EMPLOYMENT AGREEMENT

  

 

Exhibit 10.3

EMPLOYMENT AGREEMENT

 

 

EMPLOYMENT AGREEMENT (this “Agreement”) effective as of September 1, 2008 between BioForce Nanosciences Holdings, Inc (the “Company”), a Nevada corporation, and Eric R. Henderson (the “Employee”), a resident of the State of Iowa.

 

WHEREAS, the Company wishes to employ the Employee to render services for the Company on the terms and conditions set forth in this Agreement and the Employee wishes to be retained and employed by the Company on such terms and conditions.

 

NOW, THEREFORE, in consideration of the premises, the mutual agreements set forth below and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

 

 

1.

Employment.  The Company hereby employs the Employee, and the Employee accepts such employment and agrees to perform services for the Company, for the period and upon the other terms and conditions set forth in this Agreement.

 

 

2.

Term.  Unless terminated at an earlier date in accordance with Section 9 of this Agreement, the term of the Employee’s employment hereunder shall be for a period of one year, commencing on September 1, 2008.  This agreement may be renewed for additional one year terms by mutual agreement of the parties.

 

 

3.

Position and Duties.  

 

(a)

Service with Company.  During the term of the Employee’s employment, the Employee agrees to serve as Executive Vice President and Chief Scientific Officer of the Company. The position reports to the President and Chief Executive Officer.  This is a half-time position.

 

(b)

Performance of Duties.  The Employee agrees to serve the Company faithfully and to the best of his ability during his employment by the Company.  The Employee hereby confirms that he is under no contractual commitments inconsistent with his obligations set forth in this Agreement and that during the term of this Agreement, he will not render or perform services for any other corporation, firm, entity or person which are inconsistent with the provisions of this Agreement, unless agreed to by the Board of Directors.  While he remains employed by the Company, the Employee may participate in reasonable charitable activities, personal business activities and personal investment activities so long as such activities do not interfere with the performance of his obligations under this Agreement. The Company recognizes that the Employee has obligations to Iowa State University in his role as a Professor of Genetics, Development and Cell Biology  and that these obligations do not constitute a conflict with his Company duties.

 

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4.

Compensation.

 

(a)

Base Salary.  As compensation in full for all services to be rendered by the Employee under this Agreement, the Company shall pay to the Employee a base salary of $100,000 per year, less deductions and withholdings, which salary shall be paid on a semi-monthly basis in arrears in accordance with the Company’s normal payroll procedures and policies.  

 

(b)

Additional Compensation.  In the course of the employee’s normal activities the employee may achieve key milestones related to, for example, fund raising, patents, sales, and other business goals. At its discretion the Board may award additional compensation for accomplishments of this nature.

 

(c)

Participation in Benefit Plans.  While he is employed by the Company, the Employee shall also be eligible to participate in all employee benefit plans or programs of the Company to the extent that the Employee meets the requirements for each individual plan. The Company provides no assurance as to the adoption or continuance of any particular employee benefit plan or program, and the Employee’s participation in any such plan or program shall be subject to the provisions, rules and regulations applicable thereto. The costs for participation in such plan by the employee and his family shall be determined in accordance with the Company’s policies, as they may be determined from time to time.  It is understood that Employee shall be a part-time employee during the term of this Agreement, and that his eligibility for participation in employee benefit plans, and costs of participation in those plans, shall be determined on that basis.

 

(d)

Expenses.  The Company will pay or reimburse the Employee for all reasonable and necessary out-of-pocket expenses incurred by him in the performance of his duties under this Agreement, subject to the Company’s normal policies for expense verification.

 

(e)

Vacation.  Employee shall accrue no paid time off during the term of this Agreement.  Further, it is agreed that all accrued vacation time, sick time and paid time off held by Employee as of August 31, 2008 shall be utilized during the term of the Agreement.

 

(f)

Deferred Pay.  Employee’s balance of deferred pay as of August 31, 2008 shall be satisfied via the issuance of the Company’s convertible secured promissory notes and warrants on the same terms as the Company’s issuance of the same securities to investors on June 10, 2008 and July 21, 2008.  The Company and Employee will enter into a  Convertible Secured Promissory Note and Warrant Purchase Agreement dated August 31, 2008 to document this transaction.

 

 

5.

