Exhibit 99.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into and is effective
as of August 1, 2005 ("Effective Date") and is made and entered into by and
between Northwest Biotherapeutics, Inc., a Delaware corporation, ("Company") and
Paul Zeltzer ("Brain MD").
The Company and Brain MD hereby agree as follows:
1. EMPLOYMENT
The Company hereby employs Brain MD and Brain MD accepts employment by the
Company upon the terms and subject to the conditions set forth in this
Agreement. Brain MD shall serve as the Company's Medical Director. During Brain
MD's employment, he shall serve the Company faithfully and to the best of his
ability, devoting at least eighty percent of his working time, attention and
energies to the Company's business, unless otherwise approved in writing by the
Company's President Subject to the direction of the President, Brain MD will be
responsible for oversight of the DCVax-Brain clinical trial as described in
Exhibit A, and will have such duties, responsibilities, powers and authority as
are prescribed by the President. Brain MD shall not engage in any other business
activity (except up to 20% of his working time which can be devoted to the
Department of Neurosurgery at UCLA), the management of personal investments,
charitable and civic activities, and participation as a consultant or director
for companies that do not compete with the Company, that in the aggregate do not
interfere with the performance of Brain MD's duties) without first obtaining the
written consent of the President.
2. TERM OF AGREEMENT
The term of this Agreement ("Term") shall commence on August 1, 2005 and will
continue in effect until August 1, 2006, unless otherwise terminated as set
forth herein.
3. COMPENSATION
(a) BASE SALARY. Company shall pay Brain MD a base salary at an annual
full time rate of Two Hundred Thousand Dollars ($200,000) payable in accordance
with Company's regular pay schedule for its senior management. The President, or
his designee shall review Brain MD's salary and performance annually.
(a) BENEFITS AS DESCRIBED IN THE ATTACHED DOCUMENT AND TYPICAL FOR
ALL COMPANY EMPLOYEES.
(1) You will be eligible to receive the Company's standard benefit
package, as in effect from time to time, for "full-time" employees and other
future benefits that may be offered at the Company's discretion. Current
benefits include vacation/sick leave, Medical, Dental, Vision, Long-Term
Disability, Life Insurance and a 401K plan. Health and Welfare benefits become
effective the 1st of the month following start of employment. Open enrollment
periods for the 401K plan are the 1st of every month. Receipt of these benefits
may be subject to your meeting eligibility criteria under the plan. Plan
documents are controlling.
(2) Company will maintain a reasonable policy of insurance for
directors and officer's liability with such insurer, in such amounts, and
containing such other provisions as determined by the President or the Company's
board of directors. To the extent reasonably possible and appropriate, Brain MD
will be included as an officer within that policy of insurance with the premiums
paid by Company.
4. TERMINATION
Employment of Brain MD pursuant to this Agreement may be terminated as follows:
(a) BY BRAIN MD. Brain MD may terminate his employment at any time, for
any reason.
(b) BY THE COMPANY. The Company may terminate the employment of Brain MD
at any time, for any reason, with or without cause.
(c) AUTOMATIC TERMINATION. This Agreement and Brain MD's employment shall
terminate automatically upon the death or total disability of Brain MD. The term
"total disability" as used in this Agreement shall mean Brain MD's inability to
perform the duties set forth in Section 1 for a period or periods aggregating
one-
hundred twenty (120) calendar days in any 12-month period as a result of
physical or mental illness, loss of legal capacity or any other cause beyond
Brain MD's control
5. TERMINATION PAYMENTS
In the event of termination of the employment of Brain MD, all of the Company's
obligations to provide compensation and benefits to Brain MD set forth in this
Agreement shall terminate upon the effective date of such termination. For
purposes of this Agreement, the effective date of termination shall be thirty
(30) days after the Brain MD or the Company gives written notice of termination.
