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EXHIBIT 10.3
CONSULTING SERVICES AGREEMENT
This Agreement is entered into effective November 5, 1999 ("Effective
Date"), between Genetronics, Inc. ("Genetronics"), a California corporation
located at 00000 Xxxxxxxx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000 and Xxxx X. Xxxxxxxx,
having an address at 0000 Xxxxxxx Xxxxx, #0, Xxx Xxxxx, Xxxxxxxxxx 00000
("Consultant").
I. BACKGROUND
1.1 Genetronics desires that Consultant provide consulting services to
Genetronics for the purpose of advising Genetronics management on various
general business related matters ("Field").
1.2 Consultant has agreed to provide services in the Field, pursuant to the
terms and conditions that follow.
II. CONSULTING SERVICES
2.1 Consultant agrees to perform consulting services, as set forth in this
Section II, beginning as of the Effective Date and terminating upon the later of
(i) September 6, 2000, (ii) the date of expiration or termination of the stock
option agreement entered into by Genetronics and Consultant as of November 12,
1999 ("New Options"), or (iii) the date of expiration or termination of the last
stock option agreement between Genetronics and Consultant in effect as of the
Effective Date of this Consulting Services Agreement ("Existing Options") (the
"Term"). The parties acknowledge that the New Options will naturally expire on
November 11, 2004,
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and the latest natural expiration date of the Existing Options is October 19,
2003. For the sake of clarity, the parties acknowledge that the New Options
agreement and each Existing Options agreement shall be terminated on the date
all options granted pursuant to such agreement have been exercised.
2.2 Consultant agrees to advise Genetronics management and/or other Genetronics
consultants in the Field as requested by Genetronics ("Services"). Services
shall include, but not be limited to, telephone time; on-site advising at
Genetronics, or elsewhere; review of written documents; and/or preparation of
written documents.
2.3 Services shall be provided on an as needed basis, as requested by
Genetronics and pursuant to availability of Consultant. Consultant agrees to
make reasonable accommodations in his schedule if necessary to provide requested
Services.
2.4 Consultant shall report to Xxxxx Xxxxxxx, Chief Operating Officer of
Genetronics, or his delegate, when performing Services pursuant to this
Agreement.
III. COMPENSATION
3.1 In consideration of Services, Genetronics shall compensate Consultant
directly as follows during the terms of this Agreement:
a. Genetronics shall pay Consultant One Thousand Dollars ($1,000) per
full day of Services provided pursuant to Genetronics request ("Rate"), which
Rate shall be prorated in the event less than a full day of Services is
provided.
b. Payment shall be made upon receipt of an invoice for Services
rendered. Consultant agrees to submit an invoice no more frequently than one
time per month.
3.2 The compensation set forth in Section 3.1 does not include expenses incurred
pursuant to
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rendering Services. Genetronics shall reimburse Consultant for all reasonable
living and transportation expenses incurred by Consultant pursuant to rendering
requested Services or Excess Services, provided such expenses are approved in
writing by Genetronics prior to being incurred. Reimbursement shall be made
directly to Consultant upon submission to Genetronics of an invoice that
includes original receipts.
3.3 Consultant shall maintain true and correct records for time spent fulfilling
obligations under this Agreement and all transactions related thereto, for at
least twenty-four (24) months after termination of this Agreement.
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IV. NO CONFLICT OF INTEREST AND NO COMPETITION
4.1 Consultant acknowledges that no prior or existing relationships exist which
would prevent Consultant from entering into and fulfilling all obligations under
this Agreement.
4.2 Consultant shall not disclose to Genetronics any information, suggestion,
product, product development, or process with respect to which Consultant is
under any actual or implied duty to any third party to keep secret or to advise,
suggest, or develop such information, and nothing in this Agreement shall impose
an obligation on Consultant to act contrary to any such actual or implied duty
to others. Genetronics shall be free to use all information that is disclosed by
Consultant to Genetronics without any further obligation to Consultant.
4.3 Genetronics wishes to avoid any possibility of conflict arising in the
future. Therefore, if any specific issue or project brought to the attention of
Consultant by Genetronics poses a potential conflict of interest, Consultant
will immediately advise Genetronics and Genetronics shall not request Services
on that specific issue or project.
4.4 No Competition
a. Consultant acknowledges that development of, and maintaining
proprietary rights in, instruments, hardware, applicators and other equipment
related to electroporation-mediated delivery of compositions, such as drugs and
genes ("Genetronics Equipment") is a primary focus of Genetronics' current
business and future goals. Consultant also acknowledges that research and
development of electrically-assisted delivery of compositions to experimental
animals and human subjects, for a variety of biological and pathological fields
("Genetronics Research"), is another current and future objective of
Genetronics.
b. It would be detrimental to Genetronics' business if Consultant were
to assist Genetronics' competitors in the areas of Genetronics Research or with
instrumentation competitive with Genetronics Equipment.
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c. Consultant shall not use, promote, develop, or assist in the
development of, instrumentation that is competitive with Genetronics Equipment.
Further, Consultant shall not contract or collaborate, or otherwise assist, a
third party in the area of Genetronics Research. Consultant acknowledges and
agrees with these restrictions.
4.5 Consultant warrants and represents that he is not aware that any
relationship presently exists which is in conflict with the provisions of this
Section IV, and that he has disclosed to Genetronics any other consulting or
business relationships that may possibly be related to this Agreement.
