EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement"), effective as of August 13, 2007,
between BioForce Nanosciences Holdings, Inc (the "Company"), a Nevada
corporation, and Xxxxxxx X. Xxxxx (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 expire
May 31, 2009. Thereafter, the term of this Agreement shall be automatically
extended for successive one-year periods unless either party objects to such
extension by written notice to the other party at least 30 days prior to the
expiration of the initial term or any extension term.
3. Position and Duties.
(a) Service with Company. During the Term of this Agreement, the Employee
shall serve as the Executive Vice President, Chief Financial Officer and
Treasurer of the Company, or in such other executive capacity as may be assigned
to the Employee, and shall perform all duties commensurate with the Employee's
position and as may be assigned to the Employee by the Chairman of the Board of
Directors or the Chief Executive Officer of the Company or such other person(s)
as may be designated by the Board of Directors of the Company (the "Board"). The
Employee shall report to the Chairman of the Board or the Chief Executive
Officer or such other person(s) as may be designated by the Board and shall at
all times keep the Chairman of the Board and the Chief Executive Officer (or
such other officer as the Chairman of the Board, the Chief Executive Officer or
the Board may designate from time to time) promptly and fully informed (in
writing if so requested) of the Employee's conduct and of the business or
affairs of the Company, and provide such explanations of the Employee's conduct
as may be required.
(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.
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
minimum monthly salary of $12,916.67 per month, less deductions and
withholdings, which salary shall be paid in twice monthly increments in arrears
or otherwise as 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. The
Employee shall receive a one time bonus of up to $25,000 if an equity financing
is closed in 2007, with the exact amount of the bonus to be determined by and at
the discretion of the Chief Executive Officer.
(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 by the Employee and his family shall be paid for by the Company.
The Employee acknowledges that as specified in his employment offer letter dated
December 27, 2006, he has received a stock option grant whereby he has the
option to purchase 300,000 shares of Company stock vesting in equal annual 1/3
increments starting January 17, 2007, at an exercise price equal to the fair
market value as defined in the stock option plan governing the grant. The
Employee also acknowledges that he has received up to $10,000 in reasonable
moving and incidental expenses associated with his relocation to Ames, Iowa.
(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. While he is employed by the Company, the Employee shall be
entitled to four weeks paid vacation time per calendar year. Unused vacation may
be carried forward to use in subsequent years.
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 divulge, furnish or make accessible to anyone
or use in any way (other than in the ordinary course of the business of the
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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.
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.
(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.
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(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 ("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;
(ii) such Development does not relate (A) directly to the business
of the Company or (B) to the Company's actual or demonstrably
anticipated research or development.
(c) Assistance of the Employee. Upon request and without further
compensation therefore, but at no expense to the Employee, the Employee will do
all lawful acts, including but not limited to, the execution of papers and
lawful oaths and the giving of testimony, that in the opinion of the Company,
may be necessary or desirable in obtaining, sustaining, reissuing, extending and
enforcing United States and foreign copyrights and Letters Patent, including but
not limited to, design patents, on the Developments, and for perfecting,
affirming and recording the Company's complete ownership and title thereto, and
to cooperate otherwise in all proceedings and matters relating thereto.
(d) Records. The Employee will keep complete, accurate and authentic
accounts, notes, data and records of the Developments in the manner and form
requested by the Company. Such accounts, notes, data and records shall be the
property of the Company, and, upon its request, the Employee will promptly
surrender same to it or, if not previously surrendered upon its request or
otherwise, the Employee will surrender the same, and all copies (both electronic
and hard copies) thereof, to the Company upon the conclusion of his employment.
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(e) Obligations, Restrictions and Limitations. The Employee understands
that the Company may enter into agreements or arrangements with agencies of the
United States Government, and that the Company may be subject to laws and
regulations which impose obligations, restrictions and limitations on it with
respect to inventions and patents which may be acquired by it or which may be
conceived or developed by employees, consultants or other agents rendering
services to it. The Employee shall be bound by all such obligations,
restrictions and limitations applicable to any such invention conceived or
developed by him while he is employed by the Company and shall take any and all
further action which may be required to discharge such obligations and to comply
with such restrictions and limitations.
(f) Copyrightable Material. All right, title and interest in copyrightable
material that the Employee shall conceive or originate, either individually or
jointly with others, and which arise out of the performance of this Agreement,
will be the property of the Company and are by this Agreement assigned to the
Company along with ownership of any and all copyrights in the copyrightable
material. Upon request and without further compensation therefore, but at no
expense to the Employee, the Employee shall execute all papers and perform all
other acts necessary to assist the Company to obtain and register copyrights on
such materials in any and all countries. Where applicable, works of authorship
created by the Employee for the Company in performing his responsibilities under
this Agreement shall be considered "works made for hire," as defined in the U.S.