Confidential Information.  Except as permitted or directed by the Company’s Board of Directors, during the term of his employment or at any time thereafter, the Employee shall not

 

 

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divulge, furnish or make accessible to anyone or use in any way (other than in the ordinary course of the business of the Company) any confidential or secret knowledge or information of the Company that the Employee has acquired or become acquainted with or will acquire or become acquainted with prior to the termination of the period of his employment by the Company (including employment by the Company or any affiliated companies prior to the date of this Agreement), whether developed by himself or by others, concerning any trade secrets, confidential or secret designs, processes, formulae, plans, devices or material (whether or not patented or patentable) directly useful in any aspect of the business of the Company, any customer or supplier lists of the Company, any confidential or secret development or research work of the Company, or any other confidential information or secret aspects of the business of the Company.  The Employee acknowledges that the above-described knowledge or information constitutes a unique and valuable asset of the Company and represents a substantial investment of time and expense by the Company, and that any disclosure or other use of such knowledge or information other than for the sole benefit of the Company would be wrongful and would cause harm to the Company. Both during and after the term of his employment, the Employee will refrain from any acts or omissions that would reduce the value of such knowledge or information to the Company.  The foregoing obligations of confidentiality shall not apply to any knowledge or information that is now published or which subsequently becomes generally publicly known in the form in which it was obtained from the Company, other than as a direct or indirect result of the breach of this Agreement by the Employee.  

 

6.

Ventures.  If, during the term of his employment the Employee is engaged in or associated with the planning or implementing of any project, program or venture involving the Company and a third party or parties, all rights in such project, program or venture shall belong to the Company.  Except as approved by the Company’s Board of Directors, the Employee shall not be entitled to any interest in such project, program or venture or to any commission, finder’s fee or other compensation in connection therewith other than the compensation to be paid to the Employee as provided in this Agreement.  Notwithstanding the above, rights in any such project, program or venture involving the Company and either Iowa State University or Aspera Corp. shall be determined by the agreement of those parties.

 

 

7.

Non-competition Covenant.

 

(a)

Agreement Not to Compete.   During the term of his employment with the Company and for a period of one year after the termination of such employment (whether such termination is with or without cause, or whether such termination is occasioned by the Employee or the Company), he shall not directly engage in competition with the Company.

 

(b)

Geographic Extent of Covenant. The obligations of the Employee under section 7(a) shall apply to any geographic area in which the Company (i) has engaged in business during the term of this Agreement through production, promotional, sales or marketing activity, or otherwise, or (ii) has otherwise established its goodwill, business reputation or any other customer or supplier relations.

 

 

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 (c)

Limitation of Covenant.  Ownership by the Employee, as a passive investment of less than ten percent of the outstanding shares of capital stock of any corporation listed on a national securities exchange or publicly traded shall not constitute a breach of this Section 7.

 

(e)

Acknowledgment.  The Employee agrees that the restrictions and agreements contained in this Section 7 are reasonable and necessary to protect the legitimate interests of the Company.

 

(f)

Blue Pencil Doctrine.  If the duration or geographical extent of, or business activities covered by, this Section 7 are in excess of what is valid and enforceable under applicable law, then such provision shall be construed to cover only that duration, geographical extent or activities that are valid and enforceable.

 

 

8.

Patent and Related Matters.

 

(a)

Disclosure and Assignment.  The Employee will disclose in writing to the Company complete information concerning each and every invention, discovery, improvement, device, design, apparatus, practice, process, method or product, whether patentable or not, made, developed, perfected, devised, conceived or first reduced to practice by the Employee, either solely or in collaboration with others, during the term of this Agreement relating either directly to the business, products, practices or techniques of the Company, or the Company’s actual or demonstrably anticipated research or development (“Developments”).  The Employee, to the extent that he has the legal right to do so, hereby acknowledges that any and all of the Developments are the property of the Company and hereby assigns and agrees to assign to the Company any and all of the Employee’s right, title and interest in and to any and all of the Developments.   At the request of the Company, the Employee will confer with the Company and its representatives for the purpose of disclosing all Developments to the Company as the Company shall reasonably request during the period of the Employee’s employment with the Company.

 

(b)

Limitation on Sections 8.  The provisions of Section 8 shall not apply to any Development meeting the following conditions:

 

(i)

such Development was developed entirely on the Employee’s own time;