Robert Bowdring Employment Agreement Effective Date: October 27th, 2008 EMPLOYMENT, CONFIDENTIAL INFORMATION, AND INVENTION ASSIGNMENT AGREEMENT
Exhibit
10.03
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Agreement
Effective Date: October
27th, 2008
EMPLOYMENT, CONFIDENTIAL
INFORMATION,
AND INVENTION ASSIGNMENT
AGREEMENT
As a
condition of my employment with INVO Bioscience Inc, its subsidiaries,
affiliates, successors or assigns (together the “Company”), and in consideration
of my further employment with the Company and my receipt of the compensation now
and hereafter paid to me by Company and the Company’s agreement in Section
2(a)(i), I agree to the following terms and conditions of this Employment,
Confidential Information and Invention Assignment Agreement (the
“Agreement”):
1. At-Will
Employment. I UNDERSTAND AND ACKNOWLEDGE THAT MY EMPLOYMENT
WITH THE COMPANY IS FOR AN UNSPECIFIED DURATION AND CONSTITUTES “AT-WILL”
EMPLOYMENT. I ALSO UNDERSTAND THAT ANY REPRESENTATION TO THE CONTRARY
IS UNAUTHORIZED AND NOT VALID UNLESS OBTAINED IN WRITING AND SIGNED BY AN
AUTHORIZED REPRESENTATIVE OF THE COMPANY. I ACKNOWLEDGE THAT THIS
EMPLOYMENT RELATIONSHIP MAY BE TERMINATED AT ANY TIME, WITH OR WITHOUT GOOD
CAUSE OR FOR ANY OR NO CAUSE, AT THE OPTION EITHER OF THE COMPANY OR MYSELF,
WITH OR WITHOUT NOTICE.
Compensation and Other
Benefits.
(a) As
consideration for his services hereunder, the Company will pay ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ a base salary of $135,000 per year (the "Base Salary") for
the position of Corporate Controller. Departmental responsibilities will include
finance, IT Systems, Facilities, HR, Insurance and Contracts. Payment
of Base Salary shall be made in accordance with the Company's normal payroll
practices.
(b) Management
will review Employees Base Salary annually. Upon such review, the
Management may adjust upward Employee’s Base Salary as it deems appropriate,
taking into account Employee’s performance as well as economic conditions,
competitive conditions within the Company's industry, and the financial
condition, operations, and prospects of the Company. The annual review will be
completed prior to the end of each year of the Employment Term and any salary
adjustment shall be effective on the first day of the immediately succeeding
year of the Employment Term.
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ will be
granted 30,000 shares of INVO Bioscience stock upon employment of post merger
stock and 270,000 shares of INVO Bioscience stock options vesting
equally over a period of 3 years, 90,000 shares at year one anniversary, 90,000
shares at year two anniversary and 90,000s shares at year 3
anniversary. The strike price will be the price on the day the Option
is granted.
(d) Employee
will participate in the Company Bonus and Stock Option Program which will
include an individualized plan of performance goals, metrics and stock and/or
cash awards based upon meeting performance goals. The specifics of
the individualized performance plan will be developed within the firs 45 days of
employment with the company. All grants of stock to employees must be
approved by the Board of Directors.
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(e) Employee may
participate in all group health and insurance programs and all other fringe
benefit, or additional compensation plans for which he qualifies
which the Company now or in the future, in its sole discretion, makes available
to its employees generally. This paragraph does not obligate the
Company to establish or maintain any such program or otherwise to pay any such
additional compensation.
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(f)
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Employee
will have 4 weeks of vacation per year to be taken in accordance with the
Company's policies in effect from time to time for senior management of
the Company. Employee will be able to carry forward his unused
vacation time up to an annual maximum of 6 weeks of
vacation.
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(g)
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INVO
Bioscience will pay all work related reasonable travel and pocket
expenses.
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(h)
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If
employment is terminated by employer, a severance of two months of service
year.
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2. Confidential
Information.
(a) Company
Information.
