**Exhibit 10.3**

 
|                             | **480 S. Holly Street . Suite 5** |
|-----------------------------|-----------------------------------|
| **Denver, Colorado 80246**  |
| **Main: 303-316-8577**      |
| **Toll Free: 800-313-2234** |
| **Fax: 303-316-9004**       |
| **www.v3s.com**             |

 

# **RESTATED EMPLOYMENT AGREEMENT BETWEEN**

# **VITACUBE SYSTEMS HOLDINGS, INC.**

# **AND SANFORD D. GREENBERG**

# ** **

This Restated Employment Agreement (“the Agreement”) between VitaCubeSystems Holdings, Inc. and Sanford D. Greenberg (“Employee”) entered effectiveas of the 2nd day of March, 2005 (“Effective Date”), sets forth the terms,which shall govern the employment of Employee with VitaCube Systems Holdings,Inc. (“Employer” or the “Company”), which replaces in full, the EmploymentAgreement between Employer and Employee dated April 1, 2004.

 

1.                                       **EMPLOYMENT.**

 

(a)                                  Employeragrees to employ Employee, and Employee agrees to be employed by Employer untilterminated as herein provided.  TheCompany’s Board of Directors may amend employee’s job title (“Founder”), andjob description from time to time. Employee will report only to the Chief Executive Officer and Board ofDirectors.  Employee hereby acceptsemployment by the Company and agrees diligently and faithfully to perform hisduties pursuant to this Agreement on a full time basis.

 

(b)                                 Employeewill devote his full business hours and energies to the business of the Employerto accomplish all duties reasonably assigned, and will devote his best effortsto advance the interests of the Employer. During the term of this Agreement, without the prior approval of theCompany’s Board, Employee shall not be engaged in any other business activity,whether or not pursued for gain, profit or other pecuniary advantage, which mayinterfere with his duties under this Agreement, except that Employee shall beentitled to act as a stockbroker so long as such activity does not materiallyinterfere with his employment by the Company.

 

Employee’s duties shall include (i) trainingand motivating, the Company’s independent distributors, and recruiting newindependent distributors for the Company, (ii) consulting with the Company’smanagement with respect to strategic planning for the Company, including, butnot limited to, use, focus and direction of the Company’s independentdistributors, and (iii) all other duties necessary to perform the foregoingresponsibilities or other responsibilities assigned to Employee by theBoard.  The

 

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Company will provide Employee with anadministrative assistant as necessary on a nonexclusive basis to assist theEmployee in carrying out his duties.

 

(c)                                  EMPLOYEEACKNOWLEDGES AND THE PARTIES AGREE THAT THE CONFIDENTIALITY ANDNON-SOLICITATION COVENANTS AND PROVISIONS CONTAINED IN THIS AGREEMENT ARE FULLYENFORCEABLE AGAINST HIM.

 

(d)                                 Employeragrees to duly notify Employee of all meetings of the Board, and to provide Employeewith an agenda of the meeting and copies of all documents provided to the Boardmembers for such meeting.  Employee shallbe entitled to attend all Board meets and participate in discussions concerningthe Employer and its business, but, unless Employee is duly elected a directorof Employer, Employee shall not be entitled to vote on any matters.  Employee agrees to keep all matters learnedby Employee at Board meetings strictly confidential as if Employee were amember of the Board.

 

2.                                       **COMPENSATION.**

 

(a)                                  Employeewill receive as compensation for all responsibilities a base salary (“BaseSalary”) of $150,000 per year, payable according to the salary schedule ofEmployer.  In addition to the Base Salaryand the Plan Bonus described below, Employee may receive a bonus in suchamount, as the Board of Directors in its sole discretion shall determine.

 

(b)                                 Employeealso shall receive such options (the “Options”) to purchase Employer’s commonstock, as the Board shall determine from time to time.

 

**3. ****DEDUCTIONS. **To theextent required by law, all compensation the Company pays Employee is subjectto federal, state, and municipal withholding requirements, any applicableoccupational privilege tax and any court ordered deductions such asgarnishments.  Compensation may also bereduced by deductions the Employee authorizes for insurance, 401(k)contributions, and other similar purposes.

 

The Employee’s final paycheck will be reduced by the amount of anylawful charge or indebtedness the Employee owes the Company.

 

**4.  BONUSES. **Employer intends toinitiate an incentive executive bonus plan (the “Plan Bonus”) for allexecutives of the Company.  Employee willbe eligible for inclusion for the Plan Bonus if and when it is instituted bythe Company, but only on the same basis as other executives may participate andas approved by the compensation committee of the Board of Directors, or suchequivalent Board body, on this basis.

