Exhibit 10.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), dated as of
August 9, 2005, by and between INTEGRATED BIOPHARMA, INC., a Delaware
corporation having its principal executive office located at 000 Xxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and XXXXXXX X. XXXXX, an individual
residing at 0000 Xxxx Xxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx 00000 ("Consultant").
W I T N E S S E T H
WHEREAS, the Company and Consultant are parties to a Personal
Services Agreement, dated April 20, 2005 (the "Employment Agreement"), pursuant
to which Consultant was employed as Senior Vice President and Chief Financial
Officer of the Company on the terms and conditions set forth therein;
WHEREAS, each of the Company and Consultant desire to
terminate the Employment Agreement pursuant to Section 3(a) of said Employment
Agreement in accordance with the terms and conditions set forth herein; and
WHEREAS, each of the Company and Consultant desire to enter
into a consulting arrangement pursuant to the terms and conditions set forth
herein.
NOW, THEREFORE, in consideration of the mutual premises and
agreements contained herein, and intended to be legally bound hereby, the
parties hereby agree as follows:
1. Termination of Employment Agreement. Pursuant to Section 3(a) of the
Employment Agreement, the Employment Agreement and Consultant's employment
pursuant thereto as Senior Vice President and Chief Financial Officer of the
Company is hereby terminated, effective as of August 9, 2005 (the "Agreement
Termination Date"). The Company agrees to pay Consultant the salary, expense
reimbursements and other benefits (including accrued vacation) he is entitled to
under the Employment Agreement through the Agreement Termination Date at such
time as such amounts would be paid under the Company's normal payment
procedures.
2. Release and Waiver of Payments.
(a) The parties hereto hereby agree that, notwithstanding
anything to the contrary contained in the Employment Agreement and except as
specifically set forth in this Agreement, Consultant hereby grants to the
Company a general release from claims, actions, causes of action, debts,
agreements, promises, damages and demands whatsoever in law or at equity, which
Consultant ever had, now has or hereafter can, shall or may have against the
Company for, upon or by reason of, any matter whatsoever from the beginning of
Consultant's relationship with the Company to the date hereof, including, but
not limited to, any and all claims Consultant has or may have relating to, or
arising out of the employment of Consultant with the Company, the termination of
his employment, wrongful termination, age discrimination, defamation,
harassment, discrimination, discharge in violation of public policy and/or
violation of any federal, state or local laws, including without limitation, the
Age Discrimination in Employment Act, as amended, the Older Workers Benefits
Protection Act, the Fair Employment and Housing Act, the Americans with
Disabilities Act and Title VII of the Civil Rights Act of 1964, as amended, the
Fair Labor Standards Act, as amended, the National Labor Relations Act, as
amended, the Labor-Management Relations Act, as amended, the Worker Adjustment
and Retraining Notification Act of 1988, as amended, the Rehabilitation Act of
1973, as amended, the Equal Pay Act, the Pregnancy Discrimination Act, the
Employee Retirement Income Security Act of 1974, as amended, the Family Medical
Leave Act of 1993 or any other federal, state or local employee relations
statute.
(b) The parties hereto hereby agree that, notwithstanding
anything to the contrary contained in the Employment Agreement, and except for
any violation of law by Consultant while an employee of the Company and except
as specifically set forth in this Agreement, the Company hereby grants to
Consultant a general release from claims, actions, causes of action, debts,
agreements, promises, damages and demands whatsoever in law or at equity, which
the Company ever had, now has or hereafter can, shall or may have against
Consultant for, upon or by reason of, any matter whatsoever from the beginning
of Consultant's relationship with the Company to the date hereof, including, but
not limited to, any and all claims the Company has or may have relating to, or
arising out of the Employment Agreement, the employment of Consultant with the
Company and the termination of his employment.
(c) Notwithstanding anything to the contrary contained herein,
the Company shall, commencing on the Agreement Termination Date and continuing
for six (6) months after the Agreement Termination Date or, if sooner, the
termination of this Agreement by the Company in accordance with Section 9
hereof, (i) continue to provide Consultant with the same level of health and
other insurance benefits that he received pursuant to the Employment Agreement
(the Company may elect to pay Consultant an amount per month equal to all
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") premiums paid
by Consultant for COBRA medical coverage which, in accordance with applicable
federal labor law, starts on the Agreement Termination Date, or, in lieu
thereof, the Company, in its sole discretion, may elect to provide such medical
coverage directly to Consultant) or (ii) in lieu thereof pay Consultant the sum
of $1,000 per month through the Expiration Date. All payments due under this
subsection shall be made on a monthly basis, or more often in the sole
discretion of the Company, commencing within thirty (30) days after the
Agreement Termination Date).
3. Consulting Services.
(a) The Company agrees to and does hereby engage Consultant,
and Consultant hereby agrees, to provide the Services (as hereinafter defined)
for the Company, pursuant to the terms and provisions of this Agreement (the
"Consulting Arrangement").
