancellation, termination, or any modification of the Policy or Policiesevidenced by this Certificate.”

 

Timeis of the essence. Failure to timely obtain insurance shall be considered amaterial breach of this Agreement and shall give Athlete the right toimmediately terminate the Agreement.

 

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18.                                 FORCE MAJEURE. If any of the obligations of any of theparties is hindered or prevented, in whole or in substantial part, because of aForce Majeure Event, then such non-performance shall be excused and not betreated as a breach of this Agreement, and all other obligations of the partiesshall continue. A “Force Majeure Event” shall mean causes beyond the control ofthe parties including, but not limited to: an Act of God, inevitable accident,fire, labor dispute, riot or civil commotion, act of public enemy, terror, orwar, governmental act, epidemic, regulation or rule, failure of technicalfacilities, national day of mourning, emergency announcement or news bulletin,inability to obtain supplies, delays in transportation, embargos, or otherreason beyond the control of the parties that is generally regarded as forcemajeure. Delays or non-performance excused by this provision shall not excuseperformance of any other obligation which is outstanding at the time ofoccurrence. A non-performing party under this Section 18 shall usecommercially reasonable efforts to fully perform hereunder, once the ForceMajeure Event has ceased.

 

19.                                 INTELLECTUAL PROPERTY. Company agrees and acknowledges that it shallnot acquire any interest in any copyrights, trademarks, service marks, or otherintellectual property of the any of the Indemnified Parties (or any combinationthereof). Without limiting the generality of the foregoing, unless previouslyapproved by SFX Sports in writing, Company shall not acquire any right underthis Agreement, or any other arrangement between Company, Athlete, and/or SFXSports, to use, and shall not use the name “SFX”, and/or “SFX Sports” (eitheralone or in conjunction with or as part of any other word, name, or phrase)or any fanciful images or other trademarks of any of the Indemnified Parties(or any combination thereof) at any time: (a) in any of Company’s advertising, publicity or promotion; (b) toexpress or imply any endorsement, affiliation, connection with or sponsorshipby any of the Indemnified Parties (or any combination thereof) of Company, itsbusiness, services or premises; or (c) in any other manner whatsoever[whether or not similar to the uses prohibited by sub-sections (a) and (b) above].

 

20.                                 SEVERABILITY. If any provision of this Agreement or theapplication thereof shall be invalid or unenforceable to any extent, theremainder of this Agreement or the application thereof shall not be affected,and each remaining provision of this Agreement shall be valid and enforceableto the fullest extent permitted by law.

 

21.                                 NON-DISPARAGEMENT. Each party hereto agrees that during theTerm, and for a period of one (1) year immediately thereafter, it(including without limitation, its employees, directors, and officers) shallnot disparage the other (including the employees, directors, and affiliates ofeach).

 

22.                                 SIGNIFICANCE OF PARAGRAPH HEADINGS. Paragraph headings contained hereunder aresolely for the purpose of aiding in speedy location of subject matter and arenot in any sense to be given weight in the construction of this Agreement. Accordingly,in case of any question with respect to the construction of this Agreement, itis to be construed as though paragraph headings had been omitted.

 

23.                                 DAMAGES. Notwithstanding anything to the contrary herein, in no event shallAthlete be liable to Company for exemplary, punitive, incidental, orconsequential damages, including 

 

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lost profits, arising out of this Agreement, or thebreach of any term, covenant, representation, warranty, or obligationscontained herein except as otherwise stated in this agreement.

 

24.                                 CONSTRUCTION. Each of the parties has participated in thenegotiation and preparation of this Agreement and therefore waives any rule oflaw or judicial precedent that provides that contractual ambiguities are to beconstrued against the party who shall have drafted the contract in question.

 

25.                                 REPRESENTATIONS AND WARRANTIES       Company represents and warrants that it has the full power andauthority to enter into this Agreement, and to fully perform all of itsduties and obligations hereunder, and that Company’s performance hereundershall not infringe on any rights of any third party(s).

 

Athlete represents and warrants that he has the fullpower and authority to enter into this Agreement, and to fully perform allof his duties and obligations hereunder, and that Athlete’s performancehereunder shall not infringe on any rights of any third party(s).

 

26.                                 WAIVER.The failure of Company or Athlete at any time or times, to demand strictperformance by the other of any of the terms, covenants or conditions set forthherein shall not be construed as a continuing waiver or relinquishment thereofand either may at any time demand strict and complete performance by the otherof said terms, covenants and conditions.

 

27.                                 ASSIGNMENT.Neither party shall have any right to grant sublicenses hereunder or tootherwise assign, transfer, alienate, encumber or hypothecate any of its rightsor obligations hereunder without the express prior written consent of the otherparty, except that Athlete shall have the right to assign the financialbenefits hereof and Company hereby consents to such assignment.

 

28.                                 GOVERNINGLAW. This Agreement shall be deemed to be made under, and shall beconstrued exclusively in accordance with and shall be governed by, the internallaws of the United States of America and the State of Colorado. Any legalaction to enforce any provision of this Agreement or to obtain any remedy withrespect hereto shall be brought in District Court for the City and County ofDenver, or Federal District Court in Denver, Colorado, and each party heretoexpressly and irrevocably consents to the jurisdiction of said courts.

 

29.                                 ENTIRE AGREEMENT. This Agreement constitutes the entireunderstanding between Company and Athlete and cannot be altered or modifiedexcept by an agreement in writing signed by both Company and Athlete. Upon itsexecution, this Agreement shall supersede all prior negotiations,understandings, and agreements, whether oral or written, and such prioragreements shall thereupon be null and void and without further legal effect.

 

**THIS AGREEMENT SHALL NOT BE BINDING OR EFFECTIVE UNTIL FULLY EXECUTEDBY VITACUBE SYSTEMS HOLDINGS, INC., AND XELR8, INC. AND CARNELLWILLIAMS**

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**ACCEPTEDAND AGREED:**

 
| **VitacubeSystems Holdings, Inc. and XELR8, Inc.** | **Carnell Williams** |
|--------------------------------------------------------------|----------------------|
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