Employment Agreement by and among eDiets.com, Inc. and Kevin McGrath



 Exhibit 10.1 
 EMPLOYMENT AGREEMENT 
 This Employment Agreement (the “Agreement”) dated December 30,
2008 (the “Effective Date”) is made by and between eDiets.com, Inc., a Delaware corporation (the “Company”), and Kevin McGrath (“Executive”). 
 The Company desires to employ Executive and to enter into an agreement embodying the terms of such employment; 
 Executive desires to accept such employment and enter into such an agreement; 
 In consideration of the promises and mutual covenants herein and for other good and valuable consideration, the parties agree as follows: 
 1. Term of Employment. Subject to the provisions of Section 8 of this Agreement, Executive shall be employed by the Company for a period
commencing on the Effective Date and ending on the third anniversary of the Effective Date (the “Term”) on the terms and subject to the conditions set forth in this Agreement; provided, however, that commencing with the third anniversary
of the Effective Date and on each annual anniversary thereafter (each an “Extension Date”), the Term automatically shall be extended for an additional one-year period, unless the Company or Executive provides the other party hereto 90 days
prior written notice before the next Extension Date that the Term shall not be so extended. 
 2. Position. 
 a. During the Term, Executive shall serve as the Company’s CEO. In such position, Executive shall have such duties and authority as shall be
determined from time to time by the Board of Directors of the Company (the “Board”). 
 b. During the Term, Executive will devote
Executive’s full business time and best efforts to the performance of Executive’s duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the
rendition of such services either directly or indirectly, without the prior written consent of the Board; provided that nothing herein shall preclude Executive, subject to the prior approval of the Board, from accepting appointment to or
continue to serve on any board of directors or trustees of any business corporation or any charitable organization; provided in each case, and in the aggregate, that such activities do not conflict or interfere with the performance of
Executive’s duties hereunder or conflict with Section 9. 
 3. Base Salary. Beginning on the Effective Date, the Company
shall pay Executive a base salary at the annual rate of $325,000, payable in regular installments in accordance with the Company’s usual payment practices. Executive shall be entitled to such increases in Executive’s base salary, if any,
as may be determined from time to time in the sole discretion of the Board. Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as the “Base Salary.” 
 4. Annual Bonus and Incentive Compensation. With respect to each full fiscal year during the Term and subject to the terms of Section 8
below, Executive shall be eligible to earn a discretionary annual bonus award (an “Annual Bonus”) of up to 50% of the Base Salary (the “Target”) based upon the achievement of performance goals established by the Board. The Board
may, in its discretion, increase the Target. The Annual Bonus, if any, shall be paid to Executive within two and one-half (2.5) months after the end of the applicable fiscal year. 
  

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 5. Equity Compensation. Executive on the Effective Date will be granted 450,000 stock options
(“Options”) which shall vest ratably in increments of 1/3 over three years and with other terms set forth in a stock option agreement between the Parties. Executive will also be granted on the Effective Date 425,000 shares of Restricted
Stock which shall vest according to terms set forth by the Board. 
 6. Employee Benefits. 
 a. During the Term, Executive shall be entitled to participate in the Company’s employee benefit plans (other than annual bonus and incentive plans)
as in effect from time to time (collectively “Employee Benefits”), on the same basis as those benefits are generally made available to other senior executives of the Company. 
 7. Business Expenses. During the Term, reasonable business expenses incurred by Executive in the performance of Executive’s duties hereunder
shall be reimbursed by the Company in accordance with Company policies. 
 8. Termination. The Term and Executive’s employment
hereunder may be terminated by either party at any time and for any reason; provided that Executive shall give the Company at least 90 days advance written notice of any resignation of Executive’s employment. Notwithstanding any other provision
of this Agreement, the provisions of this Section 8 shall exclusively govern Executive’s rights upon termination of employment with the Company and its affiliates. 
 a. Termination of Executive’s Employment by the Company for Cause or Resignation by Executive without Good Reason. In the event of a
termination of Executive’s employment by the Company for Cause or resignation by the Executive without Good Reason, Executive shall be entitled to receive: 
 (A) the Base Salary through the date of termination; 
 (B) any Annual Bonus earned for the prior year, but unpaid, as of the date of termination for the immediately preceding fiscal year, paid
in accordance with Section 4 (except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement with the Company); 
 (C) reimbursement, within 60 days following submission by Executive to the Company of appropriate supporting documentation for any
un-reimbursed business expenses properly incurred by Executive in accordance with Company policy prior to the date of Executive’s termination; provided claims for such reimbursement (accompanied by appropriate supporting documentation) are
submitted to the Company within 90 days following the date of Executive’s termination of employment; and 
  

