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 VitaCube
Systems Holdings, Inc. and Sanford D. Greenberg (“Employee”) entered effective
as 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 Employment
Agreement between Employer and Employee dated April 1, 2004.


 


1.                                       EMPLOYMENT.


 


(a)                                  Employer
agrees to employ Employee, and Employee agrees to be employed by Employer until
terminated as herein provided.  The
Company’s Board of Directors may amend employee’s job title (“Founder”), and
job description from time to time. 
Employee will report only to the Chief Executive Officer and Board of
Directors.  Employee hereby accepts
employment by the Company and agrees diligently and faithfully to perform his
duties pursuant to this Agreement on a full time basis.


 


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


 


Employee’s duties shall include (i) training
and motivating, the Company’s independent distributors, and recruiting new
independent distributors for the Company, (ii) consulting with the Company’s
management with respect to strategic planning for the Company, including, but
not limited to, use, focus and direction of the Company’s independent
distributors, and (iii) all other duties necessary to perform the foregoing
responsibilities or other responsibilities assigned to Employee by the
Board.  The


 


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


 


(c)                                  EMPLOYEE
ACKNOWLEDGES AND THE PARTIES AGREE THAT THE CONFIDENTIALITY AND
NON-SOLICITATION COVENANTS AND PROVISIONS CONTAINED IN THIS AGREEMENT ARE FULLY
ENFORCEABLE AGAINST HIM.


 


(d)                                 Employer
agrees to duly notify Employee of all meetings of the Board, and to provide Employee
with an agenda of the meeting and copies of all documents provided to the Board
members for such meeting.  Employee shall
be entitled to attend all Board meets and participate in discussions concerning
the Employer and its business, but, unless Employee is duly elected a director
of Employer, Employee shall not be entitled to vote on any matters.  Employee agrees to keep all matters learned
by Employee at Board meetings strictly confidential as if Employee were a
member of the Board.


 


2.                                       COMPENSATION.


 


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


 


(b)                                 Employee
also shall receive such options (the “Options”) to purchase Employer’s common
stock, as the Board shall determine from time to time.


 


3.  DEDUCTIONS.  To the
extent required by law, all compensation the Company pays Employee is subject
to federal, state, and municipal withholding requirements, any applicable
occupational privilege tax and any court ordered deductions such as
garnishments.  Compensation may also be
reduced 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 any
lawful charge or indebtedness the Employee owes the Company.


 


4.  BONUSES.  Employer intends to
initiate an incentive executive bonus plan (the “Plan Bonus”) for all
executives of the Company.  Employee will
be eligible for inclusion for the Plan Bonus if and when it is instituted by
the Company, but only on the same basis as other executives may participate and
as approved by the compensation committee of the Board of Directors, or such
equivalent Board body, on this basis.


 


5.  BENEFITS.  Employee
will be entitled to participate in any and all benefit plans, including health
insurance, provided to other senior executive employees.  In addition:


 


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


 


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


 


Employee, to the extent allowed
by the insurance company, will be entitled to the protection of any director
and officer liability insurance that the Company in its sole discretion may
purchase.  The Company is not required to
carry such insurance.  The Company will
indemnify Employee to the full extent provided in the Company’s by-laws, is if
Employee was a corporate officer of the Company


 


6.  EXPENSES.  Employee
shall be promptly reimbursed for all expenses reasonably and necessarily
incurred by him in the performance of his duties under this Agreement upon
presentation of proof of such expenses in a form acceptable to the Company. In
addition, the Company shall pay the expenses reasonably incurred by Employee in
connection with a cellular telephone and a home high-speed digital
telephone/internet connection.


 


7. 
CONFIDENTIAL INFORMATION.


 


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


 


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


 


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


 


(c)                                  The
restrictions and obligations in the preceding subparagraph (a) shall survive in
perpetuity the termination of this Agreement and the termination of Employee’s
employment by Company.


 


8. 
OWNERSHIP AND ASSIGNMENT OF PROPRIETARY INFORMATION.  Upon termination of Employee’s employment
with Employer or at Employer’s request, Employee shall promptly deliver to
Employer all documents, material and property in Employee’s possession or
control (such as drawings, notebooks, reports, sketches, records, fitness and
nutritional plans, computer programs, and the like) whether delivered to
Employee or made by Employee in the performance of services for Employer,
relating in any way to Employee’s employment and the business activities of
Employer, and containing any data or information whatsoever, whether or not it
is confidential.  Employee further agrees
that Employer is the sole owner of any formulas, information technology,
processes, or other property rights created by Employee in the performance of
services 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 them
and the uses thereof as Employer may from time to time determine.  Employee hereby assigns to Employer, without
further consideration, Employee’s entire right, title, and interest worldwide,
free and clear of all encumbrances, in and to all material, designs, and other
property created for Employer by Employee pursuant to his employment during the
term of this Agreement, all of which property shall be the sole property of
Employer.  Employee also agrees to
cooperate with Employer both during and after the term of performance of this
Agreement, in evidencing, maintaining, defending, obtaining and enforcing
patents, trademarks, copyrights and other protection of Employer’s right to
formulas, processes and other property rights created pursuant to this
Agreement.  In the event Employer is
unable for any reason to secure Employee’s signature to any lawful and
necessary documents required to apply for or execute any patent, trademark,
copyright or other applications with respect to any property for which such an
application may be presented (including improvements, renewals, extensions,
continuations, divisions or continuations in part thereof), Employee hereby
irrevocably designates and appoints Employer and its duly authorized officers
and agents as his agent and attorney-in-fact to act for and in his behalf and
instead of Employee, to execute and file such application and to do all
otherwise lawfully permitted acts to further the prosecution and issuance of
patents, trademarks, copyrights, and other rights with the same legal force and
effect as if executed by Employee.