 

**5.  B****ENEFITS. **Employeewill be entitled to participate in any and all benefit plans, including healthinsurance, provided to other senior executive employees.  In addition:

 

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a.               Employer shallprovide Employee with an auto allowance of $1500 per month.

 

b.              Employee shall beentitled to eight (8) weeks of paid vacation each year, with such vacation tobe scheduled and taken in accordance with the Company’s standard vacationpolicies applicable to such personnel.  Any unused vacation time will becarried forward and may be used in a subsequent year. In addition, Employeeshall be entitled to such sick leave and holidays at full pay in accordancewith the Company’s policies established and in effect from time to time.

 

Employee, to the extent allowedby the insurance company, will be entitled to the protection of any directorand officer liability insurance that the Company in its sole discretion maypurchase.  The Company is not required tocarry such insurance.  The Company willindemnify Employee to the full extent provided in the Company’s by-laws, is ifEmployee was a corporate officer of the Company

 

**6.  E****XPENSES. **Employeeshall be promptly reimbursed for all expenses reasonably and necessarilyincurred by him in the performance of his duties under this Agreement uponpresentation of proof of such expenses in a form acceptable to the Company. Inaddition, the Company shall pay the expenses reasonably incurred by Employee inconnection with a cellular telephone and a home high-speed digitaltelephone/internet connection.

 

**7. CONFIDENTIAL INFORMATION.**

 

(a)                                  Employee recognizesand acknowledges that he will have access to, become acquainted with, andobtain certain confidential and proprietary information of the Employer, andthat such information constitutes valuable, special and unique property of theEmployer.  Employee acknowledges andagrees that such information shall include, but is not limited to, tradesecrets, know-how, formulas, ingredients, inventions, techniques, processes,computer programs, schematics, data, designs, financial information, studies,supply contracts, formulations, strategic and marketing plans and data, salesand marketing plans, nutritional and fitness plans, and vendor and customerlists.  Employee will not disclose any ofsuch confidential, proprietary or trade secret information except as isnecessary to perform his duties for the Employer.  Employee further agrees that he will not atany time use any of such confidential information in competing with Employer.  Employee further agrees that he shallmaintain, at all times, the Employer’s confidential, proprietary and tradesecret information in a confidential manner and protect it from disclosure toany person who is not subject to a Confidentiality Agreement with the Employer.

 

(b)                                 In the event of abreach or threatened breach by Employee of this Section, or Sections 8 and 9below, Employee agrees that irreparable harm would come to Employer under suchcircumstances, and that, in such event, Employer’s remedy at law for such abreach or threatened breach would be inadequate and that Employer shall beentitled at its election, to injunctive relief, without the necessity ofposting bond therefore, against such breach or threatened breach and tospecific performance of this

 

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Agreement, in addition to any other remedies at law or in equityavailable to Employer for such breach or threatened breach, including therecovery of damages, court costs, and attorneys’ fees.

 

(c)                                  Therestrictions and obligations in the preceding subparagraph (a) shall survive inperpetuity the termination of this Agreement and the termination of Employee’semployment by Company.

 

**8. OWNERSHIP AND ASSIGNMENT OF PROPRIETARY INFORMATION.**  Upon termination of Employee’s employmentwith Employer or at Employer’s request, Employee shall promptly deliver toEmployer all documents, material and property in Employee’s possession orcontrol (such as drawings, notebooks, reports, sketches, records, fitness andnutritional plans, computer programs, and the like) whether delivered toEmployee or made by Employee in the performance of services for Employer,relating in any way to Employee’s employment and the business activities ofEmployer, and containing any data or information whatsoever, whether or not itis confidential.  Employee further agreesthat Employer is the sole owner of any formulas, information technology,processes, or other property rights created by Employee in the performance ofservices for Employer, including but not limited to, the right to use, sell,license or otherwise transfer to exploit the formulas, information technology,processes and other property rights and the right to make such changes in themand the uses thereof as Employer may from time to time determine.  Employee hereby assigns to Employer, withoutfurther consideration, Employee’s entire right, title, and interest worldwide,free and clear of all encumbrances, in and to all material, designs, and otherproperty created for Employer by Employee pursuant to his employment during theterm of this Agreement, all of which property shall be the sole property ofEmployer.  Employee also agrees tocooperate with Employer both during and after the term of performance of thisAgreement, in evidencing, maintaining, defending, obtaining and enforcingpatents, trademarks, copyrights and other protection of Employer’s right toformulas, processes and other property rights created pursuant to thisAgreement.  In the event Employer isunable for any reason to secure Employee’s signature to any lawful andnecessary documents required to apply for or execute any patent, trademark,copyright or other applications with respect to any property for which such anapplication may be presented (including improvements, renewals, extensions,continuations, divisions or continuations in part thereof), Employee herebyirrevocably designates and appoints Employer and its duly authorized officersand agents as his agent and attorney-in-fact to act for and in his behalf andinstead of Employee, to execute and file such application and to do allotherwise lawfully permitted acts to further the prosecution and issuance ofpatents, trademarks, copyrights, and other rights with the same legal force andeffect as if executed by Employee.