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 (D) such Employee Benefits, if any, as to which Executive may be entitled under the
employee benefit plans of the Company. 
 Following such termination of Executive’s employment by the Company for Cause or resignation
by Executive without Good Reason, except as set forth in this Section 8(a), Executive shall have no further rights to any compensation or any other benefits under this Agreement. 
 b. Disability. 
 (i)
The Term and Executive’s employment hereunder may be terminated by the Company if Executive becomes physically or mentally incapacitated and is therefore unable for a period of three (3) consecutive months or for an aggregate of six
(6) months in any twenty-four (24) consecutive month period to perform Executive’s duties (such incapacity is hereinafter referred to as “Disability”). Any question as to the existence of the Disability of Executive as to
which Executive and the Company cannot agree shall be determined in writing by a qualified independent physician mutually acceptable to Executive and the Company. If Executive and the Company cannot agree as to a qualified independent physician,
each shall appoint such a physician and those two physicians shall select a third who shall make such determination in writing. The determination of Disability made in writing to the Company and Executive shall be final and conclusive for all
purposes of the Agreement. 
 (ii) Upon termination of Executive’s employment hereunder for Disability, Executive shall
be entitled to receive: 
 (A) the Base Salary through the date of termination; 
 (B) any Annual Bonus earned for the prior year, but unpaid, as of the date of termination for the immediately preceding fiscal year, paid
in accordance with Section 4 (except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement with the Company); 
 (C) reimbursement, within 60 days following submission by Executive to the Company of appropriate supporting documentation for any
un-reimbursed business expenses properly incurred by Executive in accordance with Company policy prior to the date of Executive’s termination; provided claims for such reimbursement (accompanied by appropriate supporting documentation) are
submitted to the Company within 90 days following the date of Executive’s termination of employment; 
 (D) such Employee
Benefits, if any, as to which Executive may be entitled under the employee benefit plans of the Company; 
 (E) a pro rata
portion of any Annual Bonus, if any, that Executive would have been entitled to receive pursuant to Section 4 hereof in such year based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s 

  

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termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s
employment not terminated; and 
 (F) the right to exercise the vested portion of any Options for a period of twelve
(12) months immediately following the date of the Executive’s termination of employment due to Disability. 
 Following
Executive’s termination of employment due to Disability, except as set forth in this Section 8(b), Executive shall have no further rights to any compensation or any other benefits under this Agreement. 
 c. Death. 
 (i) The
Term and Executive’s employment hereunder shall terminate upon Executive’s death. 
 (ii) Upon termination of
Executive’s employment hereunder for death, Executive’s estate shall be entitled to receive: 
 (A) the Base Salary
through the date of termination; 
 (B) any Annual Bonus earned for the prior year, but unpaid, as of the date of termination
for the immediately preceding fiscal year, paid in accordance with Section 4 (except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement with the Company); 
 (C) reimbursement, within 60 days following submission by Executive to the Company of appropriate supporting documentation for any
un-reimbursed business expenses properly incurred by Executive in accordance with Company policy prior to the date of Executive’s termination; provided claims for such reimbursement (accompanied by appropriate supporting documentation) are
submitted to the Company within 90 days following the date of Executive’s termination of employment; 
 (D) such Employee
Benefits, if any, as to which Executive may be entitled under the employee benefit plans of the Company; 
 (E) a pro rata
portion of any Annual Bonus, if any, that Executive would have been entitled to receive pursuant to Section 4 hereof in such year based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s
termination of employment, payable when such Annual Bonus would have otherwise been payable to Executive pursuant to Section 4 had Executive’s employment not terminated; and 
  

