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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES AND EXCHANGE ACT OF 1934

Date of Report: March 31, 2004

VITACUBE SYSTEMS HOLDINGS, INC.
(Exact Name of Registrant as Specified in its Charter)

NEVADA
(State of Incorporation)

333-56250   84-1575085
(Commission File No.)   (I.R.S. Employer Identification Number)

 

 

 
480 South Holly Street, Denver, CO   80246
(Address of Principal Executive Offices)   (Zip Code)

(303) 316-8577
(Registrant's Telephone Number)


Item 5. Other Events and Regulation FD Disclosure

        On March 31, 2004, VitaCube Systems Holdings, Inc. completed the initial closing of a best efforts, $2.3 million minimum, private placement of its common stock (the "Offering"). The Company sold 7,689,750 shares of its common stock for an aggregate cash purchase price of $2,306,924. A final closing is expected in mid-April. VitaCube will use the proceeds from the Offering to initiate and advance its newly launched Network Marketing division and for working capital and general corporate purposes.

        VitaCube issued these shares in reliance on the exemption from registration provided in Section 4(2) and Regulation D and Regulation S of the Securities Act of 1933, as amended (the "Act"). The Offering was made solely to "accredited investors" as defined in Regulation D under the Act. No form of general solicitation or general advertisement was used in connection with the Offering. VitaCube and each investor entered into a stock purchase agreement with respect to the acquisition of the stock. The agreement included representations received from the investor, concerning their intent to acquire the securities for investment only and not with a view toward distribution and establishing their status as accredited investors. The agreement also disclosed that the securities being acquired had not been registered under the Act and that that future disposition of the securities is restricted except in compliance with the Act and state securities laws. VitaCube will file a Form D with respect to the Offering with the Securities and Exchange Commission within the time period required by Regulation D of the Act.

        VitaCube agreed to file a registration statement relating to the resale of the common stock purchased by the investors in the Offering, within 90 days of the first closing. VitaCube also agreed to include in the registration statement the resale of the shares of common stock underlying the warrant issued to the placement agent.

        MDB Capital Group, LLC acted as placement agent and investment banker in the Offering. For the sale of 7,666,666 shares in the Offering, MDB will receive a fee of a warrant to purchase 2 million shares of common stock of VitaCube at $.30 per share, for a period of five years. The number of shares underlying the warrant will be proportionately increased for any shares of common stock sold in the Offering in excess of 7,666,666 shares. The exact number of shares subject to the warrant will be determined at the final closing. The shares underlying the warrant will be registered with the shares sold in the Offering. MDB is also entitled to reimbursement for its out-of-pocket expenses.

        In connection with the initial closing and as a condition to closing of the Offering:

        Mr. Greenberg's employment agreement provides for his employment as chief executive officer and president of VitaCube. Mr. Greenberg will receive a salary of $150,000 per year and may receive bonuses in such amount as determined by the board. Mr. Greenberg will also be eligible to participate in bonuses on the same basis as other executives under any executive bonus plan adopted by VitaCube. Either party may terminate the agreement upon 30 days prior written notice. Additionally, Mr. Greenberg may be terminated for "just cause" as defined in the Agreement upon one business day prior written notice. If Mr. Greenberg is terminated by VitaCube without just cause he is entitled to two years salary payable over 24 months.

        Pursuant to his employment agreement Mr. Greenberg also receive stock options to purchase 4 million shares of common stock of VitaCube at $.60 per share. The options vest over 4 years provided that Mr. Greenberg is still employed by VitaCube and are exercisable for 5 years after vesting. If Mr. Greenberg is terminated without just cause all his unvested options vest and are exercisable for a period of 5 years from the date of termination. If Mr. Greenberg is terminated for just cause all unexercised options terminate as of his date of termination.

        The effect of the initial closing and conversion of debt into equity was to increase VitaCube's capital by over $4,300,000, reduce VitaCube's liabilities to approximately $700,000 (consisting solely of accounts payable), and increase VitaCube's cash position by approximately $2,300,000.


Item 7. Financial Statements and Exhibits


SIGNATURE

        Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned.


Dated: April 2, 2004

 

VITACUBE SYSTEMS HOLDINGS, INC.

 

 

By:

 

/s/  
SANFORD D. GREENBERG       
Sanford D. Greenberg
Chief Executive Officer



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SIGNATURE

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Exhibit 10.1

[Logo]   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


EMPLOYMENT AGREEMENT BETWEEN
VITACUBE SYSTEMS HOLDINGS, INC.
AND SANFORD D. GREENBERG

        This Employment Agreement ("the Agreement") between VitaCube Systems Holdings, Inc. and Sanford D. Greenberg ("Employee") entered effective as of the 1st day of April 2004 ("Effective Date"), sets forth the terms, which shall govern the employment of Employee with VitaCube Systems Holdings, Inc. ("Employer" or the "Company").

        1.      EMPLOYMENT.

        2.      COMPENSATION.

        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:

Employee 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.

        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.

        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.

        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.

        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, if mailed, when deposited in the U.S. Mail, postage prepaid, registered or certified, return receipt requested. Unless changed by written notice given to a party by the other, such notices shall be given to the Employer at the following address:

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

        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.

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


 

 

EMPLOYER:

 

 

VITACUBE SYSTEMS HOLDINGS, INC.