6. INTELLECTUAL PROPERTY
Company shall own all right, title and interest (including patent rights,
copyrights, trade secret rights, mask work rights, sui generis database rights
and all other intellectual rights of any sort throughout the world) relating to
any and all inventions (whether or not patentable), works of authorship, mask
works, designs, know-how, ideas and information made or conceived or reduced to
practice, in whole or in part, by Brain MD during the term of Brain MD's
employment with Company to and only to the fullest extent allowed by Washington
Revised Code Annotated Section 49.44.140 (which is attached as Exhibit C)
(collectively "Inventions") and Brain MD will promptly disclose all Inventions
to Company. Brain MD will also disclose anything Brain MD believes is excluded
by Section 49.44.140 so that Company can make an independent assessment. Brain
MD hereby makes all assignments necessary to accomplish the foregoing. Brain MD
shall further assist Company, at Company's expense, to further evidence, record
and perfect such assignments, and to perfect, obtain, maintain, enforce, and
defend any rights specified to be so owned or assigned. Brain MD hereby
irrevocably designates and appoints Company as its agents and attorneys-in-fact
to act for and in Brain MD's behalf to execute and file any document and to do
all other lawfully permitted acts to further the purposes of the foregoing with
the same legal force and effect as if executed by Brain MD. If Brain MD wishes
to clarify that something created by Brain MD prior to Brain MD's employment
that relates to Company's actual or proposed business is not within the scope of
this Agreement, Brain MD has listed it on Exhibit D. If Brain MD uses or (except
where disclosed pursuant to this Section 6 as a claimed exclusion to RCW
49.44.140 or in Exhibit D) discloses Brain MD's own or any third party's
confidential information or intellectual property when acting within the scope
of Brain MD's employment or otherwise on behalf of Company, Company will have
and Brain MD hereby grants Company a perpetual, irrevocable, worldwide
royalty-free, non-exclusive, sublicensable right and license to exploit and
exercise all such confidential information and intellectual property rights. To
the extent allowed by law, this section includes all rights of paternity,
integrity, disclosure and withdrawal and any other rights that may be known as
or referred to as "moral rights," "artist's rights," "droit moral," or the like
(collectively "Moral Rights"). To the extent Brain MD retains any such Moral
Rights under applicable law, Brain MD hereby ratifies and consents to any action
that may be taken with respect to such Moral Rights by or authorized by Company
and agree not to assert any Moral Rights with respect thereto. Brain MD will
confirm any such ratifications, consents and agreements from time to time as
requested by Company.
7. PRIVACY
Brain MD recognizes and agrees that Brain MD has no expectation of privacy with
respect to Company's telecommunications, networking or information processing
systems (including, without limitation, stored computer files, email messages
and voice messages) and that Brain MD activity and any files or messages on or
using any of those systems may be monitored at any time without notice.
8. RESTRICTIVE COVENANTS
Brain MD acknowledges: (i) that Brain MD will have access during his employment
with Company to confidential information regarding all Inventions and all other
business, technical and financial information (including, without limitation,
the identity of and information relating to customers or employees) Brain MD
develops, learns or obtains during the term of Brain MD's employment that
relates to Company or the business or demonstrably anticipated business of
Company or that are received by or for Company in confidence, and that all such
information constitutes "Proprietary Information"; (ii) that information
regarding Proprietary Information constitutes a valuable asset and trade secret
of Company; and (iii) that it is reasonable for Company to protect itself from
misappropriation of Proprietary Information by Brain MD upon termination of
employment or otherwise. Accordingly, in consideration of employment hereunder,
and other good and valuable consideration, Brain MD agrees to the following
nondisclosure, noninterference and non-competition covenants during the Term and
for a period of twenty-four (24) months after the Term:
(a) NONDISCLOSURE. Brain MD will not copy, remove, or disclose any
Proprietary Information, except as may be required by law or in the course of
performing services for Company, Brain MD will hold in confidence and not
disclose or, except within the scope of Brain MD's employment, use any
Proprietary Information at any time, even after Brain MD's employment with
Company ends for whatever reason. However, Brain MD shall not be obligated under
this paragraph with respect to information Brain MD can document by clear and
convincing evidence is or becomes readily publicly available without restriction
through no fault of Brain MD. Upon termination of Brain MD's employment or if
sooner requested, Brain MD will promptly return to Company all items containing
or embodying Proprietary Information (including all copies), except that Brain
MD may keep Brain MD's personal copies of (i) Brain MD's compensation records,
(ii) materials distributed to shareholders generally and (iii) this Agreement;
(b) NONINTERFERENCE. Brain MD will not employ, solicit, or seek to employ
any person who is an employee of Company or its subsidiaries (i) as of the date
hereof; (ii) during the Term, or (iii) at the time of employment or
solicitation; and
(c) NON-COMPETITION AND NON-SOLICITATION. Brain MD will not, directly or
indirectly, as principal, agent, employee, officer, shareholder, consultant or
otherwise, engage in any business that competes directly with Company or any of
its subsidiaries, and will not solicit or aid in soliciting, endeavor to obtain
as a customer or client, accept sales, marketing, financial, or consulting
business from, or perform sales, marketing, consulting or related business for
any person, firm, corporation, association or other entity: (i) that is or was a
Company customer for whom Brain MD performed any services or with whom Brain MD
had maintained substantial business contacts at any time during the Term; or
(ii) whose business Brain MD solicited, either alone or in conjunction with
others, on behalf of Company or any of its subsidiaries during the Term.