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 (F) the right to exercise the vested portion of any Options for a period of twelve
(12) months immediately following the date of the Executive’s Death. 
 Following Executive’s termination of employment due to
death, except as set forth in this Section 8(c), Executive shall have no further rights to any compensation or any other benefits under this Agreement. 
 d. By the Company Without Cause, by Executive for Good Reason, or Following a Change of Control. 
 (i) The Term and Executive’s employment hereunder may be terminated by the Company without Cause or by the Executive for Good Reason. 
 (ii) For purposes of this Agreement, 
 (A) “Cause” shall mean (1) The willful breach or habitual neglect by the Executive of his job duties and responsibilities hereunder, (2) dishonesty in the performance of Executive’s duties
hereunder, (3) Executive’s conviction of, or plea of nolo contendere to a crime constituting (x) a felony under the laws of the United States or any state thereof or (y) a misdemeanor involving moral turpitude,
(4) Executive’s willful malfeasance or willful misconduct in connection with Executive’s duties hereunder or any act or omission which is materially injurious to the financial condition or business reputation of the Company or any of
its subsidiaries or affiliates or (5) Executive’s breach of the provisions of Sections 9 or 10 of this Agreement. 
 (B) “Good Reason” shall mean (1) a material diminution of the
Executive’s Base Salary, (2) any material breach by the Company of any material agreement between the Executive and the Company concerning the terms and conditions of Executive’s employment with the Company, or (3) a material
diminution in the Executive’s position or authority, duty, or responsibilities other than an isolated, insubstantial and inadvertent action that is not taken in bad faith and is remedied by the Company within 30 days after the receipt of
written notice thereof from Executive (provided, however, that the appointment of an executive Chairman of the Board to whom Executive would report, any other change in Executive’s title or reporting relationships, or an adjustment in the
nature of Executive’s duties and responsibilities that does not remove from him the authority to manage a significant portion of the products and services offered by the Company immediately prior to such change or adjustment, shall not
constitute “Good Reason”), or (4) any relocation of the location at which Executive is required to provide his services to a location that is more than 50 miles from its location as of the date hereof; provided that either of the
events described in clauses (1), (2), (3) or (4) of this Section 8(c)(ii)(B) shall constitute Good Reason only if the Company fails to cure such event within 30 days after receipt from Executive of written notice of the event which
constitutes Good Reason; provided, further, that “Good Reason” shall cease to exist for an event on the 60th day following
its occurrence, unless Executive has given the Company written notice thereof prior to such date. 
  

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 (C) “Change of Control” shall mean (i) the sale or disposition, in one or
a series of related transactions, of all, or substantially all, of the assets of the Company to any “person” or “group” (as such terms are defined in Sections 13(d)(3) or 14(d)(2) of the Exchange Act) other than Prides Capital
Partners, LLC and its affiliates; or (ii) any person or group, other than Prides Capital Partners, LLC and its affiliates, is or becomes the “beneficial owner” as that term is defined in Rule 13d-3 under the Exchange Act (except that
a person shall be deemed to have “beneficial ownership” of all shares that any such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company (or an entity that controls the Company), including by way of merger, consolidation, tender or exchange offer or otherwise. 
 (iii) If Executive’s employment is terminated by the Company without Cause not within twelve (12) months following a Change of
Control (other than by reason of death or Disability) or if Executive resigns for Good Reason not within three (3) months following a Change of Control, Executive shall be entitled to receive: 
 (A) the Base Salary through the date of termination; 
 (B) any Annual Bonus earned for the prior year, but unpaid, as of the date of termination for the immediately preceding fiscal year, paid
in accordance with Section 4 (except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement with the Company); 
 (C) reimbursement, within 60 days following submission by Executive to the Company of appropriate supporting documentation for any
un-reimbursed business expenses properly incurred by Executive in accordance with Company policy prior to the date of Executive’s termination; provided claims for such reimbursement (accompanied by appropriate supporting documentation) are
submitted to the Company within 90 days following the date of Executive’s termination of employment; 
 (D) such Employee
Benefits, if any, as to which Executive may be entitled under the employee benefit plans of the Company; 
 (E) subject to
Executive’s (i) execution within 45 days after that date of such termination of an effective release of all claims (in a form acceptable to the Company) in favor of the Company and its respective affiliates, and (ii) continued
compliance with the restrictive covenants set forth in Sections 9 and 10 below, continued payment of the Base Salary in accordance with the Company’s normal payroll practices, as in effect on the date of termination of Executive’s
employment, until twelve (12) months after the date of such termination; provided that the aggregate amount described in this clause (E) shall be reduced by the present value of any other cash severance or termination benefits
payable to Executive under any other plans, programs or arrangements of the Company or its affiliates that are not a part of this Agreement; and 
  