(i) The
Company agrees that upon the commencement of my employment, it will make
available to me that Confidential Information of the Company that will enable me
to optimize the performance of my duties to the Company. In exchange,
I agree to use such Confidential Information solely for the Company’s
benefit. Notwithstanding the preceding sentence, I agree that upon
the termination of my employment in accordance with Section 1, the Company shall
have no obligation to provide or otherwise make available to me any of its
Confidential Information. I understand that “Confidential
Information” means any Company proprietary information, technical data,
trade secrets or know-how, including, but not limited to, research, product
plans, products, services, customer lists and customers (including, but not
limited to, customers of the Company on whom I called or with whom I became
acquainted during the term of my employment), markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances or other business
information disclosed to me by the Company either directly or indirectly in
writing, orally or by drawings or observation of parts or
equipment. I further understand that Confidential Information does
not include any of the foregoing items which has become publicly known and made
generally available through no wrongful act or omission of mine or of others who
were under confidentiality obligations as to the item or items involved or
improvements or new versions thereof.
(ii) I
agree at all times during the term of my employment and thereafter, to hold in
strictest confidence, and not to use, except for the exclusive benefit of the
Company, or to disclose to any person, firm or corporation without written
authorization of the Board of Directors of the Company, any Confidential
Information of the Company.
(b) Former
Employer Information. I agree that I will not, during my
employment with the Company, improperly use or disclose any proprietary
information or trade secrets of any former or concurrent employer or other
person or entity and that I will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to any such employer,
person or entity unless consented to in writing by such employer, person or
entity.
(c) Third
Party Information. I recognize that the Company has received
and in the future will receive from third parties their confidential or
proprietary information subject to a duty on the Company’s part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any person,
firm or corporation or to use it except as necessary in carrying out my work for
the Company consistent with the Company’s agreement with such third
party.
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3. Inventions.
(a) Assignment
of Inventions. I agree that I will promptly make full written
disclosure to the Company, will hold in trust for the sole right and benefit of
the Company, and hereby assign to the Company, or its designee, all my right,
title, and interest in and to any and all inventions, original works of
authorship, developments, concepts, improvements, designs, discoveries, ideas,
trademarks or trade secrets, whether or not patentable or registrable under
copyright or similar laws, which I may solely or jointly conceive or develop or
reduce to practice, or cause to be conceived or developed or reduced to
practice, during the period of time I am in the employ of the Company
(collectively referred to as “Inventions”), except as provided in Section 3(f)
below. I further acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of and
during the period of my employment with the Company and which are protectible by
copyright are “works made for hire,” as that term is defined in the United
States Copyright Act. I understand and agree that the decision
whether or not to commercialize or market any Invention developed by me solely
or jointly with others is within the Company’s sole discretion and for the
Company’s sole benefit and that no royalty will be due to me as a result of the
Company’s efforts to commercialize or market any such Invention.
(b) Maintenance
of Records. I agree to keep and maintain adequate and current
written records of all Inventions made by me (solely or jointly with others)
during the term of my employment with the Company. The records will
be in the form of notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be available to and remain
the sole property of the Company at all times.
(c) Patent
and Copyright Registrations. I agree to assist the Company, or
its designee, at the Company’s expense, in every proper way to secure the
Company’s rights in the Inventions and any copyrights, patents, mask work rights
or other intellectual property rights relating thereto in any and all countries,
including, but not limited to, the disclosure to the Company of all pertinent
information and data with respect thereto, the execution of all applications,
specifications, oaths, assignments and all other instruments which the Company
shall deem necessary in order to apply for and obtain such rights and in order
to assign and convey to the Company, its successors, assigns, and nominees the
sole and exclusive rights, title and interest in and to such Inventions, and any
copyrights, patents, mask work rights or other intellectual property rights
relating thereto. I further agree that my obligation to execute or
cause to be executed, when it is in my power to do so, any such instrument or
papers shall continue after the termination of this Agreement. If the
Company is unable because of my mental or physical incapacity or for any other
reason to secure my signature to apply for or to pursue any application for any
United States or foreign patents or copyright registrations covering Inventions
or original works of authorship assigned to the Company as above, then I hereby
irrevocably designate and appoint the Company and its duly authorized officers
and agents as my agent and attorney in fact, to act for and in my behalf and
stead to execute and file any such applications and to do all other lawfully
permitted acts to further the prosecution and issuance of letters patent or
copyright registrations thereon with the same legal force and effect as if
executed by me.
(d) Exception
to Assignments. I understand that the provisions of this
Agreement requiring assignment of Inventions to the Company shall not apply to
any invention that I have developed entirely on my own time without using the
Company’s equipment, supplies, facilities, trade secret information or
Confidential Information except for those inventions that either (i) relate at
the time of conception or reduction to practice of the invention to the
Company’s business, or actual or demonstrably anticipated research or
development of the Company or (ii) result from any work that I performed for the
Company.
