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
Compan