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 (F) participation for a period of twelve (12) months following termination of
employment at the Company’s expense for Executive and his then-eligible dependents in the Company’s group health plans pursuant to the Consolidated Budget Omnibus Reconciliation Act of 1985, as amended (“COBRA”). 
 (iv) If Executive’s employment is terminated by the Company without cause within twelve (12) months following a Change of
Control or by Executive for Good Reason within three (3) months following a Change of Control, Executive shall be entitled to receive: 
 (A) the Base Salary through the date of termination; 
 (B) any Annual Bonus earned for the
prior year, but unpaid, as of the date of termination for the immediately preceding fiscal year, paid in accordance with Section 4 (except to the extent payment is otherwise deferred pursuant to any applicable deferred compensation arrangement
with the Company); 
 (C) reimbursement, within 60 days following submission by Executive to the Company of appropriate
supporting documentation for any un-reimbursed business expenses properly incurred by Executive in accordance with Company policy prior to the date of Executive’s termination; provided claims for such reimbursement (accompanied by appropriate
supporting documentation) are submitted to the Company within 90 days following the date of Executive’s termination of employment; 
 (D) such Employee Benefits, if any, as to which Executive may be entitled under the employee benefit plans of the Company; 
 (E) subject to Executive’s (i) execution within 45 days after that date of such termination of an effective release of all claims (in a form acceptable to the Company) in favor of the Company and its
respective affiliates, and (ii) continued compliance with the restrictive covenants set forth in Sections 9 and 10 below, continued payment of the Base Salary in accordance with the Company’s normal payroll practices, as in effect on the
date of termination of Executive’s employment, until twelve (12) months after the date of such termination; provided that the aggregate amount described in this clause (E) shall be reduced by the present value of any other cash
severance or termination benefits payable to Executive under any other plans, programs or arrangements of the Company or its affiliates that are not a part of this Agreement; 
 (F) participation for a period of twelve (12) months following termination of employment at the Company’s expense for Executive
and his then-eligible dependents in the Company’s group health plans pursuant to the Consolidated Budget Omnibus Reconciliation Act of 1985, as amended (“COBRA”); 
  

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 (G) immediate vesting of all unvested Options and Restricted Stock; and 
 (H) 50% of the Base Salary paid in accordance with Section 4. 
 Following Executive’s termination of employment, Executive shall have no further rights to any compensation or any other benefits under this Agreement except as set forth in this Section 8. 
 e. Notice of Termination. Any purported termination of employment by the Company or by Executive (other than due to Executive’s death) shall
be communicated by written Notice of Termination to the other party hereto in accordance with Section 12(k) hereof. For purposes of this Agreement, a “Notice of Termination” shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of employment under the provision so indicated. 
 f. Section 4999. 
 (i) Reduction. Except as provided in Section 8(f)(ii), in the event it shall be determined that any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the
benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (including, without limitation, the accelerated vesting of incentive or equity awards held by Executive) or otherwise would be
subject to the excise tax imposed by Section 4999 of the Code (“Excise Tax”), then the amount of “parachute payments” (as defined in Section 280G of the Code) payable or required to be provided to Executive shall be
automatically reduced (a “Reduction”) to the minimum extent necessary to avoid imposition of such Excise Tax. 
 (ii) Gross-Up. Notwithstanding any provision herein to the contrary, if a Reduction under Section 8(f)(i) would result in the amount of parachute payments being reduced by 10% or more of the aggregate parachute payments, then no
Reduction shall apply and Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that, after payment (whether through withholding at the source or otherwise) by Executive of all taxes
(including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto), employment taxes and Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the parachute payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder in
calculating the Gross-Up Payment, Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable
to such reduction. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the
time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess within five (5) business days 

  

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following the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in
connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the parachute payments. 
 (iii) Other Terms. All determinations required to be made under this Section 12 shall be made by the Company’s
accounting firm (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Absent
manifest error, any determination by the Accounting Firm shall be binding upon the Company and Executive. The Gross-Up Payment to Executive, if any, shall be made no earlier than the date of the “parachute payment” to which such Gross-Up
Payment relates and no later than December 31st of the year following the year during which Executive remits the related Excise Tax. 
 (iv) Mitigation. The Company and the Executive agree to take reasonable efforts to mitigate the application of Sections 280G and 4999. 
 9. Non-Competition. 
 a. Executive
acknowledges and recognizes the highly competitive nature of the businesses of the Company and its affiliates and accordingly agrees as follows: 
 (1) During the Term and, for a period of one year following the date Executive ceases to be employed by the Company (the “Restricted Period”), Executive will not, whether on Executive’s own behalf or on
behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise whatsoever (“Person”), directly or indirectly solicit or assist in soliciting in
competition with the Company, the business of any client or prospective client: 
  

	 	(i)	with whom Executive had personal contact or dealings on behalf of the Company during the one year period preceding Executive’s termination of employment;


  

	 	(ii)	with whom employees reporting to Executive have had personal contact or dealings on behalf of the Company during the one year immediately preceding the Executive’s termination
of employment; or 

  

	 	(iii)	for whom Executive had direct or indirect responsibility during the one year immediately preceding Executive’s termination of employment. 