4. Conflicting
Employment. I agree that, during the term of my employment
with the Company, I will devote my full time and efforts to the Company and I
will not engage in any other employment, occupation or consulting activity, nor
will I engage in any other activities that conflict with my obligations to the
Company.
5. Returning
Company Documents, etc. I agree that, at the time of leaving
the employ of the Company, I will deliver to the Company (and will not keep in
my possession, recreate or deliver to anyone else) any and all devices, records,
data, notes, reports, proposals, lists, correspondence, specifications, drawings
blueprints, sketches, materials, equipment, other documents or property, or
reproductions of any aforementioned items developed by me pursuant to my
employment with the Company or otherwise belonging to the Company, its
successors or assigns, including, but not limited to, those records maintained
pursuant to paragraph 3(b). In the event of the termination of my
employment.
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6. Notification
of New Employer. In the event that I leave the employ of the
Company, I hereby grant consent to notification by the Company to my new
employer about my rights and obligations under this Agreement.
7. Solicitation
of Employees. I agree that for a period of eighteen (18)
months immediately following the termination of my relationship with the Company
for any reason, whether with or without good cause or for any or no cause, at
the option either of the Company or myself, with or without notice, I will not
hire any employees of the Company and I will not, either directly or indirectly,
solicit, induce, recruit or encourage any of the Company’s employees to leave
their employment, or take away such employees, or attempt to solicit, induce,
recruit, encourage or take away employees of the Company, either for myself or
for any other person or entity.
8. Interference. I
agree that during the course of my employment and for a period of eighteen (18)
months immediately following the termination of my relationship with the Company
for any reason, whether with or without good cause or for any or no cause, at
the option either of the Company or myself, with or without notice, I will not,
either directly or indirectly, interfere with the Company’s contracts and
relationships, or prospective contracts and relationships, including, but not
limited to, the Company’s customer or client contracts and
relationships.
9. Covenant
Not to Compete.
(a) I
agree that during the course of my employment and for a period of eighteen (18)
months immediately following the termination of my relationship with the Company
for any reason, whether with or without good cause or for any or no cause, at
the option either of the Company or myself, with or without notice, I will not,
without the prior written consent of the Company, (i) serve as a partner,
employee, consultant, officer, director, manager, agent, associate, investor, or
otherwise for, (ii) directly or indirectly, own, purchase, organize or take
preparatory steps for the organization of, or (iii) build, design, finance,
acquire, lease, operate, manage, invest in, work or consult for or otherwise
affiliate myself with, any business in competition with or otherwise similar to
the Company’s business. The foregoing covenant shall cover my
activities in every part of the Territory in which I may conduct business during
the term of such covenant as set forth above. “Territory” shall mean
(i) all counties in the Commonwealth of Massachusetts, (ii) all other states of
the United States of America and (iii) all other countries of the world;
provided that, with respect to clauses (ii) and (iii), the Company derives at
least five percent (5%) of its gross revenues from such geographic area prior to
the date of the termination of my relationship with the Company.
(b) I
acknowledge that I will derive significant value from the Company’s agreement in
Section 2(a)(i) to provide me with that Confidential Information of the Company
to enable me to optimize the performance of my duties to the
Company. I further acknowledge that my fulfillment of the obligations
contained in this Agreement, including, but not limited to, my obligation
neither to disclose nor to use the Company’s Confidential Information other than
for the Company’s exclusive benefit and my obligation not to compete contained
in subsection (a) above, is necessary to protect the Company’s Confidential
Information and, consequently, to preserve the value and goodwill of the
Company. I further acknowledge the time, geographic and scope
limitations of my obligations under subsection (a) above are reasonable,
especially in light of the Company’s desire to protect its Confidential
Information, and that I will not be precluded from gainful employment if I am
obligated not to compete with the Company during the period and within the
Territory as described above.