 


9.                                      RESTRICTIVE
COVENANTS.


 


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


 


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


 


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 or
subsidiary 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 Employer
or any such subsidiaries or affiliated entities.


 


c.               If any portion of the restrictions set
forth in this Section should for any reason whatsoever, be declared invalid by
a court of competent jurisdiction, the validity or enforceability of the remainder
of such restrictions shall not be adversely affected.


 


d.              Employee agrees that the territorial and
time limitations set forth in this Section are reasonable and properly required
for the adequate protection of the business of the Employer.  In the event any such territorial or time
limitation is deemed to be unreasonable by a court of competent jurisdiction,
Employee agrees to the reduction of the territorial or time limitation to the
areas or period which such court shall have deemed reasonable.  The restrictions in this section shall not
apply if Employee is terminated without “just cause” as herein defined.


 


10.  TERMINATION.  The employment relationship
established herein is “at will” and shall continue so until terminated by
thirty (30) days written advance notice to the Employer or the Employee, unless
the 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 of
Employee’s employment with Employer.


 


(a) For Cause. If the Employee is terminated
for “just cause,” the Employer will give the Employee one (1) business day
written advance notice.  For all purposes
under this Agreement, “just cause” shall mean (i) willful failure or unjustifiable
neglect by the Employee to substantially perform his duties hereunder after
written notice to Employee and subsequent failure to perform within five (5)
business days, (ii) a willful act by the Employee which constitutes gross
misconduct, (iii) a willful breach by the Employee of a material provision of
this Agreement, or (iv) a material and willful violation of a federal or state
law or regulation applicable to the business of the Company or its status as a


 


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


 


(b) Without Cause. In the event that the Employee is terminated without
just cause, Employee is entitled to receive three (3) years Base Salary payable
over thirty-six (36) equal monthly installments, and all of Employees un-vested
options will vest immediately, and Employee shall have the right to exercise
all vested options pursuant to the Option Agreement.  Employee also is entitled to all salary or
bonuses 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 will
not receive any salary or bonuses not earned as of the date of
resignation.  All Options under the
Option Agreement that have not vested as of the date of Employee’s resignation
will terminate.  If Employee resigns with
good reason, he shall be entitled to the same benefits he would have received
if he had been terminated by Employer without cause.


 


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


 


•                                          Any
material breach of this Agreement by Employer.


•                                          Any
material reduction in Employee’s duties and responsibilities hereunder.


•                                          Employer
relocating its main office outside of the Denver metro area.


 


11.  SEVERABILITY.  The provisions of this Agreement
are severable.  The invalidity of any
provision shall not affect the validity of any other provision.  A Court or other tribunal is required upon a
finding of invalidity of any provision of Section 7 to enforce the remainder of
the invalid Sections or interpret the language to fully comply and satisfy the
parties’ interest.


 


12.  WAIVER.  No waiver of any of the provisions
of this Agreement shall be deemed or constitute, a waiver of any other
provision, whether or not similar, nor shall said waiver constitute a
continuing waiver.  No waiver shall be
binding unless executed in writing by the party making the waiver.


 


13.  NOTICES.  All notices required or permitted
to be given hereunder shall be in writing and shall be deemed effective when
personally delivered or delivered by email if delivered by 5:00 pm, local time
on a business day, or the next business day if delivered after 5:00 pm, local
time, 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 the
other, 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 under
this Agreement are personal unto him and may not be assigned or otherwise
transferred, in whole or in part, by Employee, but rights of Employee under
this Agreement shall inure to the benefit of Employee.  Employer may assign this Agreement, or any
benefit, duty or obligation thereof hereunder.


 


15. APPLICABLE LAW. 
The terms and conditions of this Agreement shall be construed
under, governed by and enforced in accordance with the laws of the State of
Colorado.


 


16.  ENTIRE
AGREEMENT; AMENDMENT.  This
Agreement constitutes the entire Agreement between the parties and supersedes
any and all prior agreements, either oral or written, between the parties
hereto with respect thereto.  Any
modifications to this Agreement must be made in writing and signed by both
parties.


 


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


 


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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as 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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