 (2) During the Restricted Period, Executive will not directly or indirectly: 
  

	 	(i)	engage in any business that competes with the business of the Company or its affiliates (including, without limitation, businesses which the Company or its affiliates have specific
plans to conduct in the future and as to which Executive is aware of such planning) (a “Competitive Business”); 

  

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	 	(ii)	enter the employ of, or render any services to, any Person (or any division or controlled or controlling affiliate of any Person) who or which engages in a Competitive Business;


  

	 	(iii)	acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer,
director, principal, agent, trustee or consultant; or 

  

	 	(iv)	interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the date of this Agreement) between the Company or any of its affiliates and
customers, clients, supplier’s partners, members or investors of the Company or its affiliates. 

 (3)
Notwithstanding anything to the contrary in this Agreement, Executive may, directly or indirectly own, solely as an investment, securities of any Person engaged in the business of the Company or its affiliates which are publicly traded on a national
or regional stock exchange or on the over-the-counter market if Executive (i) is not a controlling person of, or a member of a group which controls, such person and (ii) does not, directly or indirectly, own 5% or more of any class of
securities of such Person. 
 (4) During the Restricted Period, Executive will not, whether on Executive’s own behalf or
on behalf of or in conjunction with any Person, directly or indirectly: 
  

	 	(i)	solicit or encourage any employee of the Company or its affiliates to leave the employment of the Company or its affiliates; or 

  

	 	(ii)	hire any such employee who was employed by the Company or its affiliates as of the date of Executive’s termination of employment with the Company or who left the employment of
the Company or its affiliates coincident with, or within one year prior to or after, the termination of Executive’s employment with the Company. 

 (5) During the Restricted Period, Executive will not, directly or indirectly, solicit or encourage to cease to work with the Company or
its affiliates any consultant then under contract with the Company or its affiliates. 
 b. It is expressly understood and agreed that
although Executive and the Company consider the restrictions contained in this Section 9 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such 

  

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maximum extent as such court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any
restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein. 
 10. Confidentiality; Intellectual Property. 
 a. Confidentiality. 
 (i) Executive will not at any time (whether during or after Executive’s
employment with the Company) (x) retain or use for the benefit, purposes or account of Executive or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any Person outside the Company (other
than its professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information —including without limitation trade secrets, know-how, research and development, software, databases,
inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel,
compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals — concerning the past, current or future business, activities and operations of the Company, its subsidiaries or
affiliates and/or any third party that has disclosed or provided any of same to the Company on a confidential basis (“Confidential Information”) without the prior written authorization of the Board. 
 (ii) “Confidential Information” shall not include any information that is (a) generally known to the industry or the
public other than as a result of Executive’s breach of this covenant or any breach of other confidentiality obligations by third parties; (b) made legitimately available to Executive by a third party without breach of any confidentiality
obligation; or (c) required by law to be disclosed; provided that Executive shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and cooperate with any attempts by the
Company to obtain a protective order or similar treatment. 
 (iii) Upon termination of Executive’s employment with the
Company for any reason, Executive shall (x) cease and not thereafter commence use of any Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name,
logo, domain name or other source indicator) owned or used by the Company, its subsidiaries or affiliates; (y) immediately destroy, delete, or return to the Company, at the Company’s option, all originals and copies in any form or medium
(including memoranda, books, papers, plans, computer files, letters and other data) in Executive’s possession or control (including any of the foregoing stored or located in Executive’s office, home, laptop or other computer, whether or
not Company property) that contain Confidential Information or otherwise relate to the business of the Company, its affiliates and subsidiaries, except that Executive may retain only those portions of any personal notes, 

  