(c) The
covenants contained in subsection (a) above shall be construed as a series of
separate covenants, one for each city, county and state of any geographic area
in the Territory. Except for geographic coverage, each such separate
covenant shall be deemed identical in terms to the covenant contained in
subsection (a) above. If, in any judicial proceeding, a court refuses
to enforce any of such separate covenants (or any part thereof), then such
unenforceable covenant (or such part) shall be eliminated from this Agreement to
the extent necessary to permit the remaining separate covenants (or portions
thereof) to be enforced. In the event the provisions of subsection
(a) above are deemed to exceed the time, geographic or scope limitations
permitted by applicable law, then such provisions shall be reformed to the
maximum time, geographic or scope limitations, as the case may be, then
permitted by such law.
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10. Representations. I
agree to execute any proper oath or verify any proper document required to carry
out the terms of this Agreement. I represent that my performance of
all the terms of this Agreement will not breach any agreement to keep in
confidence proprietary information acquired by me in confidence or in trust
prior to my employment by the Company. I have not entered into, and I
agree I will not enter into, any oral or written agreement in conflict
herewith.
11. Arbitration
and Equitable Relief.
(a) Arbitration. Except
as provided in subsection (b) below, I agree that any dispute, claim or
controversy concerning my employment or the termination of my employment or any
dispute, claim or controversy arising out of or relating to any interpretation,
construction, performance or breach of this Agreement, shall be settled by
arbitration to be held in Beverly, Massachusetts in accordance with the rules
then in effect of the American Arbitration Association. The
arbitrator may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration. Judgment
may be entered on the arbitrator’s decision in any court having
jurisdiction. The Company and I shall each pay one-half of the costs
and expenses of such arbitration, and each of us shall separately pay our
counsel fees and expenses.
(b) Equitable
Remedies. I agree that it would be impossible or inadequate to
measure and calculate the Company’s damages from any breach of the covenants set
forth in Sections 2, 3, 5, 7 and, 9 herein. Accordingly, I agree that
if I breach any of such Sections, the Company will have available, in addition
to any other right or remedy available, the right to obtain an injunction from a
court of competent jurisdiction restraining such breach or threatened breach and
to specific performance of any such provision of this Agreement. I
further agree that no bond or other security shall be required in obtaining such
equitable relief and I hereby consent to the issuance of such injunction and to
the ordering of specific performance.
12. General
Provisions.
(a) Governing
Law; Consent to Personal Jurisdiction. THIS AGREEMENT WILL BE
GOVERNED BY THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
WITHOUT REGARD FOR CONFLICTS OF LAWS PRINCIPLES. I HEREBY EXPRESSLY
CONSENT TO THE PERSONAL JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN
THE COMMONWEALTH OF MASSACHUSETTS FOR ANY LAWSUIT FILED THERE AGAINST ME BY THE
COMPANY CONCERNING MY EMPLOYMENT OR THE TERMINATION OF MY EMPLOYMENT OR ARISING
FROM OR RELATING TO THIS AGREEMENT.
(b) Entire
Agreement. This Agreement sets forth the entire agreement and
understanding between the Company and me relating to the subject matter herein
and supersedes all prior discussions between us. No modification of
or amendment to this Agreement, nor any waiver of any rights under this
Agreement, will be effective unless in writing signed by the party to be
charged. Any subsequent change or changes in my duties, salary or
compensation will not affect the validity or scope of this
Agreement.
(c) Severability. If
one or more of the provisions in this Agreement are deemed void by law,
including, but not limited to, the covenant not to compete in Section 9, then
the remaining provisions will continue in full force and effect.
(d) Successors
and Assigns. This Agreement will be binding upon my heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company, its successors, and its assigns.
(e) Construction. The
language used in this Agreement will be deemed the language chosen by the
parties to express their mutual intent, and no rules of strict construction will
be applied against either party.
(f) Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
enforceable, and all of which together shall constitute one
agreement.
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13. Acknowledgements
I
acknowledge and agree to each of the following items:
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(a)
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I
am executing this Agreement voluntarily and without any duress or undue
influence by the Company or anyone else;
and
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(b)
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I
have carefully read this Agreement. I have asked any questions
needed for me to understand the terms, consequences and binding effect of
this Agreement and fully understand them;
and
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(c)
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I
sought the advice of an attorney of my choice if I wanted to do so prior
to the signing of this Agreement.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the day, month and
year first set forth below; provided, however, that the Company executed this
Agreement solely for the purpose of entering into the covenants contained in
Section 2(a)(i).
Date:
October 17, 2008
INVO
Bioscience:
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Company
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Company
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Employee’s
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Employee’s
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