Brain MD acknowledges and agrees: (i) that a breach of any of the
covenants contained in this Section 8 would cause irreparable injury to Company
and its subsidiaries for which monetary damages alone would be inadequate to
compensate and protect Company and its subsidiaries; (ii) that Company and its
subsidiaries may therefore seek and obtain injunctive relief to enjoin any
breach of such restrictive covenants in addition to, and not in limitation of,
any other legal or equitable remedies that are available as a matter, of law or
equity; and (iii) that specific enforcement of this Agreement by way of an
injunction shall not prevent Brain MD from earning a reasonable livelihood.
BRAIN MD FURTHER ACKNOWLEDGES AND AGREES THAT THE NONDISCLOSURE,
NONINTERFERENCE, NON-COMPETITION AND NON-SOLICITATION COVENANTS CONTAINED HEREIN
ARE NECESSARY FOR THE PROTECTION OF COMPANY'S LEGITIMATE BUSINESS INTERESTS AND
ARE REASONABLE IN DURATION, GEOGRAPHIC SCOPE, AND OTHER CONTENT. However, in the
event a court of competent jurisdiction should decline to enforce any term of
the nondisclosure, noninterference, non-competition or non-solicitation
covenants, as written herein, such covenant shall be deemed to be modified to
require confidentiality and restrict Brain MD's interference, competition and
solicitation with Company and its subsidiaries to the maximum duration,
geographic scope, and other content that the court shall find enforceable.
9. ASSIGNMENT
This Agreement is personal to Brain MD and shall not be assignable by Brain MD.
If the Company sells all or substantially all of its assets, this Agreement will
remain in effect between the Brain MD and the Company's successor. All the terms
and provisions of this Agreement shall be binding on and shall inure to the
benefit of and be enforceable by the parties and their respective successors and
permitted assigns.
10. WAIVERS
No delay or failure by any party to this Agreement in exercising, protecting or
enforcing any of its rights, titles, interests or remedies hereunder, and no
course of dealing or performance with respect thereto, shall constitute a
waiver. The express waiver by a party of any right, title, interest or remedy in
a particular instance or circumstance shall not constitute a waiver in any other
instance or circumstance. All rights and remedies shall be cumulative and not
exclusive of any other rights or remedies.
11. ARBITRATION
Any controversies or claims arising out of or relating to this Agreement shall
be fully and finally settled by arbitration in the city of Seattle, Washington
in accordance with the Employment Arbitration Rules of the American Arbitration
Association then in effect (the "AAA Rules"), conducted by one arbitrator either
mutually agreed upon by the Company and Brain MD or chosen in accordance with
the AAA Rules, except that the parties shall have any right to discovery as
would be permitted by the Federal Rules of Civil Procedure for a period of 90
days following the commencement of such arbitration, and the arbitrator shall
resolve any dispute that arises in connection with such discovery. Judgment upon
the award rendered by the arbitrator may be entered in any court having
jurisdiction.
12. AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any provision of
this Employment Agreement, nor consent to any departure from any provision of
this Agreement by either party, shall in any event be effective unless the same
shall be in writing, specifically identifying this Agreement and the provision
intended to be amended, modified, waived, terminated or discharged and signed by
the Company and Brain MD, and each such amendment, modification, waiver,
termination or discharge shall be effective only in the specific instance and
for the specific purpose for which given. No provision of this Agreement shall
be varied, contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by the Company and Brain MD.