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notebooks and diaries that do not contain any Confidential Information; and (z) notify and fully cooperate with the Company regarding the delivery or
destruction of any other Confidential Information of which Executive is or becomes aware. 
 b. Intellectual Property. 
 (i) If Executive has created, invented, designed, developed, contributed to or improved any works of authorship, inventions, intellectual
property, materials, documents or other work product (including without limitation, research, reports, software, databases, systems, applications, presentations, textual works, content, or audiovisual materials) (“Works”), either alone or
with third parties, prior to Executive’s employment by the Company, that are relevant to or implicated by such employment (“Prior Works”), Executive hereby grants the Company a perpetual, non-exclusive, royalty-free, worldwide,
assignable, sub-licensable license under all rights and intellectual property rights (including rights under patent, industrial property, copyright, trademark, trade secret, unfair competition and related laws) therein for all purposes in connection
with the Company’s current and future business. 
 (ii) If Executive creates, invents, designs, develops, contributes to
or improves any Works, either alone or with third parties, at any time during Executive’s employment by the Company and within the scope of such employment and/or with the use of any the Company resources (“Company Works”), Executive
shall promptly and fully disclose same to the Company and hereby irrevocably assigns, transfers and conveys, to the maximum extent permitted by applicable law, all rights and intellectual property rights therein (including rights under patent,
industrial property, copyright, trademark, trade secret, unfair competition and related laws) to the Company to the extent ownership of any such rights does not vest originally in the Company. 
 (iii) Executive agrees to keep and maintain adequate and current written records (in the form of notes, sketches, drawings, and any other
form or media requested by the Company) of all Company Works. The records will be available to and remain the sole property and intellectual property of the Company at all times. 
 (iv) Executive shall take all requested actions and execute all requested documents (including any licenses or assignments required by a
government contract) at the Company’s expense (but without further remuneration) to assist the Company in validating, maintaining, protecting, enforcing, perfecting, recording, patenting or registering any of the Company’s rights in the
Prior Works and Company Works. If the Company is unable for any other reason to secure Executive’s signature on any document for this purpose, then Executive hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as Executive’s agent and attorney in fact, to act for and in Executive’s behalf and stead to execute any documents and to do all other lawfully permitted acts in connection with the foregoing. 
  

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 (v) Executive shall not improperly use for the benefit of, bring to any premises of,
divulge, disclose, communicate, reveal, transfer or provide access to, or share with the Company any confidential, proprietary or non-public information or intellectual property relating to a former employer or other third party without the prior
written permission of such third party. Executive hereby indemnifies, holds harmless and agrees to defend the Company and its officers, directors, partners, employees, agents and representatives from any breach of the foregoing covenant. Executive
shall comply with all relevant policies and guidelines of the Company, including regarding the protection of confidential information and intellectual property and potential conflicts of interest. Executive acknowledges that the Company may amend
any such policies and guidelines from time to time, and that Executive remains at all times bound by their most current version. 
 (vi) The provisions of Section 10 shall survive the termination of Executive’s employment for any reason. 
 11.
Specific Performance. Executive acknowledges and agrees that the Company’s remedies at law for a breach or threatened breach of any of the provisions of Section 9 or Section 10 would be inadequate and the Company would suffer
irreparable damages as a result of such breach or threatened breach. In recognition of this fact, Executive agrees that, in the event of such a breach or threatened breach, in addition to any remedies at law, the Company, without posting any bond,
shall be entitled to cease making any payments or providing any benefit otherwise required by this Agreement and obtain equitable relief in the form of specific performance, temporary restraining order, temporary or permanent injunction or any other
equitable remedy which may then be available. 
 12. Miscellaneous. 
 a. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to
conflicts of laws principles thereof. 
 b. Arbitration. In the event of any dispute or claim relating to or arising out of
Executive’s employment relationship with the Company, this Agreement or the termination of Executive’s employment with the Company for any reason (including, but not limited to, any claims of breach of contract, wrongful termination or
age, sex, race, national origin, sexual orientation, religion, disability or other discrimination or harassment), Executive and the Company agree that all such disputes, with the sole exception of those disputes which may arise from Executive’s
non-competition, non-disclosure and/or any other obligation referred to in Sections 8 and 9 herein, shall be fully, finally and exclusively resolved by binding arbitration to the fullest extent permitted by law. The arbitration will be conducted by
the American Arbitration Association (“AAA”) in Broward County, Florida in accordance with its “National Rules for the Resolution of Employment Disputes” then in effect. Information regarding the rules of the AAA can be found at
www.adr.org. Executive and the Company hereby waive their respective rights to have any such disputes or claims tried to a judge or jury. Nothing in this Agreement is intended to prevent either Executive or the Company from obtaining injunctive
relief in court to prevent irreparable harm pending the conclusion of any such arbitration. 
  