 

**9.****                                      RESTRICTIVECOVENANTS.**

 

a.               Employee agrees that during theNon-Competitive Period, as defined below, Employee shall not, directly orindirectly, as owner, partner, joint-venturer, stockholder, employee, broker,agent, principal, trustee, corporate officer, director, licensor, creditor, orin any capacity whatsoever, engage in, become financially interested in, beemployed by, render any consultation or business

 

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advice with respect to, or have any connection with any business engagedin manufacturing, selling, marketing, developing, packaging, or distributing ofvitamins, dietary supplements or nutritional supplements or any other productbeing manufactured, sold, developed, marketed or distributed by Employer, inany geographic area where, at the time of the termination of his employmenthereunder, the business of the Employer was being conducted in any materialway.  The term “Non-Competitive Period”shall mean the period commencing on the date of his termination or resignationand ending on the later of the date which is two (2) years after the date oftermination or one (1) year after final payment under any pay out provisions ontermination.

 

b.              During the Non-Competitive Period,Employee will not knowingly (i) initiate contact to hire, or attempt to hire,any Employee of the Employer or of any of the Employer’s affiliated orsubsidiary companies (if any); (ii) assist in such hiring by any other person;or (iii) encourage any such Employee to terminate his/her employment with the Employeror any such subsidiaries or affiliated entities.

 

c.               If any portion of the restrictions setforth in this Section should for any reason whatsoever, be declared invalid bya court of competent jurisdiction, the validity or enforceability of the remainderof such restrictions shall not be adversely affected.

 

d.              Employee agrees that the territorial andtime limitations set forth in this Section are reasonable and properly requiredfor the adequate protection of the business of the Employer.  In the event any such territorial or timelimitation is deemed to be unreasonable by a court of competent jurisdiction,Employee agrees to the reduction of the territorial or time limitation to theareas or period which such court shall have deemed reasonable.  The restrictions in this section shall notapply if Employee is terminated without “just cause” as herein defined.

 

10.  **TERMINATION. **The employment relationshipestablished herein is “at will” and shall continue so until terminated bythirty (30) days written advance notice to the Employer or the Employee, unlessthe Employee is terminated by the Employer for “just cause.”  The provisions of Sections 7 through 11, 13,15, and 17 shall remain in full force and effect following termination ofEmployee’s employment with Employer.

 

(a) For Cause. If the Employee is terminatedfor “just cause,” the Employer will give the Employee one (1) business daywritten advance notice.  For all purposesunder this Agreement, “just cause” shall mean (i) willful failure or unjustifiableneglect by the Employee to substantially perform his duties hereunder afterwritten notice to Employee and subsequent failure to perform within five (5)business days, (ii) a willful act by the Employee which constitutes grossmisconduct, (iii) a willful breach by the Employee of a material provision ofthis Agreement, or (iv) a material and willful violation of a federal or statelaw or regulation applicable to the business of the Company or its status as a

 

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public company.  If Employee isterminated for just cause, Employee will not receive any salary or bonuses notearned as of the date of termination and all unexercised Options under theOption Agreement will terminate as of the date of termination.

 

(b) Without Cause. In the event that the Employee is terminated withoutjust cause, Employee is entitled to receive three (3) years Base Salary payableover thirty-six (36) equal monthly installments, and all of Employees un-vestedoptions will vest immediately, and Employee shall have the right to exerciseall vested options pursuant to the Option Agreement.  Employee also is entitled to all salary orbonuses earned as of the date of termination.

 

(c) Resignation. In the event that Employee terminates his employment,unless such resignation is for good reason as hereafter defined, Employee willnot receive any salary or bonuses not earned as of the date ofresignation.  All Options under theOption Agreement that have not vested as of the date of Employee’s resignationwill terminate.  If Employee resigns withgood reason, he shall be entitled to the same benefits he would have receivedif he had been terminated by Employer without cause.