13. APPLICABLE LAW
This Agreement shall in all respects, including all matters of construction,
validity and performance, be governed by, and construed and enforced in
accordance with, the laws of the state of Washington, without regard to any
rules governing conflicts of laws.
14. SEVERABILITY
If any provision of this Agreement shall be held invalid, illegal or
unenforceable in any jurisdiction, for any reason, including, without
limitation, the duration of such provision, its geographical scope or the extent
of the activities prohibited or required by it, then, to the full extent
permitted by law (a) all other provisions shall remain in full force and effect
in such jurisdiction and shall be liberally construed in order to carry out the
intent of the parties as nearly as may be possible, (b) such invalidity,
illegality or unenforceability shall not affect the validity, legality or
enforceability of any other provision, and (c) any court or arbitrator having
jurisdiction shall have the power to reform such provision to the extent
necessary for such provision to be enforceable under applicable law.
15. HEADINGS
All headings used in this Agreement are for convenience only and shall not in
any way affect the construction of, or be taken into consideration in
interpreting, this Agreement.
16. COUNTERPARTS
This Agreement, and any amendment or modification entered into pursuant to
Section 12, may be executed in any number of counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute one and the same
instrument.
17. ENTIRE AGREEMENT
This Agreement and the Indemnification Agreement between Brain MD and the
Company (and any addenda, amendments or extensions to those agreements)
constitute the entire agreement between the Company and Brain MD with respect to
the subject matters of this Agreement and the Indemnification Agreement.
NORTHWEST BIOTHERAPEUTICS, INC. BRAIN MD:
By: _______________________________________ _________________________
ALTON L. BOYNTON, PH.D. Paul Zeltzer, M.D.
President and Chief Operating Officer
EXHIBIT A
JOB DESCRIPTION
JOB TITLE: Medical Director
JOB SUMMARY:
Responsible for assisting in the design, planning, execution, interpretation of
clinical trials/research of human phase I-III trials for products under
development. Works in conjunction with Clinical Research and Regulatory Affairs
to ensure that overall clinical objectives are met. Interacts with various
internal/external groups to facilitate clinical trial research. May supervise
the activities of Clinical Research Associates.
DETAILED DUTIES & RESPONSIBILITIES:
1. Assists with the identification of appropriate clinical trial strategy.
2. Responsible for researching, writing and implementation of clinical
protocols and final reports.
3. Writes and up-dates the Investigator Brochure.
4. Evaluates and recommends potential investigator/study sites.
5. Assesses adequacy of potential clinical investigators and sites. Includes
evaluation of facilities, personnel, patient referral base, and adherence
to Good Clinical Practices (GCP).
6. Provides medical guidance to clinical/medical staff.
7. Maintains close contact with sites by telephone, correspondence, and
visits.
8. Instructs investigators and their personnel in regard to study protocol,
study assessments and regulatory requirements.
9. Maintains contact with CRO ensuring timely progress of activities and
deliverables.
10. Assist with design and development of clinical study protocols and other
essential documents (CRFs, source documents, Informed consents, and
marketing materials)
11. Evaluates and analyzes clinical data and assists with Data Management as
required, whether in-house or with the CRO.
12. Ensures and evaluates patient eligibility.
13. Monitors and tracks all serious adverse events to ensure reporting is
complete and appropriate follow up measures are taken.
14. Writes annual report for FDA in collaboration with the Chief Medical
Office, Director of Clinical Affairs, and Regulatory Office.
15. Evaluates and analyzes clinical data.
16. Assists with the development and administration of clinical site budgets,
schedules and performance requirements.
17. Works with Biometrics to establish standards for data quality and data
preparation for computerization.
18. Provides medical, technical and/or professional guidance to CRAs to meet
schedules and/or resolve technical problems.
19. Performs all duties and responsibilities as to ensure GCP compliance.
20. Other projects and tasks as assigned.
REQUIREMENTS:
MD with a minimum of 8-10 years of pharmaceutical, clinical or biological
research. Broad-based experience in the administration and conduct of clinical
trials of varied design and complexity is required. Demonstrated leadership
skills and the ability to solve problems proactively are essential. Must be
willing to travel.
COMPLEXITY:
Work on extremely complex problems where analysis of situations or data requires
an evaluation of intangible variables. Exercises independent judgment in
developing methods, techniques and evaluation criteria for obtaining results.
