EXHIBIT 10.1
PERSONAL SERVICES AGREEMENT
This Personal Services Agreement is entered
into this 20th day of April, 2005
(the "Effective Date"), by and between
Integrated Biopharma, Inc., a Delaware
corporation (the "Company") having its
principal place of business at 225 Long
Avenue, Hillside, New Jersey 07205, and
Gregory A. Gould ("Executive").
WHEREAS, the Company desires to employ
Executive pursuant to the terms and
conditions and for the consideration set
forth in this Agreement and Executive
desires to enter the employ of the Company
pursuant to such terms and conditions
and for such consideration;
WHEREAS, the provisions of this Agreement
are a condition of Executive being
employed by Company, of Executive's having
access to confidential business and
technological information and of
Executive's being eligible to receive certain
benefits of the Company. This Agreement is
entered into, and is reasonably
necessary, to protect confidential
information and customer relationships to
which Executive may have access, and to
protect the goodwill and other business
interests of the Company; and
WHEREAS, the provisions of this Agreement
are also a condition to Executive's
agreement to provide personal services to
the Company.
NOW THEREFORE, in consideration of the
mutual promises and covenants agreed to
herein, the receipt and sufficiency of
which are hereby acknowledged, the
Company and Executive agree as follows:
1.
Position, Term, Duties, Responsibilities.
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(a) Position.
Executive shall be employed by the Company in the
capacity of Senior Vice President and Chief Financial Officer to
act in
accordance with the terms and conditions hereinafter set forth.
(b) Duties. The
Executive shall, during the term of his
employment hereunder, devote his full normal working time, energies
and
attention to the
duties of his employment, as they may be established
from time to time by the Board of Directors of the Company (the
"Board") and the Chief Executive Officer of the Company consistent
with
the position and office occupied by Executive.
(c) Term. This
Agreement shall be for a term beginning on the
Effective Date and terminating the earlier of (i) second
anniversary of
the Effective Date, or (ii) the date on which Executive's
employment is
terminated pursuant to Section 3 of this Agreement (the
"Initial
Term"); provided that, unless earlier terminated pursuant to
Section 3
of this Agreement, the Initial Term shall be automatically extended
for
additional one-year terms (each, a "Renewal Term") upon the
expiration
of the Initial Term or any such Renewal Term unless the Company or
the
Executive delivers to the other at least ninety (90) days prior to
the
expiration of the Initial Term or the then current Renewal Term, as
the
case may be, a written notice specifying that the term of the
Executive's employment will not be renewed at the end of the
Initial
Term or such Renewal Term, as the case may be. The Initial Term or,
in
the event that the Executive's employment hereunder is earlier
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terminated pursuant to Section 3 or renewed as provided in this
Section
1(c), such shorter or longer period, as the case may be, is
hereinafter
called the "Term."
(d) Other
Activities. During Executive's employment with the
Company, Executive shall devote his entire business time, attention
and
energies to the performance of his duties and functions under
this
Agreement; provided, however that nothing in this Agreement
shall
prevent Executive from: (i) serving as a director of another
entity
upon prior written approval of the Board, which shall not be
unreasonably withheld, provided that Executive shall not so serve
for
more than one other entity at a time; (ii) managing his
personal
investments and affairs and the personal investments and affairs of
any
of his family members; (iii) acquiring any interest in any
entity,
whether or not part of a control group, that is directly or
indirectly
owned or controlled, in whole or in part, by Executive and/or one
or
more members of his family, or a partnership, trust or other
entity
held by or for the benefit of Executive and/or one or more members
of
his family, and/or (iv) performing any services for any entity that
is
directly or indirectly owned or controlled, in whole or in part,
by
Executive and/or one or more members of his family, or a
partnership,
trust or other entity held by or for the benefit of Executive
and/or
one or more members of his family; provided, however, that any
service
shall be insubstantial and shall not include any active involvement
in
the management of such entity.
2.
Compensation, Bonuses and Benefits.
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(a) Base Salary.
During Executive's employment with the
Company, the Company shall pay Executive a base annual salary,
(the
"Base Salary") which at the time of the execution of this Agreement
is
Two Hundred Ten Thousand Dollars ($210,000). The Base Salary shall
be
payable in accordance with the Company's normal payroll schedule,
less
all applicable tax withholdings for state and federal income
taxes,
FICA and other deductions as required by law and/or authorized by
the
Executive. The Executive's Base Salary shall be reviewed by the
Board
no less frequently than annually to determine whether or not the
same
should be increased in light of the duties and responsibilities of
the
Executive and the performance thereof, and, if it is determined by
the
Board in its sole discretion that an increase is merited, such
increase
shall be promptly put into effect and the base salary of the
Executive
as so increased shall constitute the base salary of the Executive
for
purposes of this Agreement from and after such date.
(b) Incentive
Compensation Program. During Executive's
employment with the Company, the Company shall pay Executive an
annual
bonus in the amount of one percent (1%) of the Company's
earnings
excluding interest expense, federal and state income tax expense
and
benefit, minority interest income or expenses of the
consolidated
subsidiary(ies) and any deemed or actual dividends or payments
distributed (or deemed to have been distributed) to any preferred
stock
holders or holders of convertible debt securities (determined
excluding
bonuses to employees paid by the Company), ("EBIT") as determined
based
upon the Company's year-end audited financial statements (the
"Annual
Bonus"). The Annual Bonus for any one year will not exceed an
amount
equal to seventy-five percent (75%) of Executive's Base Salary.
The
Annual Bonus shall be payable to Executive within fifteen (15)
days
following the completion of the year-end audit.