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 c. Legal Fees. In the event of any dispute, controversy or claim arising out of, relating to or
in connection with this Agreement, or the breach thereof, each party shall pay its own attorney’s fees and costs. 
 d. Entire
Agreement/Amendments. This Agreement contains the entire understanding of the parties with respect to the employment of Executive by the Company. There are no restrictions, agreements, promises, warranties, covenants or undertakings between the
parties with respect to the subject matter herein other than those expressly set forth herein. This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto. 
 e. No Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a
waiver of such party’s rights or deprive such party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. 
 f. Severability. In the event that any one or more of the provisions of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby. 
 g. Assignment. This Agreement, and all of Executive’s
rights and duties hereunder, shall not be assignable or delegable by Executive. Any purported assignment or delegation by Executive in violation of the foregoing shall be null and void ab initio and of no force and effect. This Agreement may
be assigned by the Company to a person or entity which is an affiliate or a successor in interest to substantially all of the business operations of the Company. Upon such assignment, the rights and obligations of the Company hereunder shall become
the rights and obligations of such affiliate or successor person or entity. 
 h. Set Off; Mitigation. The Company’s obligation
to pay Executive the amounts provided and to make the arrangements provided hereunder shall be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or its affiliates. Executive shall be required to mitigate the
amount of any payment provided for pursuant to this Agreement by seeking other employment, taking into account the provisions of Section 8 of this Agreement. Anything in this Agreement to the contrary notwithstanding, in the event that
Executive provides services for pay to anyone other than the Company or any of its affiliates from the date Executive’s employment hereunder is terminated until the end of the Term (determined as if Executive’s employment had not been
terminated), the amounts paid to Executive during such period pursuant to this Agreement (including any amount paid pursuant to Section 7(c)(iii)(B)) shall be reduced (or if paid to Executive, refunded to the Company by Executive) by the
amounts of salary, bonus or other cash or kind compensation earned by, paid or granted to Executive during such period as a result of Executive’s performing such services (regardless of when such earned amounts are actually paid to Executive).

  

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 i. Compliance with IRC Section 409A. Notwithstanding anything herein to the contrary, if at
the time of Executive’s termination of employment with the Company Executive is a “specified employee” as defined in Section 409A of the Code 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 months following Executive’s termination of employment with the Company (or, if earlier the death of
Executive). 
 j. Successors; Binding Agreement. This Agreement shall inure to the benefit of and be binding upon personal or legal
representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. 
 k. Notice. For the purpose of
this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered by hand or overnight courier or three days after it has been mailed by United States
registered mail, return receipt requested, postage prepaid, addressed to the respective addresses set forth below in this Agreement, or to such other address as either party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt. 
 If to the Company: 
 eDiets.com, Inc. 
 1000 Corporate Drive Suite
600 
 Fort Lauderdale, Florida 33334 
 Attention: General Counsel 
 If to Executive: 
 To the most recent address of Executive set forth in the personnel records of the Company. 
 l.
Executive Representation. Executive hereby represents to the Company that the execution and delivery of this Agreement by Executive and the Company and the performance by Executive of Executive’s duties hereunder shall not constitute a
breach of, or otherwise contravene, the terms of any employment agreement or other agreement or policy to which Executive is a party or otherwise bound. 
 m. Prior Agreements. This Agreement supersedes all prior agreements and understandings (including verbal agreements) between Executive and the Company and/or any of its affiliates regarding the terms and
conditions of Executive’s employment with the Company and/or its affiliates. 
  

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 n. Cooperation. Executive shall provide Executive’s reasonable cooperation in connection
with any action or proceeding (or any appeal from any action or proceeding) which relates to events occurring during Executive’s employment hereunder. This provision shall survive any termination of this Agreement. 
 o. Withholding Taxes. The Company may withhold from any amounts payable under this Agreement such Federal, state and local taxes as may be
required to be withheld pursuant to any applicable law or regulation. 
 p. Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. 
 IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written. 
  

							
	EDIETS.COM, INC.	 		 	KEVIN MCGRATH
				
	By:	 	 /s/ Kevin A. Richardson II
	 		 	 /s/ Kevin McGrath

	Title:	 	Chairman	 		 	

  

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