(b) Consultant shall make himself available at times mutually
acceptable to Consultant and the Company to consult with the Company on such
matters concerning the affairs of the Company as the Company may request from
time to time; provided, however, that Consultant shall not be required to devote
more than 10 hours per month in the performance of his services. Consultant's
obligation to perform services hereunder shall not preclude Consultant from
engaging for compensation or otherwise in any business, employment, occupation,
profession or other activity (either as an employee or on his own behalf) not
prohibited by Section 8 hereof.
4. Term. The term of the Consulting Arrangement shall begin on the
business day next following the Agreement Termination Date and shall have a term
of six (6) months (the "Term"), such that the Consulting Arrangement expires on
the date that is six (6) months after the Agreement Termination Date, unless
terminated earlier pursuant to the provisions of this Agreement (the "Expiration
Date").
5. Services to be Provided.
(a) During the Term, Consultant shall act as a consultant to
the Company, serving as an independent contractor and providing advisory and
consulting services and such other functions of a similar nature as may be
requested of Consultant by the Company (the "Services"). The Services shall be
performed within the State of Colorado, unless otherwise agreed by Consultant,
but Consultant will not have a permanent office at the Company.
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(b) During the Term, Consultant shall at all times perform his
services as an independent contractor, it being understood and agreed that
Consultant shall devote such time as is reasonably necessary to the performance
of his duties and shall not, without the written consent of the Company, render
to others any service of any kind if such other service or activities would in
any way be in violation of the terms of Section 8 hereof.
(c) Consultant shall not be an employee of the Company for any
purposes, including, but not limited to, for purposes of any tax or contribution
levied by the Federal Insurance Contributions Act, the Social Security Act, the
Federal Employment Tax Act and the Federal Income Tax Withholding Act or any
corresponding law of any country, state or locality with respect to employment
or compensation, and Consultant hereby accepts exclusive and full liability for
any such taxes or contributions. Except as provided for in Section 2(c),
Consultant shall not be entitled to any employee benefits or privileges
(including, but not limited to, medical or other insurance, holidays, vacation
or sick pay).
(d) During the Term, Consultant shall be free to pursue and
enter into other consulting or employment arrangements with third parties;
provided, however, that Consultant shall abide by the covenants of Section 8,
below, in the course of discussing, negotiating, entering into or performing
under any and all such arrangements. Consultant shall not be required to
mitigate the amount of any payment provided to Consultant hereunder by seeking
other employment, consulting or otherwise. In addition, no amounts due to
Consultant hereunder shall be reduced or offset by any compensation whatsoever
received by Consultant from any other permitted employment or consulting of
Consultant.
6. Limited Authority. Consultant shall not hold himself out directly or
indirectly as having any independent right, power or authority to create any
contract or obligation, either express or implied, on behalf of, in the name of
or binding upon, the Company, or to pledge the Company's credit, or to extend
credit in the Company's name.
7. Consulting Fee.
(a) During the Term, Consultant shall receive as total
consideration for his providing Services under this Agreement, advisory and
consulting fees (the "Fixed Fees") of One Hundred Twelve Thousand and Five
Hundred Dollars ($112,500), which shall be payable in bi-weekly installments in
accordance with the standard payroll practices of the Company in effect from
time to time.
(b) Provided prior written approval of the Company's Chief
Executive Officer is obtained for any expenses totaling more than $100 per
month, the Company shall reimburse Consultant for all documented ordinary,
necessary and reasonable business expenses incurred by Consultant in connection
with providing the Services under this Agreement. Reimbursement shall be made as
soon as practicable after Consultant submits an itemized statement setting forth
the expenses, together with appropriate supporting documents, such as copies of
receipts evidencing the amounts expended.
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8. Non-Competition; Non-Solicitation; Confidentiality;
Non-Disparagement.
(a) The provisions of Sections 6, 7 and 8 of the Employment
Agreement shall survive (for the period set forth in such Sections) the
termination of the Employment Agreement.
(b) Consultant shall not denigrate or disparage the Company in
the future, and the Company and its officers and directors shall not denigrate
or disparage Consultant.
9. Termination of Agreement.
(a) The provisions of the Consulting Arrangement and all
mutual liabilities and obligations between the Company and Consultant pursuant
to such Consulting Arrangement shall cease and terminate upon the Expiration
Date.
(b) The Company shall pay Consultant whether or not the
Company has called upon Consultant for Services.
10. Survival of Payment Obligations. The parties hereto acknowledge and
agree that all rights under this Agreement shall, (i) in the event of
Consultant's death, accrue to the benefit of and be paid to Consultant's estate,
heirs or assigns and (ii) in the event of Consultant's disability, accrue to the
benefit of and be paid to Consultant.
11. Publicity. Neither party shall issue any press release or other
public statement mentioning or involving the other party without the other
party's prior written consent.
12. Equitable Remedies. The parties hereto hereby acknowledge and agree
that a breach by any party hereto of any provision of this Agreement will cause
the non-breaching parties irreparable injury for which there is no adequate
remedy at law. Accordingly, the parties hereto expressly agree that, in the
event of any such breach or any threatened breach hereunder, directly or
indirectly, the non-breaching parties shall be entitled, in addition to any and
all other remedies available, to seek and obtain injunctive and/or other
equitable relief to require specific performance of or prevent, restrain and/or
enjoin a breach of the provisions of this Agreement.