V. CONFIDENTIAL INFORMATION
5.1 Genetronics shall disclose confidential information to Consultant directly
or indirectly, with or without notice of its confidential nature. Accordingly,
Consultant agrees to hold all information disclosed to Consultant by Genetronics
in confidence and neither disclose the same to others nor use the same for any
purpose other than as provided herein without the written permission of
Genetronics. Upon request, Consultant will return to Genetronics all written
information supplied to Consultant by Genetronics, or generated by Consultant on
behalf of Genetronics, including all copies thereof..
5.2 Consultant agrees that all technical information, including any reports,
relating to Genetronics developed by Consultant in connection with Services
under this Agreement, shall be the property of Genetronics and subject to the
confidentiality and nonuse provisions set forth herein.
5.3 The duty of confidentiality and nonuse shall not apply to any information
disclosed to Consultant by Genetronics which, through no act or failure to act
on the part of Consultant:
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a. is or becomes public information,
b. Consultant has in his possession at the time of disclosure by
Genetronics, other than by previous disclosure by Genetronics or through his
previous employment relationship with Genetronics,
c. is furnished to Consultant by a third party without restriction on
disclosure, provided the third party is not related to this Agreement or to
Services rendered,
d. is developed by or for Consultant outside the scope of this
Agreement, or
e. Consultant has an obligation to disclose under law, including but not
limited to those promulgated by the FDA, SEC and/or USPTO, provided Genetronics
is given a reasonable opportunity to review the planned disclosure and discuss
the need for such.
VI. INVENTIONS
6.1 Any inventions, discoveries and improvements, patentable or unpatentable,
that arise out of Services provided by Consultant under this Agreement and for
which Consultant is an inventor or coinventor, as determined under U.S. patent
law, ("Inventions") shall belong to Genetronics.
6.2 Consultant shall promptly and fully disclose all Inventions that arise out
of Services provided by Consultant under this Agreement to Genetronics and
cooperate with Genetronics or with its attorneys as may be reasonably required
in order to obtain patent and copyright protection therefor, including the
signing of any proper assignments, affidavits, applications and the like.
Furthermore, Consultant agrees to assign or otherwise transfer any and all
property rights, including all patent rights and all copyrights in materials
related to Services, domestic and foreign, resulting therefrom to Genetronics.
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6.3 Consultant represents and warrants that he has the right to agree to the
terms of Sections 6.1 and 6.2 and is not bound by an obligation of assignment to
a third party with respect to Inventions, as defined herein.
VII. OTHER PROVISIONS
7.1 In performing Services for Genetronics pursuant to this Agreement,
Consultant shall be acting in the capacity of an independent contractor to
Genetronics and not as an employee of Genetronics or any of its subsidiaries or
affiliated companies. Accordingly, although Genetronics shall specify the
general nature of the work to be performed and the goals to be met, the details
of performing such work and meeting such goals shall be determined by
Consultant. Pursuant to this Agreement, Consultant shall not be entitled to any
benefits Genetronics offers its employees.
7.2 Consultant is not an agent of Genetronics pursuant to this Agreement and is
not authorized to make any representation, contract or commitment on behalf of
Genetronics as a Consultant.
7.3 Consultant will be solely responsible for all tax returns and payments
required to be filed with or made to any federal, state or local tax authority
with respect to Consultant's performance of Services and receipt of fees under
this Agreement. Consultant will regularly report amounts paid to Consultant by
filing form 1099-MISC with the Internal Revenue Service as required by law.
Because Consultant is an independent contractor, Genetronics will not withhold
or make any payments for social security, unemployment insurance or disability
insurance contributions, or obtain Workers' Compensation Insurance on
Consultant's behalf. Consultant agrees to accept exclusive liability for
complying with all applicable state and federal laws governing self-employed
individuals, including obligations such as payment of taxes, social security,
disability and other contributions based on fees paid to Consultant under this
Agreement. Consultant hereby agrees to indemnify and defend Genetronics against
any and all such taxes or
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contributions, including penalties and interest.
7.4 This Agreement may be terminated earlier than the Term set forth in Section
2.1 , only upon mutual agreement of the parties. Provisions of compensation,
confidentiality, nonuse, and invention shall survive termination or expiration
of this Agreement by any mechanism.
7.5 This Agreement cannot be assigned by Consultant.
7.6 Any amendment or modification to this Agreement shall be valid only if in
writing and signed by both parties.
7.7 This Agreement will be governed by the laws of the State of California and,
to the extent applicable, the laws of the United States of America, without
regard to the place this Agreement is to be performed or where this Agreement
was made. Any dispute arising under this Agreement that the parties cannot
resolve by good faith negotiation and discussion shall be decided by binding
arbitration, conducted according to rules and guidelines to which the parties
shall jointly agree after good faith negotiation. In the event the parties
cannot agree on such rules and guidelines within 30 days of beginning such
negotiation, the parties hereby agree that the rules and guidelines of the
American Arbitration Association shall apply to resolve the dispute.
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Agreement to the foregoing is indicated by the signatures below:
GENETRONICS, INC. XXXX X. XXXXXXXX
By: /s/ Xxxxxx Xxxx By: /s/ Xxxx X .. Xxxxxxxx
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Xxxxxx Xxxx Xxxx X. Xxxxxxxx
President and Chief Executive Officer
Date: 12/06/99 Date: 12/06/99
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