SUPERVISION:
Acts independently to determine methods and procedures on new assignments. May
supervise the work of others.
REPORTS TO:
CHIEF MEDICAL OFFICER OR PRESIDENT AS APPROPRIATE
EXHIBIT B
WAIVER AND RELEASE
For and in consideration of the severance payments and benefits set out in the
Employment Agreement attached hereto, Brain MD, on behalf of himself and his
agents, heirs, successors and assigns, expressly waives any claims against
Company and releases Company (including its officers, directors, stockholders,
managers, agents and representatives) from any and all claims, demands,
liabilities, damages, obligations, actions or causes of action of any kind,
known or unknown, past or present, arising out of, relating to, or in connection
with Brain MD's employment, termination of employment, or the holding of any
office with Company or any other related entity. The claims released by Brain MD
include, but are not limited to, claims for defamation, libel, invasion of
privacy, intentional or negligent infliction of emotional distress, wrongful
termination, constructive discharge, breach of contract, breach of the covenant
of good faith and fair dealing, breach of fiduciary duty, fraud, or for
violation of any federal, state or other governmental statute or ordinance,
including, without limitation, Title VII of the Civil Rights Act of 1964, the
federal Age Discrimination in Employment Act, the Americans with Disabilities
Act, the Family and Medical Leave Act, the Employment Retirement Income Security
Program or any other legal limitation on the employment relationship.
This waiver and release shall not waive or release claims (1) where the events
in dispute first arise after execution of this Release; (2) for rights or
benefits due under the Employment Agreement attached hereto; or (3) relating to
Brain MD's rights to indemnity as a corporate officer of Company.
Brain MD agrees he has been provided the opportunity to consider whether to
enter into this Release, and has voluntarily chosen to enter into it on this
date. This Release shall be effective when signed. Brain MD acknowledges that he
is voluntarily executing this Release, that he has carefully read and fully
understands all aspects of this Release and the attached Employment Agreement,
that he has not relied upon any representations or statements not set forth
herein or made by Company's agents or representatives, that he has been advised
to consult with an attorney prior to executing the Release, and that, in fact,
he has consulted with an attorney of his choice as to the subject matter and
effect of this Release.
________________________ _________________________
Date Brain MD
EXHIBIT C
WASHINGTON REVISED CODE ANNOTATED SECTION 49.44.140
Washington Revised Code Annotated Section 49.44.140 provides as follows:
A provision in an employment agreement that provides that an employee
shall assign or offer to assign any of the employee's rights in an
invention to the employer does not apply to an invention for which no
equipment, supplies, facilities, or trade secret information of the
employer was used and that was developed entirely on the employee's own
time, unless:
(a) the invention relates (i) directly to the business of the employer, or
(ii) to the employer's actual or demonstrably anticipated research or
development, or
(b) the invention results from any work performed by the employee for the
employer.
Any provision that purports to apply to such an invention is to that
extent against the public policy of this state and is to that extent
unenforceable.
An employer shall not require a provision made void and unenforceable by
subsection (a) of this section as a condition of employment or continuing
employment.
EXHIBIT D
Northwest Biotherapeutics, Inc.
22322 20th Avenue SE, Suite 150
Bothell, WA 98021
Ladies and Gentlemen:
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment or consultancy (as the case may
be) by Northwest Biotherapeutics, Inc. (the "Company") that have been made or
conceived or first reduced to practice by me, alone or jointly with others,
prior to my employment or consultancy (as the case may be) by the Company that I
desire to remove from the operation of the Proprietary Information and
Inventions Agreement entered into between the Company and me.
[ ] No inventions or improvements.
[XX] Any and all inventions regarding:
- - NOVEL PRINCIPLE RADIOACTIVE LINKED ANTIBODY THERAPY FOR LEPTOMENINGEAL
DISEASE;
- - DOWNLOAD & STORAGE OF MEDICAL INFORMATION ONTO ANY WIRELESS DEVICE (PATENT
ACCEPTED AND VERBALLY AWARDED 6/15/2005).
[ ] Additional sheets attached.
2. I propose to bring to my employment or consultancy (as the case may be)
the following materials and documents of a former employer:
[X] No materials or documents.
[ ] See below:
By: ____________________________________
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