Copyright Act.
(g) Know-How and Trade Secrets. All know-how and trade secret information
conceived or originated by the Employee that arises out of the performance of
his obligations or responsibilities under this Agreement or any related material
or information shall be the property of the Company, and all rights therein are
by this Agreement assigned to the Company.
9. Termination of Employment.
(a) Grounds for Termination. The Employee's employment shall terminate
prior to the expiration of the initial term set forth in Section 2 or any
extension thereof in the event that at any time:
(i) The Employee dies,
(ii) The Employee becomes "disabled," so that he cannot perform the
essential functions of his position with reasonable
accommodation,
(iii) The Board of Directors of the Company elects to terminate this
Agreement for "cause" and notifies the Employee in writing of
such election,
(iv) The Board of Directors of the Company elects to terminate this
Agreement without "cause" and notifies the Employee in writing
of such election,
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(v) The Employee elects to terminate this Agreement with "good
reason" and notifies the Company in writing of such election,
or
(vi) The Employee elects to terminate this Agreement without "good
reason" and notifies the Company in writing of such election.
If this Agreement is terminated pursuant to clause (i), (ii) or (iii) of
this Section 9(a), such termination shall be effective immediately. If this
Agreement is terminated pursuant to clause (iv), (v) or (vi) of this Section
9(a), such termination shall be effective 30 days after delivery of the notice
of termination.
(b) "Cause" Defined. "Cause" means:
(i) The Employee has breached the provisions of Section 5, 7 or 8
of this Agreement in any material respect,
(ii) The Employee has engaged in willful and material misconduct,
including willful and material failure to perform the
Employee's duties as an officer or employee of the Company and
has failed to cure such default within 30 days after receipt
of written notice of default from the Board of Directors,
(iii) The Employee has committed fraud, misappropriation or
embezzlement in connection with the Company's business, or
(iv) The Employee has been convicted or has pleaded nolo contendere
to serious criminal misconduct (excepting, for example,
parking violations and occasional minor traffic violations).
In the event that the Company terminates the Employee's employment for "cause"
pursuant to clause (ii) of this Section 9(b) and the Employee objects in writing
to the Board's determination that there was proper "cause" for such termination
within 20 days after the Employee is notified of such termination, the matter
shall be resolved by arbitration in accordance with the provisions of Section
10(a). If the Employee fails to object to any such determination of "cause" in
writing within such 20 day period, he shall be deemed to have waived his right
to object to that determination. If such arbitration determines that there was
not proper "cause" for termination, such termination shall be deemed to be a
termination pursuant to clause (iv) of Section 9(a) and the Employee's sole
remedy shall be to receive the wage continuation benefits contemplated by
Section 9(g).
(c) "Good Reason" Defined. "Good Reason" means:
(i) a material reduction in the Employee's scope of authority or
responsibility, or
(ii) a reduction in the Employee's base salary.
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In the event the Employee terminates his employment with "good reason" pursuant
to clause (i) of this Section 9 (c) and the Company objects in writing to the
Employee's determination that there was proper "good reason" for such
termination within 20 days after the Company is notified of such termination,
the matter shall be resolved by arbitration in accordance with the provisions of
Section 10(a). If such arbitration determines that there was not proper "good
reason" for termination, such termination shall be deemed to be a termination
pursuant to clause (vi) of Section 9(a).
(d) Effect of Termination Notwithstanding any termination of this
Agreement, the Employee, in consideration of his employment hereunder to the
date of such termination, shall remain bound by the provisions of this Agreement
which specifically relate to periods, activities or obligations upon or
subsequent to the termination of the Employee's employment.
(e) "Disabled" Defined. "Disabled" means any mental or physical impairment
or disorder that renders the Employee unable to perform the essential functions
of his position, with or without reasonable accommodation, for a period of 180
days during any continuous 360-day period.
(f) Surrender of Records and Property. Upon termination of his employment
with the Company, the Employee shall deliver promptly to the Company all
records, manuals, books, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies (both electronic and
hard copies) thereof that relate in any way to the business, products, practices
or techniques of the Company, and all other property, trade secrets and
confidential information of the Company, including, but not limited to, all
documents that in whole or in part contain any trade secrets or confidential
information of the Company, which in any of these cases are in his possession or
under his control.
(g) Salary Continuation. If the Employee's employment by the Company is
terminated by the Company pursuant to clause (i), (ii), (iv) or (v) of Section
9(a), the Company shall continue to pay to the Employee (or his heirs in the
case of (i)) his base salary and shall continue to provide health insurance
benefits for the Employee and his family (or his heirs in the case of (i)),
through the earlier of (a) the date that the Employee has obtained other
full-time employment, or (b) twelve months from the date of termination of
employment. If this Agreement is terminated pursuant to clauses (iii) or (vi) of
Section 9(a), the Employee's right to base salary and benefits shall immediately
terminate, except as may otherwise be required by applicable law. Additional
compensation, bonuses and benefits may be approved by the Board of Directors.