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(c) Stock
Options. At the Effective Date, the Company shall
grant Executive stock options, which to the extent allowable by
applicable law shall be Incentive Stock Options, as defined in
the
Internal Revenue Code of 1986, as amended, to purchase 125,000
shares
of the Company's $.002 par value common stock with an exercise
price
equal to the closing price of the common stock as reported by
the
American Stock Exchange on the Effective Date, or if such date is
not a
date on which such stock is traded, the last day such stock was
traded,
per share (the "Stock Options"). Subject to the provisions of
Section 3
of this Agreement, Executive's Stock Options shall vest on the
first
anniversary of the Effective Date, provided the Executive
remains
employed by the Company. The grant of the Stock Options is
conditioned
upon Executive's execution of the Company's stock option agreement
(the
"Stock Option Agreement") and is subject to its terms and the terms
of
the
Company's 2001 Stock Incentive Plan.
(d) Benefits.
Executive shall also be entitled to participate
in such employee benefit plans, other than the Company's bonus
plans
and other incentive compensation plans, that the Company provides
or
may establish from time to time for the benefit of senior officers
of
the Company, subject to the terms of each such plan and subject to
the
right of the Company and the Board to modify, revise or eliminate
such
benefit plans from time to time in their sole discretion.
Executive
shall pay for the portion of the cost of such benefits as is
from
time-to-time established by Company as the portion of such cost to
be
paid by senior officers of Company.
(e) Automobile
Allowance. The Company shall pay Executive an
automobile allowance of $1,000 per month, payable with the
first
monthly payment of Base Salary.
(f) Costs and
Expenses. Executive shall be entitled to
reimbursement for all ordinary reasonable out-of-pocket
business
expenses which are reasonably incurred by him in the furtherance of
the
Company's business, in accordance with the policies adopted from
time
to time by the Company or the Board. Executive will comply with
the
Company's written travel policies as established from time to time
by
the Company or the Board.
(g) Vacation.
During the Term, Executive shall be entitled to
three weeks of paid vacation per year so long as the absence of
Executive does not interfere in any material respect with the
performance by Executive of Executive's duties hereunder.
Executive
will use his best efforts to schedule vacation periods to
minimize
disruption of the Company's business.
3.
Termination.
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(a) Mutual
Agreement. Executive's employment under this
Agreement may be
terminated at any time by the mutual agreement of the
Company and Executive, expressed in writing.
(b) Voluntary.
Executive's employment under this Agreement may
be terminated by Executive with or without the consent of the
Company
by giving written notice of his intent to terminate with the
effective
date of termination at least forty-five
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(45) days after the effective date of the notice of termination.
After
such notice the Company may accelerate the date such termination
will
take effect pursuant to this paragraph (b) without being in
breach
hereof.
(c) Without
Cause. The Company may terminate Executive's
employment under this Agreement at any time without Cause
effective
immediately upon delivery of written notice to Executive.
(d) Disability
or Death. The Company may terminate Executive's
employment
under this Agreement upon the death or disability of
Executive. For purposes of this Agreement, Executive shall be
considered disabled if he is unable to perform his duties under
this
Agreement as a result of injury, illness or other disability for
a
period of ninety (90) consecutive days, or one hundred eighty
(180)
days in any three hundred sixty-five (365) day period, and the
Board
reasonably determines that Executive has been unable to perform
his
duties for the ninety (90) or the one hundred eighty (180) day
period,
as applicable, as a result of injury, illness or other
disability.
(e) For Cause by
the Company. The Company may terminate
Executive's employment under this Agreement for "Cause", as
defined
below, effective immediately upon delivery of written notice to
Executive. "Cause" shall mean:
(i)
Willful misfeasance or nonfeasance of duty by
Executive intended to injure or having the effect of injuring
in
some material fashion the reputation or business of the
Company;
(ii) Conviction
of Executive with respect to a felony or
any crime involving moral turpitude, in either case which could
reflect in some material fashion unfavorably upon the Company;
(iii) Willful or
prolonged absence from work by Executive
(other than by reason of disability due to physical or mental
illness) without the same being corrected upon ten (10) days
written notice; or
(iv) If
Executive materially violates any term of this
Agreement and such action or failure is not substantially
remedied within thirty (30) days of written notice from the
Company to Executive.
(f) Termination
After Change of Control. Executive may
terminate his employment within ninety (90) days after a Change
of
Control upon two weeks prior written notice to the Company.
(i)
"Change of Control" shall mean the occurrence of one
or more of the following:
(1) any person
(as defined in Sections 3(a)(9) and
13(d)(3) of the Securities Exchange Act of 1934), other
than a person who is an existing stockholder of the
Company, directly or indirectly, becomes the
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"beneficial owner" (as defined in Rule 13d-3 promulgated
pursuant to such Securities Exchange Act) of 50% or more of
the
Voting Stock;
(2) a complete
liquidation or dissolution of the
Company other than a liquidation or dissolution occurring
after any of the following transactions: the merger or
consolidation of the Company with an Affiliate, the
transfer of 50% or more of the Voting Stock of the Company
to an Affiliate or Affiliates or the sale or other transfer
of all or substantially all of the assets of the Company to
an Affiliate or Affiliates;
(3) the sale of
all or substantially all of the
Company's assets to a single purchaser or group of
affiliate purchasers, other than any Affiliate or
Affiliates, in one or a series of related transactions; or
(4) the Company
engages in a merger or
consolidation with another entity other than an affiliate
of the Company and immediately after that merger or
consolidation, the persons or entities which were
stockholders of the