13. Governing Law. The validity and construction of this Agreement or
any of its provisions will be governed by and construed in accordance with the
laws of the State of New York, without regard to its conflicts of law
principles.
14. Indemnification.
(a) Consultant hereby indemnifies and agrees to defend and
hold harmless the Company, to the fullest extent permitted by New York law, from
and against any and all claims, demands and actions, and any liabilities,
damages or expenses resulting therefrom, including court costs and reasonable
attorneys' fees, arising out of or relating to the Consultant's breach of this
Agreement. Consultant's obligations under this Section 14 hereof shall survive
the termination, for any reason, of this Agreement.
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(b) The Company hereby indemnifies and agrees to defend and
hold harmless Consultant, to the fullest extent permitted by New York law, from
and against any and all claims, demands and actions, and any liabilities,
damages or expenses resulting therefrom, including court costs and reasonable
attorneys' fees, arising out of or relating to the Company's breach of this
Agreement. The Company's obligations under this Section 14 hereof shall survive
the termination, for any reason, of this Agreement.
(c) Consultant shall continue to be entitled to
indemnification to the fullest extent permitted under the Delaware General
Corporation Law, the Company's bylaws and certificate of incorporation and any
applicable directors' and officers' insurance policies for all actions taken
prior to the Agreement Termination Date.
15. Miscellaneous Provisions.
(a) Consultant acknowledges that he is entering into this
Agreement freely, knowingly and voluntarily, with a full understanding of its
terms, and has had sufficient time to consider the terms of this Agreement.
(b) This Agreement shall not be modified or amended except by
a writing signed by each of the Company and Consultant.
(c) This Agreement constitutes the entire agreement and
understanding of the parties hereto relating to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
of the parties hereto relating to the subject matter hereof, and there are no
additional written or oral terms or representations made by either party other
than those contained herein; provided however, that notwithstanding the above,
Sections 6, 7 and 8 of the Employment Agreement are not merged into this
Agreement and not superseded as a result hereof. In the event of a conflict
between the terms of Sections 6, 7 and 8 of the Employment Agreement and this
Agreement, the terms of Sections 6, 7 and 8 of the Employment Agreement shall be
controlling.
(d) In the event of any dispute related to or based upon this
Agreement, the prevailing party shall be entitled to recover from the other
party its reasonable attorneys' fees and costs.
(e) Except as otherwise expressly provided in this Agreement,
no party may assign any rights or delegate any duties under this Agreement
without the prior written consent of the other party. Any attempted assignment
or delegation without the required consent shall be void.
(f) If any provision or clause of this Agreement or
application thereof to any person or circumstances is held invalid or unlawful,
such invalidity or unlawfulness shall not affect any other provision or clause
of this Agreement or application thereof which can be given effect without the
invalid or unlawful provision, clause or application.
(g) Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and delivered or sent by first-class
mail, postage prepaid, to the parties at the addresses set forth in the
introductory paragraph of this Agreement. Any party to this Agreement may change
their address for notices by notice given pursuant to the provisions of this
Section 15(g).
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(h) This Agreement and the rights and obligations of the
parties hereto shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
(i) This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original and all of which shall constitute but
one agreement. Copies of this Agreement, including facsimile copies, may be used
in lieu of the originals for all purposes. If a party signs this Agreement and
then transmits an electronic facsimile of the signature page to any other party,
that party who receives the transmission may rely upon the electronic facsimile
as a signed original of this Agreement.
(j) All exhibits and recitals included in this Agreement are
an integral part of this Agreement. They are incorporated in this Agreement by
this reference as though at this point set forth in full.
(k) Except as set forth in Sections 10 and 15(h) hereof, the
parties do not intend the benefits of this Agreement to inure to any person or
entity not a party to this Agreement. Notwithstanding anything to the contrary
contained in this Agreement, or any conduct or course of conduct by either party
before or after execution of this Agreement, this Agreement shall not be
construed as creating any right, claim or cause of action against either party
by any person or entity not a party to this Agreement.
(l) The parties hereto will, whenever and as often as they
shall reasonably be requested to do so by any other party, execute, acknowledge
and deliver, or cause to be executed, acknowledged or delivered, any and all
such further instruments or further assurances, approvals, consents and
documents as may be reasonably necessary, and to do any and all other acts as
may be required to carry out the intent and purpose of this Agreement.
(m) Time is of the essence of this Agreement.
(n) For purposes of this Agreement, the Company shall mean
Integrated BioPharma, Inc., a Delaware corporation, and any of its direct and
indirect subsidiaries and affiliates, as well as its predecessors and
successors.
[Remainder of page intentionally left blank;
signature page follows.]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have set their hands hereunto as of the date first above written.
INTEGRATED BIOPHARMA, INC.
By: /s/ E. Xxxxxx Xxx
E. Xxxxxx Xxx
Chief Executive Officer
/s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
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