10. Settlement of Disputes.
(a) Arbitration. Except as provided in Section 10(b), any claims or
disputes of any nature between the Company and the Employee arising from or
related to the performance, breach, termination, expiration, application or
meaning of this Agreement or any matter relating to the Employee's employment
and the termination of that employment by the Company shall be resolved
exclusively by arbitration in Des Moines, Iowa, or in the home state of the
Company's corporate headquarters should the location change during the term of
this agreement, in accordance with the applicable rules of the American
Arbitration Association. In the event of submission of any dispute to
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arbitration, each party shall, not later than 30 days prior to the date set for
hearing, provide to the other party and to the arbitrator(s) a copy of all
exhibits upon which the party intends to rely at the hearing and a list of all
persons each party intends to call at the hearing. The fees of the arbitrator(s)
and other costs incurred by the Employee and the Company in connection with such
arbitration shall be paid by each party. The decision of the arbitrator(s) shall
be final and binding upon both parties. Judgment of the award rendered by the
arbitrator(s) may be entered in any court of competent jurisdiction.
(b) Venue. Any action at law, suit in equity or judicial proceeding
arising directly, indirectly, or otherwise in connection with, out of, related
to or from this Agreement, or any provision hereof, shall be litigated only in
the courts of the State of Iowa, located in Story County or in the federal
courts located in Des Moines, Iowa or in the home state of the Company's
corporate headquarters should the location change during the term of this
agreement. The Employee and the Company consent to the jurisdiction of such
courts over the subject matter set forth in Section 10(b).
11. Miscellaneous.
(a) Entire Agreement. This Agreement (including the exhibits, schedules
and other documents referred to herein) contains the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes any prior understandings, agreements or representations, written or
oral, relating to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in separate counterparts,
each of which will be an original and all of which taken together shall
constitute one and the same agreement, and any party hereto may execute this
Agreement by signing any such counterpart.
(c) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule, the validity,
legality and enforceability of the other provision of this Agreement will not be
affected or impaired thereby. In furtherance and not in limitation of the
foregoing, should the duration or geographical extent of, or business activities
covered by, any provision of this Agreement be in excess of that which is valid
and enforceable under applicable law, then such provision shall be construed to
cover only that duration, extent or activities which may validly and enforceably
be covered.
(d) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection (e), successors and
assigns.
(e) Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable (including by operation of law) by either party without the prior
written consent of the other party to this Agreement, except that the Company
may, without the consent of the Employee, assign its rights and obligations
under this Agreement to any corporation, firm or other business entity with or
into which the Company may merge or consolidate, or to which the Company may
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sell or transfer all or substantially all of its assets, or of which 50% or more
of the equity investment and of the voting control is owned, directly or
indirectly, by, or is under common ownership with, the Company. After any such
assignment by the Company, the Company shall be discharged from all further
liability hereunder and such assignee shall thereafter be deemed to be the
Company for the purposes of all provisions of this Agreement including this
Section 11.
(f) Modification, Amendment, Waiver or Termination. No provision of this
Agreement may be modified, amended, waived or terminated except by an instrument
in writing signed by the parties to this Agreement. No course of dealing between
the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement. No delay on the part of the Company in exercising any right hereunder
shall operate as a waiver of such right. No waiver, express or implied, by the
Company of any right or any breach by the Employee shall constitute a waiver of
any other right or breach by the Employee.
(g) Notices. All notices, consents, requests, instructions, approvals or
other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
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If to the Company: If to Employee:
Asrun Kristmundsdottir Xxxxxxx X. Xxxxx
Director of Business Operations 0000 Xxxxxxx Xxxx
BioForce Nanosciences, Inc. Xxxx, XX 00000
0000 Xxxxxx Xxxxx Xxxxx, Xxx. 000
Xxxx, XX 00000
Facsimile: (000) 000-0000
Email: xxxxx@xxxxxxxxxxxx.xxx
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Any party may change the address set forth above by notice to each other party
given as provided herein.
(h) Headings. The headings and any table of contents contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement.
(i) Governing Law. ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF IOWA OR IN THE HOME STATE OF THE COMPANY'S
CORPORATE HEADQUARTERS SHOULD THE LOCATION CHANGE DURING THE TERM OF THIS
AGREEMENT, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF.
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(j) Third-Party Benefit. Nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
(k) Withholding Taxes. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
August 13, 2007.
BIOFORCE NANOSCIENCES HOLDINGS, INC. EMPLOYEE
a Nevada corporation
By: /s/ Xxxx Xxxxxxxxx /s/ Xxxxxxx X. Xxxxx
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Title: Chief Executive Officer Xxxxxxx X. Xxxxx
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