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EXHIBIT 10.1
CONSULTING SERVICES AGREEMENT
This Agreement is entered into effective May 15, 2001 ("Effective
Date"), between Genetronics International, Inc. ("Genetronics"), a California
corporation located at 11199 Sorrento Valley Road, San Diego, CA 92121 and
Martin Nash, having an address at 2739 Inverness, La Jolla, CA 92037
("Consultant").
I. BACKGROUND
1.1 Genetronics desires that Consultant provide consulting services to
Genetronics for the purpose of advising Genetronics management and scientific
staff on matters concerning various business matters arising while Consultant
was President and CEO or Genetronics ("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 until November 15, 2001.
2.2 Consultant agrees to be available on a basis, to be mutually agreed upon, to
advise Genetronics management, scientists and/or other Genetronics consultants
in the Field, and to attend meetings on mutually agreeable dates and at mutually
agreeable times and locations 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.
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III. COMPENSATION
3.1 The consideration for Services is the Separation and Release Agreement
entered into between the parties dated July 17, 2001.
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.
c. Consultant shall not use, promote, develop, or assist in the
development of,
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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 it is not aware that any
relationship presently exists which is in conflict with the provisions of this
Section IV, and that it 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:
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,
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,
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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 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.
6.3 Consultant represents and warrants that it 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. Consultant shall not be entitled to any benefits Genetronics offers
its employees.
7.2 The term of this Agreement shall be one year from the Effective Date, unless
terminated earlier pursuant to terms and conditions set forth in this Agreement
or extended longer as may be mutually agreed by the parties in writing.
Provisions of compensation, confidentiality, nonuse, and invention shall survive
termination of the Agreement.
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7.3 Either party may terminate this Agreement for any reason upon at least 30
days prior written notice delivered to the other.
7.4 This Agreement cannot be assigned by Consultant.
7.5 Any amendment or modification to this Agreement shall be valid only if in
writing and signed by both parties.
7.6 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.
Agreement to the foregoing is indicated by the signatures below:
GENETRONICS, INC. CONSULTANT
By: Grant Denison By: /s/ Martin Nash
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Social Security Number:
Date: July 17, 2001 Date: July 10, 2001
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