 

 

By:

 


Authorized officer

 

 

Date:

 

 
       

 

 

EMPLOYEE:

 

 


Sanford D. Greenberg

 

 

Date:

 

 
       



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EMPLOYMENT AGREEMENT BETWEEN VITACUBE SYSTEMS HOLDINGS, INC. AND SANFORD D. GREENBERG

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Exhibit 10.2

THE SECURITIES REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR APPLICABLE STATE SECURITIES ACTS (THE "STATE ACTS"), AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED, DONATED, OR OTHERWISE TRANSFERRED (WHETHER OR NOT FOR CONSIDERATION) BY THE HOLDER, EXCEPT UPON THE ISSUANCE TO VITACUBE SYSTEMS HOLDINGS, INC. (THE "CORPORATION") OF A FAVORABLE OPINION OF THE HOLDER'S COUNSEL, OR SUBMISSION TO THE CORPORATION OF SUCH OTHER EVIDENCE AS MAY BE REASONABLY SATISFACTORY TO COUNSEL FOR THE CORPORATION, TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE ACT AND THE STATE ACTS.


STOCK OPTION AGREEMENT

        This Stock Option Agreement is made effective as of the 1st day of April, 2004 between VITACUBE SYSTEMS HOLDINGS, INC. , a Nevada corporation (the "Corporation") and Sanford D. Greenberg ("Optionee").

BACKGROUND:

        A.    Optionee is employed by the Corporation as its president and chief executive officer.

        B.    Pursuant to the terms of Optionee's employment agreement with the Corporation, a copy of which is attached to this Agreement, the Corporation agreed to issue an option to purchase common stock of the Corporation to Optionee.

        IN CONSIDERATION of Optionee's employment with the Corporation and the mutual promises and undertakings described below, the parties agree as follows:

        1.      Grant of Option . The Corporation hereby grants to Optionee an option ("Option") to acquire from the Corporation, at an initial purchase price of $.60 per share, 4 million fully paid and nonassessable shares of common stock, par value $.001 per share (the "Common Stock") of the Corporation. The Option shall vest and be exercisable as provided below. The purchase price per share of the Common Stock, as adjusted from time to time as provided herein, is referred to as the "Purchase Price."

        2.      Exercise of Option.

Vesting Date

  Number of Shares of Common Stock Vested
January 1, 2005   1,000,000
January 1, 2006   1,000,000
January 1, 2007   1,000,000
January 1, 2008   1,000,000

        3.      Manner of Exercise.

        4.      Reservation of Shares . The Corporation covenants that it will at all times reserve and keep available a number of its authorized shares of Common Stock, free from all preemptive rights, which will be sufficient to permit the exercise of this Option. The Corporation further covenants that such shares as may be issued pursuant to the exercise of this Option will, upon issuance, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens, and charges.

        5.      Adjustments to Purchase Price.

        6.      Restricted Shares.

        7.      Transferability of Option . During the lifetime of the Optionee, the Option is exercisable only by the Optionee and is not assignable or transferable. If the Optionee dies prior to the expiration of this Option, the Option to the extent exercisable on the date of Optionee's death may be exercised by the personal representative of the Optionee's estate, or by the persons to whom the Option is transferred pursuant to the Optionee's will or in accordance with the laws of descent and distribution.

        8.      No Employment Rights . Nothing in this Agreement will confer upon Optionee any right to continue in the employment of the Corporation for any period or specific duration or interfere with or otherwise restrict in any way the rights of the Corporation or of the Optionee, to terminate his employment as provided in the Employment Agreement.

        9.      Compliance with Laws and Regulations.

        10.    Representations and Warranties by Optionee . Optionee represents and warrants to Corporation as follows:

        11.    Governing Law . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF COLORADO WITHOUT REFERENCE TO ANY CONFLICTS OF LAW PROVISION THAT WOULD REQUIRE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. VENUE FOR ANY PROCEEDING BROUGHT TO ENFORCE THE TERMS OF THIS AGREEMENT SHALL BE PROPER ONLY IN THE STATE OR FEDERAL COURTS LOCATED IN THE CITY AND COUNTY OF DENVER, STATE OF COLORADO.

        12.    Severability . If any provision of this Option is determined to be invalid or unenforceable for any reason, the remainder of the Option shall remain in full force and effect.

        13.    Succession . This Option shall be binding upon the parties, their respective heirs, successors, assigns, and legal representatives.

        IN WITNESS WHEREOF, the parties have executed this Option effective as of the day and year first above written.


VITACUBE SYSTEMS HOLDINGS, INC.

 

 

By:

 


Mary Pat O'Halloran,
Chief Financial Officer

 

 

Date:

 

 

 

 
   
   

OPTIONEE

 

 


Sanford D. Greenberg

 

 

Date:

 

 

 

 
   
   

Address: [withheld]

 

 

Social Security Number: [withheld]

 

 

Form of Exercise

Date:                        

To:
VitaCube Systems Holdings, Inc.
480 S. Holly Street
Denver, CO 80246

        The undersigned hereby subscribes for            shares of Common Stock of VitaCube Systems Holdings, Inc. covered by this Option and hereby makes payment of $                        in payment of the purchase price therefor.

        I understand that the Corporation's obligation to deliver the Common Stock is subject to all applicable federal and state securities laws. I agree to execute such additional documents as the Corporation may reasonably request with respect to my acquisition of the Common Stock.

        The certificate(s) for such shares should be issued in the name of the undersigned or as otherwise indicated below:

   
Signature

 

 


Print Name

 

 


Name for Registration, if different

 

 


Mailing Address

 

 



 

 


Social Security Number or Employee Identification Number



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STOCK OPTION AGREEMENT