 

(d) Good Reason.  Employee mayterminate his employment for “good reason” after giving Employer a detailedwritten notice of the basis for his termination and Employer fails to remedythe default with five (5) business days after receipt of the notice.  Good reason shall mean the occurrence of anyof the following without the written consent of the Employee:

 

•                                          Anymaterial breach of this Agreement by Employer.

•                                          Anymaterial reduction in Employee’s duties and responsibilities hereunder.

•                                          Employerrelocating its main office outside of the Denver metro area.

 

11.  **SEVERABILITY. **The provisions of this Agreementare severable.  The invalidity of anyprovision shall not affect the validity of any other provision.  A Court or other tribunal is required upon afinding of invalidity of any provision of Section 7 to enforce the remainder ofthe invalid Sections or interpret the language to fully comply and satisfy theparties’ interest.

 

12.  **WAIVER. **No waiver of any of the provisionsof this Agreement shall be deemed or constitute, a waiver of any otherprovision, whether or not similar, nor shall said waiver constitute acontinuing waiver.  No waiver shall bebinding unless executed in writing by the party making the waiver.

 

13.  **NOTICES. **All notices required or permittedto be given hereunder shall be in writing and shall be deemed effective whenpersonally delivered or delivered by email if delivered by 5:00 pm, local timeon a business day, or the next business day if delivered after 5:00 pm, localtime, or, if mailed, three business days after being deposited in the U.S.Mail, postage prepaid, registered or certified, return receipt requested.  Unless changed by written

 

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notice given to a party by theother, such notices shall be given to the Employer at the following address:

 

VitaCube Systems Holdings, Inc.

480 South Holly Street

Denver, Colorado 80246

Email:  marypat@v3s.com

Attention:  Board of Directors

 

And such notices shall be given to Employee at the following address:

 

Sanford D. Greenberg

At his home address or email address most

recently on file with the Employer

 

14.  **ASSIGNABILITY.**  The duties and obligations of Employee underthis Agreement are personal unto him and may not be assigned or otherwisetransferred, in whole or in part, by Employee, but rights of Employee underthis Agreement shall inure to the benefit of Employee.  Employer may assign this Agreement, or anybenefit, duty or obligation thereof hereunder.

 

15. **APPLICABLE LAW. **The terms and conditions of this Agreement shall be construedunder, governed by and enforced in accordance with the laws of the State ofColorado.

 

16.  **ENTIREAGREEMENT; AMENDMENT. **ThisAgreement constitutes the entire Agreement between the parties and supersedesany and all prior agreements, either oral or written, between the partieshereto with respect thereto.  Anymodifications to this Agreement must be made in writing and signed by bothparties.

 

17.** ARBITRATION. **Anydispute relating to this Agreement, or to the Breach of this Agreement, exceptsuch as may concern Sections 7, 8, and 9, arising between the Employer andEmployee, shall be settled by arbitration in accordance with the commercialarbitration rules of the American Arbitration Association (“AAA”), whicharbitration may be initiated by any party hereto by written notice to the otherof such party’s desire to arbitrate the dispute.  The arbitration proceedings shall take placein Denver, Colorado, and shall be administered by AAA. Colorado’s UniformArbitration Act of 1975, C.R.S. §13-22-201 et seq. as amended, shall govern anyarbitration under this Agreement. Employer’s right to equitable relief set forth in Sections 7, 8, and 9may be brought and enforced in any court of competent jurisdiction.  Employee agrees and consents to the DistrictCourt of the City and County of Denver, State of Colorado, having jurisdictionover any such dispute.

 

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IN WITNESS WHEREOF, the parties have executed this Agreement effectiveas of the day and year written above.

 

 
|   | **EMPLOYER:**                       |
|--------|-------------------------------------|
|   |                                |
|   | **VITACUBE SYSTEMS HOLDINGS, INC.** |
|   |                                |
|   |                                |
|   | By:                                 | /s/ Mary Pat O’Halloran |
|   |                                | Mary Pat O’Halloran, Chief Financial  Officer |
|   |                                |
|   | Date:                          | March 2, 2005 |
|   |                                |
|   | ** **                          |
|   | **EMPLOYEE:**                       |
|   | ** **                          |
|   |                                |
|   | /s/ Sanford  D. Greenberg           |
|   | Sanford D.  Greenberg               |
|   |                                |
|   | Date:                               | March 2,  2005 |
|        |                                     |  |  |  |

 

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